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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-03-29] British Columbia. Supreme Court Mar 29, 1989

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 13812  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  REGISTRAR  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  29 March 1989  Vancouver, B.C.  Order in court.  In the Supreme Court of British  Columbia, Vancouver, this Wednesday, March 29, 1989.  Calling Delgamuukw versus Her Majesty the Queen at  bar.  I caution the witness you are still under oath.  Mr. Grant.  Yes, my lord.  Sake of being brief, it is my  submission that in light of the evidence you have  heard, that Mr. Morrell is amply qualified to give  opinions as a fishery scientist in the areas that I  have set out yesterday morning.  He is, both through  his academic experience and his work experience and  his research with the Gitksan and the Wet'suwet'en,  which I did not go through in detail with him but it  is alluded to in pages 2 and 3 of his report and in  appendix 1 the FMS study, and subject to any comments  on reply after hearing what my friends have to say, I  would ask that you rule that he be qualified in those  areas.  Well, Mr. Grant, I am looking at what you stated  yesterday as the areas upon which you would be  adducing evidence from this witness, and the first one  was opinion evidence on the nature of contemporary and  historical fisheries of the Gitksan and Wet'suwet'en  including management.  Yes.  Gitksan and Wet'suwet'en management of that  fishery.  Yes. Well, the way I noted -- the way I think you  said it was contemporary and historical fisheries of  Gitksan and Wet'suwet'en including management, and I  took that to be their management.  The Gitksan and Wet'suwet'en management.  Yes, my  note is that.  And you will be seeking to adduce evidence in that  area, will you?  Yes.  All right.  Now, the second one was also opinion  evidence on those fisheries in the context of history  and current status of all fisheries affecting Skeena  stocks and status of all of the Skeena stocks.  I am  having some difficulty determining what the relevance  would be of all fishery stocks affecting Skeena stocks  and the status of all Skeena stocks; for example, if,  in its judgment, Canada allowed indiscriminate fishing  and in Hecate Strait or the -- is it Fitz Hugh or 13813  Submissions by Mr. Grant  1 Fitz William Sound, between -- well, off the mouth of  2 the Skeena anyway.  3 MR. GRANT:  Yes.  4 THE COURT:  I have difficulty seeing what the relevance of that  5 would be.  6 MR. GRANT:  Okay.  The — first of all, the second category is a  7 further delineation of the first.  In a way I didn't  8 have to set that out to further -- it would include --  9 be included in the first.  10 My lord, the issue here that makes this relevant  11 is that, in the pleadings, the plaintiffs claim that  12 there is ownership -- make a claim that ownership and  13 jurisdiction over the territories and the resources  14 therein existed at the time of contact and continues  15 to exist.  Of course that's the ultimate question that  16 your lordship will determine.  It's -- this witness,  17 in discussing the nature of the contemporary and  18 historical fisheries of the Gitksan and Wet'suwet'en  19 including management of that fishery, will focus on  20 that particular resource which is central to the  21 Gitksan and Wet'suwet'en.  Now, the defendants in, I  22 believe it is paragraph 34, I am referring to the  23 Provincial Defendant, of their defence, say that that  24 has been extinguished through subsequent actions  25 including administrative actions and other conduct.  26 Now, in --  27 THE COURT:  What if the Tsimshian put weirs and nets across the  28 Skeena below Terrace, for example?  Why should I be  29 troubled with that?  I mean judicially troubled, be a  30 matter of great concern for every British Columbian,  31 but why should I be judicially troubled by that or  32 things that happen outside the territory that's  33 claimed by the plaintiffs in this action?  34 MR. GRANT:  You don't — I concur that you don't have to be  35 troubled by events or things that occur outside the  36 territory subject of this action except to the extent  37 that those actions, whether they be at the mouth of  38 the Skeena in London, in Ottawa, or in Victoria, have  39 a bearing on the issue of the ownership and  40 jurisdiction of the plaintiffs.  And the defendants  41 have the -- of course subsequently our Court of Appeal  42 in the -- in a ruling on Twin Tracking of last month  43 has raised the question, has dealt with the issue,  44 that that applies at the time -- that the question of  45 aboriginal title is triggered at the time of contact.  46 THE COURT:  Well, I can understand how there may be things that  47 happened in London, Ottawa, or Victoria that affected 13814  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  GRANT  COURT  GRANT  THE COURT  MR. GRANT  THE  MR.  COURT  GRANT  fishing, but I have difficulty seeing where it would  be relevant at the level of the expertise of this  witness.  Well —  They —  -- the issues of what happened in London, Ottawa, or  Victoria are not the areas of which this witness will  give evidence.  That's what I am saying.  I think that may be  admissible under a different heading but I don't see  how a fishing biologist can give me useful and  relevant and admissible evidence about the status of  all the Skeena stocks inside or -- I think inside is  all right but outside the territory I simply at the  moment have to be persuaded that that would be  relevant.  It is the question of course that really what the  witness is talking about is Skeena stocks within the  territory.  Well, can I take it that his evidence will be  confined to that?  Well, let me go on.  But in explaining the Skeena  stocks within the territory, because of the nature of  the fish we are talking about, we have -- the witness  will have to explain that in the context of what  happens to those fish before they arrive in the  territory and after they leave the territory.  In  fact, with the Babine sockeye they go right through  the territory so they enter and exit, and to that  extent it is relevant.  And the question is as I --  just one moment, as is set out really in the page 39  of volume 2 tab 1, the opinion evidence, and this is  where my friend may, Mr. Macaulay, may have great  angst about, is what are the management goals and  strategies of the Department of Fisheries and Oceans  as they affect the Gitksan and Wet'suwet'en fisheries?  Now, this is -- this, my lord, may well be in the  nature of reply evidence to the defendants.  The  defendants have raised this issue in their pleadings.  We have not had full discovery of the defendants on  this issue but we have seen, through their  cross-examination, through the approach that the  Provincial Defendant, for example, has taken with  respect to yesterday on their Notice to Admit and  earlier, that this is an important part of the defence  and so the plaintiffs, rather than waiting and  hopefully avoiding the necessity of recalling this 13815  Submissions by Mr. Grant  1 witness, for example, are prepared to deal with this  2 issue here and now.  But, as I say, the only issue is  3 is what is -- and it is really not DFO that we are  4 concerned about, it is the coastal fishery, what  5 effect if any has the coastal fishery had on the  6 Gitksan ownership and jurisdiction, and of course we  7 are looking at -- and in the particulars of the  8 defendants we say, in terms of -- we asked about when  9 they stated extinguishment occurred and they have set  10 up a number of alternatives, including many that are  11 much more recent, and these are in particulars with  12 respect to the defence.  So what your lordship may,  13 and we certainly won't encourage this, but your  14 lordship may say, well, I have to look at the extent  15 of ownership and jurisdiction of the Gitksan and  16 Wet'suwet'en on October 23, 1984, and that's one  17 alternative, and that's an alternative that the Court  18 of Appeal in Sparrow implied, although not directly  19 stating it, but if that's what your lordship has to  20 deal with then of course the impact of the coastal  21 fishery on the Gitksan and Wet'suwet'en is relevant to  22 that issue.  23 THE COURT:  Well, I am not at the moment too troubled by the  24 evidence of the witness adverting to the impact within  25 the territory if something happens outside the  26 territory as long as I am not getting into a royal  27 commission on the management of ocean or other  28 fisheries outside the territory.  29 MR. GRANT:  No.  And I — and this is where I say that I don't  30 think that -- I am not arguing that that is relevant.  31 I think that the conundrum here was raised in some  32 sense by Mr. Macaulay in his questions and it is a  33 conundrum that the privy councils had to deal with in  34 question of the British North America Act.  We have  35 here a provincial jurisdiction of ownership of fish  36 and a federal jurisdiction of management of the fish,  37 and it's difficult in elucidating the evidence to --  38 of the Gitksan and Wet'suwet'en ownership and  39 management of the fish which is what is claimed to  40 make that distinction.  It is not an easy task but --  41 and it wasn't an easy task for those who arrived  42 subsequent to the framers of the BNA Act and of course  43 went all the way to the privy council to sort it out,  44 but that's what -- that's -- what you have just said,  45 my lord, is what my intent is, is that the witness  46 will discuss the coastal fishery in terms of its  47 impact on the Gitksan and Wet'suwet'en fisheries. 13816  Submissions by Mr. Grant  1 Now, what may have raised concern with my friend  2 is that Appendix 1 to his report is the Fish  3 Management Study, and it deals with six chapters, I am  4 not going to go through the bulk of it; it is  5 supporting documentation for part of his opinions  6 here.  The final is one of the -- one of his tasks as  7 set out in that and as he described yesterday was to  8 look at an alternative Gitksan and Wet'suwet'en  9 fishery, and the final chapter is Objectives of the  10 Gitksan and Wet'suwet'en Management Plan.  This --  11 that chapter I am not going to deal with at all  12 because that was part of his task in that project and  13 as far as I am concerned it is not necessary at all.  14 The other issue that I can anticipate my friend  15 may raise is with respect to the alternative fishery  16 of -- is Appendix 6 to his report itself which is a  17 scenario of the co-ordination and management of the  18 Skeena/Sockeye Fisheries.  Now, all that is is to  19 rebut what my friends have raised in their report,  20 their expert opinion report, that this is all fine and  21 good in a pre-contact situation but what Mr. Morrell  22 is talking about isn't even possible in any given  23 scenario in a contemporary fishery that you have a  24 coastal and inland fishery.  It only rebuts that there  25 is possibilities there.  But once again, that's not of  26 course for your lordship to rule.  It is just to say  27 that he's -- evidence is based in reality and not in  28 total abstraction, and in total abstract theory.  29 THE COURT:  Let me go to number 3.  As I have it, "Relationship  30 of Skeena stocks to other stocks in the region is  31 defined in map 20 of the map atlas book."  I haven't  32 seen map 20 yet and I am going to pass on that one for  33 the moment, your friends may have something to say  34 about it, but I am going to pass on that one and,  35 unless your friends persuade me otherwise, I will deal  36 with it when you get to map 20.  37 The fourth point that I have that you talk about  38 is location of Gitksan and Wet'suwet'en fishing sites  39 as shown on map 22.  I haven't seen map 22, but I  40 don't think I need to hear from you at this time on  41 that one.  42 The fifth one, however, I am in some doubt about  43 and I am not sure that I have got the full text of  44 your fifth point.  Do we have the -- what I have down  45 is, "Impact on fisheries management of Department of  46 Fisheries and Oceans upon the Gitksan and Wet'suwet'en  47 fisheries historically and in the present." 13817  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE  MR.  COURT  GRANT  :  And I would modify that because that's what I was  endeavouring -- I was endeavouring to respond to that  point which I saw as a potential concern in what you  earlier raised.  :  I have two views; one is that it may well be,  subject to what your friends say, competent for the  witness to describe to me the impact of Fisheries  management upon the Gitksan and Wet'suwet'en  fisheries, but I am seriously in doubt about the  competence -- not the competence but the relevance of  the witness relating to the policies of the  department.  They may be completely wrong and  dangerously wrong in what they are doing outside the  territory but I don't see how I can pass on that, nor  should I hear evidence about it in the context of this  action.  :  Maybe, once again, I can assuage your fears and  clarify something for my friends.  And I believe you  have it correct as you have said it, but what I could  say and maybe more precise is the impact of coastal  fisheries management on the Gitksan and Wet'suwet'en  fisheries historically and in the present.  Now, I am  not, in doing that, not trying to dodge the issue but  it is the management of the coastal fishery on the  Gitksan and Wet'suwet'en fisheries.  :  Well, I don't mind at the moment, subject to what  your friends say, hearing what that impact is but I am  very, very uneasy about embarking upon an  investigation of what those policies are, and the  correctness or otherwise.  As I say, they may be dead  wrong or they may be dead right but at the moment I  have trouble seeing what difference it makes to this  lawsuit.  It is the impact as a factual matter that  seems to me to be as far as I could hear evidence  about.  :  Okay.  Just one thing in what you have just said I  wish to clarify.  I think in order to determine what  the impact of those policies are, you will have to  hear some evidence of what they are for what their  impact is, but the pros and cons of those policies,  whether they are good or bad, is -- I am in total  concurrence with your lordship that that's not  relevant and it is not what this witness is being  tendered to give evidence on.  :  All right.  :  As I say, it is -- I certainly hope that that's  clear because the witness may describe what those 1381?  Submissions by Mr. Grant  Submissions by Mr. Goldie  1 policies are but, in leading that evidence from this  2 witness, I am only asking him that so that he -- as an  3 introduction to say, well, what's the impact on the  4 Gitksan and Wet'suwet'en.  That's all.  And to that  5 extent you need to know what they are.  Peter Pearse,  6 and I believe that it's already been an exhibit, did a  7 Royal Commission on the pacific coastal fishery and of  8 course that's not the intent of this evidence.  9 THE COURT:  All right.  I think I should hear from your friends.  10 MR. GOLDIE:  Is my friend deleting any part of the material  11 that's tendered?  12 MR. GRANT:  You mean from the report and appendices?  13 MR. GOLDIE:  Yes.  14 MR. GRANT:  No.  But I would say this:  I am not but, if my  15 friends are concerned about chapter 6 of Appendix 1, I  16 have no objection to deleting it.  I am not proposing  17 to delete it but if that's --  18 THE COURT:  What is chapter 6 of Appendix 1?  19 MR. GRANT:  It is — chapter 6 of Appendix 1 — Appendix 1 to  20 the opinion report is the 1985 Fish Management Study  21 and chapter 6 to Appendix 1 is the -- deals with  22 conclusions and recommendations, and it is the  23 objectives of the Gitksan and Wet'suwet'en management  24 plan, it is pages 179 to 2 --  25 THE COURT:  Where do I find it?  26 MR. GRANT:  212.  Volume 2 of your — and tab 2, and at tab 2,  27 page 179.  2 8 THE COURT:  All right.  29 MR. GRANT:  Now, really, given that I would say page 179 to 182  30 is a summary, a conclusion of what he's been  31 describing before so that I would say should be kept  32 in, and I am not suggesting to delete it because I  33 think it is just -- but I am not going to argue that  34 you should rely on it in that regard either.  It is  35 just a matter that just -- what it does is it makes  36 what is a complete document an incomplete document if  37 I could.  38 THE COURT:  All right, thank you.  Mr. Goldie.  39 MR. GOLDIE:  As I take it, my friend is tendering everything.  4 0 THE COURT:  I think so.  41 MR. GOLDIE:  My lord, my objection is taken to Mr. Morrell's  42 report which incorporates the 1985 report to the  43 extent that that report and the appendices embody  44 opinions beyond those that are relevant and -- or are  45 beyond those that this witness is competent to give,  46 or both.  47 My friend's submission, if I understood him 13819  Submissions by Mr. Goldie  1 correctly, is that Mr. -- and I am talking about his  2 opening and the tenor of his questions, is that Mr.  3 Morrell is a fisheries biologist and that when one  4 describes fishery science, fishery management, or  5 fishery biology, consideration of other disciplines  6 become involved.  That may be so.  Mr. Morrell has no  7 educational qualification as he admitted that permits  8 him to offer opinions involving anthropology or  9 historical matters.  He has never managed a fishery  10 and he can point to no experience or publication,  11 other than what has been produced for this lawsuit or  12 the report on the Gitksan fisheries which is part of  13 the lands claim, which include these interdisciplinary  14 considerations to which he refers.  You can examine  15 his curriculum vitae and you will find nothing of that  16 order.  17 Before arriving here, as he stated, and when I say  18 arriving here I mean in the Bulkley Valley, he knew no  19 more about the Indian fishery in the Skeena than what  20 he read in the papers.  He has made no study of any  21 aspect of the cultural background of the plaintiffs  22 until he became an employee of the tribal council.  23 Specifically, my lord, and I'd ask you to have the  24 volume 2 in front of you and the first document is  25 entitled Gitksan and Wet'suwet'en Fishery Management,  26 and the date is 31st of January, 1987, and on the  27 Introduction which runs pages 1 to 15, page 1 confirms  28 that Mr. Morrell has no claims to be qualified in  29 anthropology or any other discipline which allows him  30 to speak about the history of the Gitksan or their  31 fishery.  His mandate is indicated on page 2 in the  32 first paragraph, he says, "My first assignment..."  I  33 am sorry, it is paragraph 2, he says:  34  35 "My mandate in the Fish Management Study was to  36 study the contemporary and historical Indian  37 fisheries of the territory, to place them in the  38 context of the history and the current status of  39 all the Skeena fisheries and salmon stocks, and to  40 make recommendations for a future  41 Indian-controlled management of the fisheries and  42 fish resources of the territory."  43  44 That is the whole purpose of what he was asked to do,  45 and it has got no part in this litigation to speculate  46 on the future management assuming the plaintiffs  47 succeed in their action. 13820  Submissions by Mr. Goldie  1 Page 3, he says midway down that paragraph:  2  3 "I have spent many hundreds of hours on the rivers  4 of Gitksan and Wet'suwet'en territory."  5  6 Those hundreds of hours of evidence are hearsay and  7 find no support as reputation evidence, nor is there  8 any element of necessity in allowing Mr. Morrell to  9 give evidence based on those interviews as the court  10 has firsthand knowledge of fishery practise and  11 location of fishing sites in the evidence of lay  12 witnesses.  13 Page 4, paragraph 1, in my submission where he  14 says:  15  16 This paper supplements my 1985 final report and  17 constitutes parts of my opinion,  18  19 he says,  20  21 "This essay emphasizes the Indian system of  22 organizing and regulating salmon fishing and  23 conserving the fish population.  I will compare  24 the Indian system to contemporary fishery  25 management by agencies of the state and will  26 discuss the interaction of the two systems on the  27 Skeena during the last century."  28  29 What relevance that has or what competence he has to  30 discuss matters which have taken place over the last  31 century has not been demonstrated.  It is irrelevant  32 to the present-day claim of ownership and jurisdiction  33 which the plaintiffs have pleaded.  34 Now, in the next paragraph which is the summary of  35 the distinctive nature of Gitksan and Wet'suwet'en  36 fishery management, he gets into matters which  37 obviously he has been given by other people, and the  38 fourth line, he says:  39  40 "Indian fishing has always been regulated by  41 customs and laws deeply imbedded in the Indian  42 cultural tradition deriving from generations of  43 experience of the relationship between fish and  44 people."  45  46 If any evidence is necessary on that, your lordship  47 already has it.  Mr. Morrell is simply a person who is 13821  Submissions by Mr. Goldie  1 adopting as his opinion what others have told him.  We  2 have extensive evidence from lay witnesses who claim  3 to have firsthand knowledge of the relationship that  4 is being referred here, so this simply becomes  5 advocacy.  6 Pages 5 to 9 purport to relate beliefs of the  7 Gitksan and Wet'suwet'en with respect to fish,  8 management rules based on tradition and world view and  9 so on.  The evidence has been given on this.  Mr.  10 Morrell is neither a native nor is he a trained  11 anthropologist who is competent to place such mythical  12 beliefs in scientific or proper setting.  He is simply  13 repeating and embellishing what he has heard.  14 On page 7, he refers to an adaawk without giving  15 any reference to it or any authority for it.  It's —  16 there is no basis that allows him to give evidence of  17 an adaawk, nor is he qualified in my submission to  18 offer the opinion based on page 9 where he purports to  19 state or explain the significance of certain  20 ceremonies.  21 Now, the section from pages 10 to 15, Application  22 and Administration of Gitksan/Wet'suwet'en Fishery  23 Management gets into items which again are matters for  24 your lordship to determine on the basis of evidence of  25 actual user.  Paragraph 2, he says:  26  27 "All fishing grounds are treated as property of a  28 particular kinship group."  29  30 And then he goes on in the next paragraph:  31  32 "In the Gitksan system, fishing grounds are held by  33 each House."  34  35 And he goes on to talk about that.  Well, your  36 lordship has heard evidence of that from people who  37 purport to be the owners.  This, in its present form,  38 is merely advocacy of point of view which is of course  39 the plaintiff's point of view but could not be  40 established through the evidence of this witness.  And  41 clothing it in the form of an expert opinion does not  42 assist in that regard in any way.  43 Now, in this particular section on page -- well, as I  44 said, the paragraph I referred to on page 10 involves  45 matters of a genealogical and anthropological  46 character.  On page 10, paragraph 3, I think restates  47 inaccurately evidence which has been given by other 13822  Submissions by Mr. Goldie  1 people.  On page 11, in the last sentence:  2  3 "In the Wet'suwet'en system, outsiders are allowed  4 to fish for a specific time by permission of the  5 Chief; such outsiders are expected to reciprocate  6 with a gift of some kind."  7  8 If that evidence has not been given, it is not  9 possible for this witness to give it.  With an expert  10 who relies upon his own knowledge to establish the  11 facts upon which he relies must have some basis upon  12 which he can state those facts and no basis has been  13 stated in this report.  As I say, he's simply  14 repeating what he has been told.  15 Page 12, he says:  16  17 "Although fishing is governed by customs and  18 traditions that have the force of law."  19  20 That is a conclusion which your lordship may or may  21 not come to, but this witness is not an expert in  22 whether the customs and traditions of which you have  23 heard much evidence do in fact have the force of law  24 amongst the Gitksan.  He -- then on page 13 he embarks  25 upon again another restatement of the evidence of what  26 you have heard, the control of house chiefs of fishing  27 grounds:  28  29 "Children are specifically cautioned not to molest  30 vulnerable spawners,"  31  32 and so on and so forth.  He says informants mention  33 working.  Well, that of course is hearsay.  It happens  34 in this case to be double hearsay because much of the  35 opinion that had been gathered from living people has  36 been gathered not by this witness but by people who  37 have informed him or who are working with him as  38 employees of the tribal council.  39 The paragraph 14 -- page 14, the last paragraph,  40 he says:  41  42 "In addition to their fishing grounds in the Skeena  43 system, some Gitksan families own salmon fishing  44 areas in the Nass River system."  45  46 I do not recall any evidence of that effect.  My lord,  47 I have noted that your lordship, by -- whether by 13823  Submissions by Mr. Goldie  1 hearing the witness in person or by virtue of the  2 cross-examinations and examinations on commission and  3 affidavits, has heard something like 46 lay witnesses  4 talk about fishing.  If those are the facts upon which  5 this witness depends, then they must be set out and  6 their source given, but we are now being told that he  7 is stating this as if it was of his own knowledge or  8 if he was competent to give it.  9 The sections from 16 to 20 dealing with technology  10 may, in terms of the contemporary fishery, be that of  11 his own observation and he is competent to state that,  12 but when he talks about aboriginal Gitksan and  13 Wet'suwet'en fishing technology, he is not speaking  14 from his own knowledge, he is speaking from possibly  15 those who have given evidence already.  16 The historical conclusions are stated in terms  17 which are -- the sources are not identified and the  18 anthropological conclusions on page 19 are in my  19 submission beyond the witness' competence.  2 0    THE COURT:  Well, who do you say could give that kind of an  21 opinion, just an anthropologist?  22 MR. GOLDIE:  No, or somebody who purports to be giving an oral  23 history.  Alfred Joseph gave evidence of what he  24 understood his forbears did, but this is an  25 unsupported assertion, and an anthropologist could  26 take a variety of evidence and arrive at certain  27 conclusions, but Mr. Morrell is not competent to do  28 that.  The scientific approach, as Mr. Morrell agreed  29 with me, is to obtain data which is available to  30 everybody and examine it objectively and set it out,  31 tabulate it, so that a witness -- so that somebody  32 following in the witness' footsteps could determine  33 whether the conclusions reached are available, but  34 this is simply a narrative.  35 The section on utilization and trade is beyond  36 the -- when it steps beyond the contemporary situation  37 runs into the same difficulty.  Hearsay is employed at  38 page 22 and historical inferences are found on page 22  39 in the last paragraph which the witness has no basis  40 in his training to give.  41 Now, I could go through this in each paragraph and  42 point out to your lordship that the degree of  43 speculation and basis upon hearsay which doesn't -- he  44 is not assisted by the fact that it is hearsay.  Page  45 32, we get into the problem of what Mr. Grant was  46 talking about.  He says -- the summary is:  47 13824  Submissions by Mr. Goldie  1 "What are the principal changes that have affected  2 the Gitksan and Wet'suwet'en fisheries since the  3 advent of the Coastal Industrial Fisheries and  4 Non-Indian fishery agencies?"  5  6 And then he talks about what happened before 1877, and  7 I say there is no basis that supports the conclusions  8 that he talks about there.  He says:  9  10 "Most of the fishing gear captured fish alive and  11 unharmed."  12  13 Now, what is the basis for that?  14 Now, the section beginning at page 39, he says:  15  16 "What are the management goals and strategies of  17 the Department of Fisheries and Oceans as they  18 affect the Gitksan and Wet'suwet'en fisheries?"  19  20 Well, there is no relevance in this case to the  21 management goals and strategies of the Department of  22 Fisheries and Oceans.  There is no claim in the  23 Statement of Claim that the laws of Canada are to give  24 way to the laws of the Gitksan and Wet'suwet'en as  25 there is with respect to the Province, so that  26 whatever the management goals and strategies are, they  27 exist but they are irrelevant to this litigation.  The  28 only relevant aspect that I can see is factual  29 evidence divorced from opinion relating to the degree  30 to which the Federal Government regulates fisheries in  31 the claims area.  The description in this of how the  32 plaintiffs would manage the harvesting of fish in the  33 claims area if the Department of Fisheries and Oceans  34 was removed is wholly irrelevant and speculative.  35 And then he goes on at page 49 to say:  36  37 "What is the nature of the conflict between Indian  38 and Federal Fishery Management?"  39  40 There is no claim in the Statement of Claim that there  41 is a conflict and that that conflict is to be resolved  42 in their -- in the plaintiff's favour.  43 The section beginning on page 55 says:  44  45 "What are the strengths of Gitksan and Wet'suwet'en  46 Management and how is it relevant to present  47 management problems?" 13825  Submissions by Mr. Goldie  1  2 And he says:  3  4 The aboriginal management system includes all the  5 mechanisms necessary to regulate harvest.  It is  6 superior to the DFO system in its ability to deal  7 with common property.  8  9 That is totally irrelevant.  In the last sentence on  10 page 55, we get to the heart of what he is talking  11 about.  12  13 "Removal of the conflict will strengthen the system  14 and will open the way for cooperative action."  15  16 There is no claim for a declaration that the  17 plaintiffs are entitled in concert with Canada to  18 manage the fisheries.  19 Page 59:  20  21 "How would the Fishery interests of non-Indians be  22 protected under Gitksan and Wet'suwet'en  23 management?"  24  25 This is irrelevant and beyond the competence of the  26 witness as it involves statements with respect to what  27 the plaintiffs would do if they succeeded.  The  28 evidence so far is that he is an employee of the  29 tribal council and that there is no evidence that the  30 plaintiffs would be bound by his speculations even if  31 those speculations would be relevant.  32 Page 60:  33  34 How can Gitksan and Wet'suwet'en Fishery  35 Management be coordinated with management of other  36 fisheries on Skeena River salmon?  37  38 That's a question that your lordship is not required  39 to answer.  There is no claim in the Statement of  40 Claim for coordination; it is for exclusive control.  41 Now, the final -- the Appendix 1, in my submission,  42 should be excluded in its entirety.  4 3    THE COURT:  Is Appendix 1 —  44 MR. GOLDIE:  Is the 1985 report.  45 THE COURT:  That's tab 2, is it?  46 MR. GOLDIE:  Yes, it is, my lord.  47 THE COURT:  That should be marked Appendix 1, should it?  It is 13826  Submissions by Mr. Goldie  1 not so marked.  2 MR. GOLDIE:  It is —  3 MR. GRANT:  It is Appendix 1 to the report at tab 1, my lord.  4 MR. GOLDIE:  It is referred to at page 4 of his report prepared  5 for this proceeding as constituting part of his  6 opinion.  And I say it should be excluded in its  7 entirety because its purpose is evident from the first  8 paragraph.  9  10 "The object of this study is to provide the tribal  11 council with recommendations for the management of  12 the salmon and steelhead fisheries.  The  13 recommendations are intended to be applied within  14 the context of the aboriginal authority system."  15  16 Well, your lordship has no interest in recommendations.  17 THE COURT:  What page?  18 MR. GOLDIE:  I am reading from the Executive Summary of the May  19 23, 1985 report under tab 1, my lord.  2 0 THE COURT:  Where do I find the Executive Summary?  21 MR. GOLDIE:  It is the first page following the title.  I am  22 told it is probably under tab 2 of your book.  23 THE COURT:  I have tab 2, but I don't see an Executive Summary.  24 MR. GOLDIE:  First page following the title page.  25 THE COURT:  No, I've got a table of contents following the title  26 page.  27 MR. GOLDIE:  Well, the title page under my tab is The Gitksan  28 and Wet'suwet'en Fishery in the Skeena River System,  29 Final Report, Gitksan/Wet'suwet'en Fish Management  30 Study.  31 THE COURT:  I don't think I have that.  32 MR. GOLDIE:  Perhaps my friend could assist his lordship.  33 THE COURT:  I have a title and then I have the list of tables  34 and then some acknowledgements and then an  35 introduction.  36 MR. GRANT:  When this report was delivered to my friends,  37 obviously what was included was this Executive Summary  38 of the report.  That Executive Summary is not part of  3 9 Appendix 1.  4 0 THE COURT:  All right.  41 MR. GOLDIE:  Well, it is I take it, however, an Executive  42 Summary of the final report.  Your lordship may not  43 have it but, unless I am told otherwise, that purports  44 to be a summary of the report and I think I will hand  45 your lordship up the page that I have referred to and  46 it is the first paragraph of that page.  4 7 THE COURT:  Yes. 13827  Submissions by Mr. Goldie  1 MR. GOLDIE:  Your lordship is not asked to sit for the purpose  2 of determining whether those recommendations are good  3 or otherwise.  They represent -- this represents a  4 model for the future depending upon the success of  5 this case.  Appendices 2, 3, 4, 5, and 6 may have some  6 relevance if they can be connected to the areas that  7 the witness is competent to give and which are  8 relevant, although the future use is indicated by --  9 under say tab 4, the heading is a graphical  10 illustration of the relationship between spawning  11 escapement and future returns to a hypothetical  12 salmon -- future salmon population.  Well, the future  13 returns are of no interest here.  14 THE REGISTRAR:  I believe it is tab 5, my lord.  15 MR. GOLDIE:  I am sorry, tab 5.  16 THE COURT:  Yes.  17 MR. GOLDIE:  My friend has referred to the Appendix 6 which is  18 tab 7, I suppose.  It is speculation without any --  19 THE COURT:  Tab 6 is Appendix 5, is it?  20 MR. GOLDIE:  Your lordship's —  21 MR. GRANT:  Yes, yes, my lord.  22 MR. GOLDIE:  -- tab 6 should be Appendix 5, and I have seen  23 nothing in the report prepared for this proceeding  24 that has any relationship to the flesh composition of  25 sockeye salmon.  The witness has stated that the  26 regulation of the Gitksan/Wet'suwet'en Fisheries is  27 undertaken by the hereditary chiefs.  Well, we have  2 8 heard from them so we have heard from the people who  29 the witness says has that responsibility.  This  30 situation is very like that which confronted Mr.  31 Justice Macdonald in the Emil Anderson case, where he  32 had reports which were prepared by employees of the  33 plaintiff and the reports were filled with what  34 opinions which were really argument and, in one case,  35 he said I am going to disallow the reports in their  36 entirety but the witness can be -- is qualified to  37 give evidence in certain specific areas, and what he  38 should do is provide a summary and the facts upon --  39 summary of what he is proposing to say and the facts  40 upon which he relies.  41 In this case, it is impossible to separate out  42 what are opinions which are really advocacy, advocacy  43 in favour of the so-called traditional system, because  44 it is from start to finish posed as a contrast to the  45 shortcomings of the regulation by the Federal  46 Government.  It is -- it may be good argument in part  47 but the place for the argument is here and not the 1382?  Submissions by Mr. Macaulay  1 witness box.  2 Now, that's -- I have endeavoured in the short a  3 time possible to indicate to your lordship why this  4 report in its present form should not be accepted.  5 THE COURT:  Thank you.  Mr. Macaulay.  6 Mr. Morrell, if you'd be more comfortable  7 somewhere else, you are welcome to leave the witness  8 box.  9 THE WITNESS:  Thank you, I'd like a softer seat.  10 THE COURT:  Make yourself comfortable wherever is convenient.  11 MR. MACAULAY:  My lord, in my submission on the relevance, I  12 propose to deal with the two Federal statutes and the  13 ruling of your lordship on -- made on February 18,  14 1988 and some other matters.  I have handed up a book  15 that may assist your lordship following my submission.  16 If I may, I would prefer to start with the  17 question of relevance.  I will address very briefly  18 later the question of qualifications.  I am dealing  19 now only with relevance.  At tab 1 of my brief, I  20 have -- I set out a sort of page-by-page basis, a  21 summary of the report itself.  This isn't Appendix 1  22 or any of the appendices, it is the report itself, and  23 what I submit is that when the -- when one looks at  24 the contents or that summary of the contents, the  25 character, the overwhelming nature of the report can  26 be seen.  Can I draw your lordship's attention to just  27 a few.  On the first page of my summary under the  28 heading Description at page -- pages 4 and 5, Mr.  29 Goldie has already referred to these -- to the  30 contents of the report.  The report at those pages is  31 to the effect that the Indian fishing has always been  32 regulated by custom and laws, deeply embedded in the  33 Indian cultural tradition and the Gitksan and  34 Wet'suwet'en traditional laws continue today to  35 regulate the Indian fishery.  Then page 10, there is  36 the proposition that all fishing grounds are treated  37 as property of a particular kinship group.  At page  38 13, there is the proposition that the  39 Gitksan/Wet'suwet'en Fishery Management systems give  40 the hereditary chiefs all the power available to a  41 modern fishery manager.  On the second page of my  42 summary, I draw your attention to page 24 where the  43 witness reports that many contemporary Indian fishers  44 sell fish occasionally, and some people do so on a  45 regular basis.  Then over in my summary -- page 3 of  46 my summary, page 28, he says:  47 13829  Submissions by Mr. Macaulay  1 The aboriginal management system distributed  2 fishing effort fairly evenly over the available  3 fishing areas thereby avoiding concentration of  4 fishing efforts on vulnerable stocks.  5  6 At pages 32 and 36, he says:  7  8 Management and regulatory authority was assumed by  9 government officials who didn't fish themselves  10 and who had no long-term stake in the system.  11  12 Then at page 39, he makes the comment that DFO  13 management is based on the theoretical goal of  14 maximizing or optimizing long-term yield of the  15 coastal fisheries.  Then over to page 4 of my summary,  16 page 39, DFO management strategy assumes the need for  17 a regulatory body independent of the harvesters, to  18 safeguard the public interest by preventing harvesters  19 from overfishing in response to the common property  20 problem as he calls it.  And then pages 35 and -- 39  21 and 47, he submits that the DFO strategy is  22 fundamentally flawed by the mixed stock problem which  23 makes overharvest of less productive stocks  24 practically inevitable.  And on pages 38 and 48, he  25 says the Gitksan and Wet'suwet'en management aims to  26 ensure that all community members get the fish they  27 need.  And at page 40 and 48, he says that the  28 management structure of the Gitksan and Wet'suwet'en  29 fisheries have minimized the effects of mixed stock  30 harvest problems.  31 At page 44, he says management of the Coastal  32 Salmon Fishery for maximum sustained yield is  33 confounded by two problems already mentioned, that is,  34 the common property philosophy and the mixed stock  35 harvest problem.  At page 45, he submits to increase  36 catching power, harvesters and processors invest in  37 increasing their capacity, fisheries usually develop  38 excessive investment in harvesting and processing  39 capacity.  And on the same page he says "the  40 inefficient use of capital creates the chronic  41 financial difficulty characteristic of this kind of  42 fishery and dissipates any net economic benefit that  43 the resource might otherwise provide.  44 Then on page 5 of my summary and page 6 and page  45 7, almost every paragraph deals with the proposed  46 management system that -- for which he is an advocate,  47 and the shortcomings of the DFO system.  He starts 13830  Submissions by Mr. Macaulay  1 with the proposition, which may or may not be true,  2 but it is not irrelevant, that Indian atmosphere of  3 chronic economic crisis is politically very difficult  4 for a fishery manager to apply the strict regulation  5 of harvest frequently required by the maximum  6 sustained yield strategy.  And there are propisitions  7 like that all through the next few pages.  8 I made this -- had this summary drawn up to  9 illustrate how it is pretty well impossible to hive  10 off a portion of the report that could be -- couldn't  11 be challenged on the grounds of relevancy.  12 Now, tab 2 of my little booklet contains your  13 lordship's judgment.  If I may read that again, it is  14 as follows at page 7:  15  16 "...the Statement of Claim does not sufficiently  17 allege the 'paramountcy' of the plaintiffs'  18 alleged rights over federal legislation such as  19 that relating to fisheries and transportation.  I  20 do not think, in the present state of the  21 pleadings, that the plaintiffs, even if entirely  22 successful against the Province, would be entitled  23 to a Judgment that would not be subject to federal  24 legislation relating to such matters as fisheries,  25 railways, airports and other activities authorized  26 by federal legislation."  27  28 Tab 3 of the material I have submitted, my lord,  29 contains certain sections of the Fisheries Acts and  30 these all are sections that were in effect in 1982.  31 They are not -- I am not relying on any recent  32 amendments of which there are very few.  Section 12,  33 under the general heading Salmon Fishing provides for  34 instance:  35  36 "The use of nets, weirs or other apparatus of  37 a like nature for the capture of salmon  38 shall be confined to tidal waters except  39 where otherwise provided by regulation."  40  41 Section 19 provides that:  42  43 "No one, without lawful excuse, the proof whereof  44 lies on him, shall fish for, buy, sell or have in  45 his possession any fish, or portion of any fish,  46 at a place where at that time fishing for that  47 fish is prohibited by law." 13831  Submissions by Mr. Macaulay  1  2 And another provision is Section 43, gives the  3 Governor in Council very broad powers to make  4 regulations:  5  6 "(a) for the proper management and control of the  7 sea-coast and inland fisheries;  8 (b) respecting the conservation and protection of  9 fish;  10 (c) respecting the catching, loading, landing,  11 handling, transporting, possession and disposal of  12 fish;  13 (d) respecting the operation of fishing vessels;  14 (e) respecting the use of fishing gear and  15 equipment;  16 (f) respecting the issue, suspension and  17 cancellation of licences and leases;  18 (g) respecting the terms and conditions under  19 which a license and lease may be issued."  20  21 And so on.  22 Tab 5 of my booklet sets out Section 29 of the  23 regulations.  This is the British Columbia Fishery  24 Regulations.  That's at tab 4 of my booklet.  These  25 regulations were in effect in 1982 and they deal with  26 licences, food-fishing licences.  27 Now, at tab 5 of my book shows -- this is the  28 Petition of Right.  It is Exhibit 26 in these  29 proceedings, and in that action, the -- many of the  30 plaintiffs, many, if not all of the plaintiffs and  31 some others, tribal councils, challenged -- presented  32 a challenge to the Federal Government's powers to  33 regulate the fishery but that is not an issue in this  34 action before this court.  35 THE COURT:  What happened to this petition?  36 MR. MACAULAY:  It never got off the ground.  They needed a fiat,  37 and the fiat wasn't forthcoming.  38 THE COURT:  Was it —  39 MR. MACAULAY:  The Provincial Government was requested to issue  40 a fiat allowing the petitioners to proceed and the  41 Provincial Government didn't.  42 MR. GRANT:  It was a claim for ownership of the reserve site --  43 fisheries on reserves, my lord, and it was fishing  44 sites, it was not a claim against the Federal Crown  45 with respect to management of fishery.  4 6    THE COURT:  Thank you.  4 7    MR. MACAULAY:  That's right. 13832  Submissions by Mr. Macaulay  1 Now, Mr. Morrell's report and in cross-examination  2 his -- his point of view confirmed that, relies on the  3 existence of an authority independent of and paramount  4 to the purported authority of the fisheries officials  5 under that act.  But that, my lord, is specifically  6 excluded by your -- by the pleadings and by your  7 lordship's ruling.  But the -- the report deals with  8 very little else, Mr. Morrell's report in its present  9 form.  It is quite possible to identify paragraphs and  10 perhaps a few pages that don't.  I don't say that  11 the -- and we have had lots of evidence about it too,  12 that the -- it is not relevant to hear evidence of the  13 traditional fishery and even the modern fishery from  14 the plaintiffs and perhaps from this witness, if he is  15 qualified, to the extent that he is qualified to  16 describe what the plaintiffs have already described in  17 some detail.  18 There is another problem and that has to do with  19 map -- the map in which he's endorsed fishing sites.  20 It is map 22.  That's the map that he identified as  21 having the text written by someone else and Miss  22 Marsben.  Now, what this map doesn't show -- it shows  23 a lot of fishing sites and the -- identifies the  24 houses that are said to be the owners of the  25 individual fishing sites.  Perhaps your lordship  26 should take a look at the map.  27 THE COURT:  I have been told I have a copy.  28 MR. GRANT:  It is in your atlas.  29 MR. MACAULAY:  Now, what that doesn't show is that the, at least  30 75 percent, perhaps more than 75 percent of those  31 fishing sites are on Indian reserves.  32 MR. GRANT:  Well, it does show that.  It shows — it shows, my  33 lord -- with respect, this map shows Indian reserves  34 on it.  You can see Kitsegukla -- I am sorry, this is  35 highlighted.  Yes, I am sorry, I take that back.  It  36 is highlighted sectors.  37 MR. MACAULAY:  But the great majority are on Indian reserves.  38 THE COURT:  The great majority are not?  39 MR. MACAULAY:  Are.  Only — well, less than 25 percent are not.  40 THE COURT:  Well, looking at Kitsegukla, I see that it has an  41 Indian reserve showing there, at least I take that.  42 MR. GRANT:  No.  43 MR. MACAULAY:  No, that's not the reserve showing there.  44 THE COURT:  What's that?  45 MR. GRANT:  That's a highlighted area.  The darker green, if you  46 go to the bottom right, it is highlighted, and that's  47 Kitsegukla site so it is marked out because so many of 13833  Submissions by Mr. Macaulay  1 them are close together.  2 THE COURT:  I see.  All right, and the same for —  3 MR. MACAULAY:  Kispiox.  4 MR. GRANT:  Kispiox, Sikadoak, that area you can see is  5 highlighted up above Skeena/Kispiox area because it  6 was too concentrated.  7 THE COURT  8 MR. GRANT  9 THE COURT  So it does not show the Indian reserve.  This map doesn't show the Indian reserves.  All right.  10 MR. MACAULAY:  No map of the plaintiffs shows the sites in  11 relation to the Indian reserve, but I can tell your  12 lordship that most of them are on Indian reserves.  13 Now, if you turn to tab 6 of my booklet, my lord,  14 you will see that I have some excerpts from the  15 Indian Act, and the relevant excerpts there are  16 Sections 20 -- certain parts of Section 20, Section  17 29 -- I am sorry, my lord, 20 and 50.  Section 20  18 deals with the possession of lands and reserves.  Now,  19 your lordship will recall the evidence of the -- and  20 this is something that Mr. Morrell repeats in his  21 report, based on -- presumably on what he has been  22 told by the tribal council, that houses owned fishing  23 sites; that the chief governs the fishing site, the  24 chief of the house; and that the chief can allow  25 anyone he pleases, and particularly the house members,  26 to use the fishing site.  Your lordship has heard  27 evidence about the composition of the house.  A person  28 who was born into a house remains a member of that  29 house for his life or her life, wherever he goes.  And  30 because of marriage between members of one village and  31 another, there are lots of members of a house -- there  32 are members of any given house in several villages.  33 In terms of the Indian Act that means there are  34 members of a house in a number of bands, because the  35 villages constitute bands.  Section 20 regulates who  36 may -- the circumstances under which the minister may  37 allow somebody who is not a member of the band to use  38 any part of the Indian reserve owned by that band.  39 For instance, the first provision is:  40  41 "No Indian is lawfully in possession of land in a  42 reserve unless, with the approval of the Minister,  43 possession of the land has been allotted to him by  44 the council of the band."  45  46 And then subsection (4):  47 13834  Submissions by Mr. Macaulay  1 "Where possession of land in a reserve has been  2 allotted to an Indian by the council of the band,  3 the Minister may, in his discretion, withhold his  4 approval."  5  6 And again, the Minister, subsection (6), provides that  7 the Minister may refuse, and going down to sub B:  8  9 "(b) refuse approval of the allotment by the  10 council of the band and declare the land in  11 respect of which the Certificate of Occupation was  12 issued to be available for re-allotment by the  13 council of the band."  14  15 Paragraph 50 provides -- section 50, I am sorry,  16 provides:  17  18 "A person who is not entitled to reside on a  19 reserve does not by devise or descent acquire a  20 right to possession or occupation of land in that  21 reserve."  22  23 And then it provides that:  24  25 "Where a right of possession or occupation of land  26 in a reserve passes by devise or descent to a  27 person who is not entitled to reside on a reserve,  28 that right shall be offered for sale by the  29 superintendent to the highest bidder," et cetera.  30  31 There is at least one case of a chief, a  32 hereditary chief, who is in franchise, and that means  33 he would not be entitled to live on a reserve, and in  34 fact lives outside the reserve.  He would not, under  35 the Indian Act, not have a right to enter on and use  36 his -- the hereditary fishing station.  That's -- that  37 right is governed by the Indian Act.  That's the point  38 I am making about that.  And so that in the case of a  39 great many of these fishing sites, not the ones off  40 the reserve, I am not talking about the ones off the  41 reserve, the ones on the reserve, the unfettered use  42 of the site is confined to the members of the band  43 and, within that circle of persons, the band council  44 allocates to one or to the other an area that should  45 be used.  46 To illustrate the problems that come up, tab 7, I  47 have -- these are notes, research notes, for this 13835  Submissions by Mr. Macaulay  1 witness and we received these just recently and it's  2 the -- the notes -- the informative Steve Robinson,  3 who is a chief and who has been cross-examined on his  4 territory and affidavit.  5 THE COURT:  Spookw, is it?  6 MR. GRANT:  Yes.  7 MR. MACAULAY:  Yes, he is Spookw.  And Mr. Robinson is  8 reported -- let's see, the interviewers were Ms.  9 Goertzen and Alex Morgan, and this is the  10 transcription of the tape, I gather.  Anyhow, he  11 recites the fact that Johnny Wilson is using a fishing  12 site, and he gives the history of how that came about,  13 without any right to do so.  14 Now, suppose that state of affairs -- the  15 interview was in August of 1982.  Suppose that state  16 of affairs continues today.  And Johnny Wilson is  17 using a site, has been using a site for sometime, that  18 according to the Gitksan system he is not entitled to  19 use, his entitlement to use that land for that or any  20 other purpose is governed by the Indian Act if it is  21 on a reserve.  In this case, it probably is on a  22 reserve because it's the fishing site of Nikadane, and  23 although the Indian reserves aren't set out here,  24 Nikadane's sites appear to be concentrated near  25 Gitanmaax at Four Mile Canyon.  Now, I don't know how  26 far Four Mile Canyon, the reserve goes, or whether it  27 includes -- I'd have to look at the map, another map,  28 which I don't have in front of me -- with me, but it  29 certainly includes some part of that area.  Perhaps I  30 will -- so that the question whether --  31 THE COURT:  I can't find Nikadane on this map.  32 MR. MACAULAY:  Well, it is a blow-up.  Four Mile Canyon is at  33 the bottom of the map.  Four Mile Canyon sites.  34 THE COURT:  Yes, I have it.  35 MR. MACAULAY:  And Nikadane is shown as having 1, 2, 3 sites I  36 think it is there -- 4 on the -- I think that's the  37 north bank anyhow, the top bank of the Skeena River.  3 8 THE COURT:  Yes.  39 MR. MACAULAY:  And it is presumably one of those sites that Mr.  40 Wilson is using for his fishing.  And it seems there  41 was -- as the note says, this note of -- for the  42 interview, "It is a site in conflict.  That's the  43 third line down.  If it is on the reserve, then the  44 players, according to the band council, if he is a  45 member of that band, and the subject to power of veto  46 by the Minister.  If he is not a member of that band,  47 then prima facie he is not entitled to be there at 13836  Submissions by Mr. Macaulay  1 all.  Nikadane is one point in that sense.  2 I take another example.  If Nikadane is a member  3 of another band, I am not suggesting he is, but if he  4 were a member of another band, then he himself would  5 not be entitled, without a special leave of the  6 Minister, to fish on that site, use that site, that  7 land, for fishing.  I am not suggesting that the  8 things are as finely regulated as that by the Minister  9 or any government official, but the statute displaces,  10 insofar as use of that fishing site, displaces the  11 system that this witness describes and follows in his  12 report to a considerable extent and to that extent  13 is -- what he says about occupation of sites is not  14 relevant.  It may be the subject of another action at  15 some other time.  Some of these issues have been dealt  16 with already in Sparrow, some of these issues  17 concerning fishery.  Others are raised, the by-law  18 issue is raised in another action in this court; that  19 is, the band by-law issue which governs fishing sites  20 amongst other things, fishing and fishing sites on  21 reserves, purports to.  22 Before the ruling your lordship made of 1988, it  23 was -- your lordship may recall it was almost our  24 invariable custom to trot out whatever food-fishing  25 licence we had for that particular witness, or his or  26 her relatives, and have them marked as exhibits when  27 we could.  Since then, we have not bothered to do that  28 because they are no longer particularly relevant.  29 They may be relevant to some collateral purposes in  30 some cases and the Province may consider them relevant  31 for their purposes, but the Federal Crown does not  32 consider them particularly relevant and we don't  33 intend to prove all those fishing sites or attempt to  34 prove them.  Similarly, when the original  35 interrogatories were sworn, the answers to  36 interrogatories were sworn, fishing sites were dealt  37 with in many of them with some particularity but, when  38 we came to the territorial affidavits, the plaintiffs  39 quite rightly, except in a very few instances, didn't  40 refer to fishing sites in their territorial affidavits  41 at all.  An example is John -- John David's -- that's  42 at tab 8.  Now, John David, on this map, he is the --  43 in the house of Hagwilnegh, and on this map Hagwilnegh  44 claims ownership of certain fishing sites around what  45 is known in English as McDonald Lake, and you can find  46 that by locating Smithers and moving in from Smithers,  4 7 moving down the page. 13837  Submissions by Mr. Macaulay  1 THE COURT:  Yes, I have it.  2 MR. MACAULAY:  And as a matter of fact, they are listed here as  3 Wahtahkwets, but Hagwilnegh has an interest in these  4 according to the territorial affidavit, that's the  5 fishing site locations known as toots K'eet, Keel  6 Weniits and Keel Weniits tl'ooghk'et.  7 THE COURT:  Just a moment.  I think madam reporter is going to  8 need the spelling of those.  9 MR. GOLDIE:  t-o-o-t-s.  K-'-e-e-t.  K-e-e-1-W-e-n-i-t-s.  10 THE COURT:  i-i-t-s.  11 MR. MACAULAY:  i-i-t-s, I am sorry.  and then the same thing  12 Keel Weniits, tl'ooghk'et is t-1-'-o-o-g-h-k-'-e-t.  13 Now, those features are listed by John David in his  14 territorial affidavit but not as fishing sites; they  15 are listed as geographic features.  The Keel Weniits  16 is the Copper River.  Keel Weniits tl'ooghk'et, the  17 third one, is a meadow, and the first one, toots  18 K'eet, it is there too, found it yesterday, probably a  19 creek or a river today.  It is -- I think it is a  20 lake.  Yes, it is Aldridge Lake.  Not surprisingly Mr.  21 David was not cross-examined on fishing sites although  22 we had a certain amount of information; in fact, in  23 Palmer's report it was mentioned of the land slide  24 problems of the 19th century in that area and so on,  25 but that wasn't dealt with because it was no longer  26 necessary to deal with it.  27 I mention those things in order to show that the  28 plaintiffs understood, as we understood, that these  29 issues were concerning fishing sites and fishing were  30 no longer -- to a very great extent no longer in play.  31 I am not suggesting that these particular three, they  32 are not on reserves, aren't -- their locations aren't  33 in issue, these particular three.  I just mention --  34 point out that in the affidavit, territorial  35 affidavit, was not necessary to mention them as  36 fishing sites but only as lakes and meadows.  37 In my submission, my lord, to a very, very great  38 extent this report is not relevant.  It deals with  39 matters covered -- blanketed by the two acts that I  40 have referred to, that is the Fisheries Act and  41 Indian Act.  And it is so inextricably interwoven with  42 the rest of the text that I don't see how your  43 lordship is going to handle any excision from the  44 report as a practical matter.  45 I don't intend to repeat Mr. Goldie's able  46 submission concerning qualifications.  May I add this,  47 though:  That having regard to the academic 1383?  Submissions by Mr. Macaulay  1 qualifications and the experience that Mr. Morrell  2 gave evidence about confined entirely to such things  3 as biology and ichthyology, statistics, biometrics and  4 alike, except for an undergraduate course in  5 economics, that he is not qualified to deal with the  6 historical and anthropological and legal and economic  7 matters that he deals with all through his report.  I  8 have made a note of various pages of which these  9 topics are addressed, but Mr. Goldie has, not  10 surprisingly, covered pretty well all the ones I was  11 going to mention.  12 The witness has got into the difficult field of  13 the Hudson Bay records.  Your lordship will recall  14 with the last witness who had impeccable credentials  15 as a historian, that he had -- was not familiar --  16 apparently not familiar with the Fort Babine records  17 for the period immediately following the period  18 covered in his report, the period in which Mr. Brown  19 was the agent.  And what I am submitting is that the  20 careful testing and cautious acceptance of evidence  21 that an expert, whether he be a historian, a legal  22 scholar, an anthropologist, or an economist is likely  23 to display in approaching his material, is not present  24 in the case of a person whose expertise is entirely,  25 inexcusably in a scientific field and in a field of  26 biology, and it is particularly dangerous when the --  27 this is criticizing the witness for this, but in a  28 case of a witness who has very strongly held point of  29 view, I suggest that he hasn't got the awareness and  30 understanding of the broad context of the history and  31 anthropology.  What would he be likely to know about  32 the Athapaskans or the Klingit or the Nishga?  He  33 hasn't got the training in the methodology that that  34 discipline, that other discipline has developed over  35 the years.  It is -- I submit it is wrong to say that  36 if -- a person who can interview for the purposes of  37 fishery is therefore qualified to interview for  38 anthropological or historical purposes, and the -- Mr.  39 Morrell, in those other fields, does not -- has not  40 studied the recognized texts of the authorities in  41 those fields.  He hasn't -- I doubt very much -- no  42 criticism of -- if he has a firm grasp of what Drucker  43 says and what Barbeau says and what all those people  44 say, and the things your lordship has heard so much  45 about in the anthropological field, and the same goes  46 in the other field, particularly the legal field, his  47 sources are obvious and they are narrow, they are very 13839  Submissions by Mr. Macaulay  1 narrow.  He has travelled in very narrow circles.  He  2 has been working for the tribal council for ten years,  3 starting ten years ago, I don't know if he is still.  4 That is not the -- and it is not enough to say that he  5 is associated with, consorted with or sat around the  6 camp fire with or had discussions with people about it  7 that makes Mr. Morrell no more of a historian than I  8 am, or any -- or counsel is.  9 Those are my -- so that to the extent that the  10 report contains historical, economic material, there  11 is lots of that, the propositions of economics and  12 dealing with the fisheries, I submit he is not  13 qualified and shouldn't be heard on that field.  Those  14 are my submissions, my lord.  15 THE COURT:  All right.  Thank you, Mr. Macaulay.  I think,  16 because we started early and because madam reporter  17 has been going steadily for an hour and a half, that  18 we should take the morning adjournment now.  19 THE REGISTRAR:  Order in court.  Court will recess.  20  21 (PROCEEDINGS ADJOURNED AT 11:00 a.m.)  22  23 I hereby certify the foregoing to be  24 a true and accurate transcript of the  25 proceedings herein, transcribed to the  26 best of my skill and ability.  27  28  29  30  31  32 TANNIS DEFOE, Official Reporter  33 United Reporting Service Ltd.  34  35  36  37  38  39  40  41  42  43  44  45  46  47 13840  Submission by Mr. Macaulay  Reply by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  THE COURT:  Mr. Macaulay.  MR. MACAULAY:  My lord, before my friend Mr. Grant makes his  submission I'd like to draw your lordship's attention  to another sex of the Indian Act, which is set out in  tab 6, that also has a bearing on what I have to say  about fishing locations on the river.  Section 28.  Section 28 provides that:  "Subject to subsection (2) any deed, lease,  contract, instrument, document or agreement  of any kind, whether written or oral, by  which a band or a member of a band purports  to permit a person other than a member of  that band to occupy or use a reserve or to  reside or otherwise exercise any rights on a  reserve is void."  And the subsection (2) provides that:  "The minister may by permit in writing  authorize any person for a period not  exceeding one year, or with the consent of  the council of the band for any longer  period, to occupy or use a reserve or reside  or otherwise exercise rights on a reserve."  That is another provision dealing directly with  that matter that I referred to in my submission.  THE COURT:  Yes.  Thank you.  Mr. Grant.  MR. GRANT:  Thank you, my lord.  Well, my lord, the approach  taken by my friends this morning has been to go  through a summary opinion.  It's a summary under  Section 10.  That's why this witness' evidence is  being led.  That's why there is not extensive  citations in it.  It's not like the Dr. Daly report or  other reports that you have before you in detail.  They are appendices, but it's a summary opinion.  Now,  that's the first point I wish to make, because I think  that that is why there are -- there's not the type of  citation that a full complete opinion report would  give.  The second point is that the issue as I've  indicated first this morning and -- first yesterday  morning and then this --  THE COURT:  Well, Mr. Grant, if that is so, or accepting that, 13841  Reply by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR.  THE  MR.  THE  GRANT  COURT  GRANT  COURT  MR. GRANT  THE COURT  MR. GRANT  how does that square with your answer to Mr. Goldie's  inquiry this morning if this is just a summary it  wouldn't be admissible, would it?  As a report it  isn't usual, is it, to file Section 10 summaries.  Well, it's a summary opinion without citations in  it, but with appendices to it.  The practice -- the  practice that has been adopted in this case, my lord,  has been, of course, to go through, and what my  friends are challenging are opinions of the witness  before the witness has given evidence.  And, with  respect, I say that all goes to weight.  It does not  go to admissibility of his opinions.  Well, I took it from your answer to Mr. Goldie that  you were tendering these documents and in due course  seeking to have them --  Marked as exhibits.  -- Marked as exhibits.  Yes.  Yes, that is correct.  I think that's a big part of the objections that  I've heard from counsel this morning, and I'm not sure  that they understood that you were not seeking other  than to have these documents marked as exhibits.  Yes, I am seeking them to be marked as exhibits  ultimately, my lord.  And that's the second point,  that a great deal -- of course, I didn't tender them  as exhibits now, because I wish to lead the witness  through his opinions, direct him -- to have him give  his opinion evidence and then at that point in time  depending if my friends have -- Mr. Macaulay at great  care has done some editing, or a synopsis, a seven  page synopsis of what he sees as relevant opinions in  this report or not irrelevant opinions, I guess.  But  what I'm saying is at the end of the day in terms of  whether or not tab 1 of volume 2 is marked as an  exhibit that may well be an argument that can be dealt  with then.  I noticed that yesterday you did tender these two  volumes as Exhibit 9 -- or ask that numbers 971 and  972 be reserved for it.  Yes.  Yes, it is my position.  But, my lord, the  question of whether or not this is dealt with -- ever  since we've had the first expert witness and the  question of whether or not the exhibit, that is the  opinion or summary opinion, and summary opinions have  been filed in some cases and complete opinions in  others, has always been dealt with after the witness  has given evidence, his opinion evidence.  And, as you 13842  Reply by Mr. Grant  1 may recall, in the earliest witnesses there was a  2 series of things they said which were assumptions, and  3 those assumptions were made clear on the evidence and  4 objections were taken by the other side that this part  5 of the opinion shouldn't go in unless it's clear what  6 it is, and that's how it has been dealt with.  It's  7 never been dealt with up to now where the summary  8 opinion or opinion has been argued that it should be  9 excluded prior to the witness giving evidence.  And  10 that's the first point I wish to make.  11 The second point is that I thought that I had made  12 clear that the -- that in my explanation both  13 yesterday and in clarifying certain points in your  14 lordship's questioning me this morning that there are  15 parts of this summary opinion, that is for example the  16 page 59 that Mr. Goldie made reference to this  17 morning, How Would the Fishery Interests of  18 Non-Indians be Protected Under Gitksan and  19 Wet'suwet'en Management, which I have no intention of  20 leading further evidence on.  And if at the end of the  21 day it's found to be prejudicial and should not be  22 included or not relevant it's not going to necessarily  23 be a big fight with respect to that particular page.  24 I tried to make it very, very clear.  This summary  25 opinion was delivered to my friends in January 1987,  26 and they have had, of course, since that time to do  27 the analysis that they have done.  28 Now, what I'm saying is what's important is let --  29 I'd like -- what I say is relevant and what this  30 witness is here to do, which is relevant evidence for  31 your lordship, is to describe the Gitksan and  32 Wet'suwet'en fishery historically and in its present  33 context.  That's what he's able to do.  And as with  34 other experts, and I think your lordship raised it  35 directly with Mr. Goldie, who can say it, only an  36 anthropologist?  Well, anthropologists can say certain  37 things from their discipline, but as Ms. -- Dr.  38 Antonia Mills said she relied -- she was not a  39 linguist and she was not an archeologist, but as part  40 of her discipline she would go to those sources.  We  41 have a fishery scientist here who says in terms of  42 analyzing what's happening in a fisheries management  43 system you have to study, you have to look to all  44 sources, the best available data.  And that includes,  45 and in his citations it's referred to, it includes  46 historical catch estimates, it includes an historical  47 documentation which were with respect to the fishery, 13843  Reply by Mr. Grant  1 and the existence, and other material.  So, in other  2 words, he is relying on all of the possible sources to  3 give his best opinion that he can do.  And not to do  4 so, I would say, would be a mistake and would be a  5 flaw in his research.  6 One minor point, or two minor points with respect  7 to Mr. Goldie.  One is that he did say that there was  8 no publication on his curriculum vitae which referred  9 to any -- dealing with other areas, but the witness  10 did describe his paper to an inter-disciplinary group  11 at the University of British Columbia on co-management  12 as part of his material that he had worked on.  The  13 other point is is that there is reference to the  14 hundreds of hours and Mr. Goldie said that is hearsay.  15 Of course, that includes, and it's described in his  16 appendix 1, it includes extensive personal  17 observations of what people are doing as well as  18 talking to people.  So the thesis in summary on this  19 point that is raised by Mr. Goldie is that the only  20 persons that can talk about an historical Indian  21 fishery are anthropologists, and I say that that's not  22 necessarily correct.  He has to put his eyes, a  23 fishery scientist, to the historical documents, to the  24 anthropological data that he refers to.  25 MR. GOLDIE:  I think I added, my lord, that lay witnesses who  26 purport to give oral histories.  27 MR. GRANT:  Now, with respect to an allusion made by my friends  28 of well, you have heard this all.  I just want to be  29 clear is that, of course, this witness' opinion  30 evidence must -- there must be a foundation of  31 evidence upon which his opinions can be based.  And  32 yes, you have heard evidence of fishing sites,  33 evidence of fishing resources, and it's of no intent  34 or desire on the part of the plaintiffs to be  35 repititious in the terms of the evidence, but what  36 this witness can do to assist your lordship in the  37 determinations of the issue is to look at what's been  38 going on, what's happening in the Gitksan and  39 Wet'suwet'en fishery as a fishery scientist and  40 explain the management regime as a fishery scientist,  41 and that's the aid to the corps that is intended here.  42 For example, my friends raise -- raise that the  43 witness says, and as I say this report is done in  44 January of '87, he mentions in one part of the summary  45 opinion that -- that it -- it's -- that kin groups own  46 specific sites.  You've heard that evidence, and there  47 was no intent to re-lead that evidence through this 13844  Reply by Mr. Grant  1 witness.  You've heard it not only through the lay  2 witnesses but also in terms of an anthropological  3 base.  4 Now, the other issue is, with the greatest of  5 respect, Mr. Macaulay's.  Mr. Macaulay says that the  6 area is blanketed by the Fisheries Act and the Indian  7 Act.  Now, Mr. Macaulay overlooks in his summation --  8 summary of that Section 81 of the Indian Act.  And, of  9 course, you have heard evidence, and it's been in this  10 court, and it's presently in the Supreme Court of  11 Canada, of the existence of fisheries bylaws on the  12 reserve.  So it's -- this jurisdiction is not  13 blanketed, as my friend suggests, by two simple pieces  14 of legislation.  It -- rather, it is a very complex  15 jurisdiction right now.  It's a jurisdiction that is  16 being argued about by the Federal Crown at all levels  17 from the provincial courts of this province to the  18 Supreme Court of Canada, with respect to the Gitksan  19 and Wet'suwet'en area I may add.  In the issue of the  20 bylaw the Federal Crown's postition is diametrically  21 opposed to what has just been stated to you.  They  22 state and argue and have led extensive evidence that  23 there is no reserves which include fishing sites, the  24 reserves within the area of the Gitksan and  25 Wet'suwet'en, the reserve ends at the shoreline and  26 therefore any of this Indian Act reference to fishing  27 sites they argue wouldn't apply in any event.  And  28 they use that to say that's why the bylaws have no  29 applicability and it's a dry land fishery.  30 The other aspect that my friend overlooks --  31 THE COURT:  A dry land fishery?  32 MR. GRANT:  A dry land fishery, my lord, because the Indian Act  33 Section 81 allows for bylaws to govern management of  34 the fisheries.  The Minister of Indian Affairs  35 authorize such bylaws.  And those bylaws, for  36 example -- right now, for example, in Moricetown the  37 only place that those bylaws could apply to fisheries  38 is the Moricetown Canyon.  They can only apply on  39 reserve.  The Federal Crown says they don't apply in  4 0 the Moricetown Canyon, and when put to them by the  41 court well, does that mean that you're only talking  42 about a dry land fishery, that is there is nowhere  43 else they can logically apply, this is a federal law  44 we are talking about, they say that's right.  So  45 that's why I say a dry land fishery.  That's the  46 position of the Federal Crown with respect to the  47 scope and extent of reserves within the area we are 13845  Reply by Mr. Grant  1 talking about here.  So all of my friend's references,  2 and I mean to say my friend is referring to  3 certificates of possession, he's referring to leases  4 to non-Indians on reserve land, he's referring to  5 rentals to non-Indians of reserve housing or stores,  6 none of this has got anything to do with fishing sites  7 I may say, and he's certainly stretching far afield.  8 The other point, of course, is the Section 35  9 which is being dealt with by the Supreme Court of  10 Canada in the Sparrow case also has implications here.  11 And all I need say is that, of course, it's not for --  12 it's not an issue here for your lordship to determine  13 or conclude as I conceded this morning and made clear  14 that the Gitksan and Wet'suwet'en fishery jurisdiction  15 supersedes the Fisheries Act.  It's not -- that's not  16 the issue, of course, because the plaintiffs have  17 never -- the plaintiffs did not sue the Federal Crown  18 in this court in this action and have not argued that.  19 But the question of what is the Gitksan and  20 Wet'suwet'en fishery and what does it include is an  21 issue for your lordship.  And it's -- it's not that --  22 once you say -- once you start to cut these things in  23 pieces, as my friend would suggest, and say well, we  24 are not going to talk about any fishing sites on the  25 reserve, and I dare say I don't agree with his 75  26 percent theory, but then it clouds the entire issue.  27 What we are talking about here is the existence of a  28 Gitksan and Wet'suwet'en fishery, a Gitksan  29 Wet'suwet'en fishery management regime, and that that  30 regime exists today, or October the 1st -- 23rd, 1984.  31 And that is what's relevant and that's what this  32 witness is here to talk about.  For this witness to  33 ignore a fishery that takes 50 to 75 percent of the  34 fish that the Gitksan Wet'suwet'en rely on as part of  35 his opinion of the existence of that fishery would be  36 naive in the extreme, and to that extent, of course,  37 the witness must refer to the coastal fishery.  38 My lord, I propose -- my friend also made some  39 connection between the houses -- the Gitksan and  40 Wet'suwet'en houses and then the villages which are --  41 are the village locations, and then he says the  42 villages equal the bands.  And, of course, I don't  43 know where he came to that point, because the villages  44 are geographical locations and the bands are  45 memberships of people.  46 Now, I submit, my lord, that the witness should be  47 allowed to lead his evidence, that as I say, these 13846  Reply by Mr. Grant  Ruling by the Court  1 parts of -- I've already suggested parts of the report  2 that are not going to be of crucial importance that  3 the final conclusion on that will -- will be clear  4 once his evidence is completed, and that if -- if, of  5 course, in leading that evidence we stray, or I stray  6 too far into -- in your lordship's view, into -- it  7 appears that we are dealing here with which is the  8 preferable fishery, DFO management regime of a coastal  9 fishery or a Gitksan and Wet'suwet'en regime of an  10 inland fishery, and we're getting into that debate.  11 Of course, I'll be guided by my friends' objections to  12 a degree and also by your lordship, but the point of  13 it is is that nobody has argued that the Gitksan and  14 Wet'suwet'en fishery is not relevant to this action.  15 That's what the witness is here to talk about.  He can  16 talk about it historically, he can talk about it from  17 all of the sources he has referred to, and he can give  18 opinions and the foundations for those opinions are in  19 the evidence.  20 Those are my submissions.  21 THE COURT:  Thank you.  I am not troubled by Mr. Morrell's  22 qualifications to express opinions on fisheries  23 matters even if they include some historical or  24 anthropological components.  Ten years work in the  25 field is a sufficient exposure to the primary  26 fisheries discipline he follows to permit him to  27 express fisheries opinions which may include some  28 inter-disciplinary content.  29 I am constrained to conclude, however, that Mr.  30 Morrell's report, which Mr. Grant puts forward as a  31 summary of an opinion under Section 10 of the  32 Evidence Act, cannot at this time be admitted into  33 evidence, because it and its appendices are so heavily  34 laced with arguments that are inadmissible hearsay and  35 projections or forcasts on better or future systems or  36 fishery management that they fall within that limited  37 class of cases where judges of this court have  38 recently felt impelled to rule against their  39 admissibility partly on the ground of them being  40 argumentative and partly on the ground of their  41 relevance.  I tend to accept Mr. Macaulay's submission  42 that the wisdom or the values of federal fisheries and  43 other federal legislation are not relevant issues at  44 this trial.  45 As I held in the reasons for judgment I delivered  46 in this action on February 18th of last year this does  47 not mean that Mr. Morrell cannot give any evidence in 13847  Ruling by the Court  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE COURT  this case.  I'm sure he can.  At the opening of his  examination of this witness Mr. Grant described the  areas on which he expected to adduce expert or opinion  evidence for Mr. Morrell.  I think he can give  evidence subject to all these exceptions on those  areas, or most of them.  He can, for example, tell me,  if asked, about the actual present Gitksan and  Wet'suwet'en fishing practices and about the impact of  actual fishing -- fisheries practices outside the  claimed territory.  I cannot rule on the admissibility  of historical practices as that question must depend  upon the sources of his information upon which I shall  hear from counsel as the evidence proceeds.  In brief, I think that the opinion report if it is  to be filed must be recast, but I see no reason why  Mr. Morrell should not be examined generally upon the  subject matters -- upon the admissible subject matters  described by Mr. Grant unless it transpires that those  opinions are -- come as a matter of genuine surprise  to counsel because of their complete absence from the  report, which I understand has been in the hands of  the defendants for sometime, on which I am disposed to  treat as notice of the general tenor of the evidence  which will be adduced.  I hope that that is sufficiently clear for counsel  to be able to deal with this evidence.  If there are  areas of difficulty I shall be glad to try and make  myself more understandable.  I'm not sure that I can  say much more than I have at this time.  :  My lord, if I can just raise one -- one matter that  that raises.  :  Yes.  :  And that is in approaching this evidence and  considering the timetable and those matters that your  lordship has had in mind I was going -- I intended to  have the witness, for example, when he dealt with some  areas for example of methodology or some analyses that  he did that are set out, for example, in appendix 1 to  refer you to that portion of that appendix and ask the  witness if that describes it rather than have him  describe it orally in evidence.  :  Well, Mr. Grant, I would invite you to make that  effort in the interests of expedition, and if the area  is a sufficiently limited one unless your friends  persuade me otherwise I would probably accede to  that -- accede to what you have just mentioned, which  sounds like a reasonable suggestion.  I'll have to 13848  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE COURT  Proceedings  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  wait and hear what counsel say.  Yes.  I think in this area, to borrow Chief Justice  Dixon's words, we have to be sight specific.  Depending what the actual passages are you think can  be incorporated into evidence it is not to impinge  upon the ruling I have just made.  Yes.  I just wanted to know if I can approach it  that way still.  Yes, you may.  MICHAEL MORRELL, Resumed:  EXAMINATION IN CHIEF BY MR. GRANT:  Q   Before proceeding with your findings and your opinions  I would like to canvass with you what in analyzing a  fisheries management system what areas fishery  scientists will look at, and then what fishery  scientists do, and what you did with respect to each  of those areas.  In other words, my lord, I'm dealing first with  methodology, and by covering it at the beginning then  I don't need to repeat it for each of the areas of  opinion.  Now, from what you've described yesterday I trust  that it would be accurate to say that fishery  scientists in studying a fisheries management system  would look at the number of a fish catch?  That's right.  Now, what did you do with respect to the analysis of  fish catch with respect to the Gitksan and  Wet'suwet'en fishery?  The areas covered varied from year to year.  The  technique, in general, involved making observations on  the amount of fishing effort.  Excuse me, Mr. Grant.  Sorry, Mr. Grant.  I've got  the catch varied from year to year and then you added  something else.  A  Q  A  THE COURT:  MR.  GRANT:  Q  A  Maybe what I can do is have you refer to tab 2 of  volume 2.  I'd like to go back to his lordship's comment just  then.  What varied from year to year was the area  covered.  Yes.  What was consistent was the  methodology. 13849  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  MR.  MR.  GRANT:  Q   Now, and  GOLDIE:  Sorry.  What was that last?  THE  THE  THE  MR.  THE  MR.  THE  GRANT  Q  A  Q  A  Q  A  Q  COURT  A  COURT  A  COURT  GRANT  Q  COURT  GRANT  COURT  A  THE  MR.  THE  MR.  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  :  What was consistent was the methodology.  When did you commence this aspect of your work; what  years are we talking about here?  I began work in 1979, the fishing season of 1979,  spring of 1979.  Yes.  And when did you last do this work?  Field work on the Gitksan and Wet'suwet'en fishery,  the last that I did was at the end of the fishing  season in 1985.  Okay.  So the years -- not all the intervening years were  covered.  I worked on the fishery in 1979, 1980, 1981,  1982 and 1985.  Okay.  :  You left out '83 and '84.  Pardon me?  :  You left out '83 and '84.  There was no field work in those years.  :  Yes.  Now, I was referring you to tab 2 of volume 2.  This  was your fish management study report.  Can you just  refer his lordship to the section of that report in  which you describe your methodology?  Volume 2, page two?  Yes.  Volume 2, tab 2.  Yes.  The table of contents which begins on the second page  of that report is rather detailed and serves as an  outline of the report.  What we are talking about now  would be included in Chapter 3 of the report.  And the  methodology followed in the monitoring of the fishery  is on the following page, Section 3.2, Methods of  Catch Estimation.  It's on page ii.  I'm sorry.  I'm not following you.  This is Section 3.2 in the table of contents, my  lord.  Thank you.  It's on page ii.  It's just the second page in of  tab 2.  ii?  I'm sorry.  You're on --  Page 40.  Yes.  Go to page 50. 13850  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  Q  2  THE  COURT  3  A  4  MR.  GRANT  5  THE  COURT  6  MR.  GRANT  7  Q  8  9  A  10  Q  11  A  12  Q  13  14  A  15  Q  16  17  18  A  19  Q  20  21  22  A  23  24  25  26  27  Q  28  29  A  30  31  32  33  34  35  36  Q  37  A  38  39  40  41  42  THE  COURT  43  A  44  THE  COURT  45  46  A  47  THE  COURT  That's where it commences; is that right?  Page 50?  That's right.  Yes.  All right.  And that's where you describe your methodology of  catch estimation?  That's right.  And that goes through to page 58?  That's right.  Now, this report, appendix 1 here, dealt with your  findings for 1979, 1980, 1981 and 1982?  That's right.  But the methodology as you've indicated to his  lordship that you describe from page 50 to 58 was the  same in those years?  That's right.  Now, what I'd like you to do is just to very briefly  encapsulate for his lordship what you did as terms of  your methodology?  Okay.  The object of the exercise, of course, was to  estimate the catch of the fishery in each year.  The  fishing areas, the territory was divided into  sub-areas, geographic sub-areas which are described in  here, and the year was subdivided by week.  Okay.  Can you just tell what the sub-areas were,  because they become important later in your evidence?  Okay.  For the bulk of the study the major areas were  as defined in this report what we called the Lower  Skeena, which is the Skeena -- the Skeena within the  territory downstream of the confluence of the Bulkley  River, essentially downstream of Hazelton, the Upper  Skeena, which is the Skeena above Hazelton, and the  Bulkley River.  Okay.  Go on with what you did.  Okay.  In the study we're discussing now, the fish  management study, the fisheries that we looked at were  the gillnet fisheries in the two sub-areas of the  Skeena, and the gaff, dipnet and a few other pieces of  gear.  :  I'm sorry.  Gillnet in which two areas?  The upper and lower subdivisions of the Skeena.  :  You're not talking about gillnetting in the tidal  sense?  No.  :  I see.  Gillnet in the Upper and Lower Skeena? 13851  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  A  2  THE  COURT  3  A  4  5  6  THE  COURT  7  A  8  THE  COURT  9  A  10  MR.  GRANT  11  Q  12  A  13  Q  14  A  15  Q  16  THE  COURT  17  18  A  19  20  THE  COURT  21  MR.  GRANT  22  Q  23  24  A  25  26  27  28  29  Q  30  31  32  A  33  Q  34  A  35  Q  36  37  A  38  39  40  41  Q  42  A  43  44  Q  45  A  46  47  Yes.  :  Yes.  And those terms are used differently by different  people.  I'm specifically talking about the context of  this study and how they're defined.  :  Are these gillnets standard size?  They're highly variable.  :  All right.  Thank you.  The third area is the Moricetown Canyon fishery.  And that's where you refer to the gaff?  That's right.  Dipnet and other methods?  Yes.  Go ahead.  :  Do I gather from that you excluded the Hagwilget  Canyon?  Yes.  At the present moment the fishery at Hagwilget  is to all intents and purposes non-existent.  :  All right.  What about the Bulkley River between Hazelton and  Hagwilget, did you include that in your study?  We've done -- we did some sampling.  There is some  gillnetting in that area, as in other parts of the  Bulkley.  That part was not monitored in this study.  It's a very small fishery.  It was covered in 1985,  and that's a separate -- separate report.  Okay.  Now, just because you've alluded to that can  you look at tab 8 of that volume, just the title of  it.  I'm not going to refer him to detail.  Yes.  Is this the 1985 study?  Yes.  And that's the data you collected using the same  methodology, but it refers to the 1985 year?  That's right.  And that includes reports on relatively  minor fisheries in the territory that were not covered  in the 198 -- in the fish management report which is  appendix 1 or tab 2 of this volume.  It includes those minor fisheries as well as --  As well as the areas covered in the fish management  study.  Go ahead.  Okay.  In all of these -- in all of these fisheries  the basic technique of catch estimation was the same.  The technique varied in detail according to the 13852  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  Q  5  A  6  Q  7  8  THE  COURT  9  MR.  GRANT  10  THE  COURT  11  MR.  GRANT  12  13  Q  14  A  15  16  17  18  Q  19  A  20  21  22  Q  23  THE  COURT  24  25  A  26  THE  COURT  27  A  28  29  THE  COURT  30  A  31  32  33  THE  COURT  34  MR.  GRANT  35  Q  36  37  38  A  39  40  41  42  43  Q  44  A  45  46  47  characteristics of the individual fisheries, but at  this point I'll try to describe the general method as  briefly as possible.  Is this the theoretical aspect of it?  It's covered in pages 51 through 53.  Maybe you could turn to 51 as well just in case you  want to.  Which tab?  I'm sorry.  Tab 2.  Oh.  What page?  Page 51.  This is part of the section where the  methodology is described.  Go ahead, Mr. Morrell.  I'm not certain that reference to this section is  going to be useful for the court.  This lays out the  mathematical foundation for the method.  It's not  complex, but there are symbols involved.  Okay.  Maybe just explain it in your own terms.  Okay.  The idea is that total catch can be estimated  if you know the average catch of one unit of gear and  you know how many units of gear fished.  Go ahead.  :  When I was gillnetting boats alongside each other  used to get enormously different catches.  M'hm.  That's right.  :  That's still the case, I'm sure.  That's why you need to sample many catches, many units  of gear and calculate an average among those vessels.  :  All right.  Or among those units of gear, vessels in the case of  commercial gillnet fishery, gillnet fishery conducted  from boats.  :  All right.  When you're talking about a gillnet fishery on the  Upper and Lower Skeena what is the actual fishery that  you observed?  What is the method?  The principal technique is gillnetting with fixed  nets, nets that are attached to shore.  They're also  called set nets as opposed to drift gillnets or  gillnets used in all of the tidal fisheries of British  Columbia, tidal gillnet fisheries.  Go ahead.  Okay.  So back to this idea.  The total catch is the  average catch per unit of fishing effort multiplied by  the numbers of units of effort.  To take a gillnet  fishery as an example the unit of effort that we used 13853  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  A  THE  THE  THE  THE  MR.  COURT  A  COURT  A  COURT  A  COURT  GRANT  Q  A  Q  A  was the catch of one set of a gillnet.  To calculate  total catch in a given week and given sub-area then we  would calculate on the basis of field sampling the  average catch of one set of one gillnet.  Independently of that we would measure the numbers of  gillnets in the river, estimate the number of sets  made by each net to arrive at a figure for the number  of sets that were made in that area during that time  period.  Then multiplying the number of sets by the  average catch per set we would arrive with an estimate  of the total catch.  :  When I was fishing I noticed that some fishermen  were forever bringing their nets in and others were  leaving them out all night.  Doesn't that make a  difference too?  It certainly has an effect.  And there are many other  variables that affect the catch of a particular net,  including the location where it's fished, turbidity of  the water.  :  Yes.  Other factors influencing visability in the water,  length of the net, mesh size.  :  Yes.  All of these and other, no doubt, more subtle factors  contribute to that, including skill of the people  operating the gear.  :  And how often they -- what duration the net is --  How long the net's out, yes.  :  Yes.  Did you take those factors into account in your  calculations?  Whenever -- whenever you use an average or make an  estimate it's necessary to take account of the  variation between samples or the uncertainty of your  estimate.  The total catch estimate because of this  kind of variation and uncertainty has a range of  uncertainty around it.  Statistically this is normally  expressed as confidence limits.  The sort of thing  that the accompanying information that accompanies  averages arrived at in opinion polls, for example.  And did you use confidence limits in yours?  That's right.  Much of this section on methodology  describes our attempts to -- the procedures that we  followed to -- to measure the probability or the  accuracy or the reliability of our estimates.  Okay. 13854  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 A  And the final catch estimates as presented in tables  2 in the result section of this report, and in the  3 appendices to this fish management study report,  4 present in great detail for every estimate down to the  5 weekly estimates of catch by each sub-area what the  6 range of uncertainty around the best estimate is.  7 Q   Okay.  Do you have further to say about the  8 methodology?  9 A   I think that's the methodology in a nutshell.  I can  10 continue to discuss the sampling programme and areas  11 covered and amount of field work that went into it.  12 Those numbers are all presented in various parts of  13 this report and the appendices that accompany it.  14 Q   And these, for example, on page -- just an example.  15 If you go to page 57 of your methodology section here  16 you deal with the question of whether or not -- of  17 blank days.  That is where days you didn't have data  18 as to whether the net was set on that day or not?  19 A   Okay.  I think — yes.  20 Q   And you developed rules to deal with how to calculate  21 the length of time the net was set and the number of  22 days in a week the net was set?  23 A   The section you refer to is details of the method that  24 we used to estimate total effort based on our  25 observations of actual fishing effort, yes.  26 Q   Okay.  And what you've described in more detail is set  27 out in pages 57 to 58 of this?  28 A   That's right.  29 Q   Now, is this approach and the calculation of average  30 catch, is that an approach that is accepted within  31 fisheries management?  32 A   It underlies much of the -- of the fishery data  33 that -- that occurs in the literature.  And an  34 example -- an example on this coast would be that's  35 basically the methodology used by the Department of  36 Fisheries and Oceans, if I may say so, in establishing  37 a real time estimate of catches in salmon fisheries as  38 they're operating, or indeed herring fisheries called  39 the hail catch estimates.  40 Q   Did you sample the Babine River above the confluence  41 of the Skeena?  42 A   That was not done in a systematic way in the years  43 covered in this study.  In the 1985 report there was  44 special effort made to cover the Babine River and  45 Kisgagas Canyon in particular.  46 Q   Okay.  Can you go and --  47 A   Excuse me. 13855  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  Q  2  A  3  4  Q  5  A  6  7  THE  COURT  8  A  9  10  MR.  GRANT  11  THE  COURT  12  MR.  GRANT  13  Q  14  15  A  16  17  18  19  20  21  Q  22  A  23  24  Q  25  A  26  MR.  GRANT  27  28  29  THE  COURT  30  MR.  GRANT  31  Q  32  A  33  Q  34  35  36  A  37  Q  38  39  40  A  41  Q  42  A  43  THE  COURT  44  A  45  MR.  GRANT  46  47  THE  COURT  Sure.  In the years covered in this report I did indeed visit  that area.  M'hm.  But not frequently enough to -- to make anything like  reliable catch estimates and --  Did you say it is included in 1985 or is not?  Is included in 1985.  That is something perhaps we  could work out right now.  The 1985 data report is tab 8, my lord.  Yes.  Yes.  Okay.  Because both are the same year.  That's what I  think you were concerned about.  Yes.  It might be useful to work out a shorthand for  identifying these reports.  I would suggest that the  report that we're looking at right now, the final  report of the fish management study, it's easy for me  to refer to this as the FMS report for fish management  study.  So tab 2 is the FMS report?  Tab 8 then I refer to as the data report or 1985 data  report.  The 1985 data report.  Okay.  :  My lord, tab 8, I put it in here because I knew I  was going to be cross-referencing between the two.  It's not an appendix of tab 1.  :  All right.  Maybe you could go to tab 8 for a moment.  Okay.  And included in there, Mr. Morrell, is the appendices.  And what I'd just like you -- the appendices to the  1985 data report?  Yes.  And if you could just refer maybe just possibly by  using one of those appendices explain to the court  what this methodology led to?  Okay.  Let's take the one on the top, appendix 1.1.  That's Estimated Total Effort Skeena 1985?  Yes.  :  You're on what page or figure number?  Appendix 1.1.  :  It would be the long sheet, first long sheet, my  lord.  :  Yes. 13856  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  ]  MR. GRANT  2  Q  3  A  4  5  6  7  8  9  10  11  12  13  Q  14  15  16  A  17  18  Q  19  A  20  21  Q  22  23  A  24  Q  25  A  26  Q  27  A  28  Q  29  A  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Okay.  Go ahead.  This is a copy of a computer generated table.  The  columns are headed by sometimes cryptic codes which  are explained at the bottom of the table in the  report.  If I can briefly cover the organization  under -- at the far left column is labelled week.  Those are in sequence, weeks numbered in sequence  through the fishing season.  There's a key elsewhere  in the report that equates the week numbers with  actual dates.  I don't think it's necessary to go into  that at this point.  No.  Just to be clear, there's a column starting  number one to 17 and then a week 15.  Is that one  through 17, that's just --  I call those rows.  Those are row numbers reading  across.  Okay.  Fine.  And the headings refer to the vertical columns on the  page.  Good.  Mr. Goldie wanted clarification.  You start at  week 15 and you go through week 31?  That's right.  Does that mean those weeks are consecutive?  That's right.  Thank you.  And there is a table elsewhere in this report.  That sets out which week it is?  Yes, that decodes that.  If I remember your question,  the point is simply that for each estimate that we --  that's listed here as, for example, reading across the  row corresponding to week 15, the top row of numbers,  under heading "Nets" the 28.0 is our best estimate of  the number of nets that fished in that area at any  time during that week.  The following two columns  headed "Net Low" and "Net High" respectively give the  lower limit and the upper limit on that estimate.  And  the method by which those limits -- they're  statistically not confidence limits, but they can be  used as if they were confidence limits for most  purposes.  In simple language what they represent is a  range within which I am very certain that the true  value for the number of nets lies for that week.  Likewise, we estimate in the column headed "Net  Day", NETDA, the number of days.  Let's see, it's  accumulated product of nets by the number of days that  they fished.  So the number of net days in that week 13857  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  THE COURT  9  10  A  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  MR. GRANT  32  Q  33  34  35  36  A  37  Q  38  39  40  41  A  42  Q  43  A  44  Q  45  A  46  THE COURT  47  A  followed by net day low net day high would show the  lower and upper confidence limits of that.  Similarly in getting towards the right-hand side  of the page there's a best point estimate for number  of sets in that week and set low set high as the lower  and upper limits of the range of confidence in that  estimate.  :  How is net days calculated; is that from taking an  average from the net low and net high?  No.  This is done by a step by step site by site  process beginning with direct observations of a net  fishing or net being present at each site in the area  of the river.  Field workers, I or people working on  this study would visit each net site on the river each  week.  And in addition other sampling and interviewing  would provide us with information as to what was  happening at that net site on other days.  And very  frequently net sites were visited more than once per  week.  Those were -- are the base data from which the  estimate is prepared.  Then for each site an estimate  is made of the number of days that each net fished in  that week.  So, for example, if one net was estimated  to fish during five of the seven days of that week  that would be five net days at that site.  To arrive  at total net days for that area during that week you  simply sum the estimate for each site.  Similarly the  upper and lower confidence limit is calculated  separately for each site, and the limits on the  estimate for the area is a sum of the upper and lower  limits for each of the sites.  Mr. Morrell, what I'd like you to do now is to go to  appendix 1.2, because there the first one you've just  explained is the total effort and here it is the  estimated average catch per set?  That's correct.  As I say, I'm going to the 1985 data report.  This is,  as you've described, similar methodology and similar  results, not necessarily in numbers, but similar  results in terms of tabulation for the FMS report?  Yes.  Can you explain appendix 1.2 for his lordship.  The format is basically the same.  It's also for the Lower Skeena, the same area?  That's right.  :  And the weeks are the same?  That's right. 1385?  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  THE  COURT  2  A  3  4  5  6  THE  COURT  7  A  8  9  THE  COURT  10  A  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  MR.  GRANT  29  Q  30  A  31  32  33  34  35  Q  36  37  A  38  Q  39  40  A  41  42  43  44  THE  COURT  45  46  A  47  THE  COURT  :  Yes.  In the body of the table the first column N, headed  "N" indicates sample size, which would be the number  of sets sampled in order to derive the average catch  per set.  :  Sample size of nets?  Sample size is the number of samples, the number of  sets sampled in that week and area.  :  Right.  A sample being a field worker obtaining information  about the catch in one set.  The following columns,  the third column reading from left to right headed  "CPCN" is the average catch per set for chinook.  And  there it's a straight forward matter of deriving a  statistical average out of all the sets sampled, the  average catch per set was 5.75 chinooks per set.  The  next column headed "CICN" indicates the confidence  interval for the chinook catch per set.  The way to  interpret that is that then the best point estimate of  the average catch per unit effort for chinook for that  week is 5.75 fish per set.  The lower confidence  interval, the confidence interval then is the distance  below and above that estimate that the -- that would  form the total confidence interval.  Another way of  saying that would be our estimate of catch per set for  chinook for that week is 5.75 fish per set plus or  minus 2.74 fish.  Go ahead.  And that's repeated across for CPJS, which is jack  spring or jack chinook.  Catch per set of jack spring,  catch per unit of sockeye, catch per unit coho and  catch per effort pink, and so on.  And each of those  is followed by the relevant confidence interval.  You've just gone across the top column, the number  week 15 along the top column there?  That's right.  If you could -- underneath that you have again week  15.  What are those columns after that?  The first two columns, that's for convenience for  reading across.  The first two columns in the next  tier simply repeat the columns above them.  It's for  ease of reading directly across.  :  Well, the columns at the bottom are for steelhead  and chum, aren't they?  That's it.  :  Yeah. 13859  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  ]  MR. GRANT  2  Q  3  4  A  5  Q  6  7  A  8  9  10  Q  11  A  12  13  Q  14  15  A  16  17  Q  18  A  19  20  Q  21  A  22  Q  23  A  24  25  26  Q  27  28  A  29  Q  30  A  31  Q  32  33  A  34  Q  35  A  36  Q  37  A  38  Q  39  40  A  41  Q  42  A  43  44  45  Q  46  47  Now, in just taking that first sample of week 15 the  33 nets and the average catch of chinook was 5.75?  That's right.  How did you come to that estimate?  What was the steps  to get to that number?  Okay.  We have data for 33 gillnet sets and the  numbers of fish taken in each set.  We add the total  number of fish taken in all 33 sets.  Yes.  Divide them by 33 and that gives you the average catch  per set.  And these 33 nets, these are ones where there was  observation of the catch of those nets?  Either direct observation of the catch by myself or  one of the field workers on the project.  Yes.  Information derived from interviews with the  fisherman --  Yes.  -- About catches in the recent past.  Right.  Or information recorded by the fishermen in printed  logbooks that were issued to fishermen and some  fishermen filled out voluntarily.  And that aspect of methodology is also explained in  the FMS report?  That's right.  And it was the same for the data report?  That's right.  Now -- and what you find at appendix 1.3 is you do a  calculation there of the total catch --  Yes.  -- Per week; is that right?  Yes.  Okay.  And you again refer to each of the species --  That's right.  -- Which are coded, and that code is explained in the  FMS report?  It's also explained here.  In the data report?  Yes.  The key for the coding on this sheet is found on  appendix 1.2.  There are explanatory notes on the  table which I think should be clear.  Okay.  If there is lack of clarity perhaps -- just a  moment.  I'm going back to the FMS report at tab 2 and  page 63.  I don't intend to go further with those 13860  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  A  8  Q  9  10  11  A  12  Q  13  14  15  A  16  17  Q  18  A  19  20  21  22  23  Q  24  A  25  Q  26  27  A  28  Q  29  THE  COURT  30  31  32  A  33  34  35  36  37  THE  COURT  38  A  39  40  THE  COURT  41  42  43  A  44  THE  COURT  45  MR.  GRANT  46  Q  47  A  appendices at this time.  Can you go to page 53 of tab  2, please.  63.  I'm sorry.  This is all part of your  methodology.  And here what you've done in this report  in this section on methodology is you have a  distinctive subsection in dealing with the Moricetown  Canyon?  That's right.  But you in your methodology you deal -- earlier  explanation you deal with both the Upper and Lower  Skeena together?  That's right.  Okay.  Now, can you explain why you explained the  methodology?  What was the distinction of the  methodology with respect to the Moricetown Canyon?  Okay.  The Moricetown Canyon fishery is not a gillnet  fishery.  Yes.  And so it requires collection of different data and  somewhat different technique, although the underlying  theory of the estimate is the same.  At Moricetown  Canyon the unit of effort chosen was one hour, one  hour by the clock during which fishing took place.  By one gaff?  By however many people were present.  Okay.  Could one person observe all of the fishing in  the canyon?  That's right.  The canyon area is small.  Okay.  :  Did you assume that there was only gillnetting on  the Lower and Upper Skeena and only gaff or dipping in  at Moricetown?  The analysis in the fish management study that's  presented in the FMS report focuses on only the  gillnet fisheries of the Upper and Lower Skeena and  the fishery you referred to at Moricetown Canyon.  Those are the major fisheries of the area.  :  I see.  There are indeed other fisheries in all of those areas  which were not covered in the FMS report.  :  All right.  So if somebody took a dipnet  somewhere -- along the Skeena somewhere you wouldn't  have recorded that?  That's right.  :  Or the Babine?  At Kisgagas?  That's right. 13861  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  THE  COURT  2  A  3  THE  COURT  4  MR.  GRANT  5  Q  6  7  A  8  9  10  11  12  13  14  Q  15  16  A  17  Q  18  THE  COURT  19  20  A  21  THE  COURT  22  A  23  24  THE  COURT  25  MR.  GRANT  26  Q  27  A  28  Q  29  A  30  31  THE  COURT  32  A  33  34  MR.  GRANT  35  Q  36  37  A  38  THE  COURT  39  40  MR.  GRANT  41  THE  COURT  42  THE  REGIS1  43  44  45  46  47  You would have recorded it  That's right.  All right.  Thank you.  in '85 in Kisgagas'  Okay.  Can you briefly just complete your explanation  on Moricetown.  At Moricetown Canyon the unit of effort was one hour  during which fishing took place, during which any  fishing took place, and thus -- and the catch per unit  of effort was the average catch of all people fishing  during that hour -- during an hour.  The total catch  then was number of hours during which there was  fishing multiplied by the average catch per hour.  And you've already explained this catch per unit of  effort is a standard technique of fisheries --  That's right.  -- Analysis?  :  And you haven't taken any measurement of the size of  the fish have you, or have you?  Yes.  :  You see, I haven't seen that yet.  I haven't produced it in this report.  We have  collected data on that.  :  Yes.  All right.  And —  Excuse me.  Yes.  All of the data reported in this report refer to the  fish, simply the numbers of fish taken.  :  Yes.  They're not converted to weight.  We could do that if  it were required.  We have data to do that.  When you say this report you're referring to the FMS  report?  It's true for both the FMS  :  I used to regard that as  Shall we adjourn until two  :  Some still do, my lord.  :  Thank you.  PRAR:  Order in court.  Court will adjourn until two  o'clock.  report and data report.  a fairly important factor.  o'clock. 13862  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 (PROCEEDINGS ADJOURNED)  2  3 I hereby certify the foregoing to be  4 a true and accurate transcript of the  5 proceedings herein to the best of my  6 skill and ability.  7  8 Peri McHale, Official Reporter  9 UNITED REPORTING SERVICE LTD.  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 13863  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  MR.  THE  MR.  THE  MR.  (PROCEEDINGS RESUMED AT 2:00 p.m.)  REGISTRAR:  COURT: Mr  GRANT  Order in court.  Grant.  Thank you, my lord.  Ready to proceed, my lord.  If I could just refer you  am referring back to tab 2 of volume 2, my lord, and I  will refer you to the table which is table 3.4 which I  believe follows immediately after page 69.  It is a  table of calendar days, dates, day and month of the  first day of each statistical week.  COURT:  What's the number of the table?  GRANT:  Table 3.4, it is right after — it is not a figure  or a chart, it is a table such as this, my lord.  It  is right after page 69, I believe.  COURT:  Yes, all right.  Yes, thank you.  GRANT:  And what I have done, I am going to -- I just noted  on my copy 69-A but you may want to -- if you could  just -- if you could just take it out and we will just  mark where you have it from that exhibit then from  the -- because I will be asking you to refer to it.  You can just take it out of there.  Now, I'd like to  refer you to -- oh, yes, table or figure 3.3, this  follows page 71, Mr. Morrell.  MR. GOLDIE:  3 point?  MR. GRANT:  3.3 following page 71.  MR. GOLDIE:  Thank you.  MR. GRANT:  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  this is with respect to the Upper  is that right?  it is a graphical depiction of the total  is the number of gillnet sets per week in  Do you have that?  I have it.  Now, this is --  Skeena in 1982;  That's right.  And it is --  effort, that  the Upper Skeena area?  That's right.  Okay.  Now, can you -- does this, in connection with  table 3.4 which follows on page 73 and talks about the  average sockeye catch per set in the Upper Skeena?  Excuse me, table 3.4 is the calendar dates.  I am sorry, figure 3.4?  Okay.  It is two pages following on.  What I'd like, if you  can comment on what -- that analysis tells you with  respect to the effort in relation to the species?  Okay.  I'd like to say something about the graph  format first. 13864  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 Q   Certainly, yes.  2 A   You will recall from the appendix tables that for each  3 of these values we estimate a single best estimate and  4 then a confidence interval around that.  The graphs  5 handle that by showing the best estimate as the top of  6 the darkly shaded bar, each darkly shaded bar, then  7 there is a lightly shaded bar continuing on above the  8 darkly shaded bar.  That indicates the upper  9 confidence limit.  The lower confidence limit is  10 indicated by a horizontal line partly away from the  11 dark bar.  That format is followed through this  12 report.  It --  13 Q   Go ahead.  Now then, what -- okay.  14 A   Figure 3.3 shows as the caption indicates the  15 estimated total number of gillnet sets during each  16 week of the season during which we have data.  17 Q   Okay.  And that in connection with table 3.4 will tell  18 you for example what week is week 15; is that right?  19 A   Right.  Week 15, for example, in 1982, the right-hand  20 column of table 3.4 began on the 12th of July.  21 Q   Okay.  22 A   Okay.  One other comment, one other generality about  23 this figure.  When we speak of gillnet sets, it is  24 clear what that definition is.  The time between --  25 between setting the net and picking it.  In this  26 fishery those sets generally are of several hours'  27 duration, sometimes a full day, sometimes more than an  28 full day.  The frequency of picking the nets depends  2 9 on the abundance of the fish which depends on the time  30 of year.  So during the peak of the sockeye season  31 some people would pick their nets twice a day, three  32 times a day, early in the season.  When people are  33 fishing for chinooks, especially when they are not  34 abundant people, might check their net only once a day  35 and likewise late in the season, so long sets of --  36 sometimes very long sets at sometimes of the year, and  37 shorter sets at other times of the year.  What this  38 graph indicates is that fishing efforts as measured by  39 total number of sets is low early in the season when  40 water conditions are difficult, the river is up and  41 down which creates problems for the fisheries.  Effort  42 begins to build in this case about week 13, reaches  43 high levels by week 16, that is mid July, peaks in  44 weeks 18 and 19, the first two weeks of August.  4 5 Q   Mm-hmm.  46 A  And drops off rather rapidly after week 20, so from  47 mid August on.  When we combine the data expressed in 13865  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q  A  MR. GRANT  THE COURT  MR. GRANT  Q  A  Q  A  A  this graph with the ones in figure 3.4 which shows the  average catch per unit effort of sockeye --  That's two pages following figure 3.3, my lord.  That's right, follows page 72.  It is another graph of the same --  Yes.  Yes.  Catch per unit effort is an index of the actual  abundance of the fish in the river.  Mm-hmm.  Can be taken as that.  So what this shows, not only  what it says it does, the average catch of each set,  it also gives us an index to the abundance of sockeye  in the river in the different weeks of the season.  So  we see no sockeye being taken until week 12, building  rapidly to an early peak in week 15, it is the second  week of July.  That would correspond to what the  Gitksan refer to as the first run sockeye.  Later  peaks in the season during week 17 and week 19, fairly  high levels of catch per unit effort throughout that  period from week 14 to perhaps week 19, and then a  rather sharp drop in week 20, and continuing for the  balance of the season.  Indication of the passage of  the sockeye run.  Looking back at the variation in  total effort, you can see that the peak of the total  effort corresponds with the highest catch per unit,  the highest abundance unavailability of sockeye to the  fishery.  Now, if you go on to figure 3.6 which is following  page 74, it is dealing with and again in connection  with figure 3.3 which for ease, my lord, I am going to  take out my copy, your lordship may want to so you can  follow it, and the witness may wish, too.  Again,  comparing figure 3.6, average chinook catch per set,  and does your assumption that your catch per unit of  effort applied there as well shows an indication of  the peak of the run?  It is an indication of that.  I believe it corresponds  to the peak of the run because of small sample sizes  in those weeks and high variables of chinook catches  from one location or one net to another.  The  confidence limits are rather wide and it's hard to  speak with much statistical certainty about what's  going on there.  However, there is certainly a much  higher average catch per set in weeks 14 and 15 than  later in the season.  And it looks as though there 13866  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 would be a statistically significant difference  2 between the catch per unit effort in week 14 and the  3 average catch per unit effort in week 16.  4 Q   And following, can you go to figure 3.8 which follows  5 page 76, and it is your average pink salmon catch per  6 set on the Upper Skeena, and how -- and the  7 relationship of that figure 3.3, the estimated total  8 efforts?  9 A   Okay.  chronologically as you go through the season,  10 the pink salmon run follows the sockeye run.  That's  11 demonstrated in that there is no pink catch until week  12 17; small catch per unit of effort in week 17 and 18,  13 so we are at early -- late July, early August there.  14 A peak in week 20, and relatively high catches on the  15 order of three to four pink salmon per set, two to  16 four pink salmon per set from weeks 19 through 23  17 reflecting the peak of the pink salmon run.  18 Going back to figure 3.3, the total effort, the  19 total effort begins to drop in week 20, drops sharply  20 in week 21, and remains at a plateau through weeks --  21 from weeks 21 through 22, 23, 24, indicating that  22 although there are sockeye around, my interpretation  23 of this is that people are reducing their fishing  24 effort as the sockeye run wanes and the pink salmon  25 increases.  26 Q   Now, Mr. Morrell, what conclusion with respect to the  27 Gitksan and Wet'suwet'en fishery does this timing of  28 the effort in relation to the runs of the different  29 stocks tell you?  What conclusions if any have you  30 come to as a result of this analysis of these times?  31 A   It gives you an indication of which fish the people  32 are targeting on.  33 Q   What's your opinion with respect to that as --  34 A   The sockeye is the principal species of interest, that  35 pink salmon are of lesser interest.  36 MR. GOLDIE:  My lord, I think the witness may have stated this  37 but I wonder if it would be clarified.  Figure 3.3,  38 the estimated total effort is the setting of nets to  39 catch all species; is that correct?  40 MR. GRANT:  That's a —  41 THE COURT:  I took that to be so.  42 MR. GOLDIE:  I took that, yes.  43 MR. GRANT:  Yes, that's the number of gillnet sets in the Upper  44 Skeena.  45 MR. GOLDIE:  Catch any species going by.  46 THE WITNESS:  Nets set -- gillnet set for one species do catch  47 other species.  Gillnets are not terribly selective; 13867  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 although, according to the mesh size of the net in  2 relation to the size of the fish, there are more fish  3 net catching some size of fish than others, and where  4 there is a wide difference in average size between  5 different species of fish, gillnets will tend to  6 select for one species rather than another.  That's --  7 I am not discussing that here when I am talking about  8 what people are targeting on, though.  9 MR. GOLDIE:  I just wanted to be clear.  I realize that there  10 are different mesh sizes but I took that figure 3.3  11 doesn't make any attempt to distinguish on that basis.  12 MR. GRANT:  13 Q   It is a gillnet set in the Upper Skeena?  14 A  And that includes all mesh sizes.  15 MR. GOLDIE:  Thank you.  16 MR. GRANT:  17 Q   Now, in the 1985 data report, you -- in that report  18 you deal with the data collection and your findings  19 with respect to the 1985 season of catches and catch  20 per unit effort with respect to all the species?  21 A   That's right.  22 Q   And dealing with the three principal areas you have  23 talked about as well as with respect to the Lower  24 Babine at Kisgagas?  25 A   That's right.  I might add that other minor fisheries  26 included in that is the driftnet fishery in the Lower  27 Skeena and the gillnet fishery in the Bulkley River.  28 Q   That's the gillnet fishery in the Bulkley River  29 between Gitanmaax and Hagwilget or upstream of  30 Hagwilget as well?  31 A   Both.  32 Q   And the driftnet fishery in the Lower Skeena, is that  33 the location of Gitwanga?  34 A   Concentrated in that area.  35 MR. GRANT:  Okay.  My lord, I would ask that that tab 8 be  36 marked as the next exhibit.  37 THE COURT:  Which one?  38 MR. GRANT:  Tab 8, the 1985 Data Report.  39 THE REGISTRAR:  Is that in book 2?  40 MR. GRANT:  It is in book 2 tab 8.  41 THE REGISTRAR:  Is it going to be a different exhibit?  42 THE COURT:  I don't think we need to reserve those other two  43 numbers.  44 MR. GRANT:  The first number was for volume 1 which you had.  45 THE COURT:  It was reserved for the volume 1 but I don't think  46 we need to -- well, no, I don't think we should  47 reserve those numbers.  If we come back to them, I 1386?  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  MR.  GRANT  3  THE  COURT  4  THE  REGIS  5  6  7  8  9  MR.  GRANT  10  11  12  13  THE  COURT  14  MR.  GRANT  15  THE  COURT  16  MR.  GRANT  17  Q  18  19  20  A  21  Q  22  A  23  24  25  26  Q  27  A  28  29  30  MR.  GRANT  31  32  33  THE  COURT  34  MR.  GRANT  35  Q  36  37  38  39  A  40  41  42  43  44  Q  45  A  46  47  think they should be on a different basis.  It is of no moment to me, my lord.  Volume 2 tab 8 will be Exhibit 971.  ?RAR:  971.  (EXHIBIT 971  PLAINTIFF BOOK 2 TAB  REPORT - MR. MORRELL)  1985 DATA  Now, the corresponding data, aside from methodology,  as well as methodology with respect to 1979, 1980,  1981, and 1982, is contained in Chapter 3 of the FMS  Report which is from pages 40 through to pages 109.  For which years?  1979, 1980, 1981, and 1982.  And where is it again?  It is Chapter 3 of the FMS Report which is tab 2, and  it is pages 40 through to 109.  Is that right,  firstly?  No.  Okay.  I was afraid of that.  The pages you indicate are the -- pages 68 to the end  of that Chapter 3 are presentation of the results of  the fish management study.  The only ones discussed in  the text are results for 1982.  Okay.  I believe there is a section in there referring the  reader to appendices to the FMS Report for the data  for other years.  Okay.  So the results paralleling the Exhibit 971  for 1982 are set out from pages 68 to page 109; is  that right?  He said to the end of Chapter 3.  Yes, to the end of Chapter 3.  And the methods of  calculation are at 3.2 there, my lord.  Is it pages 50  to 68 -- just one moment.  And your explanation of the  annual cycle commence at page 44 of that chapter?  That's right.  And I misspoke myself in saying that  '79, '80 and '81 data were not included in those pages  that you mentioned.  There is a table following page  68 that gives the summary data for those years, the  total catch estimates table 3.3 and follows page 68.  Thank you.  Details as are presented in the appendices of the data  report of 1985 are available as appendices to this FMS  Report as well.  The total catch data are presented in 13869  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  MR.  MR.  THE  MR.  MR.  COURT  GRANT  the body of the report in the pages that you  indicated.  Okay.  My lord, I just -- I am going to leave this  section for now but it includes the methodology, but I  would be tendering ultimately pages 44 through to the  end of Chapter 3 --  GOLDIE:  Well —  GRANT:  -- as either an exhibit or a portion of an exhibit  because further parts I will be referring to.  You are not just tendering page 44 surely.  No, pages 44 through to the end of Chapter 3, that  would be to 109, which deals with methodology, the  annual cycle and the parallel data for 1982 and some  data -- the total data relating to '79 and '81.  GOLDIE:  Well, my lord, I will be objecting to those pages  based upon that description because clearly some of  these earlier pages, namely from 44 at least to 51,  contain opinions, not factual material, and they  contain opinions which have not been verified by  reference to any facts.  Well, are you talking about opinions such as the one  on page 45, the first sockeye reach Gitksan territory  late June or early July?  GOLDIE:  No, no, I am talking about --  for instance, on  page 44:  "Provincial conservation officers have tried to  stop this fishery in recent times."  That's got nothing to do with the results of this  man's studies.  THE COURT:  Well, I am not sure, Mr. Grant, whether you really  are interested in that or not.  It seems to me it may  be admissible if the witness says it is so, apart from  the fact that it is in the report.  Is that paragraph  of any interest to you, Mr. Grant?  MR. GRANT:  Well, this section is dealing with the -- without  this section, if I may say, my lord, I am concerned  that the -- it provides as sort of the broader  perspective of what's going on in the Skeena main  stem.  That sentence itself -- the witness is going to  be speaking about some of those matters in evidence  ultimately that he's observed or he is aware of from  his research, but what I am trying to do here is,  rather than chop into totally incomprehensible bits  and pieces, is to take the section -- this section of  the report and put it in as a body rather than having  THE COURT  MR. 13870  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  him go through it sentence by sentence.  THE COURT:  I think I am going to just reserve on that, Mr.  Grant, until we get to the end of this and sort out  what we are going to do with what parts of the report  you want put in and which parts should be excluded.  It may be at the end of the day some of this will be  proved in other ways or some of it may then be thought  to be inconsequencial.  I think we will reserve on  that.  MR. GRANT:  The only concern I had on that, and I take it my  friend is concerned the pages he mentioned, 48 to 51,  is that I didn't want to go into more detail in terms  of the methodology pages.  GOLDIE:  I have no objection to what the witness set out to  prove, namely, catch.  COURT:  And that started at page 68.  GRANT:  Well, page -- and methodology at page 50.  COURT:  All right.  Why don't we put in — well, is it  Chapter 3.2 and 3.21 and --  To the end of the chapter.  That will be page 50 to  the end of the chapter.  GOLDIE:  Let's just see what that says.  GRANT:  Because 50 to 68 deals with methodology and 68 to  the end of the chapter is the parallel data as in  Exhibit 971 for the earlier years.  GOLDIE:  I agree with that.  COURT:  All right.  What is it that's going to be the next  exhibit number then?  FMS study pages 50 to the end of  that chapter, the end of Chapter 3.  GRANT:  Yes, pages 50.  I think that's 109.  COURT:  109.  GRANT:  Yes.  COURT:  All right.  That will be Exhibit 972.  MR.  THE  MR.  THE  MR. GRANT  MR.  MR.  MR.  THE  MR.  THE  MR.  THE  THE  REGISTRAR:  972.  (EXHIBIT 972  TAB 2 - PLAINTIFF BOOK 2 - MORRELL FMS  STUDY PAGES 50 TO 109 INCLUSIVE)  THE COURT:  All right, thank you.  THE REGISTRAR:  Is that tab 2?  MR. GRANT  THE COURT  MR. GRANT  THE COURT:  MR. GOLDIE  It is tab 2.  Yes, volume 2 tab 2.  And I may come back.  I will speak to the question  of the inclusion of the first part of that chapter  later, my lord, rather than spending time on it now.  Thank you.  My lord, the witness hasn't covered the -- a 13871  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  MR.  MR.  COURT:  GRANT:  GOLDIE  GRANT:  Q  considerable section of the chapter that is now being  included in by my friend in comparison to the  Department of Fisheries and Oceans estimates of  catchings.  I do not take any exception to that but I  draw your lordship's attention to it.  All right, thank you.  This is page 103 you are referring to?  Yes, and 4.  MR.  MR.  THE  MR.  MR.  THE  THE  MR.  103 and 4, yes.  We will come back to that.  Now, I started off, Mr. Morrell, earlier before  the lunch asking you about different things that  fishery scientists do and one is the calculation of  catch, catch estimates, and you have explained to the  court what you have done and you have demonstrated in  these two reports, if I can say, that portion of  Chapter 3 is one report, that is of the FMS Study and  the 1985 Data Report, the results.  Now, what I'd like  to now ask you is what observations that you made with  respect to the methods of fishing as a result of this  research.  You have now talked about the catch  estimates and the total catches, et cetera, but what  about the methods of fishing you observed, not only  those that you have recorded the amounts of catch  estimates, but the other methods within the Upper  Skeena and Lower Skeena, and how those methods apply  to the Gitksan and Wet'suwet'en fishery?  Maybe I have  said too much in one question.  A   It is hard for me to get a grip on it the way you have  phrased it.  GRANT:  From your observations did you come to any  conclusions with respect to the variety of gear used?  GOLDIE:  Well, my lord, we are not asking for conclusions;  all he is being asked for is what did he observe.  COURT:  Yes.  GOLDIE:  Yes.  GRANT:  Q   Go ahead.  A   Sorry, what's the question again?  COURT:  What kind of fishing gear did you see used by the  Gitksan and Wet'suwet'en?  WITNESS:  Okay.  GRANT:  Q   In the course of your studies?  A   I observed gillnets in the Skeena fisheries, also in  the course of discussing all the studies now.  I also  observed gillnets fished in the Bulkley River and 13872  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 discussion of gillnetting in the area would cover all  2 of those as well as a small amount of gillnetting at  3 Kisgagas.  The striking thing about that is that gear  4 is highly variable from one location to the next, that  5 the gillnets used vary in length, in depth, in mesh  6 size, and also in the manner in which they are set; in  7 other words, the manner in which they are attached to  8 shore and held in position in the current.  All of  9 this has to do with the nature of the specific fishing  10 sites, where the nets are fished; also relates to the  11 objectives of the people fishing the nets, as for  12 example, certain sites typically where there is a  13 precipitous rock bluff at the edge of the river and  14 deep water in the river and some substantial current  15 are much more likely to produce spring salmon or  16 chinook than other sites.  Many people specializing in  17 fishing particularly for chinook will fish large mesh  18 nets at those sites and take primarily chinook salmon.  19 Similarly, other sites are particularly productive for  20 sockeye and, during the sockeye run, those sites will  21 be utilized and with mesh sizes and depth and length  22 of net as appropriate to those.  So a variation in  23 gear within the family gillnets and a rather fine  24 tailoring of the gear to the site.  At Moricetown  25 Canyon of course I observed gaffing, dipnetting,  26 jigging, that is snagging fish with large hooks on --  27 attached to a stick or a pole by a stout line.  I  28 observed driftnetting in the -- particularly in the  2 9 lower part of the Skeena in the area from Andimal down  30 river.  Similarly, a variety of gear similar to that  31 used at Moricetown is sometimes used at Kisgagas  32 Canyon including gaff, dipnets and jigs as well as the  33 gillnet sites that also exist, set net sites that also  34 exist at Kisgagas Canyon.  Those are some comments on  35 the variety of gear.  36 Q   What did you observe about the location of fishing  37 sites that assisted you in your opinions on Gitksan  38 and Wet'suwet'en fishery of course?  39 A  Well —  40 Q   Just tell me what you observed first on locations of  41 the fishing sites?  42 A   Okay.  It was striking that the fishing was widely  43 distributed throughout the system and that particular  44 people fished at particular sites and, in conversation  45 with those people, I learned that there was a reason  46 for that distribution and I learned about the system  47 of site ownership. 13873  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 Q   When was it first -- when did you first become aware  2 of a concept of what you have now described as site  3 ownership in the course of your studies?  4 A   Oh, very early on.  I suppose at my first meeting with  5 Land Claims Advisory Committee, the chiefs that advise  6 the land claims office, when I first began my work in  7 1979.  8 Q   Now, you have already described through the reference  9 to these chart tables in Chapter 3 of the FMS report,  10 Exhibit 972, that you also made observations as to  11 timing and priorization of fish times by the catch  12 effort?  13 A   I observed variation in the numbers of nets in the  14 river at different times of year, also their  15 distribution; also what people were doing with them,  16 what they were catching and, talking to people, I came  17 to appreciate different fishing strategies that people  18 were using, different purposes that they had in  19 fishing ranging from catching fish solely for  20 immediate consumption and distribution to supplying  21 organized preserving operations, smoking, canning, et  22 cetera.  23 Q   Did you observe smoking and fish smokehouses?  24 A   Sure, yes, I did.  25 Q   Okay.  Now, going back to the location of the fishing  26 sites that you observed and the variety of gears  27 utilized which you indicate was -- variety of gear  28 utilized in connection with those different sites,  29 what opinion, what conclusion can you arrive at with  30 respect to the nature of the Gitksan and Wet'suwet'en  31 fishery from those two factors?  What features of the  32 fishery?  33 A   I am sorry, I didn't follow that, if you could repeat  34 it for me.  35 Q   You have described the location of fishing sites and  36 the variety of gear utilized.  From those two features  37 that you have observed, what conclusions have you come  38 to with respect to the nature of the Gitksan and  39 Wet'suwet'en fishery or what significant  40 characteristics?  41 A   One that is very hard to generalize about it but there  42 is that the fishing itself is decentralized, it is  43 widespread; that the units of production if you will  44 are family units operating independently of each  45 other; that fish are never concentrated at one point  46 after they are caught as they frequently are in  47 industrial fisheries as when a number of catcher 13874  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 vessels deliver to a central processing location.  2 Also that although it is the same river and the same  3 fish that different people have different objectives  4 in their fishing and that there are many fishing  5 strategies going on at any one time that relate to the  6 needs and the objectives of the particular family  7 units that are doing the fishing at different  8 locations.  In parallel with this, the ownership and  9 the decision-making structuring is also decentralized  10 and composed of more or less autonomous units.  11 Q   In the nature of your research you have described that  12 you have covered three different areas of the river,  13 the Lower Skeena, the Upper Skeena, and the Moricetown  14 Canyon for the most years and then the addition of the  15 Babine and the Bulkley gillnet fishery and the  16 driftnet fishery on the Lower Skeena in 1985.  Why --  17 how did you conclude where you should carry out your  18 study, in what areas and what locations you should go  19 to?  20 A   Okay.  In the first year of the study I became aware  21 of all of the fishing areas that you mentioned and,  22 although the initial intent of the study was that  23 there would be a staff of five people including myself  24 covering the entire area, because of practical  25 considerations anyway, the way it worked out was that  26 I worked by myself for the first two years, there was  27 no further staff.  So, in the first two years I  28 concentrated on the gillnet fishery in the Upper  29 Skeena with a certain amount of work at Moricetown  30 Canyon.  Those are two of the more important fishing  31 areas in terms of total effort and total catch in the  32 area.  And I picked those on the basis of what people  33 told me about what fisheries were important.  As soon  34 as more staff became available to the project in 1981,  35 continued covering those areas and expanded to the  36 Lower Skeena, which is the third major fishing area of  37 the territory.  In all of those years there was some  38 attempt to gather data on the -- what we are calling  39 the minor fisheries that you mentioned, the Lower  40 Skeena fishery, the Kisgagas fishery, and the Bulkley  41 gillnet fishery, but we didn't have the staff and the  42 wherewithal to cover those effectively until 1985.  43 Q   Well, did you come to any conclusion as to why there  44 was -- there is a focus of fisheries in specific  45 locations within the areas of the Gitksan and  46 Wet'suwet'en, and I am here referring to of course the  47 area which is the subject matter of this action? 13875  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 A  Mm-hmm.  2 Q   The land claims area?  3 A   From my observations, I inferred that fishing effort  4 and catch were concentrated in those areas for a  5 variety of reasons, the existence of suitable fishing  6 sites for one thing, and that those sites were near  7 where people lived.  Which one causes the other I am  8 not sure.  9 Q   Now, one of the other aspects of -- is another aspect  10 of fishery science, the study of fish populations  11 through history?  When I say through histroy, I mean  12 historical fish populations as well as contemporary  13 fish population?  14 A   Yes.  15 Q   And is this part of what you did with respect to your  16 study of the Gitksan and Wet'suwet'en fishery?  17 A   That's right.  18 Q   Can you explain to the court how you did that?  19 A   I gathered data from a variety of sources on the  20 history of fish populations and fisheries affecting  21 stocks of the Skeena River and tributaries.  I can  22 review in a general way some of those sources.  23 Q   Well, where did you go to, and what did you consult --  24 when I say where did you go to, I mean -- I am not  25 asking you to give a list of your memory of all your  26 different sources but where did you go to get your  27 sources for example?  28 A   Yes.  Well, I spoke to people who lived in the area  29 who were associated with the fishery.  30 Q   Such as?  31 A   Gitksan-Wet'suwet'en chiefs.  32 Q   Yes.  33 A   I also contacted other biologists that worked on the  34 system, including biologists working for the Federal  35 Government, the Provincial Government, and academic  36 biologists that I knew from my own academic years.  37 Q   Yes?  38 A   I did library research at university libraries, at  39 Department of Fisheries libraries in Vancouver and in  40 Nanaimo at the Pacific Biological Station.  I used the  41 archival or library sources that had been assembled by  42 the tribal council.  43 Q   Could I refer you to volume 1 of your document book  44 and tab 3 which is an article together with extensive  45 tables by A.W. Argue and M.P. Shepard entitled  46 Historical Trends In British Columbia Salmon Catch and  47 Production.  Is this an example of one of the sources 13876  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 that you referred to with respect to historical catch  2 and historical escapement?  3 A   This is catch only, not escapement.  The title says  4 what it covers.  5 Q   Right.  6 A   So it is a compilation by Argue and Shepard,  7 consulting fishery biologists, based on their analysis  8 of commercial catch records, since such records began  9 to be gathered since in fact there was industrial  10 commercial fishing in British Columbia.  Yes, it was  11 one of the sources that I consulted.  It became  12 available rather late in the study.  It was not  13 available during the fish management study.  14 THE COURT:  Is 1873 the start of the industrial fishery in  15 coastal British Columbia?  16 THE WITNESS:  Yes.  17 MR. GRANT:  18 Q   Is that the start of the commercial fishery on the --  19 that affected the Skeena?  20 A   1877 is the date for the Skeena.  21 THE COURT:  1873 was where, the Fraser?  22 THE WITNESS:  I am not sure of the 1873 date as the beginning of  23 the Fraser.  The Fraser was the first place that it  24 started and it would be in the 1870s.  I just flipped  25 to the first page of Argue and Shepard and they  26 referred to the inception of commercial canning in the  27 province in 1870, so essentially the data of Shepard  28 and Argue covered the existence of the commercial  29 canning industry in B.C.  30 THE COURT:  The Skeena started in 1877?  31 THE WITNESS:  1877.  32 MR. GOLDIE:  That's the date of the first cannery I take it, my  33 lord.  34 THE COURT:  Oh, I suppose that's right, is it?  35 THE WITNESS:  That's what I mean by the industrial fishery, the  36 canning industry.  37 THE COURT:  The first cannery in the Skeena was 1877?  38 THE WITNESS:  That's right.  3 9 MR. GRANT:  40 Q   Now, can you go now to the next volume, tab 2 again,  41 and I am referring you to -- not tab 2, tab 4, in  42 which there is data -- it is Appendix 3, in which you  43 refer to historical catches and escapements of  44 sockeye, chinook and coho salmon in the Skeena River.  4 5 It is volume 2?  4 6 A Volume 2. Tab?  47          Q   Tab 4? 13877  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 A   Yes.  2 Q   And this was an analysis that you did of the  3 historical catches on the Skeena River; is that right?  4 A   That's right.  5 Q   And you relied in part on Argue?  6 A   For the catch data, the catch statistics come from  7 Argue.  Sorry, let's see.  The correct citation for  8 that is in this.  9 Q   You are looking at page 6?  10 A   Yes.  And I don't find the citation there.  11 Q   Just a moment.  Now, what I would ask, if you could  12 just explain what this particular -- this historical  13 catch and escapements, how you -- you have got tables  14 here which refer to the annual escapement and targets,  15 just a moment, and if you could explain what you did  16 in terms of this and I will refer you to table A-3.1  17 in the area 4, Sockeye Catch, 1877, 1986.  Now, area  18 4, that's the portion -- that's an area that is  19 referred to by the Department of Fisheries and Oceans  20 and it's the area around the mouth of the Skeena; is  21 that right, in the coastal fishery?  22 A   Yes, area 4 includes the mouth of the Skeena and  23 offshore waters.  24 Q   Okay.  25 A   Near shore, but outside of the estuary.  2 6 Q   Now, can you explain how you compiled the data that  27 you referred to in this paper?  28 A   Okay.  The sources cited in the table, it is taken  29 from Argue 1985 which incidentally is not the Argue  30 and Shepard paper that we were just discussing from  31 the previous document book.  32 Q   Okay.  33 A   I don't have the full citation at my finger tips.  34 Q   No problem.  I will deal with that.  35 A   Okay.  So as far as a description of what's  36 represented in this figure, the data comes from  37 Argue's paper and he, in his turn, has taken them from  38 records of the Federal Government since the inception  39 of the Skeena fishery.  The solid line shows Argue's  40 estimates of the actual annual catches of sockeye in  41 the area 4 or Skeena, Skeena area, commercial  42 fisheries for the years indicated.  The dotted line is  43 an average of the -- of the numbers indicated by the  44 solid line taken in moving ten year chunks.  So, for  45 example, if you look above the line indicating 1890,  46 the solid line indicates Argue's actual estimate --  47 estimate of the actual catch in that year.  The dotted 1387?  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 line which in this case nearly coincides with it is  2 the average of the ten years centring on 1890.  And  3 similarly, for any other point on the graph, the  4 effect of this is that the dotted line smooths the  5 effect of year-to-year variation to show the trend of  6 catches over the period.  7 Q   Okay.  Now, is this the type of analysis that you  8 researched that is through Argue and others in terms  9 of dealing with historical catch for with respect to  10 the Skeena system?  11 A   That's right.  12 MR. GRANT:  Okay.  I am going to return to this particular  13 document but I just wanted you to exemplify out what  14 you were doing.  15 THE COURT:  Mr. Grant, was it your intention to have tab 3, the  16 other study by Argue and Shepard, marked in the way  17 that we have marked other source material?  18 MR. GRANT:  19 Q   Yes.  I just want to clarify with one question because  20 it was my intent -- I see it now, my lord, that it was  21 my intent to put in the other paper, but you referred  22 to the Argue and Shepard paper as part of your  23 research?  24 A   I have read it and looked at it.  It is not -- this is  25 not as valuable for the present discussion as the  26 Argue paper Argue alone cited here.  27 MR. GRANT:  Okay.  28 MR. GOLDIE:  The one thing that is common is Argue.  29 MR. GRANT:  I'd like to just reserve on that, my lord, if I  30 could.  May be appropriate time.  I am just going to  31 move into another area if it is convenient.  32 THE COURT:  Yes.  33 MR. GRANT:  You indicated yesterday that you were willing to sit  34 a little longer today.  35 THE COURT:  Yes, sit until five.  I think that's still  36 satisfactory.  37 MR. GRANT:  Yes.  I just wanted to be sure that that was your  38 intent.  39 THE COURT:  Yes.  All right, thank you.  40  41  42  43  44  45  46  47 13879  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1    THE REGISTRAR:  Order in court.  Court will recess.  2  3 (PROCEEDINGS ADJOURNED at 3:00 p.m.)  4  5 I hereby certify the foregoing to be  6 a true and accurate transcript of the  7 proceedings herein, transcribed to the  8 best of my skill and ability.  9  10    11 TANNIS DEFOE, Official Reporter  12 United Reporting Service Ltd.  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 13880  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  THE  COURT  4  MR.  GRANT  5  Q  6  7  8  9  10  11  12  A  13  Q  14  15  A  16  Q  17  A  18  19  20  21  22  23  24  25  Q  26  27  28  29  30  31  A  32  Q  33  34  A  35  Q  36  37  38  39  A  40  Q  41  42  THE  COURT  43  MR.  GRANT  44  THE  COURT  45  MR.  GRANT  46  Q  47  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  :  Mr. Grant.  :  Thank you, my lord.  Now, I'm referring you to figure A3.1 at tab 4.  Now,  first of all, I just wanted to clarify that the  reference to Argue in tab 4 of volume 2 is to A.W.  Argue 1985 An Assessment of Fishery Information for  the North Coast Mainland, an unpublished report to  Field Services Branch of Department of Fisheries and  Oceans Vancouver; is that right?  That's right.  And that's cited in your summary opinion which is at  tab 1 -- the summary of your opinion at tab 1?  That's right.  The literature cited there?  And just to complete that citation, the 1985 version  which is cited there was a draft version which Dr.  Argue was revising at the time that he sent it to me.  He sent me a revised version of his table 3.1.13 which  was the one that provided the data for the graphs that  we've been discussing.  And that, as far as I know,  formed part of a later version of the same report, his  report to the Department of Fisheries and Oceans.  Now, if you look at -- I'm at the same tab 4, my lord,  and I'm at figure A3.5.  All of these figures are  sequential, my lord.  This is a similar chart as the one A3.1 with  respect to the chinook catch between 1877 and 1985; is  that right?  That's right.  And then going on, the coho catch between 1877 and  1985 is shown on figure A3.8?  That's right.  Now, going back to figure A3.1, which at least in the  period between 1870 and 1960 has a similar curve as  the chart, the graphs regarding the coho and the  chinook.  Yes.  What does that data tell you, if anything, about the  Gitksan and Wet'suwet'en fishery?  I'm sorry, Mr. Grant, where are you now?  Figure A3.1, my lord.  All right.  I'm going to use it as the -- deal with it.  What does that curve tell you together with your other  research on the historical data? 13881  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 A   The data in the catch data here refer only to the  2 coastal industrial catches, I should emphasize.  3 The -- if you look at the trend line for simplicity  4 just in order to not be diverted by year to year  5 fluctuations --  6 Q   M'hm.  7 A   -- You see that during the early years of the coastal  8 fishery catches increased steadily.  During the  9 earlier decades, one could say up to 1910, the decade  10 1910 1920 when the sockeye catches reached their peak  11 levels.  This is a period when canning capacity was  12 expanding, when fishing effort at the coast was  13 expanding.  During that period the more fishing effort  14 was expended the more the catch -- the more catch was  15 taken each year.  That's the trend.  That's typical of  16 a developing fishery on a relatively unexploited,  17 lightly harvested stock or fish population or  18 aggregate of fish stocks.  The inference that I draw  19 from that is that at the time of the beginning of the  20 coastal industrial fishery the Skeena salmon stocks  21 were quite abundant and were not heavily harvested,  22 were not over fished by any means.  23 THE COURT:  Do the low values in the 1950's relate to the Babine  24 slide?  25 A   Beg pardon?  26 THE COURT:  Do the low values in the 1950's  27 slide?  28 A   In part.  That's kind of the next  29 of that curve.  A decline from the 1910 1920 period,  30 which was the peak coastal catches, a decline into the  31 fifties reaching a low point in the late fifties early  32 sixties.  The early part of that decline occurred at a  33 time when fishing effort in the industrial fishery  34 continued initially to follow its increasing trend and  35 then levelled off, but remained at a high level, and  36 in spite of the high level of fishing effort catches  37 dropped.  This is one of the characteristic  38 indications of over fishing, and an indication that at  39 that time that the Skeena sockeye resource was being  40 over fished.  Then as you indicated in 1951 a slide on  41 the Babine River created a blockage that prevented  42 most of the sockeye spawners bound for the Babine Lake  43 system from reaching their spawning grounds.  44 THE COURT:  For one season or —  45 A   The blockage was near complete in 1951.  Crews worked  46 on to try to clear it in that year and in the  47 subsequent year.  The blockage was substantial in both  relate to the Babine  -- the next section 13?  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  THE  COURT  3  4  MR.  GRANT  5  THE  COURT  6  A  7  8  9  THE  COURT  10  A  11  12  13  14  THE  COURT  15  A  16  17  18  19  20  21  THE  COURT  22  A  23  24  25  MR.  GRANT  26  Q  27  28  29  30  31  32  A  33  34  Q  35  36  37  38  A  39  40  Q  41  A  42  Q  43  A  44  45  46  47  '51 and '52.  :  And what do you -- you worked on a four year cycle  or five?  :  For sockeye or --  :  Yes, for sockeye.  The Skeena sockeye don't cycle properly, so not in the  sense of the Fraser sockeye.  The dominant ages in  Skeena sockeye mature spawners are four and five.  :  I see.  But in a given year one or the other may be  predominant.  You don't have the dominance of four  year fish on the Fraser, which is an element in the  cycling.  :  This is quite an encouraging picture, is it not?  In some ways it is.  Certainly from the view of the  coastal fisheries it is in that the next phase of that  curve indicates a recovery from the low points -- the  low point of the late fifties early sixties up to a  level in the 1980's at which the peaks approach  historical peak catches.  :  Yeah.  And the trend line although substantially below  historical long term averages is still in the  neighbourhood of a million fish a year.  I'll come back to that and the significance of that  later, that rising peak.  When you look at the figure A3.5 with respect to  the chinook you see a similar trend in the 1877 to  1920 period of a rising increase catch.  This is again  the coastal industrial catch?  For chinook now, yes.  The same pattern.  The peak is  somewhat displaced to the right.  And then a decline.  And is your comments with respect  to the fishery -- increased capability of the fishery,  an increased effort with respect to post 1920 for the  sockeye, does that equally apply to the chinook?  It was largely the same vessels that were operating in  both fisheries.  And similarly with the coho?  Just --  Which is at figure A3.8.  Just to -- yes.  The coho pattern is much the same.  An early increase in catches in parallel with  increases in effort followed by a declining trend in  catches, but not effort.  Effort is not shown here.  The effort data come from other sources. 13?  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  Q  2  A  3  THE  COURT  4  A  5  THE  COURT  6  A  7  8  9  THE  COURT  10  A  11  12  THE  COURT  13  MR.  GRANT  14  Q  15  16  17  A  18  Q  19  A  20  21  22  23  24  25  26  27  28  29  30  Q  31  A  32  Q  33  A  34  35  36  37  38  Q  39  40  41  A  42  Q  43  A  44  45  Q  46  47  But you've reviewed the effort data as well?  That's right.  :  You say declining effort for coho is there?  Declining catches.  :  Yes.  The effort in recent years in terms of number of both  days during the coho run, it would really depend on  what pink salmon were doing that year.  :  I see.  The coho catch is taken largely as by catch in the  pink salmon gillnet fishery.  :  All right.  I note that with respect to figure A3.5 there is not a  similar rising trend with respect to chinook as there  is with respect to sockeye in the post 1950 period?  That's right.  And can you explain that distinction?  Yes.  The principal cause of the increase in sockeye  catches in recent years is the Babine Lake development  and enhancement project which created spawning  channels at two of the tributaries at Babine Lake and  resulted in an increase in the aggregate Skeena return  from the low levels of the 1950's.  Although there  have been some enhancement efforts on the Skeena for  both chinook and coho they have not been large scale  and have not made an appreciable difference in  returns.  Also there's another phenomenon going on  here that some --  With respect to chinook you're talking about?  With respect to both chinook and coho.  Okay.  That some of the return that formerly was harvested in  area 4 in more recent years has been taken outside of  area 4 in southeast Alaska -- in waters of southeast  Alaska and northern B.C. by other fleets, by troll  fleets.  And did you in the course of your research study or  analyze the southeast Alaska catch as it affected the  Skeena catch?  Yes.  Okay.  I should say I looked at -- I looked at analyses of  that.  I didn't do an original analyses.  Okay.  With respect to figure A3.8 with respect to the  coho there's a little -- it seems there is some  difference there in that there's a dip down to around 13884  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  A  5  Q  6  7  A  8  9  10  Q  11  12  A  13  Q  14  MR.  GOLDI  15  16  MR.  GRANT  17  Q  18  19  20  21  22  23  A  24  25  26  27  Q  28  A  29  30  31  32  THE  COURT  33  34  35  A  36  THE  COURT  37  A  38  THE  COURT  39  A  40  THE  COURT  41  42  43  A  44  45  MR.  GRANT  46  Q  47  1930 and then it goes up again in the 1930 1940 period  and drops down in a similar trend to the sockeye and  the chinook?  M'hm.  Is there -- do you know why that distinction on the  coho?  I don't have any strong and certain opinion as to why  those -- those dips happened.  I think that the trend  is what's important to my analysis there.  Okay.  So that doesn't differ your opinion with  respect to the pre-contact coho?  Not at all.  The same nature as the sockeye?  £:  Excuse me.  What opinion with respect to  pre-contact?  I haven't heard the witness state that.  Your opinion with respect to the state of the sockeye  catch at the time of the commencement of the coastal  commercial fishery you described it that it was under  harvested, it was your opinion under harvested  pre-contact, because you see the rising effort and the  rising catch?  I'd say that the populations were high and robust.  Under harvested depends on what you think a proper  harvest is.  Lightly harvested, healthy populations,  high populations, not over harvested.  And does that opinion apply to the coho as well?  Yes.  The pattern is clear for all three species.  All  of them exhibit the typical fishing up pattern whereas  you add more gear, more fishing effort the catch  increases.  :  What -- you mentioned two sockeye enhancement  programmes in Babine Lake.  One is Fulton River, I  guess, is it?  Fulton River and Pinkut Creek.  :  Pinkut?  P-I-N-K-U-T.  :  Where is it?  The southern end of the lake, west shore.  :  I wasn't sure where the lake was when I drove by  Fulton River, it's about mid lake, isn't it, Fulton  Lake -- Fulton River?  Perhaps towards the outlet end, towards the north end.  It's near the middle of the lake, yes.  Now, the -- you explain, and if you just go to the  front of tab 4 you explain these graphs and you 13885  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  A  5  THE  COURT  6  MR.  GRANT  7  8  THE  COURT  9  MR.  GRANT  10  Q  11  12  13  A  14  Q  15  A  16  Q  17  18  19  A  20  21  22  23  24  25  26  27  28  THE  COURT  29  30  MR.  GRANT  31  THE  COURT  32  A  33  34  35  36  THE  COURT  37  A  38  39  40  41  42  43  44  45  46  47  THE  COURT  explain the data sources, that is the charts, and you  did graphs of different escapements for the sockeye  into different areas?  That's right.  :  Where are we now?  :  This is tab 4, the same tab we're in.  I'm just  having the witness explain what it is.  :  Yes.  And this appendix and the bar graphs as opposed to the  charts which -- the charts are from Argue, the  figures?  That's right.  And the bar graphs --  Or the line graphs.  The bar graphs are ones that you created from the data  you -- from data from the Department of Fisheries and  Oceans?  The data sources on each of the graphs in this  appendix are shown on the graphs.  For each species  there's initially a line graph showing historical  catches based on Argue, then a line graph showing  annual escapement for the entire area based on  Department of Fisheries and Oceans figures and a  further bar graph showing further breakdown of  escapements also based on Department of Fisheries and  Oceans figures.  :  I'm looking at A3.2.  Why is there such a drop in  escapement after 1984?  :  In sockeye?  :  Yes.  A3.2.  Yeah, here we're looking at annual figures not long  term averages, so what you're seeing is a very large  escapement.  In 1985 there was a very large return  which --  :  Yes.  Which the Department of Fisheries managers at the  coast elected not to -- not to fully harvest, because  it was so skewed to the Babine spawning channel stocks  that if they fully harvested those stocks they would  have done serious damage to other stocks in the  system.  The only alternative was to allow an  escapement of roughly double to the target system.  This is something we are going to get into some detail  on.  The following year escapement was still within  the kind of annual variation that we're seeing.  :  All right.  Thank you. 13?  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  MR.  GRANT  2  3  4  5  6  7  8  THE  COURT  9  MR.  GRANT  10  THE  COURT  11  MR.  GRANT  12  13  THE  COURT  14  MR.  GRANT  15  16  Q  17  18  A  19  Q  20  21  22  A  23  Q  24  25  26  A  27  Q  28  29  30  A  31  Q  32  A  33  34  Q  35  36  37  38  A  39  Q  40  41  42  A  43  44  45  46  47  Okay.  I'm going to return, my lord, to those  figures, and also to the bar graphs in the context of  the maps, and what I will do is I'd like to refer your  lordship and the witness to map 20 now.  This -- this,  my lord, is map 20 from Exhibit 358.  It has not been  marked or identified to date, and in fact I provided  the court's copy.  Yes.  It hasn't been in your atlas before.  Thank you.  I'm going to take the liberty of pulling it out of  the atlas .  :  Some escapement going on.  :  There was, I hope, no salmon.  I think the Bible  will dry off before the next witness, my lord.  Now, this -- this map 20, Mr. Morrell, was this map  prepared under your direction?  That's right.  And with respect to the commentary on the top of this  map was that -- is that your commentary in your  opinions?  I wrote it.  And the preparation of the graphs of sockeye  escapements, the three graphs in the upper left-hand  corner, did you prepare those?  Yes.  Okay.  Now, what I would like you to do, if you could,  is to explain -- I say, you prepared those based on  data that you collected from other sources?  That's right.  Thank you.  I compiled the data and set out the form of the  graphs.  Now, would it be fair to say that this is a regional  fisheries map which deals with the Skeena Nass River  system and a minor portion of the Fraser system  that -- that has an effect within the claim area?  Yes, in part.  There's also more on it.  Okay.  Now, can you just maybe explain to his lordship  what the map represents and explain these pie graphs  that are on the map?  Okay.  The purpose of the map is to show the  distribution of fish production, and the major  emphasis of the map is on salmon throughout the region  surrounding the Gitksan and Wet'suwet'en area, both to  provide a setting and to illustrate some of the  distinctive aspects of the Gitksan Wet'suwet'en 13887  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  Q  13  A  14  15  16  17  18  Q  19  A  20  THE  COURT  21  A  22  MR.  GRANT  23  24  THE  COURT  25  A  26  27  THE  COURT  28  A  29  MR.  GRANT  30  THE  COURT  31  MR.  GRANT  32  Q  33  34  35  A  36  Q  37  A  38  Q  39  40  41  42  MR.  GOLDI  43  44  45  46  47  country.  The numbers that are illustrated in the pie  charts represent escapement figures.  That is spawners  in each of the subdivisions of the area that are  indicated.  And escapement is indicated at two levels  for each species, both target escapement where that's  available, and I'll get to a definition of that in a  moment, for the moment let's say a desireable  escapement, and actual escapement for the period  averaged over the period 1980 to 1986.  The map also  includes indications of important eulachon harvesting  areas in the region.  Can you point those out?  They're the diamond shaped spots.  There's one in the  Nass system near Fishery Bay near the mouth of the  Nass River, another one at the head of Douglas  Channel, another near the mouth of the Kemano River,  two others in the estuary of the Skeena River.  Those are those white diamonds?  Yes.  Just six of them, are there?  Pardon me, of the diamonds, the eulachon areas?  There's seven, my lord.  One's at the Portland  Inlet.  I see seven, yes.  I see eight actually.  One on the Nass, two on the  Skeena, two on Douglas Channel --  Oh, yes.  One at Kemano, one at Bella Bella.  Bella Bella.  Yes.  All right.  Now, with respect to the commentary at the top -- I  didn't mean to interrupt you.  You covered your  introductory explanation of the map; is that right?  There's more to say as we get into salmon.  We'll come to it.  Sure.  You state, I'm just going to edit that, "Fish,  especially Pacific salmon, are central to the Indian  economies of the Pacific watersheds or northwestern  North America."  'Ģ1:  My lord, I don't -- it's not important, but if the  witness is going to adopt that I have an objection.  The ten years of experience to which your lordship  alluded is in the land claims area, and I've heard  nothing which indicates that the witness -- it is  appropriate for the witness to talk about the Indian 13?  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 economies of the Pacific watersheds of northwestern  2 North America.  3 MR. GRANT:  With respect, my lord, I haven't even asked the  4 question yet which was to deal in part with that  5 point.  6 THE COURT:  Well, your friend is objecting on the basic  7 qualifications, and you might address your questions  8 to that objection if you wish.  9 MR. GRANT:  That's exactly what I was anticipating doing given  10 the nature of the qualification.  11 THE COURT:  All right.  Thank you.  12 MR. GRANT:  13 Q   Is is it your conclusion that fish, especially Pacific  14 salmon, are central to the economy of the Gitksan and  15 Wet'suwet'en?  16 A   Yes.  17 MR. GOLDIE:  Of course we know what the answer was going to be,  18 the objection was to the question.  19 THE COURT:  It had a certain resemblance to a leading question I  20 heard once.  21 MR. GOLDIE:  You must have a little humour occasionally.  22 MR. GRANT:  23 Q   Now, what I'd like you to --  24 MR. GOLDIE:  The objection, my lord, stands in case my friend  25 has missed the point.  26 MR. GRANT:  No, I've never missed your points, Mr. Goldie.  27 Q   With respect to your opinion that -- what do you found  28 that conclusion on?  How have you independently come  29 to that conclusion, that the fish, especially salmon,  30 are important to the Gitksan and Wet'suwet'en?  31 MR. GOLDIE:  That isn't what I'm objecting to, my lord.  It's to  32 the Indian economies of the Pacific watersheds of  33 northwestern North America.  34 THE COURT:  I think the last question was related to the  35 plaintiffs, was it not, Mr. Grant?  36 MR. GRANT:  Yes, it was.  37 MR. GOLDIE:  But —  38 THE COURT:  Your objection is to the economy.  39 MR. GOLDIE:  My objection is to the statement in the narrative,  40 and if my friend wishes to confine himself to the  41 Gitksan Wet'suwet'en that's fine, but my objection  42 stands to what is found in the narrative.  4 3    THE COURT  4 4    MR. GRANT  4 5    THE COURT  Yes.  Where is the passage in the narrative  9  It's right in the first sentence, my lord.  First sentence.  Well, I think that if that sentence  46 were confined to the claim territory it would qualify,  47 or the witness would be qualified to give the opinion 13?  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE  MR.  COURT  GRANT  Q  A  THE  THE  MR.  THE  MR.  A  COURT  A  COURT  GRANT  COURT  A  GRANT:  Q  A  Q  A  Q  under the inter-disciplinary portion of the ruling I  made this morning.  I do not think, with respect, the  witness can give general opinion evidence regarding  Indian economies of all the Pacific watersheds.  : And I think the focus on it, my lord, was to cover  both aspects of it. That is to deal with it exactly  as you suggested.  :  I think I only mentioned one aspect of it.  Well, with respect to the statement as it's written  there, Mr. Morrell, is that assumption you've made  based on -- what is that assumption that you have made  that fish, especially Pacific salmon, are central to  the Indian economies of the Pacific watersheds of  northwestern North America based on?  Talking about  the broader statement.  I know that from my general knowledge of Pacific coast  Indian cultures it's a central fact.  It's not an  obscure piece of information.  I don't see that it's  central to -- to what's indicated by this map, but I  believe that it's true.  And now what I'd like to do is to -- when you look at  this -- this map the sockeye runs, which are the dark,  the chocolate colour I guess I can call them, or the  brown colour are very predominant in that pie area  within the Upper Skeena system that you've labelled as  the Upper Skeena system, and also very predominant in  the Upper Nass system, the Stuart Lake system and  Nechako River system?  That's right.  :  I'm sorry.  These colours show what, escapement?  Is  it an escapement?  That's right.  Yes.  All right.  Okay.  Is this projected or actual?  Both are indicated.  I think some comments are in  order as to what the pie diagrams represent.  Okay.  That's what I was going to come to.  Sorry.  Maybe you could take one of the pie diagrams,  whichever one is convenient on here for you to  indicate what they demonstrate?  Let's take the one of the upper right of the graph  labelled map symbols.  In the legend? 13890  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  A  2  Q  3  A  4  5  6  Q  7  A  8  9  10  11  Q  12  A  13  Q  14  A  15  16  17  Q  18  A  19  20  21  22  23  24  25  26  27  28  29  30  31  Q  32  A  33  Q  34  A  35  36  37  38  39  THE COURT  40  A  41  THE COURT  42  43  A  44  THE COURT  45  46  47  A  The legend, yes.  Yes.  Okay.  The full pie, the 360 degrees of the circle is divided  into five sections one of which is the pink salmon.  This section is further subdivided into two.  Why is that?  Because there's a distinction between odd year runs of  pink salmon and even year runs of pink salmon.  They,  in effect, represent separate genetic population and  they behave as separate populations.  They would operate on a two year cycle?  That's right.  Okay.  Such that in a given river system the odd year pink  run may be very abundant and even year pink run  non-existent or very small or vice versa.  Okay.  Go ahead and explain the pie.  Okay.  In -- throughout this graph any unit area of  any segment of the pie represents a fixed -- the same  number of fish.  It's proportional to the actual  number of fish represented.  Each of the species is  represented by a different colour, and the species are  also separable by the location in each pie chart.  Within any one segment of the pie chart the more  darkly shaded section indicates actual escapements,  the average escapement during the period 1980 to 1986,  and according to data that were available to me.  The  more lightly shaded area represents the target  escapement.  Those terms are defined just to the left  of the pie diagram in the legend section.  Under the photographs?  That's right.  M'hm.  Escapement being the numbers of fish that escape the  fisheries and are able -- reach the spawning grounds  and are able to spawn.  The target escapement being an  estimate by fishery managers of the -- the ideal  number of spawners moving.  :  Can I just ask you --  Sure.  :  The large one that you have which is right under  heading Upper Skeena system.  Yes.  :  That pie chart looks to me to be centered between  the Skeena and the Bulkley.  Is it intended to include  the Bulkley?  Yes. 13891  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  THE  COURT  2  A  3  4  5  THE  COURT  6  A  7  8  THE  COURT  9  A  10  11  THE  COURT  12  A  13  14  15  16  17  18  19  20  21  22  THE  COURT  23  A  24  THE  COURT  25  26  27  A  28  29  THE  COURT  30  A  31  32  33  34  MR.  GRANT  35  Q  36  A  37  38  Q  39  A  40  Q  41  A  42  43  44  45  46  47  :  So it's —  That can be determined by -- you'll see right  underneath the pie chart in the legend the map  symbols?  :  Yes.  There are indications of drainage system boundaries  major and minor.  :  Yes.  So if you follow -- let's see where can we pick up a  dark red boundary.  :  The east shore of Babine Lake.  Yes.  Okay.  If you follow that around it you'll see  outlines.  The Babine drainage comes down, skirts the  edge of the Fraser drainage, passes more or less west  to the south of Houston, including the Bulkley  drainage, comes over to the height of land separating  the Bulkley section of the Skeena drainage to the  coastal drainages to the west and then they're --  we're onto the black boundary line indicating a  separation between a -- between major watersheds that  is the Skeena system from the coast.  :  Yes.  You get the picture?  :  M'hm.  All right.  So you're treating for this  purpose the Bulkley as part of the general drainage  system of the Babine Lake and Upper Skeena?  Part of the Upper Skeena system in that it is a  tributary to the Skeena system.  :  Okay.  As your question indicates, this is -- we're looking  at quite a gross level of resolution here.  The  intention is to give a regional perspective on salmon  production.  Okay.  Go ahead with your explanation of the pie.  I think that covers the basic symbols  species.  Okay.  Okay.  for the fish  M'hm.  Now --  One —  One moment.  I'm just thinking about the pink salmon  portion.  One point that's worth noting is that target  escapements used by the Department of Fisheries and  Oceans for pink salmon are in I believe all cases, I  don't think there are exceptions, there may be, are  the same for both odd and even years.  That is even in  a system that is cycling such that the even year run 13892  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 is much more abundant than the odd year run.  The --  2 the target escapement cited by the Department of  3 Fisheries and Oceans is geared to the level of return  4 of the more abundant of the two years, so you'll see  5 that in all of the pink salmon segments of the graphs  6 the target escapement is the same for both of the  7 segments, although the actual escapement may be less.  8 In order to avoid a visual distortion the number  9 indicating the level of the target escapement within  10 the pink salmon segment is in fact half of the actual  11 target escapement.  The number there is proportional.  12 Q   Could you give him an example of which one you're  13 referring to with the numbers?  14 A   Okay.  15 Q   Take DFO statistic area 6 west.  16 A  All right.  That was the one I was looking at.  17 Q   Which has a number of 466,786 in both parts of the  18 pink?  19 A   That's right.  In fact the target escapement for both  20 the even years and the odd years, the odd year being  21 the upper segment, the even year being the lower, the  22 target is in fact -- I can't in my head add that, but  23 approaching one million fish for the area.  If we  24 indicated that for each half segment we would  25 affect -- visually we would double the area given to  26 that segment.  Essentially we would be double counting  27 the target escapement, pink escapements would dominate  28 the graph even more than they already do, and it would  29 be a misrepresentation visually.  So there's a need to  30 explain that, it seems to me, verbally.  31 MR. GOLDIE:  My lord, I wonder if the witness might transfer his  32 attention to the Skeena pie that we've been looking at  33 and clarify for me, if my understanding is correct,  34 that with respect to the pink the actual escapement  35 exceeds the target escapement in the upper -- the  36 upper half of that pie?  37 MR. GRANT:  Yeah.  I'm going to come to that.  38 THE COURT:  Not quite.  One's 374 and one's 382.  39 MR. GRANT:  No.  I'm going to come to that, my lord.  And I have  40 no difficulty with dealing with that in the context of  41 that, but I'd like to use a more dramatic example.  42 Maybe the Lower Skeena.  43 Q   You see there, Mr. Morrell, the Lower Skeena system  44 pie you have in the odd year the pinks, the pink pie  45 goes further out than it does in the even year.  Can  46 you -- and also that's darker in the odd year all the  47 way out, and there's a lighter shading on the inside. 13893  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  A  3  Q  4  5  6  7  A  8  9  10  11  12  13  14  15  Q  16  A  17  18  19  20  21  22  23  24  MR.  GRANT  25  26  THE  COURT  27  28  MR.  GRANT  29  THE  COURT  30  31  32  33  A  34  35  THE  COURT  36  A  37  38  39  40  THE  COURT  41  A  42  MR.  GRANT  43  Q  44  45  46  47  A  You see what I'm referring to?  Yes.  Can you just explain what -- which of those numbers,  of those four numbers refer to target escapements,  which refers to actual escapements, and why that  difference?  Yes.  It's better to pick up a species other than --  than pink salmon to illustrate this, because they're  two separate things going on that confuse the issue.  To illustrate the point you're driving up I would  prefer to discuss the Upper Skeena sockeye where you  have the same phenomenon where the actual dark  escapements exceed what would be lightly shaded target  escapement.  Okay.  Go ahead.  Start with that.  Okay.  So looking at the Upper Skeena pie the entire  segment is darkly shaded.  There are two numbers.  One  of them roughly 1.1 million, the other 944,000.  The  1.117 million represents the actual average escapement  for the years 1980 to 1986.  That exceeds the target  escapement for that segment which is 944,000 and  corresponds if you look very closely to a -- a dark  red line just inside the perimeter of that pie slice.  That line goes between the one and the seven on the  external number, my lord.  It's very hard to see.  Very hard is an understatement.  There is a red line  there, is there?  Yes.  Yes.  All right.  I can see it.  Well, I thought  from looking at the legend that the target escapement  was the one on the outside, closest to the outside  perimeter and the actual is in --  In most cases it is, because in most cases actual  escapements are larger than the target escapements.  Yes.  There are situations like sockeye in the Upper Skeena  River when you aggravate all of the stocks in the  system like that the actual escapement exceeds the  target.  Yes.  All right.  Okay.  Now, is that what you have when you look at -- if I  could take you back now to the Lower Skeena system pie  and you see the odd year pinks the figure of 559,497.  Does that reflect the actual escapement?  Yes, it does. 13894  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  Q  2  3  4  A  5  Q  6  7  8  A  9  10  THE  COURT  11  12  13  A  14  15  16  17  18  THE  COURT  19  A  20  THE  COURT  21  22  A  23  THE  COURT  24  A  25  26  27  THE  COURT  28  MR.  GRANT  29  THE  COURT  30  MR.  GRANT  31  Q  32  33  A  34  Q  35  36  37  38  A  39  Q  40  41  42  A  43  44  45  Q  46  A  47  Q  And the 452,875 reflects the target escapement in the  odd year, or half the target escapement?  You follow  me?  Yes.  And there you see the red line in the odd year and  that's similar to what you were trying to demonstrate  with the sockeye?  Yes.  It's a similar situation there where the actual  escapement exceeds the target.  What are you talking about.  When you say Lower  Skeena system where are you postulating these escaping  fish to spawn?  The outline of that drainage is indicated as in the  other one.  Most of the lower -- there are several  pink stocks using the Lower Skeena system.  The  largest of those is the one that spawns in the Lakelse  system.  Lakelse?  Yes.  In the outlet of Lakelse Lake, Lakelse River.  The Lower Skeena extends down almost to the coast  there?  Yes.  Almost to Prince Rupert.  Well, in fact, the -- that's right.  The boundary line  of that area crosses the Skeena near the diamond  indicating the eulachon fishery in the Lower Skeena.  Yes.  All right.  You can see DFO statistical area 5.  Yes.  And then you can see the geographic feature just above  that Ecstall River, Mr. Morrell?  Yes.  That Ecstall River would be within the pie chart that  you've referred to as DFO statistical area 5 including  the coastal region of statistical area 4; is that  right?  That's right.  And the light line just above the Ecstall River is  what's described as a minor drainage system boundary,  the one that you describe as a boundary?  That's right.  Although there's -- your eye may be  taken by another red line coming down the Skeena and  ending at Prince Rupert, which is a highway.  Yes, but the one that's going across the river?  That's right.  And that's sort of the lower edge of the Lower Skeena 13895  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  system pie?  That's what's indicated in the legend as a minor  drainage system boundary.  That is separating the  Lower Skeena from the Upper Skeena and in turn from  the coastal area.  :  All right.  I think we should take a few minutes  adjournment.  Madam reporter, are you going to stay  with us?  You are.  All right.  We'll take a ten  minute adjournment.  (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING SHORT RECESS)  A  THE COURT  THE COURT:  MR. GRANT:  Q  A  Q  A  Q  A  Q  A  Mr. Grant.  Yes, my lord.  Okay.  Now, Mr. Morrell, can you just -- I believe  where I was was dealing with the Lower Skeena system  and the pinks in terms of the difference between  actual and target escapements.  Okay.  Can you explain those odd year and even years in that?  Yeah, I came to that.  I would like to make some  comments about pinks in general.  On this chart?  On the whole map.  Go ahead.  Okay.  There's a bit of difficulty in expressing the  numbers of the odd and even year segments of the pink  runs to give in areas.  There's a danger of visual  distortion.  So effectively to get the true numerical  values of both target escapements and actual  escapements for pink runs you need to double the  figures that are shown on the map.  The numbers that  are shown on the map -- the numbers shown are  proportional to the areas, that is the geometrical  areas of the pie segment.  The reason -- the reason  those numbers -- the reason the areas are proportional  to half of the actual and target escapement for the  odd and the even years respectively is that the even  year and the odd year runs respectively have their own  averages within those populations, but each of them  only contributes half to the seven year average that  is presented here for the other species.  If we  presented the actual numbers for the pink salmon in  the even and odd years, and the pie slices had a  geometrical area equivalent to those numbers, then  effectively you would be putting in a three year and  four year average for the pink salmon up against seven 13896  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 year averages for all the other species and  2 effectively you would be visually doubling the  3 importance of the pink salmon.  4 Q   Go ahead.  If you could just explain that by the  5 numbers in one of the examples?  6 A   If you look at the lower right pie chart for DFO  7 statistical area 7, by coincidence it turns out that  8 the odd year pink salmon escapement is labelled  9 155,000 approximately.  Okay.  Compare that to the  10 target escapement of 310,000, just twice that  11 amount --  12 Q   For chum?  13 A   -- For chums in that same area.  You'll see we're out  14 to the same linear distance.  The actual odd year  15 average escapement for statistical area 7 is 310,000  16 fish for the odd years of that 1980 to 1986 period.  17 So the actual average number returning in the odd  18 years is not 155,000, but 310,000.  In order to  19 represent 310,000 with half a pie segment using an  20 area of the pie segment proportional to the numbers  21 that half pie segment would have to have a radius  22 double what it actually has.  When you added on the  23 escapements in the even year part of the pink cycle  24 you would, if you used the true numbers and pie  25 segment area in proportion to that, you would  26 effectively double the -- visually you would be  27 presenting that pink salmon are twice as abundant as  28 they are.  So the formula for deciphering this is that  29 all of the pink salmon numbers printed on the graph on  30 the pie charts should be doubled to give the actual  31 averages for the odd and even years respectively, or  32 the target escapements.  So if I can complete that  33 deciphering.  For statistical area 7 the target  34 escapement for both odd and even years is roughly  35 441,000, although it's indicated the area -- the  36 geometrical area of the pie segment is equivalent to  37 220,000 some units.  The actual escapements are  38 indicated as 155,000 for the odd year and 85,000 some  39 for the even years.  In fact the actual averages for  40 those years are 310,000 for the odd years and what,  41 170,000 or so for the even years.  It's --  42 Q   So the pie of the pink salmon when you look at this  43 chart and you take that colouration it shows the total  44 pie, both odd and even years, when you add them  45 together would show the target escapement, for example  46 of pink salmon, the average target escapement for the  47 seven year period? 13897  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 A   The target escapement is the same in each year, yes.  2 Q   So the total of the pie would show that if we're  3 looking at the pie the target escapement is above  4 actual escapement each of those years?  5 A   That's right.  6 Q   That demonstrates that over the seven year period the  7 pink pies for the pink salmon --  8 MR. GOLDIE:  No, you're right the first time.  9 MR. GRANT:  10 Q   The pink pies for the pink salmon over the seven year  11 period is proportional when you look at the pies to  12 the other species over the seven year period?  13 A   That's right.  14 Q   Thank you.  15 A   The explanation is getting complex.  I hope I'm not  16 introducing confusion.  It's not a very complicated  17 point.  There might be some inconsistencies arising.  18 If you look at this visually this is an accurate  19 representation of relative abundance of all of the  20 runs involved.  In all cases if you -- if the light  21 area of the pie segment exceeds the dark area the  22 actual returns are smaller than the target returns.  23 If the dark part of the segment is larger than the  24 lightly shaded then the actual escapements are  25 exceeding the target escapements.  26 Q   Okay.  I'd like to turn you to the Alaska statistic  27 numbers, because there you do not have light and dark.  28 A   That's right.  29 Q   You just have one number in each of the little pieces  30 of the pie.  Can you explain that?  31 A   The Alaska Department of Fish and Game has not  32 developed target escapement values for its -- as part  33 of its management programme and so the data presented  34 for southeast Alaska are only averages of actual  35 escapement.  36 Q   And what you've described about doubling the figures  37 for pink salmon would apply equally to pink salmon  38 numbers in Alaska?  39 A   That's right.  40 Q   The Taku River system only has one set of numbers?  41 A   That's right.  42 Q   Can you explain that?  43 A   There are no accurate data available on current  44 escapement for the system.  Those -- the numbers that  45 appear there are based on rough estimates of  46 capability of the system roughly equivalent to target  47 escapements, but in both these trans-boundary river 1389?  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  Q  6  7  8  A  9  10  11  Q  12  A  13  14  15  16  17  18  19  20  21  22  23  Q  24  25  THE  COURT  26  27  A  28  THE  COURT  29  A  30  THE  COURT  31  A  32  THE  COURT  33  A  34  35  36  THE  COURT  37  MR.  GRANT  38  Q  39  40  A  41  Q  42  43  44  45  A  46  Q  47  systems we are dealing with data that are not as  reliable as for the rest of the map.  The other  trans-boundary river system would be the Stikine -  Iskut system.  I take it because you're only looking at a target  escapement with pink and in that case would that have  to be doubled or would that be reflective?  That 200,000 is proportional to the area of the entire  pie slice.  You could divide it in half if you want to  get the same visual effect as the rest of the area.  Then you have the Stikine - Iskut system?  That's right.  And, again, with some you have two  figures and some you only have one.  For example, chum  and pink there's only one figure and the other species  there's two.  In a sense both data sets are available  for the Stikine - Iskut system although the actual  escapement estimates for the chum and pink are either  negligible or the estimate is there is none.  We're  into an area of great uncertainty there.  With the  Stikine - Iskut system the data for sockeye, chinook  and coho are better than for pink and chum in the  system.  Okay.  Now, I'd like to take you up to the upper  right-hand corner of the map 20.  :  Before you leave the north, are there any large  sockeye rivers in Alaska beyond the map?  Beyond the map?  :  Yes.  Certainly the rivers flowing into Bristol Bay.  :  They have large sockeye runs?  Millions of fish.  :  I'm sure as they are in the Panhandle?  Southeast is not a big sockeye producer, nor spring.  Again, anticipating -- I see you're -- the coastal are  not a big sockeye and chinook system.  :  Thank you.  Up to the top right.  Yes.  Now, you have there -- you have a description of  cycles?  Top left.  That's your description of cycles.  Above that sockeye  escapements 1970 - '76.  You refer to Nass, Skeena and  Fraser River systems.  That refers to -- those two can  be looked at together; is that right?  That's right.  Now, firstly, just to be clear with respect to the  Fraser River system, are you only there looking at the 13899  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 Nechako and Stuart system which is reflected on the  2 map itself?  3 A   That's right.  4 Q   Okay.  And so these bar graphs only refer to sockeye  5 that are reflected on the map in these three river  6 systems?  7 A   That's right.  8 Q   Okay.  Now, you were asked earlier by his lordship  9 when you raised the question of cycles, and is that  10 opinion that you've set out in the rectangle, that is  11 your opinion regarding cycles?  12 A   That's right.  13 Q   And can you just explain for his lordship about the  14 distinction between the sockeye cycling in the Fraser  15 system, in which I understand you describe there a  16 four year cycle, and the Skeena and Nass system?  17 A   Okay.  Part of the point is to be -- be clear about  18 the definition of cycle, and to distinguish between  19 cycles and year to year variation.  All salmon runs  20 vary from year to year in their abundance.  Salmon  21 runs to any system vary from year to year in  22 abundance.  In some cases the variation is regular and  23 quite predictable.  That is referred to as cyclical  24 variation or cycles.  Other sorts of year to year  25 variation may be popularly referred to as cycles, but  26 I want to draw a distinction between cycles in the  27 sense that I use them here and biologists use them and  28 simply irregular year to year variation.  This is  29 illustrated on these -- on these bar graphs which show  30 actual escapements.  Not averages, actual escapements  31 for the years indicated.  Shall I continue?  32 Q   M'hm.  33 A   Pink salmon we've already discussed.  Because pink  34 salmon virtually invariably return at two years of age  35 the odd and even year populations within a given  36 system operate independently and frequently -- show  37 frequently one run or the other is much more abundant  38 to -- is much more abundant than the other.  That's an  39 example of a cycle.  40 Q   Okay.  41 A   Similarly sockeye to the Fraser system most fish  42 return in their fourth year, at the end of their  43 fourth year.  44 Q   Now, if I could just stop you for a moment here.  45 A   Okay.  46 Q   I've got an extra -- from the Department of Fisheries  47 and Oceans an analysis of -- or a computer printout 13900  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 from yourself which deals with this, and I just ask if  2 you recognize this.  This ties into the bar graphs, my  3 lord, that's why I was going to deal with it now.  4 Can you just explain what these two sheets are?  5 A   Okay.  The -- the legal size sheet, the long sheet --  6 Q   Yes.  7 A   -- Is a copy of data that I received from the -- from  8 biologists at the Department of Fisheries and Oceans  9 in Vancouver.  It seems to me this came from the  10 planning division in Vancouver.  11 Q   The handwriting on it is yours?  12 A   The handwriting on it is mine.  13 Q   Okay.  The second sheet?  14 A   The second sheet is a copy of a spread sheet that I  15 constructed from these data.  My spread sheet shows  16 figures for both chinook and sockeye in the Fraser  17 system.  What I'm concerned about right now is just  18 the sockeye portion.  19 Q   And that's the second part of your -- oh, I see.  20 That's the first column is chinook the other column is  21 sockeye?  22 A   Yes.  My figures for sockeye are taken from the legal  23 sized sheet.  24 Q   Okay.  Now, just then if you can explain the  25 distinction between the Fraser and the Skeena and the  26 sockeye runs.  27 A   Okay.  28 MR. GOLDIE:  My lord, I'm quite prepared to accept the statement  29 that's found in the cycle, that there is a difference,  30 and I'm not sure what the relevance is of why there is  31 a difference, if that's --  32 THE COURT:  In which cycle?  33 MR. GOLDIE:  Well, on the map.  34 THE COURT:  Oh.  35 MR. GOLDIE:  The narrative that's introduced with the words  36 cycles.  37 THE COURT:  Yes.  38 MR. GOLDIE:  Now, if this is an explanation of why there's a  39 difference in the cycles I am quite prepared to accept  40 whatever the witness says about it.  41 THE COURT:  I am too.  Everybody knows there is cycles in the  42 Fraser.  43 MR. GOLDIE:  I'm not sure we need the detail.  44 THE COURT:  Do we, Mr. Grant?  45 MR. GRANT:  No, not in terms of the Fraser, but only the  46 distinction with the Skeena.  And if my friend is  47 saying that distinction that's of course part of the 13901  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  MR.  COURT  GRANT  THE  MR.  THE  MR.  statement, if he's accepting that statement as well  then I agree I don't need to pursue it with the  witness and it will go in as evidence.  Yes.  And I would only put in these two sheets as just --  as part of that, my lord.  GOLDIE:  Well, the difficulty that I have is that I haven't  seen these two sheets before.  I'm prepared to accept  the witness' qualifications to make a blanket  statement, but I would just as soon not have documents  marked in evidence that are fresh to me, and that I  don't understand, and may have some implication that  we don't presently hear about.  I don't see the need  for it.  I don't think they should be put in, Mr. Grant, if  your friend hasn't seen them before, or hasn't had a  chance to compare them or get instructions on them.  Well, they're cited as part of the sources on map  20, which my friend had advance notice of, and I  believe, and I can't recall, because both my friends  wrote me different letters.  I think it's the Federal  defendants, but I certainly concede my responses to  the other Federal defendants who asked me what those  unpublished sources were and these were referred to.  You think Mr. Goldie has seen them before.  He has not seen the documents before.  He --  THE COURT  MR. GRANT  COURT  GRANT  COURT  GRANT  No.  I don't think he isn't saying he hasn't had notice  of them, he just hasn't seen them.  THE COURT:  Well, he has accepted the block description of  cycles and I think we'll leave it at that.  MR. GRANT:  Okay.  Q   Now, in terms of the historical accounts of the  sockeye on the Skeena and Fraser systems, does this  distinction of a cycling on the Fraser as opposed to  the Skeena is that reflected in any of the historical  material that you have referred -- that you've looked  at?  A   Yes.  The Brown diaries from the Hudson Bay Company  records --  Q   Yes.  A   -- Refer to the unreliability of the Stuart Lake -- of  the runs at Stuart Lake.  That's a result of this  rather violent cycling of the -- of the Stuart system  sockeye populations and the contrast between the  cycling of that system and the relatively much more  regular returns to the Babine system, to the Skeena 13902  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q  A  Q  A  Q  A  MR.  MR.  system.  The same would apply to the Nass.  And in that respect the Nass does not have cycling?  That's right.  Okay.  Now, in the Upper Skeena system the figures  show that in fact in this whole region that the  sockeye are for the region predominate.  I take it  that not only are the pies internally consistent in  terms of the ratio of the species, but when you look  at the whole diagram all of the species are  geometrically proportional to each other?  Yes.  Yes.  Yes, that's right.  And as his lordship said when we were looking at one  of the earlier -- at the area for sockeye escapements  or area for -- yes, area for sockeye escapements in  your historical catch estimates of chinook, sockeye  and coho it appears here that the sockeye do quite  well in the Upper Skeena system.  That is their  escapement is actually over the target?  When you aggregate escapement to all of the stocks in  that -- that part of the Skeena system, yes, that's  true.  Q   Okay.  Now, under the commentary you also say that  fish -- this is the top, my lord.  "Fish other than  salmon and steelhead are also important to regional  Indian economies."  Why do you say that?  GOLDIE:  Well, my lord, I object to that if he's talking  about regional economies outside the Gitksan and  Wet'suwet'en or the claims area.  Where is that statement?  It's the second or the third highlighted.  It's where the fourth paragraph starts "Fish other  than salmon and steelhead are also important to  regional Indian economies."  And then you refer to the  "Coastal peoples utilize a variety of marine species,  including halibut, other groundfish, herring and shell  fish.  Interior groups, including the Wet'suwet'en in  particular, utilize non-migratory freshwater species  including trouts, chars, whitefishes and suckers."  Well I think -- I think that we should -- I should  disregard and rule inadmissible that part that relates  to other than the Wet'suwet'en, but that part is  certainly acceptable.  I wouldn't have any problem  with the next one if there's objection to it.  Anyone  that's involved in fisheries for ten years is going to  know enough about --  GOLDIE:  I'm not objecting to that.  GRANT:  That's the reference to eulachon?  MR.  THE COURT  MR. GRANT  Q  THE COURT 13903  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  MR.  GOLDI  2  3  4  5  6  7  MR.  GRANT  8  9  THE  COURT  10  11  12  MR.  GRANT  13  THE  COURT  14  15  MR.  GRANT  16  Q  17  18  19  20  21  22  23  A  24  25  Q  26  A  27  28  29  30  31  32  33  34  35  36  Q  37  38  39  A  40  41  Q  42  43  A  44  45  46  47  THE  COURT  £:  No, no.  The next one, the next paragraph I'm  objecting to in reference to north coast Indian  economy, the next most important fish to north coast  Indian economy is the eulachon.  What I'm objecting to  is references to economics or economies outside the  claims area.  :  I think that's -- I think you were anticipating  that.  I was certainly, my lord.  :  Yes.  Well, I'm -- I think you'll have to see what  the witness knows about eulachons outside the claim  area.  :  Certainly.  :  It may be he's not in a position to express that  opinion.  Maybe he is.  We'll see.  It's stated -- your statement there is with respect to  eulachons, "After the salmon species, the most  important fish species to North Coast Indian economies  is probably the eulachon, or candlefish."  What -- on  what do you base that opinion with respect to Indian  economies other than the Gitksan and Wet'suwet'en?  In  other words, how did you come to that conclusion?  Yes.  There are no eulachon in the Gitksan and  Wet'suwet'en area.  Yes.  The Gitksan and Wet'suwet'en consume eulachon grease,  which they obtain by trade with neighbouring peoples.  I know that the Haisla have eulachons in their area  and that they produce eulachon grease which they trade  into the Gitksan and Wet'suwet'en area.  Likewise the  Nass River eulachon fishery is well-known even outside  of the area, and certainly is a source of a lot of the  eulachon grease that is consumed in the area.  I  visited the Nass River eulachon fishery and observed  the fishery and the processing there.  And you visited the Nass River eulachon fishery while  it was operational, that is at the time of the  eulachon runs?  That's right.  I stayed in a grease camp there for a  few days.  And observed the Nishga people as well as others at  that fishery?  I observed -- I was with a group of Gitksan and  Wet'suwet'en people who were invited to visit the  fishery, and I accompanied them, and we lived in the  grease camp.  :  What is the eulachon season? 13904  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  A  2  THE  COURT  3  A  4  5  6  THE  COURT  7  A  8  THE  COURT  9  A  10  THE  COURT  11  A  12  13  14  THE  COURT  15  16  A  17  18  THE  COURT  19  20  MR.  GRANT  21  22  THE  COURT  23  MR.  GRANT  24  THE  COURT  25  26  27  28  MR.  MACAU  29  30  31  32  33  MR.  GRANT  34  35  Q  36  37  38  A  39  Q  40  41  A  42  43  MR.  MACAU  44  THE  COURT  45  MR.  GRANT  46  47  THE  COURT  Early spring.  How long does it last?  From start to finish of the processing is some weeks.  The spawning run itself is more abbreviated than that,  but the fish are taken --  Two or three weeks?  Pardon me?  Two or three weeks?  The spawning run itself?  Yes.  From the time the fish appear and the time they  spawned out and died from the system that would be  about right.  What's the difference between eulachon and smelt we  see down here?  Same family, different ecology, different life  history.  I see.  All right.  Well, do you want to push it any  further than that, Mr. Grant?  All I -- I just take a position that the -- that  evidence is admissible.  What he has said up to now certainly is admissible.  Yes.  I think for purposes of keeping this properly  subdivided I won't admit the -- that part of the  printed text, but certainly the evidence he has given  is admissible.  AY:  There is another part of the printed text that I  object to, my lord.  That is the last line which  reads, "The most important eulachon fisheries in the  portion of the region claimed by Canada are indicated  on the map."  Well, my lord, my friend anticipates me.  I'll cover  that as well.  In that statement you're distinguishing between that  portion that is within the Alaskan Panhandle and the  rest of the map; is that right?  That's right.  And what you're saying is that you didn't delineate  eulachon fisheries in the Alaska Panhandle?  I don't know anything about eulachon fisheries in the  Alaska Panhandle.  AY:  Is that the area claimed by Canada?  Apparently.  The Alaska Panhandle?  No, I don't think so.  I  think the rest is claimed by Canada.  I'm not going to pronounce on -- 13905  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 MR. GRANT:  I'll wait for Mr. Macaulay's map of the A B line and  2 we'll work it out there.  3 Q   Now, aside from your observations -- I would just like  4 to go back.  Aside from your observations on the  5 eulachon fishery on the Nass did you read anything  6 about the eulachon fishery within this region?  7 A   There are only a few published reports on -- on  8 eulachon populations and eulachon fisheries.  They're  9 not considered of great importance by -- by non-Indian  10 fisheries people.  I have -- I have read a number of  11 articles about eulachon life history, biology, and  12 some accounts of the fishery, both historical  13 accounts, passing references to the fishery in  14 non-fisheries oriented historical accounts of the  15 region.  There was one other category.  I'll leave it  16 at that.  17 MR. GRANT:  Okay.  My lord, I'd ask that this map be marked, and  18 I believe that the practice with these maps are that  19 they are marked Exhibit 358 bracket 20 or dash 20.  2 0 THE COURT:  Yes.  All right.  Any objection, gentlemen?  21 MR. MACAULAY:  I've made my objections to it.  22 THE COURT:  Yes.  Well, I'm going to, subject to what counsel  23 say, I will admit the map subject to those parts that  24 have been the subject of specific rulings.  All right.  25 There being no other objection it will be Exhibit  26 358-20.  27  28 (EXHIBIT 358-20:  Map)  29  30 MR. GOLDIE:  My lord, is it -- have we followed the practice of  31 requesting the person tendering the exhibit to  32 actually blot out the objective parts?  33 THE COURT:  I don't think we have.  34 MR. GOLDIE:  I think it would be a good idea, my lord.  These  35 things can get overlooked and it would not take any  36 problem -- it would not take any trouble at all to  37 just block them out on the exhibit.  38 THE COURT:  Well, the only thing that is blocked out is that  39 portion on --  40 MR. GOLDIE:  Well, there are just a couple of sentences.  41 THE COURT:  Fish other than salmon and steelhead and the  42 eulachon part.  43 MR. GOLDIE:  The reference to the important regional Indian  44 economies.  45 THE COURT:  Yes.  Well, I'm just going to draw a line through  46 that.  47 MR. GOLDIE:  I think that ought to be done on the exhibit also, 13906  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  THE  COURT  3  MR.  GRANT  4  5  6  THE  COURT  7  8  9  MR.  GRANT  10  THE  COURT  11  12  MR.  GRANT  13  A  14  15  16  THE  COURT  17  MR.  GRANT  18  19  20  21  22  23  24  25  THE  COURT  26  27  28  MR.  GRANT  29  THE  COURT  30  MR.  GRANT  31  Q  32  33  34  35  36  37  38  A  39  THE  COURT  40  A  41  MR.  GRANT  42  THE  COURT  43  MR.  GRANT  44  Q  45  THE  COURT  46  MR.  GRANT  47  THE  COURT  - we can deal with  I think it's the  with respect, my lord.  Yes.  Yes.  You can give -- you can just  that on the exhibit afterwards,  first sentence.  It's the first sentence of the fish and other salmon  steelhead paragraph, and all of the eulachon  paragraph.  I'm sorry.  All of that?  Yes, because he gave the evidence that he can give  viva voce.  I see.  The first sentence, the sentence beginning "Fish,  other than salmon and steelhead" is to be deleted, is  that right, and the entire paragraph headed eulachon?  Yes.  Well, maybe I better -- I misunderstood, my lord, if  you say that the whole paragraph on eulachon, because  he has referred to some sources so I would like to --  I will do it orally, but some of this he's -- he has  laid a foundation I would say.  So I understood my  friend referring to North Coast Indian economies, but  the description of the eulachon is something that I'd  like to lead for a moment.  I can't believe this is going to be of any  importance or significance in this trial in any way,  shape or form.  Well, in that tenor, my lord, I won't pursue that.  All right.  Thank you.  Now, I'd like to with reference to the sockeye and  this -- this sockeye escapement and going back to  tabulation four of document book two, your report on  the historical catches and escapements of sockeye,  chinook and coho salmon, have you more finely  delineated the real situation with respect to the  sockeye runs to the Upper Skeena?  Yes.  You mean refined further than what's on map 20?  Broken down further.  Broken down further, yes.  All right.  Could you refer to book two, tab 4, figure A3.3.  Volume 2?  Tab 4.  Yes. 13907  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  MR.  GRANT  2  3  4  THE  COURT  5  MR.  GRANT  6  THE  COURT  7  A  8  THE  COURT  9  MR.  GRANT  10  THE  COURT  11  MR.  GRANT  12  Q  13  14  15  A  16  17  Q  18  A  19  Q  20  A  21  22  23  24  25  26  27  28  29  30  31  32  33  34  Q  35  A  36  Q  37  38  A  39  40  41  THE  COURT  42  43  A  44  THE  COURT  45  A  46  47  THE  COURT  Figure A3.3 You may have it right open there, my  lord, because it was where I had left off from this  document.  Yes.  Of that -- that's the bar graph.  Yes.  That's right.  Skeena sockeye escapement.  Yes.  Yes.  And the figures at the bottom you explained, but it's  non-Babine is on the left side escapement; is that  right?  Okay.  If we went back to the previous graph we could  make the transition more easily.  That graph shows --  Figure A3.2?  A3. 2.  Go ahead.  Shows actual annual escapement estimates for sockeye  for the whole of area 4, which includes all of the  Skeena, and minor escapements to coastal and estuary  streams, and the target escapement for the system as a  whole, which is the same target escapement as  indicated on the previous map is indicated as the  dotted line.  If you look at the escapements for years  1980 through 1986 indicated on the graph those are the  actual escapements that contribute to that -- the  segments of the pie chart that we were looking at.  In  particular you can see the source of the actual  escapements in excess of the target escapement.  That's for the system as a whole.  Many stocks  aggregated together.  Okay.  Okay.  And then the next figure A3.3 breaks down these  stocks?  Breaks down the entire Skeena sockeye run into  subgroups representing aggregates of individual  separate spawning stocks or populations.  :  What are these symbols?  Non-Babine is the first  one.  Yes.  :  The next one is Babine?  Babine tributaries.  That is the unenhanced  tributaries to Babine Lake.  :  Yes. 13908  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  A  2  THE COURT  3  A  4  THE COURT  5  A  6  7  THE COURT  8  A  9  10  11  12  MR. GRANT  13  Q  14  15  16  17  18  A  19  Q  20  A  21  Q  22  A  23  24  25  Q  26  A  27  28  Q  29  30  A  31  32  33  34  35  36  37  38  39  40  41  42  Q  43  44  45  46  47  A  The next is Babine River.  :  Yes.  It's the outlet of the lake.  :  Yes.  And the next is Babine Lake.  There's a lake spawning  population as well.  :  Yes.  And the final one on the right includes the two  enhanced stocks.  The two -- the two enhanced stocks  using Fulton River and Pinkut Creek to other  tributaries of Babine Lake.  Now, just -- just to be clear as to what we're  referring to here we will be referring to the sockeye  stocks reflected on Exhibit 358-20.  That's the map  you just looked at for the Upper Skeena system and for  the Lower Skeena system?  Yes.  And I'll just show you my --  And coastal streams as well.  And and coastal DFO statistical area 5?  In map 20 the coast -- the escapement of sockeye to  the coastal streams of area 4 is included with  escapement to area 5.  Okay.  Relative to the rest of the sockeye escapement to the  Skeena the escapement to coastal systems is small.  Okay.  Now, what is the significance of the figure  A3.3 in terms of the Skeena sockeye escapement?  It shows that the entire excess of actual escapement  over target escapement is attributable to the returns  to the enhanced systems.  The Babine Lake population  is represented here as returning exactly at target  escapement.  That's -- that's the assumption that I  make.  I don't want to go into details of that.  It's  a poorly known stock and I feel that's a reasonable  assumption.  All of the other stock aggregates are  returning at considerably less than target levels.  And, again, target levels are a rough indication of  capability of the system to -- to absorb sockeye  spawners.  Okay.  Now, if you go to the non-Babine stocks, which  is the farthest left, if you turn to the next, and  that's of core spawners and milners there you go to  the figure of A3.4.  That's a further breakdown of  non-Babine sockeye escapement; is that right?  That's right. 13909  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  Q  2  3  A  4  Q  5  A  6  7  8  Q  9  10  A  11  Q  12  13  14  15  A  16  17  18  19  THE  COURT  20  A  21  MR.  GRANT  22  THE  COURT  23  A  24  25  26  MR.  GRANT  27  28  Q  29  30  A  31  32  33  34  Q  35  36  37  38  A  39  MR.  GRANT  40  41  THE  COURT  42  MR.  GRANT  43  THE  REGIS1  44  MR.  GOLDI  45  46  MR.  GRANT  47  And the figures on the -- going from left to right  are -- reflect coastal Ecstall?  Yes.  Am I right?  If I may interrupt you.  Excuse me.  In the text of  this appendix preceding the graphs there is a --  there's a key to the abbreviations used here.  Okay.  But starting where it says BMr that's the  Bulkley Morice?  That's right.  That's from there on -- or from there Bulkley Morice,  Kispiox, then there's Slamgeesh and Bear Sustut.  Those are the runs that are within the -- the  escapement is within the Gitksan Wet'suwet'en area?  Those spawning grounds are within the Gitksan  Wet'suwet'en area.  In addition to the one immediately  to the left of Bulkley Morice, which is the Copper or  Zymoetz River.  :  Which one?  Copper or Zymoetz.  :  Cpr.  :  Yes.  The river itself is partly within the Gitksan and  Wet'suwet'en area.  The spawning grounds are entirely  within the Gitksan Wet'suwet'en area.  :  My lord, the other figures are Gitnadoix, Lakelse  and Kitsumkalum.  Now, what I'd like to do now is show you -- and those  bar graphs are ones that you prepared?  That's right.  From data obtained from the Department  of Fisheries and Oceans Prince Rupert office.  And  incidently, those escapement data are the same ones  reproduced in the appendix to Mr. Palmer's report.  Mr. Palmer was -- you had an opportunity to review his  report which was prepared on behalf of the Attorney  General of Canada, and he had tables which used the  same data?  That's right.  :  Thank you.  next exhibit,  :  Tab 4.  :  Tab 4 of the book two.  PRAR:  973.  £:  Could I just hold on a second, my lord.  want to review the narrative.  :  I'm -- my lord, just for your reference I'm putting  before the witness map 23.  I'd ask that this  my lord.  tab be marked as the  I just 13910  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 THE COURT:  I'm not sure we should get into that tonight, Mr.  2 Grant, I think, if we are going to a new map.  3 MR. GRANT:  I'm in your lordship's hands.  4 MR. GOLDIE:  I have some objection to the narrative in this tab.  5 I'll deal with that tomorrow morning.  6 THE COURT:  Yes.  All right.  7 MR. GRANT:  Yes.  If my friend could advise me after we adjourn  8 then I might be able to -- might be able to expedite  9 matters in the morning.  10 THE COURT:  All right.  How are we getting along, Mr. Grant?  11 What -- what -- the reason I ask is to inquire whether  12 we should start early in the morning and plan to sit  13 late, or what do you suggest?  14 A   Just if I could just have a moment.  15 MR. GRANT:  Mr. Macaulay had indicated to me he had some  16 difficulties at 9:30, but I -- it may be what I would  17 suggest, my lord, is if we started at the regular  18 hour, but did go, as today, a little later.  19 THE COURT:  Until five?  20 MR. GRANT:  Until five.  That would — I mean, my objective — I  21 will advise your lordship, but I -- in terms of your  22 ruling there was some things I just want to be sure  23 that I can do the shortcutting I hope to do in terms  24 of time, but my objective would be to endeavor to  25 complete direct tomorrow.  2 6 THE COURT:  All right.  27 MR. GRANT:  But — and I'm suggesting this timetable with that  28 in mind, but that's my objective.  2 9 THE COURT:  All right.  Yes.  All right.  Do defence have any  30 estimate of how long they might be?  31 MR. MACAULAY:  Yeah.  I will be going first, my lord.  32 THE COURT:  Yes.  33 MR. MACAULAY:  It's — it's difficult to tell now that we are  34 not dealing with the -- the report and large parts of  35 the first appendix.  If things keep going on as they  36 are now I would -- I would think that I could get my  37 cross-examination done in -- in about three hours or  38 maybe less.  39 THE COURT:  All right.  So that would take up part of Friday.  40 Mr. Goldie, do you have any estimate?  41 MR. GOLDIE:  Using all the assumptions that Mr. Macaulay has  42 made, and recognizing their frailty, I might be no  43 more than half to three-quarters of an hour, my lord.  44 THE COURT:  Yes.  Well, there's some chance we could finish  45 Friday.  So with that objective in mind I wonder if we  46 shouldn't plan on starting at ten, if that's  47 convenient, but going until say 6:30, or something 13911  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 like that tomorrow morning, and seeing if we can  2 prepare ourselves more conveniently perhaps to avoid  3 having to sit Saturday or Monday, if that's  4 convenient.  5 MR. GOLDIE:  I have no objection to that.  6 MR. GRANT:  Fine.  7 MR. MACAULAY:  Fine with me, my lord.  8 THE COURT:  Well, I think we'll tentatively plan to sit until  9 about 6:30 tomorrow night.  10 Madam reporter, I hope you will convey our  11 compliments to your co-ordinators and suggest perhaps  12 they have someone else available to take over at four  13 o'clock so this wouldn't be too heavy a burden on  14 whoever gets saddled with it tomorrow afternoon, and  15 we'll see how we get along.  All right.  Thank you.  16 THE REGISTRAR:  Order in court.  Court will adjourn until 10:00  17 a.m. tomorrow.  18  19 (PROCEEDINGS ADJOURNED TO MARCH 30, 1989 AT 10:00 a.m.)  20  21 I hereby certify the foregoing to be  22 a true and accurate transcript of the  23 proceedings herein to the best of my  24 skill and ability.  25  26 Peri McHale, Official Reporter  27 UNITED REPORTING SERVICE LTD.  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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