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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-11-14] British Columbia. Supreme Court Nov 14, 1988

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 9556  Proceedings  1 Vancouver, B.C.  2 November 14, 1988  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, Vancouver, this Monday, November 14, 1988,  6 in the matter of Delgamuukw versus Her Majesty the  7 Queen.  8 THE COURT:  I would like to inquire whether it would be  9 convenient to have a discussion tomorrow or today,  10 if counsel prefer, about the schedule for the  11 spring.  I think it's useful.  It will be very  12 helpful for me, at least, to know the weeks which we  13 will be sitting starting -- I think we agreed we  14 were going to start the second -- is it the second  15 Monday or perhaps the first Monday in January?  We  16 wouldn't be starting the day after Labour Day which  17 is a Tuesday, but we will start the following  18 Monday.  19 And unless I'm persuaded otherwise, I would  20 assume that we would continue on a three and one  21 rotation, but Mr. Rush raised a question about that  22 some weeks ago now.  I have some -- I have one  23 matter that I have to be away for a matter for a  24 meeting of the Canadian Judicial Council, but other  25 than that I don't anticipate any unusual difficulty.  26 But I would like counsel to speak with whoever they  27 want to speak with about these questions and discuss  28 it with me either tomorrow or today.  I would say  29 tomorrow because I think I heard it suggested we may  30 only be sitting today and tomorrow.  Well, then I  31 prefer to do that before we adjourn for the week  32 anyway.  Thank you.  33 MR. WILLMS:  My lord, before the next — this is a matter that I  34 have advised my friend of.  You will recall that  35 during the cross-examination of Dr. Gottesfeld I  36 obtained a draft copy of Dr. Mathewes' report from  37 Dr. Gottesfeld.  At that time I took that draft  38 away.  I've had it copied so I now have five copies  39 of that draft of Dr. Mathewes' report and I would  40 like to formally tender it as an exhibit at this  41 time.  I understand that my friend has some  42 objections to its admissibility which may require  43 Dr. Mathewes to return, but I would like at least to  44 take the step of tendering it formally and at least  45 mark it for identification if my friend has some  46 obj ections.  47 THE COURT:  This is not the report that Dr. Mathewes spoke to 9557  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  THE  MS.  COURT:  WILLMS:  COURT:  WILLMS:  COURT:  MANDELL  when he gave his evidence?  MR. WILLMS:  This is — Dr. Mathewes described his draft, but he  didn't have a copy of it.  Yes.  Then in Dr. Gottesfeld's evidence I was able to  obtain a copy of Dr. Mathewes' draft, the one that  Dr. Mathewes described but didn't have a copy of.  Yes.  That's the draft that I'm speaking of, and that's  the draft that I'm seeking to tender now as an  exhibit.  All right.  Ms. Mandell?  :  Thank you.  My lord, I believe that in fairness to  all the parties in the process it is better that the  draft be in than it not be in.  But this is a  circumstance where Dr. Mathewes isn't here and he is  off the stand.  The draft was found after he was off  the stand and he, therefore, isn't going to have an  opportunity of having put to him what may be  significant or not about the changes between the  draft and the final product.  Well, either party could apply for leave to resume  their examination, or cross-examination or  re-examination, could they not?  :  That's right.  I have suggested, though, to my  friend that it's expensive to the parties to do  that.  Dr. Mathewes is at the present time in Texas.  He apparently will be back sometime before the end  of the month.  And I had my friend -- I suggested to  him and he did set out in a letter the differences  which he finds significant between the drafts and  the final report.  And I proposed that that letter  be put to Dr. Mathewes and he have an opportunity of  replying in writing to the different changes that  are there and that his letter be filed together with  the draft, and if either party at that point feels  the need to recall him then we do.  But if my friend wants simply to put the draft  in and leave the obligation on us necessarily to  call him.  I think there should be some explanation  given, but I would like to simplify the process so  we are not put to the expense every time of when  there is a draft which after the fact emerges the  witness necessarily has to be called to the stand.  THE COURT:  Well, to keep the lines as clear as possible, it  seems to me that I ought not to receive a written  explanation if such it is or might be, except by  THE COURT:  MS. MANDELL 955?  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  MS. MANDELL:  consent.  I see no difficulty in Mr. Willms having  an opportunity to consent or not consent to whatever  explanation Dr. Mathewes thinks fit to make.  But if  he doesn't consent, then it seems to me I ought to  leave it to the resources of the parties to have the  witness produced.  Now, I take it that Mr. Willms is not asking  to have Dr. Mathewes recalled for further  cross-examination?  MR. WILLMS:  My lord, all that I'm seeking to do here is to mark  a document that the witness referred to and that I  obtained from Dr. Gottesfeld.  Had I marked the  actual draft when I received it from Dr. Gottesfeld,  in other words had I anticipated this problem --  COURT:  Yes.  WILLMS:  -- the document would be in as an exhibit right  now.  I would have taken it to photocopy then and  because I did it the other way, I am a bit surprised  by my friend's position now and I am met with this  problem.  I just want to mark it as an exhibit  because it was his draft, that's it.  Well, my friend wishes to make something of it.  He has changes between the draft and the final  report which he has identified to me as changes that  he considers to be significant.  I think that if  that's what is to be made of it, the witness should  be recalled and given the opportunity to respond to  that.  MR. WILLMS:  And I have no objection to my friend calling Dr.  Mathewes to explain the differences which I have  pointed out to her.  THE COURT:  Well, would it suit your purpose, Ms. Mandell, if I  had the document marked at this time for  identification only and then you get whatever in  writing you think is appropriate from Dr. Mathewes  and show it to your friend.  And then if you want to  recall him for re-examination on his draft report,  then it seems to me that is something to which I  would probably accede.  All right.  That's fine.  All right.  Is it a document that should be marked  with a distinctive number or can it be associated  with some other exhibit?  I think it should be a distinctive number, my lord.  REGISTRAR:  The next number, my lord, is 799.  COURT:  For identification, then, this is Dr. Mathewes'  draft dated March 31, 1986.  MS.  THE  MR.  THE  THE  MANDELL  COURT:  WILLMS: 9559  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 (EXHIBIT 799 FOR IDENTIFICATION:  Dr. Mathewes'  2 Draft dated March 31, 1986)  3  4 THE COURT:  Thank you.  Ms. Mandell.  5 MS. MANDELL:  Thank you.  I would like to call Sybille Haeussler  6 to the stand.  7 THE REGISTRAR:  Stand and take the Bible in your right hand,  8 please.  9  10 Sybille Haeussler, a  11 witness on behalf of the  12 Plaintiffs, being duly  13 sworn, testifies as  14 follows:  15  16 THE REGISTRAR:  Would you state your full name for the record,  17 please and spell your last name?  18 THE WITNESS:  My name is Sybille Haeussler.  My last name is  19 spelled H-A-E-U-S-S-L-E-R.  20 THE REGISTRAR:  Thank you.  21 THE COURT:  And you have a distinctive spelling for your first  22 name?  23 THE WITNESS:  Yes, would you like that spelled?  24 THE COURT:  Yes, please.  25 THE WITNESS:  S-Y-B-I-L-L-E.  26 THE COURT:  Thank you.  Sit down if you wish.  27 MS. MANDELL:  If I could hand up for your lordship an exhibit  28 book and also a copy for the court reporter.  I  29 would like to tender Ms. Haeussler as an expert in  30 the area of forest ecology.  31 THE COURT:  Forest ecology?  32 MS. MANDELL:  Yes.  33 THE COURT:  Thank you.  34 MS. MANDELL:  Concentrating on the ecosystems and vegetation of  35 northwestern British Columbia with expertise to  36 describe, classify and map soils, climate,  37 vegetation and land use practices.  She's primarily  38 concerned with the relationship of plants to the  39 environment in an area described as vegetation  40 dynamics which is changes in vegetation over time in  41 response to particular disturbances.  She'll be  42 giving opinion evidence with respect to the maps  43 indicating the location and distribution of certain  44 berry species within the study area, and the impact  45 of certain disturbance on the berries studied.  46 THE COURT:  The impact of disturbance?  47 MS. MANDELL:  Certain disturbance on the berries studied.  Now, 9560  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 my friend has delivered this morning a letter where  2 he is prepared to make certain admissions.  I wonder  3 whether or not it's necessary to go through the  4 qualifications for this witness or whether  5 qualifications are also admitted as part of the --  6 part of the admissions which is being proposed in  7 the November 14th letter?  8 MR. WILLMS:  My lord, on each map there is a section that  9 describes the relationship between the berries  10 described on the map and the native population of  11 the area which I've advised my friend as long as  12 that's stated as an assumption rather than a  13 statement of opinion, I don't object to it because  14 it is beyond this witness' qualifications.  15 There is another section in each map dealing  16 with the "Effect of European Settlement" or what  17 European settlement did a hundred years ago.  As  18 long as the witness says that she has studied what  19 land clearing does to berries and things like that  20 without attributing it to any particular person or  21 group of people a hundred years ago, then I have no  22 objection to that.  23 And the third area is that there is a  24 description -- there is a description of the drying  25 of the berries on each map.  This witness never  26 dried any berries, and so I suggested to my friend  27 as long as that's led as an assumption that all of  28 the berry maps can be marked showing where this  29 witness -- in this witness' opinion the berries are  30 located because that's the essence of the maps.  But  31 subject to those three things, and I've identified  32 them to my friend in the letter, I don't have any  33 objection to marking the maps.  34 MS. KOENIGSBERG:  I agree.  Mr. Willms has outlined my concerns  35 as well.  If those are met, I have no objection.  36 THE COURT:  All right.  37 MS. MANDELL:  I think then that I am going to only — with  38 respect to whether or not Ms. Haeussler is going to  39 say whether any particular person caused  40 disturbance, we are not tendering her for that  41 purpose.  Also with respect to the drying of the  42 berries, I don't -- we don't have to go further than  43 what Mr. Willms has suggested.  However, with  44 respect to the land use practices of the Indian  45 people regarding the berries, some of that we will  46 say is part of Ms. Haeussler's area of expertise  47 that falls within the inquiry that she would 9561  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 normally make for any of the land use practices.  2 And I think then with respect to just that aspect, I  3 will go through her qualifications and tender her.  4 THE COURT:  Your friends have agreed that the maps may be marked  5 on the basis described by Mr. Willms.  6 MS. MANDELL:  That's right.  7 THE COURT:  Do you want to do it now or do it later?  8 MS. MANDELL:  Well, I believe we should do it later.  9 THE COURT:  All right.  10 MS. MANDELL:  Because some of the objections taken by my friends  11 to certain of the portions of the descriptions in  12 the maps, some of that falls within her area of  13 expertise.  14 THE COURT:  Yes, all right.  15  16 EXAMINATION IN CHIEF BY MS. MANDELL:  17 Q    Ms. Haeussler, if you could turn to tab 1 of the  18 book of documents, there is a curriculum vitae.  Can  19 you identify that document?  2 0           A    Yes, that's mine.  21 MS. MANDELL:  I would like that, if it could, to be marked as  22 the next exhibit.  2 3 THE COURT:  Yes.  24 MR. WILLMS:  No objection, my lord.  25 THE REGISTRAR:  It will be 800.  26  27 (EXHIBIT 800:  Curriculum Vitae of Sybille Haeussler)  28  2 9 MS. MANDELL:  30 Q    You identify as professional experience from 1983 to  31 the present that you're a partner in Skeena Forestry  32 Consultants in Smithers.  Could you explain to the  33 court what you do as a partner in that company which  34 gives rise to expertise for the project which you  35 conducted and which is the subject of your evidence  36 today?  37 A    Our forest consulting firm specializes in areas of  38 forest ecology and silviculture.  We carry out  39 projects that involve the classification of the land  40 base, mapping the land base, describing the  41 practices that go on there, how activities such as  42 logging might affect the planned base.  43 Q    In the course of the work that you do with Skeena  44 Forestry Consultants, is it part of the methodology  45 in viewing a resource to be studied to investigate  46 the use made of the resource by various user groups?  47 A    Yes, it would be. 9562  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 Q    And what would be the common way that you would go  2 about inquiring into that aspect of the resource  3 management or the resource use?  4 A    I would look in the literature.  I would do library  5 research.  I would discuss with knowledgeable people  6 in the field, and I would summarize the literature  7 that I had found.  In some areas we do our own field  8 work.  9 Q    All right.  And with the information that you search  10 for regarding the use made by a resource, do you  11 also inquire into particular user groups that may  12 primarily use that resource?  13 A    Well, certainly.  14 Q    And how does that information assist you with  15 respect to the work that you do?  How does that  16 assist you in your analysis of the work you do?  17 A    Well, that's a normal part of the work.  You have --  18 if you're -- if I'm writing a report on a particular  19 berry species and describing how it's used, that's  20 the type of information I'm hired to prepare.  Or  21 I'm afraid it's just -- that's the purpose of the  22 work.  23 Q    You mention in 1982 and 1983 that you were a  24 regional resource research officer for the B.C.  25 Ministry of Environment.  And there you identify at  26 the bottom of the first page of your curriculum  27 vitae that you did resource analysis for regional  28 environmental planning including:  analysis,  29 mapping, and summary of biophyscial, wildlife,  30 water, air and water quality data.  In the context  31 of that work, did you also too investigate the user  32 groups for the various resources that you were  33 investigating?  34 A    Definitely.  That was a major part of the analysis  35 looking how people were using these resources in  36 terms of water licenses, hunters, trappers, those  37 kinds of things.  That was the main part of that  38 analysis that I did with the Ministry of  3 9 Environment.  40 Q    At the top of page 2 you identified that you had  41 been a research officer for the B.C. Ministry of  42 Forests in Smithers.  There you were involved with  43 ecological classification of the Prince Rupert  44 forest region.  And then you included the vegetation  45 and soil sampling, analysing and classifying  46 ecosystem data, developing silvicultural  47 recommendations for forest ecosystems, mapping 9563  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 biogeoclimatic units, preparing ecosystem guides and  2 other research reports.  Again within the context of  3 that work, and that mapping work, did you also  4 investigate the user groups of particular resources?  5 A    Not to the same extent as in subsequent work.  We  6 were primarily interested in documenting the natural  7 resources.  However, when we wrote the reports in  8 the introductory sections we always talked little  9 about human land use of the area and general  10 patterns of settlement and things like agriculture  11 and so on.  We talked about where those land  12 industry practices were being carried out more in  13 the introductory section.  It wasn't the detailed  14 part of the study, just sort of as an overview.  15 Q    Under "Current Projects" you identify that you are  16 an instructor in Silviculture Institute of British  17 Columbia, an organization providing continuing  18 education for professional silviculturists.  In the  19 course of your teaching, is there reference paid by  20 you to different land use models which silviculture  21 practices have to address?  22 A    Land use models, I wouldn't say so.  We talk about  23 particular shrubs species and their shrub or  24 herbaceous species and how they are related to  25 silviculture work.  What forestors need to know  26 about them and how they use them.  I'm not sure I  27 understood the question properly.  28 Q    And is there attention paid to use made by others  29 besides the forestors of the land and resources?  30 A    Not to a great extent.  We talk a little bit of the  31 wildlife use of the species.  But we tend to  32 concentrate on the silviculture, the use related  33 directly to silviculturists.  34 Q    Under "Past Projects" at page 3 you identify the  35 "Preparation of Reports and Field Guides."  And  36 there you identify projects include a literature  37 review and a field guide on the ecology and  38 management of major shrub and herbaceous species in  39 British Columbia?  40 A    Yes.  41 Q    Did that project and report include reference to  42 land use practices of user groups of various  43 resources?  44 A    The focus wasn't so much on the user group as on the  45 species.  The focus was on the species.  And in the  46 report we looked up all the literature on the  47 species that we could find and any discussion of how 9564  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 it was -- responded to disturbance was discussed.  2 And different kinds of practices were discussed and  3 how they would affect the species, but the focus  4 again was on the plant species.  And if there was  5 literature on use of the species by different  6 groups, we reviewed it, but we didn't go into it in  7 any great detail.  8 Q    Could you look at the publications which you've  9 identified on page 4 of your -- of your vitae and  10 identify whether any of those publications within  11 them concentrated on identifying the user group or  12 focused on the importance of the user group in the  13 mapping or identification that you were dealing with  14 there?  15 A    The user group.  Now, in almost all my publications  16 the user group is generally the forestor or  17 silviculturists, forest ecologists.  I am having a  18 little trouble with this user -- I wish I had a  19 better feeling for what -- the person who would use  20 the publication or --  21 Q    No, the person that uses the resources?  22 A    The person that use the resources.  The focus is  23 almost always forestry and forestry uses.  There  24 isn't generally a lot of focus on things like  25 recreational use or those kind of other uses.  They  26 are sometimes mentioned in passing.  None of them.  27 But they are mostly dealing with resources that are  28 widely used in the forestry context.  29 Q    Okay.  And in the course of preparing your report  30 for the Tribal Council, did you yourself do a review  31 of the literature and to identify the use made by  32 the Indian people of the berries?  33 A    I did.  34 Q    And is the literature exstensive in this area?  35 A    Not at all.  If you're looking at those species in  36 the particular study area that I was interested in,  37 there is very little literature available that.  38 There hasn't been a lot written on their use, but  39 it's quite readily available.  40 Q    And when you say "it's readily available", what do  41 you mean?  42 A    Well, provincial museum handbooks, those kinds of  43 things.  I have a lot of them in my office and you  44 can get them anywhere.  It is not really obscure  45 stuff.  46 Q    And apart from the references paid by you to the  47 literature for this area, do you have any other 9565  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 source of general knowledge regarding the use made  2 by berries in the area?  3 A    General knowledge?  Just from being there and living  4 there and knowing people and knowing how they use  5 the resources, and reading the literature and  6 talking to people about the subject, is that the  7 sort of thing you mean?  8 Q    Yes.  9 A    There isn't a lot out there to find out about.  10 People aren't conducting a lot of research.  If  11 there was any going on, I think I would be  12 acquainted with it.  I feel that I have a general --  13 good general knowledge of what the use is.  14 Q    To your knowledge, are there any written sources  15 regarding this area that you didn't consult in  16 preparing your report?  17 A    There may have been some relatively obscure things.  18 I tried to find everything.  There is not, to my --  19 to my knowledge if it seemed to be relevant to this  20 particular report, I looked for it.  21 Q    Okay.  In the maps which you prepared, you indicated  22 on them, and also in your report, that soapberry is  23 well known as the source of Indian ice cream.  Do  24 you know where this information was obtained?  25 A    Okay.  I referenced several publications.  General  26 knowledge, I'm aware of it.  I made the stuff  27 myself.  I don't feel at all concerned about making  28 a statement like that because it's general  29 knowledge.  But I do reference several publications  30 in my report, most of them written by Nancy Turner  31 for the Botanical Garden, for the provincial museum.  32 I think possibly something she published in her own  33 name where she describes the use of Indian ice  34 cream -- of soopallie to make Indian ice cream.  35 Q    And you say that this confection was prized by  36 almost all B.C. Indians and widespread trading took  37 place and still does to some degree between the  38 interior groups who had access to the berries and  39 coastal groups who did not.  Where did that  4 0 information come from?  41 A    That is cited straight out of the literature.  Can I  42 look it up?  It's one of the papers written by Nancy  43 Turner.  I think it is called the Saskatoon --  44 Turner, 1981, Indian use of Sheperdia canadensis,  45 soapberry, in Western North America.  I do have a  46 citation there if there is more than one.  It gets  47 mentioned in all of the publications that describe 9566  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 Shepherdia canadensis.  2 Q    It's the Italian name?  3 A    Scientific name for soapberry or soopallie.  4 THE COURT:  I'm sure ma'am reporter needs it.  5 THE WITNESS:  Shepherdia, S-H-E-P-H-E-R-D-I-A, canadensis, small  6 C-A-N-A-D-E-N-S-I-S.  Soop allie, S-0-O-P-A-L-L-I-E.  7 There is various spellings.  8 THE COURT:  What is Davidsonia?  9 THE WITNESS:  Davidsonia is a journal put out by the U.B.C.  10 Botanical Garden and they do research on B.C. Native  11 Plants.  12 THE COURT:  Thank you.  13 MS. MANDELL:  14 Q    And you mentioned that in the same paragraph that  15 most modern Haida apparently get their soapberries  16 from the Hazelton area.  Soapberries were an  17 important component of trade between Niska and  18 Athapaskan peoples.  Where was this information  19 obtained?  20 A    Probably again from that same publication Turner  21 1981.  I'm not 100 per cent certain.  There were  22 several that covered the same ground.  But I would  23 never make a statement like that without directly  24 referencing it.  That comes straight out of what I  25 had read in that publication.  26 THE COURT:  Where are you reading from, Ms. Mandell?  27 MS. MANDELL:  All these quotations, my lord, are found as part  28 of the text of the map.  That was part of map 3.  It  29 is the area that my friend has objections to, and it  30 is found under "Shrub And Berry Characteristics".  31 THE COURT:  There is no map one, is there, or has it been marked  32 separately?  33 MS. MANDELL:  It hasn't been marked.  34 THE REGISTRAR:  There is none in my book.  35 THE COURT:  Map 3?  36 MS. MANDELL:  Yes.  37 THE COURT:  Thank you.  38 MS. MANDELL:  This is under "Shrub And Berry Characteristics".  39 THE COURT:  Oh, yes, thank you.  Did you write this, Ms.  40 Haeussler?  41 THE WITNESS:  I wrote the report and it was put on there by the  42 cartographer.  43 THE COURT:  This heading on the map is from your report?  44 THE WITNESS:  It is taken from the report and the citations are  45 removed and it is condensed a little.  4 6 THE COURT:  Thank you.  47 MS. MANDELL:  I'm going to show you map 4.  My lord, I am now 9567  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MS. MANDELL  Q  A  A  MS. MANDELL  THE COURT:  MS. MANDELL  A  Q  A  turning to map 4.  Yes, thank you.  Under "Shrub And Berry Characteristics" you have  identified that saskatoon is a very important food  plant for most Indian groups in Northwestern British  Columbia.  The species is readily available to  interior groups and, in fact, in some northern areas  saskatoon is the only fruit available in any  quantity.  Coastal groups value the berry, but had  to obtain it mainly by trade from the interior.  Can  you identify where it is that that information was  obtained by you?  Okay.  That is in my report.  In the report I have a  citation, and it is another paper by Turner on  the -- it might be anonymous.  I think it's  anonymous, but I think it's written by her.  Let me  find it.  U.B.C. Botanical Gardens 1976  (Amelanchier alnifolia).  Do you want that spelled?  A-M-E-L-A-N-C-H-I-E-R, and then the second name  small A-L-N-I-F-O-L-I-A.  And then there is the  authority, do you want that too?  That's a paper on  that and these sentences come directly from that  paper.  And is that a source and is that an author who you  would normally consult in looking for berry  descriptions of this sort?  Oh, yeah.  They are one of the few sources of  information on B.C. native species for British  Columbia.  If I could ask you to turn to map 5.  Are you going to mark map 4?  Pardon?  No, I'm not yet tendering these as  exhibits.  Under "Shrub And Berry Characteristics" in map 5 you  say the berries of highbush-cranberry were eaten by  coastal and interior Indian groups wherever they  were available.  And then later they were stored --  Stored in water or grease rather than being dried.  And reportedly kept quite well.  That is the same thing as the other ones.  It is in  a report, and there is a citation following those  statements in my report.  The actual source of that  report on highbush-cranberry would be this reference  U.B.C. Botanical Garden, the genus Viburnum, and  possibly also one of these Turner reports on the  coastal and interior.  The citation is in the real 956?  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 report.  I can't remember exactly which one, but it  2 would be either this --  3 Q    Certainly the Botanical Garden reference?  4 A   And these ones, yes, there is a description of that.  5 Q    For the record, my lord, it is on page 51 of her  6 report, and that is found at tab 2 of your exhibit.  7 On map 6, and here we are talking about the dwarf  8 blueberry.  You say nonetheless this species was  9 eagerly sought out by virtually all interior Indian  10 peoples.  The species was a common trading item in  11 early days?  12 A    Okay.  Those are citations from Turner.  I think the  13 Food Plants of British Columbia Indians, part 2,  14 Interior Peoples.  And another publication that I  15 referenced which was People of Ksan, 1980,  16 Gathering What The Great Nature Provided, Food  17 Traditions of the Gitksan, that one.  So that is the  18 source of that item, and it is cited in the original  19 report which particular quotes come from where.  And  20 it is condensed a little in that legend.  21 Q    And that's found at page 43 of your report at tab 2.  22 The next one is map 7 regarding black huckleberries.  23 And there you say under "Shrub And Berry  24 Characteristics" black huckleberry is the favorite  25 berry for both Indian and non-Indian people wherever  26 it is available.  The Gitksan name for black  27 huckleberry means the real, the true berry, while  28 the Bella Coola name means simply berry indicating  29 its distinctive status relating to other kinds of  30 fruit.  The large, shiny blackberries of the species  31 are described as sweet-tasting and apparently retain  32 their fine flavour well after drying.  33 A    Okay.  That again is in my report.  The citations  34 are shown.  I believe the citations are People of  35 Ksan 1980 and Turner 1978.  36 Q    '75.  37 A    1975.  I've got the wrong date.  38 Q    Yes.  39 A    Those are paraphrases of what are direct quotes of  40 what they say.  41 Q    And that's found at page 45 in the report at tab 2.  42 Map 8 dealing with oval-leaved blueberries, you say  43 here, within the Gitksas-Wet'suwet'en territory  44 convergence -- I'm sorry, conversion of climax  45 forest mixed deciduous stands may have caused some  46 decline in oval-leaved blueberry abundance.  47 Oval-leaved blueberries are commonly eaten by native 9569  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  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  people on the coast and in moister areas of the  interior.  The berries are highly regarded by  coastal people.  A    Okay.  The second portion of that quote would have  been cited in the text probably Turner 1975, perhaps  People of Ksan 1980.  Q    That's found at page 47 of your report.  A    I don't think the first part.  I think the first  part would have been part of my direct opinion.  I  don't know if that would have had a direct citation.  I can't say that.  Yeah, that is an opinion of mine.  Q    And on what basis did you form that opinion?  A    The conversion of the climax forest?  Well, this is  based on my understanding of how the species  responds to succession and disturbance.  MS. MANDELL:  And we will be going into that in more detail in  the course of your evidence.  THE COURT:  What is a claimax forest?  THE WITNESS:  A climax forest is a forest that has grown without  disturbance for a long period of time.  And what you  get is a pattern of change in the species  composition of the forest and the structure of the  forest up to a certain point when it stays more or  less the same.  You could substitute the term old  growth for climax if that is easier to understand.  It's kind of a stable old ecosystem where there is  no more progression or change in species composition  and structure until there is some form of  disturbance.  Thank you.  The black lines on all these maps which outline the  Gitksan and Wet'suwet'en territories, those  boundaries were provided to you and were an  assumption that you made in preparing your report;  is that correct?  That's right.  In map 9 speaking about the Alaska blueberry, you  describe here -- first of all, you say within the  Gitksan and Wet'suwet'en territories.  Once again,  the territorial boundaries are your assumption; is  that correct?  A    That's right.  Q    And you say that the Nuxalk who are the Bella Coola  people refer to the species as watery blueberry?  A    Now, that's not one sentence.  I would never have  written a sentence like that.  That's two sentences.  THE COURT:  MS. MANDELL  Q  A  Q 9570  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1  Q  2  A  3  4  Q  5  A  6  7  8  9  10  11  Q  12  13  A  14  Q  15  16  17  18  19  20  21  22  A  23  24  25  Q  26  A  27  28  29  30  31  32  33  34  35  MS. MANDELL  36  37  38  39  40  41  42  43  44  45  46  THE COURT:  47  The Nuxalk refer to the species as watery blueberry?  That would be a quotation from Turner, probably  1975.  And this is found at page 41 of your report.  Okay.  Sure, there is another paper where they  describe the food practices of the Nuxalk which is  Kuhnlein, that's referred to in my literature.  That's a direct citation from this paper  Traditional and Contemporary Nuxalk Foods, and they  talk about the species and where they grow.  And you have cited that at page 90 of your report,  the first reference from the bottom of the page?  That's right.  And at map 10 dealing with the red huckleberry, you  mention that -- again you mention within the Gitksan  and Wet'suwet'en territories.  It is the same  assumption that you've made all along for the rest  of these maps.  Red huckleberries are very popular  with all coastal Indian groups being very abundant  in forest openings surrounding most coastal  villages.  At least part of that would be a reference -- a  citation.  Am I allowed to look at my report to see  what I said?  Yes.  Yeah, I have cited Turner 1975 to state that they  were very popular with coastal Indian groups.  And  the statement that they are very abundant in most  coastal villages is a statement of my own or it may  also have appeared in Turner, but based on my own  experience.  I have been to a lot of these places on  the coast, and I can vouch for that statement,  although it may also have come directly from the  paper.  :  Then with respect to the qualifications, my lord,  our questions are finished.  It will be our  submission that Ms. Haeussler is qualified to speak  about, amongst other things, land use practices of  the user groups who do make use of the various  resources that she studies and that it is part of  her area of study to determine who those user groups  are.  And in this case she has canvassed the  literature and has made references to those groups  that have used the berries and for what purposes,  and that she has done that as part of her expertise.  Well, are you limiting that to the time period  within the actual experience of the witness, or are 9571  S. Haeussler (For Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  MS.  MANDELL  4  5  6  7  THE  COURT:  8  MR.  WILLMS:  9  THE  COURT:  10  11  CROSS-EXAMi:  12  Q  13  A  14  Q  15  16  A  17  Q  18  19  A  20  21  Q  22  23  A  24  Q  25  26  A  27  THE  COURT:  28  MR.  WILLMS:  29  Q  30  31  A  32  Q  33  34  35  A  36  Q  37  38  A  39  40  41  MR.  WILLMS:  42  MS.  MANDELL  43  44  THE  WITNESS  45  MR.  WILLMS:  46  Q  47  you going to be asking her to express opinions about  historical use?  :  Well, she -- she'll not be expressing opinions  beyond that which have already been identified by  her in these map sequences that have already been  put to her.  Thank you.  Mr. Willms.  My lord, I have a few questions.  Yes, all right.  NATION BY MR. WILLMS:  Do you have a Ph.D.?  No, I don't.  You have an MS in forest ecology from Oregon State  University?  That's right.  What courses did you take in the field of  anthropology at Oregon State University?  I didn't take any courses in the field of  anthropology.  You have an undergraduate degree, a bachelor of  science and forest biology from U.B.C?  I do.  What courses in anthropology did you take while at  U.B.C.  I took no courses in anthropology.  I didn't either.  Have you got any special knowledge in the field of  anthropology whatsoever?  No, I don't.  Do you have any habitual familiarity with the  anthropology of any of the inhabitants of  northwestern British Columbia?  What do you mean by "habitual familiarity"?  Is it something that is a part of your daily life,  your daily scientific practice?  No, not in the way you mention it.  Am I allowed to  express an opinion or I will just answer your  question.  Thank you.  :  Well, she should be allowed to finish her  question.  :  No, that's fine.  Have you done any studies on drying berries native  to northwestern British Columbia? 9572  S. Haeussler (For Plaintiffs)  Cross-exam by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  THE  THE  THE  MR.  THE  MR.  A  WILLMS:  COURT:  WITNESS  COURT:  WITNESS  WILLMS:  REGISTRAR  WILLMS:  Q  No, I haven't.  Now, in your --  Have you dried any berries?  Have I dried berries?  Yes.  Not as a part of a scientific study, no.  In your curriculum vitae which is exhibit  800.  A  Q  A  A  Q  A  Q  A  Q  A  MR. WILLMS:  THE COURT:  800, there is no listing of any publication  concerning ecology and berry chemistry of any food  plants.  Is this your first report in this area?  It is.  You've discussed investigating user groups of  particular species studied.  On which projects that  you've worked on have you investigated the use made  of a species over a hundred years ago?  By reviewing  the literature?  This was the only time that I looked into the use  of -- and I just looked in those publications that  I've cited in my report.  Did you look up those citations yourself or did Mr.  Overstall give those to you?  No, I located those myself.  Now, my friend has taken you through in each map the  source that you've referred to to make the statement  on each map respecting native use or native trade in  a particular berry?  Yeah.  And what you've done in preparing these maps and  preparing your report is assumed that the work that  Turner has done or what is set out in the People of  Ksan is true?  That's right.  You don't have any personal knowledge from your  experience whether or not what is set out in the  People of Ksan or in Turner is true?  In regards to native use of their species, no, I  don't have any personal knowledge.  The other types  of information in there about botanical  characteristics of the species I would have personal  knowledge on that.  I don't have any further questions on  qualifications.  And unless my friend has got a  few --  Ms . Koenigsberg? 9573  S. Haeussler (For Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 CROSS-EXAMINATION BY MS. KOENIGSBERG:  2 Q    Just very briefly, you were asked for attribution of  3 certain statements that you made with regard to the  4 maps?  5 A    That's right.  6 Q    And on the highbush-cranberry, I believe you  7 indicated that you believed that you referred to  8 both Turner and the U.B.C. Botanical Garden for some  9 of those references?  10 A    That's right.  I'm just -- I'm assuming.  I don't  11 know from --  12 Q    I just would ask you to clarify that the last  13 sentence on -- in your report on page 51 you say:  14  15 "The berries were stored in water or grease  16 rather than being dried and reportedly kept quite  17 well.  They are unsuitable for drying presumably  18 because of their extreme juiciness and the large  19 seed."  20  21 But there is no reference there.  Is the reference  22 to that above?  23 A    Okay.  The business of the water or grease rather  24 than being dried and reportedly kept quite well,  25 that would be Turner '75, '78, U.B.C. Botanical  26 Garden 1977.  There may be some reference for them  27 being unsuitable to drying -- I think there was some  28 discussion that they were unsuitable for drying and  29 presumably because of their extreme juiciness and  30 the large seed is my comment.  It relates to some  31 other -- where I researched and some other  32 information that I provided.  McBean where they  33 describe the fact that very juicy berries or berries  34 with large seeds are unsuitable for drying.  I  35 didn't put a reference to McBean there.  36 Q    By your use of the word "presumably", does that mean  37 you have no personal knowledge?  38 A    That's my understanding from having read of it.  I  39 have personal knowledge of the fruit.  I know it is  40 very juicy and that it has a large seed, if that's  41 what you mean.  42 Q    Yes, but the drying properties?  43 A    The drying properties, right.  I don't know about  44 the drying properties other than what I've read.  45 MS. KOENIGSBERG:  Thank you.  I don't have any other questions.  46 THE COURT:  All right.  Well, it seems to me that the witness is  47 qualified to give evidence regarding at least the 9574  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  MS.  THE  MR.  THE  MR.  WILLMS  KOENI  COURT:  WILLMS  COURT:  WILLMS  THE  MS.  THE  MS.  present distribution of vegetation and particularily  the species mentioned and how they behave and that  sort of thing.  Is there any difficulty in that  regard, Mr. Willms?  No difficulty in that regard.  KOENIGSBERG:  No, my lord, not here.  Can counsel tell me where if at all there is an  issue here?  The issue is that I asked my friend to state all of  those extracts that she put to the witness as  assumptions and not part of the opinion.  Yes.  I am asking -- I understand that she is seeking to  have them set out as opinions of the witness because  it is part of her expertise, and I think it is not.  It is clear that the statements that the witness  made about aboriginal use of a particular berry or  native trade in the particular berry is something  that she read, but she doesn't have any expertise in  that area.  It is just something that she read.  And  as long as it is stated as an assumption, an assumed  fact rather than something that this witness is  purporting to give us her opinion, then I have no  difficulty with marking -- no objection to marking  the maps.  Are you seeking to go as far as your friend has just  described, Ms. Mandell?  I don't say that this expert is being tendered as  an expert on how Indian people use berries.  COURT:  MANDELL  COURT:  No.  MANDELL:  But I do say that as part of her area of expertise  it's for her to investigate that question and to  report on what others who are experts will say.  She  uses that as part of the matrix of analysis for the  work that she gives.  And I certainly don't think  that it is -- so having saying said that, I do say  that this should still stay as part of the maps.  But I don't take it as far as my friend would say I  do and say that it is part of her area of expertise  that she is seeking to give an opinion on.  I don't think that every reference that an  expert would normally make outside of their personal  experience but which is part of their area of study  should be excised from the opinion on the basis that  it was read by them and was written by somebody  else.  I think that's going a bit far.  THE COURT:  Well, a pretzel doesn't fit into a round or a square 9575  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MS.  THE  MANDELL  COURT:  hole, does it?  No, Your Honour.  I'm satisfied that the witness knows a lot more  about berries and the properties than I do.  And for  that reason, her evidence about the geography of  berries is clearly admissible.  I do not think that  it is admissible to prove what some other expert  thinks by reading a report and repeating it in the  witness box.  But to the extent that the reading  that the witness has done and the general knowledge  that equips her better to observe and report, then  reference being made to those readings.  But it  seems to me only as we say in other branches of  evidence to show the state of her mind at the time  of her own observations and that sort of thing.  I  don't think there is any real problem here.  The  witness has very fairly and frankly stated what she  has done and what she has learned and where she  learned it and from whom she learned it.  I think  that I will have to make a qualitative assessment of  what weight I can attach to what parts of her  evidence and what parts I might have to reject  because it is really just a repetition that someone  else has said.  But certainly the way that I would  like to proceed is to carry on and deal with  individual problems as they arise.  The statements  of the maps have been properly qualified, and I  don't see any reason why they shouldn't be marked  subject to those qualifications.  May we proceed  that way?  That's fine.  Thank you.  My lord, if we can,  then, I would like to mark maps 3 to 10 as the  next -- as the next exhibits.  Well, they've been marked 358 and the map number up  to now, have they not?  REGISTRAR:  Not all of them, my lord.  MANDELL:  I believe that's just for identification.  COURT:  Well, the Caribou map was 358-11.  REGISTRAR:  11 to 19 have been marked.  MANDELL:  Perhaps we can carry on with those numbers.  REGISTRAR:  They are all 358.  COURT:  Well, in the 358 series we will -- we can mark --  REGISTRAR:  Numbers 358-3, 7, 8 and 10 were marked for  identification November 17, 1988.  COURT:  Yes.  MANDELL:  I had not understood that map 2 was also being  admitted, so if we could start with map 2 then in  MS. MANDELL:  THE COURT  THE  MS.  THE  THE  MS.  THE  THE  THE  THE  MS. 9576  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  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  that series.  THE COURT:  Map 2?  MS. MANDELL:  2 to 10.  THE COURT:  Are you seeking to mark map 2?  MR. WILLMS:  I think the map is okay, but there is a table that  I object to.  MS. MANDELL:  Let's leave map 2 out of it.  Let's mark maps 3 to  10.  THE COURT:  All right.  Maps 3 to 10 will be 358 followed by the  suffix map number, 358-3, et cetera.  (EXHIBIT 358-3:  (EXHIBIT 358-4:  (EXHIBIT 358-5:  (EXHIBIT 358-6:  (EXHIBIT 358-7:  (EXHIBIT 358-8:  (EXHIBIT 358-9:  (EXHIBIT 358-10:  Map 3, Soapberry)  Map 4, Saskatoon Berry)  Map 5, Highbush-Cranberry)  Map 6, Dwarf Blueberry)  Map 7, Black Huckleberry)  Map 8, Oval-Leaf Blueberry)  Map 9, Alaska Blueberry)  Map 10, Red Huckleberry)  MS. MANDELL: I wonder whether or not the map, map 2 could be  put to the witness. My lord, do you have this as  part of the back?  THE COURT:  No, I don't.  MR. MANDELL:  Mr. Grant will —  THE COURT:  Is this part of map 2?  MS. KOENIGSBERG:  It is on the back of map 1.  THE COURT:  Well, I don't have a map 1.  You go ahead, I can  come down there.  EXAMINATION IN CHIEF BY MS. MANDELL CONTINUED:  Q    All right.  Now, I would like to first begin by  turning you to page 2 of your -- of the material in  your report.  You say under the first sentence of  the chapter that anyone who has travelled in  northwestern British Columbia is aware that this is  a region of great ecological diversity.  What do you  mean by "ecological diversity"?  A    What I mean is there is a wide range of  environmental and biological conditions.  Within the 9577  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 study area there is a wide range of climates, the  2 physiology is diverse and rugged.  You have such  3 things as coastal lowlands, high mountains, interior  4 plateaus, lakes, rivers.  Just a whole lot of  5 variety in terms of the environment and the plant  6 and animal life.  7 Q    And you say that ecologists and resource managers  8 faced with the great ecological diversity of a  9 region such as British Columbia have developed  10 systems of ecological land classification to help  11 them organize their knowledge about the environment.  12 If I could first ask you, what is systems of  13 ecological land classification?  14 A   A classification system is a method whereby a lot of  15 information is brought together and organized into  16 groups so that it's easier to make generalizations  17 about those groups.  An ecological land  18 classification takes the whole land area and  19 subdivides it into groups that have similar  20 environments and therefore similar capabilities to  21 support life or are suitable for similar types of  22 land practices and so on.  23 Q    And you say in the report that ecological land  24 classifications have in common that they sort the  25 landscape into units based on environmental factors  26 such as climate, topography, geology, soils, plant  27 and animal communities, and attempt to show the  28 relationship that exists among these factors.  Do  29 all ecological land classification systems sort the  30 environment or the landscape into units which take  31 into account those factors?  32 A   All of them would consider some of those factors.  33 Not all of them use all of them.  For example, some  34 might not consider animals and some might not  35 consider soils explicitly.  But to be ecological  36 they would have to take into account climate,  37 physiography or land form to some extent and  38 vegetation, those sorts of things.  39 Q    Is this ecological land classification system a  40 model for analysis commonly used in your course of  41 study?  42 A    Oh, yes, it is very widely used throughout the  43 world, and maybe particularily in North America and  44 all throughout Canada.  45 Q    And precisely what is it used for?  46 A    They are used as a basis for gathering scientific  47 knowledge on the characteristics of ecosystems, for 957?  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 describing vegetation, for talking about climate and  2 soils, as a basis for more detailed studies.  They  3 are also used as a basis for land management  4 practices to decide how best to use the land, where  5 problems might arise and so on, making decisions  6 about how to -- how to make best use of the land.  7 Q    Are there any detractors of this method of analysis?  8 A    I imagine there are some, but very few.  The  9 detractors are mainly in the type of classification  10 system used.  There is a wide variety of approaches  11 that have been taken, a lot of different systems  12 developed by different people.  Some people favour  13 certain methodology or a certain system, others  14 favour another approach.  I doubt that there are  15 very many people heavily involved in land use  16 management or ecology that don't feel that some  17 system of ecological land classification is useful.  18 Q    Your map 2 is entitled the "Biogeoclimatic Land  19 Classification".  Is this the same as an ecological  20 land classification?  21 A    That's a particular system of classification.  Like  22 I said, there is a whole variety of systems that  23 have been developed.  Biogeoclimatic, that's a name  24 given to a particular type of system that is used  25 here in B.C. and also in Canada.  2 6 Q    Now, did you prepare map 2?  27 A    I did prepare this map, yes, for the Tribal Council.  28 Q    And in preparing this map, did you -- where did you  29 draw upon for your data base?  30 A    Most of -- most of the area that I mapped here, this  31 study area was -- has already been mapped by the --  32 primarily by the Ministry of Forests.  There were a  33 lot of draft maps available in different forest  34 regions.  There were a few areas where the maps were  35 in a really rough state or were not quite developed.  36 In those areas, I relied on personal communications  37 with the people responsible for developing the maps,  38 primarily within the Ministry of Forests.  39 Q    All right.  Is there any information that is found  40 on map 2 which isn't found somewhere on existing  41 maps or data provided by the provincial government?  42 A    None that I can -- this black line outlining, that's  43 about the only thing that -- and, well, the material  44 on the legend is my own.  But these map units, the  45 colours, the different classification units, that  46 has entirely been developed by the B.C. Provincial  47 Government, and I just transferred it onto this 9579  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1  2  Q  3  4  5  6  A  7  8  9  10  11  12  13  14  15  Q  16  17  18  A  19  20  21  Q  22  A  23  Q  24  A  25  26  27  28  29  30  31  32  33  34  35  Q  36  37  38  39  A  40  41  42  43  44  MR. MANDELL  45  46  47  THE COURT:  scale and this particular set of boundaries.  And did you have any role yourself in collecting any  of the data base which was then put on the  provincial maps and then later reflected on this  map?  Yes, I was responsible for -- I was involved in a  lot of the field work within what's known as the  Prince Rupert forest region which covers a vast  majority of this study region.  I did field work  when I was working with the provincial government.  And later on as a consultant, did field work within  this central area here.  Some of the outer edges  were areas covered by people working in other forest  regions.  And could you explain how the data is stored or is  accessible as it's reflected on this map? How was  the data presently stored?  Okay.  Now, when you speak of "data", do you mean  maps or raw data that we used to develop maps which  the government may have.  I am speaking about the data that you relied on?  That I relied on?  Yes.  Okay.  All of the information, with the exception of  a few things that might have been personal  communication, would be available through the  Ministry of Forests at their various regional  offices.  They have various copies of draft maps.  They have the actual data base, the plot records.  They are also on computer, but they are also in  paper form stored there.  There is also publications  that they've written which summarizes this  information and their analysis of it.  Computer  printouts that summarize the information and so on.  And so if I could ask you whether this is accurate,  but what is new about map 2 is the study area is one  which hasn't been itself identified and mapped this  way, and the scale is also new?  That's right.  The scale that I worked off was  different.  And because this doesn't reflect any  administrative boundaries used by the provincial  government, I had to piece together some of the  portions of the map.  :  All right.  Now, if I could ask you to turn to the  left-hand corner of the graphs which accompany map 2  found at the back of map 1.  Excuse me, Ms. Mandell, I think we will take the 9580  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE WITNESS  THE COURT:  THE  THE  THE  THE  THE  THE  THE  WITNESS  COURT:  WITNESS  COURT:  WITNESS  COURT:  REGISTRAR:  morning adjournment.  But I want to finish my note,  please.  Are you saying that the government  department, was it forestry?  :  Yeah, there is some involvement by the Ministry of  Environment, but it is primarily the Ministry of  Forests.  That their people haven't done this sort of thing  for this area before?  :  They have, yes.  I said I used their maps.  I see.  :  But different scales and the administrative  boundaries are different.  So you transferred --  :  I basically transferred information from the  existing maps.  Yes.  We will take the morning adjournment, please.  Order in court.  Court will recess,  (PROCEEDINGS ADJOURNED AT 11:15)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein to the  best of my skill and ability.  LISA FRANKO, OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD. 9581  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Ms. Mandell.  4 MS. MANDELL:  5 Q   Thank you.  Prior to the break I have referred you to  6 the top left-hand corner of the chart page which  7 accompanied Map 2, and there you had placed a map  8 which showed three regional classifications of the  9 study area, the coast, the interior and the north.  10 I wonder first whether or not -- whether you could  11 assist us in having described what is an ecoregion?  12 A  An ecoregion is a -- this is a classification I  13 developed myself and that's a label that I gave to  14 it.  It refers to a very broad area with very  15 broadly similar climate, similar types of  16 vegetation.  The formation of the vegetation is  17 similar on a very broad scale.  18 THE COURT:  Which one are you talking about, please?  That one.  19 All right.  Thank you.  20 THE WITNESS:  This little map at the top.  21 MS. MANDELL:  22 Q   And the definitions which you provided of coast,  23 interior and north, are those also your definitions?  24 A   They are.  25 Q   And have similar classification units been identified  26 by other researchers who have developed broad  27 schemes for major climatic regions?  28 A   Oh, yeah.  All three of those, you can see the similar  29 units with slightly different names.  Boundaries may  30 be a little different depending on their  31 perspective, or vegetation types of North America  32 when you look at the vegetation of the world or  33 ecoregions or biorythms of the world and so on.  You  34 can find them in a wide variety of textbooks and  35 publications.  36 Q   And below you have a table which you've marked Table  37 1, which indicates the distinguishing  38 characteristics of the three ecoregions that you've  39 just described?  40 A   That's right.  41 Q   Did you prepare this table?  42 A   I did.  43 Q   If you could go to the table, I'd like you to indicate  44 whether or not -- under the column "Characteristic"  45 you'll see third up from the bottom there is there  46 mentioned "Indigenous Peoples".  Is that an area  47 which would normally be referred to by you or is the 9582  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 facts mentioned in that column assumptions made by  2 you for the preparation of this table?  3 A   That's information that was given to me.  I guess that  4 you'd call that an assumption.  No.  That's not the  5 sort of information that I would normally put  6 together in a table like this, unlike the other  7 categories.  8 Q   And for the other categories are there any other items  9 in the list which although -- first of all, which  10 you're not very familiar with in detail?  11 A  Well, I -- I feel comfortable with all of the  12 information at this level, but when it comes to  13 wildlife or fisheries, that's not something that I  14 consider myself an expert in, but at this very  15 general level -- I do that kind of work frequently.  16 I get -- particularly in my work with the Ministry  17 of Environment, there would be a lot more detail  18 than that kind of information on wildlife and  19 fisheries.  20 Q   And applying this analysis of ecoregion to the claims  21 area, what is significant about the claims area?  22 A  Well, the feature that extends out about the claims  23 area, which is shown as hatched on that map, is that  24 it's located at the very location where those three  25 broad ecoregions converge, so it's the only place in  26 North America or even the world where those three  27 different very broad vegetation types or ecological  28 units come together.  2 9 Q   All right.  And following from the fact that the  30 territories straddle the location where three  31 ecosystems converge, are there transition zones  32 within the claims territory in which the ecological  33 characteristics are not identical to those that  34 you've described under either coast, interior or  35 north?  36 A  Well, they wouldn't be identical.  What you get in a  37 transition area is you get a blending of the  38 characteristics of all those areas.  Some of the  39 features would be all -- of all three types might be  40 found in there.  And what you also get in transition  41 areas is sometimes you get characteristics that are  42 unlike those found in any of the three in  43 particular.  44 Q   All right.  You then go on in the chart to describe  45 biogeoclimatic classification of ecosystems.  Could  46 you tell us what biogeoclimatic ecosystem  47 classification can tell us that regional 9583  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 classification, which you've already described,  2 cannot?  3 A   Okay.  The basic premise is the same.  What you're  4 doing is you're dividing the landscape into  5 ecological units.  And in the case of  6 biogeoclimatic, you consider biology.  That's plant,  7 animal life.  Geo referring to soils and land forms  8 and so on and climate.  But the biogeoclimatic  9 classification is a far more detailed classification  10 system.  Within any -- within those three broad  11 ecoregions you can get far more detailed.  You can  12 look at variation in elevation.  From the valley  13 floor to the mountain top there's quite a range.  14 You can look at the very detailed structure of plant  15 communities.  The generalizations that you make for  16 those ecoregions are far too broad to get down to  17 day-to-day land management activities.  You need  18 more detailed information, and that's what the  19 biogeoclimatic system provides.  It's a multi-level  20 hierarchial system, and it can go to any level of  21 detail that you want.  22 Q   All right.  And is this ecological land classification  23 system wildly used in British Columbia?  24 A   It is.  It's the single most widely used ecosystem  25 classification used in the province.  26 Q   And was it developed by Krajina and his students at  27 U.B.C?  28 A   Yeah.  In the late fifties and sixties it was  29 developed at U.B.C.  30 Q   And did you make reference to Krajina's work in the  31 preparation of your work?  32 A   I did, and I cited them in my report, their original  33 publications.  34 Q   And has the work also been used and added to by Pojar?  35 A   That's right.  Well, the Ministry of Forests had an  36 extensive classification programme where they took  37 the work of Krajina and they refined it and they  38 went to all sorts of areas in the province and they  39 did far more sampling, and they've written a lot of  40 publications on this topic.  They're summarized  41 mainly by work done by Pojar in 1983 and also Pojar  42 and several other authors in 1987.  43 Q   And did you refer to Pojar's work in the preparation  44 of your report?  45 A   I did.  The earlier one.  46 Q   All right.  And Pojar works still for the Province of  47 British Columbia? 9584  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 A   Yeah.  He's the ecologist.  2 Q   And where in the chart you summarize the three  3 biogeoclimatic units as biogeoclimatic zones,  4 subzones and variants, are those your definitions?  5 A   No.  Those are -- what I've done here is I've taken  6 definitions from that publication of Pojar in 1983  7 that we talked about and also a variety of others,  8 and I've tried to simplify it because -- and even  9 you'll see there's a simplification between the map  10 legend and what you see in my report.  The actual  11 definition is quite complex.  But it's -- it's not  12 my own invention.  I have just taken it and  13 simplified it for the purposes of this report.  14 Q   All right.  Now, I wonder if you could explain to the  15 Court then what the distinctions are between a  16 biogeoclimatic zone, a subzone and a variant?  17 A   Okay.  The zone is -- for the biogeoclimatic system,  18 it's the broadest level of classification.  So in  19 British Columbia you'll have, say, 13 or 14 zones.  20 They're large areas with very broadly homogeneous  21 climate, soils based -- roughly the same pattern of  22 soil formation in the landscape and recurring  23 patterns of vegetation, and they tend to be  24 dominated by a few characteristic tree species.  The  25 subzone is simply a subdivision of the zone.  Even  26 within -- within a zone you have quite a bit of  27 variation.  It's subdivided.  There's more detail  28 provided on the type of climate, and consequently  29 there's more detail about the types of vegetation  30 and soils.  And then if -- if within a subzone  31 there's significant variation is found, they can  32 further subdivide it into a variant.  If there's  33 specific things that you feel warrant highlighting  34 or for some reason you feel that another unit should  35 be broken out of the subzone, you call it a variant.  36 Q   All right.  37 A  And again it would have uniform climate, soils and  38 vegetation at a finer level of detail than the  39 subzone.  40 Q   With reference to Map 2, can you assist us in reading  41 where you have identified, for example, the zones?  42 A   Okay.  There are about 10 zones on -- shown on this  43 map, and any particular general colour will give you  44 an idea of the zone.  Like the blue along the coast  45 here and these islands and mountainous areas along  46 the coast, you'll see areas that say CWH in capital  47 letters, and then they have a small letter after 9585  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 them.  All of the area CWH. would be one zone,  2 coastal western hemlock zone.  Then you have this  3 area of green.  You see capital ICH, and it's  4 followed by gl, 2, 3, 4.  The capital letters ICH  5 represent interior cedar hemlock biogeoclimatic  6 zone.  Going inland a bit -- or let's say we look at  7 the grey colour throughout the map.  There are  8 little patches of grey and they all have AT on them.  9 That refers to the alpine tundra zone.  And that --  10 that's again a zone.  11 Q   All right.  And in the mapping units that you have  12 described in the -- in the chart part of the map --  13 I don't know if you have it before you -- do you  14 there describe the characteristics or the properties  15 to be found within each of those zones or subzones  16 or variants?  17 A   Yes.  Each of the colours -- this is the legend, and  18 for each of the colours on the map you'll find a  19 little square.  And based on the letters in the  20 square, it will tell you.  If it's strictly capital  21 letters, it's a zone, and there's a little  22 description of the zone with a picture.  In some  23 cases I've gone to the subzone level, and after the  24 capital letters you'll find a lower case letter, and  25 that will refer to the specific subzone within a  26 zone.  And then there's generally a little  27 description, in some cases a good description of the  28 subzone.  And in -- in the case of the ICHg on the  29 right-hand side I've described the variant.  There's  30 a number of variants that have been broken out in  31 that particular zone, and I have shown ICHg3, and  32 there's a little picture and description of that  33 variant.  34 Q   I wonder if you could stop here.  The ICHg3 or the  35 hazel variant appears to be quite prevalent in the  36 claims area?  37 A   That's right.  It -- it stands out.  It's the unit  38 that's found in the valley bottoms.  If you go up  39 the Skeena River, you cross the coast.  Then you get  40 into an area where you start to get some interior  41 influence and somewhere near Cedarvale, actually  42 fairly close to where the black line crosses on this  43 map, the edge of the land claims territory boundary.  44 And then it follows up through the main Skeena  45 Valley, along the Bulkley Valley, and then the  46 various river valleys, such as the Kitwanga and  47 Kitwancool Rivers.  So down at the low elevations, 9586  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  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  that area is quite distinctive and it's described as  a Hazelton variant of the ICH.  Q   Is the Hazelton variant at all related to the  convergence of the three ecoregions which you've  described earlier?  A   Yeah.  It -- it has predominantly coastal and  interior.  What you have there is a transitional  area where species that are characteristic of the  coast, such as -- well, the climate is the wet  climate coming in from the coast, and then you have  the dryer climate of the interior.  And in this  area, in these river valleys you get a mixing of the  two.  You get some of the coastal systems moving  inland.  You get the interior weather systems mostly  prevailing.  And so you have species such as  hemlock, western red cedar that are typically found  on the coast.  They're found there.  So too are  species from the interior such as -- lodgepole pine  is very abundant.  Trembling aspen is very abundant.  The spruce that occurs in that variant is a hybrid  of the coastal Sitka spruce and the interior white  spruce.  You also have some northern species  reaching their southern limits in that area, such as  the black spruce that comes down into that variant.  It doesn't occur further south.  So in that area you  have a mixing, presumably part because of the way  the topography is, the physiography of the area.  The climate is intermediate between all those three  areas and you have this unique mixture of vegetation  with a diversity of species that you don't find  elsewhere.  MS. MANDELL:  And I also notice that subzone SBSd appears also  to be quite common in the claims area.  I'm sorry.  You said SBSe?  SBSd.  Small d.  It's a green, the last item on the first column.  You don't see it in the north claims area, do you?  THE COURT:  MS. MANDELL  THE WITNESS  MS. MANDELL  THE COURT:  MS. MANDELL  Q  A  Q  A  No.  No.  Yes.  That's strictly  am I allowed to say?  That's strictly in the southern part of that area.  That was -- is known as the spruce subzone or the  dry cool subzone of the sub-boreal spruce zone, and  it is typical of the valley bottoms of the western  part of the Nechako Plateau and the Bulkley River. 9587  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MS. MANDELL  THE COURT:  MS. MANDELL  Q  And that is an area that has white spruce, lodgepole  pine and lots of trembling aspen.  It's an open type  of forest with some grassy moles and diversity of  shrubs and herb species, some open meadows and  things.  It's characteristic of this southern part,  the valley bottom areas.  Q   Did -- on page 10 and 11 of your opinion at Tab 2, did  you summarize there the biogeoclimatic units of the  study area?  A   Say that again.  Q   At page 10 and 11 —  A   That's not the right part of the report, is it?  Oh, yeah.  I have a table here.  And for each of the  units, whether it's a zone -- I go first the zones,  then the subzones and variants in the second column,  and then I give a brief description of the names of  the physiographic region, such as the mountain  ranges, the interior plateau or what -- what the  mainland forms are there, the approximate elevation  range, type of climate that characterizes that  biogeoclimatic unit, the typical climax or old  growth vegetation that you would find if there was  no disturbance, and the successional vegetation.  By  that I mean the type of vegetation that -- young  vegetation that comes up following disturbance.  My lord, are you following?  Yes.  On page 10.  Yes.  And is this the same information which appears in the  mapping units, the two columns where there's  photographs beside it in --  A   Yeah.  In the legend here.  I think it's pretty much  word for word.  I think a few things might have  been -- it's shortened up a bit.  Q   Did you take, by the way, some of the photographs that  appear in the legend?  A   I did.  The ones that I -- most of the ones I took  have my name, and those I provided for -- to the  cartographer that developed the map.  I might have  taken some of the other ones as well, but they  belong to the Ministry of Forests.  Q   If you'll notice at the bottom of the legend in the  left-hand corner, there you deal with the spacial  relationship of the biogeoclimatic units of the  Gitksan-Wet'suwet'en territories.  And in the far  left-hand column you have created a schematic  diagram showing the biogeoclimatic zones of the 95?  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 three ecoregions.  I wonder first if you could  2 explain what these schematic profile diagrams  3 illustrate?  4 A   Okay.  I think I developed these because I wanted a  5 way of making some sense out of all these different  6 colours on the map.  And if you can visualize them  7 as a mountain, a big mountain, and the left side of  8 the mountain would roughly represent the west, and  9 if you moved across the base of the mountain, you'd  10 be moving sort of up the east across the ecoregion.  11 And then going up the mountain, you go up in  12 elevation.  And what that shows is the sequence of  13 biogeoclimatic zones -- and here I'm only talking  14 about zones.  I don't get into the subzones and  15 variants because it would be too complicated -- that  16 you would encounter, first of all if you went up in  17 elevation from the valley floor to the mountain top,  18 and if you go horizontally on the diagram, what you  19 would encounter if you moved inland from the outer  20 coastal part of that ecoregion to the inland areas.  21 And you'll see that in each of these three  22 ecoregions there's quite a different arrangement of  23 zones.  In the northern one it's fairly simple.  You  24 have basically the boreal forest.  In the low  25 elevations it's called the BWBS or boreal white and  26 black spruce zone, very characteristic of the north  27 throughout North America.  If you move up in  28 elevation you get a scrubby forest type shorter  29 growing season, higher elevation.  It's called the  30 spruce willow birch zone.  And at the top you get  31 the alpine tundra zone.  That's in the north.  And  32 you can see on this map basically all we have there  33 is the greys and blues, these three colours.  These  34 represent the north ecoregion here.  There's a  35 little bit in the far corner there that says -- of  36 the green colours from the SBS and the ICH.  And  37 I've shown those on the bottom of that triangle.  At  38 the far west when you have the coastal influence  39 coming in from the ocean, you can see the hemlock  40 and things.  It's a wetter, milder climate and so  41 you get some hemlocks and things in these lower  42 portions of the river valleys.  So that would be the  43 north ecoregion.  When you get to the coast you have  44 quite a different pattern of biogeoclimatic zones,  45 and they're shown on this map.  Unfortunately the  46 colour schemes don't match up identical here, I see.  47 Like, okay.  On the outer coast you have the coastal 9589  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 cedars, pine, hemlock zone.  Moving inland a bit you  2 get a coastal western hemlock zone dominant in the  3 low elevations.  And then as you get to the far east  4 of that zone, as you start to get more of an  5 interior influence, and you're into these  6 intermediate mountain ranges, which is the Skeena  7 Mountains, the Hazelton Mountains, you start to get  8 some of that -- the interior species coming in.  9 That's called the interior cedar hemlock zone.  10 Again as you move up, you get a -- you move up into  11 the subalpine forest.  It's a scrubbier forest, lots  12 of snow, open areas with avalanche tracks and so on,  13 called the mountain hemlock zone.  That's the  14 dominant species there.  And again right up on the  15 tops of the mountains you'll get the alpine tundra  16 zone, which is open, heath like, lots of low scrubby  17 vegetation, no trees, and lots of rocks and ice and  18 snow.  19 Do you want me to keep going?  The interior  20 ecoregion has again a different pattern of zones and  21 subzones as you move east to west and also as you  22 move up in elevation.  Once again we have the ICH  23 representing the transition between the coast and  24 the interior.  That's interior cedar hemlock.  But  25 the main portion of the interior at the low  26 elevations is called the sub-boreal spruce zone.  27 And if you're in the -- in the northwest, you'll  28 know that the vast majority of the landscape on the  29 Nechako Plateau there through Smithers, Houston, out  30 that way, Burns Lake, is just a rolling landscape  31 with lots of conifers, trembling aspen and so on.  32 It's very continental climate, cold winters,  33 relatively short but quite cotton dry, moderately  34 hot and dry summers.  That's the sub-boreal spruce  35 zone.  Down in the very southern corner we have a  36 little bit of the interior Douglas fir zone, and  37 that's more of the type that you'll find throughout  38 southern B.C. and down in the the U.S.  So it just  39 comes in a little bit at the southern boundary,  40 around Atnarko River and the Bella Coola.  It's not  41 particularly important in this map, but I did put it  42 in the diagram.  The subalpine forest, again you go  43 up in elevation up into the mountains.  You get the  44 subalpine forest.  It's a denser, scrubbier forest,  45 not as productive because long, long winters and  46 very short growing seasons.  This is an area with a  47 lot of huckleberries in the forest and avalanche 9590  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MS.  THE  Q  A  MANDELL  COURT:  THE WITNESS  THE COURT  THE WITNESS  THE  THE  COURT:  WITNESS  tracks and dominantly subalpine fir and Engelmann  spruce growing in it.  And then again once again you  have the alpine tundra zone at the high elevations.  So these diagrams are supposed to give you just a  picture of what you would see going up in elevation  and also east to west or northeast to southeast.  It's shown on each of the diagrams, the range in  zones.  And each zone represents a characteristic  type of climate.  I don't talk much about soils  because soils is something that most people aren't  too familiar with the jargon.  There's a lot of  terminology that would be hard to understand.  And  they also have characteristic vegetation.  And I  describe -- they're all described in the tables and  a bit more in the accompanying descriptions in the  book.  Is the accompanying description of what you just told  us found at page 12 to 14 of your report at Tab 2?  Right.  Yeah.  Yeah.  That -- that just described  within each of these ecoregions the zone -- the  zonal conditions, so a very general description of  what -- what the landscape is like.  All right.  Tell me again.  I heard the other day, but I forget  what it is.  What does boreal mean?  Boreal is a name used for the northern forest.  I  can't -- when we talk a boreal climate, it's  continental, which means it isn't influenced too  much by the ocean.  It's northern.  It has a -- a  long, cold, relatively dry winter and a long -- I  mean a short, cold relatively dry summer.  What about the the forest regions along the side --  the Skeena north of -- north of Kispiox?  Is that a  boreal forest?  Well, as I said, it's transitional.  It's strongly  transitional between what we see on the coast and  the northern forest.  The true boreal forest has  white spruce, lodgepole pine or a Jack pine,  depending on where you are, which side of the  Rockies you're on, tamarack or larch, and in our  case subalpine balsam to the east and it doesn't  have the hemlock and -- which you see in the -- in  the north of the Kispiox.  The hemlock is there  because of the coastal influence.  So it's  transitional.  It's partly boreal.  Where on this Map 2 do you find the boreal forest?  Okay.  The boreal forest is the abbreviation for 9591  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  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  boreal white and black spruce zone -- oh, black  spruce, I forgot to mention, is a very  characteristic species.  So this is what I call the  north ecoregion.  COURT:  The Stikine area?  WITNESS:  Yeah.  The Stikine.  The uppermost portions of the  Skeena and Nass, it might touch in -- probably not.  The Klappan, the Spatsizi, the Iskut River, and then  all the way over here, the Liard and all those --  the valley bottom.  So it's only at -- the true  boreal forest is only at the low elevations, because  once you get up higher in elevation, it's not a real  forest.  It's a subalpine type.  COURT:  So there's very little boreal forest within the  claimed area?  WITNESS:  Yes.  But there's a transitional.  Like, we draw a  line and you change the colour, but it isn't like --  it gradually changes.  Yeah.  There's -- there is no  true boreal forest within this claims area.  Thank you.  THE  THE  THE  MS.  COURT:  MANDELL  Q  Now, also located on the map, and again we're dealing  with the legend, are schematic diagrams which show  the relationship among the geoclimatic units among  the Gitksan and Wet'suwet'en territory.  Now,  they're more detailed than those portraying the  three ecoregions and include the biogeoclimatic  zones, subzones and variants; is that right?  A   That's right.  Q   You've described in your report at page 15 the  northern Gitksan territory.  And if I could just  refer you to how you've identified that -- that  territory, you've said that:  "The northern territories of the Gitksan  include all lands north of the Cranberry  River and Kisgegas (i.e. everything north  of approximately 55 40 north latitude).  This includes the headwaters and  mid-sections of the Skeena and Nass Rivers  and their tributaries in the Skeena  Mountains and Nass Basin physiographic  regions."  That's what you've described as the northern  territory?  A   Yeah.  That's just an arbitrary subdivision that I 9592  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 made for the purposes of describing the different  2 ecological units in this land claims area.  I looked  3 for where they were roughly the same, because it was  4 too much to describe in one triangle.  You would  5 have to add a third dimension to the triangle to  6 include that north/south, so I just did trans X  7 across.  8 Q   And with reference to the schematic diagram describing  9 the northern territory in Map 2 itself, can you  10 describe this northern Gitksan territory for the  11 Court?  12 A   Okay.  This is the area that I would describe as  13 broadly transitional between the coast and the north  14 in the western portion and then having more interior  15 influence in the eastern portion.  And if you look  16 at the map and at the triangle, you see that at low  17 elevations in the western portions you have the ICH,  18 the interior cedar hemlock zone.  This is a dense  19 forest of -- at climax, or the older forest without  20 disturbance are fairly dense forests of hemlock.  21 Western red cedar is absent.  It's cold but has some  22 coastal influence, so it's fairly wet with heavy  23 snow, and a very -- there's -- in some areas there's  24 quite a bit of deciduous forest but much less so  25 than further south.  As you get further east, you  26 lose the hemlock and you start -- and you get into  27 what we call the sub-boreal spruce zone, which is a  28 transitional between the boreal and the interior.  29 That's the white spruce, subalpine fir, a bit of  30 black spruce.  And that -- that lies in the eastern  31 portions of that northern area.  The -- at the high  32 elevations you have Engelmann spruce, subalpine fir.  33 And what's characteristic about this northern part  34 is you have a large area at the high elevations.  35 You have broad subalpine, areas of subalpine and  36 alpine tundra, which you don't find as extensive in  37 the other parts.  Those higher elevation areas,  38 they're not as productive for tree growth, but they  39 have -- they're very productive for some of the  40 berries species I studied there and I understand  41 good areas for the big game wildlife, the big open  42 alpine tundra and so on.  What else can I say about  43 that?  44 MS. MANDELL:  45 Q   If I could ask you in general terms, given the  46 description of the plant and weather and soil  47 conditions that you've described for us, can you 9593  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 identify how you would then -- or how a resource  2 manager would use that information to identify the  3 resources that would be available there for use by  4 the Gitksan or others?  5 A  Well, what you see -- okay.  The climate isn't well  6 suited to agriculture, for example, and what you'll  7 find is that in this part of the territory, there's  8 relatively little present day settlement, the  9 shorter growing season, rather wet and cold.  You  10 don't have the open grassy areas, the deep  11 productive soils.  The soils tend to have -- are  12 acid with thick humus layers and so on.  A lot of  13 it's at the high elevations where people tend not  14 live.  It's a relatively productive forest zone in  15 terms of, you know, some of the early successional  16 species.  It's good for spruce production, some  17 areas good lodgepole pine.  The hemlocks and cedars  18 that grow there presently aren't -- aren't  19 considered high quality wood species, and so those  20 kind of decisions are made about the present  21 condition of the forest and whether it would be  22 desirable to convert them to other species.  There's  23 a lot of interest in wildlife management in those  24 areas, partly because of their inaccessibility and  25 just the general -- because so much of it is at high  26 elevations.  27 Q   All right.  At page 16 in your report and also with  28 reference to the schematic diagram at the top of Map  29 2, you describe the southern Gitksan territories,  30 and if I could refer you to your description of the  31 geography, you have classified "The southern Gitksan  32 territories extend from Kisgegas and the Cranberry  33 River south to the confluence of the Bulkley and  34 Skeena Rivers".  35 A   Yeah.  In that area, as you can see I've drawn a few  36 little squares and there's lots of different zones  37 and subzones and variants.  And it's an area where a  38 lot of different influences seem to be merging and  39 so you have quite a diversity of tree species, quite  40 a range of ecosystems.  The valley bottoms -- if you  41 climb the mountain in that area, you could go  42 through four or five different biogeoclimatic units.  43 You'd see a real band of different types of  44 vegetation.  And right in the heart of the valley --  45 I talked a little bit earlier about the ICHg3.  That  46 sits right in the valley bottoms and that's an area  47 that's got a lot of hazelnut growing in it, lots of 9594  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 shrubs, aspen, birch, lodgepole pine.  That's an  2 area where you can see a lot of evident -- evidence  3 of past fires.  It's presently -- agriculture is  4 presently confined to that area in the Skeena,  5 Kispiox and the Lower Bulkley Valley.  So all of  6 those kind of things that happen in the towns are  7 all down in that ICHg3.  As you go up in the  8 mountains you'll get this band of coastal forest in  9 the western portions, coastal western hemlock  10 forest.  It's very similar to what you get around  11 Terrace or between Terrace and Prince Rupert, big  12 trees, old growth stands, relatively few fires, and  13 you get these -- a lot of the berry species that you  14 typically find on the coast are found in this  15 mid-elevation band.  It has something to do with the  16 way the weather systems move through the valleys,  17 cold air drainage coming down.  There's a lot of  18 moisture in those mid-elevations, so you get this  19 coastal type forest.  This is all roughly on the  20 west side of the -- of these -- of the area I  21 described, and above that the mountain hemlock zone.  22 And mountain hemlock is a species that you typically  23 find along the coast areas of very heavy snow.  It's  24 a dense forest, lots of huckleberries in the  25 understory, heavy avalanching typically, and steep  26 mountains, not these open type of alpine and  27 subalpine like you get further inland.  Then -- and  28 above that the alpine tundra, which tends to be  29 confined to fairly small sharp mountain peaks rather  30 than these broad expanses of tundra that you see  31 further east and to the north.  As you move inland  32 you start to lose that coastal influence, so when  33 you go up the mountain side, instead of getting the  34 coastal forest, you'll get more of a forest like you  35 get further inland.  It's the sub-boreal forest or  36 the Engelmann spruce subalpine fir forest.  And it  37 doesn't have the hemlock.  The western red cedar  38 drops out as you move inland and as you go up in  39 elevation.  Those areas are very productive for  40 logging and there's a lot of logging in that area.  41 The terrain is gentler.  The -- because of the steep  42 slopes.  They don't do a lot of higher logging in  43 the Hazelton area, so they tend to concentrate on  44 the gentler slopes.  So they're in the SBS or  45 sub-boreal spruce zone, a bit in the Engelmann  46 subalpine fir and a lot in these other variants of  47 the ICH where there's lots of conifer trees, not so 9595  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  much aspen birch.  And the fire history is  different.  There's less frequent fires, so you tend  to get these timber-producing species rather than  the aspen and such.  Okay.  On page 17 you describe the northern  Wet'suwet'en territory as lands located north of the  Morice River.  And with reference again to your  schematic diagrams in Map 2, could you assist us in  describing those northern Wet'suwet'en territories?  Okay.  Much of what I just said about -- there's the  northern Wet'suwet'en territories.  In the Bulkley  River valley you've still got a lot of coastal  influence.  It peters out somewhere between  Moricetown and Smithers.  You start to lose a bit.  You lose the cedar first, then you lose the hemlock.  And that's reflecting in a change from interior  cedar hemlock zone to sub-boreal spruce zone.  So  the climate's becoming more and more continental.  The terrain is becoming gentler.  Instead of a lot  of mountain -- clustered mountain ranges, you start  to get more open and a few scattered mountain  ranges.  The winters are longer.  The -- there's  less precipitation.  The -- it's a more rolling and  open country, and so it moves transitional from ICH  into SBS or sub-boreal spruce.  And that is the  typical interior forest that you find all the way  out to Prince George and down to Quesnel and all  through the northern interior.  And at the low  elevations it's a good agricultural zone.  We call  it the SBSd.  I talked a bit about it earlier.  There's lots of aspen.  There's some open meadows.  Spruce and lodgepole pine are the main tree species,  but a lot of that's already been logged.  There's a  lot of early successional vegetation because of the  extensive land clearing and so on that's gone on.  SBSd means sub-boreal spruce?  Yeah.  And the d is -- the subzone letters were  just given alphabetically.  They don't have any  connotative meaning.  It's the spruce subzone.  MANDELL:  Q   And again by referring us to the connections which you  make between what the climate and soil and  vegetation is, can you indicate in general terms the  kinds of resources that would be available to the  Wet'suwet'en or to others who would be living in  that area?  A   Okay.  Down in the valley in either the ICH or the  THE COURT:  THE WITNESS  MS. 9596  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 SBSd, which is slightly further inland, you have  2 relatively warm dry with the longer summers, low  3 snowpacks, which are important for wildlife and also  4 determine what types of vegetation you get.  The  5 ground really freezes.  You have good soils for  6 agriculture.  As you go -- and then dominantly  7 deciduous types of -- a lot of deciduous vegetation  8 and frequent fire.  As you go up in elevation,  9 higher precipitation.  These coniferous forests are  10 very -- at the present time they're heavily used for  11 logging, stands of spruce, lodgepole pine and to  12 some extent subalpine fir.  Most of the logging is  13 concentrated in that mid-elevation belt, which is  14 dominantly referred to as the SBSe, and it's kind of  15 a medium green colour on the map.  That area also  16 has a lot of the black huckleberry which you don't  17 find down in the valley bottom.  Down in the valley  18 bottom it tends more to Saskatoon and dwarf  19 blueberry and things like that.  Then as you get up  20 higher in elevation, you get into the forest, the  21 Engelmann spruce subalpine fir zone, less  22 productive, a lot of decadence or old stands with a  23 lot of rotting subalpine fir, has lower timber  24 values, a shorter growing season.  It's harder to  25 manage for forestry.  The logging's just starting to  26 get into that area.  These areas have lots of  27 huckleberries.  There's not -- hiking and things are  28 the things that tend to go on in those areas now.  29 And finally you have the alpine tundra at the top,  30 which is these open tundra areas.  And they're --  31 they're fairly broad.  They're relatively low  32 snowpack compared to what you saw further north.  So  33 they have -- and have kind of a grassy vegetation a  34 lot of times.  Today they're mainly used -- there's  35 hunting and recreational use of those areas.  In  36 terms of berries, there's some of that low dwarf  37 blueberry, but I don't think the berry production is  38 that great.  39 Q   All right.  And finally you describe the southern  40 Wet'suwet'en territories at page 18 as including the  41 Wet'suwet'en territories lying south of the Morice  42 River occupying the western portions of the Nechako  43 Plateau, straddling the drainage divide between the  44 Fraser and Skeena River systems.  And with reference  45 again to your schematic diagram in Map 2, could you  46 assist us in understanding the southern Wet'suwet'en  47 territories? 9597  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 A   Okay.  Most of what I said about -- previously applies  2 to that area.  There's two big differences.  One is  3 that at the far west -- southwestern portion you've  4 got the eastern slopes of the mountains down around  5 Morice Lake, Tahtsa Lake, through there.  So there  6 we have a little bit of a coastal western hemlock  7 forest.  There's no broad transition there.  It's  8 very abrupt.  The east of the mountains have hemlock  9 and amabilis fir, very typical coastal forest, at  10 the moment  largely inaccessible, and there's not  11 any logging going on there or anything.  It's dense  12 forest, old growth, low frequency of fire.  That  13 stuff isn't really present to any extent in the  14 northern part of the Wet'suwet'en territory.  But  15 it's a fairly abrupt cut off there and you get out  16 on the Nechako Plateau, and if you've seen the  17 Nechako Plateau, rolling landscape.  That's  18 dominantly sub-boreal spruce.  This area has very  19 few high mountains, so in that way it's quite  20 different from the northern part.  So it has lot of  21 this mid-elevation plateau landscape.  In the lower  22 elevations it's like I said before.  Tends more  23 aspen, open area with good -- some agriculture  24 capability.  There's quite a bit of grazing of  25 cattle in those areas today.  As you get in the  26 higher elevation, more coniferous forest.  That's  27 where the logging is concentrated.  And there's a  28 bit of the subalpine forest on the tops of these  29 small hills.  Overall it's a lower productivity  30 area.  It's a colder climate, less precipitation  31 than -- because the coastal weather systems move in  32 through the valleys.  There's -- and then they  33 spread out over the plateau.  By the time you get  34 out to the plateau there, they've lost most of their  35 moisture.  It's colder and dryer, so the trees don't  36 grow as well.  The shrub growth isn't as lush.  But  37 there are many of these species, such as Saskatoon  38 and Soopallie and dwarf blueberry.  These species  39 grow quite an abundance out in this interior  40 plateau, in that area.  41 Q   For clarification, you mentioned earlier a sharp  42 divide between --  43 A   You see, what I'm --  44 Q   If you could just --  45 A  When we talk about the other part that I talked about  46 before, there's big valleys and the coastal systems  47 move through these big valleys and gradually lose 959?  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  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  their moisture until you get a broad transition of  area that I referred to as the ICH.  It's got  hemlock and cedar, but it's not really coastal.  It's transitional.  Down there there aren't these  valleys.  The moisture comes over the mountains.  All the moisture's lost, and once you get out in the  plateau, it's dryer and colder.  And so it goes  straight from coast to interior.  We don't bother  with the broad transition because it's only, you  know, a couple hundred metres wide or something.  It's not worth describing as a separate zone or  subzone.  Q   Could you just go to Map 2 and indicate by reference  to any of the landmarks there that catch your eye  where you would say that transitional -- that chart  divide area is?  A   You can see where I've changed colour from the blue of  the CWHF to the green of the SBS, and it's kind of  half-way along Morice Lake and Tahtsa Lake -- and  what's this?  Yutzik here.  I think it's Yutzik  Lake.  Anyways if you're out there, you'll see  here -- you'll see hemlock trees and subalpine fir,  and you'll see the Alaska blueberry in the forest  understory.  It's really like the coastal forest.  It's just like the forest you get out here in  Kitimat.  THE COURT:  We're talking about the south edge of Morice Lake?  THE WITNESS:  Yeah.  But if you move inland, suddenly you might  as well be out by Houston.  There's no hemlock.  There's no amabilis fir.  The Alaska blueberry's  gone.  It's a very interior forest.  And it's very  sudden and it relates directly to the edge of the  mountain.  That's very different from what you get  further north.  MS.  MANDELL  Q  Is that White Sale Lake?  A   Could be.  Well, White Sale is the one that  all the little islands on it  White Sale, right.  It's also the same  with  Oh, yeah.  That's  Yutzik is the one to the south.  I did a boat trip along there  and -- yeah.  It's got the same thing on it.  They're all like that.  When you get to the edge of  the mountains, it changes very abruptly.  All right.  I wonder, just to -- underscore a point  that I don't know for sure that it has been made, if  you could come back to the legend at the place  where -- the legend Table 1 where you identify there 9599  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  A  THE COURT:  THE WITNESS  the characteristics of the three zones.  Ecoregions, yeah.  With reference to this table could you illustrate the  interdependencies that exist among the physical and  biological components of the environment?  Okay.  What I was trying to get at in that table is  that these things aren't independent of one another.  The physiography, the mountain range, the existence  of mountain ranges, the ocean to the west, the  mountains and the interior plateau, that determines  what the climate is like.  So these boundaries tend  to follow along mountains.  The edge of the mountain  you draw a line.  The climate changes.  The  topography changes.  The soils also change because  they're a product of topography and of the climate.  The vegetation depends very much on the climate and  the soil.  So the vegetation changes.  If the  vegetation changes abruptly, chances are the climate  is also changing abruptly and vice versa.  The  watersheds in the boreal area, they flow north.  In  the coastal area they flow out to the Pacific.  In  the interior a lot of them drain south to the  Fraser.  So all of these things are somehow related  to the physiography, the area and so on.  So what  I'm trying to get at is that an ecological  classification is useful for a wide variety of  purposes.  It's not just a vegetation  classification.  A lot of different kinds of land  uses are in some ways linked to these particular  units.  They don't just tell you what kind of trees  are there.  And if you could come back into the claims area on Map  2, with reference to all of the information provided  to you by this classification system, is it possible  for you to identify in broad terms where the farming  would best be taking place within this area?  Yeah.  It can be quite clearly defined.  And I did a  project once where we mapped out the farming, and  you find the farming is almost -- in Northwestern  B.C. almost entirely restricted to the SBS2 and the  ICHg3.  Once you get out of those two biogeoclimatic  units, I have very little farming in Terrace.  Oh,  maybe a bit in the IDF and around Telegraph Creek  when you're in --  What were the two zones you said?  The SBS2, the subzone and variant.  I call them  biogeoclimatic units because -- see, what I'm saying 9600  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  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  here is the zone isn't enough to tell you where  agriculture is.  You have to get to a finer level of  detail.  If you go down to the subzone level, you  can say the agriculture's pretty much confined to  the SBSd.  THE COURT:  SBSd?  THE WITNESS:  The spruce subzone or the sub-boreal spruce zone.  And that's that light limey green.  THE COURT:  And the other one?  THE WITNESS:  And the other one is the ICHg3, the Hazelton  variant, from Cedarvale up the Kispiox Valley, up  the Kitwanga River and then Kitsegukla and the lower  portions of the Bulkley River.  So those two  biogeoclimatic units you've probably got 90 percent  of the agriculture -- rough guess -- that you find  in Northwestern B.C.  MS.  MANDELL  Q  A  Q  A  A  All right.  And with reference to the same analysis,  can you tell us where the logging would occur in the  territory?  Okay.  Logging is fairly spread out.  The two --  within -- if we don't look at the whole map, we just  look at the territory area --  Just the claims territory.  It -- in the present time it's primarily in the  SBSe -- that's the subalpine fir subzone -- that's  the mid-elevations of the area.  It's starting to  get into the lower elevations of the Engelmann  spruce, and in the past there was a lot in the SBSd,  but most of that has been cleared or is in a middle  age stage now.  So the vast majority of it is  presently now in the SBSe.  When you're up further  north, it's in the ICH.  There's not a lot in the  SSF yet, though they're getting into the SSF more.  It tends to be in the ICHgl and g2.  The g4 is an  area that is just opening up now up north of  Stewart, big scale logging in there now.  So those  mid-elevation areas are the areas that tend to be  dominated by conifers, mature forests at the present  time, and those are the areas where the logging  activity is presently concentrated.  Before you finish telling us about the logging, I  wonder if you could identify, if it's possible, the  zones where you say logging has already occurred?  Well, the historical pattern -- and I'm not a  historian so I don't want to sound like I researched  this, but people -- the logging was along the 9601  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  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  transportation corridors and located in the low  elevations.  And that was the SBSd and the ICHg3 and  then gradually it spread out.  But -- so yeah.  I  would say that the earliest logging was probably in  the SBSd and the ICHg3 where present day agriculture  is and consisted of land clearing out for farming  and so on.  You can see that in the field.  I  haven't researched it.  Q   All right.  And in terms of the areas that are  suitable for logging, the zones that are suitable,  have you identified all of them to us now?  A   Suitable changes with time and how -- what's  available, you know.  You look at -- echosystem  productivity is a big part of it, and the  mid-elevation there tends to be the most productive  for coniferous tree growth because they're a little  bit wetter than the low elevation areas.  But  accessibility is a big part of logging suitability  as well.  So even if the timber is less productive,  if it's right there next to the mill, you know --  so -- and the Engelmann spruce subalpine fir has  lots of conifers and it's less accessible, lower  value.  It's going to be harder to regenerate, so  it's less suitable, but, you know, you get  desperate, or there's a need for lumber and they'll  move into these areas as well.  THE COURT:  Sorry.  You — I can't find a g4 that I thought you  said.  THE WITNESS:  g4 Nass — do you know where the Nass Basin is?  THE COURT:  Yes.  THE WITNESS:  If you see the Nass — I didn't break it out in  the -- on the map.  It's all part of the -- there's  an area that -- the Nass River Valley from Cranberry  junction north, you'll see a big area.  It says  ICHgl, g2, and g4.  The g4 refers to the  Meziadin/Bell-Irving variant.  It's centred from  Meziadin Junction up north to Ningasel Pass.  COURT:  I'm sorry.  WITNESS:  I didn't map it out separately.  The map's not big  enough for that level of detail.  THE  THE  MS.  MANDELL  Q  It's also on the Iskut River?  A   Yeah.  That's now known as the g5, but we don't get  into that.  So those are the other variants of the  ICH, other than the g3, which I mapped out.  Q   Is it also possible for you to determine where the  grazing of cattle would be suitable? 9602  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A   Oh, yeah.  That depends again partly on accessibility,  but the vegetation that's suitable for range use is  very much confined to the ICHg3 and the SBSd.  You  get a lot of that, the brow species that cattle  prefer, latheris.  It's of the pea vine.  That's a  really -- that kind of vegetation, a lot of herbs  and shrubs in the forest understory, open forest,  aspen stands.  That's the sort of area that cattle  when you have open range  that -- and those areas  are -- tend to be mainly confined to the SBSd and  ICHg3.  However, southern aspects -- and there are  small areas within these other zones that would be  suitable, but at a broad scale you can say very much  that the main areas with high agricultural or  grazing capability would be the SBSd subzone and the  ICHg3.  THE COURT:  I take it that this -- this desirable logging area  of g4 extends mostly the way up the Skeena River as  well, does it?  You could probably --  Same colour.  You could say that the capability is there  wherever it's in green to produce good stands of  timber.  Yes.  Whether the present stands are good quality or not  depends on the past history of fire and so on.  If  they're, you know, intermediate age and densely  stocked hemlock, they're not very high quality.  But  the area has potential to produce good forest.  THE COURT:  Well, you show this green g4 extending up the Skeena  almost to the junction of Iskut.  THE WITNESS:  Yeah.  That's right.  And that SBSe is also  productive forest area.  That's -- the difference  there is that you don't get the hemlock, which isn't  particularly a favoured species either.  So both of  those zones are productive for logging.  THE COURT:  Thank you.  MS. MANDELL:  Q   I was going to --  A   The purplish and the reddish and the grey aren't.  MS. MANDELL:  My lord, I was going to turn to berries next, so  perhaps this is a pretty good time.  THE COURT:  All right.  Two o'clock, please.  THE REGISTRAR:  Order in court.  Court will adjourn until two.  THE  THE  THE  THE  THE  WITNESS  COURT:  WITNESS  COURT:  WITNESS 9603  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 (PROCEEDINGS ADJOURNED)  2  3  4  5  6 I hereby certify the foregoing to be  7 a true and accurate transcript of the  8 proceedings transcribed to the best  9 of my skill and ability.  10  11  12    13 Kathie Tanaka, Official Reporter  14 UNITED REPORTING SERVICE LTD.  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 (PROCEEDINGS RESUMED AT 2:00)  42  43 THE REGISTRAR:  Order in court.  Ready to proceed, my lord.  44 THE COURT:  Ms. Mandell.  45 MS. MANDELL:  46 Q    Thank you.  Ms. Haeussler, you've produced eight  47 maps which describe the distribution and abundance 9604  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 of eight species of berries; is that right?  2 A    That's right.  3 Q    Why did you choose these eight species to  4 investigate?  5 A    That was requested.  I was requested to do that by  6 Richard Overstall.  7 Q    And so it was an assumption which you made that the  8 species were important to the Gitksan and the  9 Wet'suwet'en people?  10 A    Yes, I was told that those were the species that  11 were important.  12 Q    And at page 21 of your report which is found at tab  13 2.  14 A    21?  15 Q    Yes.  You say there that:  16  17 "These plant species were chosen for study  18 because of the importance of their berries to  19 the aboriginal economy of northwestern British  20 Columbia."  21  22 Is this an assumption that you made?  23 A    It's an assumption that I was told that.  24 Q    And you say then later:  25  26 "The berries were capable of being preserved  27 and were especially important as sources of  28 nutrition during the winter and early spring  2 9                      months."  30  31 Is that an assumption that you made?  32 A    Yes.  33 Q    And you say:  34  35 "There has also been much discussion of the  36 use as trade goods."  37  38 Is this also an assumption that you made with  39 respect to these berries?  40 A    Yes.  41 Q    You then go on to talk about:  42  43 "The importance and the use of these plant  44 species in the native Indian diet is well  45 documented in the ethnobotanical literature  46 in British Columbia."  47 9605  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 And then you make reference to that literature in  2 table 3.  Is it common in your area of work to  3 explore the ethnobotanical references for plants  4 where the use of these plant species is made in the  5 diet?  6 A    In my general area of work, yes, one would refer to  7 these particular articles if one was studying  8 species that produced berries and had an interest in  9 human use of those species.  10 Q    All right.  And you then proceeded to map these  11 various species.  Has the actual mapping of the  12 distribution and abundance of these species been  13 done before?  14 A    No, not their abundance, and nothing at this scale  15 in this particular part of the world.  16 MS. MANDELL:  All right.  At page 22 of your report you describe  17 the methodology and information sources which you  18 referred to in order to do the mapping.  And if I  19 could refer you to the soapberry map by way of  2 0 example --  21 MS. KOENIGSBERG:  Which number is that?  22 MS. MANDELL:  23 Q    This is map 3.  You say that in order to prepare  24 this map you reviewed the ecological and botanical  25 literature pertinent to the study region.  Did you  26 do that for this map?  27 A    That's right.  I tried to find all the papers that I  28 could that referred to soapberry --  2 9 Q    All right.  30 A    -- in western Canada.  31 Q    And to your knowledge, are there any sources that  32 you didn't refer to that you know about?  33 A    Certainly nothing of any -- the specie's name might  34 come up in a paper that it was noted with a slight  35 tick, yes, it was here.  I might not have found all  36 of those.  But anything that was particularily  37 relevant to this area or that described the species  38 in any detail, I think I found almost all of that.  39 Q    All right.  You then say that you examined -- you  40 did an examination of herbarium specimens at B.C.  41 Provincial Museum, Victoria, U.B.C. herbarium in  42 Vancouver, and Prince Rupert forest region herbarium  43 in Smithers.  What information were you able to  44 gather from the herbarium specimens?  45 A    What they have in the herbarium are pressed plant  46 specimens, and so those are actual documented  47 evidence that plants did indeed grow there at the 9606  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 time the sample was collected.  It shows the  2 location of the sample and a little bit of  3 description about the elevation, the site  4 characteristics.  So I went through those, and  5 primarily what I was looking for was anomalies  6 because people tend to locate species in locations  7 where they were unusual or unexpected.  So I wanted  8 to confirm that the -- that the herbarium specimens  9 did confirm the other data that I had.  So it was  10 supplementary information on where a species had  11 been collected and found growing in the past.  12 Q    All right.  You then at (c) you say that you did an  13 analysis of unpublished data collected in the  14 Ministry of Forests ecological classification  15 programme.  What data were you there referring to?  16 A    Okay.  When I was involved in this data collection  17 process, it was carried out throughout the province  18 and through all this area that was mapped,  19 ecological plots were put in.  And what it is, is  20 you arrive on the ground and you do a careful  21 description of all the plant species present, their  22 colour, their abundance, their vigor, the soil  23 conditions at the site and so on.  And that  24 information is available in the ministry offices on  25 handwritten forms.  It then gets put into a computer  26 data base and compiled so that you can have a quick  27 reference.  And that will tell you for the types of  28 ecosystems that were sampled where that species  29 occurred and how abundant it was and so on.  30 Q    All right.  31 A   And that was probably my primary data base for this  32 study.  33 Q    (d) you say you had:  "Discussions with informed  34 botanists and ecologists located throughout British  35 Columbia".  Can you recall with respect to the  36 soapberry map whether there were any botanists or  37 ecologistss who you may have consulted?  38 A    Yeah, I primarily did that in areas where data were  39 lacking or where I myself wasn't familiar with the  40 area.  For example, this northeastern portion here,  41 the Deas Plateau I talked to Del Meidinger in  42 Victoria.  He did quite exstensive field work in the  43 boreal forest there.  Down in the Chilcotin Plateau  44 I talked to Ray Coupe who is an ecologist with the  45 Ministry of Forests at Williams Lake, and he has  46 done exstensive field work there.  I discussed with  47 him within these elevation zones and within those 9607  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 biogeoclimatic units which occurred there how  2 abundant it was.  For this particular species that  3 would probably have been about it.  For other  4 species I talked to various other people.  5 Q    Generally when you were consulting with either  6 botanists or ecologists, what was the kind of  7 information which you were seeking from them?  8 A    I was seeking them to -- for specific geographic  9 areas, I had developed the biogeoclimatic map, then  10 I had reviewed the literature on that biogeoclimatic  11 unit how abundant the species was.  I was confirming  12 with them that, yes, indeed this was -- usually  13 between a certain -- when you map these things you  14 are looking at elevations.  This Chilcotin Plateau,  15 I can't say offhand what the elevation range is, but  16 you might say that soapberry is very abundant from  17 the valley up to maybe 1,000 meters of elevation.  18 And I would ask them that, and they would confirm it  19 or they would describe to me themselves how they  20 would describe the distribution in that area.  21 Q    All right.  And you mentioned finally that you  22 relied upon observations and information from your  23 field experience in a major portion of the study  24 area.  What is the extent of the observation and  25 information from field experience that you were able  26 to draw upon?  27 A    Well, I was born in the study area.  I've lived  28 there all my life.  I've always been a keen student  29 of natural history, whatever you choose to call it.  30 I started collecting plants in elementary school.  31 I've done a lot of berry picking, and that  32 progressed on.  And since 1978, I started working  33 with the Ministry of Forests.  We did field work  34 from the coast up to the Stikine area.  Throughout  35 these areas we collected data.  I've been working in  36 silviculture carrying out field surveys where you  37 walk up and down through clear-cuts and you make  38 notes of what plants grow there, areas before they  39 are logged.  I've spent weeks and weeks in the bush  40 climbing over the hills mapping different ecosystem  41 units on the ground and writing down what species  42 grow there and this is the data.  So I've been doing  43 that over the last ten years on and off in the  44 summers.  45 Q    All right.  46 A    That's the data base that I built on.  47 Q    And were there any areas where you mapped either 960?  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 soapberries or any of the other berries where little  2 or no botanical information was available to you?  3 A    That's right.  I described that in the report.  And  4 it's mostly these relatively inaccessible areas,  5 some of the higher elevations of the valleys.  This  6 central portion here the classification work hadn't  7 been completed by the people in the Prince George  8 area, so that was an area with relatively poor  9 information.  The Omineca Mountains, that kind of  10 area.  The Chilcotin Plateau, the work was just  11 starting in that area.  Those are the main areas.  12 There is relatively little direct field  13 information, not much in the herbarium.  What I did  14 in those areas is I extrapolated from the  15 biogeoclimatic maps.  There had been overview  16 flights of those areas.  There was information on  17 the tree species present.  You knew which  18 biogeoclimatic unit they were in and you make an  19 assumption that given the climate is similar, given  20 that the terrain is similar, it is in the same  21 biogeoclimatic unit, therefore we expect, in general  22 terms, the abundance of these species to be roughly  2 3 the same.  24 Q    Did you have to do any of that extrapolation for the  25 claims area?  2 6 A    Yeah.  And to some degree when you get into these  27 little ranges, I mean at this scale, you know, we  28 say we know what is here so therefore it is bound to  29 be there on a small scale.  And the upper parts of  30 the Skeena and Nass are areas that haven't been  31 extensively -- intensively studied.  But, yes, to a  32 lesser extent than other areas.  33 Q    And is this methodology which you've described with  34 respect to this soapberry map the same methodology  35 that you applied in the preparation of all the other  36 berry maps?  37 A    That's right.  I used the same approach in all of  38 the maps presented here.  39 Q    And is this accurate that each of the maps indicate  40 the capability of the landscape to support the  41 species given present-day climate and soil  42 conditions?  43 A    Yes, I'm talking at a very broad scale, abundant to  44 common, the landscape is capable of producing those  45 plants.  They are probably there, but at any one  46 particular point they may or may not be.  47 Q    So it's not a map which actually identifies each and 9609  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 every productive berry bush?  2 A    Oh, definitely not.  There is no data source like  3 that available.  4 Q    Now, in your report at page 22 you indicate that the  5 broad categories of abundance are shown as different  6 colours on the map.  You indicate red equals  7 abundant, yellow equals common, and blue equals  8 uncommon to rare.  Was that colour coding that  9 you've described in your report reproduced on the  10 maps or was it a different --  11 A    No, the colour scheme that I used was for my draft  12 maps which I did in those bright primary colors.  13 And when I submitted this report, these maps were in  14 the process of being prepared.  I requested that  15 they use the same colours, but I guess for one  16 reason or another other colours were used.  So I see  17 they've used a blue where I've used a red.  They've  18 used a grey where I've used a yellow.  They used  19 kind of a greenish where I used a blue.  So there is  20 a discrepancies there.  21 Q    All right.  It's a brown, I think.  22 A    Well, yeah.  23 Q    All right.  These categories, that is abundant, and  24 common, and uncommon to rare on the maps that you  25 prepared and as reflected in the exhibits maps,  26 these categories are relative to the distribution  27 characteristics of the individual species, and they  28 cannot be comparing the abundance of two different  29 species; is that correct?  30 A    That's right.  Each of the species is -- has  31 slightly different characteristics.  Some might  32 occur, you know, uniform dense cover under the  33 forest or in an opening.  Another one might just be  34 the odd scattered bush here and there.  So if it's  35 blue on this map, it doesn't mean the same amount as  36 blue on this map.  In fact, there may be more bushes  37 in the second category.  So I can't quantify any of  38 this.  This is all just general categories, relative  39 abundance.  It is not quantifiable because the data  40 isn't there.  You can't say pounds per hectare or  41 any of that.  You can't put numbers to them.  And so  42 I didn't want anyone to interpret it to mean there  43 is more blue huckleberry here than there is  44 saskatoon because the other is blue and the other is  45 grey.  46 Q    All right.  Now, at the top of the map 3 there is  47 provided in the description of the species notes 9610  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 which described the distribution, habitat, response  2 to disturbance and so on.  Is this information which  3 is provided at the top of the map 3 information  4 which you generated in the preparation of your  5 report?  6 A    I wrote a section on each of the species and it's in  7 here.  It was abstracted and put here by the  8 cartographer.  It reflects the information in my  9 report, but is more concise and doesn't have the  10 citations.  11 Q    And is the species description that you wrote in  12 your report found at pages 36 to 51?  13 A    Yeah.  Page 36 to 51, the material that I wrote.  14 And that was taken and put onto this legend here on  15 the map.  16 Q    And would it be your view that the description of  17 the species in the text of your report is more  18 complete than that which appears on the map?  19 A    Yes, I think it's more complete.  2 0 Q    All right.  So you would read the two of them  21 together in order to get the complete description  22 for each of the species?  23 A    That's right.  24 Q    All right.  And is this true for each of the other  25 berry maps?  26 A    Yeah, they are basically the same format on each of  27 the same species.  28 Q    Now, I wonder if you could take us through the  29 soapberry map which is found at map 3, and if you  30 could indicate with reference to the map and the  31 colour coding there what that map indicates about  32 soapberries?  33 A    Okay.  The first thing that I look at if I looked at  34 this map is where doesn't it grow.  And where  35 soapberry doesn't grow in northwestern B.C. is on  36 the outer coast.  And this area is a very wet  37 climate, very relatively infrequent disturbance by  38 fire.  A lot of old growth, forest of hemlock,  39 cedar, true firs and so on.  Other areas where you  40 see that it doesn't grow are these high elevation  41 areas.  The upper elevations of the Engelmann spruce  42 and alpine fir and the alpine tundra.  It tends to  43 be concentrated in the valley bottomes, and it tends  44 to occur inland of the coastal mountains.  If you  45 get some of these coastal valleys like out towards  46 Terrace, the Nass River, it moves a little bit  47 closer to the coast in the broad valley bottom 9611  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 areas.  But, in general, it's absent from the coast.  2 Then in the areas where it is present the  3 three colours will give you a rough idea of how  4 abundant it is.  And the most abundant in the  5 interior plateau and in the boreal forest in the  6 north.  In the valley bottoms, the lower elevation,  7 I don't want to say an elevation offhand, I may have  8 written something in my description.  But the  9 sub-boreal spruce zone is where it is predominately  10 found, the boreal white and black spruce zone.  And  11 also in the ICHg 3 variant, it is quite abundant in  12 that one as well.  So in the valley bottoms and the  13 Chilcotin Plateau.  You also found it in other areas  14 of the ICHg, that's that hemlock cedar forest, the  15 mid-elevations and some of the wetter areas, but  16 there it is less abundant.  And then as you get into  17 these higher elevations or slightly more coastal  18 valleys.  You get it scattered generally in open big  19 wide valleys where there is some history of fire.  20 Perhaps the climate is a little drier just because  21 of the nature of the topography or there has been  22 some burning for some reason or another.  Quite a  23 bit of disturbance.  This is a species that seems to  24 thrive on regular disturbance, so you do get it  25 scattered about in those kinds of places.  26 Q    All right.  I'm going to take you back into the area  27 of disturbance and fire in a more general way after  28 we identify the different maps.  If you could turn  29 to map 4.  And with reference to the same, could you  30 assist the court in reading map 4.  31 A    Something similar to what I just did with the  32 soapberry?  33 Q    Yes.  34 A    Okay.  This is saskatoon or it is also known as  35 service berry.  And again this is a species that is  36 more abundant in the interior areas.  It is found  37 throughout from the north to the south of the study  38 region.  The main areas where it is absent like  39 soapberry is the outer coastal areas, really wet, a  40 lot of very acidic soils, thick organic layers.  It  41 doesn't grow well in those kind of conditions, lack  42 of disturbance.  In those kind of areas it tends to  43 be totally absent.  Also high elevations.  This  44 species gets less and less common as you go up in  45 elevation from the valley floor upwards.  And so  46 when you get into the subalpine forest you generally  47 don't find much of it, and certainly very uncommon 9612  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  MS.  MANDELL  14  THE  COURT:  15  16  17  THE  WITNESS  18  THE  COURT:  19  THE  WITNESS  20  21  22  23  THE  COURT:  24  THE  WITNESS  25  26  27  THE  COURT:  28  THE  WITNESS  29  THE  COURT:  30  THE  WITNESS  31  32  33  THE  COURT:  34  35  36  THE  WITNESS  37  38  THE  COURT:  39  40  41  THE  WITNESS  42  THE  COURT:  43  44  THE  WITNESS  45  46  47  in the alpine tundra.  So it's a similar pattern to  the soapberry except that it comes down further into  these coastal valleys.  You can find it in Kitimat,  and close to Prince Rupert you can find the odd bush  here and there.  It's a little more sensitive to the  elevation.  So it's really concentrated into the low  elevation areas where agriculture is common.  The  SBSd, the ICHg 3, and less abundant once you are in  the mid-elevations that I described as important for  logging earlier.  It again requires frequent fires,  so with more frequent fires it tends to be more  abundant.  :  And map 5 the highbush --  Before you leave 4, what has happened up here in the  extreme northwest?  Obviously the map has been  superimposed or pieced together?  :  That's Alaska.  Well, some of it is?  :  Oh, there is a chunk.  Oh, I see.  Right.  I'm  sorry.  Yeah, the map -- my draft maps I used a  different map base and I followed this line of  longitude when I produced the map.  Yes.  :  And so when he decided to go to a common scale, I  guess for all the maps there wasn't a perfect  overlap between what I had drawn.  Yes.  : And what the final mapping area was.  These notations "not mapped", does that mean --  : I didn't do any work on that.  I did not map that  area because it was not on my base map that I  prepared.  But your maps wouldn't have stopped just at a  line -- for example, in the very far north where you  have a heavy --  : It's not that the berry is not there, it's just  that —  Well, up in the Swift River area and just east of  Teslin Lake, you've got an area that's quite -- it's  abundant to common, isn't it?  : Mh'm.  Your mapping would have continued further west,  would it?  : I'm sorry, I don't think -- I did never map the  Atlin area because I -- if you see my original maps,  what I did was I had it blown up.  I cut the edges  because I think I was given rough lines of longitude 9613  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1  2  3  4  THE  COURT:  5  THE  WITNESS  6  7  8  9  THE  COURT:  10  11  THE  WITNESS  12  13  14  THE  COURT:  15  THE  WITNESS  16  17  18  THE  COURT:  19  THE  WITNESS  20  21  THE  COURT:  22  23  THE  WITNESS  24  25  THE  COURT:  26  27  THE  WITNESS  28  29  30  THE  COURT:  31  MS.  MANDELL  32  Q  33  34  A  35  36  37  38  39  40  41  42  43  44  45  46  47  and latitude that they were interested in, and so I  was mapping up to this line of -- this is a line of  longitude.  I see.  : And when I hit the edge of that map, I didn't map  anymore.  But when they transferred my information  to this map it's here, whereas in my map there is  nothing here but background.  I would assume if you would have continued on, your  lines would have been less regular than this?  : Yeah, you would have had a similar pattern where it  peters out.  This grey would have carried on a  little ways.  Thank you.  : But I didn't do any mapping of that.  Strictly an  administration problem, not a biological.  That  doesn't project biological phenomenon there.  But you did map down around Port Simpson?  : Yes, that was part of the study area that I was  given to do.  That was east of the -- that was on the maps --  shown on the maps that you did work on?  : See, if you continue this line of longitude on Port  Simpson is to the east of it.  Yes, but I see there is an area just east of Port  Simpson.  : That's Alaska.  And the reason I didn't do anything  with Alaska is I've only work in Canada.  The  classification has only been done in Canada.  Yes, thank you.  If you could turn to map 5.  Could you describe this  map?  Okay.  This is highbush-cranberry.  Highbush-cranberry is found throughout the study  area except on the real outer coast.  And I was  talking about the outer coast with the previous two  species.  But in this case, this species occurs  right out to the salt -- to the sea level, but you  don't tend not to find it on those low lying islands  that lie off the coast of Prince Rupert.  It's also  not found at high elevations in the upper elevations  of the subalpine forest and in the alpine tundra.  So again it is primarily a species of valley bottoms  and mid-elevation slopes and it peters out as you go  up in elevation.  It's a species that occurs sporadically in the 9614  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 forest on the coast in areas of disturbance, in very  2 moist productive ecosystems where the soils aren't  3 excessively acidic, where there is not a huge  4 build-up of organic matter, so along flood plains  5 and so on.  As you go inland, the soil is not as  6 acidic and you don't get the big build-up of organic  7 matter.  There is relatively frequent fire  8 disturbing the soils and so on, and it tends to  9 occur more widely.  And it is most -- it is very  10 abundant in the boreal forest.  This pattern is  11 quite similar to what we saw with soapberry and  12 saskatoon.  Very abundant boreal forest.  Very  13 abundant in the low elevations in the ICHg zone,  14 that's the transitional forest and have extremely  15 abundant in the sub-boreal spruce zone.  The  16 mid-elevation forest, the coastal western hemlock  17 zone and the lower elevations of the Engelmann  18 spruce, subalpine fir zone it's present but not very  19 common.  20 Q    And it's a species which, according to your map, is  21 more abundant in the claims area than on the coast?  22 A    Yes, you can see that.  There is quite a bit of the  23 blue within the boundaries of this black line, but  24 there is relatively little blue out to the west.  25 And that's because, as I said, the climate is a  26 little wet, a little rainy, and the forest -- with  27 the absence of forest fire you get these old growth  28 forests.  Highbush-cranberry is relatively uncommon  29 in these old growth coastal forests.  30 Q    If you could turn to map 6, the dwarf blueberry.  31 Could you explain this map to us?  32 A    Okay.  This is an interesting species because it  33 grows all throughout B.C. and throughout the study  34 area here.  There is not any area where you won't  35 find it growing on some kind of an ecosystem or  36 another.  But it's a species that seems to compete  37 poorly with other plants, and therefore it starts to  38 show up on relatively unproductive ecosystems where  39 other plants don't grow well.  So it can -- you can  40 find it out on the rainy coast.  You can find it up  41 north.  You can find it in the interior.  It tends  42 to be most abundant on very dry, poor sites, shallow  43 soils, rocky soils or very wet like bogs.  You find  44 it on bogs.  Unlike the other species, this one  45 grows in the alpine tundra.  If you are up hiking  46 around in the alpine tundra you will see a lot of it  47 up there because again it is a harsh environment, 9615  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  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  COURT:  WITNESS  COURT:  WITNESS  COURT:  WITNESS  MS.  MANDELL:  Q  A  other species grow poorly and this specie seems to  grow well.  It is kind of interesting that way.  And  so what you find is it is all over the place.  It is fairly hard to map this one because you  need to know how frequent those low productivity  ecosystems are.  And out on the coast there is a lot  of these bogs where it grows, so it is moderately  common there.  As you move inland, those types of  ecosystems become less abundant, the slopes are  steeper, it is not as wet, there is fewer bogs so  there is relatively little dwarf blueberry.  When  you move inland the forests of the ICHg 3, again,  and the SBSd, these low valleys, relatively dry  climate, open stands of pine are very common.  And  open stands of pine with relatively frequent fire is  one place where dwarf blueberry is quite abundant.  That's as abundant as you are ever going to find it  is in these open interior type forests.  As you move  north, for some reason or another, it is not present  in that kind of forest, I don't know why.   It's  around, but not very common.  It again is dominant  in the valley bottoms of the ICHg 3 and the SBSd,  and relatively uncommon as you move in higher in  elevation depending on the availability of suitable  habitats and disturbance patterns.  Are these the blueberries we would find on Grouse  Mountain down here?  : Grouse Mountain.  Well, there is a lot of  different -- it certainly would be there, but it is  just a tiny low growing thing with little pale  blueberries.  No.  : You tend to pick other species, some of the other  ones that would be more common up in Grouse  Mountain.  These are just really low?  :  Yeah, the bush is about this high.  They are tiny  little blue ones and they grow in little clusters.  They are hard to pick.  If you could turn to map 7, the black huckleberry.  This one was a tough one to map because it's an  oddball.  It grows in a real wide range of areas and  very often it's found as a kind of band at the upper  elevations of the forest.  As you are moving into  the tundra there is an area called the krummholz  zone.  And even on the coast, in the coastal forests 9616  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 around Terrace, Kemano, through that area, if you go  2 up in the mountains.  It won't be found in the  3 valley.  You go up and up in elevation and then  4 there will be this band.  And in fall you will see  5 it because it has bright red leaves in fall.  And it  6 is very common at the highest levels of the forest  7 just before you go into the alpine.  So it is funny  8 it is found at that elevation.  9 Lower down in the coastal forest around  10 Terrace and that you will find it on very poor  11 forests, unproductive -- like gravel outwash  12 terraces, poor, dry soil areas that tend to grow  13 pine or don't have the big spruce trees and hemlocks  14 and so on.  You might find the odd bit of black  15 huckleberry growing there, and so I've got that  16 mapped as uncommon to rare.  Once you get to the  17 outer coast it is completely gone.  When you move  18 inland that's where you get into the areas where  19 black huckleberry really grows well and the area of  20 the sub-boreal spruce zone and Englemann spruce  21 subalpine fir zone.  And in those two zones as you  22 increase in elevation, it becomes more and more  2 3 abundant.  24 This is a hard species to describe because it  25 is a really odd patterns in different areas.  In the  26 main valleys of the ICHg 3 and the SBSd, which I  27 have talked about quite a lot in reference to  28 saskatoon, soapberry, dwarf blueberry, in those  29 areas it is relatively uncommon.  A little dry  30 climate, possibly too frequent fire.  I don't know  31 what the reasons are, but those lower elevations it  32 seems to be relatively uncommon.  As you increase in  33 elevation it gets more and more abundant.  It is  34 most abundant in the subalpine forest and just up  35 the timber line.  As you go north, for one reason or  36 another, it is not as abundant as it is further  37 south.  It's there and frequently there in timber  38 line areas again, but not found right in the valley  39 floor very much.  It tends to be the mid to high  40 elevations and absent from the highest elevations of  41 the tundra.  42 Q    And if you could turn to --  43 A    This is dominantly an interior species.  44 Q    If you could turn to map 8 the oval-leaved  45 blueberry.  46 A    Okay.  You should see a real contrast between this  47 map and the ones we've gone through before.  Those 9617  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 were dominantly all species that were most abundant  2 interior, east of the coastal mountains.  This  3 species oval-leaved blueberry is a predominately  4 coastal species.  It is relatively nice to map  5 because what I found working is that the  6 distribution and abundance relatively parallels of  7 that of western hemlock.  So it's fairly easy to  8 find out where western hemlock grows.  And generally  9 what you find out is where western hemlock grows so  10 does over-leaf mountain.  Western and mountain  11 hemlock, pardon me, both species.  So very abundant  12 on the coast, from the outer coast to the inner  13 coast, from sea level right up to the timber line it  14 is very abundant in the forest understory.  These  15 typical coastal old  growth forests have lots of  16 oval-leaved berry in them.  17 As you move inland, it gets drier and colder  18 and the hemlock starts to drop out.  You are into  19 the interior cedar hemlock growth zones and a lot of  20 those stands have scattered oval-leaved blueberry,  21 but not very much.  And I think to a great extent  22 this reflects fire frequency and also climatic  23 factors.  The species is adapted to relatively  24 infrequent disturbance.  The longer the time period  25 between fires the more it comes in.  And so you have  26 it gradually disappearing as you get into the  27 colder, drier climates and areas with more frequent  28 fire.  So completely absent from the valley bottom  29 in the transitional zone, a little bit found in the  30 mid-elevations and a little more abundant in the  31 higher elevations.  As you move into the true  32 interior or the north, it is completely gone.  Just  33 as there is no hemlock, there is no oval-leaved  34 blueberry.  35 Q    If you could just look at the map around New  36 Hazelton, there appears to be an abundant area in  37 and around the New Hazelton area.  Is that the  38 furthest -- is that the furthest east that the  39 abundant zone is that you were able to identify?  40 A    Yeah.  What you have there is these sorts of what we  41 call enclaves of seemingly coastal forest or  42 something.  The way those -- there is a band of  43 mountains there, the Hazelton Range there, Rocher  44 Deboule and various mountains and some north and  45 east facing valleys.  They are very sheltered.  The  46 forest in there is quite old.  I think the fog and  47 the rain hanging there they get a lot more 961?  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 precipitation.  They are cool and moist and you go  2 in there and you get a lot of species there that you  3 typically find on the coast.  And it is quite unique  4 and quite interesting to find this type of forest so  5 far inland.  And then you go in there and there is  6 tons of this oval-leaved berry and a lot of other  7 coastal plants like salmonberry that drop out.  They  8 are not found in the valley.  And so you can see it  9 is on the east side of the mountains.  The other  10 side has been burned off a lot and it is much more  11 exposed and rocky and you don't get those berries  12 growing there.  13 Q    Do you know where the Blue Lakes area is?  14 A    Yeah, that's the Blue Lakes up from the -- what's  15 the name of the big mountain that you see there, up  16 towards there.  That's the type of typical area that  17 big stands of oval-leaved blueberry.  18 Q    And is that where you are saying there is  19 oval-leaved blueberry?  20 A    Yeah, there is lots of oval-leaved blueberry up  21 there.  Get out of the main valley floor and start  22 the climb and you get good stands of oval-leaved  23 blueberry up there, just as though you were around  24 Terrace, same kind of vegetation.  25 Q    If you could turn to map 9.  26 A    This is Alaska blueberry, and again it is a dominant  27 coastal species.  It is the single dominant  28 understory species in the climate of the north coast  29 of B.C.  If you go into a stand of old growth  30 coastal forest out at Prince Rupert or out at  31 Kitimat or something like that, Ocean Falls, it is  32 the dominant shrub you'll see around.  And also if  33 they cut the trees down after logging on a  34 clear-cut, the dominant shrub you'll see is Alaska  35 blueberry.  And it grows together with the  36 oval-leaved blueberry, but it tends to be more  37 common.  And it's distribution is very similar to  38 the distribution of another tree, Amabilis fir.  So  39 again it is relatively easy to map because you can  40 be fairly certain that if you find Amabilis fir you  41 will find Alaska blueberry growing.  It doesn't  42 penetrate very far inland.  As soon as you lose the  43 Amabilis fir strong coastal influence, the heavy  44 snow, the heavy rainfall that Alaska blueberry seems  45 to drop out.  And you can see that on this map that  46 it doesn't go as far inland as the oval-leaved  47 blueberry.  Again this one is found from sea level 9619  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q  A  Q  A  THE COURT:  THE WITNESS  THE COURT:  THE WITNESS  MS. MANDELL:  Q  A  up to the timber line.  It is found in the krummholz  around the little stunted shrubs you get just before  you get into the true alpine tundra.  Is this the kind of berry that might be found around  Grouse Mountain?  Oh, yeah.  Those last two species, oval-leaved  blueberry and Alaska blueberry should be found as  you climb -- I'm not that familiar with the  vegetation around Vancouver, but I would say at the  higher elevations around here you should find those  two species.  And once again, this specie is abundant or common  around the New Hazelton?  Yeah, that's the same, like I said, those enclaves  of coastal forest.  They include both the  oval-leaved and the Alaska blueberry because --  well, because -- you see that there is a lot of the  Amabilis fir in there so you would expect to find  this.  And when you do go there you see it, it is  quite abundant.  Well, you don't show it at Hazelton, do you?  :  There is that little group that is kind of grey.  I called it common.  I didn't call it abundant.  Yes.  : It is less abundant than on the outer coast, but it  is there in the stand.  Oval-leaved blueberry is  probably a little more abundant relatively.  You've  lost it anywhere else.  You can't find it -- in  general, it is hard to find that species around  Hazelton except in that area there.  And finally the red huckleberry on map 10.  Okay.  Of all the species that I mapped this one is  the one that's most strictly coastal and seems to be  very much confined to areas of mild climate, low  elevation.  This is a species that grows a lot  around Vancouver.  And as you get further north it  becomes -- other types of huckleberries seem to  become more important.  It doesn't go very far  inland.  It doesn't go very high in elevation.  The  low elevation coastal forest is where you find it in  the valley bottoms.  A little bit up to the slopes,  but not into the subalpine.  But if you do find it  in the subalpine, it's very small and stunted.  You  don't get a good understudy of it.  It isn't as  abundant as the oval-leaved and the Alaska except on  the far outercoast where it is very often the most 9620  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 common or just as common as the other two.  So it  2 doesn't seems to penetrate much into the -- into the  3 land claims area.  Just a little bit on the western  4 edges in these coastal type stands of coastal  5 west -- in the coastal western hemlock zone.  6 Q    Okay.  Now, throughout this mapping series, and I am  7 going to, for the purposes of this discussion, draw  8 you map to the first map that we were earlier  9 talking about which is map 3.  You have earlier  10 identified that the map indicates whether a site is  11 inherently capable to produce a berry crop of that  12 kind.  Could you explain what factors contribute to  13 whether a site is inherently capable to produce a  14 berry crop?  15 A    Okay.  When I talk about inherently capable, I was  16 thinking of under more or less the natural  17 processes, the natural environment that we see.  18 When we go out in an area that hasn't been too  19 heavily influenced by man.  Let me think.  The  20 species distribution is determined by climate.  And  21 then within an area where the climate is suitable  22 for a plant to grow, if it's not too cold, not the  23 too wet, et cetera, the soil conditions are  24 important.  And the soil is determined partly by the  25 climate.  If it rains a lot, the soils are very  26 different from where there is very little rain.  It  27 is determined partly by the position in the  28 landscape, in other words a flood plain and so on.  29 But they are also determined to a great extent by  30 disturbance.  And the natural patterns of  31 disturbance also affect whether an area is cap --  32 I'm not explaining this very well.  So I would say  33 climate, soils, and natural patterns of forest  34 succession.  35 THE COURT:  Natural patterns?  36 THE WITNESS:  Patterns of forest succession.  Some of the  37 species have adapted to conditions where  38 disturbance, natural disturbance, occurs very  39 infrequently on the order of once every thousand  40 years, once every 800 years where forests allowed to  41 grow older and older and become very old and the  42 stands break up and there are small openings, blow  43 down is the main -- is the main disturbance factor.  44 Some of those species thrive in that kind of an  45 environment.  They build up over long periods of  46 time, the shrubs get more and more -- grow larger  47 and larger and take over.  When there is frequent 9621  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  THE WITNESS  THE COURT:  THE WITNESS  MS. MANDELL:  Q  A  Q  A  A  disturbance, they are wiped out and replaced by  other more aggressive species, if you can picture  that.  And for -- those species would be called late  successional or typically climax species.  And red  huckleberry, Alaska blueberry, and oval-leaved  blueberry are species that I would categorize as  those kind of species.  Sorry, which?  :  The climax species are late successional species.  They become abundant when disturbance is relatively  infrequent.  And the ones you put in that category again?  : Alaska blueberry, oval-leaved blueberry and red  huckleberry. Am I getting a little carried away  with this answer?  No, it's just fine.  So you have to consider whether the climate is  suitable, whether the soils are suitable, and the  natural pattern of disturbance, which is to a great  extent determined by climate and topography.  This is to determine whether or not the site is  inherently capable to produce a berry crop?  That's right.  So that over the whole landscape, is  this an area where old growth forests predominate  where there is relatively infrequent fire and so on.  In this case the soils would be acidic with heavy  growth of organic matter, lots of bleaching from the  heavy rain, it is relatively mild and it tends to  snow before the soils freeze, and all of these  conditions would tend to be inherently capable sites  for Alaska blueberry, oval-leaved blueberry and red  huckleberry.  I was using that as an example.  I got  a little sidetracked there.  Okay.  What factors contribute to whether there is  actual production at any site inherently capable of  producing a berry crop?  That then would depend on the actual nature of  the -- the condition of the forest and what stage in  time it was.  That's what we call the process of  natural succession.  After a disturbance, you can  either clear the landscape completely of plants and  see what grows back and the plants grow back over  time or you can cause a light disturbance so some  plants are left surviving, maybe the shrubs and the  trees are gone.  And if a site is inherently capable  of producing that plant it may not happen because 9622  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 there has been a disturbance such as a landslide  2 which has wiped it out, and it hasn't had time to  3 grow up.  In some cases some species they will grow  4 back very quickly and other species will take a long  5 time to grow back.  So the nature of disturbance,  6 the frequency and intensity of disturbance on a  7 particular site will determine whether or not it is  8 present, given that the climate are suitable and the  9 soils are suitable.  10 Q    Given that there is an inherent capability and there  11 is actual production at a site --  12 A    We are talking about berries here?  13 Q    Yes.  14 A    I was talking about the shrub.  I wasn't talking  15 about the berry.  16 Q    I'm talking about the shrub too still.  17 A    Okay.  18 Q    Now I would like to talk about the berries.  19 A    Okay.  20 Q    And ask whether or not given a productive site do  21 the berry crops vary in quality and quantity from  22 year to year at the same location?  23 A    Yeah.  Well, the ability of the shrub to produce  24 berries would again on its vigor or its health.  A  25 healthy berry shrub can produce fruit and if it's a  26 little wimpy thing -- pardon me.  But from year to  27 year you do get quite a bit of variation.  And there  28 isn't a lot known about the quantity and quality of  29 berry production from year to year.  There has been  30 very little work done with these native species.  31 But a variety of thing such as weather factors, say  32 early in the year when it is flowering there is a  33 frost kills the flowers or it might kill the  34 pollinators, that could affect how many berries are  35 produced that year.  A drought later in the year  36 could cause the berries to shrivel up, or heavy rain  37 might cause the quality to be very poor if -- there  38 is very little written on this topic.  Activities of  39 damaging agents such as insects, pests and so on can  40 really affect both the quality and quantity in a  41 given year.  42 Q    All right.  Now, with respect now to the question of  43 the factors contributing to whether there is actual  44 production at any one site, there you mentioned the  45 question of disturbance.  I wanted to ask you  46 whether or not fire is one of those disturbances  47 which may influence the growth of a plant at a site 9623  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  MS. MANDELL  THE COURT:  MS. MANDELL  Q  that's inherently capable of producing it?  Oh, yes, fire.  Over most of the study area, fire  would be the single most important growth factor in  the natural environment.  All right. At page 23 of your report which is  found at tab 2, I wonder if you could have it --  Page 23?  Yes.  You there mention that:  "Fire is the most widespread form of  natural disturbance in northern ecosystems  and has a profound influence on the  composition of natural vegetation."  And then you pose for yourself questions of fire  ecology and fire history that are relevant to this  study.  First of all, could you explain what is fire  ecology?  A    Fire ecology is the study of how organisms are  affected by fire and influenced by fire and how  they -- how fire affects their environment and how  it affects the plants and animals that grow and live  in that environment.  Q    All right.  A   And in that it includes human use of fire because  humans are organisms.  Q    And in the study of fire ecology and fire history,  is it then common or accepted as a method of  studying fire ecology to investigate the human use  of fire in an area?  A    Oh, yeah.  I think in the large parts of the world  human -- humans are the main ignition source of  fires.  And so, yes, human use of fire and human  fire practices are a big part of the fire ecology.  Q    And also is it common to question, when you are  examining fire ecology, settlement patterns?  A    Well, yeah, if we wanted to know -- generally  speaking where there is more people, there is more  fires lit by people.  I mean you tend to find that  correlation.  And so a settlement pattern is  important if you want to look at the amount of fires  set by humans.  Q    And is there such a thing as a fire ecologist?  A    There is.  There is a fire ecologist -- one person  who is specifically a fire ecologist in British  Columbia.  There may be more, but John Parminter is 9624  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1 the only one that I know.  There are fire ecologists  2 at many of the universities.  3 Q    And you are not a fire ecologist?  4 A    I am a forest ecology and I have studied fire  5 ecology.  It is something that interests me a great  6 deal, but it is a sub-discipline.  7 Q    And in the study of forest ecology, is it in your  8 view important to have a working knowledge of fire  9 ecology?  10 A    Oh, yeah, definitely.  I don't think a person has  11 the true understanding of the dynamics of forest  12 ecosystems without understanding the role of fire.  13 Q    On page 23 at the bottom of the page you identify  14 some specific research which you sought out and made  15 reference to on fire ecology of the study region.  16 A    Mh'm.  17 Q    Why did you make reference to those particular  18 sources?  19 A    Well, I looked for literature that was relevant to  20 the study area, and there is very little that has  21 been done.  In terms of actual experimental  22 research, there was John Parminter did a study in  23 the IDF, the interior douglas fir, right down the  24 far south in the Chilcotin and that's just sort of  25 right on the edge of this map.  But that is the only  26 specific fire ecology research that had been done at  27 the time that I wrote this paper.  The others are  28 some areas from outside that seemed to be relevant  29 because they are similar forest types and then there  30 was some review papers and studies.  31 Q    All right.  If you could turn to the map at page 25  32 which is marked figure 1, could you explain to us  33 what that figure represents?  34 A    What this is is I got this from the forest service  35 vax system.  What they do is whenever there is a  36 fire it gets entered into the computer, the location  37 of the fire, the size that the fire burned to and  38 the ignition source, whether it was a lightning fire  39 or a man-made fire.  And I requested a printout for  40 the Prince Rupert forest region, and the boundaries  41 are on here, but you can't see it very well because  42 it is black and white, to printout all of the  43 lightning cause fires over the period 1975 to 1984.  44 And that meant -- this was the map that was produced  45 by that computer data base.  46 Q    All right.  You mentioned that you received a  47 printout on the Prince Rupert -- about the Prince 9625  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1  2  3  4  A  5  6  7  8  9  THE  COURT:  10  THE  WITNESS  11  12  THE  COURT:  13  THE  WITNESS  14  15  16  17  18  19  20  MS.  MANDELL  21  Q  22  23  A  24  25  26  27  28  29  30  31  32  33  34  THE  COURT:  35  THE  WITNESS  36  37  38  THE  COURT:  39  40  41  THE  WITNESS  42  43  44  THE  COURT:  45  46  47  THE  WITNESS  Rupert region.  Would all of the marks that are left  of a line that's roughly squiggling up and down the  map, is that the region that we're talking about?  The Prince Rupert forest region goes from the Yukon  border down -- down to Smith Inlet here, so it's  pretty much the same at the south end.  The east end  it doesn't include the Sustat and the Stewart Lake  and all those areas.  Where do you say Smith Inlet is?  : Down here.  Smith Inlet is this one, I think where  they have got the one --  South of rivers?  : South of rivers.  And it includes most of the  Skeena and Nass watersheds, the Stikine watershed  and some of this northern area.  So it's a roughly  similar study area to what we have here.  But  because of the administrative boundaries are  different, I couldn't get a printout of just this  area.  And if you could turn to figure 2 and explain to us  what that figure represents?  Okay.  I developed a really rough classification of  fire frequency zones.  I based that on the data from  here and my knowledge of the biogeoclimatic units,  my discussions with John Parminter and also a paper  that he wrote.  And those zones are based on how  frequent the natural fires occur, the types of fires  that occur, and how the fire cycle, that is how  often a given area could be expected to burn, how  every 100 years, every 300 years and so on.  And  there is a table that shows the characteristics of  those fire zones.  These are all lightning fires, are they?  : I called it "Natural Fire Frequency Zones", and I  don't choose to distinguish -- yeah, basically you  say if it's not lightning it tends to be man caused.  Well, you have figure 1 -- I don't know if it's one  or 2, but on page 25 those are lightning fires, are  they not?  : Those are only lightning fires.  I could have  produced a map of man caused fires, but I chose not  to.  But then you told me, I think, that you took the  information from page 25 and put it on 26, so those  would all be lightning fires?  :  I also incorporated information on the climate and 9626  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MS.  MANDELL:  Q  A  THE  THE  COURT:  WITNESS  THE COURT:  MS. MANDELL:  Q  A  THE  THE  COURT:  WITNESS  THE  THE  COURT:  WITNESS  THE COURT:  so on.  Yeah, I guess they are generally lightning  fires.  It is more general than that.  I say  "Natural Fire Frequency" which, yeah, lightning  fires.  Are there any other natural fires not lightning  fires?  Well, the problem that I'm having is that  historically ecologists have tended to include  aboriginal fires as parts of the natural fire  regime.  They can't separate out what happened in  the past, whether it was set by a lightning ignition  source or by aboriginal man.  And so when you talk  about fire cycles and you talk about fire history  and when they talk about the fire history of the  boreal forest in the literature, they don't say it  is only lightning fires.  So I don't want to be  pinned down to that, although because I am talking  about present-day it is probably just lightning  fires.  The map on page 26 describes it as a lightning  frequency map, is it?  Yeah, that's lightning fire.  This fire frequency  zone refers to an ecologocal fire regime.  It  doesn't just say there are more pluses on this part  of the map than on that.  It encompasses much  broader things.  It encompasses what the terrain is  like, what the climate is like, also the data on the  other maps.  I'm sorry.  All I want to know is whether I can rely  on the heading on the map.  This says Ministry of Forest --  Oh, I'm sorry, I used this as a base map and I  didn't cut the legend off.  So strike out the word "lightning"?  Yes, please do.  I understand now.  I used that  base map.  They gave me a blank one, and I just  photocopied it and the legend came out on there.  The scale is correct, but there is no lightning  locations showed on that map.  Pardon me, I didn't  understand.  So the one on page 26, figure 3 --  There has been a bit of confusion with the  reproduction of this report.  The map on 26 should it be called "Natural Fire  Frequency Zones"? 9627  S. Haeussler (For Plaintiffs)  In Chief by Ms. Mandell  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  WITNESS  COURT:  WITNESS  COURT:  WITNESS  It should be called fire frequency zones.  Fire frequency zones?  Yes.  So that's fires from all causes.  I don't feel like being too pinned down.  Generally only lightning fires, yeah.  I'm just  talking in broad terms.  The human caused fires tend  to follow the same pattern as the lightning fires,  and I didn't want to get into too much detail on  that.  But they are much more influenced by  population density and so on.  I think we will take the afternoon adjournment if we  can now, please.  REGISTRAR:  Order in court.  Court will recess.  (PROCEEDINGS ADJOURNED AT 3:00)  THE COURT  THE  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein to the  best of my skill and ability.  LISA FRANKO, OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD.  (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  Order in court.  Mandell.  THE REGISTRAR:  THE COURT:  Ms,  MS. MANDELL:  Q   Thank you.  We were trying to sort out the fire  frequency zone map which occurred on -- which was  found at Table -- or Map 2, page 26.  Could you 962?  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  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  explain how you determined a fire frequency zone?  A   These are very general, and they're based partly on  the information from the lightning map on page 25  and -- and partly from discussions and the paper  written by John Parminter, in my discussions with  him, and also on general knowledge about the  biological unit -- biogeoclimatic units, the zones  and subzones found within those areas and the age  class structure of the forest.  And what I mean by  that is if an area is predominantly -- is dominated  by forests of say 800 years old and very -- very  little forest of 200 years old or less age, you can  infer something about the frequency of past fires.  And, for example, in -- in area A you have  predominantly -- area A you have predominantly old  growth forests of age, over 300 years, trees in  those stands that may be 800 years plus age.  You  can infer that there is not a frequent history of  fire coming in burning down every hundred years or  there would be very few stands of that age present.  In contrast, in area E the forests tend to be 150  years or less of age and so you can infer from that  that there is a relatively frequent history of fire.  So information such as that was used too.  These are  very crude and general categories about the nature  of the fire regime.  THE COURT:  Where do I find the legend?  THE WITNESS:  The legend is Table 4 on page 27.  And I talk  about fire frequency in very broad terms, about the  approximate fire cycle, and then I categorize the  fire regime using the classification developed by  Heinselman.  And I make a few comments about the  types of forests that you see and speculate about  the frequency of fire in those zones.  MS. MANDELL:  Q   And because Table 2 referred to the various  descriptions of the forests which gave rise to your  data base as to whether or not there had been  frequent or infrequent fires there, is it for  that -- is it because of that factor that you were  not able to identify whether the fires had all been  caused by lightning or by other sources?  A   That's right.  If you use the age class structure of  the forest to infer something about the frequency of  fires, you don't know the origin of the fire.  The  stand is 200 years old.  You don't know.  And  appears to be of fire origin.  You can't tell if it 9629  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  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  was started by man or if it was started by  lightning, and for this purpose I didn't think it  was particularly important.  These are very general  categories, and I didn't think it was that important  to determine.  Q   All right.  And in Table 4 on page 27 you there -- you  deal with what you called approximate fire cycle.  What is a fire cycle?  A   Okay.  That's a term accorded by Wagoner, who was a  fire specialist, and it refers to the -- if you have  an area of land of fixed size, it refers to the  number of years it would take for that much of an  area to burn.  So if you had 100 square miles and it  took 100 years for 100 square miles to burn, then  the fire cycle would be 100 years.  THE COURT:  That's to burn 100 percent, for the whole thing to  be burned?  THE WITNESS:  No.  You see, it's a complex idea.  It means 100  square miles burn.  Some areas may burn twice in  that time period and other areas may not burn at  all.  So if the fire cycle is 100 years, it doesn't  mean you can't have a 150-year-old stand.  It might  have escaped fire because it was down in a gully  that was really shady and cool.  THE COURT:  And so if you had 100 square miles and 50 square  miles burned in the year zero, and then that same 50  or half, if the same half burnt again 100 years  later, you'd say the frequency was --  THE WITNESS:  The fire cycle was 100 years.  THE COURT:  — per second 100 years?  THE WITNESS:  And so over a large area you can make averages and  you can -- there's a lot of mathematical things done  looking at the age structure of the forest to get  some rough idea of what it might be.  It's fairly  complex.  And I didn't do that work myself.  I  don't --  MS. MANDELL:  Q   And what  is a fire regime":  A  A fire regime just talks in general about the types of  fires, how often they occur, how large the fires  typically are; just all the characteristics of the  natural fires that might be of interest or might  determine the structure of the forest.  So in this  classification here, they talk about whether it's a  light surface fire or a -- or a severe crown fire.  Surface fire might just burn the grass and shrubs  under the trees.  The big trees might survive.  The 9630  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 crown fire would go up into the trees and actually  2 kill the whole forest.  The severity of the fire is  3 the extent to which it damages the plants and the  4 soil organic layers.  The -- and the frequency of  5 the fire, how often, and so they talk about return  6 intervals and things like that.  7 Q   All right.  And you said earlier in your report that  8 fire is a widespread form of natural disturbance.  9 It has a profound influence on the composition of  10 natural vegetation.  Does fire have, in your  11 opinion, a profound influence on the composition of  12 the berry species that we're talking about?  13 A   Not the composition of the berry species.  It has an  14 influence on their distribution and abundance.  15 MS. MANDELL:  All right.  16 THE COURT:  Where do you find that passage?  17 MS. MANDELL:  I'm reading from the top — the first full  18 paragraph under "Fire Ecology and Fire History" on  19 page 23.  20 THE COURT:  Before you go to page 27, I'm sorry that I don't  21 understand the fire regime.  Your footnote shows it  22 from zero down to -- down to five.  23 THE WITNESS:  That's right.  24 THE COURT:  But your —  25 THE WITNESS:  Or of six.  That's a six.  26 THE COURT:  That's a six.  What does six or five in brackets  27 mean?  28 THE WITNESS:  It means roughly five or six, maybe dominantly  29 six, sort of five.  30 THE COURT:  And that's a five bracket six, the other way around?  31 THE WITNESS:  Tending to be a little bit more towards the five  32 maybe.  These are pretty crude.  33 THE COURT:  Five with brackets with four and three means it was  34 somewhere between three and five?  35 THE WITNESS:  There are in some areas -- the bracket three, that  36 that refers to severe surface fires, and that occurs  37 only in particular types of vegetation, those  38 surface fires.  For example, aspen might be one type  39 that would get that or the open Douglas fir that you  40 get in the --  41 THE COURT:  All right.  So if you have five, four, three, it  42 means that you could have all three of those  43 categories of fires?  44 THE WITNESS:  Yeah.  I think it — if you read the three  45 descriptions, that would describe the sort of  46 situation that --  47 THE COURT:  All right.  Thank you. 9631  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 THE WITNESS:  — prevailed.  2 THE COURT:  Page 23.  3 MS. MANDELL:  4 Q   If I could just for a minute return to Table 4.  What  5 is a return interval?  6 A  A return interval is on any particular spot in the  7 landscape how -- how frequently a fire burns at any  8 particular place in the landscape, and you might be  9 able to determine that by the little charred marks  10 on the ring of a tree.  So if -- a 25-year return,  11 if it burned in 1920, it might have burned again in  12 1945, something like that.  13 Q   All right.  I'm going to ask you to return to page 24  14 and to explain the conclusions which you've drawn at  15 the bottom of the page where in the last paragraph  16 you state:  "The species studied here are adapted to  17 different fire regimes".  And in that context is  18 fire regime there used in the same way as you've  19 just previously described it?  20 A   Yeah.  There I'm talking about how abundantly fire --  21 how frequently fires occur and the types of fires  22 that you would expect to find, whether they would be  23 intense crown fires or light surface fires, that  24 kind of thing.  25 Q   All right.  You say:  "Red huckleberry, Alaska  26 blueberry and oval-leaved blueberry are species that  27 thrive in climax forest conditions where fire occurs  28 at a low frequency, if at all".  2 9 A   Yeah.  30 Q   Now, if fires occurred at a high frequency, would that  31 then mean that those three species wouldn't be able  32 to survive?  33 A   I would imagine that I think -- I believe they would  34 tend to be eliminated over time, because it -- they  35 take -- they build up in the understory of the  36 forest over hundreds of years and they would be  37 displaced by species that regenerate more quickly  38 and under the early conditions that follow a fire  39 rather than they would -- rather than developing in  40 the understory of an old growth forest.  41 Q   All right.  And do you feel that if there was no fire  42 there that they would be able to survive?  43 A   Yes.  Those species definitely survived if there's no  44 fire.  Berry production might be slightly different,  45 but if -- they will continue to grow.  The  46 sampling -- the data -- field data suggests that  47 they'll be there in a thousand-year-old forest and, 9632  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  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  you know, they won't disappear.  Q   All right.  And you say that:  "In contrast, saskatoon  and soapberry are fire-dependent species that tend  to occur in serai communities in environments where  fire is of regular occurrence"?  A   That's right.  Q   In that context what do you mean by "regular  occurrence"?  A  Well, the types of -- it's hard to say how regular.  We're talking on the order of every couple of  hundred years, I suppose, or maybe on the order of  decades.  I wouldn't want to be pinned down to any  number.  Q   All right.  A   But there is a history of -- you can see -- those  sites have been burned in the past where you find  them.  They did burn repeatedly in the past.  And  if -- if there is a long period of time without  fire, the forest -- the composition of the forest  changes and those species gradually die out and are  replaced by other species.  Q   All right.  So these are species where they couldn't  survive with no fire, but they're relatively immuned  to severe fire?  A   That's right.  The literature suggests that these  species can sprout back quite readily following a  fairly intense fire that burns off the top and the  roots and rhizomes and such survive.  THE COURT:  Did you agree with Miss Mandell that they can  survive with no fire?  They can survive with no fire?  think that's what she said.  Pardon me.  THE WITNESS  THE COURT:  THE WITNESS  MS. MANDELL  Q   No.  I say they can't survive with no fire.  A   I wouldn't want to be absolute about that.  If for  another reason the forest canopy -- there was  something that prevented the forest canopy from  growing over, you know, or the other forms of  disturbance other than fire, they could persist.  However, they will tend to die out.  In the absence  of fire, they will tend to die out.  They may not be  entirely eliminated because there are certain  habitats that -- where conditions still remain  suitable for them.  Q   And you say:  "The black huckleberry, dwarf blueberry,  and highbush-cranberry are intermediate in their 9633  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 adaptations to fire".  What do you mean by  2 "intermediate"?  3 A   Those two groups that I described are -- tend to be  4 the extremes.  The first three are characteristic of  5 old growth coastal forest where fires are relatively  6 infrequent.  The other two are characteristic of  7 serai or early successional communities where fire  8 is frequent.  These other ones, they're all over the  9 place.  Black huckleberry tends to increase with the  10 age of the stand, but it tends to -- it's very  11 common in areas where there is a history of an  12 intermediate frequency of fire.  The coastal forest,  13 low elevations.  It's not there.  It may not be  14 because of fire.  So they don't fit the other two  15 categories.  They seem to require disturbance at  16 a -- to some degree, but not to the same extent that  17 the others do.  They're slower growing and less --  18 and more sensitive probably to fire damage than  19 saskatoon and soapberry and less sensitive to  20 shading out.  21 Q   All right.  And if -- you've already answered this  22 question.  It's due to my not fully understanding  23 it, so if you've answered it, say it to me.  But in  24 your view what are the patterns of natural forest  25 succession which perpetuate the huckleberry, Alaska  26 blueberry and oval-leaved blueberry?  27 A   The pattern of natural for its succession is one of  28 relatively infrequent disturbance where the -- some  29 recent research suggests that these species will  30 germinate and establish when there's small openings  31 created in the forest by wind throw and light, small  32 disturbances such as blow down creating small  33 openings.  Then they will gradually -- the shrub  34 will grow up and over extended periods, perhaps  35 centuries, these species will become -- come to  36 dominate the forest understory.  If you remove the  37 forest, the tree cover by logging, just take the  38 trees away, they will do quite nicely because  39 they're well established and sturdy.  They will  40 produce lots of berries.  They will do quite well.  41 However, if you have a more serious disturbance, you  42 remove the forest floor, you take away that organic  43 layer on the top, you expose mineral soil, big  44 opening, sun beats down, there doesn't seem to be a  45 lot of ceiling establishment under those conditions.  46 They're very slow to reinvade.  Other species will  47 invade.  If you have frequent disturbance that 9634  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 perpetuates that kind of a situation, doesn't allow  2 the forest floor and the rotting wood to build up,  3 other species, such as salmonberry, thimbleberry and  4 so on will tend to dominate rather than those berry  5 species.  So that's the kind of patterns of  6 succession that --  7 Q   And what are the patterns of natural forest succession  8 which would perpetuate the saskatoon and soapberry  9 species?  10 A   Okay.  The soapberry is one that fixes its own  11 nitrogen and therefore is capable of establishing in  12 a nitrogen poor soil.  It seems to thrive on the  13 disturbance.  A deep, intense fire that removes the  14 organic layers, volatilizes the soil nitrogen, it  15 can seem to establish under those conditions.  16 Saskatoon to the same extent following a  17 disturbance, exposed mineral soil, the seeds will  18 germinate.  The ceiling will establish.  They will  19 grow up in the forest opening or on the edge of a  20 forest with partial shade.  Then as the forest  21 closes in as they get shaded out, saskatoon a little  22 bit more than soapberry, they'll tend to lose vigor  23 and decline as the forest floor ages.  As the stand  24 succession proceeds over, you know, centuries or  25 whatever, they will tend to die out and perhaps  26 their seeds will remain in the forest floor or  27 perhaps a bird will come along and if there's a  28 disturbance, they will come back.  If -- on the  29 other hand, if there is a fire, the centuries don't  30 go by, if there's a fire every 50 years or every  31 hundred years, they're still there, but they're  32 starting to die out, the fire comes, removes the  33 overstory, there's lots of lighting and they'll  34 sprout back and they'll grow vigorously.  So they do  35 seem to depend on relatively frequent disturbance,  36 both for establishment and to renew their vigor when  37 they're starting to decline.  38 Q   And what are the patterns of natural forest succession  39 which perpetuate the black huckleberry, the dwarf  40 blueberry and the highbush-cranberry?  41 A   I don't know if I can do all those three together.  So  42 this is a little complex.  Do you want me to do them  43 all one by one?  Would you prefer any particular  44 one?  45 Q   Do them one by one.  I had assumed that they grouped,  4 6 but they don't.  47 A   Yeah.  They're something intermediate.  There's been a 9635  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  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  little bit of work done on the black huckleberry,  and it seems to be relatively slow to establish,  like the other -- the huckleberry and blueberry  species I talked about earlier.  You don't see a  lot  -- it's -- it's a  once a seedling  of seedlings out there.  It's  rhizomatous species, and it --  establishes --  THE COURT:  Sorry?  THE WITNESS:  A rhizomatous —  THE COURT:  You'll have to spell that.  THE WITNESS:  R-h-i-z-o-m-a-t-o-u-s.  So a little seedling  establishes, and it -- it spreads by vegetative  reproduction rather than by sexual reproduction.  Shall I carry on in this vein?  It sprouts up.  Oh,  dear.  What can I say?  The species is relatively --  seedling establishment from a berry, the seeds is  fairly uncommon.  Once a seedling establishes, the  berry patch will expand by means of vegetative  reproduction rather than from seed through the  growth of rhizome, shoots and suckers, and so on.  This occurs relatively slowly.  This species is  relatively shade tolerant.  As the stand ages, it  doesn't die out.  It tends to become relatively more  common compared with other species.  However, it  seems to do best where there is some fire.  Other  areas where as long as the stand remains relatively  open, it seems to hang in there.  It's hard to  describe.  Depending on where you are, it seems to  respond a little differently to disturbance.  THE COURT:  I'm sorry.  What -- what species were you  describing?  THE WITNESS:  Black huckleberry.  I wish I could make a — I  don't know if I should carry on with this, because  all three of them, it depends on the environment.  They're intermediate in their shade tolerance, which  means if they get over top, they'll tend to lose  vigor, but they won't necessarily die out.  Then if  there's something that opens up the forest  overstory, they will continue to grow.  They'll  perhaps grow better.  But if there's a severe  disturbance, it will set them back and they might be  slow to reinvade,   much slower than perhaps  soapberry and saskatoon.  Highbush-cranberry  establishes quite well following disturbance.  It  has seeds that remain viable in the forest  understory.  When there's a fire, often they'll come  up.  It responds -- sprouts well after fire, but 9636  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1 it's relatively shade in tolerance, so it doesn't  2 die out that quickly.  You get these shrubs of  3 relatively poor vigor in the forest understory for  4 quite long periods of time.  5 MS. MANDELL:  6 Q   And dwarf blueberry?  7 A   I think I covered that.  Yeah.  Similar to black  8 huckleberry but very variable in the different  9 environments it grows in and the types of natural  10 disturbances that occur.  Many of the areas it grows  11 in remain -- are very low productivity environments,  12 like the tundra and the bogs, and they always remain  13 open without a forest cover, and so the species just  14 remains there and doesn't get shaded out and doesn't  15 get outcompeted by other plants.  But in other  16 environments it's only present in early stages of  17 succession where there's plenty of light and not  18 much competition from other species.  19 Q   All right.  And at page 29 of your report you say  20 that:  21  22 "It is impossible to generalize about the  23 type of burning regime (i.e. frequency,  24 intensity, and size of burn) that could be  25 used to maximize berry crops.  Frequent  26 light fire might be ideal for some  27 species, while more intense on intervals  28 of say 10 to 30 years might be appropriate  29 for others.  Because recovery from fire  30 can take many years, a pattern of  31 prescribed burning that creates a mosaic  32 of small stands at various stages of  33 recovery, will normally be more efficient  34 than one that creates large burns of  35 uniform age."  36  37 And is that a summary of the evidence that you've been  38 giving to us?  39 A   Yes.  That's -- it's really hard to generalize.  It  40 really depends on the -- where you are, which of the  41 biogeoclimatic units you are, what kind of ecosystem  42 conditions at a local scale, whether you're on a dry  43 ridge or down in the swamp, how it would respond,  44 what the vigor of the plant is at the time.  You  45 know, there's a lot of factors that go into  46 assessing how the plant species will respond to  47 something like a prescribed burn. 9637  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q   All right.  But your evidence is still, as you earlier  stated it, that although it may be impossible to  generalize about the type of burning regime which  could be used to maximize berry crops, fire regimes  are important for all berry crops?  A   I don't think I said that fire -- oh, fire regimes.  Fire is not important for all berry crops, no.  No.  I wouldn't say that.  I would say that -- I know  our -- the fire regime can include no fire.  So what  you said doesn't -- is hard to answer.  Can you say  that again?  Q   Well, I wonder then if you can't generalize about the  type of burning regime that could be used to  maximize berry crops, is there an opinion that you  can give us which could generalize about the  importance of fire generally to berry crops?  A   For many of the species that I have described, berry  production seems to be the highest when they're  growing in the open without an overstory of trees,  and so something is needed to remove that forest  overstory, whether it be done by hand, such as with  logging, or whether it be done by fire.  And so fire  is definitely a method that can be used to remove  that forest overstory and increase production of --  of berries.  In some cases the fire could wipe out  the plant and it could take a very long time to come  back.  In other cases it might be just what the  doctor ordered.  It might stimulate it to resprout  and increase its vigor.  And it depends on the type  of fire, the location and the species and all those  kinds of things.  MS. MANDELL:  Right.  Now —  THE COURT:  When you say overstory, that's a --  THE WITNESS:  Well, I refer to the trees.  THE COURT:  The canopy?  THE WITNESS:  The tree canopy that's above the shrub canopy.  THE COURT:  Yes.  Thank you.  MS. MANDELL:  Now, at page 29, the last paragraph, you talk  about "Organized fire suppression in the study  region has become increasingly effective over the  past 50 years".  Could you explain what "organized  fire suppression is"?  MR. WILLMS:  My lord, I object to this aspect of it because the  facts upon which this opinion is based, there's a  lightning strike figure here, and so there is a  figure about lightning strikes and where lightning  strikes take place.  There is no underlying data 963?  S. Haeussler (for plaintiffs)  In chief by Ms. Mandell  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  about fire suppression that has been supplied in  respect of this witness, and I object to any of the  evidence on page 29 under fire and fire suppression.  There simply -- the underlying facts have not been  disclosed.  I don't  know where this comes from.  There are no cites on  these pages except for the fire frequency zone at  the bottom, which is something that this witness  did, which I assume was based on lightning strikes,  because that's what it said on the document that we  got.  And so to the extent that this witness is  moving into that area, there's no underlying data  that has been supplied to us.  THE COURT:  Well, isn't that a question for cross-examination  though, Mr. Willms?  MR. WILLMS:  Well, my lord —  THE COURT:  A person can have -- a learned person can have an  opinion without a lot of data supplied by others.  MR. WILLMS:  My lord —  THE COURT:  The question is what weight to put on that opinion,  and that can be developed by cross-examination.  MR. WILLMS:  The point on this one, my lord, is that there is  no -- these reports were sent to us pursuant to  Section 11 of the Evidence Act, pursuant to your  lordship's ruling that we are supposed to get the  opinion and the facts upon which the opinion is  based, meaning any information that the witness  relies on.  My objection is based on that.  We don't  have those facts on suppression.  We don't have any  suppression information from this witness or with  this witness at all, and that her information has  got to be hearsay based on some suppression  information that she's received from somewhere.  THE COURT:  Maybe just that she's observed what's happened.  MR. WILLMS:  Well, to the extent that she's observed what's  happened, it certainly doesn't go back 50 years,  which is what this evidence -- my friend is leading  this evidence for.  THE COURT:  Well, it may be that 50 years is beyond the  knowledge of the witness.  I'm sure she's not that  old.  But I'm not sure that I -- I think that the  objection is well taken when we talk about the past  50 years, but I'm not sure that the witness can --  that the objection would stop her from saying I work  in this field; I live in this area; I know if such  is the case that fire suppression techniques are  included, make it very effective.  What's wrong with 9639  S. Haeussler (for plaintiffs)  Discussion  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  her saying that?  MR. WILLMS:  Well, my lord, that is not what the report says,  and if that's what the witness is going to say, the  report purports to go on and describe 50 years of  fire statistics, et cetera, without disclosing where  those fire statistics come from.  Now, if the  witness is going to be asked about her personal  observations while she's lived in the area about  fire suppression techniques in the forest, that's  one thing, but -- because that's part of the  knowledge that she brings with her wherever she  goes.  But if it's relying on other data, which I  understand it is based on the time frame and what is  set out as it carries on, then it hasn't been  disclosed, and in my submission the witness should  not be allowed to give that evidence.  THE COURT:  Miss Koenigsberg?  MS. KOENIGSBERG:  Well, I have the same problem that Mr. Willms  does.  And other parts of this fire and fire  suppression area were objectionable for the reasons  which we've dealt with on the basis, I guess, that  she would give the evidence and we would weigh it, a  lot of it without references.  For instance, in the  whole first paragraph, it's obviously hearsay and  beyond this witness' stated qualification, dealing  as it does with the knowledge about the activities  of early Europeans and natives, which is the lead up  to the -- to the area that my friend, Mr. Willms, is  concerned with.  It's generally, my lord, a problem  to try and deal with this in cross-examination when  you don't have -- have the basis --  THE COURT:  Well —  MS. KOENIGSBERG:  — for it.  THE COURT:  Was a demand made for the basis or the underlying  facts in these paragraphs?  MS. KOENIGSBERG:  Not paragraph by paragraph, no, my lord, just  the general demands that were made repetitively with  regard to each witness; that all of the facts relied  upon, at least on behalf of the Attorney General of  Canada -- that all of the facts relied upon be  provided.  And I might say the substantial portion  of the material which does constitute the facts in  other areas was not supplied until about a month  ago, but it didn't contain this material.  THE COURT:  Ms. Mandell?  MS. MANDELL:  Well, I just wanted to refer both my friends to  page 29 and 30 of the report where there Miss 9640  S. Haeussler (for plaintiffs)  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. WILLMS:  THE COURT:  Haeussler does set out where she derives the basis  upon which she is about to talk about fire  suppression.  She talks about, at the bottom of page  29:  "Most man-caused fires are small and the  density of fires seems to be strongly correlated  with the population density and with the fire  frequency zones".  And she refers to Figure 2 and  identifies there that the information is from the  B.C. Ministry of Forests, Prince Rupert Region,  unpublished data.  And I might mention that with  respect to the data that my friends -- that Miss  Haeussler referred to from the offices of the  provincial government, there was correspondence  between counsel inquiring into the data base and the  location of the -- all the data that was referred to  by Ms. Haeussler that's located at the B.C.  Government's offices was identified there.  And then  on page 30 she then in the first two paragraphs  outlines the researchers who in different parts of  North America have studied the effect of fire cycles  and she quotes -- I hope I pronounce these people's  names right -- Heinselman's article, Smith, Tande,  and the only fire ecologist which I know of, which  is Parminter, whose work is cited in the text and  which also appears in the table of contents.  Now,  if there is information above and beyond this, then  my friends can certainly cross-examine upon it, but  there was no requests by any of them to provide more  information than that which was set out here.  And I  might say that with respect to other parts of the  report, there were specific requests asked to go  into more detail and these were provided.  Mr. Willms?  What really is at issue here, Mr.  Willms, is, I think, the relative obligations of the  parties when plaintiff provides a report which by  its text obviously depends on other facts.  My lord, I wrote to Mr. Rush on September 26th,  1988 in respect of this opinion and identified this  as one of the passages to which I would object on  the basis that it was beyond -- first of all, beyond  the stated qualifications of the witness, that is  the effects of European settlement.  But there is a  clear notice to my friends of the passage that I was  going to object to back on September 26th, 1988.  So  that —  Well, is there notice to your friends that you want  the underlying facts or are you putting them on 9641  S. Haeussler (for plaintiffs)  Discussion  1 notice that you're going to object to the evidence  2 given and you don't care about the underlying facts?  3 MR. WILLMS:  My lord, in respect of this particular objection,  4 this one is with respect to the qualifications and  5 that's why I asked, and my friend put this to the  6 witness about the effects of European settlement;  7 that that was something that she's assuming.  She  8 can't go back 100 years or 150 years or whatever.  9 THE COURT:  Well, she could if she was a historian.  10 MR. WILLMS:  If she was a historian.  But she doesn't -- and I  11 think she said before the break that she didn't look  12 into the history.  Well, this whole area of the  13 effect of European settlement is interwoven history  14 of descriptions of things that have happened over a  15 period greater than the lifetime of this witness.  16 Now, if the evidence that my friends seek to tender  17 here is based on the lifetime of this witness, which  18 is all that based on the information we received we  19 could anticipate, then that's one thing.  But  20 specific direction was given to my friends about  21 the -- this portion of the evidence and that an  22 objection would be taken to this part of the  23 evidence and other parts of the evidence as well.  24 Your lordship is quite right.  We didn't  25 specifically say, and in addition portions or  26 subportions of that we don't have the underlying  27 data to, so to that extent I suppose that there --  28 maybe this is a surprise.  But I don't know that  29 there is any underlying data.  There's certainly --  30 it's not cited here.  31 THE COURT:  Well, I never thought that one had to read a — an  32 expert was confined to the bare text and nothing  33 more.  I -- I think the report or the outline is  34 intended to indicate the areas in which opinions  35 will be given and in most cases to state what the  36 opinion is, but I never thought that it was a  37 limit -- a literal limit on what opinions the  38 witness can express.  I think -- while I haven't had  39 argument on this, I think the obligation is on the  40 cross-examiner in preparing for his performance of  41 his function to ask for details of things that  42 haven't been furnished.  I do not think it's the  43 obligation of the party giving notice of the  44 opinion, particularly when the report is given, to  45 forecast everything that the cross-examiner may want  46 to see, and I think the obligation is on the  47 cross-examiner to say I want the underlying facts of 9642  S. Haeussler (for plaintiffs)  Discussion  1 any of these various matters.  But I haven't heard  2 argument on that question, but that seems to me the  3 way it ought to work, because in many, many cases if  4 it were overwise, the party furnishing the report  5 would be taking up all kinds of things that would  6 never be mentioned at trial and the cross-examiner  7 may not want.  So I don't think there is any lack of  8 delivery of underlying facts in this connection.  9 The problem is simply one of whether or not it's  10 a -- it's an opinion that falls within the area for  11 which the witness has been -- has been qualified.  12 You say, Mr. Willms, it's not.  13 MR. WILLMS:  Well, my lord, it's just because my friend skipped  14 over the introduction to this whole European  15 settlement discussion and went directly to something  16 where we don't have any facts on it, which would be  17 within this witness' -- if the facts had been  18 produced to us, I suppose that part could -- could  19 remain as part of her evidence.  20 THE COURT:  She says:  "It is generally knowledged that the rate  21 of burning rose significantly during the early  22 period of European settlement, prior to organized  23 fire control".  Now, I take that to be a truism  24 within her discipline.  But she can be  25 cross-examined on that.  I don't know what the basis  26 for that statement is, but every mathematical  27 opinion presupposes a science of arithmetic.  We  28 don't have to spell that out.  You don't have to  29 give sources for it.  If this is a generally  30 accepted fact within her discipline, it seems to me  31 she's entitled to assist the Court by saying that's  32 what's accepted in our science.  I don't know if  33 that's a very good example or not.  When she says  34 "Early European settlers were reportedly notoriously  35 careless with fire", it sounds like it's getting a  36 little bit conversational and unscientific.  It may  37 be accurate in some cases and very inaccurate in  38 others.  I have some difficulty about that.  But  39 generally speaking I don't think these things are  40 supposed to be parsed like a grammatical exercise.  41 MR. WILLMS:  My lord, in respect of the parsing on the  42 grammatical exercise, this is all subsumed by the  43 objection that I advised my friend of to the whole  44 section based on the qualifications that got all the  45 maps admitted into evidence.  And in respect of the  46 effects of European settlement and the personal  47 discussions with Mr. Parminter and all of that 9643  S. Haeussler (for plaintiffs)  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. WILLMS:  THE COURT:  information, so long as these are all assumptions  that the witness has made because they're not  something that she is focused on, evidence given  earlier that the history wasn't that important to  her in this particular study, then that's one thing.  THE COURT:  Yes.  MR. WILLMS:  And it's completely another though if working  inside out my friend is seeking to get all of this  admitted as the witness' opinion by starting with  something which appears, I suppose, at first blush  to your lordship as being innocuous and  self-evident.  THE COURT:  I don't know if it's innocuous or not.  I think the  fact that settlers came into the area probably --  probably led without much doubt in some increased  burning.  People are going to clear land and farm  it.  There's going to be some burning that wouldn't  otherwise be there, but that's almost a self-evident  fact.  And, my lord, if all -- if all of the report said  was burning -- when you burn and clear land it does  this to berries, that's fine.  I think tomorrow morning I'm going to allow Miss  Mandell to examine the witness with relation to  these matters, and subject to any objection, and in  the course of that, we will find out what the  witness really knows about these matters and what  the basis of her knowledge is and -- and I think  that after that the witness can -- well, not  until -- not in examination in chief but in  cross-examination she can be asked about those  things and at the end of the day I'll be able to  rule.  I don't think I'll be able to rule until that  happy moment on whether or not this is either  admissible or inadmissible, and if so what weight  can be attached to it.  Before we adjourn, can I ask counsel also to give  some thought to the question of -- of what counsel  think it will be useful for me to send to Smithers  with respect to documents and that sort of thing?  MR. GRANT:  My lord, I spoke with Mr. Mackenzie.  He anticipated  the application that I had raised be heard this  morning, but I propose with him tomorrow morning  that he and I have some discussion about that, so I  suspect tomorrow morning we can deal with that.  THE COURT:  I'm just anticipating we may not be here on  Wednesday, but counsel may now be able to tell me we 9644  S. Haeussler (for plaintiffs)  Discussion  1 will be here on Wednesday.  How are we doing, Miss  2 Mandell?  3 MS. MANDELL:  Well, subject to the unforeseen, I don't believe  4 I've got any more than three-quarters of an hour.  5 THE COURT:  Well, then we might finish tomorrow, we may not.  I  6 won't ask counsel to say one way or the other.  If  7 we're here Wednesday, then we'll be here.  But I  8 don't want to leave open the question of what  9 documentation is going to be required to send to  10 Smithers and I will ask counsel if they can assist  11 me in that regard tomorrow morning.  12 MS. MANDELL:  My lord, subject to — to your lordship's view, I  13 would -- I would be seeking leave to -- to be  14 adjourned from Court following the direct evidence  15 of Miss Haeussler.  I have obligations in Kamloops  16 tomorrow.  And if it's convenient to all parties,  17 what I would like to suggest is that we come in  18 tomorrow morning and finish the direct evidence of  19 Miss Haeussler and that thereafter, either before  20 cross or as my friends choose, that the applications  21 regarding the documents be postponed at that time  22 and then the cross-examination can commence.  23 THE COURT:  All right.  Well, what time is your plane, Miss  24 Mandell?  25 MS. MANDELL:  Well, I'll stay until we're finished.  I hope to  26 be out by noon.  27 THE COURT:  Yes.  Well, I have another problem I was going to  28 mention next, and that is that I may be up to 15  29 minutes late tomorrow morning.  I regret that, but  30 there's nothing I can do about it.  There is a  31 matter I have to look after and I think that I'll  32 probably finish by ten o'clock, but the meeting I'm  33 having may be out of the building.  I'm not sure.  34 And if it is I may be a few minutes late getting  35 here tomorrow, but I'd like to set tomorrow's  36 proceedings for ten o'clock and I'll be here if I  37 possibly can.  If not, I will certainly be here at  38 all possible by 10:15.  All right.  Thank you.  39 THE REGISTRAR:  Order in court.  Court will resume at 10:00 a.m.  40  41 (PROCEEDINGS ADJOURNED UNTIL NOVEMBER 15, 1988 AT 10:00 A.M.)  42  43 I hereby certify the foregoing to be  44 a true and accurate transcript of the  45 proceedings transcribed to the best  46 of my skill and ability.  47 9645  S. Haeussler (for plaintiffs)  Discussion  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  3 Kathie Tanaka, Official Reporter  4 UNITED REPORTING SERVICE LTD.  5  6  7


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