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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-03-31] British Columbia. Supreme Court Mar 31, 1989

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 8 MR.  9 THE  10 MR.  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  14021  Vancouver, B.C.  March 31, 1989  THE REGISTRAR:  In the Supreme Court of British Columbia,  Vancouver, this Friday, March 31, 1989 on Delgamuukw  versus Her Majesty the Queen at bar.  I caution the  witness you are still under oath.  GRANT:  Yes, my lord.  COURT:  Yes, thank you, Mr. Grant.  GRANT:  Sorry, my lord, I just wanted to advise my friends  in the hopes that they would have a chance to consider  the position which was taken.  Can you put volume 1,  book 1 in front of the witness.  I would like to refer  you, Mr. Morrell, to tab — Exhibit 997.  THE REGISTRAR:  977.  MR. GRANT:  977, tab 4.  Firstly before proceeding with that, I  would like to mark as an exhibit tab 1 which is the  curriculum vitae of Mr. Morrell, my lord.  THE COURT:  All right.  THE REGISTRAR:  That will be 980, my lord.  THE COURT:  98 0, thank you.  MR. GRANT:  It's tab 1 of book 1.  (EXHIBIT 980:  Tab 1, Plaintiff's  Vitae of M. Morrell)  Book 1, Curriculum  EXAMINATION IN CHIEF BY MR. GRANT (cont.):  Q   That's the curriculum vitae that the witness  identified a few days ago.  You have Exhibit 977 in  front of you, Mr. Morrell?  A   That's right.  COURT:  I'm sorry, 977 is what?  GRANT:  It is tab 4 of book 1.  It is the Helgeson report.  COURT:  Yes.  All right.  I didn't mark the first page of  it.  Yes, thank you.  THE  MR.  THE  MR.  GRANT:  Q  A  Q  A  Now, the other day we were talking about -- we  referred to Mr. Helgeson where he talks about the  canyon and the falls at Moricetown.  This is on pages  209 and 210.  And at the bottom of page 209 he  describes when he was there which was on the 5th of  October, 19 -- of that year?  Yes.  Is there a fishery, to your  Moricetown that late in the  There is certainly no major  There may be some steelhead  knowledge, occurring at  season?  fishery occurring then.  in the area or some 1  2  3  4  Q  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  A  20  21  22  23  24  Q  25  26  27  A  28  Q  29  30  31  A  32  Q  33  34  A  35  Q  36  37  38  A  39  Q  40  41  42  43  A  44  45  46  Q  47  A  14022  whitefish.  Occasionally people fish with hook and  line at the canyon, but there is no major fishery at  that time.  He then talks on the bottom after it says "Canyon and  Falls" and states:  "On examining the canyon I found it about  250 yards long, the narrowest part 1 foot  wide, and from the numerous paths, stagings,  ladders, etc., I could judge that the canyon  during the fishing season was lined with  Indians hooking and catching salmon by every  conceivable contrivance."  Given that statement and the date which -- he is  describing it, have you come to any conclusions as to  whether he observed what was occurring at the  Moricetown Canyon in the subsequent description?  I don't believe that he would have been able to  observe a fishery there.  It appears that he is saying  that he could judge from the signs that he saw there  what was happening during the fishing season which was  a different time from when he was there.  Now, if you could just go back to page 206.  You  indicated yesterday that you were familiar with this  report that was one of the historical references --  I've read it.  -- references you've read before.  Now, Helgeson says  that -- Helgeson in this report describes barricades  as he calls them on the Babine River; is that right?  Yes.  And he describes observations of barricades that he  made on the Babine River?  Yes.  Now, there is -- he is referring to a portion of the  Babine River that is outside of the Gitksan and  Wet'suwet'en area?  That's right.  Okay.  Is there any similarity in what he is  describing, and that is in the method the barricades  that he is describing and methods that you know or  have concluded were used in the Gitksan area?  This account is consistent with accounts that I have  heard and photographs that I have seen of barricades  or weirs used in the Gitksan and Wet'suwet'en area.  Okay.  Now, you referred the other day —  I may add that I am sure there is variations from 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.  THE  MR.  Q  A  Q  A  GRANT  GOLDI  GRANT  COURT  GRANT  Q  A  14023  location to location in details of the construction,  but in a general way it seems to me to be the same  type of fishing gear.  The same type of methodology?  Yes.  Yes.  And I believe you referred yesterday to such  barricades or weirs at Kitwancool?  That's right.  :  And when were they utilized at Kitwancool until?  E:  I think he said he saw a photograph of one at  Kitwancool, my lord.  Yes.  Yes.  A  Q  And it was described to him as well  by a person who saw it?  Yes.  Yes.  Solomon Marsden, a resid  told me that the weirs in the Kitwan  fished into the 1930's.  I think 193  date that he gave.  Now, with respect to Helgeson's repo  that -- I can refer you to the middl  "On the 15th..."  This would be the  Is that consistent with a time when  fishery operating on the Babine Rive  studies?  Yes, that would -- that would be lat  migration.  Okay.  And he said -- first of all I  second paragraph.  Was it described  ent of Kitwancool,  cool River were  4, 1935 was the  rt he describes  e of page 206:  15th of September,  there would be a  r from your  e in the sockeye  will read the  MR.  "As frequent rumours came to the office that  rivers and streams in the upper country were  barricaded, and that salmon were prevented  from reaching their natural spawning  grounds, it became necessary to send some  officer up to ascertain the facts, and if  possible, to remedy the evil."  Now, from your knowledge of the utilization of weirs,  the methodology of weirs, did they have the effect of  preventing salmon from reaching the natural spawning  grounds?  GOLDIE:  My lord, the witness has spent some time yesterday  talking about the various gear and it was perfectly  plain.  I am at a loss to know why my friend is  referring to this report unless he is adpoting it for THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  9  10  11  12 THE  13  14  15 MR.  16  17  18  19 THE  2 0 MR.  21  22  23 THE  2 4 MR.  25  2 6 THE  27  2 8 MR.  2 9 THE  3 0 MR.  31 THE  32  33  34 MR.  35  36 THE  37 MR.  38  39 THE  4 0 MR.  41  42 MR.  43  44  45  46  47  COURT:  GRANT:  COURT  GRANT  14024  the truth of the statements made.  What was your last question, Mr. Grant?  I am asking the witness if he agrees that weirs  would prevent salmon from reaching their natural  spawning grounds.  All salmon or some salmon?  Well, this report implies all salmon.  Now, my lord,  there may be some clarification from my friend Mr.  Macaulay on this because this is something that is of  some substance in the material that they have provided  and has been referred to.  And what are you asking the witness to do now, to  give an opinion as to all weirs can prevent salmon  from reaching their spawning grounds?  Helgeson makes comments about the effect of the  wiers on the fishery in the Babine River.  This  witness has described that methodology is similar to  that methodology used within the claim area.  Yes.  And my question to him is whether the effect of  weirs is the blockage of all salmon from spawning  grounds.  COURT:  You can ask that.  GOLDIE:  I simply point out, my lord, that it doesn't say  all salmon.  COURT:  It says the salmon from reaching -- well, no, "that  salmon".  GOLDIE:  "That salmon were prevented".  COURT:  It doesn't say all.  GOLDIE:  No.  COURT:  I think there is no harm in the witness putting the  proposition to the -- counsel putting the proposition  to the witness on a theoretical basis.  GOLDIE:  Well, if it is on a theoretical basis I have no  obj ection.  COURT:  It has to be on a theoretical basis.  GOLDIE:  But I object to putting it in terms of this report  unless my friend is adopting it.  COURT:  Mr. Macaulay.  GRANT:  No, I am disputing the report, not adopting it, my  lord.  MACAULAY:  We dealt with the question of the Babine  barricades in our report that we delivered to my  friend.  That was after we had received Mr. Morrell's  report in which he had dealt with this same subject.  But your lordship will recall that the Fisheries Act  in two sections particularily deals by statute with 14025  1 weirs.  I don't know if its relevant now.  Weirs are  2 no longer used.  They haven't been -- I gathered there  3 was one in the thirties in the Kitwancool.  I don't  4 know why that would be or how that would have  5 happened, but it has long past been forbidden by  6 statute, a statute that is not challenged before this  7 court.  This seems to be a non-issue.  8 THE COURT:  The relevance of this evidence as I presently view  9 it could only be with relation to the allegation of  10 the plaintiffs that they managed the fishery from  11 immemorial.  The burden of the pleading and I think on  12 that head of relevance it would be competent to ask  13 the witness whether weirs on a theoretical basis could  14 stop all salmon or some salmon from reaching the  15 spawning ground.  16 MR. MACAULAY:  I am not objecting to that particular question, I  17 am responding to my friend's comment that we had dealt  18 with the matter.  19 THE COURT:  I understand.  All right.  20 MR. MACAULAY:  We put our report in before your lordship's  21 ruling.  22 THE COURT:  Yes.  23 MR. MACAULAY:  Rather we had finished our report and delivered  24 it before your lordship's ruling.  2 5 THE COURT:  Yes.  2 6 MR. MACAULAY:  I don't want to be taken as withdrawing from the  27 position I have been so tiresome about in these last  2 8 few days.  2 9 THE COURT:  I would never put it that way, Mr. Macaulay.  30 MR. MACAULAY:  And if the witness is being asked can a weir  31 prevent all salmon from going up the river.  32 THE COURT:  Yes.  33 MR. MACAULAY:  I have no objection to that.  34 MR. GRANT:  Well, I am going to put it more in the context of  35 this.  I take my friend's point, but first Mr.  36 Macaulay could clarify because he has clouded my mind  37 and it may save some time.  Is the position of the  38 Provincial Crown now that given the chronology that he  39 has described that they are not relying on the Palmer  40 reports or the Palmer opinions?  If that's the case  41 and if they don't intend to call that evidence with  42 respect to this issue then I may not have to pursue  43 it.  44 THE COURT:  Well, I can't speak for Mr. Macaulay, but I would be  45 surprised that with this much notice he would be  46 willing to make a decision as to what he is going to  47 do with the report that has been prepared perhaps on a MR.  THE  MR.  9  10  11 THE  12 MR.  13 THE  14  15 MR.  16 THE  17 MR.  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  14026  basis that it isn't entirely appropriate, but I  wouldn't expect him to make a withdrawal at this  moment.  I think you should proceed and call whatever  witness you are going to call.  MACAULAY:  Obviously in view of what has happened this week  I will be considering what portions of the Palmer  report should be excised.  COURT:  Yes.  MACAULAY:  And I will consider whether or not the Babine  weir ought to be or ought not to be --  COURT:  I think the matters at large —  GRANT:  That's fine, my lord.  COURT:  As Arthur Donovan always said:  fighting and protect yourself at all times,  It is not even 10 o'clock yet.  Okay.  You must come out  GRANT  COURT  GRANT  Q  I just refer you to -- before I asked you the question  on the paragraph down where he said: "On the 15th..."  This is the fifth paragraph down on the third page.  "On the 15th we borrowed a little canoe, and  hired two men and started down Babine river  7 miles, where we found two barricades half  a mile apart, in full swing fishing, and  crowds of Indians could be seen on the  banks."  He then describes the barricades,  the bottom, the last sentence:  And then he says at  "This made a magnificent fence which not a  single fish could get through."  Now, then he goes onto say at the top of the next  page:  "On the upper side of the dam were placed 12  big traps or fish bins.  Opposite holes made  in the panels for fish to enter the traps,  prepared with slides to open and shut, and  if the traps did not have a sufficient  quantity of fish in them, when the women  wanted more fish on the bank, the men would  take their canoe poles, wade out in a line  and strike the water, making a noise which  could fill the traps in a moment, then shut 14027  1 the slides down, take a canoe on each side  2 of bin, raise the false bottom, by some  3 contrivance so as to elevate the fish, then  4 load up canoes with gaff hooks."  5  6 Now, he then goes onto describe his discussion with  7 Chief Atio.  Now, on the bottom of that page he  8 describes that this fence was a "fence which not a  9 single fish could get through" and he describes the  10 types of barricades.  From your experience or from  11 your research, what is the effect of the utilization  12 of weirs, the blockage of all salmon?  13 A   No.  The weirs as Mr. Helgeson mentions have gaps in  14 them where traps are placed to capture the fish.  The  15 weirs that I have heard about allow for the traps  16 being removed or provided with an exit so that fish  17 can pass through them.  And in all of the accounts  18 that I have heard, that's a regular part of the  19 operation of the weir that the weir is effectively  20 open.  Whether the weir with traps closed would stop  21 every fish or not might be kind of a fine point.  I  22 think it would be difficult to stop every fish.  You  23 could certainly delay the run and stop a substantial  24 number.  But that's not the way the weirs are used.  25 Q   Then how are the weirs used?  26 A  According to accounts that I have read and heard, the  27 traps are kept closed only when it is desired to catch  28 fish.  And during the run in a place where it is  29 worthwhile to put a weir it's rather easy to supply  30 the process source with all the fish they can handle  31 by only trapping part of the run.  The processors are  32 supplied with fish and then the traps are opened.  The  33 fish are allowed to pass through until the people  34 operating the weir and processing the fish see that  35 there is again a need for a fresh supply of fish.  The  36 traps at that point are closed, new fish are trapped  37 and the process continues until enough fish has been  38 obtained.  39 MR. GRANT:  And he says on page 208 — he says:  40  41 "If the latter had stood close together they  42 would have covered..."  43  44 He is referring to the racks now, this is the drying  45 racks.  46 THE COURT:  Where is that?  47 MR. GRANT:  I'm sorry, I should start at the bottom of 207.  I 14028  1 am right at the top.  2 THE COURT:  Thank you.  3 MR. GRANT:  4 Q   Where it says "Re Dried Salmon", Mr. Morrell, I will  5 start at the bottom of the page.  6  7 "The banks of the Babine river have a lovely  8 appearance at this place and a most  9 wonderful sight met our eyes when we behold  10 the immense array of dried salmon.  On  11 either side, there were no less than 16  12 houses 30 x 27 x 8 feet filled with salmon  13 from the top down so low that one had to  14 stoop to get into them and also an immense  15 quantity of racks, filled up outside.  If  16 the latter had stood close together they  17 would have covered acres and acres of  18 ground, and though it was impossible to form  19 an estimate, we judged it to be nearly three  20 quarters of a million of fish at those two  21 barricades, all killed before the had  22 spawned, and though the whole tribed had  23 been working for six weeks and a half it was  24 a wonder that so much salmon could be massed  25 together in that time."  26  27 Based on your --  28 MR. GOLDIE:  Would you read the next paragraph, please.  2 9 MR. GRANT:  30 Q   I am going to come to that as a certain point.  I  31 certainly will.  Based on your analysis on the  32 population estimates of fish and of humanes at that  33 time, do you comment on -- he says that it was  34 impossible for him to estimate, but he then makes a  35 statement that he judged it to be three quarters of a  36 million fish.  Is that consistent with your estimates?  37 A   You're referring to the mathematical model I was  38 discussing yesterday?  39 Q   Yes.  40 A   It is far above any estimate that is required in that  41 model to satisfy the projected demand, the  42 extrapolated demand of the population at Babine Lake.  43 In issue there are other sources that relate to this.  44 It is far and away the highest estimate I have ever  45 seen of an annual catch in that location.  46 Q   So can you comment on the accuracy of that estimate,  47 your opinion? 14029  1 A   I doubt that it is very accurate.  He only gives a  2 cursory description of his method.  He states that "it  3 is very difficult or impossible to form an accurate  4 estimate", and the estimate that he arrives at is not  5 consistent with any other estimate.  6 MR. GRANT:  Now, he -- you recall that he described on the first  7 page, page 206, two barricades.  And then he comes  8 back and says:  9  10 "The owners of the upper barricade, had  11 certain rights in the fish, yet they had to  12 depend largely on the clemency of the people  13 of the lower one, to let the fish through  14 for their supplies."  15  16 Do you agree with that opinion?  17 MR. GOLDIE:  Well, my lord —  18 MR. GRANT:  Do you agree with that statement?  19 THE COURT:  There are two opinions, one that they had rights to  20 the fish and the other that they depended on the  21 clemency of the people.  22 MR. GRANT:  Okay.  23 MR. GOLDIE:  And I question, my lord, whether Mr. Morrell can  24 express an opinion with respect to that.  25 MR. GRANT:  Well, let me rephrase my question.  26 THE COURT:  Well, I don't think he can about the rights to fish,  27 but I think that he can offer an opinion as an expert  28 in fisheries about the factual side of the dependency  29 described.  30 MR. GRANT?  31 Q   Well, yes, I was going to the second point, my lord.  32 In terms of your knowledge of the operation of weirs,  33 can you comment on that the interaction of two weirs  34 in this matter close together and his conclusion that  35 it was a dependence partly on the clemency of the  36 people at the lower traps to let fish through for  37 their supplies?  38 A   By his earlier description the two weirs are half a  39 mile apart on the same river.  If the lower ones  40 stopped all the fish there wouldn't be any fish  41 available for the upper weir.  Obviously for there to  42 be any catch at the second weir some fish have to pass  43 the lower one.  Whether it is a matter of clemency of  44 the people at the lower weir or a matter of their -- I  45 would say it is more a matter of normal means of  46 operating a weir that led the people who were  47 operating the upper weir to assume that there was any 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  THE  THE  THE  THE  MR.  14030  point to putting in the effort to build a weir so  close to another one.  And I assume that they had  every expectation that there would be a -- that there  would be fish passing the lower weir to arrive at the  second weir.  :  Now, he goes on to refer to a couple — a number of  rivers.  I just will refer you to the "Fifteen Mile  River" where he says "On the 21..."  I think this is  of September still.  "On the 21st we reach Fifteen Mile river and  found it deserted, nearly all the fish had  been removed, though I counted over 2,000  left on a couple of racks."  COURT:  Where is Fifteen Mile River, please?  WITNESS:  It is another name for Pinkut Creek.  COURT:  Thank you.  WITNESS:  I believe that's the synonymy.  It is at that end  of the lake.  Yes, thank you.  COURT:  GRANT:  Q  A  Q  A  In terms of the comment there about the desertion of  the fish and 2,000 left on a couple of racks, based on  your research have you any conclusion as to that as a  practice?  That is the abandonment or the desertion of  a fishing site leaving up to 2,000 fish on drying  racks?  I haven't ever seen a deserted smokehouse with 2,000  fish left on the racks, that is deserted in the sense  of abandoned.  It seems odd to me.  I think there is  an alternative explanation for the fact.  And what's that?  Well, the 21st is six days after his destruction of  the weirs on the Babine River.  The people fishing at  Fifteen Mile River were people who were related to and  knew the people who were related in the lower Babine  River.  It is very likely they were informed what was  going on at the Babine River and as to Helgeson's  plans.  It looks to me as though the people at Fifteen  Mile River took what they could of the fish that they  caught and cleared out in anticipation of Helgeson's  arrival or perhaps left with other reasons.  But I  doubt that they would abandon 2,000 fish that they had  prepared.  There is a substantial amount of work to  catching and butchering and smoking 2,000 fish.  And  people have quite precise idea of how many fish they 14031  1 want.  I don't think that they would have prepared  2 2,000 fish that they didn't want.  3 Q   I would like to go to the section on spawning ground  4 on the same page.  He says:  5  6 "The three last rivers were very low, but in  7 their normal state they are streams of  8 considerable magnitude, and all famous  9 sockeye rivers, and we saw a multitude of  10 salmon in each, and many of them were still  11 spawning.  The spawning ground on these  12 rivers extends for a half or three quarters  13 of a mile from their mouth and were almost  14 covered with spawn, and about two thirds of  15 it doing well, also there are splendid  16 spawning grounds from opposite Babine  17 village, running down the river for about  18 two miles and a half, with beautiful bars in  19 the middle of the river, all made into hills  20 and hollows by the sockeye spawning, and  21 only in one instance on the last name  22 streams did we find a bar where the spawn  23 had perished, on account of the water having  24 left it dry."  25  26 So here he is commenting on his observations of the  27 spawning ground.  Now, can you connect that to the  28 actual operation of the weirs on the Babine River,  29 that is that observation and what in fact was going on  30 at the weirs in Babine River?  31 A   The observation indicates that substantial numbers of  32 salmon were able to reach the spawning grounds.  Those  33 salmon -- at least those salmon were above the weirs  34 he is talking about.  35 Q   They would have had to go through that area?  36 A   That's right.  So those salmon were not blocked by the  37 weirs.  So that's consistent with the idea that the  38 weirs don't block all the fish.  39 Q   Now, then on Beaver River.  Do you know where Beaver  40 River is in relation to this?  41 A   I can't say exactly.  It is also at the opposite end  42 of the lake from the outlet end at the southeast end.  43 Q   He says:  44  45 "On the 22nd we reached Beaver river, at the  46 head of a lake found a barricade a mile up  47 stream still fishing but no people there. 14032  1 This river is about 100 feet wide, 8 feet  2 deep, and mud bottom.  The salmon go through  3 it and enter Bear creek ten miles up, where  4 they spawn.  There were two contrivances  5 with which the fish were caught.  In this  6 barricade of a peculiar kind, a tunnel was  7 made 6 feet wide, nicely fitted into the  8 wall of the barricade, and narrowed down  9 to 1 foot in 12.  Then tunnels one foot wide  10 joined one which lead into a bin 40 feet  11 above the dam, where fish had accumulated.  12 The other had a similar mouth and a small  13 tunnel reached up stream a similar distance,  14 fastened to stakes with ropes at intervals.  15 We demolished the bin and tunnel first, then  16 pulled up the rope.  here we found that the  17 small tunnel was securely closed at its end.  18 It was wedged full of live sockeyes.  They  19 could not turn nor could they get back.  We  20 cut and disjointed everything and let the  21 fish go, and had a fearful job getting all  22 the deep pannels and posts out of the sticky  23 bottom.  When we left, ther river was full  24 of material and debris for quite a  25 distance."  26  27 Now, in light of his observation at this tunnel, you  28 are familiar with this methodology as well?  It is  29 consistent with methodology used in the Gitksan and  30 Wet'suwet'en areas?  31 A   This sounds different from weirs that I've seen --  32 that I've heard described.  I can follow his  33 description of it, though.  34 Q   Okay.  Now, in light of the fact that he found live  35 sockeyes there and yet he says there were no people  36 there, can you comment as to how long that weir -- how  37 long that weir would have been left without that  38 emptied?  39 A   If this narrow tunnel was wedged full of sockeye they  40 would be highly stressed, the crowding would be  41 stressful for them.  They would have difficulty  42 breathing.  They would be panicky.  I would expect  43 them to die in short order.  I don't think that they  44 would live for days in a situation like that.  I think  45 it would be more like hours, perhaps less than that.  46 The impression is that the weir was abandoned and  47 simply left fishing.  I think that the absence of 1  2  3  4  5  6  7  8  9  10  11  MR.  GRANT  12  13  14  15  16  17  18  19  MR.  GOLDI  20  21  22  23  24  25  MR.  GRANT  26  27  THE  COURT  28  MR.  GRANT  29  THE  COURT  30  31  32  33  34  35  36  37  38  39  40  41  MR.  GRANT  42  43  THE  COURT  44  MR.  GRANT  45  46  47  MR.  GOLDI  14033  people that he observed -- that that weir had not been  deserted long before he arrived at this.  Another  point that occurs there, he refers to the small tunnel  being securely closed at its end.  There may be an  implication there that it was possible to open the  closure.  That's the sort of arrangement that I would  expect that the trap part of a weir can be closed so  as to catch the fish, but like the bottom of a trawl  net or other sorts of traps it is also possible to  open it.  :  Now, do you have any comment as to the approach of  how he saw the barricades, and when I say his approach  I mean his observations.  He describes what he has  done, but his observations and his conclusions as to  the -- in light of the evidence he has given, do you  agree with -- is there any -- have you come to any  conclusions as to whether his approach to the issue of  the barricades influenced his observation?  E:  Well, I object to this, my lord.  We are outside  the claims area.  We are talking about the enforcement  by a fisheries officer in an area that is not in issue  here, and whether his approach or his lack of approach  is right, wrong or indifferent is completely  irrelevant.  :  It is his observations, my lord.  I said approach  and I corrected myself to his observations.  We are in a highly speculative field, are we not?  Well, I don't think we are because I think that --  I mean when any witness can agree or disagree with  impunity with what the report says one — I think that  I am not troubled by Mr. Goldie's concern about being  outside the claim territory because it impacts so  obviously upon the claim territory.  But how is it  profitable to ask this witness what he thinks about  what this man wrote back in 1906?  If there is  something here that is simply not tenable on a  fisheries basis then it seems to me he is entitled to  say that.  To speculate about what was meant or wisdom  or otherwise or what he did or reported seems to me to  be profitless.  :  I think I can approach it in the context of what you  said.  :  Thank you.  :  Is his conclusions from a fishery scientist point of  view about the impact of the barricades tenable in  your opinion?  E:  What conclusions? 1  THE  COURT  2  MR.  GRANT  3  MR.  GOLDI  4  5  THE  COURT  6  7  8  MR.  GRANT  9  MR.  GOLDI  10  THE  COURT  11  12  13  MR.  GOLDI  14  15  16  17  18  19  20  THE  COURT  21  22  23  24  25  26  27  28  MR.  GRANT  29  30  31  32  33  34  35  36  37  38  39  THE  COURT  40  41  42  43  MR.  GRANT  44  Q  45  46  47  14034  :  The conclusion that they stopped all fish.  :  That's right.  E:  But he is yet to say that they stopped all fish, my  lord.  : Well, it seems to me it has come pretty close it to  it. He said it was as tight as a bottle and the fish  couldn't get through.  :  At the bottom of the sentence.  E:  In a particular situation.  : In that one situation, yes. The other one the two  weirs certainly suggest that not very many fish were  going to get through, if any.  E:  Well, he made it clear that fish got through to the  second weir and he stated that he observed fish  spawning upstream of the weirs as Mr. Morrell has told  us.  I don't see how any reasonable reading of this  report with the expectation of the one area about as  tight as a bottle could be construed as stating that  all fish were stopped.  :  Well, I think that without agreeing or disagreeing  with that, he certainly left the impression on me as a  first time reader that these weirs, in their different  manifestations, were very effective in severely  limiting the progress of these spawning salmon.  But I  don't think we can go any further than that.  Are you  asking the witness to comment on whether weirs would  be effective or ineffective or --  :  No, I am asking him to comment on what you've  commented on as a first time opinion.  Of course in  this situation, my lord, I feel a bit in the  proverbial catch 22 that I find myself because, of  course, the -- I am looking to the Federal Crown in  this case has -- they have an expert who provides  certain conclusions with respect to it.  I want this  witness to have an opportunity -- I don't necessarily  have to put those opinions to the witness.  I just  want him to comment on Helgeson himself which is the  original source.  :  Well, I think you can ask the witness to comment on  the likelihood or otherwise as a fisheries matter of  these weirs impeding substantial or all or any salmon  going up the river.  I think you can ask that.  Thank you, my lord.  Can you comment on the likelihood  of the fish -- of the impact of the weirs on impeding  all or the majority of the fish going up past them up  the Babine River and the impact on the fishery? 14035  1 A   I think it's extremely unlikely that the weirs would  2 be fished in such a way as to impede the passage of  3 the majority of the fish that were trying to pass  4 them.  It is not consistent with my understanding of  5 how weirs are fished.  It would be most imprudent of  6 the people fishing the weirs since the impact of it --  7 the future impact of it would be obvious to them of  8 preventing the fish from reaching their spawning  9 grounds.  10 Q   In light of your conclusions yesterday about -- and  11 the other day based on the D.F.O. or the rise in the  12 catch of commercial escapement with improved gear,  13 does that -- do you rely on that conclusion as well as  14 to the effect of the utilization of weirs?  15 A   Internal to Helgeson's report he reports on page 207  16 "Chief Atio" -- in his writing in the third paragraph,  17 the chief indicated that they had fished there.  He  18 discussed this indisputable right which is my point  19 here, but that they had fished for all time in the  20 past.  They had doing this for a long time and that  21 the fish had been abundant until very recent years and  22 that the chief felt that the fishery at the coast was  23 impacting on the Babine fishery that the fish were  24 becoming less abundant, but that before the advent of  25 that fishery there had not been problems with  26 abundance.  And that is consistent with the pattern of  27 the catch data that I see from the commercial fishery  28 beginning in -- the coastal commercial fishing  29 beginning in 1877, that is that the runs as of 1877  30 were in good shape.  31 Q   In your own observations of the operation of the  32 fishery today, have you observed people like Helgeson  33 describes in the process source the women would advise  34 when they needed more fish to process.  Have you seen  35 that in your observation of the Gitksan and  36 Wet'suwet'en fishery?  37 A   Yes, a net will be removed from the river.  And when I  38 interview the fisher and ask him why the net is out,  39 he would say we have enough fish.  The people at the  40 smokehouse say they have enough that we shouldn't fish  41 more for a while.  We don't need more fish for a  42 while.  So fishing is always intermittent and is keyed  43 to the ability of the people running the smokehouse to  44 handle the fish, to butcher the fish and prepare them  45 for smoking.  46 Q   I am going to leave that document now and ask you  47 this, you've described different fishing methods 14036  1 yesterday.  How long -- first of all at Moricetown  2 Canyon, if you can put your mind to that, from your  3 research were weirs ever used at Moricetown Canyon?  4 A   I don't recall ever hearing of a weir being used at  5 Moricetown Canyon, no.  6 Q   Okay.  From your observations of the canyon and your  7 understanding of how weirs operate, is it feasible to  8 have weirs at Moricetown Canyon?  9 A   In the canyon area proper the narrow rocky section of  10 the river it doesn't look like a place to put a weir,  11 no.  It is very difficult access, the current is very  12 strong.  It is very deep.  Not far downstream of the  13 canyon there is an island where the river separates.  14 Certainly one and at some stages of the river both  15 channels around the island would be easy to build a  16 weir across.  Upstream, just upstream of the canyon it  17 would certainly be feasible to put a weir across.  And  18 there are other locations in the vicinity of  19 Moricetown where you could put in a weir.  20 Q   Okay.  Were you informed or from your research were  21 weirs constructed in any of those places proximate to  22 Moricetown Canyon?  23 A   I haven't heard of any, no.  24 Q   Were fish traps used at Moricetown Canyon?  25 A   Yes.  26 Q   Until when?  27 A   Until the 1930's.  The date that sticks in my mind is  28 1932, but I couldn't swear to that without checking my  29 sources.  30 Q   Now, you're aware and you've observed the Moricetown  31 fish ladders?  32 A   Yes.  33 Q   And they were constructed in the Moricetown Canyon in  34 what year?  35 A   In the winter 1950, '51.  36 MR. GRANT:  Okay.  From your research did they have any effect  37 on the Indian fishery at Moricetown Canyon, the  38 construction of those traps?  39 MR. GOLDIE:  Well, we've had evidence from people who were there  40 at the time.  Surely that's better than having  41 hearsay.  42 THE COURT:  Sorry, are we talking about the fish ladders?  43 MR. GRANT:  The construction of the fish ladders at Moricetown  44 Canyon.  4 5 THE COURT:  Yes.  46 MR. GRANT:  And what was the impact of them on the fishery, if  47 any. 14037  1 THE COURT:  Well, Mr. Goldie, you have the advantage of me  2 because I haven't thought of this for a while, but my  3 recollection is that the evidence was largely negative  4 about the --  5 MR. GOLDIE:  Yes.  Well, I -- it depends on how you characterize  6 it.  My point is that there were people who purported  7 to have direct observed knowledge.  All that Mr.  8 Morrell can do is provide hearsay.  9 THE COURT:  Well, I would certainly be with you if that was what  10 he was going to say such as Mr. Alfred who is not here  11 this morning so I can use them as an example.  Mr.  12 Alfred told -- I'm sorry, Mr. Joseph.  13 MR. GOLDIE:  Mr. Joseph.  14 THE COURT:  Told me that the ladders were built in 1951 and they  15 didn't work.  I don't think he can say that.  16 MR. GRANT:  No.  17 THE COURT:  Mr. Joseph is back there.  But I wonder if he is  18 precluded from giving a fisheries opinion on the  19 effectiveness of them.  He has worked in the area for  20 ten years.  21 MR. GOLDIE:  Well, he may have, my lord, but if the firsthand  22 evidence is that they didn't work where does that --  23 all that this witness can do is to take that and say:  24 In my opinion as a fishery scientist they didn't work.  25 THE COURT:  Well, I would have thought that his evidence would  26 be related to the period that he has been there and he  27 has investigated the matter and he has watched and  28 looked at them and maybe he has an opinion that is  29 contrary.  I just don't know.  But I don't think he  30 can either repeat what others told him, nor can he  31 base an opinion on what they told him, but I certainly  32 think that he ought to be able to give an opinion on  33 what he has observed and what his investigations  34 disclosed.  35 MR. GOLDIE:  I agree.  36 THE COURT:  All right.  37 MR. GOLDIE:  I mean the question is do the fish ladders work or  38 not work.  3 9 THE COURT:  Yes.  40 MR. GOLDIE:  From your personal observation, that's fine.  41 THE COURT:  Yes.  42 MR. GOLDIE:  But we don't need to hear about 1950 or 1951.  43 MR. MACAULAY:  My lord, none of that is relevant whether they  44 work or don't work.  45 THE COURT:  I tend to agree with you, Mr. Macaulay, but I don't  46 think that I have heard so much evidence about it that  47 my curiosity is overwhelmed. 1  MR.  MACAU  2  3  4  MR.  GRANT  5  6  THE  COURT  7  MR.  GRANT  8  9  THE  COURT  10  MR.  GRANT  11  Q  12  13  14  A  15  16  17  18  19  20  21  22  Q  23  24  A  25  Q  26  27  28  29  A  30  31  32  33  MR.  GRANT  34  35  THE  COURT  36  37  38  39  40  41  42  43  44  MR.  GRANT  45  46  47  14038  LAY:  Well, it is an interesting -- all of them are  interesting questions, but they are not before this  court in this action.  :  Well, my lord, that wasn't the question I was going  to ask.  :  What is the question?  :  I think I am going to step back one step to get us  out of the conundrum.  :  Yes.  In the fisheries literature is there written material  with respect to the construction of the fish ladders  and in the historical literature that you've reviewed?  There are many references to the construction of the  ladders and studies conducted both before and after  the construction and evaluation of their  effectiveness.  There is also statistical data on  escapements above the fish ladders which have  implications for what the effect was on fish  populations and there are also impacts on the fishing  at the canyon.  Okay.  Now, is there -- in the studies and reports --  you've reviewed these?  That's right.  And in the studies and reports before, did they  describe the canyon and the fishery, if I may say the  geography of the canyon, before the ladders were  installed?  Certainly in a general way.  I've seen many  photographs of the canyon pre-fish ladders as well as  maps.  I have also heard descriptions of the canyon  before the fish ladders.  :  Okay.  Now, before the fish ladders were  installed --  :  Mr. Grant, I'm sorry, but, you know, if I allow you  to go on with this then Mr. Macaulay is going to feel  obliged to call evidence to meet it or he may feel  obliged to meet it.  I was prepared to depart from my  ruling to get an answer about whether the fish ladders  work, but to go back and review the history of federal  government fish management in Moricetown Canyon seems  to me to be opening up a very large area for futile  investigation.  :  Well, my lord, my question that I just asked the  witness was to illustrate that the foundation of what  I was asking him was not based upon what Mr. Alfred  Joseph or other persons had said which was to raise 1  2  3  4  5  6  7  8  9  10  11 THE  12  13  14  15  16  17 MR.  18  19  2 0 MR.  21  22  23  24  25  26  27  28  29  3 0 MR.  31 THE  32 MR.  33  34  35  36  37  38  39  40  41  42  43  44  45  4 6 MR.  47  14039  that.  That's the only point of the question.  I  want -- I was going to go onto ask the witness what  the impacts of the fish ladders was with respect to  the fish population going up the river, if any.  And  that I say is a conclusion that he can reach as a  fisheries scientist so that it is within his ambit in  that sense.  And with respect to the relevance, it is  not talking about -- I am not here focusing on numbers  or the pros and cons of the creation of the fish  ladders, but the impact that he observed.  COURT:  Well, I think I am going to allow you to ask that  very narrow question, Mr. Grant.  I think I have ruled  that it is all irrelevant, but I will allow you to go  that far simply to round out the evidence so much of  which I have already heard.  But I really don't want  to go back into the history about it.  GRANT:  What conclusions did you arrive at with respect to  the impact, if any, of the fish ladders on the fish  populations and on the operation of the Moricetown --  MACAULAY:  I object to that, my lord.  The fish population,  I can tell your lordship, will take me to another hour  of cross-examination.  I will have to meet that in the  event that it does become relevant.  I don't see  possibly it could.  That question was not confined to  what your lordship just directed.  Fish population is  the whole issue for the fish ladders that have been  built to improve the fish population, what are the  factors.  It is a complex and interesting subject, but  it is not relevant.  I will take that out of my question.  All right.  Thank you.  GRANT  COURT  GRANT  Q  What conclusions do you arrive at as to the impact of  the fish ladders -- of the installation of the fish  ladders, if any, on the Moricetown fishery?  A   I see three impacts if I count them right in my mind.  Several fishing sites were destroyed by the  construction of the fish ladders.  The fish ladder  while providing a new passage around the falls lies  across and forms a blockage to a pre-existing easier  route around the falls that was used by sockeye  certainly and perhaps other species.  That was the  reason that there were fishing sites in that area, the  trapline fished by Louie Tommy, among others, was  located on this --  MACAULAY:  He is getting into just the thing that I objected  to, my lord.  This witness has not listened to -- I 14040  1 can't blame the witness.  He is being lead into  2 discussing the efficacy of the fish ladders generally.  3 THE COURT:  Well I'm not sure that it goes quite that far.  It  4 is getting close.  But what he has told me is that  5 there are three impacts.  I'm not sure that he needs  6 to go any further, does he?  Well, I don't need to  7 repeat them.  8 MR. GRANT:  Well, I think he has only covered two, but I could  9 be wrong.  I read three, several fishing sites were  10 destroyed.  Oh, I suppose -- well, I thought the  11 second one was they provide a new passage through the  12 falls, number two.  Number three, they also provide a  13 blockage across the passage used by sockeye.  14 THE WITNESS:  It is two by my count.  15 THE COURT:  All right.  16 MR. GRANT:   You were dealing with the second one, they provide  17 a new passage across the falls.  Could you just  18 complete what you were saying about the second point.  19 MR. MACAULAY:  That's what I object to.  20 THE WITNESS:  But in doing that they block a pre-existing  21 passage.  22 MR. GRANT:  23 Q   Okay.  And the third point?  24 A   The third point is that prior to the construction of  25 the fish ladder pink salmon were not recorded spawning  26 above the falls.  Following the construction of the  27 fish ladders they were and a new population spawning  28 above the falls and in the Morice River system was  29 established.  That impacted the fishery by increasing  30 the numbers of pink salmon in the Moricetown Canyon  31 fishing area after the construction of the fish  32 ladders as that population grew.  33 Q   Okay.  I would like to just refer you to one section  34 of volume 2.  Do you have volume 1 in front of you?  35 A   Yes.  36 Q   Okay.  Can you just refer to tab 5 of volume 1.  37 A   Yes.  38 Q   Who prepared this report on the Skeena Kispiox -- on  39 fishing sites on the Skeena and Kispiox Rivers above  40 Kispiox Village?  41 A   Susan Marsden.  42 Q   And is this one of the background documents utilized  43 by yourself and Susan Marsden in the preparation of  44 the map Exhibit 357-22?  45 A   The map of fishing sites?  46 Q   Yes.  47 A   Yes. 1  MR.  GRANT  2  3  THE  COURT  4  THE  REGIS1  5  THE  COURT  6  7  8  9  10  MR.  GRANT  11  Q  12  13  14  A  15  Q  16  A  17  Q  18  19  20  21  A  22  23  Q  24  A  25  26  27  28  29  30  Q  31  A  32  Q  33  A  34  Q  35  A  36  37  38  39  40  41  42  43  44  45  46  47  Q  14041  :  I would ask just to have that marked as an exhibit  for identification at this time, my lord.  :  All right.  The next number, please?  ?RAR:  981, and that's tab 5 of book 1.  :  981 for identification.  (EXHIBIT 981 FOR IDENTIFICATION:  Tab 5, Plaintiff's  Book 1, Report on Fishing Sites At Kispiox Village)  And then I will go to volume 2, tab 2, page 110 is  where the chapter starts.  I am referring you here to  chapter four.  Yes, I have it.  And this was part of your fish management study?  That's right.  Now, I would like to refer you to the pie diagram that  is located right after page 129.  And I would like you  to explain this pie diagram as to how you developed it  and what it demonstrates.  The details of the methodology are given in the  earlier sections of the chapter.  This is the chapter four we have just referred to?  That's right.  The total pie is intended to represent  the entire run of fish returning to the Skeena in a  given year.  The segments of the pie represent the  allocation of that run among the various fisheries,  that is catch in the various fisheries and  escapements.  Could you just go around and describe what they are?  The various pie segments?  Yes, as to what they are referring to.  Okay.  That is which fisheries they are referring to?  Yes.  Starting from the three o'clock position on the  right area one, statistical area one in Dixon  Entrance.  Area 3X and 3Y are D.F.O. statistical areas  in the vicinity of the mouth of the Nass River.  Area  4 is the statistical area off the mouth of the Skeena.  Area 5 is the statistical area just to the south of  area 4.  The mouth of the Skeena includes Ogden  Channel and Principe Channel.  The next segment is the  catch of southeast Alaska including Noyes Island and  Cape Fox.  Noyes Island is a purse seine area, Cape  Fox is a gill net area.  The next segment indicates  the catch of Indian fisheries.  Is that inland fisheries? 1  A  2  Q  3  4  A  5  6  MR.  GOLDIE  7  MR.  GRANT:  8  MR.  GOLDIE  9  MR.  GRANT:  10  Q  11  A  12  Q  13  A  14  Q  15  i  16  A  17  18  Q  19  20  A  14042  That's right.  When I say that, I mean Indian fisheries other than at  the coast as part of the commercial catch?  I suspect that coastal food fishing catches are  included in those data.  :  In which?  The Indian fisheries.  :  Is that stated in the report anywhere?  I will come back to that in terms of it.  Okay.  What is the final area?  Escapement.  Now, where did you obtain the data from for the  depiction of the proportions of these pies?  That also was discussed in the text and it varies from  one pie chart to the next.  Sorry, from one pie chart or one segment, one pie  chart?  One pie chart to the next.  21 THE COURT:  All D.F.O. information?  22 THE WITNESS: Yes.  2 3 MR. GRANT:  What about southeast Alaska?  The southeast Alaska data comes from, in this case, a  paper that is cited in the methodology published by  D.F.O. research biologist regarding a reconstruction  of the Skeena sockeye runs.  Reconstruction is the  technique used.  Now, does the Indian fisheries include the Gitksan and  Wet'suwet'en fishery estimates?  The estimates of -- yes, the estimates by Department  of Fisheries and Oceans of the catch of the Gitksan  and Wet'suwet'en fisheries for the indicated years, in  this case 1978 to 1982 are included here.  So you didn't utilize your catch information?  These are not my data, no.  And did you compare your data collection techniques of  the Indian fishery with the -- for the Gitksan and  Wet'suwet'en area with the data collection techniques  of the Department of Fisheries and Oceans officers?  Yes.  And you communicated with them and discussed their  methodology with them?  Yes, I did.  :  Okay.  Can you make any comment on the frailties of  your methodology or their methodology or the strengths  24  Q  25  A  26  27  28  29  30  Q  31  32  A  33  34  35  36  Q  37  A  38  Q  39  40  41  42  A  43  Q  44  45  A  4 6 MR.  GRANT  47 14043  1 of both?  2 MR. MACAULAY:  Before we get into that, my lord, which will lead  3 to another hour or half an hour of cross-examination,  4 I can't tell yet but it seems to me that they are  5 steering right off course again into another channel.  6 THE COURT:  Well, let me ask you either Mr. Grant or Mr.  7 Morrell, is issue taken with these D.F.O. statistics?  MACAULAY:  Yes.  8 MR.  9 MR.  10 THE  11 MR.  12  13  14  15 THE  16 MR.  17 MR.  18 MR.  19  2 0 THE  21 MR.  22  23  24  25  2 6 MR.  27  2  29  30  31  32  33  34 MR.  35  36  37  38 THE  3 9 MR.  4 0 THE  41  42 MR.  43 THE  4 4 MR.  45  46  47  GRANT  COURT  GRANT  COURT  GRANT  MACAULAY:  GRANT:  On these pie charts, my lord?  Yes.  Well, I think that the context of the Indian  fisheries -- these statistics, this data is relied  upon by Mr. Morrell for the preparation of these, and  I think —  You don't dispute these figures?  Well, that's —  Yes, they do.  COURT  GRANT  THE COURT  They are a graphic depiction of a larger area of a  comparison.  Yes.  But there is a distinction between these statistics  and the data collected as Mr. Morrell has indicated  through his evidence.  And this was a subject matter  of a commission evidence witness, my lord, raised by  the Federal Crown as to that data collection.  MACAULAY:  That was before your lordship's ruling, my lord.  We thought we had to deal with that.  Well, I'm not sure that there is any relevance to it  at all, Mr. Grant.  It seems to me that, as I said  yesterday, we have got a management issue but it  doesn't really matter whether the management issue is  looking after five per cent of the total population or  25 per cent.  I can leave this for re-direct and see how my  friends deal with it, my lord.  The only point is that  you will have in front of you -- well, maybe I will  lay the groundwork on it.  You don't mean re-direct, you mean rebuttle.  Direct or rebuttle.  I'm sorry, you don't even mean that, you mean  re-examination.  That's right, re-examination.  Okay.  GRANT:  COURT  GRANT  COURT  GRANT  COURT  GRANT  Q  A  You describe in this chapter four the methodology that  you utilized in the preparation of these pie diagrams?  That's right. 14044  1 Q   And you refer not only to sockeye, but following page  2 130 you refer to the chinook allocation from 1971 to  3 1980.  Page 131 following figure 4-4 you refer to the  4 pink salmon allocation from '79 -- from 77 to 1982.  5 Figure 4-5 the coho location from 1971 to 1980 and  6 figure 4-6 the steelhead allocation from 1971 to 1972.  7 And that is a comparison of allocation of -- that is  8 the comparison of the catch of different fisheries of  9 the Skeena stocks?  10 A   That's right.  In all cases they are based on the most  11 reliable data available at the time of writing of this  12 report.  13 Q   Okay.  And unlike some of the other chapters you  14 haven't updated these.  Like with appendix 3, Exhibit  15 973, you did an update of the other chapters.  You  16 have not done an update of this chapter?  17 A   That's right.  18 MR. GRANT:  I would ask that chapter four be tendered in  19 evidence as the next exhibit.  20 MR. MACAULAY:  I object.  That is not relevant.  21 MR. GOLDIE:  I will phrase it another way.  I do not agree.  22 THE COURT:  Where does it start?  23 MR. GRANT:  It starts on page 110 and it goes to page 137.  My  24 lord, the relevance of this, and I've only utilized  25 one pie diagram as an example having the witness  26 explain it, but my submission is that the relevance of  27 it is to put into context -- it is a similar type of  28 data and I wouldn't say -- it's not identical, but it  29 is a similar type of data as what you saw in the  30 first — in map 2, Exhibit 358-20 — 358-23.  31 THE COURT:  Mr. Grant, I am going to have this marked as an  32 exhibit for identification.  I have a sense that a lot  33 of this is not going to end up being significant.  But  34 if at a later time counsel desire to making a serious  35 submission that I should admit it then I will hear  36 them, but I don't think we can take the time to have  37 that kind of argument.  I will mark it for  38 identification so there is no doubt we know what we  39 are talking about and if you want to have it tendered,  40 if you decide that you need it as part of your case  41 and you want to, as I say, to open the matter up I  42 will be glad to hear you.  I don't think at the moment  43 I am disposed to admit it into evidence.  The next  44 number will be 982?  45 THE REGISTRAR:  982.  46 THE COURT:  For identification.  47 MR. MACAULAY:  Should we object now or wait? 14045  MR. GRANT:  That will be page 110 to 137.  (EXHIBIT 982 FOR IDENTIFICATION:  Tab 2, Plaintiff's  Book 2, pages 110 to 137 inclusive)  THE COURT  9  10  11  12  13 MR.  14  15  16  17  18 THE  19 MR.  2 0 MR.  21 THE  22  23  24  2 5 MR.  26  27  28  29  30  31  32  33  34  35  36  37  3  39  40  41  42 MR  43  44  45  46  47  Well, that would be your decision, Mr. Macaulay and  Mr. Goldie.  I haven't admitted it into evidence and  my submission is that just glancing at this I would  not admit it into evidence.  Your friend might  persuade me otherwise, but I will have to leave it to  you to decide whether you think you can rely on the  ruling I have already made or not.  GRANT:  And, my lord, I understand my friend's objection is  based on relevance.  And if that's the foundation of  both my friends' objection then I don't need to lead  any further evidence on this witness about it because  there is no further foundation.  He has identified it.  COURT:  I am sure the objection is based on relevance.  MACAULAY:  Mine is, my lord.  GOLDIE:  I would have some other comments to make, but --  COURT:  Well, I think you had better make them then, Mr.  Goldie, because otherwise Mr. Grant is going to be in  a position that he doesn't know where to go even  though he is now 100 per cent over his estimate.  GOLDIE:  Yes.  It is of no -- in my -- this is just an  elaboration on what might otherwise be called  relevance.  In my submission it is of no assistance  for your lordship to be taken to what happens in the  ocean.  The map that my friend is referring to your  lordship was taken through on the basis of target  escapements for the upper Skeena and the Babine and  the middle Skeena -- and the lower Skeena.  Half of  this is taken up with what happens in the ocean and in  my view it is of no assistance to your lordship in  dealing with the question that is before the court,  namely is there a Gitksan-Wet'suwet'en fishery and if  so does it manage the resource?  Well, I haven't read it.  If it deals with the ocean  I would be very hard pressed to find a relevance for  it.  I will leave that question open and Mr. Grant can  raise it if he wishes.  THE COURT  GRANT:  Q  A  Q  Just one very brief section unrelated to this.  You  are aware of a steelhead fishery on the Kispiox River?  Yes.  Was the steelhead fishery on the Kispiox River  utilized by the Gitksan?  Was or is or both? 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 THE  37  3 8 MR.  39  40  41 THE  42 MR.  43 THE  44  4 5 MR.  4 6 THE  47  A  Q  A  14046  The Gitksan did and do fish steelhead in the Kispiox  River.  Was it -- is it a minor or an important component of  the Gitksan fishery?  It is a seasonal fishery.  It takes place primarily  during the winter and early spring.  Steelhead migrate  in the fall to the upper Skeena like salmon, but  rather than spawning and dying in the fall they, over  winter, near their spawning grounds and don't spawn  until temperatures begin to rise the following spring,  in this case usually during May.  So they are  available through the winter.  People -- Gitksan  people particularily from the village of Kispiox  travel up river.  There are known and owned fishing  locations for taking steelhead during the winter.  They are taken both singly one by one for utilization  as fresh fish, and I have heard accounts of net  fishing for larger numbers at a time.  Also primarily  for fresh consumption, but for distribution among more  people.  My lord, I just -- I have no further questions on  direct of the witness.  I just wanted to raise that  the issue of -- in light of the fact that I anticipate  that my friends may rely on Indian fish catch  estimates in the Gitksan and Wet'suwet'en area as  determined by the Department of Fisheries and Oceans I  am concerned that I don't want to be in a situation of  having to re-call this witness on rebuttal on that  point.  I do appreciate, though, your lordship's  comments on it and I don't want to -- I think that you  have made it clear that at this stage you don't see  that it is relevant.  I just wanted to note my concern  about that area.  And I would ask leave if anything is  raised on it in cross-examination that I would be able  to re-direct on that area with the witness.  Well, I will have to deal with that when I have  heard the cross-examination.  Yes. And, of course, I will have to deal with it in  rebuttal evidence at the end of the day if evidence is  called later.  All right.  Thank you.  Those are my questions.  Are you ready to proceed or would you rather take  the morning adjournment now?  MACAULAY:  I would prefer to take the adjournment now.  COURT:  Yes, all right.  Thank you.  COURT  GRANT  COURT  GRANT  COURT 14047  1 THE REGISTRAR:  Order in court.  This court will recess.  2 (PROCEEDINGS ADJOURNED FOR MORNING RECESS)  3  4  5 I hereby certify the foregoing to be  6 a true and accurate transcript of the  7 proceedings herein to the best of my  8 skill and ability.  9  10  11  12 LISA FRANKO, OFFICIAL REPORTER  13 UNITED REPORTING SERVICE LTD.  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 14048  1 (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  2 THE REGISTRAR:  Order in court.  3 MR. GRANT:  My lord, just before my friend proceeds, there was  4 one item I wanted to advise the Court of with respect  5 to Mr. Morrell's evidence.  You may recall with  6 respect to Exhibit 35822, the fishing sites map, Mr.  7 Morrell described his methodology yesterday and there  8 was a question with respect to which sites he observed  9 and which sites he had been informed of.  I propose,  10 after reviewing it with the witness last night that it  11 was a longer process than I'd anticipated, that the  12 way to resolve it, and I advised my friends of this,  13 is that because of the number of background  14 documentation which my friends -- it's been disclosed,  15 but it's a question of tracing through to make sure  16 that it's accurate -- is that I will file an affidavit  17 of Mr. Morrell referring to that map in which he will  18 list those sites that he has observed and he will list  19 those sites that he was informed of by, for example, a  20 deceased chief like Albert Tait.  And the question of  21 whether that's admissible can be argued at a later  22 date; that that affidavit would be tendered as a  23 supplement to the map.  That would save me of spending  24 what I realize was going to be much longer not only in  25 preparation but in examination today.  That's what I  26 propose to do.  27 THE COURT:  All right.  Any comment on that, Mr. Macaulay, Mr.  28 Goldie?  29 MR. GOLDIE:  This is the first I've heard about what my friend  30 is proposing and, of course, I may want to examine on  31 the affidavit.  32 THE COURT:  Yes.  All right.  Thank you.  Mr. Macaulay?  33 CROSS-EXAMINATION BY MR. MACAULAY:  34 Q   Could the witness be shown map 23?  35 THE COURT:  23?  3 6 MR. MACAULAY:  23.  That's the —  37 THE REGISTRAR:  Bar graph.  3 8 MR. MACAULAY:  39 Q   -- bar graph map.  40 Now, Mr. Morrell, could you direct your attention  41 to the cranberry system?  42 A   Yes.  43 Q   That's N6.  That means it's a tributary of the Nass;  44 is that right?  45 A   That's right.  46 Q   A part of the Nass system.  And as you've explained,  47 that the -- the pink bar graphs show sockeye? 14049  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 THE  34 MR.  35 MR.  3 6 MR.  37  38 THE  3 9 MR.  4 0 THE  41 MR.  42 MR.  4 3 MR.  44  45  46  47  MR.  A  Q  A  Q  Yes,  A  Q  A  Q  A  Q  A  Q  A  And the red bar graphs show chinook?  That's right.  Now, isn't the cranberry there -- that shows sockeye,  7500 sockeye?  That's right.  But isn't that a chinook run, cranberry?  Yes.  There is a chinook run to the cranberry.  But isn't it exclusively chinook?  Pardon me?  Is it not exclusively chinook and without any sockeye?  You may indeed be right about that, yes.  Those are my instructions, but I am not a -- an  expert.  I'm suggesting to you that it is chinook and  that there are no, you know -- if there are any  sockeye that wander up there, they're tourists?  It certainly doesn't look like a sockeye system.  There's no large lake in the system and there are no  sockeye spawning grounds indicated while there are  chinook spawning grounds indicated.  And so that -- now, when we look at the sockeye count,  that is the sockeye for the Nass system --  Yes.  — is the total 243,200?  That would be the sum of the target escapements for  the system.  That's what's indicated.  And that is the sum of Nl, Damdochax, N2, Bell-Irving,  N3, Kwinageese, N4, Meziadin, N5, Brown Bear, and N6,  Cranberry?  That's the indication of the map, yes.  There's also a blank on the left bottom there of the  bar graph.  Under NG?  Under N5.  MACAULAY:  N5 is Ground Bear, isn't it?  Oh, underneath.  GRANT:  Underneath N5 and beside N6 there's another little  bar.  Oh, yes.  So —  Unlabelled.  MACAULAY:  Unlabelled.  GRANT:  It's unnumbered.  MACAULAY:  Q   What is the unnumbered one?  A   In this graph, as in the Skeena graph, this will  elucidate a problem that arose the other day.  The  unlabelled segments of that graph indicate stocks that  A  Q  A  A  GRANT  COURT  GRANT  COURT  GRANT  COURT 1  2  3  4  5  Q  6  A  7  Q  8  A  9  Q  10  A  11  12  13  Q  14  15  A  16  17  Q  18  A  19  Q  20  21  A  22  Q  23  A  24  Q  25  A  26  Q  27  28  A  29  30  Q  31  A  32  33  34  35  Q  36  37  A  38  39  40  Q  41  A  42  43  44  45  46  47  14050  are available in the estuary but do not originate on  this map.  That was the source of our difficulty with  the sum of the chinook target escapements the other  day.  You mean down below?  Beg your pardon?  They're available down below this map?  They're available in the estuary of the river.  Yeah.  The map doesn't include the estuary either of the Nass  or of the Skeena nor of some of the tributaries of  those systems.  Does the 243,200 figure include stocks in the estuary  but aren't on Nl to 6 inclusive?  That's right.  That's what that small unlabelled  section of the composit bar indicates.  And in the case of the Skeena then, take chinook.  Yes.  The 93,010, of course you don't get that number of  fish, do you, when you add up SI to 8?  That's right.  Plus Babine, which is another 10,000?  Right.  You only get around 76,000?  That's right.  But the 93,000, the discrepancy is accounted for by  that unlabelled little corner?  It's rather large in the chinook graph.  It amounts to  between 10 and 20,000 fish, I believe.  Yes?  That's composed primarily of the stock that spawns in  the Ecstall system and a stock that spawns in the main  stem Skeena in the gravel bars and islands below  Terrace.  Where is the unnumbered little corner of the chinook  bar graph, the one that totals 93,010?  Yes.  As printed, the S8 is in a rather large segment  of that composit bar graph and it appears as printed  to label that large section.  Yes?  The map was amended yesterday to include a small lead  line from the printed figure S8 into the tiny square  adjacent to the rectangle marked S7.  So effectively  that large segment in which the S8 label is actually  located is not identified and that's the segment that  I'm referring to that includes escapement for parts of  the river that are -- escapement targets for parts of 1  2  3  Q  4  A  5  6  Q  7  8  9  0  A  1  2  3  Q  4  A  5  Q  6  A  7  Q  8  A  14051  the system that are not included on the map.  And  that —  Yes?  And that group of fish or those target escapements are  included in the sum that appears at the top.  Well, what shall we do with the 7500 chinook at the  cranberry system?  Does that -- do we just allocate  that to the blank space, the blank rectangle in the  Nass system?  That certainly seems to be an error in the map as  printed.  I hadn't caught it and I can't explain it  without going back to the source data.  That would take time?  Pardon me?  That would take a certain amount of time?  It would take a certain amount of time.  All right.  Well, we won't take that time.  If it's an important point, I'm willing to take it on.  19 THE COURT:  Here's an easier one for you to handle.  I can't  20 find S8.  What is S8?  21 MR. GRANT:  That's Lakelse, my lord.  22 THE WITNESS:  That's the source of the S8 stock, yes.  23 THE COURT:  Oh, yes.  It doesn't have it marked down there.  24 THE WITNESS:  That was also an amendment.  25 MR. GRANT:  I noted that yesterday, my lord.  26 MR. MACAULAY:  We have that correction at the beginning of the  27 evidence.  2 8 THE COURT:  Such a lovely map.  I didn't want to write on it.  2 9 MR. MACAULAY:  I spoiled mine, my lord, but making elaborate  calculations and now we found out that it's those  little tiny squares that explain it all.  Now, if we could turn to another map, the 22.  On  22 I draw your attention to an area just below  Smithers where we have addressed on the map fishing  sites and fishing locations.  The location is a  triangle and the site is a dot; is that right?  That's  the conventional sign used on this map?  The -- referring to the legend, the triangles refer to  lake fishing sites, including those used for  nonmigratory species, trout, white fish, link, et  cetera.  And the dots?  The dots refer to salmon fishing sites.  I see.  And closed and open has to do with elements of  certainty and of location and numbers of -- numbers of  30  Q  31  32  33  34  35  36  37  38  39  A  40  41  42  43  Q  44  A  45  Q  46  A  47 1  2  Q  3  4  5  6  7  8  9  A  10  Q  11  12  A  13  Q  14  15  A  16  17  18  Q  19  20  21  A  22  Q  23  A  24  Q  25  26  A  27  Q  28  A  29  30  31  Q  32  33  34  35  36  37  38  A  39  40  41  Q  42  43  44  A  45  Q  46  47  A  14052  sites included.  Well, just below Smithers we have three locations:  toots K'eet -- that's t-double-o-t-s-capital  K-apostrophe-e-e-t, Keel Weniits, K-double e-1-capital  W-e-n-i-i-t-s, and Keel Weniits tl'ooghk'et, K-double  e-1 Weniits.  That's spelled before.  And then another  word, t-1-apostrophe-double o-g-h-k-apostrophe-e-t.  See those?  Yes.  And there are two triangles indicated there.  You say  those would show lake fishing?  Yes.  And the open triangle, that is the one that's not  filled in with ink, what does that mean?  If you refer to the legend, I'll read:  "Fishing  location probably containing multiple sites".  That's  at the upper right of the map.  And you've explained the dots.  Now, you gave evidence  yesterday or the day before that you did visit that  area?  Yes.  I've been there.  And was that to observe the fishery?  No.  Did you observe any fishery when you were there, any  fishing?  I don't recall any, no.  When was it you were there, what year?  I've been there various times, all, I might say on  travels unrelated to -- to the study, I would say  recreational or other business.  And then below those sites on the same lake and river  system there's another Sde keen t'aat.  That's  S-d-e -- I'll spell it for the reporter -- k-double  e-n and then another word, t-apostrophe-a-a-t.  And  all those -- again we have one of those fresh fishing  locations and a salmon fishing site bearing that name;  is that right?  The dot indicates a salmon site.  The triangle  indicates a trout or lake site.  And what's meant by  that is a fishing location for nonmigratory fish.  Now, you know from your reading that -- first I should  say, you know, that this is part of the Copper River  system?  That's right.  Most of which lies outside the claim area, most of the  Copper River?  It's shown on the map, yes. 1  Q  2  3  A  4  Q  5  6  A  7  Q  8  9  A  10  11  Q  12  13  14  A  15  16  Q  17  18  19  A  20  21 MR.  MACi  14053  And the -- this -- we're dealing now with the  headwaters of the Copper River?  Yes.  And the salmon run there.  There was a sockeye run  there?  Yes.  And you know from your reading of history that there  was a land slide in the 19th century?  I've seen references to the slide in the lower section  of the Copper River.  Well, it's the paragraph next to the one -- the  paragraph of Helgeson that you were dealing with just  an hour ago?  That's right.  And there are many other references to  it.  And Helgeson appears to have discovered the slide in  the early 20th century; that he understood it occurred  many years before?  I'm not certain as to the date.  I'm sure the sources  will -- will be clear on that.  LAY:  Perhaps we could turn to the exhibit, my lord,  22 the one that the witness used.  23 THE COURT:  The Helgeson report?  24 MR. MACAULAY:  Yes.  The Helgeson report.  25 THE REGISTRAR:  It's Tab 4 of Book I, my lord.  2 6 MR. MACAULAY:  27 Q   At page 210, my lord, under the heading "Copper  28 River".  And it reads as follows:  29  30 "We left Hazelton on the 10th and reached  31 Copper River on the 12th.  This is also a  32 river of considerable magnitude, and empties  33 into the Skeena from the east, three miles  34 below the canyon.  One of its forks heads  35 close to the Tolquor, the other runs north,  36 and ends at the head of Kethijukla River"...  37  38 I better spell that for the reporter.  39 K-e-t-h-i-j-u-k-1-a.  40  41 "... and is about 70 miles long, and has no  42 less than four lakes of various sizes.  43 Formerly Copper River was counted among the  44 great salmon streams of the Skeena until 15  45 years ago when a slide came down from the  46 mountain with a tremendous rock in it, some  47 15 miles up from its mouth, which formed a 14054  1 dam that made it impossible for the salmon  2 to get up.  3 A prospector, Mr. F. Allen, and others  4 who have been there recently told me the dam  5 is 20 feet high, that in front of it was a  6 mass of dead fish, enough to pollute the air  7 and the whole neighbourhood.  On the lakes  8 above are numerous salmon houses deserted  9 long ago.  Mr. Allen said that 500 or 600  10 dollars would blast the rock and clear away  11 the dam."  12  13 You had read that?  14 A   I think so, yes.  I have read it now.  15 MR. MACAULAY:  And do you have any quarrel with that?  16 MR. GRANT:  With which part?  17 MR. MACAULAY:  The accuracy of what I've read.  18 MR. GRANT:  Well, my lord, I object to the last part because  19 certainly that's double hearsay.  20 THE COURT:  Well, the question, I suppose —  21 MR. MACAULAY:  Mr. Allen is dead, I think, my lord.  22 THE COURT:  The question, I suppose, is do you have any  information that contradicts that?  :  But what I'm saying is that the witness -- that Mr.  Helgeson is reporting on what he was told.  :  By Mr. Allen.  :  By Mr. Allen.  2 8 MR. MACAULAY:  Oh, yeah.  29 THE COURT:  Mr. Allen has a high credibility level.  I think  30 you're quite right, Mr. Grant.  The other question is,  31 of course, one that can be asked.  32 MR. MACAULAY:  33 Q   You have no quarrel with the personal observation of  34 Mr. Helgeson?  35 A   I'm reviewing -- there is a lot of information there.  36 I'm reviewing it.  I'm trying to hold it up against  37 other things that I know.  The first thing I come to  38 is that I don't think of the Copper River as one of  39 the great salmon streams of the Skeena.  I don't have  40 information to indicate that.  I don't know what Mr.  41 Helgeson bases that on.  Certainly it is a river used  42 by salmon.  I wouldn't dispute that.  I haven't seen  43 the slide.  I've read references to it in my scanning  44 of annual reports of the Department of Marine and  45 Fisheries.  I haven't paid a great deal of attention  46 to those.  I haven't taken notes on them or done any  47 analysis of them.  23  24  MR.  GRANT  25  26  THE  COURT  27  MR.  GRANT 14055  1 MR. MACAULAY:  Well —  2 MR. GRANT:  Let the —  3 THE WITNESS:  I'll — I'll stop at that.  4 MR. MACAULAY:  5 Q   It appears that the salmon run was stopped for a  6 considerable time?  7 A   He describes dead fish at the base of this dam.  He  8 says that the slide came down 15 years ago.  The  9 implication -- certainly if the dam is 20 feet high  10 and there's a 20-foot waterfall there, it sounds like  11 an impassable barrier.  I suppose the implication is  12 that the mass of dead fish were trying to ascend the  13 waterfall.  I don't think they could have been hatched  14 above it if it's correct that the -- that the slide  15 was 15 years earlier.  Salmon often do ascend a river  16 that they intend to spawn in until they get as high in  17 the system as they can get and then they may jump at  18 waterfalls there.  They -- following a period of  19 pooling below the obstacle, they may move back  20 downstream to spawn.  The -- the dead fish below the  21 obstacle may have resulted from a number of things.  I  22 don't know.  I don't know what we can say about that.  23 Q   Now, turning to the map again, on whose -- now,  24 those -- those four sites that I mentioned, drew your  25 attention -- to which I drew your attention, all of  26 them Wah Tah Kwets sites, on what did you rely in  27 placing the dots, that is the salmon fishing stations,  28 along that chain of what appears to be lakes and  29 river?  30 A   The -- in the Wet'suwet'en section of the map, I  31 relied in many cases, particularly for the nonsalmon  32 sites, on information in interviews of the series that  33 we've -- that have been referred to many times in this  34 case, the land claims interviews and the fish  35 management interviews.  Also there was — there were  36 interviews conducted by Tonia Mills, which provided  37 information for this.  Again without going to the --  38 the foundation documents which -- which are available,  39 I can't tell you specifically what information led  40 to -- led to these locations.  As in the case of the  41 Gitksan area, the -- the production of the map was a  42 collaboration between Tonia Mills and myself as the  43 Gitksan area was between me and Susan Marsden.  44 Q   Well, how about this little area?  I've narrowed my  45 inquiry to a comparatively short stretch of the  46 river --  47 A   Yes. 14056  1 Q   — and lake?  2 A   Yes.  3 Q   Was it you or Tonia Mills?  4 A  Who put the dot on the map?  5 Q   Yes.  6 A   I would have been the one to put the dot on the draft  7 map.  I did do the drafting of the map from which this  8 map was made.  9 Q   And was it your own interviews that you relied on or  10 was it --  11 A   No.  12 Q   It wasn't?  13 A   No.  14 Q   Was it Tonia mills you relied on?  15 A   I don't know the specific information sources that  16 underlie these particular dots.  I can find that  17 information by going to the base documents, as I  18 explained.  Off the top of my head, I can't tell you  19 the source of the information and the nature of the  20 information.  21 Q   During the adjournment, that's between 12:30 and 2:00,  22 do you think you could locate that?  23 A   I'll have a go at it.  24 Q   Okay.  Thank you.  And now who put the label Wah Tah  25 Kwets opposite the place names?  26 A   The information sources in general are — are the ones  27 that I've cited.  The Indian names -- for Indian names  28 and ownership I rely on the opinion of Tonia Mills,  29 who looked at the same information.  As I say, it was  30 a collaboration, but I don't --  31 Q   You don't know who Wah Tah Kwets is?  32 A   That is his English name you mean?  33 Q   Yes.  34 A   No.  35 Q   And now we have a more recent -- more recent documents  36 and maps that the plaintiffs have kindly provided us.  37 And the -- the name for this territory now appears to  38 be Hagwilneghl?  39 A   I see.  40 MR. MACAULAY:  Do you know anything about that?  41 MR. GRANT:  Just wait.  Is my friend referring to the name of  42 the ownership of this fishing site or of the  43 territory, the land territory, because I think there  44 may be -- because this is with respect to fishing  45 sites.  I just want his question to be clear.  4 6 MR. MACAULAY:  Well —  47 MR. GRANT:  I'm not certain which map my friend is referring to. 1  MR  2  3  MR  4  5  6  MR  Q  Yes.  A  That  Q  Yes.  A  No.  Q  Then  14057  MACAULAY:  9B is the one, but there's a territorial  affidavit.  GRANT:  So this is the land territory, Exhibit 9B.  My lord,  I think it's obvious that there's not necessarily a  correlation between the two.  MACAULAY:  Apparently not.  7 THE COURT:  What you're asking the witness is if he knows whose  8 territories these fishing sites are said to be in?  9 MR. MACAULAY:  10 Q   Yes.  Do you know what territory that is?  11 A   That is what house owns it?  12  13  14 Q   Then you relied on -- for the endorsement Wah Tah  15 Kwets, in all four cases here you relied on Antonia  16 Mills?  17 A   On Antonia Mills' judgment about a body of  18 information, a body of evidence, yes.  19 Q   Wasn't it your understanding or isn't it your  20 understanding that ownership of land, including  21 fishing sites, is not a matter of -- in the case of  22 the Wet'suwet'en doesn't pertain to an individual  23 house but to a clan?  24 A   That was my understanding at one time.  That's not my  25 understanding now.  26 Q   And where did you get your understanding at one time,  27 that is when you -- back a few years?  28 A   Often in speaking to people, people will say, oh, that  29 site belongs to Tsayu, for example, which is a clan.  30 I took that to mean that the site belonged to the  31 entire clan.  32 Q   And more recently that notion has been corrected, has  33 it?  The notion you had has been corrected by others?  34 A   That's right.  35 Q   You've been told by the chiefs that that's not the  36 case; that the Wet'suwet'en houses -- individual  37 houses own the fishing sites and land, not the clan?  38 A   I've seen interview material.  I have heard people  39 refer to fishing sites as being owned by particular  40 houses or particular chiefs, yes, and I know that it  41 is Dr. Mills' opinion that fishing sites are owned by  42 houses rather than clans.  43 Q   Okay.  Now, you started working for the tribal council  44 in 1979?  45 A   That's right.  4 6       Q   And before that time did they have a person competent  47 in fisheries, that is with the scientific competence 1  2  3  A  4  Q  5  A  6  7  8  Q  9  10  A  11  12  13  14  Q  15  A  16  Q  17  A  18  Q  19  20  A  21  22  Q  23  A  24  Q  25  A  26  27  Q  28  A  29  30  31  Q  32  A  33  34  35  36  Q  37  A  38  Q  39  40  41  A  42  43  44  45  46  47  14058  in fisheries that you have, employed to work for the  council?  Before 1979?  Yes.  They had no one with a degree in fishery biology or  with academic background in fishery biology, fishery  science.  And after 1979 -- well, let's start in 1979.  Who were  you working with in the tribal council?  When I started working for tribal council, Neil  Sterritt was the land claims director.  Gary Patsy was  his assistant and Sheila Joseph was the secretary, and  I was the fourth member of the total staff.  That was the full staff of the tribal council, was it?  That's right.  At that time?  That's right.  And who directed the staff?  Was there a board of  directors?  The tribal council has an elected board of directors  and an elected executive, yes.  Did you deal with the executive?  On occasion, yes.  I was --  You were going to say something?  I was hired by the executive.  I was interviewed by  the executive.  Do you remember their names?  Bill Blackwater was president, Alice Jefferies, who's  a member of executive at that time.  I can't recall  who else was on the executive at the time.  Were the executive all chiefs of houses?  The two names that I can recall, Alice Jefferies is  Miluulak.  Bill Blackwater, to my knowledge, is not  the head of a house.  I see him at feasts.  He sits  near the head of his table.  So you assume he is a chief if not the head chief?  He is a chief, yes.  And now the board of directors in those days -- did  you have any dealings with the board as a board?  I'm  talking about 1979 for starters.  Um-hum.  I'm trying to recall the details.  I think  it's very likely that I did.  I -- I -- let's see.  I  prepared a proposal in conjunction with the land  claims office and the land claims advisory committee  composed of hereditary chiefs.  I think it's likely  that I presented that to the board or to the  executive.  I just don't recall the details of that 14059  1 process.  2 Q   Now, were the directors -- were they hereditary  3 chiefs?  4 A   Some of them were.  At the time that -- at the time  5 that we're talking about, in 1979, the board of  6 directors of tribal council was composed of  7 representatives of the various bands that made up the  8 tribal council, and I believe each band had its own  9 method of determining who was on the board of  10 directors at that time.  11 Q   Did that change?  Did the board of directors -- was  12 there a -- in the time that you worked for the tribal  13 council, did the -- did the basis of choosing  14 directors change?  15 A   There was an election process at the annual -- at the  16 annual convention.  Directors were elected.  17 Q   That is instead of the --  18 A   I beg your pardon.  I'm not certain that I'm -- that  19 I'm correct on this process.  The tribal council does  20 have a constitution that lays out the -- these  21 procedures.  I'm working from memory.  The elections  22 that I'm thinking about at the annual convention  23 probably were just for executive and there may or may  24 not have been changes in the way the directors were  25 named to their positions.  I'd rather not offer an  26 opinion on that because I'm not sure.  27 Q   I'm not asking for your opinion, just your  28 recollection.  29 A   Okay.  30 Q   Now, by 1982 you had been working for the tribal  31 council over three years?  32 A   Yes.  33 Q   And -- around three years anyhow?  34 A   I began in April, 1979.  35 Q   Yes.  And when you began in April, '79, had there been  36 any study of the Indian fishery undertaken by the  37 tribal council before you got there?  38 A   There had been nothing done of the scope of the study  39 that I undertook.  At the time I arrived, Neil  40 Sterritt and others, I believe, had been collecting  41 place names and cultural information for some years,  42 and I imagine that included in that body of research  43 there would be information about the fishery  44 management system, fishing site names, et cetera.  So  45 there would be -- there had been some study.  It was  46 not organized as the fish management study was.  47 Q   You're telling me that a lot of information was being 1  2  3  A  4  5  6  Q  7  8  9  A  10  11  Q  12  13  A  14  15  Q  16  17  A  18  19  20  21  Q  22  A  23  24  25  26  27  28  29  30  Q  31  32  A  33  Q  34  A  35  36  Q  37  38  A  39  40  41  42  Q  43  A  44  45  Q  46  A  47  14060  gathered and some of it pertained to fisheries, but it  wasn't isolated in a compartment before you arrived?  It wasn't isolated from the other information, yes.  It was collected with other cultural and geographic  information, as far as I know.  And was it one of your duties to prepare or assist in  preparing presentations to the Department of  Fisheries?  From time to time I was involved in things like that,  yes .  Do you remember assisting in preparing a presentation  to the Department of Fisheries in early 1982?  Can you tell me more about it?  I'm not sure what  you're referring to.  Well, having to do with the negotiations for  co-management?  Around that time there was a delegation from the  tribal council to a meeting with representatives of  the Department of Fisheries and Oceans, Wayne Shinners  and others.  Oh, Shinners is the fisheries man, is he?  Yes.  He was the director general of Fisheries and  Oceans at that time.  There was a -- there were  written submissions prepared for that meeting and  there were oral presentations made at the meeting.  I  accompanied that -- that delegation.  I helped prepare  the -- I prepared part of the written submission and I  believe I spoke -- I made a formal presentation at the  meeting.  That's my recollection.  Now, who were others who helped prepare the written  submission apart from yourself?  I believe Gary Patsy was involved.  Yes.  Is he a hereditary chief?  He has a name.  I'm not sure where he stands in the  hierarchy.  All right.  Gary Patsy.  Neil Sterritt, I suppose, was  involved, was he?  I imagine he was.  He certainly would have been aware  of what was going on.  Whether he was involved in  the -- at what level his involvement was, I don't  know.  Anyone else?  In 1982 the fish management study had -- this is the  time we're talking about, right, 1982?  Yes.  March, 1982.  Okay.  At that time there was a staff of four on the  fish management study in addition to myself.  Do you 1  2  Q  3  A  4  5  6  7  8  Q  9  10  11  A  12  Q  13  A  14  15  16  17  18  19  20  Q  21  A  22  Q  23  A  24  Q  25  26  27  28  A  29  30  Q  31  32  33  A  34  35  36  37  38  39  40  41  Q  42  43  44  A  45  Q  46  47  14061  want their names?  Yes, please.  They likely were involved in this too.  If -- at that  time there would have been Ardith Wilson, Harry  Daniels, either Victor Austin or Carol Naziel -- I  think probably it was Carol Naziel at that point --  and either Barbara Wilson Houson or Russell Stevens.  And were those people that you've named, were they all  hereditary chiefs in the sense of people having names  in the feast hall --  Um-hum.  -- in their houses?  I'm not sure whether Harry Daniels has a name.  I  believe Ardith and Barbara Wilson, who are sisters,  have names.  I'm not certain.  Russell Stevens has a  name.  Did I say that?  I'm not certain about Victor  Austin.  I believe Carol Naziel has a name.  Were  there other names that I listed?  I'm trying to keep  track mentally.  Victor is Victor Austin, Charlie Austin's son?  Yes.  And Charlie Austin is a head chief or rather a chief?  He's a Wet'suwet'en chief, yes.  Wet'suwet'en chief.  Now, do you remember there being  what's sometimes called an executive summary of the  written presentation made at that time to the  Department of Fisheries?  I don't recall the format.  I can look at it if you  want to show it to me.  All right.  Perhaps the witness could be shown.  It's  our Document 12187, my lord.  It's a -- on the  letterhead of the Gitksan Carrier Tribal Council.  I'd like to add before we leave the question of people  involved in the preparation or the process of the  preparation of this that in -- I'm listing -- I've  offered you a list of people who may have been  involved in the preparation according to my  recollection.  There may have been other people.  Perhaps looking at the document we can — other things  will become apparent.  I see.  Now, there is a two-page -- this document  starts with two pages entitled "Background  Information".  Yes.  And under -- it's the third -- yes.  It's page --  sorry, my lord.  The -- there's the cover page and  then there's the index.  And the index shows the 14062  1 background information is at page 1 and that the issue  2 is at page 3, but -- page 2 rather.  But it seems to  3 me that the background information spills over on to  4 page 2 as well.  But I'm looking now at background  5 information item number 2.  It's a paragraph numbered  6 2.  It reads:  7  8 "Tribal council initiates a four-year study  9 on the Indian fishery.  The significance of  10 this is that tribal council realize that  11 very little, if anything at all, was known  12 about the Indian fishery and therefore set  13 out to establish an information base of hand  14 data substantiating what tribal council has  15 been advocating."  16  17 Do you see that?  18 A   Yes.  19 Q   Were you the author of that?  2 0 A   No.  21 Q   Do you know who was the author of that?  22 A   It appears to me to be Gary Patsy's style.  That would  23 be my guess.  24 Q   All right.  And if you turn to page 10.  25 A   Excuse me.  There's a typographical error in that.  26 Hand data is how it's written.  I'm sure what's meant  27 is hard data.  2 8 MR. MACAULAY:  Oh.  Perhaps, yes.  Well, hard data.  Right.  If  29 you turn to page 9, page number 9 in the upper  30 right-hand corner, there is a heading called  31 "Political Organization", middle of the page, and  32 it -- under that heading, the paper says:  33  34 "The importance of power in our cultures is  35 reflected in the fact that we distinguish  36 between two levels of persons:  37 (i)  Chiefs are 'real people' who have power  3 8 and  39 (ii) 'Ordinary people' who are without  4 0 power."  41  42 THE COURT:  Mr. Macaulay, I'm sorry.  I thought you said page 9.  43 MR. MACAULAY:  Yes.  It's 9 up in the upper right-hand corner,  4 4 my lord.  45 THE COURT:  All right.  Thank you.  4 6 MR. MACAULAY:  47 Q   Were you the author of that particular paragraph -- 1  A  2  Q  3  A  4  Q  5  6  7  A  8  Q  9  10  A  11  12  13  Q  14  A  15  Q  16  A  17  18  19  20  Q  21  A  22  Q  23  A  24  25  Q  26  A  27  Q  28  29  A  30  Q  31  A  32  Q  33  A  34  Q  35  36  37  38  39  40  41  42  43  44  45  46  A  47  Q  14063  No.  -- or series of sentences?  Do you know who was?  No, I don't.  Does that conform with the information you had at the  time, the things you were being told at the tribal  council office?  I think I understand what's meant by that.  Well, are there such -- is there an expression called  real people?  I believe that that's a translation of a Gitksan word.  It would be Simgigyet plural, Sim meaning real and  gyet -- or gigyet is the plural of --  People?  Gyet, man, person.  And there's another expression.  And that's taken to be -- that's Simoogit single or  Simgigyet plural is -- I'm sure the court's familiar  with this.  This is translated generally as chief or  chiefs.  Yes.  And then there is another companion word?  Yes.  Do you know that one?  No, I don't.  I don't know what ordinary people refers  to.  Presumably people who are not Simgigyet.  Yes.  Yes.  And had you been told that the real people have power  and the ordinary people do not have power?  I've heard that analysis.  Yes.  But you didn't write it?  Pardon me?  You didn't write it?  No.  And now if you'll turn to page 11.  That's 11 up in  the right-hand corner.  In the first paragraph the --  partway down the first paragraph, the text reads:  In Carrier society, however, the clan is the  territorial ownership unit, not the house.  We are in the process now of trying to  analyse what implications this distinction  holds for decision making in the two  societies."  Did you write that?  A   No.  Q   Do you know who did? 14064  1 A   No, I don't.  2 Q   But now looking at the paper as a whole, do you  3 recognize that as the paper that was used and  4 presented to the meeting with Mr. Shinners and others?  5 A   I don't recognize it.  I can read the cover.  Perhaps  6 looking at it further I can recognize parts, but this  7 material is similar to many explanations of the -- of  8 the Gitksan and Carrier or Wet'suwet'en systems that  9 have been written for different purposes such as this.  10 It's hard for me to distinguish this one from others.  11 That's why I can't say that I recognize it.  I'm --  12 I'm not debating that it is what it purports to be.  13 MR. MACAULAY:  And you've already said you understood at one  14 time that the -- in Carrier society -- that should now  15 read Wet'suwet'en society -- the clan was the  16 territorial ownership unit and not the house?  17 MR. GRANT:  My lord, I think my friend has misstated.  The  18 witness said his understanding was.  19 MR. MACAULAY:  Yeah.  20 MR. GRANT:  I thought my friend was indicating that that was  21 what was occurring at that time.  22 MR. MACAULAY:  23 Q   Your understanding at one time was that in the  24 Wet'suwet'en circles it was the clan and not the house  25 that was the territorial ownership unit?  26 A   That's right.  That was my understanding at one time.  27 Q   Was that your understanding in 198 -- in March of  28 1982?  29 A   I suppose in March, 1982 I would have relied on this  30 paper.  31 MR. MACAULAY:  And the purpose of the discussion in March, 1982,  32 is it as set out in the -- under the heading "Issue"  33 on page 2 of this document?  34 MR. GRANT:  Is my friend referring to the discussion in the  35 paper or the discussion with the -- with Mr. Shinners?  3 6 MR. MACAULAY:  37 Q   The discussion with Mr. Shinners.  38 A   Can you repeat the question?  Pardon me?  39 Q   You see the definition of the issue --  40 A   Yes.  41 Q   -- as set out there --  42 A   Yes.  43 Q   -- on page 2?  Was that -- does that conform -- was  44 that what you talked to Shinners and his associates  45 about?  When I say "you", your delegation?  46 A   This delegation.  47 Q   Yes. 1  A  2  3  4  5  6  7  8  9  10  Q  11  A  12  13  14  15  16  Q  17  18  A  19  Q  20  21  22  A  23  24  25  26  27  Q  28  29  30  A  31  32  33  34  35  Q  36  37  38  A  39  Q  40  A  41  Q  42  43  A  44  Q  45  46  47  A  14065  It was about the subject of co-management that had  been -- this is one of a series of meetings between  tribal council staff, frequently including myself,  with officials of the Department of Fisheries and  Oceans all directed at reaching a resolution of the  conflict between the Gitksan and Wet'suwet'en fishery  management system and the fishery management system  that Department of Fisheries and Oceans wanted to  govern the Indian fishery.  What —  And so I would say that the subject of the meeting --  that meeting was part of that series of meetings and  the general objective was to find a way of resolving  the conflict of co-ordinating or somehow sorting out  the differences.  What were the points of conflict at that time, that's  March, 1982?  The points of conflict.  Between -- well, you have mentioned there was conflict  and the idea was to try and resolve the conflict by  some new system?  Yes.  The fundamental conflict was who has the  authority to regulate the fisheries in the Gitksan and  Wet'suwet'en area.  There are many conflicts that  arise out of that.  I have alluded to some of them  earlier.  Wasn't the principal conflict or the principal  discussion about the -- a commercial fishery, an  inland commercial fishery?  That may well have been part of the discussion.  That  has been something that the tribal council and the  hereditary chiefs have been interested in certainly  from the time that I've been involved with the -- with  the Gitksan and the Wet'suwet'en.  Well, wasn't your 1985 submission, that great big one  that is now Appendix -- we call Appendix 1 in these  proceedings?  The fish management study report, the FMS report.  Yes.  Yes.  Wasn't the subject of that the establishment of a  commercial fishery, an inland commercial fishery?  That was one of the subjects treated in it.  Wasn't that the principal subject that concerned the  tribal council at that time in 1982 and 1985 on the  subject of fisheries?  No to both those questions. 1  Q  2  A  3  Q  4  5  6  A  7  8  9  10  11  12  Q  13  14  15  16  A  17  18  19  20  21  22  Q  23  A  24  Q  25  26  A  27  Q  28  A  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  Q  45  46  47  A  14066  No?  No.  It was not the principal topic in 1982, the  establishment of a -- a Gitksan/Wet'suwet'en  commercial fishery?  Can we separate the questions?  There's what was the  principal subject of the report or the study?  And the  other was what was the principal concern of tribal  council and the hereditary chiefs?  Maybe there's  another question.  What was the principal subject of  this meeting?  The principal subject of the meeting.  At the meeting  wasn't the discussion largely focused on the  establishment of a commercial fishery in  Gitksan/Wet'suwet'en territory?  I think it's very likely that the subject was  discussed.  I don't recall the agenda for the meeting.  I don't -- I don't know what all the subjects were  that were discussed.  I -- the title -- there's some  reference to -- I suppose -- I guess it was you that  referred to co-management earlier.  That's —  On the first page.  Yes.  In the second line of the first sentence on page  1?  Yes.  "Leading to co-management negotiations".  So I think of that meeting as being part of the  co-management discussions.  And there were many  subjects involved in that, including a resolution of  the conflict regarding the authority -- the conflict  regarding who who had authority to manage the Gitksan  and Wet'suwet'en fishery.  And part of those  discussions was also the conflicts around the  commercial sale and trade of fish taken in the Gitksan  and Wet'suwet'en fisheries.  And so what we're talking  about is legalization of the commercial fishery that  existed and also possible expansion of that fishery to  provide an economic development base for the Gitksan  and Wet'suwet'en people.  Those are all items on the  agenda of the chiefs and the tribal council at that  time, and I imagine that they were all discussed at  that meeting.  Did you take a hand in drafting material for the --  what you described in your evidence earlier as the  profit a prendre action in 1983?  Um-hum.  That um-hum was an acknowledgement of the 14067  1 question.  I didn't have very much to do with -- with  2 that case.  I knew of the fishing site mapping  3 activity that was going on in connection with that.  I  4 saw the maps.  I knew the people who were involved.  5 Some of the fish management study personnel were  6 involved in -- in the fishing ground mapping.  As I  7 recall, I didn't draft any of the maps and I don't  8 think I did any writing in association with that.  I  9 may be wrong.  If you want to show me documents, I can  10 try to identify them.  11 Q   Well, the fish study -- fish management study  12 personnel, were they working under your direction?  13 A   If you drew a -- what do you call it -- a chart of the  14 hierarchy of the -- of the tribal council staff at  15 that time, they were under my direction, yes.  16 Q   Yes.  17 A   In their work on that study they were working as part  18 of a team, including Alex Morgan and Glen Williams.  I  19 think you might refer to the process as a secondment  20 of those people who were working on the fish  21 management study.  They were under my direction in  22 that study.  For this special project they were  23 working, I suppose you would say, under the direction  24 of Alex Morgan and Glen Williams.  25 MR. MACAULAY:  I'll show you — this is Exhibit 26B, my lord.  26 It's Schedule D to the —  27 THE COURT:  26B?  28 MR. MACAULAY:  Yes.  26B as in Baker, but it's Schedule D to  29 the -- we know it as the petition, which --  30 THE COURT:  That's Exhibit 26 too, isn't it?  31 MR. MACAULAY:  Yes.  And some of the schedules, which are maps, were  entered as exhibits, not all of them, and this is one  of the ones that was put in as an exhibit.  Do you  recognize that?  It's dated March, 1983.  And I can  tell you that it's referred to in -- in the -- what  you describe as the profit a prendre petition.  Yes.  I recognize the map.  Yes.  And that shows -- you say you had nothing to do  with drawing that map at all?  Pardon me.  I said that to my recollection I didn't  draft any -- anything having to do with it and I asked  to be shown documents.  On the left of this map  there's a map which is an enlargement of the area Four  Mile Canyon.  Yes?  I was involved in field work for -- for some of that  32  Q  33  34  35  36  37  38  A  39  Q  40  41  A  42  43  44  45  46  Q  47  A 1  2  3  4  5  Q  6  7  A  8  Q  9  A  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  Q  25  A  26  27  Q  28  A  29  30  31  32  33  34  35  Q  36  37  A  38  Q  39  A  40  41  Q  42  A  43  Q  44  A  45  Q  46  47  14068  mapping, and I believe that I drafted the map that  this inset was made up from.  That is, I took a map  that already existed and marked the fishing site  locations on it.  And on whom did you rely in marking those fishing  sites?  Um-hum.  Or on what did you rely, whom or what?  There were various sources.  Many of these -- these  fishing sites correspond to sites that were mapped in  the course of the fishery monitoring.  That is the  sites where I have observed fishing taking place in  the river in the course of the fish management study.  That's the beginning of my information about them.  I  also visited Four Mile Canyon along with Russell  Stevens, one of the workers on the fish management  study, in company with various hereditary chiefs who  pointed out fishing sites, gave their names and made  statements regarding their ownership.  Russell Stevens  is a Gitksan speaker and was responsible for recording  and processing the information regarding site names  and ownership.  I was responsible for mapping the  locations.  All right.  Do you want to know the people I visited the canyon  with?  Yes.  Okay.  Ellen Woods, Agnes Travellers, I believe, Sarah  Marshall, Delbert Turner.  From the Cedar Creek side,  that is the right bank near the site numbered 143, I  visited with Mary Moore, her son Norman, Jeff Harris  Junior, Charlie Wright.  Lester Moore may have been  there also.  Lester and Norman are both sons of Mary  Moore.  That's my recollection.  Were all those people hereditary chiefs or sons and  daughters of hereditary chiefs?  That's right.  And they were all real people?  I take it you're referring to the section of that --  the report I was looking at?  Yes .  Yes, I am.  You're asking if they were Simgigyet?  Yes.  Yes.  Now, on the other part of the map the Indian reserves  are shown; is that right, the boundaries of Indian  reserves? 14069  1 A   Yes.  2 Q   And did you draw those lines?  3 A   No.  4 MR. MACAULAY:  So I can't ask you to vouch for their accuracy?  5 MR. GRANT:  Doesn't sound like it.  6 MR. MACAULAY:  7 Q   Is -- you see this -- the sites in Four Mile Canyon  8 that you -- you actually plotted, that is inserted the  9 dots?  10 A   That's right.  11 Q   Are all those dots inside one or other of the Indian  12 reserves shown over on the -- well, Indian reserve.  13 Whether they're shown on the map or not, to your  14 knowledge are they all in Indian reserves?  15 A   I'm not certain as to the exact boundaries of the  16 reserve.  I can compare the inset to the map that  17 shows reserve boundaries.  18 Q   I can do that too.  I'm asking you about your personal  19 knowledge.  You see, there's the bridge on your sketch  20 and there are three sites, three numbers anyhow above  21 the bridge; is that right?  22 A   Yes.  23 Q   And a number below?  24 A   Yes.  25 Q   Well, now in regard to those three sites above the  26 bridge, are they all within an Indian reserve, south  27 of a northern boundary line of an Indian reserve?  28 A   They certainly appear to be within the boundaries  29 indicated in the body of the map.  I know there is an  30 Indian reserve that covers Four Mile Canyon.  I'm not  31 certain from my own knowledge as to exactly where the  32 boundaries are.  33 Q   We won't go any farther than that.  And how about the  34 identification?  You see on the right hand there are  35 numbers.  Did you put the numbers on your -- on your  36 sketch?  There are numbers.  There's -- starting at  37 the top, there's 150, then 151, 152 on the right bank,  38 153 and so on?  39 A   Yes.  I see those.  40 Q   Did you put those numbers on?  41 A   I probably drafted those numbers on to the sketch map  42 from which this map was made, yes.  43 Q   Yes.  And over on the right-hand side there's a legend  44 in effect?  4 5 A   Um-hum.  46 Q   So that if you look at the legend, you see a clan, an  47 owner and then the English name of the owner 14070  1 presumably; is that right?  2 A   That's right.  3 Q   Did you have -- did you take part in the drafting of  4 those three columns of --  5 A   No.  6 Q   -- names?  7 A  As I said, Russell Stevens was with me during those  8 site visits that we're talking about.  Russell was  9 responsible for everything that went on that took  10 place in Gitksan, in the Gitksan language, and he  11 would be the one who produced the documents from which  12 this table was made.  13 Q   In the case of numbers 127 to 134 inclusive, the owner  14 is listed as Nike 'Teen?  15 A   From 127?  16 Q   To 134 inclusive.  17 A   Yes.  That's what the table says.  18 Q   And it also says number 536 and 537 are owned by Nike  19 'Teen?  20 A   Yes.  21 Q   And 538 as well?  22 A   That's right.  23 Q   And that's -- he's identified as Jimmy Woods Junior?  24 A   That's right.  2 5       Q   Do you know him?  26 A   Yes.  27 Q   And was he one of the people who walked the banks with  28 you?  29 A   No.  Ellen Woods was one of the people I named.  She  30 is his mother and she's familiar with these things.  31 MR. MACAULAY:  I see it's 12:30, my lord.  32 MR. GRANT:  My record of this document is it's Exhibit 26A.  My  33 friend referred to it as 26B.  34 MR. MACAULAY:  Perhaps I'm wrong, my lord.  35 THE COURT:  All right.  Check your notes and we can discuss that  36 interesting question further at two o'clock.  37 MR. MACAULAY:  My lord, perhaps we could mark -- before we -- we  38 could mark that document -- we should mark that  39 Document 12187, the tribal council presentation to the  40 Department of Fisheries and Oceans, March, 1982.  41 MR. GRANT:  My lord, I object.  The witness hasn't identified  42 that document.  Certain portions of it were put to the  43 witness.  He could not even identify as to whether it  44 was —  45 THE COURT:  Is there any dispute of what it is?  46 MR. GRANT:  Well —  4 7 MR. MACAULAY:  Apparently. 14071  1 MR. GRANT:  Well, my lord, this document clearly wasn't  2 authored -- there's no evidence that any of this was  3 authored by this witness.  Mr. Sterritt and others  4 have given evidence and this document, which was in my  5 friend's custody obviously throughout that time, was  6 never put to them.  7 THE COURT:  Well, I think, Mr. Macaulay, you'll have to put it  8 to the witness and see --  9 MR. MACAULAY:  He has identified — he says he assisted in —  10 THE COURT:  The preparation of it.  11 MR. MACAULAY:  The preparation.  12 THE COURT  13 MR. GRANT  14 THE COURT  Yes.  He did not.  I don't think you put the entire -- put a question  15 to him with respect to the entire document, and  16 perhaps you'd like to do that at two o'clock.  17 MR. MACAULAY:  Two o'clock.  18 THE WITNESS:  Excuse me.  19 THE COURT:  Yes, Mr. Morrell?  20 THE WITNESS:  I have a problem and I need some instruction.  21 I've undertaken to look at some documents underlying  22 this map.  2 3 THE COURT:  Yes.  24 THE WITNESS:  Those documents are in the custody of the — of  25 the lawyers.  I understand that while I am under  26 cross-examination I'm not to speak to the lawyers.  27 How shall I deal with that?  28 THE COURT:  You want the witness to make those investigations,  29 don't you, Mr. Macaulay?  3 0 MR. MACAULAY:  Yes, my lord.  He will have to speak to Mr. Grant  31 in order to --  32 MR. GRANT:  I'll deal with that, my lord.  33 THE COURT:  Two o'clock.  34 THE REGISTRAR:  Order in court.  Court will adjourn until two.  35  3 6 (PROCEEDINGS ADJOURNED)  37  38  39 I hereby certify the foregoing to be  40 a true and accurate transcript of the  41 proceedings transcribed to the best  42 of my skill and ability.  43  44  4 5    46 Kathie Tanaka, Official Reporter  47 UNITED REPORTING SERVICE LTD. 14072  1  2 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT)  3  4 THE COURT:  Mr. Macaulay.  5 MR. MACAULAY:  My lord, at the adjournment we were discussing a  6 map that was already an exhibit.  It is 29A, Exhibit  7 29A -- 26A, I mean.  And if I may, I would like to  8 mark a book with a number and have that as tab 1  9 although it is already in Exhibit 26A.  10 THE COURT:  All right.  11 MR. MACAULAY:  I do not intend to put any large number of  12 documents in evidence, but it may be of some  13 assistance if we have --  14 THE COURT:  Yes, your book is limited to ten tabs and that's  15 your quota.  16 MR. MACAULAY:  That's my quota, and I expect it will be less  17 than that.  18 THE REGISTRAR:  983, my lord.  19 THE COURT:  983.  2 0 MR. MACAULAY:  And for the record as tab 1, schedule D to the  21 Petition of Right which is already marked Exhibit 26A.  22 THE COURT:  That will be 983.  23 THE REGISTRAR:  983-1.  24 THE COURT:  And it is already exhibit —  2 5 MR. MACAULAY:  2 6A.  2 6 THE COURT:  Okay.  27 MR. MACAULAY:  Now, I propose to ask some questions about the  28 presentation to the Department of Fisheries and Oceans  29 March 3, 1982.  Can we get that marked?  3 0 THE COURT:  Yes.  31 MR. GRANT:  What was the exhibit of the book, my lord?  32 THE COURT:  983.  33  34 (EXHIBIT 983-1:  Tab 1, Schedule D to the Petition of  35 Right)  36  37 EXAMINATION BY MR. MACAULAY (cont.):  38 Q   Now, Mr. Morrell, can you identify is that a  39 Gitksan-Carrier Tribal Council Fisheries Presentation  40 of March 1982?  41 A   That's what the title page says.  I don't recall the  42 details of it, but that's what it looks like to me.  43 There was a presentation at about that time.  4 4 THE COURT:  983, tab 2.  45 THE REGISTRAR:  983, tab 2.  46  47 (EXHIBIT 983-2:  Tab 2, Gitksan-Carrier Tribal Council 14073  1 Fisheries Presentation, March 1982)  2  3 MR. MACAULAY:  4 Q   If we can look at that map of Four Mile Canyon again.  5 At the adjournment, Mr. Morrell, we were looking at  6 Nika 'teen's holdings, Mr. Jimmy Woods Jr.  And I am  7 going to draw your attention now to a document that  8 your counsel -- my lord, it is a summary sheet and the  9 informant is listed as Steve Robinson.  The interviews  10 are listed there.  They are not -- neither of them was  11 the witness.  One of them was Alex Morgan.  It is  12 entitled Fishing Site Interview.  Do you recognize  13 that one, that Fishing Site Interview?  14 A   I recognize the format.  I know the people whose names  15 appear on it.  16 MR. MACAULAY:  Yes.  Well, isn't this the kind —  17 MR. GRANT:  Well, he can answer your question if he --  18 MR. MACAULAY:  19 Q   Yes.  20 A   Sorry, there was other conversation.  I was looking at  21 this if you could repeat the question for me.  22 Q   Well, isn't this the kind of material that you told  23 his lordship yesterday or the day before that you  24 relied on in doing your work?  25 A   It is the kind of material.  There are different  26 series of interviews.  I've been referring primarily  27 to the series that I referred to as the fish  28 management study interviews.  29 Q   Yes.  30 A   Or the land claims interviews.  31 Q   Is this neither of those?  32 A   No, this is another set.  Interviews involving Myrtle  33 Gertson and Alex Morgan were done in connection with  34 the preparation of the maps and documentation for the  35 profit a prendre case as it is called.  36 Q   Yes.  37 A  Maybe there is a better reference for it.  I have seen  38 many of these interviews.  They were not filed with  39 the other set, and I didn't review them systematically  40 in the preparation of my opinion.  I have seen many of  41 them.  And if you like I will look at this.  42 Q   Could you just read the first paragraph.  It starts  43 with the words:  "Steve was showing us on the map on  44 site where Johnny Wilson sets his net today."  It is a  45 site in conflict, and then it goes on with a history?  46 A   Yes.  You want me to read from there?  47 Q   Well, you don't have to read it out loud.  I will give 14074  1 you a minute.  I thought you might have seen that one  2 before.  3 A   Likely I have.  I will refresh my memory.  4 Q   Let's confine it to the first paragraph.  When I say  5 first paragraph, down to the place where there is the  6 word Nika 'teen --  7 A   Fine.  8 Q   -- in the margin.  9 A   Yes.  10 Q   Now, it appears from that text that Mr. Johnny Wilson  11 is not a member of the house of Nika 'teen, do you  12 agree with that?  It appears that's how the thing  13 reads?  14 A   That's how it reads, that's what I gather.  15 Q   Yes.  16 A   I'm not positive which house Johnny Wilson belongs to.  17 MR. GRANT:  I disagree with my friend's characterization, my  18 lord.  And it's -- regardless of what the witness says  19 that the characterization of the document how it is  20 expressed explains itself.  And, of course, your  21 lordship has heard lots of evidence about the type of  22 the system, but what is said about Johnny Wilson is  23 his relationship to Donny Mowatt, son-in-law.  24 THE COURT:  I haven't read all of this.  Do you agree with that,  25 Mr. Macaulay?  26 MR. MACAULAY:  No, I don't.  Oh, yes, it says that he is the  27 son-in-law of Mr. Mowatt who did have permission to  28 use this site.  His use of the site wasn't challenged.  2 9 THE COURT:  Yes.  3 0 MR. MACAULAY:  And I asked the witness if it appeared from the  31 tenure of that paragraph that the site here was Nika  32 'teen's site.  Perhaps I should rephrase the question.  33 THE COURT:  All right.  34 MR. MACAULAY:  35 Q   Now, you agreed that it appeared from the tenure of  36 that that Mr. Johnny Wilson was not a member of the  37 house of Nika 'teen.  But perhaps I should go farther  38 and suggest to you that we are talking about a site, a  39 Nika 'teen site.  And Mr. Steve Robinson was talking  40 about a site that belongs to Nika 'teen?  41 A   Steve Robinson doesn't say that it belongs to  42 Nika 'teen.  43 Q   He says that:  "After the first permitee" -- this is  44 what Steve Robinson says.  "After the first permitee  45 that a lady named Gawpshook died.  Her son Donald  46 Mowatt was allowed to fish because he was a man that  47 Nika 'teen respected." 14075  1 A Mh'm.  2 Q Well, doesn't the tenure of that suggest we are  3 dealing here with a Nika 'teen site?  4 A It certainly suggests that Nika 'teen gave permission  5 to these people to fish on that site.  6 Q Right.  And only the chief of the appropriate house  7 would give permission?  8 A That's how the system works.  9 MR. MACAULAY:  Yes.  And it also appears from that text that  10 Johnny Wilson, who was Donald Mowatt's son-in-law,  11 continued to use the site.  And then it ends:  "And as  12 the late John Smith is also deceased..." whoever he  13 may be  "...this person claimed this site as Donald  14 Mowatt's fishing site."  15 MR. GRANT:  Well, that should be read with a period after  16 "deceased" and a new sentence "This person claimed  17 this site as Donald Mowatt's fishing site."  18 MR. MACAULAY:  Yes.  19 MR. GRANT:  It is not clear as to who this person is referring  20 to.  21 THE COURT:  Who do you say this person refers to, Mr. Macaulay,  22 Donald Mowatt?  2 3 MR. MACAULAY:  24 Q Are you not able to make out what that's about?  25 A I understand what it is about.  26 Q What is it about?  27 A It is about a conflict at a fishing site where Johnny  28 Wilson sets his net today.  29 Q Yes.  30 A And I know that location.  31 Q Oh, fine.  And is there a conflict?  32 A Yes.  33 Q And are there two people claiming the same site?  34 A At least two.  This site is referred to on the fishing  35 sites map.  36 Q And is it labelled on that map we have been looking at  37 as a Nika 'teen site?  38 A Which map?  39 Q Well, the one in front of you?  40 A Let's check it.  41 Q So Nika 'teen claims it?  42 A Yes, that's what this map indicates.  43 Q Well, do you know that for --  44 A Yes, I know that.  45 Q You know that.  And does Johnny Wilson also claim it?  46 A I don't know that Johnny Wilson claims it, no.  47 Q Who else claims other than Nika 'teen? 1  A  2  3  4  Q  5  A  6  Q  7  8  9  A  0  1  THE  COURT  2  MR.  MACAU  3  Q  4  A  5  6  Q  7  A  8  THE  COURT  14076  I could refer to the fishing site map and see what  that says about that.  That's what I rely on in  matters of this nature.  Are you talking about map 22?  That's right.  All right.  Let's look at map 22.  We are now looking,  my lord, at map 22.  Four Mile Canyon is enlarged  there.  The place in question is indicated by the open circle  indicating as Gwinwilaat.  :  Just a moment, please.  G-W-I-N-W-I-L-A-A-T.  LAY:  Yes, and?  That is a place where Johnny Wilson fishes, to my  knowledge.  Yes.  The map indicates as owners Antgulilibiksxw.  :  Just a moment.  19 THE WITNESS:  Shall I spell that?  2 0 THE COURT:  Yes.  21 THE WITNESS:  A-N-T-G-U-L.  G-A-L isn't it?  No, G-U-L.  All right.  25 THE WITNESS:  A-N-T-G-U-L-I-L-I-B-I-K-S-X-W.  There is a comma  26 following that name and the next name is Nika 'teen,  27 the name that we are discussing here.  2 8 MR. MACAULAY:  29 Q   Yes.  30 A   That type of a labeling where there are two chiefs'  31 names on a site indicates that there are -- there is  32 more than one claim to ownership of the site.  33 Q   And do you know if Johnny Wilson is connected with  34 either of those two houses listed there on map 22?  35 A   I don't know that.  36 Q   And you know that Johnny Wilson -- that some people --  37 do you know that Sophia Mowatt alleges that this site  38 belongs to Nika 'teen and that Johnny Mowatt should  39 ask permission to use it?  40 A   I'm not sure what Sophia Mowatt says about it.  I will  41 look at that document if you want me to.  42 Q   I meant Johnny Wilson.  Could you show the witness the  43 next document.  This, my lord, is another summary  44 sheet.  It is dated July 1982.  I am referring to the  45 fifth paragraph in the middle of the page.  The  46 marginal note is "fishing site"?  47 A   Yes.  22 THE COURT  2 3 MR. GRANT  2 4 THE COURT 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  2S  29  30 THE  31 MR.  32 THE  33 THE  34 MR.  35  36  37  38  39  40  41  42 MR.  43  44  45  46  47  MR.  14077  Q   And then there is a name, an Indian name.  I think it  is another spelling of the name you've just given us  for it in brackets?  A   I see that.  Q   And the text reads:  "I heard Johnny Wilson is fishing there. It  belongs to Nika 'teen. These kind of people  should be told to ask the owner."  That's what it says there, isn't it?  A   I see that.  Q   And that's part of an interview of one of your  colleagues with Sophia Mowatt?  A   That's right.  Q   Now --  A   Excuse me.  Q   Yes.  A   The interviewer is listed as Myrtle Gertson.  And that  indicates that it is part of that same set of  documents that the other interview you showed me  belongs to.  Q   Yes.  And you don't recall seeing those before, either  of these, either the Steve Robinson interview or the  Sophia Mowatt interview?  A   The Steve Robinson interview rings a bell.  I think I  have looked at the Sophia Mowatt interview as well.  MACAULAY:  Yes.  And perhaps those could be marked, my lord,  the next tab 3.  COURT:  All right.  The one dated August 12, '82.  MACAULAY:  August 12, '82 and the second one July '82.  COURT:  983-3 and 983-4.  REGISTRAR:  August the 12th is dash 3?  MACAULAY:  Yes, Steve Robinson.  (EXHIBIT 983-3:  Tab 3, Interview by Steve Robinson  dated August 12, 1982)  (EXHIBIT 983-4:  Tab 4, Interview by Myrtle Gertson  dated July 1982)  MACAULAY:  Q   How are these disputes resolved?  A   To my understanding disputes between chiefs are  formally settled in the feast hall.  I understand that  there is much behind-the-scenes discussion and  negotiation that leads to agreements which in effect 1  2  Q  3  4  A  5  Q  6  7  8  9  A  10  Q  11  A  12  13  14  15  16  17  18  19  20  21  22  23  24  Q  25  26  27  A  28  Q  29  A  30  31  32  33  34  35  36  37  38  Q  39  40  41  A  42  Q  43  44  A  45  Q  46  A  47  Q  14078  are ratified in the feast hall.  Has this one been resolved that you know of, to your  knowledge?  Not to my knowledge.  And wherever we find two house names that's what -- as  in that case that means that there is an unresolved or  was then at the time of publication of this map an  unresolved dispute?  It may indicate that.  Yes.  But it indicates that the information that the map is  based on does not allow a clear conclusion as to  ownership.  And so as people evaluating that set of  information and drafting the map, Susan Marsden and  I -- or Susan Marsden, in fact, who was looking at  questions of names and ownership did not want to make  a decision in the face of conflicting information.  Neither of us had the authority to revolve disputes  like this and so we put down the claimants in  situations like that.  I would not be surprised if in  some of these situations the dispute in fact had been  resolved, but we were looking at the information that  we had in front of us.  And who -- would it be the Tribal Council executive  that would tell you whether or not a dispute has now  been resolved in the case of one of these conflicts?  No.  Not necessarily, no.  Who would tell you that?  Whose word would you accept?  Again I have to say that I don't feel competent to  judge or explain details of the interactions in the  Gitksan or the Wet'suwet'en feast hall system.  My  understanding is that questions like this are resolved  by a consensus of the chiefs.  If a number of leading  chiefs told me that a certain person was the owner of  a fishing site and no one contradicted that I would  consider that evidence that the person was indeed the  owner.  I see.  Now, do you know whether Johnny Wilson is a  member of either of the two houses listed as the  claimants to that site?  I don't know that.  And when you last were there, was Johnny Wilson  fishing there at that site?  The last time I was there was February of this year.  Yes.  And no fishing was going on there.  The last time? 1  A  2  3  4  Q  5  A  6  Q  7  A  8  Q  9  A  10  Q  11  12  13  14  A  15  Q  16  A  17  Q  18  19  20  21  22  23  24  25  26  A  27  Q  28  A  29  Q  30  A  31  Q  32  33  34  35  36  37  A  38  Q  39  40  A  41  Q  42  43  A  44  45  Q  46  47  A  14079  The last time before that was July 1987.  I haven't  been at that site, to my recollection, since 1985.  In  1985 Johnny Wilson did fish there.  Did you speak to him?  I have spoken to him many times.  About this site?  About this site?  Regarding ownership?  Yes.  No, I didn't.  Was there a dispute resolution committee in -- a  dispute resolution committee set up at Kispiox for the  purpose of processing these disputes, disputes of this  kind?  There may have been, but I don't know of it.  You know Russell Stevens?  Yes.  I'm showing the witness a Kispiox Band Council -- it  is already Exhibit 826.  I don't suggest to you that  you ever saw this document, Mr. Morrell, but it is on  the letterhead of the Kispiox Band Council.  It is  signed by Mr. George Muldoe in his then capacity as  chief counsellor.  And there was a copy sent to Mr.  Victor Robinson who you probably know, too.  You were  in Hazelton?  You were living in Hazelton at that  time?  That's right.  And you could see that the letter speaks of conflicts?  I haven't read it yet.  Do you want me to?  Yes, please.  Okay.  I've read it.  There are some attachments of the Band Council  resolutions and a list of vacant lots.  I am not  interested in the vacant lots particularily, but it  does refer to, amongst other things, the fishing  sites.  Disputes over fishing sites, traplines,  disputes over ownership?  I do see fishing sites.  Were you aware whether Russell Stevens ever formed or  headed such a committee?  No.  Were you aware that the -- there were a substantial  number of disputes over traplines and fishing sites?  I know that there are disputes over traplines and  fishing sites.  Well, is it a very small number or is it a substantial  number or can you say?  In -- in the entire territory in the Kispiox area? 14080  1 Q   In the Kispiox area.  2 A   In the Kispiox area?  3 Q   Yes.  4 A   I think I have heard of two or three possibly trapline  5 disputes.  Fishing site disputes -- I am just looking  6 at the fishing site map right now.  7 Q   Yes.  8 A   On the Skeena and Kispiox River inset I can count  9 seven sites out of however many are on that inset.  10 Perhaps I can count them, too.  11 Q   That's all you know of?  12 A   Out of 40 fishing sites on that Skeena and Kispiox  13 River inset.  14 Q   Yes.  15 A   There are by my count seven with multiple house  16 ownership indication on them.  And those indicate at  17 least a conflict in the data base and may indicate an  18 ongoing dispute over ownership of the sites.  19 Q   The map shows a number of sites at Kisgagaas Canyon?  20 A   Yes.  21 Q   Up on the upper left-hand corner?  22 A   Yes.  23 Q   There is an enlargement?  24 A   Yes, I see it.  25 MR. MACAULAY:  Now, there are only one or two people -- perhaps  26 that could be put in as tab 5, my lord.  It is already  27 marked.  2 8 THE COURT:  Yes, it would be more convenient to give it another  29 exhibit number as well.  It will be 983-5.  30 MR. GRANT:  My lord, my friend gave me two band council  31 resolutions.  I wonder if that is his intent or which  32 of the two -- is it June 23rd?  33 MR. MACAULAY:  The enclosure.  34 MR. GRANT:  Well, the enclosure I got was —  35 MR. MACAULAY:  That was one exhibit, wasn't it?  36 THE COURT:  Yes.  Mr. Grant points out that there are two band  37 council resolutions.  38 MR. GRANT:  I think they are two exhibits, too.  I think one is  39 Exhibit 826 and the other is 827.  They've both been  40 marked, but I just don't know what my friend has been  41 referring to.  42 THE COURT:  It doesn't matter in this collection even if it is  43 marked anywhere.  44 MR. MACAULAY:  Can we leave both of them in this designation, my  45 lord?  46 THE COURT:  Yes, they are now both Exhibit 983-5.  47 1  2  3  4 THE (  COU]  5 MR. ]  MACi  6  Q  7  A  8  Q  9  10  11  A  12  Q  13  A  14  Q  15  A  16  17  18  19  Q  20  21  22  A  23  24  25  26  Q  27  28  A  29  30  Q  31  32  A  33  Q  34  A  35  Q  36  37  A  38  39  40  41  Q  42  A  43  Q  44  45  A  46  Q  47  A  14081  (EXHIBIT 983-5:  Tab 5, Kispiox Band Council Letter  signed by George Muldoe)  We are, my lord.  You've been to Kisgagaas?  Yes, I have.  And today there is only one person or two people  living there on a permanent basis, Joshua McLean and  perhaps someone else?  A number of people have houses there.  I am talking about living there?  Yes.  Permanently?  There is not a large number of people who have lived  there permanently.  Joshua McLean and his brother  Billy are frequently there.  They are also in Hazelton  sometimes.  Yes.  And you know that that Indian reserve was  amalgamated with the Hazelton Band Reserve in the  1940's?  I don't know the history of it.  I understand that the  Kisgagaas reserve is under the administration of the  Gitanmaax Reserve as far as the Indian Act is  concerned.  And did you know that say in 1948 there were only one  or two families fishing at Kisgagaas?  I don't know who was fishing at Kisgagaas in 1948 or  how many.  You were there during a fishing season, one of the  fishing seasons?  At various times during different fishing seasons.  Oh, during different fishing seasons?  That's right.  Were you there in 1982 or '83 or '84?  I will give you  a choice of them.  I don't know for certain if I was there in those  years.  I've been there several times.  I don't know  all of the years I was there.  I know I was there in  1979 if that will help you.  During fishing season?  Yes.  Who was fishing there that year that you saw, I mean  the names?  At the time that I was there?  Yes.  I believe the McLeans were fishing there.  This was 1  2  Q  3  A  4  5  Q  6  A  7  Q  8  A  9  10  Q  11  12  A  13  14  15  Q  16  A  17  18  Q  19  A  20  Q  21  A  22  Q  23  24  A  25  26  27  Q  28  A  29  30  31  Q  32  A  33  34  Q  35  A  36  37  38  39  40  Q  41  A  42  43  Q  44  45  46  A  47  14082  early in the season.  Yes.  The people I was with did some fishing there, James  Morrison and David Green.  They drove up with you?  That's right.  James Morrison has a cabin there.  Yes.  That he at that time was trapping out of in the winter  time.  Anyone else that you can recall?  The McLean brothers  and the people with you?  I think Henry Wright was there at that time.  Henry  Wright before his death lived at Kisgagaas most of the  time.  When did he die?  How many years ago, approximately?  I believe he was alive in 1981.  He died not long  after that, I think.  Was he an old man then?  I'm only guessing his age.  Elderly?  He was elderly.  Okay.  There isn't much fishing being done in  Kisgagaas there, is there, to your knowledge?  It's easier for me if we refer to a particular year.  In 1985 is when I have the most knowledge of fishing  at Kisgagaas.  Yes.  Both through my own experience and through monitoring  work that was done in connection with the 1985 data  report, the monitoring study that we did that year.  But —  And that report contains a description of fishing at  Kisgagaas that year.  Yes.  I could refer to that or I could tell you in a general  way that there were hundreds and hundreds, probably  thousands of sockeye taken that season in Kisgagaas.  I think I saw perhaps 20 different individuals  involved in fishing.  All right.  And have data regarding fishing of further  individuals.  And that was the year that you made a note of who  belonged to what fishing site, wasn't it, you and  others?  Part of the reason for my 1979 visit was to learn  something about fishing sites at Kisgagaas and there 14083  1 was other information collected in connection with  2 other work at various times throughout my period of  3 employment with Tribal Council.  4 Q   But that doesn't answer my question.  5 A   Sorry.  6 MR. MACAULAY:  In 1985 you were making a particular effort to  7 nail down whose fishing site belonged to who?  8 MR. GRANT:  For the map?  9 MR. MACAULAY:  10 Q   For any purpose?  11 A   In 1985?  1985 was was the first year that we did a  12 serious attempt at monitoring the fishery at  13 Kisgagaas --  14 Q   Yes.  15 A   -- as I've explained already.  In connection with that  16 the people working there I made an intensive effort at  17 mapping the contemporary fishing grounds.  There had  18 been work done before that on fishing site names and  19 ownership in connection with the profit a prendre case  20 which we've already discussed.  21 Q   Did the Tribal Council know that this effort in 1985  22 was going to be made and was being made?  23 A   Tribal Council sponsored the project.  24 Q   Right.  I suggest to you that the reason there were 20  25 people fishing there was for that reason that the  26 Tribal Council was making a special effort?  27 A   You suggest that to me?  28 Q   Yes.  That's why there was more than just one or  29 two -- that that was a year when a special effort was  30 made to do fishing at Kisgagaas?  31 A   You are asking me did Tribal Council tell people to go  32 and fish at Kisgagaas or encourage them to do that?  33 Q   Encourage them to do that?  34 A   No, not to my knowledge.  35 Q   You don't know that?  36 A   I am quite certain that it didn't happen.  I'm not  37 positive.  38 Q   Is it your opinion that that represents, what, an  39 average year of fishing effort when 20 people are out  40 there fishing?  41 A   It is hard for me to say that on a factual basis.  42 I've been there a number of times.  As I say, 1985 was  43 the first time we made a systemic effort to collect  44 data there.  45 Q   Yes.  46 A  As you suggest, people there -- although there are  47 some houses there that people own and maintain and 1  2  3  Q  4  A  5  6  7  Q  8  A  9  10  11  12  13  Q  14  A  15  16  17  18  19  20  21  Q  22  23  Q  24  A  25  26  Q  27  28  A  29  Q  30  A  31  Q  32  A  33  Q  34  35  A  36  37  38  Q  39  A  40  41  42  43  Q  44  A  45  Q  46  A  47  Q  14084  visit, there are few people that live there  permanently.  Right.  It is a place that lots of people visit, lots of  people go to, driving up the Kisgagaas Road for a few  days at a time.  Yes.  And if a person is not there steadily it is very  difficult to tell what's going on there.  People will  drive up for two or three days, perhaps fish, perhaps  just camp or stay in one of the cabins or visit the  area.  When was the road to Kisgagaas built?  I believe that there has been a wagon road for a long  time and a trail before that.  The existing road was  improved in -- or extended, anyway, beyond Kisgagaas  in 1951 to -- as an access road to the Babine slide.  There may have been improvements on the road  downstream of Kisgagaas in connection with that in  order to move heavy equipment up to work on the slide.  Just for geographical information, the Babine slide  took place some miles upstream of Kisgagaas.  Were you told who discovered the slide?  It seems to me that I have heard something about that,  but I can't recall.  Okay.  And the obstruction was removed, as you  understand it?  That's right.  And that was absolutely necessary to do that?  Absolutely necessary?  Yes.  What do you mean by that?  Well, if it hadn't been removed the Babine run would  have been severely impaired if not destroyed?  In 1951 and 1952 the estimate is that about two thirds  of the run was unable to get around the slide.  The  water, of course, came over and around —  Yes.  -- and through the slide.  Eventually the water would  have eroded a path through the slide and it would have  changed from a cascade to a rapid and eventually  become passable for fish.  How long would that have taken in your estimate?  I don't think that I can venture an opinion on that.  100 years?  Oh, less than that I should think.  Less . 14085  1 A  And the basis for that is that a third of the run was  2 said to be able to get up when the slide was fresh.  I  3 presume the conditions would have improved year by  4 year after that.  I'm sure it was of great assistance  5 to the fish that the slide was removed mechanically.  6 Q   Were you involved in the -- with the Northern Native  7 Fishing Corporation?  8 A   No.  9 Q   Do you know about it?  10 A   I know some about it, yes. I've read pamphlets.  11 Q   Well, the Gitksan-Wet'suwet'en Tribal Council is a  12 member of that corporation?  13 A   Yes.  14 Q   And the corporation bought a lot of vessels in 1982?  15 A   Yes.  16 Q   And of those vessels in 1982 about 79 of them were  17 being operated by Gitksan and Wet'suwet'en people?  18 A   I don't know the exact number.  19 MR. MACAULAY:  Does that sound about right?  20 MR. GRANT:  Well, my lord, what's — if the witness doesn't  21 know, what help is it?  22 MR. MACAULAY:  He said he didn't know the exact number.  23 THE COURT:  He can deal with that if he doesn't know.  2 4 MR. MACAULAY:  25 Q   Does that sound about right or does it sound like far  2 6 too many?  27 A   I have no basis to dispute it.  I know that there are  2 8 many.  29 Q   And these vessels are involved in the -- as you call  30 it, the industrial fishing enterprise on the coast?  31 A   That's right.  32 Q   And the Gitksan have been involved in the industrial  33 or commercial coastal fishing since the 1880's, the  34 late 1880's?  35 A   Since very early on I would say on the basis of what I  36 have heard from various people, Peter Williams, among  37 others.  38 Q   And were you told that almost entire villages would go  39 down to the coast, men, women and children?  40 A   I have seen that written.  41 Q   Particularily -- well, Kispiox and west of Kispiox,  42 Kitsegukla, Kitwanga and so on?  43 A   I don't recall -- I just can't link the things that I  44 have heard with particular villages.  45 Q   And those people went to the coast during the fishing  46 seen?  47 A   Yes. 1  Q  2  3  4  5  6  A  7  8  9  10  11  Q  12  A  13  Q  14  A  15  16  Q  17  A  18  Q  19  20  21  22  23  24  A  25  Q  26  A  27  Q  28  A  29  Q  30  A  31  Q  32  A  33  Q  34  35  A  36  Q  37  38  39  40  A  41  42  43  44  Q  45  46  A  47  14086  And in more recent times since -- well, since the  railroad was established and since a road has been put  through to the coast, food fishing is done up the  coast and the fish brought back to Gitksan and  Wet'suwet'en country?  I know that some of the -- some of the Gitksan people  and perhaps Wet'suwet'en, when Wet'suwet'en have been  involved there, people who are fishing at the coast  are able to do what's called food fishing during close  times for the commercial fishery.  Right.  Using commercial gear.  Right.  And those people bring the fish that they have caught  back into the territory.  And that still goes on as far as you know?  As far as I know.  Now, the management of the Skeena watershed involves  the coastal area, Tsimshian country, the Gitksan and  Wet'suwet'en country, a little bit of the Nishga  country, although that may be in dispute, is that so?  We are talking about the geographic limits now of the  Skeena watershed?  Yeah.  I don't know of Nishga claims.  Kitwancool, certainly?  Watershed?  Pardon me?  Kitwancool is included.  Is included in the Skeena watershed?  Yes.  Yes.  And Babine country?  Yes.  So that the management of the fishery has to take  account of all those segments?  I would say that it should.  And not only does it have to take account of all those  segments, but also of certain categories of users.  One of which, for instance, is the sports fraternity  is one of the users?  Yes.  I know that there there is demand for sports  fishing in the Skeena watershed and that is part of  management, that to consider those fishing needs is  part of those management.  And another is the commercial fishery, management has  to consider the commercial fishery?  That fishery exists and the coastal commercial fishery  has a take of fish and the inland commercial fishery 1  2  3  Q  4  5  A  6  Q  7  A  8  Q  9  A  10  Q  11  12  13  14  A  15  Q  16  A  17  18  19  Q  20  A  21  Q  22  23  A  24  25  26  27  28  29  30  Q  31  A  32  33  Q  34  A  35  36  37  Q  38  39  A  40  41  42  43  Q  44  A  45  46  47  Q  14087  has a take of fish.  Yes, the inland commercial  fishing.  And also the commercial ramifications of the fishery  where you deal with another country?  Alaska, Japan --  Yes.  -- you are talking about?  Alaska and Japan.  Right.  Now, a hereditary chief has, according to you, your  evidence, exclusive jurisdiction over his house's  territory, fishing territory.  We will confine it to  fishing now.  Is that how you understand it?  I —  A hereditary chief of the Gitksan?  I understand that a house chief is the person with  ultimate authority over the fishing sites that belong  to that house.  Yes.  Yes.  No one else has any authority over him or her, over  the head chief?  I think the power relations are rather complex.  I  don't pretend to understand the ins and outs of  Gitksan and Wet'suwet'en politics.  I would say that  the chief is the person -- the house chief is the  person with the nominal authority.  I understand that  that authority is exercised in consultation with other  people.  Subchiefs?  With members of the house who have power related to  their name.  Yes.  And their position in the hierarchy and probably other  things, their personal relationships and the sorts of  things that make up political power.  But no house chief has any authority in Babine country  or in Tsimshian country, Gitksan house chief?  I'm hesitant to say have no authority.  They would be  recognized as important people and in negotiations say  between -- as, for example, I have observed at feasts  between the Nishga nation and the Gitksan --  Yes.  -- there is clearly mutual respect shown by chiefs on  both sides.  So there is some authority.  There is  some power and influence wielded.  Yes.  You know also that they have never been able to 14088  1 settle their frontier differences?  2 A   I know that there are ongoing negotiations.  3 Q   Yes.  4 A   That must mean that there are outstanding questions.  5 Q   And the chiefs, the Gitksan chiefs have no power to  6 protect the fish habitat in the Babine Lake area?  7 A   The Gitksan chiefs would not be the people with  8 designated responsibility for territories in the  9 Babine Lake area.  10 Q   No.  11 A   I'm sure that if they make a representation to the  12 relevant Babine chief that they would be given  13 consideration.  14 Q   Suppose they learned that somebody in the Babine  15 country felled a tree, blocked a salmon spawning  16 river, secured the tree in place with rocks and left  17 dead fish down at the bottom, obviously fish who  18 wouldn't be able to get over that obstruction.  What  19 could the Gitksan chiefs do as of right about it?  20 A   I could imagine a number of things that might happen.  21 Q   As of right.  22 A   Pardon me?  23 MR. MACAULAY:  As of right.  I am not talking about their  24 influence now, as of right.  25 MR. GRANT:  Well, is my friend -- I presume my friend is not  26 talking as a matter of law, a question of law, but as  27 a matter of right under the Gitksan system, is that  28 what he is saying?  29 MR. MACAULAY:  I am talking about the powers, the managing  30 powers of the chief and I am testing that.  31 THE COURT:  I think Mr. Grant's inquiry is whether you are  32 asking him to conclude as to what might be done such  33 as an application for injunction.  34 MR. MACAULAY:  No, I am talking about Gitksan chiefs.  35 THE COURT:  You are talking about non-judicial remedies?  3 6 MR. MACAULAY:  Yes.  37 THE COURT:  Okay.  3 8 MR. MACAULAY:  39 Q   Not remedies under the courts, but remedies under  40 their own system that you've been talking about.  41 A   Yes.  42 Q   What remedies would they have in the absence of their  43 neighbours in the Babine country?  44 A   I don't know of such an incident taking place.  I  45 imagine that if there was a concern on the part of the  46 Gitksan chief of something that was going on in Babine  47 territory that that chief would find a way of making 14089  1 their concerns known.  I can imagine many, many ways  2 that such an interaction might go.  3 MR. MACAULAY:  But it would be a question of trying to persuade  4 rather than giving orders?  5 THE COURT:  Is that right, Mr. Morrell?  6 THE WITNESS: I am trying to think about that.  I rarely see  7 Gitksan or Wet'suwet'en people ordering each other  8 around.  I don't imagine that a Gitksan chief would  9 order a Babine chief to do anything.  I think there is  10 quite a wide range of ways that people can influence  11 each other effectively without issuing orders.  12 MR. MACAULAY:  I see it is three o'clock, my lord.  13 THE COURT:  Yes.  14 MR. MACAULAY:  If that's a convenient time.  15 THE COURT:  Yes.  16 THE REGISTRAR:  Order in court.  17 THE COURT:  I'm sorry, I think we have to make some  18 arrangements, Mr. Macaulay, with reporters.  What do  19 you anticipate or suggest we do for the rest of the  20 day?  21 MR. MACAULAY:  Now, these are always estimates.  22 THE COURT:  Oh, yes.  23 MR. MACAULAY:  Before we started, in fact yesterday I estimated  24 three hours.  2 5 THE COURT:  Yes.  26 MR. MACAULAY:  I've had an hour this morning and I've had  27 another hour.  2 8 THE COURT:  Yes.  29 MR. MACAULAY:  And Mr. Morrell will be glad to hear I hope to be  30 finished with him in my third hour.  31 THE COURT:  I think, Madam Reporter, would you be good enough to  32 mention that we will need a reporter, yourself we  33 hope, but if not someone else for this afternoon at 4  34 o'clock.  35 THE REGISTRAR:  Order in court.  This court will adjourn.  3 6 (PROCEEDINGS ADJOURNED AT 3:00)  37  38  39 I hereby certify the foregoing to  40 be a true and accurate transcript  41 of the proceedings herein to the  42 best of my skill and ability.  43  44  4 5    46 LISA FRANKO, OFFICIAL REPORTER  47 UNITED REPORTING SERVICE LTD. 14090  1 (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Mr. Macaulay.  4 MR. MACAULAY:  I ask the witness to look again at that  5 Helgeson -- Exhibit 977, the Helgeson report.  6 THE REGISTRAR:  Tab 4 of Book I, my lord.  7 MR. MACAULAY:  8 Q   At page 208 under the heading "Fifteen Mile River".  9 A   Yes.  10 Q   Now, there Helgeson describes coming across a dam,  11 doesn't he, in the following terms:  12  13 "We soon came to a permanent dam, a big  14 cotton wood tree had been felled, across the  15 river, well pinned up behind with rocks, in  16 front were stakes and brush, with a  17 multitude of dead fish in front of it.  The  18 dam was nearly as tight as a bottle, and  19 forbid even a single fish to get up, though  20 there were quite a quantity of fish above  21 it, which had no doubt gotten over the dam  22 in a higher state of water, and like in the  23 other two streams there were thousands of  24 sockeyes below that could not get up well,  25 amid a horrible stench."  26  27 Then he describes chopping the log and so on.  So it  28 appears that a dam of the kind I described just before  29 the adjournment had been put up by somebody.  I'm not  30 suggesting either it's Gitksan or Wet'suwet'en.  It's  31 not in their country, of course.  32 A   That's the account.  And for context if I could note  33 the -- the two sentences immediately preceding that in  34 the same -- in the same paragraph.  Shall I read them?  35 Q   Yes.  36 A  37 "On the 21st"...  38  3 9 And if —  4 0 THE COURT:  September.  41 THE WITNESS:  — I've got the continuity right, that's the 21st  42 of September.  43  44 "... we reached Fifteen Mile River and found  45 it deserted, nearly all the fish had been  46 removed, though I counted over 2,000 left on  47 a couple of racks.  We destroyed the 1  2  3  4  5  6  7  8  Q  9  10  A  11  12  13  14  Q  15  16  A  17  Q  18  A  19  20  21  22  23  24  Q  25  26  27  A  28  Q  29  30  31  A  32  33  Q  34  A  35  Q  36  37  A  38  39  Q  40  41  42  43  44  45  A  46  47  14091  barricades and as usual took their trail in  order to see what there was above."  And then the sentence that you read:  "We soon came to a permanent dam."  Yes.  Oh, sure.  That was read earlier in the  evidence.  So the picture is that there were weirs of the sort  that he had described before lower down on the river.  Then following a trail there was the down cottonwood  that you describe, yes.  Well, he doesn't mention any weirs on the Fifteen Mile  River, does he?  That's what I understand.  Do you understand that to mean that he found a weir?  "We destroyed the barricades and as usual took their  trail in order to see what there was above."  And I  take it he's saying as we proceeded up the trail  above, we soon came to a permanent dam.  So he  destroyed barricades and proceeded up the river and  then came to this cottonwood tree.  Okay.  So that somebody had put a -- what looked like what  intended to be a permanent dam, as he described it, on  the river?  That's his description, yes.  And that's one of the problems a fisheries manager  would have to deal with, at the very least, by  removing it?  Removing obstructions is something that people do to  aid fish migration.  And then looking for a person or persons who did it?  Someone might do that, yes.  And applying the appropriate sanctions to that person  or persons so that it wouldn't happen again?  That's the sort of thing enforcement officers do and  habitat protection people do, yes.  And it's not something that individual or even  collective hereditary chiefs on one stretch of the  river or the system -- the river system can do by  themselves?  For instance, the Gitksan hereditary  chiefs.  That's beyond their capability under their  own system of laws?  My understanding is that if there is a system in which  the country is all -- is all subdivided into sections  that are all under the control -- under the authority 14092  1 of a particular person and the person responsible for  2 each area has a responsibility for maintaining habitat  3 in that area, if everyone fulfils his or her  4 responsibilities, then the area is covered.  Each --  5 your question was whether an individual chief could --  6 could maintain -- could cover the whole area?  7 Q   The watershed.  8 A   No.  An individual chief doesn't cover the entire  9 watershed in that system.  10 Q   And the Gitksan system is not sufficient to cope with  11 the Skeena watershed?  12 A   Not by itself.  13 Q   Now, in Moricetown today, the people who -- these are  14 members of the Moricetown band.  They take up to 60  15 percent of the sockeye that reach the Moricetown  16 Canyon?  17 A   I made a calculation like that for 1982, I believe,  18 based on -- based on certain assumptions, if I may  19 state them, that --  20 Q   Yes.  21 A   -- that the estimates of escapement above Moricetown  22 were accurate.  The way I made the calculation was  23 adding escapement above Moricetown to my calculation  24 of the catch at Moricetown as an estimate of the total  25 number of fish that reach Moricetown and then divided  26 the number of fish taken at Moricetown by the estimate  27 of the total run to get the percent that was taken at  28 Moricetown.  So there is some qualification that needs  29 to be put on that -- on that harvest rate.  That was  30 the calculation.  And under those assumptions I -- I  31 arrived at the conclusion that the harvest rate could  32 be as high as 60 percent.  However, there is a good  33 deal of reason to believe that the numerical estimates  34 of escapement based on visual methods, that is walking  35 a stream or flying a stream, underestimate the actual  36 escapement.  And also if you miss any spawning grounds  37 or miss any concentrations of fish on the spawning  38 grounds, then your estimate of the escapement is too  39 low.  If the estimate of escapement is too low, then  40 the calculation of harvest rate is too high.  41 Q   Yes.  42 A   Okay.  43 Q   And now for 1985 if you made the same calculations,  44 given your report of a catch of 5,229 sockeye --  45 that's your Table 3.1.  46 A   I don't have that in front of me.  Is that what it  47 says? 1  MR  2  MR  3  MR  4  5  MR  6  th:  7  MR  8  9  th:  0  MR  1  2  3  MR  14093  MACAULAY:  I hope it says that.  Page 184.  GRANT:  Can it be put in front of the witness?  MACAULAY:  Is page 184 in evidence?  It's the 1985.  I've  lost track of what pages of that are in evidence.  GRANT:  Is it Tab 2?  THE COURT:  Yes.  Volume 2, Tab 2.  MACAULAY:  Sorry, my lord.  That's — that's the '82  calculation.  THE COURT:  Oh.  MACAULAY:  Q   The '85 -- it was the 1985 report I'm looking for.  A   I think I have it here at Tab 8 in that same volume.  MACAULAY:  It's Exhibit 971 and it's Table 3.1.  14 THE COURT:  3.1, or that's figure.  15 MR. MACAULAY:  Figure.  16 THE WITNESS:  Table 3.1 following page 15.  Okay.  5,229 sockeye  17 at Moricetown.  18 MR. MACAULAY:  19 Q   Yes.  That's what I've got.  Well, if you use the same  20 calculations as you used for 1982 but using that  21 figure, then the -- the same assumptions, then the  22 catch would be in the vicinity of 70 percent, wouldn't  23 it?  24 A   I'd like to see the escapement estimates, the relevant  25 escapement estimate.  26 Q   Well, an escapement of 2,000.  That was your figure  27 for escapement in 1982.  28 A   The relevant escapement figures is the escapement for  29 1985.  30 Q   Sorry.  1985.  31 A   Okay.  32 Q   So you've got an escapement of 2,000.  33 A  Where?  The locations that are relevant would be the  34 Nanika River spawning grounds, the Morice Lake  35 spawning grounds, the Atna River spawning grounds, the  36 Morice River spawning grounds, the Upper Bulkley  37 spawning grounds.  Those are the principal ones that  3 8 come to mind.  39 Q   You mean we have to add those all up?  40 A   They all go by Moricetown.  41 MR. GRANT:  I think the answer is yes.  42 MR. MACAULAY:  43 Q   Well, did you have DFO records for 1985?  44 A   I don't have them in front of me.  I have seen them.  45 I have used them.  46 Q   And — well, I put it to you that that 2,000 — 2,000  47 figure is the escapement -- DFO escapement for 1985? 1  A  2  Q  3  4  A  5  6  7  Q  8  9  A  0  1  2  3  4   THE  COURT  14094  What would you like me to do with that?  Well, if you have a catch of 5,229 and an escapement  of 2,000, then you have over 70 percent catch?  I'm sure the calculation goes something like that.  For me to say that -- that I think that that was the  harvest rate at Moricetown, I need more information.  There is a very high harvest rate at Moricetown, isn't  there?  I calculated it as -- as you said, and as I agreed, as  being possibly as high as 60 percent at Moricetown.  That's something comparable to the harvest rate in the  coastal fisheries in area 4.  I'd say that's a high  harvest rate.  :  Is the harvest rate of 60 percent such that the  15 stock won't likely be sustained?  16 THE WITNESS:  According to the calculations of Shepard and  17 Withler for the Skeena system as a whole, they figure  18 that a 60 percent harvest rate on the aggregate of  19 stocks ascending the Skeena looks to be pretty close  20 to the harvest rate that over the long haul should  21 give you maximum sustainable yield.  There are  22 qualifications to put on that, but that's some sort of  23 context for that.  2 4 MR. MACAULAY:  25 Q   Now, coming back to a matter we dealt with this  26 morning -- or did you have something else you were  27 going to say?  28 A   I'm wondering where we're going to go with that --  29 with that harvest.  30 MR. MACAULAY:  We all manage somehow.  The —  31 MR. GRANT:  I just think -- my lord, my friend has put this  32 figure of 2,000, and I think that what I gather from  33 the exchange is that right now that figure is floating  34 in the air.  35 THE COURT:  That's right.  36 MR. GRANT:  It's not a -- it doesn't go anywhere further.  37 MR. MACAULAY:  I put it to him that was the DFO figure.  He said  38 he didn't have the DFO material with him.  39 THE COURT:  Change of direction.  4 0 MR. MACAULAY:  So we're moving on.  41 THE COURT:  Yes.  42 MR. MACAULAY:  43 Q   Perhaps 2,000 will come back again.  44 Going back to the map 22 and the area south of the  45 Copper River area.  46 A   Yes.  47 Q   Keel Weniits — 14095  1 A   Yes.  2 MR. MACAULAY:  — area.  I'm going to show you another  3 interview, it looks like.  4 THE COURT:  Which insert are you looking at, Mr. Macaulay,  5 please?  6 MR. MACAULAY:  Well, this is a new -- another document, my lord.  7 THE COURT:  All right.  8 MR. MACAULAY:  And it's a — there is a transcription as well as  9 the original text.  It appears that this is an  10 interview concerning McDonell Lake.  Now, McDonell  11 Lake, my lord --  12 THE COURT:  I know it.  13 MR. MACAULAY:  — is one of these areas.  14 THE COURT:  Hudson's Bay Mountain.  15 MR. MACAULAY:  16 Q   Well, it's one of these four sites that we've been  17 looking at down here in the Keel Weniits area.  I  18 believe it's the southernmost described as Sde keen  19 t'aat, S-d-e-k-e-e-n-t-apostrophe-a-a-t, as best I can  20 make out.  Now, this is John Namox.  You never spoke  21 to John Namox?  22 A   I have spoken to John Namox.  I know who he is, yes.  23 Q   He's Wah Tah Kwets.  24 A   Okay.  25 Q   And he says in the second paragraph that "They -- he's  26 talking about his house presumably -- "fished for  27 steelhead at McDonell Lake winter or summer".  And he  28 names some people who go there, could go, and people  29 who can trap there?  30 A   Yes.  31 Q   And he then adds:  "No other houses can use it.  32 Sometimes we call people from other houses over to use  33 it.  That's the only time they can use it".  34 A   Yes.  35 Q   And then he -- at the bottom he says:  "Henry Alfred's  36 house same tribe but different house.  Can't use my  37 house territory".  Do you see that?  38 A   I see that.  39 MR. MACAULAY:  And he is speaking in his capacity here as Wah  40 Tah Kwets, the head chief of that house?  41 MR. GRANT:  Well, my lord —  42 THE WITNESS:  So it appears.  43 MR. MACAULAY:  It's their document, my lord.  44 THE COURT:  Well, is it a matter of spelling?  I thought Henry  45 Alfred was Wah Tah Kwets.  46 MR. GRANT:  Henry Alfred is Wah Tah Keg'ht.  47 THE COURT:  Oh, it's a different — 14096  1 MR. GRANT:  K-e-g-h-t is the last part of Henry Alfred's name.  2 MR. MACAULAY:  3 Q   Wah Tah Kwets.  Namox is Wah Tah Kwets and Henry  4 Alfred is Wah Tah Keg'ht, a different house --  5 different house, same clan or tribe is the the way  6 it's phrased here.  Now, he's not describing salmon  7 fishery, is he?  8 A   He's talking about steelhead with respect to McDonell  9 Lake.  10 Q   Right.  11 A   People often don't distinguish between steelhead and  12 salmon in that they're -- they're all migratory,  13 similar size.  They migrate into the country at the  14 same time.  They differ in that steelhead overwinter  15 and spawn in the spring and then don't die following  16 spawning as opposed the salmon.  17 Q   Do the Wet'suwet'en not distinguish between steelhead  18 and salmon and sockeye?  19 A   They have a different name for them.  They know that  20 they're a different species.  In discussion -- in  21 categorizing fish steelhead are more likely to be --  22 are more like salmon than they are like trout and  23 white fish and resident species in terms of their  24 ecology.  They're fished in the same kinds of places.  25 They're the same kind of size.  They move at the same  26 time of year.  27 Q   Well, maybe some people don't draw a distinction, but  28 Mr. Namox certainly does.  He mentions steelhead,  29 doesn't he?  30 A   I'm not saying that they don't distinguish steelhead  31 from other species of fish, just as they distinguish  32 spring salmon from sockeye salmon, but if you were  33 talking about is something a salmon or is it a trout,  34 steelhead would go with the salmon even though an  35 ichthyologist would put it with the --  36 MR. MACAULAY:  Well, it's not a matter of theology.  37 MR. GRANT:  My friend is moving —  3 8 MR. MACAULAY:  39 Q   That's what it sounded like to me, my lord.  40 Mr. Namox goes on to say -- he mentioned the  41 winter fishery?  42 A   That's right.  43 Q   And that's not something that you ever get for salmon?  44 A   Pardon me?  45 Q   You don't get a winter fishery for salmon?  46 A  Most of the adult salmon are dead by the time winter  47 is very far advanced.  Coho maybe is alive in the 14097  1 s umme r.  2 Q   I put it to you plainly he's not talking about a  3 salmon fishery.  He's talking about a lake fishery.  4 That's good the year round in effect, winter and  5 s umme r ?  6 A   That's the reason I raise the point.  A steelhead  7 fishing site would be likely to be included under the  8 salmon sites here rather than a trout or lake site.  9 Trout or lake site is a way of describing a site  10 that's used for resident fresh water fishes, fish that  11 don't migrate to sea, unlike the steelhead, which  12 migrates to sea and returns.  The steelhead overwinter  13 in fresh water where they are subject to Indian  14 fisheries.  15 Q   And the winter fishery, of course, is the fishery that  16 the trapper depends on?  17 A   In an area like that it makes sense that that would be  18 so, yes.  It is so in many places.  19 Q   And what Mr. Namox is saying there is that without his  20 permission anyhow, no one else other than his house  21 can use that?  22 A   I see that.  23 Q   But if that territory is claimed by Hagwilnegh now,  24 then that would be one of those conflicts, wouldn't  25 it?  I can tell you Hagwilnegh is the same clan too.  26 A   Okay.  When you say "territory", are you referring to  27 the fishing site or the land territory around it?  28 Q   McDonell Lake or the southern part, because the  29 north -- the north or western -- western part is a  30 Gitksan boundary.  It's a boundary with Gitksan  31 country?  32 A   Yes.  33 MR. MACAULAY:  I said it would be the eastern shore we're  34 talking about.  35 MR. GRANT:  Is Mr. Macaulay referring here to a land — when  36 he's talking about that, is he referring to the land  37 territory?  38 THE COURT:  I'm sure he is.  39 MR. GRANT:  Or the fishing site?  4 0 MR. MACAULAY:  Well —  41 MR. GRANT:  The rights of the fishery.  42 MR. MACAULAY:  43 Q   I'm coming back to something that was suggested, and  44 that is if there's any difference so far as the  45 Wet'suwet'en are concerned assuming, and you could  46 assume that the -- the boundary -- the boundary along  47 McDonell Lake on the west side of McDonell Lake is a 14098  1 boundary of the Gitksan -- that that is a -- that lake  2 is -- can only be approached through by Wet'suwet'en  3 through Wah Tah Kwets' territory?  4 A   I don't have knowledge of the rules for travelling  5 through territories.  I don't know who the owner of  6 the land territory around the lake is.  7 Q   Well, it's an unlikely place for -- a location for a  8 fishery belonging to one house and the land belonging  9 to another, isn't it?  That's not as likely as say on  10 the Skeena River given all the circumstances we've  11 discussed, the winter and summer fishery, the location  12 of the place?  13 A   Yeah.  I'm sorry.  I haven't studied that.  I don't  14 know if it's likely or not.  15 Q   Do you recognize this John Namox interview?  It's a  16 Tonia Mills' interview of July, 1985.  That's what it  17 says.  18 A   Yes.  I don't think I've seen it before.  19 MR. MACAULAY:  Can that be marked for identification, my lord?  20 MR. GRANT:  Just if my friend's finished with it, I just want to  21 clarify it.  This, I take it, is a part of the  22 documents that were tendered or delivered with Tonia  23 Mills; is that right?  24 MR. MACAULAY:  Yes.  That's what I understand.  2 5 MR. GRANT:  Yes.  26 THE COURT:  All right.  It will be 983-5.  27 THE REGISTRAR:  Dash 6, my lord.  28 THE COURT:  For identification.  29 THE REGISTRAR:  Dash 6.  30 THE COURT:  Oh, yes.  All right.  31 THE REGISTRAR:  Is this for identification?  32 THE COURT:  Yes.  33 MR. MACAULAY:  For identification.  34 THE COURT:  Tell me, how did the fish get in the McDonell Lake?  35 MR. MACAULAY:  36 Q   It's the Copper River, my lord, the --  37 A   Zymoetz.  38 Q   The geographic name is different.  The witness will  39 know that.  40 A   Zymoetz River on the map and everyone calls it Copper  41 River.  42 THE COURT:  And it joins the Skeena where?  43 THE WITNESS:  Just above Terrace.  44 MR. MACAULAY:  Around Kitselas, near Kitselas.  Use the Indian  45 village locations.  4 6 THE COURT:  Oh, yes.  All right.  47 MR. MACAULAY:  Most of the river is outside the claim area, my 14099  1 lord, but the headwaters are in the claim area.  2 THE COURT:  I see.  It makes a circle around it.  3 MR. MACAULAY:  It goes through Gitksan as well as  4 Wet'suwet'en --  5 THE COURT:  Thank you.  6 MR. MACAULAY:  — areas.  And that McDonell Lake happens to be a  7 boundary between the Gitksan and Wet'suwet'en.  8 THE COURT:  Thank you.  9 MR. GRANT:  My lord, with respect to that last exhibit, I don't  10 object to it going in as an exhibit proper.  11 THE COURT:  All right.  Thank you.  12 (EXHIBIT 983-6:  Tab 6 - John Namox Interview, July,  13 1985)  14 MR. GRANT:  That's part of of this book, is it, my lord?  15 THE COURT:  Yes.  16 MR. MACAULAY:  17 Q   Did you draw the conclusion, Mr. Morrell, that there  18 is a -- the supply of fish on the Bulkley is barely  19 enough for the population which you assumed based on  20 the 1891 census?  21 A   I don't think that's a summary of -- of my opinion,  22 no.  I've discussed that in the mathematical model  23 that has already been under discussion here.  24 Q   Yes.  Your -- your opinion is there was always a more  25 than adequate supply of fish in the Bulkley as  26 distinct from the Skeena for the population, for the  27 Indian population?  28 A  As distinct from the Skeena, did you say?  29 Q   Yes.  Well, it doesn't have the same amount of fish as  30 the Skeena does?  31 A   In addition to the Skeena you mean?  32 Q   The people who live on the Bulkley.  33 A   Had enough fish?  34 Q   Yes.  35 A   Yes.  36 THE COURT:  Always or usually?  37 THE WITNESS:  I guess I wouldn't ever say always.  Usually.  38 THE COURT:  Always as far as you know?  39 THE WITNESS:  As far as I know.  I think that if there had been  40 serious shortages, that I would have heard about it  41 and I've heard no indication of that, with the same  42 kind of exception that I discussed with reference to I  43 guess the Gitksan and the Wet'suwet'en together; that  44 there are references in adaawk to times of famine.  4 5 MR. MACAULAY:  46 Q   Do Babines, that is members of Babine bands, fish on  47 the Bulkley? 14100  I'm not certain whether they fish or not.  I  understand that -- that they obtain fish from the  Bulkley.  It may well be that the Wet'suwet'en people  give them fish or trade fish to them and they may fish  themselves.  I'm not certain.  I do understand from  interviews that people from outside the area can  obtain permission to fish at Moricetown Canyon, for  example, and certainly there are people at Moricetown  who have relatives at Babine, and that's the sort of  arrangement that -- that's the sort of situation that  would lend itself to a relative from outside the area  obtaining permission to fish.  Well, there are Indian reserves occupied by bands who  are not Wet'suwet'en in the southern end of the claim  area.  You knew that, did you?  Cheslatta, for  instance?  I've heard discussions of the Cheslatta Band and I  have an idea of the country that they live in and I  see that that boundary includes the area that the  Cheslatta Band live in.  And do they fish on the Bulkley or any tributary of  the Bulkley?  Not to my knowledge.  How about the Burns Lake Band?  Again not to my knowledge, but they may.  26 THE COURT:  What is the headwaters of the Bulkley?  27 THE WITNESS:  The — most of the water comes from Morice Lake  from the Morice drainage.  There's also an Upper  Bulkley that comes down past Houston that arises in  the neighbourhood of Maxan Lake.  Maxan Lake is one of  the headwaters, incidentally another sockeye system.  LAY:  The net fishing on the Skeena is -- started in the  20th century; is that your understanding?  After the advent of the commercial fishery, probably  in the 19th century.  Did you speak to Ernie Hyzims about the commencement  of the net fishery?  Possibly.  I have spoken to him.  Did he explain to you that when traps were used, they  were used in different locations than -- than nets?  For instance, traps were used near a place where the  water washed over a rock?  I recall something like that in an interview with him.  Would you like to refer me to that?  Well, it's not necessary.  You remember that.  Okay.  1  A  2  3  4  5  6  7  8  9  10  11  12  13  Q  14  15  16  17  A  18  19  20  21  Q  22  23  A  24  Q  25  A  28  29  30  31  32 MR.  MACi  33  Q  34  35  A  36  37  Q  38  39  A  40  Q  41  42  43  44  A  45  46  Q  47  A 14101  1 Q   And also that nets were used in a different water  2 marine configuration.  You would get eddies rather  3 than water being washed over rocks?  4 A   I'm not sure if it's in the interview you're looking  5 at or others.  I've spoken to Ernie on a number of  6 interviews.  I've spoken to him and I've read other  7 interviews by him.  8 Q   You agree you would use a different location for a  9 trap than you would for a net from your general  10 knowledge of fishing in both historical and modern?  11 A   It depends on the kind of trap.  The whole apparatus  12 associated with the platform and pursing dip-net  13 arrangement called anyuusxw, which Ernie and I have  14 talked about, seems to me to be appropriate to the  15 same sort of site where you would fish a gill-net.  He  16 described to me a situation relating to his specific  17 fishing grounds at Kitsegukla where they are --  18 there's shelving rock that runs out into the river  19 creating a shallow area and a -- and the river  20 cascades over the -- over the shelf --  21 Q   Yes.  22 A   -- at varying depth according to the stage of the  23 river, and apparently a fence would be erected along  24 that -- along that shelf at low water and used to  25 guide fish into the near shore waters where they were  26 accessible to what's translated in the interview as a  27 trap but what sounds to me like this bana or bena, as  28 the western Gitksan call it, which is this pursing  29 dip-net affair.  And I -- I'm straining my memory and  30 I may not -- I may be mixing different interviews.  My  31 impression is that he said that that particular site  32 of his was damaged by blasting carried out to widen  33 the river to make it passable for steamboats and  34 that -- that following that -- it was following that  35 that nets were introduced and that his net sites are  36 different from the former site where the -- where the  37 bana or the anyuusxw was used.  38 Q   So he's talking about the 1880's or '90's?  If I  39 continue, that's the era of steamboats.  40 A   I'm trying to think of the date when they began.  I  41 believe it was -- it was well before that, 1860's.  42 No.  Is that wrong?  I'm not certain.  43 MR. MACAULAY:  Now, perhaps we can turn to another subject.  44 The -- your graphs of chinook capture in area 4.  That  45 has been marked, my lord, and was the subject of  4 6 evidence.  47 MR. GRANT:  Before my friend proceeds, I think my friend 14102  1 introduced that last topic by saying an interview you  2 had with Mr. Hyzims.  And I'm not certain.  My -- I  3 believe it would be one of the interviews in the  4 document Exhibit 974 for I.D.  It appears to me it  5 would be one that Mr. Morrell reviewed rather than the  6 one that he himself did.  I'm not certain if my friend  7 is --  8 MR. MACAULAY:  If I had put any particular interview to the  9 witness, that might be relevant, but I didn't.  He  10 obviously spoke to Mr. Hyzims and got some information  11 from him.  12 Page 5 of Appendix 1.  I'm looking for -- this  13 document has been dismembered and put into parts, my  14 lord.  That doesn't make it easier to find these  15 things.  I remember that -- it seems to me a couple of  16 days ago we spent a lot of time on this.  17 THE COURT:  We could take the next adjournment now if that is  18 convenient, Mr. Macaulay.  19 MR. MACAULAY:  Yes.  Fine.  Could we do that, my lord?  2 0 THE COURT:  Yes.  All right.  21 THE REGISTRAR:  Order in court.  This Court will recess.  22  2 3 (PROCEEDINGS ADJOURNED)  24  25 I hereby certify the foregoing to be  26 a true and accurate transcript of the  27 proceedings transcribed to the best  28 of my skill and ability.  29  30  31  32 Kathie Tanaka, Official Reporter  33 UNITED REPORTING SERVICE LTD.  34  35  36  37  38  39  40  41  42  43  44  45  46  47 14103  1 (PROCEEDINGS RECOMMENCED AFTER A BRIEF RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Macaulay.  5 MR. MACAULAY:  I think I — considering the adjournment, I will  6 be right on my three hour estimate, My Lord.  7 THE COURT:  All right.  Thank you.  8 MR. MACAULAY:  I have asked the Registrar to show the witness  9 Exhibit 3, tab 4.  It's his appendix.  10 THE REGISTRAR:  It's tab three, Mr. Macaulay, of book two.  11 MR. GRANT:  It's appendix 3 — I see.  It's Figure A 3.1.  It's  12 appendix 3, tab 4.  13 MR. MACAULAY:  That is in, My Lord.  I remember the witness —  14 Your Lordship asking the witness some questions about  15 that.  16 THE COURT:  No, there is a different numbering.  Appendix 3 is  17 tab 4.  All right.  18 MR. MACAULAY:  19 Q   Now, during the peak periods, which seem to be between  20 1910 and somewhere before 1930, the Queen Charlotte  21 Island catch was included in the area 4 catch, wasn't  22 it, of chinook?  Sorry, that's the --  23 MR. GRANT:  That's a different table.  2 4 MR. MACAULAY:  Yes.  25 THE WITNESS:  Should I be at figure A 3.5?  2 6 MR. MACAULAY:  27 Q   Yes.  28 A   Okay.  29 Q   Same question.  The question is still relevant, but  30 it's -- for the record we are looking at A 3.5.  Don't  31 the statistics show the Queen Charlotte chinook catch  32 as included in those figures?  33 A   That may be so.  I recall that there has been some  34 confusion historically as to origin of different  35 segments of the catch that have been landed at Prince  36 Rupert.  Sandy Argue in the paper -- that's A.W.  37 Argue -- in the paper from which the data leading to  38 this figure came, discusses the various uncertainties  39 and difficulties in handling the data like that, and  40 he discusses things of that nature.  For this graph I  41 rely on his treatment.  In general he tried to remove  42 factors like that.  Whether inadvertently he left  43 something in or not, I really can't judge.  I believe  44 that the data that he used are the best available  45 representation of the Skeena area or area 4 catches of  46 the species that are represented here.  47 Q   You're saying no, he did not include the -- for the 1  2  A  3  4  Q  5  6  7  8  A  9  Q  10  11  A  12  Q  13  14  15  A  16  17  18  19  20  21  Q  22  23  A  24  Q  25  26  27  28  A  29  30  Q  31  32  33  A  34  35  36  37  38  Q  39  40  A  41  42  43  44  45  Q  46  47  14104  period 1915 to 1929 the Queen Charlotte Island?  To my knowledge he did not.  Perhaps inadvertently he  has included them, but I don't know of that.  Well, we can lead evidence on that if we have to, My  Lord.  Now, after 1930 there were increasing numbers of  Skeena chinook taken outside the Skeena area?  That's my understanding, yes.  And that would account, in part, for the trough,  wouldn't it?  Yes.  Okay.  And since the early seventies there's been no  significant net fisheries specifically targeted on  chinook in area 4?  Prior to about 1972 there was an early season large  mesh gill-net fishery in area 4 directed at chinook.  That was eliminated around 1972.  There continues to  be significant incidental catch of chinooks as part of  the intensive sockeye fisheries in July and into  August in area 4.  And turning to just a couple of pages to figure 3.8.  This is the coho catch, isn't it?  That's right.  And doesn't the same apply to the coho that you get in  the 1915 to '29 period, the Queen Charlotte coho  included?  Is your answer the same, you don't think it  is?  To my knowledge it's not.  To my knowledge these data  represent area 4 catches.  And how about the -- after 1930, were there increases  in coho taken outside the area 4 area, the Skeena  area?  Like chinook, coho are taken in troll fisheries, and  the troll fisheries have developed during the period  that you indicate.  There are troll fisheries in area  4, there are other troll fisheries outside of area 4  which take Skeena fish, yes.  And those are Alaska based in some cases, the troll  fisheries?  There are Alaskan troll fisheries and troll fisheries  conducted by Canadian fishermen in other statistical  areas.  It's an extremely difficult problem to  determine the river system of origin of chinook and  coho taken in troll fisheries.  Well, that makes these graphs difficult to plot  accurately, doesn't it, if you are limiting yourself  to area 4? 14105  1 A   It's not a trivial problem to even determine the  2 catches, particularly in early years, in area 4.  This  3 doesn't purport to represent anything other than area  4 4 catches.  In general, the closer you get to the  5 present, the more accurate the data are.  As a  6 representation of actual catches, in my opinion, from  7 1950 on I would expect them to be quite accurate.  And  8 the most uncertainty is associated with early years of  9 the fishery before in fact area 4 was even delineated.  10 As far as catches of Skeena fish, fish originating  11 from the Skeena system outside of area 4, that is yet  12 another problem that's difficult, and that's one  13 aspect of the mixed stock problem that is quite a  14 complication of fishery managers' lives.  15 Q   And the fishery manager has to take account of those  16 catches outside area 4 in the open waters by others,  17 if I call them that, in managing the Skeena?  18 MR. GRANT:  My Lord, two issues here.  This is exactly the area,  19 that chapter 4, that my friend Mr. Macaulay objected  20 to on the basis of relevance deals with.  He's now  21 raising it -- that chapter directly.  That was the one  22 that was put in for identification earlier that talks  23 about the other areas.  My friend in his question is  24 raising that -- reopening what he said I was opening.  25 And that's the first point, and the second is he is  26 now talking about managers.  I presume — because he  27 is talking about the coastal fishery, he is talking  28 about the Department of Fisheries and Oceans, which he  29 objected to also on the basis of relevance.  30 MR. MACAULAY:  I would be glad to withdraw that question, if  31 that opens up anything -- anything up.  And those are  32 the questions I have for this witness.  Thank you.  33 THE COURT:  All right.  Thank you.  34 MR. MACAULAY:  There was one more thing.  The witness was going  to produce -- the witness was going to look through  during the noon adjournment the documents he relied on  in connection with those Keel Weniits' area.  Did you find your source material for the McDonnell  Lake area, Keel Weniits?  Yes, I did.  And can you tell His Lordship what that was?  I have them here.  Fine.  We didn't want to leave that dangling.  I have a draft map that I made on a -- it looks like a  1 to 50,000 scale topographic map that represents the  conclusions of the data analysis.  I have a set of notes dated June 17th, 1987  35  36  37  38  Q  39  40  A  41  Q  42  A  43  Q  44  A  45  46  47 14106  1 entitled Moricetown meeting.  They are notes of Tonia  2 Mills.  This is the original copy apparently.  3 There is a 1 to 250,000 scale topographic map, the  4 number is cut off.  It's the Smithers' map sheet.  And  5 that accompanies the notes of Tonia Mills.  It has  6 locations of fishing sites marked on it, and those  7 marks were made at the June 17th meeting.  8 Q   At the what?  9 A   The June 17th meeting to which the notes apply -- at  10 which the notes were made.  11 Q   All right.  12 A   I have notes that I made on June 18th, 1987 entitled  13 "Tonia Mills" -- this is now my shorthand -- R-e W  14 apostrophe t-e-n for Wet'suwet'en, fishing site maps.  15 Q   That is notes of an interview between yourself and  16 Tonia Mills, or meeting?  17 A   That's right.  18 Q   Okay.  19 A   There are further notes in red on that regarding the  20 process of developing the map.  Another set of notes,  21 my handwriting, dated 19 June '87.  The title on the  22 top line is W apostrophe t-e-n, new word, capital F,  23 capital G-D-S, my abbreviation for Wet'suwet'en,  24 fishing grounds source list.  There is a photocopy of  25 that set of notes with writing on it in red, and I  26 believe that that's Tonia Mills' handwriting.  The 19  27 June notes list some -- some of my questions arising  28 from the previous notes, and the notation by Tonia  29 Mills in red contains resolution of some of those  30 questions.  31 There are notes in my handwriting both in black  32 pen and red pen dated 22 June '87, entitled again W  33 apostrophe t-e-n F period G-D-S - S-U-M-M questions.  34 Two pages.  Those notes also contain red pen markings,  35 I believe, by Tonia Mills.  The same sort of thing as  36 the 19 June notes.  37 Another two-page set of notes all my handwriting  38 dated 23 June '87.  The top line says:  "With Tonia  39 Mills at her house".  40 And another page of notes in my handwriting dated  41 24 June '87.  The title is:  "Phone Doug Tait".  And  42 there is more information on the top line, but that  43 "phone Doug Tait" is unique to this set.  44 Q   Does that last one record a conversation between you  45 and Doug Tait?  46 A   That's what it appears to be, yes.  47 Q   Concerning Aldridge Lake for instance? 1  A  2  3  Q  4  5  6  A  7  Q  8  9  A  10  Q  11  12  A  13  14  Q  15  16  A  17  18  Q  19  20  21  A  22  23  24  Q  25  26  A  27  Q  28  29  30  31  A  32  33  34  Q  35  A  36  Q  37  A  38  39  40  41  Q  42  A  43  44  45  46  Q  47  14107  Aldridge Lake is one of the names noted on there,  along with a name Loots K'eet.  Let's deal with that last one.  This is a note by you  of a phone conversation, and one of the items you  asked about was Aldridge Lake?  That's right.  You had prepared before the phone conversation a  little list of questions you wanted to ask, did you?  That's quite possible.  And opposite Aldridge Lake there is the Wet'suwet'en  name for Aldridge Lake?  I believe that's what it is.  I could consult the map  and check that.  Well, it's Toots K'eet.  That's t-o-o-t-s k apostrophe  e-e-t.  We see that on the map?  The initial letter is a capital L with a slash through  it.  I'm not sure what the linguists call that.  In the case of Aldridge Lake you were asking -- and  that's one of the sites we were talking about, was it,  on the map 22?  That's right.  I'm not certain.  I would like to  consult the map before I confirm that.  I have my  draft here.  That's right.  And you got the spelling -- proper spelling from Mr.  Tait?  That's right.  Okay.  Now, on your -- if I could call it -- that  questionnaire dated June 19th, 1987, the one that's  endorsed with Tonia Mills' answers, on Aldridge Lake  you have TM1712A.  Is that a map reference?  TM17 refers to Tonia Mills 17 June.  12A is a  reference to her notes at that meeting.  If you turn  to that map, the topographic map.  That's her notes.  Okay.  And --  Excuse me.  Yes.  The meeting notes are in her handwriting.  I'm not  certain that she's the one who marked the map.  If you  look at the map, you'll see a circled 12A right above  Aldridge Lake.  Yes.  It's either you or her?  I don't believe I was at that meeting.  I believe  Victor Jim was involved in some aspect of this.  He  may have been making notations on the map.  I'm not  sure.  He often chaired these meetings.  And you have written in opposite Aldridge Lake "name,  owner, use".  Is that right? 1  A  2  Q  3  A  4  Q  5  A  6  Q  7  A  8  Q  9  A  10  Q  11  A  12 MR.  GRANT  13  14 MR.  MACAU  15  Q  16  17  18  19  A  20  Q  21  A  22  23  Q  24  A  25  Q  26  A  27  28  29  30  Q  31  A  32  Q  33  A  34  35  36  37  Q  38  39  40  41  A  42  Q  43  A  44  45  46  Q  47  A  14108  Yes.  And those are your questions to Tonia Mills?  I imagine so, yes.  That makes sense to me.  And she has written: "Check John Namox (did)".  Yes.  And then there is an arrow:  "Owner - Wah Tah Kwets"?  Yes.  "User Dennis David Dennis"?  Yes.  And then there is the name Loots K'eet?  Loots K'eet --  :  L with a slash o-o-t-s one word, K apostrophe e-e-t  second word.  LAY:  Well, it seems from this that you got all the  information about this area, the McDonnell Lake area,  from -- at one time or another from Tonia Mills, and  she got it in turn from people like John Namox.  If I can review the sequence of these.  Yes.  There was a meeting at Moricetown on June 17th  attended by Tonia Mills and a number of other people.  Not including yourself?  I was not at that one as I recall.  And she gave you that document?  She took notes at these meetings, numbered.  That is,  made a list of numbers with notations beside them.  The numbers correspond to marks on the topographic  map.  Like 12A?  Exactly.  Okay.  That formed a starting point for this part of the  mapping, and the subsequent notes are back and forth  between us about various aspects of the information to  be mapped.  What does she say about -- record about 12A on those  first notes?  My Lord, that appears to be the reference number  to Aldridge Lake.  I'll just read from the note.  Yes.  The original note appears to say:  "Aldridge same fish  as Dennis Lake", and then that 12A is overwritten in  pen, says "check".  But none of that writing is yours?  No. 14109  1 Q   And then you asked some further questions on June  2 19th, including some about Aldridge Lake that we have  3 just read?  4 A   That's right.  5 Q   And then you phoned Mr. Tait, presumably, to get the  6 right spelling for -- so far as Aldridge Lake is  7 concerned, the right spelling for the lake?  8 A   That's right.  Doug Tait had been working with Alfred  9 Joseph and James Kari, as I recall, in — in trying to  10 standardize the spelling of Wet'suwet'en terms.  11 Q   And then -- was it after that sequence of information  12 coming in that you marked this map in the case of  13 Aldridge Lake with Loots, was it, K'eet (Wah Tah  14 Kwets)?  15 A   That's right.  16 Q   And then you put the symbol on there, the triangle?  17 A   Yes.  18 Q   And that went to the map-maker?  19 A   That's right.  20 MR. MACAULAY:   Those are all my questions.  21 THE COURT:  Thank you.  Mr. Goldie.  22 MR. GOLDIE: Thank you, My Lord.  23  24 CROSS EXAMINATION BY MR. GOLDIE:  25  26 Q   Just before you put that map away, Mr. Morrell, where  27 did the spelling for the Gitksan names come from?  28 A   On this map?  29 Q   Yes.  30 A   Susan Marsden -- I relied on Susan Marsden for that.  31 Q   Okay.  Mr. Morrell, I understand that your first  32 assignment upon employment with the Tribal Council was  33 to carry out a comprehensive study of the native  34 fishery -- I am quoting you -- under the hereditary  35 and elected leadership of the Gitksan and  36 Wet'suwet'en; is that correct?  37 A   That's a description of what I was doing.  I am  38 interested what you are quoting from.  39 Q   I am quoting from what was given us as the summary of  40 your opinion.  And you did refer to the elected  41 leadership, and by that you refer to the band council?  42 A   I was working under the Tribal Council.  43 Q   So the —  44 A  And the Tribal Council are elected leadership.  45 Q   All right.  But that's what the word "elected" refers  46 to, the Tribal Council?  47 A   That's right. 1  Q  2  A  3  4  Q  5  6  A  7  Q  8  9  10  11  12  13  14  15  16  17  18  19  A  20  Q  21  A  22  23  Q  24  25  A  26  27  Q  28  29  30  A  31  32  Q  33  34  35  A  36  Q  37  A  38  39  40  Q  41  42  A  43  Q  44  45  46  A  47  14110  Now, I am referring to Exhibit 763.  Perhaps I can be more specific.  Under the executive  of the Tribal Council.  All right.  And they are the elected people that you  had in mind?  That's right.  I am referring to Exhibit 763, page seven, My Lord.  This has been referred to before.  Column two under  the heading "Mike Morrell, fish biologist".  In  paragraph 2, the last sentence, and I quote:  "In 1979 Mike was hired to set up a study to  provide Tribal Council with the information  to devise a fish management plan based on  traditional Indian wisdom and practise."  Is that a shorthand description of your  assignment?  That's part of it, yes.  Is that --  That's an accurate description of part of my  assignment.  All right.  A reasonable substitute for a job  description?  Again that would be part of it.  I have gone into my  mandate in some detail.  There wasn't any such fish management plan in  existence at the time you were hired.  You were hired  to create one?  There was not one written down, nor put together in  such a way as to be comprehensive for the entire area.  Well, it took you and those who were working with you  and under your direction something like four years to  find it and describe it?  It being?  A fish management plan.  In some ways that process continues.  The fish  management plan is not yet complete.  There are  elements of it that remain in doubt.  Well, I am talking about the production of a report  which has been referred to as appendix one.  That's right.  That's the FMS report.  Yes.  And I am saying that it took you and your  colleagues four years to discover and create and  devise and describe.  It took six years between the -- I began work in 1979.  The fish management study report is dated May, I 14111  1 believe, 1985.  So that's the time it took to produce  2 the fish management study report.  That's not exactly  3 equivalent to a management plan.  It contains  4 recommendations for further action by the Tribal  5 Council towards the fish management plan.  6 Q   That's what I —  7 A  And contains other things.  8 Q   That's what I want to come to.  I am going to refer  9 you to -- I am going to read to you some of the  10 evidence of Mr. Sterritt in volume 114 and 113, and if  11 if Mr. Grant wants to put the transcript in front of  12 you so you can follow me, perhaps that might be  13 convenient.  My Lord, this -- I will begin at  14 transcript 113 at page 7095, lines 12 to 25.  Mr.  15 Sterritt said:  16 "Q   All right.  Were you involved with  17 respect to a study on the fishery?  18 A   Yes, I was.  19 Q   And what was your role there?  20 A  Well, I was -- as the director of Land  21 Claims, the -- a fish-management study  22 was developed and a biologist was hired.  23 There hereditary chiefs provided  24 direction to that study, and I directly  25 oversaw the -- the biologist that we  26 hired to -- to frame the study and to  27 carry it out.  28 Q   Who was the biologist?  29 A   That was Mike Morrell.  30 Q   And can you recall about when the study  31 began?  32 A   1979."  33  34 And that accords with your recollection?  Am I  35 correct in that?  36 A   That's right.  37 Q   Yes.  And then page 7147.  And that will be in  38 transcript 114, My Lord, line 23, to 7148, line eight.  39 And the context of the discussion here is -- or the  40 evidence here is with respect to discussions with the  41 Department of Fisheries and Management — Oceans with  42 regard to co-management.  43  44 "Q   Over what period of time did the  45 discussions with representatives from  46 the Department of Fisheries and Oceans  47 take place with regard to the 14112  1 co-management?  2 A   Over a period of about two years.  We  3 found ourselves very far apart, the  4 hereditary chiefs' ownership and  5 jurisdiction over the fishery was the  6 terms of reference that I operated  7 under.  The hereditary chiefs advised  8 that co-management meant that they would  9 make major decisions, in terms of the  10 fishery, that they would determine times  11 of fishing, and they had their own  12 management practises, and from the  13 Department of Fisheries and Oceans'  14 point of view co-management meant giving  15 permits to the Indian fishermen, that  16 they have closures on certain days and  17 so many days per week, and we never  18 could close that gap.  19 Q   And yesterday you testified to the  20 fact that in 1979 a fish management  21 study was initiated by the Tribal  22 Council, and you were involved in that?  2 3 A   Yes, I was.  24 Q   Was the initiation of the fish  25 management study in any way related to  26 the co-management discussions that were  27 going on between the hereditary chiefs,  28 yourself and members of the Department  29 of Fisheries and Oceans?  30 A   Yes, it was, because we felt that we  31 needed to do an indepth study, that we  32 could sit down with the Department of  33 Fisheries and Oceans and other persons  34 to demonstrate in some detail the  35 reasons why we should have a commercial  36 inland fishery, the reasons why the  37 Gitksan-Wet'suwet'en hereditary chiefs  38 should play a major role in the fishery.  39 There were major social and economic  40 benefits that could arise through the  41 type of plan that we intended to  42 implement.  43  44 Now, that accords with your understanding of the  45 reason why the fish management study that you were  46 responsible for was initiated?  47 A   I would describe the co-management discussions 14113  1 differently.  I do understand that the study arose as  2 a result of discussions between the Tribal Council  3 representatives and the hereditary chiefs and the  4 Department of Fisheries and Oceans, and that a need  5 arose for documentation of the Indian system and  6 collection of reliable descriptive data about the  7 fishery in those discussions.  I would — my own  8 description of the nature of the negotiations and the  9 difficulties would be somewhat different from Mr.  10 Sterritts, but I accept that as his view.  11 Q   Well, he was your direct superior, wasn't he?  12 A   That's right.  13 Q   Yes.  I'm not asking you to agree with all that Mr.  14 Sterritt says.  The question I put to you was, does  15 that accord with your recollection of the reason for  16 the fish management study?  17 A   I may not be party to all the reasons.  It's not  18 identical with the mandate that I was given.  I was --  19 I was told to develop descriptive statistics about the  20 Indian fishery, to describe the Indian system of  21 management of the fishery, and to make recommendations  22 for a management plan embodying the -- being  23 consistent with the Indian system of management.  24 Q   All that's compatible, is it not, with the  25 negotiations with the department in respect of  2 6 co-management?  27 A  All of it is certainly relevant to that, yes.  28 Q   Yes.  Page 7150, line 35, to 7151, line 29.  The  29 context here is the discussion of bylaws which were  30 intended to confer upon the Tribal Council and the  31 hereditary chiefs some measure of control over the  32 fisheries.  33  34 "Q   All right.  In 1986 was the bylaw  35 eventually not disallowed by the  36 Minister of Indian affairs?"  37  38 Now, My Lord, that sounds bylaw not disallowed.  39 That was the subject matter of proceedings in the  40 courtroom:  41  42 "A   Several bylaws went to Ottawa and were  43 once again disallowed.  A bylaw --  44 pardon me, I should go back to the  4 5 summer of 1985.  In 1985 I was -- prior  46 to this the -- somehow the Department of  47 Fisheries and Oceans became involved in 14114  1 our bylaw ..."  2  3 And then he goes on to describe the sequence of  4 affairs through the summer of 1985, and he goes on  5 over the page to talk about the negotiations and his  6 discussions with Mr. Glen Williams, and he -- he then  7 says:  8  9 "A  He was speaking to the hereditary  10 chiefs, and he was advising me  11 whether or not I could negotiate an  12 agreement that we would integrate our  13 fish management plan with the larger  14 management plan of the Department of  15 Fisheries and Oceans.  16 Q   When you say our fish management plan,  17 what were you referring to?  18 A   I was referring to the bylaws, of what  19 was outlined in the bylaws.  It included  20 the hereditary chiefs as advisors.  The  21 reason it was in that manner, because it  22 was the only way that they would accept  23 the bylaw, but we intended to have the  24 hereditary chiefs as the final authority  25 on the fishery.  26 Q   The fish management plan, did that  27 relate in any way to Mr. Morrell's  28 study?  29 A   Yes, it did.  30 Q   In what way?  31 A  We had a final report by then and his  32 recommendation.  In any event ..."  33  34 And then he goes on to talk about negotiations and  35 the disallowance of the bylaw.  That accords with your  36 recollection, does it not?  37 MR. GRANT:  The reference to Mr. Morrell's study?  38 MR. GOLDIE:  Yes, the fish management plan, which was:  39  40  41 "The object of the bylaws was to integrate  42 our fish management plan with the larger  43 management plan with the Department of  44 Fisheries and Oceans."  45  46 Just pausing there.  That's another description of  47 co-management, isn't it? 1  A  2  3  Q  4  5  6  A  7  8  9  10  11  Q  12  A  13  14  Q  15  16  17  A  18  Q  19  20  A  21  22  Q  23  24  A  25  26  27  Q  28  29  30  A  31  32  Q  33  A  34  Q  35  36  37  38  A  39  Q  40  41  42  43  A  44  45  46  47  Q  14115  Integration or coordination of two management systems  or two management bodies, yes.  And when Mr. Sterritt talks about the intergration of  our fish management plan, he is talking about your  report which was in its final form in 1985?  It appears that that's what he is doing.  I have some  trouble with that characterization of the final  report.  The recommendations section makes some  recommendations and suggestions as to how a management  plan could be developed.  Yes.  But to my mind the report does not constitute a fish  management plan.  Well, that was the way that Mr. Sterritt was  characterizing it in his evidence, and he was  referring to what you had produced as of 1985.  I see that.  And it's characterized as final report, isn't it?  That's how it is identified?  That's right.  That's what it is called, the final  report of the fish management study.  So a person might be pardoned for thinking that this  was the final report?  I have no trouble with that as the final report of the  fish management study.  The difficulty that I have is  characterizing it as a management plan.  And I suggest to you that the purpose of the fish  management study was to attain the goal of  co-management.  That appears to be part of what Neil Sterritt had in  mind to do with it.  Yes.  I think there are a number of other options.  And I think Mr. Macaulay asked you this, but in  Exhibit 63 on page one there is a reference to the  purchase of coastal fishing vessels.  Were you asked  to give any advice with respect to that?  No, I wasn't asked for any advice on that.  Do you say that the -- the commercial fishery carried  on by Gitksan and Wet'suwet'en in the manner that --  using these vessels is part of the  Gitksan-Wet'suwet'en native fishery?  When I described the Indian fishery with reference to  Gitksan and Wet'suwet'en, I am referring to the  fishery that takes place within the Gitksan and  Wet'suwet'en territory, not the coastal fishery.  Notwithstanding that there is a very substantial 1  2  3  4  5  A  6  Q  7  A  8  9  Q  10  11  A  12  Q  13  14  A  15  Q  16  17  18  19  A  20  Q  21  22  23  24  25  A  26  Q  27  A  28  Q  29  30  A  31  32  Q  33  34  A  35  36  37  38  39  Q  40  41  A  42  Q  43  A  44  Q  45  46  A  47  14116  participation by the Gitksan-Wet'suwet'en peoples in  the commercial fishery on the coast.  You don't  include that when you are talking about the  Gitksan-Wet'suwet'en Indian fishery?  That's right.  Why?  It's a matter of definition, to distinguish the two  fisheries.  And of course that fishery on the coast would be  carried out as a commercial operation?  Yes.  And subject to the regulation of the Department of  Fisheries and Oceans?  They are the ones that regulate that fishery.  Yes.  Now, you gave evidence in response to questions  put to you by Mr. Grant about your methodology in  estimating the catch in the claims area.  Do you  recall that?  Yes.  And my understanding is that you -- the catch  information that you worked up came from three  sources:  a count by the Tribal Council staff,  interviews with the fishermen, and logbooks maintained  by the fishermen.  Is that correct?  That's right.  Information on catches you say?  Yes.  Yes.  Now, I believe you also stated that the set times of  the nets varied from hours to as much as two days?  Over the course of the season perhaps more than that.  Sometimes three days.  A fish in a net dead for three days is subject to  reasonably rapid decomposition or spoilage, is it not?  It depends very much on the temperature of the water.  In April or May the temperature of the water would be  about three or four degrees centigrade.  Fish stays in  quite good condition in the water for several days at  that temperature.  The charts that you have brought before the court show  peaks of fishing in July and August, do they not?  Yes.  And that time the water is warming up considerably?  Yes.  And spoilage could take place within that period of  two to three days?  Yes.  That's why people attend to their nets more  frequently at that time of year. 1  Q  2  A  3  Q  4  5  6  A  7  8  Q  9  10  11  12  13  A  14  15  Q  16  A  17  Q  18  A  19  20  21  Q  22  23  A  24  25  26  27  28  29  30  Q  31  32  A  33  Q  34  35  A  36  Q  37  38  A  39  40  Q  41  42  A  43  Q  44  45  46  A  47  Q  14117  Spoiled fish, of course, would be discarded?  Presumably.  Yes.  And they might not be reported as caught through  the information that -- sources of information that  you worked with?  In the indirect sampling methods, that is interviews  and logbooks, discarded fish might not be reported.  Right.  A part of your research indicates that -- and  I think this may have been touched on -- indicates  that the method of fishing at Moricetown with the  spear or gaffe results in appreciable losses of fish  hit but not recovered?  Yes.  Those loss rates are measured in the fish  management study report.  Well, an estimate is made of them?  That's right.  Yes.  They are measured on a sample of the fishing effort,  and that sample is expanded to estimate the total --  the rate of the sample as a measurement.  And assumptions are made of the species, because very  often the fish that is hit is never seen again?  In some of the cases that's so.  There was a special  category of fish that were lost and could not be  identified, and there was a procedure for estimating  the composition of those fish.  The assumption was  made that the fish that were lost and not identified  had the same species composition of fish that were  lost but could be identified.  Yes.  I believe you estimated that up to 30 percent of  all fish hit were lost in some circumstances?  What do you base that belief on?  Well, it was -- as I read some of the tables in your  summary of your report, but --  I believe that the report is correct.  Yes.  I am not questioning that the -- I am just  asking you if you recall that figure.  I don't recall that figure.  It seems in the right  ballpark.  Assuming that to be so, are those fish included in the  estimate of fish caught?  Yes.  Now, you have testified that you were aware of the  catch results prepared by the Department of Fisheries  and Oceans?  Yes.  The catch estimates of the Indian fishery?  Yes.  Fishery generally. 1  A  2  Q  3  4  5  A  6  Q  7  A  8  Q  9  A  10  Q  11  12  13  A  14  15  16  17  18  Q  19  20  A  21  22  23  24  25  26  27  28  29  30  Q  31  A  32  33  34  35  36  Q  37  38  39  A  40  Q  41  42  43  A  44  Q  45  46  47  14118  Yes.  Am I correct that both your estimates and the  estimates of the department are intended to measure  the result of the same activity?  The catch of the Indian fishery?  Yes.  Yes.  You are both looking at the same thing, aren't you?  That's my understanding.  Yes.  And I think you indicated that the fisheries --  Department of Fisheries and Oceans estimate is made as  a result of personal inspection?  I discussed with Peter Woloshym, who was the person  involved in making these estimates, how he made his  estimates.  He is the the senior fishery officer for  Hazelton.  I also discussed the estimates with other  DFO staff members, Ron Kadawaki notably.  Isn't the DFO estimate made as a result of a personal  sampling of the nets?  When I asked Mr. Woloshym about this, he told me that  he estimated efforts by -- fishing effort by counting  nets whenever he could on river boat trips, travelling  the area by truck, and occasionally by aerial survey.  He has shown me some of those data, and he told me  that he sampled catches by when he was on the river,  he or his staff were on the river in river boats, and  they passed an Indian net, sometimes they would lift  the net and count the fish that were in the net.  As  far as I know that's the extent of his sampling.  That's what I meant by personal sampling.  I don't know how he arrived at his estimate for the  Moricetown Canyon Fishery.  I never saw a Fisheries'  personnel there making -- making observations of the  catch.  Pardon me.  I have seen Fisheries' personnel  there, never for -- as long as an hour at a time.  My question to you was that there are two aspects.  First is the counting of the nets on the river, the  second is the contents of the nets?  That's right.  And the contents of the nets, as estimated by the  Department of Fisheries and Oceans, is based upon  personal sampling.  Is that not your understanding?  That's my understanding.  Yes.  That is in contrast with the way in which you  arrived at the estimate of the contents of the nets,  which used the three sources you made reference to --  two of them being direct? 1  A  2  3  Q  4  A  5  Q  6  7  8  9  10  A  11  Q  12  13  14  15  A  16  17  18  19  20  21  Q  22  23  A  24  Q  25  26  27  28  A  29  30  31  32  Q  33  34  A  35  Q  36  37  38  A  39  Q  40  A  41  Q  42  43  44  45  46  47  14119  And the first being direct observation of the fish as  they were taken from the net.  Yes.  Yes.  Now, the -- and you told His Lordship that both sets  of these observations are made of a regulated fishery,  that is to say the food fishing of the people of the  villages of Kispiox, Glen Vowell, Hazelton, Kitsegukla  and so on and Moricetown and Hagwilget.  These observations are made of a regulated fishery.  That's correct.  The native food fishery is a  regulated fishery, isn't it, and you and the  Department of Fisheries and Oceans were observing  exactly the same thing?  We were both observing the Indian fishery in the same  area.  The question of regulated fishery, I'm not sure  about that one.  There were regulations governing the  fishery by the Department of Fisheries and Oceans.  There are other sets of regulations or laws or rules  of the hereditary chiefs.  I put it to you that both of you were observing a  regulated fishery.  All right.  All right.  And as far as you know, everyone that was  being observed, either by you or by the Department of  Fisheries and Oceans, was in possession of an Indian  food licence, as far as you know?  I didn't ask people if they had licences or not.  Some  people told me that they didn't have licences, some  people told me that they did.  I don't know who did  and who didn't, beyond the ones that told me.  Well, you weren't really very interested in whether  they had food licences.  It was not important to the work that I was doing.  Yes.  You remember giving evidence in the case of  Regina versus Wilson in Smithers on June the 1st,  1987?  Which Wilson please?  Walter Wilson senior.  Yes.  Yes. And you were asked with respect to the native  food fishery -- I am at page 13, line 37. You were  asked:  "Q   Did you talk to persons who had  purchased Federal Fisheries' licences or  who had obtained native food fishing 14120  1 licences?  2 A   I am sure I did.  I never raised that  3 point with people that I was talking to,  4 but I know that that some people do  5 accept those licences."  6  7 So that really was considered by you to be quite  8 irrelevant, whether they had a licence or didn't have  9 a licence?  10 A   That was not an object of my study, no.  11 Q   Well, whether it's an object of your study or not, it  12 was not regarded by you as having any relevance?  13 A   Relevance to what please?  It was not relevant to my  14 objectives in my study.  15 Q   Right.  All right.  You were asked if you had  16 canvassed the question of whether people had food  17 fishing licences, and you said at page 14, line 2427:  18  19 "But I didn't specifically survey  20 Gitksan-Wet'suwet'en fishermen to find out  21 who had federal licences and who didn't,  22 that's right, I never asked people that."  23  24 That was -- you were asked that question and you  25 gave that answer, and that was the truth, is it not?  26 A   That's right.  27 Q   All right.  Thank you.  You gave evidence in chief  28 here about food fishing licences.  When did you inform  29 yourself with respect to that?  30 A   I beg your pardon?  31 Q   You gave evidence here in response to questions put to  32 you by Mr. Grant?  33 A   Yes.  34 Q   About native food fishing licences.  And my question  35 is when did you decide to inform yourself on the  36 question of the frequency of use by native -- by  37 Gitksan and Wet'suwet'en of federal food fishing  38 licences?  39 A   I believe it was in the spring of 1979.  It could have  40 been in 1980, possibly both years.  There were a  41 series of meetings held at villages on the Skeena and  42 the Bulkley in connection with the negotiations that  43 were going on then between the Tribal Council and the  44 Department of Fisheries and Oceans.  I attended those  45 meetings.  I was an advisor to the negotiators on the  46 Tribal Council side.  One of the issues in those  47 negotiations was licensing.  The Department of 1  2  3  4  ]  5  6  7  8  9  10  Q  11  A  12  13  14  Q  15  A  16  Q  17  A  18  Q  19  20  A  21  Q  22  23  A  24  25  26  Q  27  28  A  29  Q  30  A  31  32  33  34  35  Q  36  ]  37  38  39  A   '  40  Q  41  42  A  43  Q  44  4 5 MR.  GRANT:  46  4 7 MR.  GOLDIE  14121  Fisheries' representatives had a need under their  legislation to issue licences, and it was a problem  for some people to accept them.  There were -- these  meetings were held in order to -- for the Tribal  Council negotiators to learn the opinions of the  fishermen and the chiefs regarding some of the  questions to be covered in the negotiations, and at  those meetings there was a good deal of discussion  around the subject of food fishing licences.  Well -- go ahead.  And in the course of those meetings I developed a  sense of people's attitudes about licences, and the  idea that some people did take them and some didn't.  You mean the attitudes of the people at the meeting?  That's right.  Now, you refer to Mr. Ernie Hyzims.  Yes.  And I think you said that you asked him why he had a  food licence?  He —  Am I right in the note I made of your evidence, that  you asked him why he had a food licence?  I'm not sure how the licence came into the  conversation.  I think I expressed surprise that he  had a licence.  Yes.  But didn't you put the question to him in one  form or another why have you got it?  I don't recall asking that question.  All right.  I don't recall what I said in chief.  If I expressed  it as a question, what I was trying to say was that it  was a surprise to me that he had a licence, because I  knew that he had been quite vocal about chiefs not  needing permission to fish on their fishing sites.  Well, Mr. Morrell, didn't you tell His Lordship that  Mr. Hyzims said "Oh, well, a Fisheries' man drove up  to my house and said here".  Do you recall saying  that?  Words to that effect, yes.  And wasn't that in response to a question that you put  to him, "Why have you got a licence?"  I don't recall the words that I used with him.  All right.  I am going to show you a couple of books  of Fishery permits.  My Lord, if my friend is -- it appears we have the  ongoing dilemna of these documents, My Lord.  :  In volume two -- I should say to Your Lordship that 14122  1 the way these are made up, is that in the front of  2 each volume Your Lordship will find a copy of the  3 Notice to Admit that I addressed the court on on March  4 the 23rd.  Not March the 23rd — yes, March the 23rd I  5 guess it was.  Under the -- each tab are the permits  6 referred to in each of the paragraphs of Notice to  7 Admit.  Your Lordship will find under paragraph one of  8 the Notice to Admit that each of the persons named in  9 items 5095 to 5118 was on or about a certain date  10 issued a licence.  Now, if Your Lordship has the  11 document book that I handed up at the time of the  12 submissions.  13 THE COURT:  Yes.  14 MR. GOLDIE:  Your Lordship will find under tab 4 the pages from  15 the eighth supplementary list of documents of Attorney  16 General of Canada, and that provides the names of the  17 people.  18 The numbers in the case of the very first one,  19 5095, that number is the first document under tab one  20 of volume one.  I am going to ask the witness to turn  21 to volume one, item 5101.  Just pausing there.  22 MR. GRANT:  Which one?  23 MR. GOLDIE:  Volume one, tab one, item 5101.  This is a copy of  24 an Indian food licence issued to Mr. Ernest Hyzims.  25 Q   Are you familiar with Mr. Hyzims' handwriting?  2 6 A   No.  27 Q   I would have been surprised if you had said yes.  Are  28 you familiar with the form of the licence?  29 A   I have seen these, yes.  30 Q   Yes.  You understand that the -- the recipient has to  31 sign it?  32 A   I see that place on the licence, yes.  33 Q   You were familiar with that fact before, were you not?  34 A   I have seen these licences, and I know that there is a  35 place for the signature on it.  36 Q   And this provides that Mr. Hyzims may fish for fish to  37 be used as food for himself and his family in the  38 waters of the Skeena River upstream from the  39 confluence of Andimal Creek and the Skeena River  40 using one set net only.  Four salmon from May 20th,  41 '83 to July 3rd, '83, Friday, Saturday and Sunday only  42 of each week.  The licence expiring July 3rd, 1983.  43 1983 was after this discussion that you had with Mr.  44 Hyzims about the Fisheries Officer calling at his home  45 and providing him with his licence?  46 A   I believe that the -- first of all, if I can refer  47 back, my initial reference to the conversation was I 14123  1 was not certain that it was with Mr. Hyzims.  It  2 was -- I was taking a guess that it was Mr. Hyzims  3 that I was speaking to in my memory.  That would have  4 been before this date.  It would have been during the  5 fish management study, yes.  6 Q   Would you agree with me that if it was — would you  7 accept that Mr. Hyzims was in possession of the  8 original of this licence in -- for the season in 1983?  9 MR. GRANT:  I object, My Lord.  How can he know that.  And Mr.  10 Hyzims -- I may point out, My Lord, Mr. Hyzims was a  11 witness that was cross-examined last November or  12 December in that series by Mr. Mackenzie or Ms.  13 Sigurdson, if I recall correctly.  How can this  14 witness know if Mr. Hyzims held this licence in 1983?  15 THE COURT:  He wasn't asked that.  He was asked, what I take to  16 be a hypothetical.  17 MR. GOLDIE:  I said would you accept.  18 THE COURT  19 MR. GRANT  2 0 THE COURT  Would you accept.  Well, what --  Well, that depends -- so what -- I suppose the  21 answer to that question is -- can only be found in the  22 next question.  If he accepts that, then something  23 else may flow from it, something else may not.  24 MR. GRANT:  It doesn't prove anything about whether or not Mr.  25 Hyzims --  26 THE COURT:  It proves something about it, but it may not be --  27 it will be some evidence.  I take it Mr. Hyzims wasn't  28 asked about this?  29 MR. GRANT:  As I recall, he wasn't.  But I may be in error  30 there, because I presume that if he was, we wouldn't  31 be going through this.  32 MR. MACAULAY:  I cross-examined Mr. Hyzims, My Lord.  I did not  33 ask him about a food fishing licence, and I didn't see  34 any reason to, because it's not relevant from our  35 perspective.  36 MR. GOLDIE: I am dealing with an express piece of evidence given  37 in the witness's examination in chief.  38 THE COURT:  Yes.  That's right.  39 MR. MACAULAY: I don't suggest that the cross-examination is not  40 relevant.  That at the time --  41 THE COURT:  Of your examination.  42 MR. MACAULAY:  -- of my examination did not appear to be  43 relevant.  44 THE COURT:  Go ahead, Mr. Goldie.  45 MR. GOLDIE:  46 Q   Do you accept that Mr. Hyzims was in possession of the  47 original of the licence, the copy of which is found 1  2  A  3  4  5  6  Q  7  A  8  9  10  11  12  Q  13  A  14  Q  15  16  17  18  19  A  20  Q  21  A  14124  at -- in this document as number 5101?  I imagine that when the licence was issued Mr. Hyzims  was given the original of it.  I understand that  that's the procedure.  I have no idea what he did with  it.  You accept that it got into his possession?  I imagine so.  These licences are issued by Fisheries  officers, I understand.  I don't recognize the  signature, but I presume that the person issuing the  licence would give the original or the copy that the  fisherman is meant to receive to the fisherman.  And that he signed for?  So it appears, yes.  And would you accept the same proposition with respect  to 5109?  Let me put it this way.  Would your answer,  with qualifications that you have attached to it with  respect to the document of 5101, apply to the document  of 5109?  I would rather just answer directly 5101.  Yes.  All right.  I can't make out the signature here, but it --  22 THE COURT:  Well, the name on the top —  23 THE WITNESS:  I am willing to accept that this licence was  24 issued to Ernest Hyzims.  25 MR. GOLDIE:   All right.  And then I am going to refer you to  26 the next volume, which is under tab 5, and ask you to  27 turn to 7836.  2 8 THE COURT:  7 836.  29 MR. GOLDIE:  By the way, the document at 5109 is for the 1980  30 season, July 4th, 1980 and until further notice, seven  31 days per week.  32 THE COURT:  7 8 —  33 MR. GOLDIE:  7836, My Lord.  It's towards the end of the tab 5.  34 This may be a duplicate, My Lord, of 5101.  35 MR. GRANT:  It appears to be that.  36 MR. GOLDIE:  Yes.  37 Q   Assuming that to be so, I next want to show you a  38 further document, which is not in the book.  The  39 signature here is a little clearer.  It appears to be  40 the same as the ones we have been looking at.  Do you  41 agree with that?  42 A   Yes.  43 Q   And this is for the — for 1986?  44 A   Yes.  I see the date.  45 Q   July 11th, 1986 to October 31st, 1986, seven days per  46 week, Ernest Hyzims.  47 A   I believe it's July 11th. 1  Q  2  3  A  4  5  6  7  8  Q  9  A  10  11  12  Q  13  14  15  16  17  A  18  19  20  21  22  Q  23  24  25  A  26  Q  27  A  28  Q  29  30  31  A  32  Q  33  34  35  36  37  38  39  40  41  42  A  43  Q  44  45  46  47  14125  Thank you.  Yes.  You testified, I believe, that these  licences gave people permission to fish anywhere?  I recall in describing that conversation with  someone -- and my recollection was that it was Ernie  Hyzims -- that the licence allowed him to fish seven  days a week wherever he wanted.  Words to that effect.  I may have said anywhere.  And then when you were asked --  The point was that the area that he fished was rather  wide relative to his -- the fishing grounds that he  owned in the Gitksan system.  Then when you were asked to describe the impact of  regulation, you said it set up conflicts as between  the authority of the chiefs and the permission that  was given by the Department of Fisheries and Oceans to  fish anywhere, or very broadly speaking?  There can be conflicts, yes.  At other times -- and I  believe I mentioned this in my evidence -- at other  times the conditions attached to the licence do not  prevent the person from doing anything that he or she  would otherwise do.  Well, at any rate, it would appear that Mr. Hyzims had  at least two licences and maybe three -- three -- the  four appear to be a duplicate of the first?  That those licences were issued to him?  Yes.  Yes.  Now, you spoke also of Mr. Lloyd Muldoe.  He too had  at one time a fishing licence, did he not?  Or perhaps  you are unaware of that.  I don't know of that.  Would you look please at volume two under tab 5, item  7526.  This appears to be a copy of a licence issued  to Mr. Lloyd Muldoe of Kispiox, referring to the  waters of the Skeena River upstream from the  confluence of Andimal Creek and the Skeena River, one  set net.  This is June the 9th, 1979 to July 1st,  1979, Saturday and Sunday of each week.  I also note  that the band number, that would have to be supplied,  would it not, by the -- by Mr. Muldoe, as well as  signing the licence?  I don't know that part of the procedure.  All right.  And would you look also, please, at 7692  under the same tab.  Now, this is a little different  form, but for the year 1981, and the signature is  almost illegible in the lower left-hand corner, but  assuming it to be that of Mr. Lloyd Muldoe, it grants 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  THE  14126  him permission to catch salmon to be used as food for  himself and his families in the waters of the Skeena  River upstream from the confluence of Legate Creek and  the Skeena River by means of salmon gill-net and  salmon set net, and then there is printed the fishing  times, the date and number of days and the time the  licence expires.  Are you familiar with that form?  A   In a general way I can recognize it as an Indian food  fishing licence issued by the Department of Fisheries  and Oceans.  I don't know that I have seen this exact  form before.  Q   All right.  COURT:  Mr. Goldie, I notice we have been going for over an  hour now, and it's a little weary to be sitting too  long at this time of the week.  Is there any  reasonable prospect we can finish this afternoon?  GOLDIE:  I think so.  COURT:  How long will you be in reply, Mr. Grant -- on  re-examination, rather?  GRANT:  I am hoping to be short.  COURT:  Well, Madam Reporter is working much harder than we  are, so I think we'll give her 10 minutes.  (PROCEEDINGS ADJOURNED)  (PROCEEDINGS RECONVENED)  THE  THE  MR.  Order in Court.  Goldie.  REGISTRAR:  COURT:  Mr.  GOLDIE:  Q   Mr. Morrell, the DFO catch information and yours do  not agree, of course, but there is a correlation, is  there not?  A   That's right.  That's the data.  The comparison is  made in the -- in one of the tables of the FMS report  in chapter three.  Q   Right.  And would you agree with me that the DFO would  not gather catch statistics at a time when the native  food fishery was not open according to DFO regulation?  A   No, I don't know that.  It's during closed times when  they are on the river in their river boats seizing  nets, and it's at -- that's one of the times when they  lift nets, and they do keep a record of what's in the  nets that they take.  Q   But generally speaking the catch information would be  obtained when it was likely that the most boats were  on the river, the most nets set, and that would be  during the times authorized by DFO? 1  A  2  Q  3  4  5  6  7  8  A  9  10  11  Q  12  13  14  15  A  16  Q  17  A  18  19  20  21  22  Q  23  24  25  26  27  A  28  Q  29  30  A  31  Q  32  33  A  34  Q  35  36  A  37  38  39  Q  40  A  41  42  43  44  Q  45  46  47  14127  I don't know what their strategy is --  Well, as a matter of common sense, if they are seizing  nets, that's not the best way of sampling the --  getting catch data, is it?  So the optimum time to  obtain catch information is during a time when it's  likely the most people were on the river, or the  greatest amount of fishing was being done?  In data collection it's important to collect data at  times when little is happening as well as when lots is  happening, if you want to -- a record of the catch.  Would it not be just as a matter of common sense from  Fisheries' management practice for the manager to  gather information when the river is being fished,  just as a simple proposition?  If you are looking for catch information.  Well, that's what we are talking about.  Well, there is effort too.  That's why I make the  distinction.  If you are looking for catch  information, you can only collect catch information  when there is fishing going on, yes.  That's obvious.  I agree with you, that's obvious.  All right.  And there is a correlation between your  information and the information of the department,  would it not suggest to you as a fisheries scientist  that the bulk of the native fishery is carried on in  conformity with the DFO regulation?  No.  Are you answering as an advocate, or are you answering  as a fishery scientist?  I am answering as myself, a fishery scientist.  In what capacity, as an advocate or as a fishery  scientist?  I am answering as a fishery scientist.  Tell me, please, in a scientific way the reason for  your answer.  The correlation, which we haven't discussed in any  detail yet, it is discussed in chapter three of the  FMS report.  I am aware of that.  Does not indicate to me that the Indian fishery is  conducted according to the regulations laid down by  the Department of Fisheries and Oceans.  I don't see a  connection between the two.  All right.  I haven't counted the number of licences  in these two documents, but Mr. Rush told His Lordship  the other day that there are about 1,885 items.  That  would be a significant number for the people who do 1  2  3  A  4  Q  5  6  A  7  8  9  10  11  Q  12  13  A  14  15  Q  16  A  17  Q  18  19  A  20  21  22  23  24  Q  25  A  26  Q  27  A  28  29  30  Q  31  A  32  33  34  35  36  37  38  39  40  41  42  43  44  Q  45  46  A  47  14128  the fishing on the Gitksan-Wet'suwet'en fishery, would  it not?  1,885 licences would be a significant number?  Yes.  Would represent a significant number of the  people who fish on behalf of the Gitksan-Wet'suwet'en.  It would depend on what time period you are talking  about and what areas you are talking about.  I note  that a number of the licences in this volume -- I  flipped through it -- are -- do not cover the area  that I refer to as the Indian fishery.  Have you made a Census of the fishermen on the -- of  the people who actually fish?  It would be possible to extract such information from  the data that we have collected, yes.  But you haven't done so?  Not in a formal way, no.  So you don't know whether it's six hundred or a  thousand or fifteen hundred people who fish?  I could make an estimate off the top of my head, or I  could go to the data and count the number of people  that have been recorded in the course of the fish  management study and other fishery monitoring as  fishing in the area.  And what is your estimate?  For the Gitksan and Wet'suwet'en area?  Yes.  The number of different people who have fished during  the years that I have been on the river, say 1979 to  '82 plus 1985?  Yes.  I would estimate that we have recorded about 230  different gill-net sites, and there may be an average  of three or four people involved at each site.  That  puts us in the neighborhood of a thousand people.  At  Moricetown Canyon in a given year there might be 150  different individuals participating in the fishery as  an estimate, and those individuals would not all be  the same from one year to the next.  So 250 or 300  people over the years that I have been involved would  seem reasonable to me.  So 1,300 seems to me a  ballpark estimate of the numbers of people who have  fished in the five years that I have been collecting  data.  The -- Pete Muldoe was an informant of yours, was he  not?  I haven't interviewed him directly.  I have read  interviews of Pete Muldoe conducted by other people. 14129  I have spoken to him.  Stanley Williams?  Again I haven't formally interviewed him myself.  I  have spoken to him on many occasions.  Norman Weget?  I know him slightly.  Robert Jackson?  I know Robert Jackson senior and Robert Jackson  junior.  William Blackwater?  Is the question is he one of my informants, or do I  know him?  Are you familiar with the name, and if so, in what  capacity?  Bill Blackwater was the president of the Tribal  Council when I was first hired.  Stanley Wilson?  Stanley Wilson is a chief from Kispiox.  Geoffrey Morgan?  Geoffrey Morgan is a chief from Gitwangak.  Richard Benson?  Richard Benson is an elder now deceased from  Kitwancool and Glen Vowell.  And he was an informant of yours?  I have interviewed him.  James Morrison?  :  Is the question was James Morrison an informant, or  2 8 did he know him?  29 THE WITNESS:  I know James Morrison.  30 MR. GOLDIE:  You testified that he drove you to Kisgagas?  I have been to Kisgagas with James Morrison.  I have  stayed at his cabin there.  And he is an informant?  I have certainly talked to him about fishing.  I don't  believe I have formally interviewed him, and I am not  sure whether he was interviewed in the fish management  or the land claims' interviews.  David Green?  David Green, I have spent a lot of time with David  Green.  Henry Alfred?  I know who Henry Alfred is.  I don't know him well.  He is from Moricetown.  It wouldn't surprise you to know that all of those  people have been in possession of Indian food  licences, would it?  1  2  Q  3  A  4  5  Q  6  A  7  Q  8  A  9  10  Q  11  A  12  13  Q  14  15  A  16  17  Q  18  A  19  Q  20  A  21  Q  22  A  23  24  Q  25  A  26  Q  2 7 MR.  GRANT  31  Q  32  A  33  34  Q  35  A  36  37  38  39  Q  40  A  41  42  Q  43  A  44  45  Q  46  47 1  A  2  3  4  Q  5  6  A  7  Q  8  9  10  A  11  Q  12  13  A  14  Q  15  16  17  A  18  Q  19  A  20  Q  21  A  22  23  Q  24  25  A  26  Q  27  28  29  A  30  Q  31  32  33 THE  COURT  34 MR.  GOLDI  35  36  37  Q  38  39  A  40  Q  41  42  43  44  45  46  47  14130  No, it wouldn't surprise me.  I don't know that they  have been -- I note that a number of them are coastal  commercial fishermen and --  I am not talking about coastal commercial fishermen.  Some of documents in there --  Yes.  -- are for the native food fishery at the coast.  I an  now talking about the fishery that you are talking  about.  Fine.  All right.  Of course some of these people hold  licences in both places, don't they?  I am not certain of that.  It's possible.  You made reference to Walter Wilson.  Do you recall  that?  I believe you described the first salmon  ceremony that you participated with him?  Yes.  And he's a high chief?  Yes.  And one of your informants?  I have talked to him a lot on the river.  I am not  sure if he was interviewed.  And he was in 1986 the holder of a licence, was he  not?  I don't know that.  Well, let me -- you are aware that he gave evidence  here.  When I say here, I mean in these proceedings,  or are you?  I am not aware of that.  I am not surprised.  I want to refer to Mr. Wilson's evidence on  commission -- not commission, My Lord,  cross-examination on an affidavit.  :  Who is this?  3:  Mr. Walter Wilson senior.  And he was examined in  Smithers on August the 31st, 1988.  And I am going to  refer to page 25.  You say you have talked to Mr. Wilson a number of  times?  Yes, I have.  The first reference I want to -- is at page 25 of the  transcript, lines 27 to 37:  "Q   You obtained a food fishing permit to  conduct that fishing down at the coast?'  You knew that Mr. Wilson was one of those who  fished commercially at the coast? 1  A  2  3  4  Q  5  6  A  7  Q  8  9  10  11  12  13  14  15  16  A  17  18  19  Q  20  21  A  22  Q  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  A  39  40  Q  41  42  43  A  44  Q  45  46  47  14131  I did not know that.  That's news to me.  He did not  do that in -- to my knowledge in the time that I was  living in Hazelton.  Well, he also fished -- he had a food fishing licence  at the coast, did he not?  I don't know that.  Well, perhaps I can show you one.  This document is  1986, July 3rd, '86 to November or July, and I can't  quite make it out, '86, and it is a licence to fish  for food only in area 4, except 410, 411, by gill-net,  salmon household use only.  And the vessel's name is  Gitksan Prince.  And it's issued at Prince Rupert, and  then there is the signature of Mr. Walter Wilson.  I  don't suppose you're familiar with Mr. Wilson's  signature?  I don't think I have seen it. The Walter Wilson that  I am talking about is Walter Wilson senior. There is  a Walter Wilson junior as well.  Yes.  Well, I am reading from the examination of Mr.  Walter Wilson senior.  Okay.  And Mr. Walter Wilson says, and I quote at line 29:  "A  When I go down for food fishing I ask  for -- I apply for a permit.  Q   And -- but it's your position or your  belief that there is no requirement for  you to get a permit up here in the  Skeena?  A   No.  Q   You do, though, abide by the regulations  with respect to opening and closing of  the Fisheries on the Skeena?  A   That's right."  Now, those regulations are those of the Department  of Fisheries, are they not?  I assume from that context that that's what's being  talked about.  I might be wrong.  All right.  Well, let's go on.  In any event, opening  and closing of the Fisheries on the Skeena is  regulation?  Yes.  And at page 68, line 47, to page 69, line 8, Mr. Grant  in re-examination said this:  "Q   Now, this morning you were asked about 14132  1 whether you abide by the opening times  2 and closing times of the Fisheries on  3 the Skeena, and you said that you did,  4 that is when Fisheries sets a closing on  5 the Skeena that you abide by it.  Why?  6 Why do you comply with that?"  7  8 Now, if I may just pause.  When Mr. Grant says:  9 "That is when Fisheries sets a closing on the Skeena",  10 you understand he is referring to the Department of  11 Fisheries and Oceans, would you not?  12 A   Yes.  13 Q   Yes.  14  15 "Q   Well, I respect the what you call it --  16 I think all high chiefs are like that.  17 But we don't agree with the permits.  18 Q   Okay.  You say -- what do you respect?  19 You say you respected.  20 A  Well, to -- how do you say when you are  21 trying to control the fish runs and all  22 of that?  23 Q   Conservation?  24 A   Conservation, yes."  25  26 MR. GRANT:  That's part of an answer.  27 MR. GOLDIE:  28 Q   Yes, he goes on considerably further.  And I am going  2 9 to come to that.  So you would agree with me that Mr.  30 Wilson states on behalf of himself and all the high  31 chiefs that they agree with the closure on the Skeena?  32 MR. GRANT:  My Lord, I object.  I object to that question,  33 because the answer speaks for itself.  It's in the  34 context of the cross-examination of Mr. Wilson.  The  35 context --  36 MR. GOLDIE:  I am sorry, this is re-examination.  37 MR. GRANT:  The context of the re-examination of Mr. Wilson.  38 The witness doesn't -- the context of what Mr. Wilson  39 meant is something that Mr. Wilson could answer, and  40 as my friend has already indicated, he goes on for  41 quite some length about what he is talking about.  And  42 I object.  I think the question is unfair.  The  43 witness has no idea what else Mr. Wilson says --  44 THE COURT:  Well, I take it you are putting a factual situation  45 before the witness, and then you are going to ask him  46 something about it, are you?  47 MR. GOLDIE:  Well, I have put before him the proposition that 14133  1 Mr. Wilson in his evidence states that he abides by  2 the closure, and the reason he does it is  3 conservation.  And he says:  4  5 "High chiefs, even before the olden days  6 they are all like that."  7  8 Now, I just want to pause there.  And I'll ask the  9 witness, isn't -- isn't it a fact that the chiefs  10 abided by the closures of the Department of Fisheries  11 and Oceans?  12 A   Certainly not -- it's certainly not a fact that they  13 abided by the closures across the board, no.  14 Q   All right.  So some of them didn't do what Mr. Wilson  15 said they did?  That's your evidence?  16 A   That's my observation, yes.  17 Q   All right.  Now, the -- I am suggesting to you that  18 the only regulation of the Fisheries that existed in  19 October of 1984 was the regulation that Mr. Wilson  20 describes, namely, permits with which he didn't agree  21 and closures with which he didn't agree.  22 A   You are asking if I agree with that?  23 Q   Yes.  24 A   No, I don't agree that that's the only regulation of  25 the Fishery that existed at that time.  26 Q   All right.  Now, page 69, line 25, which is part of  27 the answer that my friend is concerned about.  This is  28 Mr. Wilson continuing:  29  30 "A   Nowadays what Fishery is doing is they  31 issuing out permits.  And they don't  32 call the high chiefs to ask them who  33 shall we give a permit.  They just hand  34 it out.  And young outsiders, these  35 people go in and catch these fish.  And  36 they are red like these chairs here, the  37 first run.  We don't use that, becuase  38 they are going up to spawn.  That's why  39 they change colours.  And they have a  40 different skin on them.  They are thick.  41 So they don't get hurt or damaged on the  42 way up to Bear Lake or Babine.  But  43 nowadays everybody is catching fish left  44 and right, and they don't know about  45 these things.  Even the Fisheries don't  4 6 know about them.  And that's why high  47 chiefs against the permit, issuing 14134  1 permit out for fishing for food in our  2 areas, because the young people abused  3 it, Indians and non-Indians, they are  4 really abusing it now.  And we trying to  5 talk to the Fisheries.  We want control.  6 The high chiefs want control again.  7  8 Now, the high chiefs don't have control at this  9 time, do they?  10 A   In my view they have control of many important aspects  11 of the Fishery.  12 Q   So you differ from Mr. Wilson in that regard?  13 A   I differ from your interpretation of what Mr. Wilson  14 said.  15 Q   I am not interpreting Mr. Wilson, I am simply saying  16 to you what he said in his re-examination.  He said,  17 "We want control."  Now, you agree with that, do you  18 not?  19 A   You read it to me.  I assume it must be in the  20 transcript.  21 Q   Well, yes indeed I do want you to assume that, because  22 a Court Reporter has sworn that this is a faithful and  23 true rendering of what was said.  And when he says:  24  25 "And we are trying to talk to the Fisheries.  26 We want control.  The high chiefs want  27 control again."  28  29 He is there referring to the ongoing discussions  30 with the Department of Fisheries and Oceans with  31 respect to co-management and the bylaws which Mr.  32 Sterritt was describing.  Isn't that your  33 understanding?  34 A   I don't know exactly what he is referring to.  He is  35 referring -- if you -- there is a whole bunch of stuff  36 on the table here.  Can we take it point by point?  37 Q   Well, first you have told me you don't know what he is  38 referring to.  Isn't that what you just told me?  39 A   I don't know what you are referring to, which section.  40 Q   I thought in answer to my question you said you don't  41 know what he is referring to, when I suggested to you  42 that he is referring to the attempts to achieve  43 co-management and the passage of bylaws.  44 A   Yes.  I don't know what he is referring to.  45 Q   If you don't know, that's --  46 MR. GRANT:  For the record, My Lord, that answer of the witness,  47 as my friend says, goes on for some pages. 14135  1 Unfortunately I don't have my transcript here, which  2 makes it a little more difficult.  But my friend  3 stopped at line 15 of page 69, then he said he would  4 go on.  And he started -- the answer continues on, and  5 he started at line 25.  He excluded 9 lines of the  6 answer of the witness, which puts the context of what  7 he has just put to Mr. Morrell -- puts it in a context  8 as part of a larger answer, which is relevant I would  9 say.  10 MR. GOLDIE:  I'll read it.  11 THE COURT:  Thank you.  12 MR. GOLDIE:  I am beginning at line 14 — well, I'll go back to  13 the answer:  14  15 "A Well, to -- how do you say when you are  16 trying to control the fish runs and all  17 of that?  18 Q   Conservation?  19 A   Conservation, yes.  And high chiefs,  20 even before in the olden days they are  21 all like that.  When a certain run  22 comes, then they put their traps out.  23 Like the first run of sockeye no one --  24 very few that put out their traps,  25 because that's a run that goes up Bear  26 Lake through Babine, and we call it  27 Hoonim Gitgwoyim, we call that  2 8 run —"  29  30 THE COURT:  I'm sorry, Mr. Goldie.  Madam Reporter —  31 MR. GOLDIE:  H double o-n-i-m G-i-t-g-w-o-y-i-m.  32  33 "A We call that run -- those schools of  34 fish that went up the very first run.  35 And none of the high chiefs put out  36 their traps when that run coming  37 through.  If they do, they only leave it  38 in for maybe a few minutes, just to get  39 enough food for today or for tomorrow."  40  41 And then begins the part that I put to the  42 witness.  And I deleted the first part, because it  43 refers to matters which are not contemporary.  But  44 then Mr. Wilson goes on to talk about:  45  46 "Nowadays, what Fishery is doing is they  47 issuing out permits." 14136  1  2 And then he goes onto that.  And I will continue  3 at line 43.  After he says "We want control.  The high  4 chiefs want control again."  5  6 "We select -- when high chiefs look afer  7 the fishing grounds, we select the  8 person to go out and catch fish for his  9 family.  That's out of my House.  And  10 you have to come to me and ask me, can I  11 go fish for food, and high chief says  12 yes, and he'll show you."  13  14 THE COURT:  Mr. Goldie, I am sure Madam Reporter can't take it  15 down at that speed.  16 MR. GOLDIE:  Well, I am going to — I'll give her the  17 transcript.  18 THE COURT:  She'll be very grateful.  19 MR. GRANT:  I am concerned with the witness following at that  20 speed.  21 MR. GOLDIE:  Then lines 1 to 42 on the next page.  I am going to  22 read all of this:  23  24 "We have lots of fishing holes.  Like my  25 House, Ax Dii Ts'eex House ...",  26  27 That's A-x D double i, capital T-s apostrophe double  28 e-x.  29 We have around maybe 50 places where we  30 could fish, and there is certain times a  31 year where he could use certian holes.  32 You don't use it year round or two  33 months at a time, because river goes up  34 and down, and when there is a certain  35 run comes, like the pink salmon, there  36 is a certain place where you could go so  37 you wouldn't catch these fish, because  38 we don't use them.  But since the  39 Fishery started giving out permits,  40 licences, people go out and set a net.  41 They catch all these pink salmon and  42 they don't use them, they just left on  43 shore, rot, and that's not right.  High  44 chief say it's not right what they are  45 doing."  46  47 Now if I may pause there.  Do you agree with that? 14137  1 A   I believe that Walter Wilson said that.  I don't agree  2 that that's an accurate description of the Fishery as  3 a whole.  That's his view.  4 Q   Then he continues:  5  6 "What can we do when Fisheries do that,  7 issuing out permits to everyone.  As  8 long as you have dark skin and you ask  9 for a permit, they will write it out.  10 They won't even ask you where you come  11 from or what House you belong to.  12 That's what the high chiefs don't want.  13  14 And the Fisheries -- we have, I don't  15 know how many meetings with them, and I  16 stood up every time and I told them, I  17 said do away with those permits, give  18 the control back to the high chiefs,  19 then you'll see the difference again, or  20 if fish in stock are depleting really  21 bad on account of that, and they don't  22 want to listen.  And like I say, I am  23 still against the permits, and I  24 explained to a lot of people on the  25 Fisheries side what's happening.  26  27 That's why we want our bylaws to be in  28 power before we -- before it's too late.  29 All the fish stock is going to go.  Not  30 too far down the line, if we don't  31 smarten up, the Fisheries smarten up,  32 then we'll do something.  We can't  33 control it now, because high chief ask a  34 certain person, 'What you doing in my  35 fishing hole?  You have no rights  36 there', and this person pulls out his  37 wallet and give me a permit.  'Fishery  38 give me a permit to fish any place on  39 the river.'  High chief got nothing to  40 say.  All he has to say is stay out of  41 my fishing hole, but this person goes  42 down 10 feet away from that hole, he  43 sets his net.  And that's what we don't  44 like."  45  46 Now, would you agree that in Mr. Wilson's view the  47 high chiefs do not have control of the Fishery? 14138  1 A   It certainly expresses the conflict between the  2 Fisheries' regulations and the high chiefs'  3 regulations, and that he feels that the Fisheries'  4 regime impedes the high chiefs.  5 Q   In his view the Fisheries' regime is the dominant  6 regime?  7 A   I don't believe that that's his view, from my  8 knowledge of Walter Wilson.  I think that that  9 transcript possibly can be read that way -- can be  10 interpreted that way.  11 Q   Well, isn't that what he said, Mr. --  12 A   You read me a long passage.  He says a lot of things.  13 THE COURT:  Isn't it really my job to determine what he means?  14 MR. GOLDIE:  All right.  I will leave it at that.  I just got  15 one further question.  16 Q   But it is through the bylaws that the high chiefs are  17 seeking to regain control; isn't that correct?  18 MR. GRANT:  Of the Fishery?  19 MR. GOLDIE:  Yes.  20 A   In my understanding the bylaws -- the intent of the  21 bylaw was that that would be a vehicle for achieving  22 recognition of the chiefs' authority in the non-Indian  23 system of law.  And in that sense it's a way of  24 strengthening the chiefs' position with respect to the  25 laws of Canada.  26 Q   Yes.  And it would also remedy the situation that Mr.  27 Wilson was complaining about, namely, people using  28 permits to fish in what he considers to be a broadcast  2 9 way?  30 A   I suppose it might or might not.  The situation that  31 Mr. Wilson describes does not fit my observations of  32 the Fishery.  33 MR. GOLDIE:   All right.  My Lord, I want to exhibit for  34 identification -- firstly, I suggest it be given a  35 number, and then A, B, C and D.  What would be the  36 next number, Madam Registrar?  37 THE REGISTRAR:  Next number is 984.  38 MR. GOLDIE:  I would like to tender for identification 984A, the  39 book of documents relating to the motion that was  40 made.  It consists of the Notice to Admit,  41 correspondence, and the names of the item -- of the  42 people referred to in the Notice to Admit.  And then I  43 would tender as 984B, volume I of the licences to  44 which reference has been made containing tabs one to  45 four.  C would be volume II.  D, My Lord, would be the  46 licence issued to Mr. Hyzims in 1986, and E would be  47 the licence issued to Mr. Wilson in 1986.  The last 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  14139  one, of course, being for the food fishery on the  coast.  THE COURT:  All right.  Just a moment please.  MR. GRANT:  In light of the fact that Mr. Rush raised certain  concerns, just in terms of the description of 984D and  E, these are the -- respectively the documents  entitled Indian food fishing licence with the name  Ernest Hyzims and with the name Walter Wilson.  I  don't think that its been proof that its been issued  to them, except that their names are on them.  THE COURT:  All right.  Those are marked as described for  identification.  (EXHIBIT 984A -I.D. BLACK BOOK ATTORNEY  GENERAL CANADA NOTICE TO ADMIT JULY 2 6,  1988)  I.D. VOLUME I - FISHING  (EXHIBIT 984B -  PERMITS TABBED)  (EXHIBIT 984C -  TABBED)  (EXHIBIT 984D -  ERNEST HYZIMS)  (EXHIBIT 984E -  WALTER WILSON)  VOLUME II  FISHING PERMITS  FOOD FISH LICENCE # 3235 -  FOOD FISH LICENCE # 32463  MR. GOLDIE:  Q   Mr. Morrell, you discussed with Mr. Macaulay the  distinction in the Gitksan of the people with  authority and the people without authority.  Do you  recall that?  A   That was apropos of the 1982 submission to Department  of Fisheries and Oceans.  Q   That's correct.  A   Yes.  Q   Mr. Walter Wilson senior would be one that you would  classify as a high chief or one with authority?  A   He's a Simoogit, a high chief.  Q   Yes.  And you told of an incident involving a Angus  Travers.  Do you recall that?  A   Yes.  Q   To your knowledge does she hold a food fishing permit?  A   I don't know one way or the other.  To my knowledge  she does not.  Q   All right.  My Lord, I am just going to give a  reference in the -- it's volume two, tab 5, number  7582.  You referred to George Wesley and how he fished  at a distance from Glen Vowell.  To your knowledge 1  2  A  3  Q  4  5  6  7  A  8  9  Q  10  11  12  13  14  15  16  A  17  Q  18  A  19  20  Q  21  22  A  23  Q  24  A  25  Q  26  27  28  29  A  30  Q  31  A  32  33  34  35  36  Q  37  38  39  40  41  42  43  A  44  45  46  47  14140  does he hold a food fishing licence?  I don't know for sure one way or the other.  The reference there, My Lord, is volume two, tab 5,  number 7697.  You referred to David Green.  To your  knowledge does -- did he hold -- does he hold a food  fishing licence?  It seems to me that I have seen a food fishing licence  in David's possession in his name.  Yes.  The reference there, My Lord, is volume one, tab  two, number 5643.  We have referred briefly to the  commercial fishery at the coast, and I suggest to you  there has been a commercial fishery at the coast long  preceding 1877.  For a number of years coast Indians  have fished for sale at Hudson Bay forts, traders and  things of the like; do you agree with that?  It doesn't surprise me.  1877 is merely the advent of canneries?  The industrial fishery is one of the terms I used for  that.  But prior to that there was a large population of  people at the coast who fished, native peoples?  Tsimshian people and the Nisga people.  And the Haida?  The Haida on the Charlottes.  Yes.  Now, as I understood it, you implied that it was  this industry, namely the industry which you  characterize as the reduction in the spawning of  sockeye -- the sockeye run in the Bulkley system.  I believe I qualified that when I said it.  What was your qualification as you now recall it?  I believe it was something to the effect that I'm not  saying that there is necessarily a direct link between  the fishery and the decline.  I would rather not try  to recall what I said.  I would rather say what I  think.  I am going to suggest to you that if the percentage of  escapement that you and Mr. Macaulay discussed, namely  60 percent, as set out in your report, and possibly 70  percent of the Bulkley sockeye spawners, if those are  the percentages of the escapement taken at Moricetown,  it certainly would contribute to the trouble the  system is in, would it not, if it is in trouble?  I have a number of things to say about that.  The 70  percent figure I find doubtful, and I haven't seen the  data on which it's based.  The 60 percent figure I  calculated, and I believe that it's likely high,  because the escapement figures on which it's based are 14141  1 probably low, and I explained how that would happen.  2 Q   Yes.  3 A   Now, given that, if it were true --  4 Q   Yes.  5 A   Shall I continue?  6 Q   Yes, please.  7 A   If it were true that those fish were being harvested  8 at a 60 or 70 percent rate at Moricetown, in addition  9 to the harvest that they sustained in the coastal  10 fisheries, which quite likely could be of the same  11 order, in addition to the harvest that they sustain at  12 other points along their trip, then Moricetown could  13 be part of a constellation of factors which are  14 maintaining that population at its current low level.  15 Q   There is some evidence or some suggestion that that  16 kind of harvesting has gone on for a long time.  I am  17 looking at Mr. Helgeson's paper at page 209, where he  18 said under the heading Bulkley River:  19  20 "Bulkley is a beautiful stream 140 miles  21 long, et cetera, has numerous lakes and  22 was formally one of the greatest  23 propagation branches of the Skeena, but I  24 found that the farmers of the valley told  25 the truth when they said that of late years  26 the Indians were determined not to let a  27 single salmon pass them."  28  29 Allowing for some exaggeration, that would  30 indicate that there was a considerable degree of over  31 harvesting taking place at Moricetown as early as  32 1906, or would you agree with that?  33 A  Mr. Helgeson's report doesn't indicate that to me.  He  34 was not there when the Fishery was going on.  35 Q   That's quite right.  He is reporting what the farmers  36 told him?  37 A   He said that he determined that what the farmers told  38 him was true.  I don't know how he determined that.  39 Q   Yes.  Well, you found Mr. Helgeson a fairly accurate  40 reporter when it came to repeating the words of Chief  41 Atio and describing barricades and things like that,  42 didn't you?  43 A   His description of a barricade sounded like something  44 that he was observing and making notes on.  45 Q   Yes.  46 A   In his description of his conversation with Chief  47 Atio, I am willing to accept that he's giving his 14142  1 interpretation of the gist of that conversation.  When  2 he says that he was able to verify the truth of  3 statements made to him by people that he doesn't name  4 about a Fishery that he was not able to observe, I  5 have to doubt it.  6 Q   Yes.  So you feel that in some places he's an accurate  7 reporter and in other places he is not?  8 A   I think that's likely.  9 Q   Uh-huh.  Is there any basis that you can put forward  10 for that?  11 A   I mentioned that, I think, in the answer that I just  12 gave, that his detailed description of the fish weir  13 that he observed at Babine Lake, the details of it  14 sound credible to me, sound like a person describing  15 something that he has seen.  His description of the  16 canyon, the falls, the paths along the shore sound  17 like a person describing something that he has seen.  18 In the same document he says that he was able to  19 ascertain the truth of something that someone else  20 told him about how a fishery operated, under  21 circumstances when he was there at least a month after  22 that fishery would have ceased operation.  I have to  23 question the basis of his evidence of the truth of  24 what people told him.  25 Q   All right.  Thank you.  Now, Mr. Morrell, there have  26 been a number of natural causes which threaten the  27 stability of fish runs, and you have gathered  28 historical information which documents the  29 fluctuations that have occurred in the fish runs prior  30 to contact, have you not?  I am referring to one of  31 the books of material that we received on March the  32 21st.  I am referring to a volume which is headed Mike  33 Morrell documents, received at Peter Grant's -- letter  34 dated March 21st, under tab three, 104.  I am  35 referring to a number of handwritten pages.  The one  36 that I am referring to is dated May the 1st, '86,  37 "Meet Tonia re possible Wet'suwet'en historical  38 sources".  Tonia is Dr. Mills?  39 A   Yes.  4 0 Q   And this was your handwriting?  41 A   That's right.  42 Q   And two-thirds of the way down the page you have  43 "Jenness 1943 is valuable.  Carrier Indians in the B".  44 That would be Babine River?  45 A   Probably Bulkley.  46 Q   Bulkley River.  "Gitksan took all of fish going to  47 Hagwilget in retaliation for murder."  That was an 14143  1 item you noted as referred to you by Dr. Mills?  2 A   I am not sure where I got the information in the note.  3 I believe that this is a -- it's a list of historical  4 references, obviously.  5 Q   Right.  6 A   It's quite possible that the comment noted under the  7 Jenness reference that you read is my note on  8 something that Tonia Mills told me.  9 Q   I see.  And I was going to start off by referring to  10 natural causes.  Mr. Macaulay discussed with you the  11 Copper River rockslide and the Babine rockslide, and  12 of course in 1820 the Hagwilget rockslide resulted in  13 the displacement -- or the displacement of the  14 Wet'suwet'en, who moved down to get at the fish.  15 A   That's what I understand.  16 Q   Yes.  Right.  There is also in that -- under tab 16,  17 item 124 —  18 MR. GRANT:  Just for my information, are those the numbers of my  19 correspondence?  20 MR. GOLDIE:  I couldn't tell you.  21 Q   My Lord, I want to -- oh, it's tab 15, I think  22 another -- yes, under tab 15 there is a letter from  23 Lloyd Royal to a Dr. Withler dated June 10th, 1985,  24 followed by extracts from Hudson's Bay Company  25 journals and reports.  As to the latter, did you rely  26 upon those?  27 A   I read them.  2 8 Q   Yes.  And you accept them?  29 A   I accept them as Dr. Royal's notes on -- as what he  30 says they are, extracts from Hudson's Bay Company  31 journals and reports.  32 MR. GOLDIE:   All right.  My Lord, I have a number of items that  33 I want to complement Mr. Grant's selection of  34 documents that the witness used.  The arrangement that  35 was made was that when I had an opportunity to do  36 that, I would put them in a bundle and send them off  37 to Mr. Grant for whatever comment he wished to make,  38 and then I would tender them to accompany that  39 document that he tendered.  I don't intend to go  40 through all of those.  41 THE COURT:  All right.  42 MR. GRANT:  These are documents that were disclosed as part of  43 the Morrell documents that you were talking about?  44 MR. GOLDIE:  With your letter, March the 1st.  And we may want  45 to file the land claim interviews and fish management  46 interviews earlier, other than the ones that are  47 disclosed. 14144  1 Q   Now, Mr. Morrell, I just have one further question.  I  2 put it to you that the fish management study which you  3 have referred to is a -- was intended to be a  4 blueprint for the future.  5 A   I didn't intend it as a blueprint.  It's a source of  6 information to be used by the Tribal Council to whom I  7 submitted it.  The last chapter contains  8 recommendations that go to the mandate that I was  9 given at the beginning of the study, which was to  10 develop a basis for management of Indian fishery --  11 Q   It certainly isn't a reflection of the reality of  12 today, is it?  13 A   Excuse me, I stopped speaking because I was distracted  14 by your side conversation.  I would like to finish.  15 Q   You have to get used to that.  Carry on.  16 THE COURT:  The last I have got is you said the last chapter was  17 pursuant to your mandate intended to develop the basis  18 for an Indian -- I don't know if it's Indian or inland  19 fishery.  20 THE WITNESS:   A management system for the Indian fishery -- the  21 fishery in the Gitksan-Wet'suwet'en area, based on the  22 management principles of the Indian system.  23 MR. GOLDIE:  24 Q   And my question was:  That certainly wasn't a  25 reality -- it wasn't a reflection of the reality of  26 the day?  It was recommendations for the future, just  27 as you have described?  28 A   It was recommendations -- my recommendations as steps  29 that I thought Tribal Council might take in realizing  30 that objective.  31 Q   Yes.  And it was -- this report was being used as an  32 endeavour to indicate, through the references I made  33 to Mr. Sterritt's evidence, was being used as a means  34 of persuading DFO to share the regulation of the  35 river?  36 A  As a means of persuading -- that's what I am thinking  37 about.  I assume that it would be used in trying to  38 reconcile the conflict between the chiefs, the  39 fishermen, Tribal Council and the Department of  40 Fisheries and Oceans.  41 Q   And -- and by a sharing of the regulation?  42 A   In establishing a management regime that in some  43 manner avoided that conflict.  44 Q   Yes.  And that hasn't happened yet?  45 A   Not to my knowledge.  4 6 Q   All right.  Thank you.  47 MR. GRANT:  My Lord, I am ready to proceed with redirect, and 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE  MR.  COURT  GRANT  14145  will take a break as Your Lordship prefers, but I am  fairly concerned about this last comment that my  friend has made -- or not last, but the penultimate  comment, I guess, regarding these documents.  I disclosed a large number of documents by  listing.  Mr. Goldies' office requested a large  number, not all of them -- by no means all of them,  but many documents.  I am not concerned about his  comment with respect to filing further land claims FMS  interviews, because the witness has clearly said he  has referred to all of those.  I am concerned about  him saying that he will put in other documents which I  have listed, because without knowing what those are, I  am not going to be in a position to confirm that all  of those documents are relied upon by the witness.  What I say here is I am particularly concerned  about any group of documents which were all requested  by the provincial defendant relating to the  collaboration on Exhibit 358-22, some of which were  relied upon by this witness, some of which were relied  upon by Ms. Marsden.  And rather than causing any  danger of delay, I delivered everything -- whichever  one of them relied on it, so that it was done.  :  Well, did your letter indicate that the documents  you were enclosing, comprised from a pool from which  Mr. Goldie may extract some documents, were all  documents upon which the witness had relied?  :  Well, I have to go back to my correspondence, and  there's a chain of correspondence with my friends on  that.  It's the documents that I am concerned about,  are those in the 84 to 101 series of my letter of -- I  believe it's the March 21st letter, all of which my  friends requested, and included a series of files.  And as I say, I did not canvass each and every one of  those documents, so I don't want -- what I understood  your ruling was, was with respect to the land claims'  interviews, that kind of document go in --  :  You had selected out of a group, and Mr. Goldie was  reserving the right to supplement that collection, but  I don't even think those documents are in.  Aren't  they in for identification?  :  Yes, that's volume three, I believe, and they are in  for identification.  :  Well, we don't need to worry about that.  : We don't need to worry about those, and that's what  I understood your ruling -- Mr. Goldie's concern was,  and that your ruling was with respect -- 14146  1 THE COURT:  You live on Hornby Island now, do you?  2 THE WITNESS:  Close.  Denman.  3 MR. GRANT:  As long as I have the liberty, of course, of  4 responding.  And as Mr. Goldie says, he would disclose  5 the ones that he wishes to propose with respect to --  6 I don't want it to be taken that I agree sight unseen  7 to the proposition.  I do agree sight unseen the  8 proposition with respect to the FMS and land claims  9 interviews.  The witness has explained that he has --  10 THE COURT:  Just a moment, Mr. Grant.  All right.  Well, I think  11 the only thing I can do in this situation is for Mr.  12 Goldie to let you know which ones he wishes to add  13 upon reflection, and if there is a dispute, I can hear  14 you on it, and if, as a result of whatever is decided  15 at that time is necessary for you to re-examine Mr.  16 Morrell on, we'll have to arrange an opportunity for  17 you to do that.  18 MR. GRANT:  I'm sorry, My Lord.   Are we going to take a break?  19 THE COURT:  Well, Madam Reporter, acting on your assurance that  20 you are going to be very brief, will indicate if she  21 wishes to take a break.  22 MR. GRANT:  You are very persuasive, My Lord.  23 THE COURT:  Time immemorial to trial interminable.  24  25 RE-DIRECT BY MR. GRANT:  26  27 Q   You were asked by Mr. Macaulay about Kisgagas?  28 A   Yes.  29 Q   When were you last at Kisgagas?  You gave evidence  30 that you left the employ in 1987?  31 A   Yes.  I was there more than once in 1985.  32 Q   Yes.  33 A  And I don't recall going there in 1986 or 1987.  I  34 certainly was not there regularly in those years.  I  35 may have been there another time.  36 Q   When you did your study in 1985.  37 A   Yes.  38 Q   You observed a number of people fishing at Kisgagas?  39 A   I observed a number of people fishing there myself,  40 and in addition people working on the fish monitoring  41 study collected data there, and I looked at that data  42 and participated in the analysis.  43 Q   Can you comment on whether the people you observed  44 fishing there were knowledgeable about the fishing  45 sites at Kisgagas?  4 6       A   Uh-huh.  47 MR. MACAULAY:  I object to that, My Lord.  That doesn't flow 14147  1 from what he was asked in cross-examination.  2 MR. GRANT:  With respect, My Lord, I think it falls from the  3 implication of Mr. Macaulay that there was -- I dare  4 say a set-up in some ways at Kisgagas in 1985.  That's  5 all.  6 THE COURT:  Yes, all right.  I think that's all right.  7 THE WITNESS:  When I was there in —  8 THE COURT:  But isn't it just speculation?  Mr. Macaulay made  9 the suggestion to the witness, and the witness said  10 well, I don't think so.  Is there anything further  11 than that?  12 MR. GRANT   Well, if there is no weight at all to it.  13 THE COURT:  I wouldn't say there is no weight to it.  There may  14 be something else that comes along that concerns it,  15 but this witness can't add anything to that.  16 MR. GRANT:  Well, yes he can, because if he says I don't think  17 so, he may have a reason why he doesn't think so.  18 That's what I am asking.  19 THE COURT:  All right.  2 0 MR. GRANT:  21 Q   If you followed that.  22 A   I didn't.  23 Q   Mr. Macaulay asked you -- you said you didn't think  24 that there was an emphasis on the fishery at Kisgagas  25 in 1985 when you were studying there as opposed to  26 other years, when asked by Mr. Macaulay why do you not  27 think so --  28 A   Pardon me, I'm having trouble connecting it.  Its been  29 a long day.  I recall Mr. Macaulay asking me if these  30 people -- if the numbers of people that I saw there  31 weren't there because Tribal Council had somehow  32 suggested that they go up there and fish.  33 Q   Right.  34 A   I was working for Tribal Council at the time.  35 Q   Yes.  36 A  A number of people that I saw there, as far as I knew,  37 did not regularly have much connection with Tribal  38 Council, and I believe that they were going there to  39 fish because they wanted to fish.  40 Q   Did they appear to know the fishing sites and the  41 methods of fishing at the sites, those that you  42 observed I am talking about?  43 A   There were different groups of people fishing there.  44 One group of people from Hagwilget were fishing there  45 by permission, and they were clear -- by permission of  46 a Gitksan chief, I believe Robert Jackson, and they  47 were clear about where they were meant to fish.  They 1  2  3  4  5  Q  6  7  8  9  10  11  12  13  A  14  Q  15  16  17  18  A  19  20  21  22  23  24  MR.  GOLDI  25  26  MR.  GRANT  27  Q  28  A  29  30  THE  COURT  31  32  MR.  GRANT  33  THE  COURT  34  MR.  GRANT  35  Q  36  37  38  39  40  41  A  42  Q  43  44  45  46  A  47  14148  were clearly knowledgeable about the location that  they should be fishing at.  Other people I am not sure  what the basis was on which they selected their  fishing site.  You were asked about -- by Mr. Macaulay, in terms of a  hypothetical regarding -- and then he put to you the  Helgeson example of the cottonwood, and asked you  about -- was there any method for a Gitksan chief to  have any influence or control or impact if that type  of event occurred and devastated a spawning which  would ultimately affect the Gitksan.  You recall that  exchange?  Yes.  From your knowledge of the Hagwilget slide, do you  know, from your research based on the Hagwilget slide,  was there a dealing between Gitksan chiefs and others  regarding that event?  I understand that Gitksan chiefs owned fishing grounds  on both sides of the Hagwilget Canyon prior to the  slide, and that when the Wet'suwet'en people arrived  from Moricetown, presumably, that they were able to  make arrangements with the Gitksan chiefs to fish on  some of the Gitksan sites there.  E:  Could the witness state the source of his  understanding please.  Yes.  I would ask you that.  Off the top of my head I can't assign it to a  particular interview or a particular source.  :  Well, Mr. Grant, you have asked this witness about  this .  I am not pursuing this any further, My Lord.  All right.  You were asked about -- by Mr. Macaulay, I believe,  about the -- if you were knowledgeable about the  western villages or about Gitksan going to the coast  and being involved in the commercial fishery, and I  believe that you indicated that to your knowledge and  from your research that occurred from the 1880's on.  I am sure I said something to that effect.  That's my recollection or my note.  From your research  from the 1880's on, was the Gitksan fishery maintained  at the same time as people were going to the coast,  that is the inland fishery?  Yes, there are references in the interviews to people  staying at home, doing fishing, putting up fish for 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17 MR.  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32 THE  33  34  35  3 6 MR.  37 THE  3 8 MR.  39  4 0 MR.  41 MR.  42  43  44 THE  45  46  47  A  Q  A  GRANT  COURT  GRANT  COURT  GRANT  GOLDI  GRANT  COURT  14149  people who had gone to the coast, and then either  simply in some cases providing the river caught fish  to the coastal fisheries on their return, or  specifically trading the river caught fish for coastal  products brought back by the people who had travelled  to the coast.  Mr. Goldie put to you the comments of Mr. Sterritt  with respect to the fish management plan -- I'm sorry,  the fisheries management study, the FMS study as being  part of the co-management plan, and I think he  concluded his cross-examination with respect to it  being part of the future, the goal for the future.  I remember that.  And does the FMS study incorporate your scientific  data that you did on behalf of the Tribal Council?  Yes.  My Lord, my concern, and I don't think I have to  ask the witness any questions on this, but in light  of -- in light of the cross-examination by Mr. Goldie,  and Mr. Goldie putting forward the thesis of what this  document is, I submit that I -- that the document  itself in its entirety, that is the FMS 1985 report,  should go in, in terms of the -- because Mr. Sterritt  describes it in some respects, Mr. Morrell describes  it as being different, and the intent of it is obvious  from the document itself.  And I am not suggesting  that the document -- I mean, if the balance of the  document is only to go in -- what I am proposing -- to  be able to be dealt with as to what it is, as opposed  to what Mr. Goldie has proposed that it is, or  suggested to the witness that it is.  Well, I got from the witness what he said it is.  He  said it would develop the basis for Indian management  of the fishery and the territory in accordance with  Indian history and practises.  That's the last chapter.  That's all Mr. Goldie asked him about.  No.  At the very beginning Mr. Goldie asked him,  with respect, My Lord, he said --  E:  I didn't say.  Mr. Sterritt said.  :  Yes, Mr. Sterritt, Mr. Goldie, Mr. Morrell all said  something.  Let me start with what Mr. Sterritt  stated --  :  I'm sorry.  Please.  I don't think that we have to  prolong it.  I'm not going to put a document of that  magnitude in because of a question of this kind.  If  something arises of some importance, the document is 14150  1 here and we can reconsider this question, if we find  2 there is a need to do so, but at the moment I am not  3 disposed to put a document in just because it's in  4 cross-examination.  It may be that some  5 cross-examination may give some rise to some parts of  6 the documents going in, but certainly not all of it.  7 I recently gave a judgment on that in relation to  8 criminal law, which involves the same section of the  9 Evidence Act, and the conclusion of the three of us,  10 at least in the Court of Appeal, is that the section  11 gives a discretion, and that discretion doesn't have  12 to be exercised now.  13 MR. GRANT:  Well, it may be that it should just be marked for  14 identification or left in the -- the general practise  15 has been that the documents have been excised.  If  16 it's left in the document book as tab 2, Appendix 2 --  17 THE COURT:  It's in the documents.  It's here.  And if it's not  18 here, it can be produced, and we can have an argument  19 about it.  2 0 MR. GRANT:  Fine.  21 MR. GOLDIE:  I just want to make it clear, My Lord, that I was  22 questioning him on the use to which it was put.  23 THE COURT:  The transcript will disclose all of that, and we can  24 have a nice leisurely argument about it some time.  25 MR. GRANT:  I don't want to argue that out right now.  26 Q   You were asked by Mr. Goldie with respect to, I think  27 it was Mr. Wilson's evidence about -- or I'm sorry,  28 wasn't Mr. Wilson's evidence, it was a question of a  29 fish -- you were asked about if a fish stayed in a net  30 for three days if they would rot?  31 A   Yes.  32 Q   In your observations during your research did you  33 observe fish rotting in nets?  34 A   I have observed that, yes.  35 Q   And approximately what proportion of all of your  36 observations would that be?  37 A  A very small proportion.  It's hard to attach a  38 numerical value to it.  Less than one percent.  39 Q   Was there any explanation on those occasions that  40 you -- from what you observed or what you understood  41 the situation was?  42 A  Very frequently I learned of a reason why it had  43 happened.  For example, a common occurrence is that  44 spawned out fish being swept downstream would be  45 carried against a net and fouled in the net from  46 upstream side, and then when the net is picked there  47 would be fresh fish in the net that had hit the net, 14151  1 as well as the rotten carcasses of spawned out fish.  2 That's one thing that happens.  At other times if  3 something -- if something happened to make it  4 impossible for the Fishery to dig his net as a failure  5 of an outboard motor that was required to get to the  6 fishing site by both, or a failure of a vehicle that  7 was required to get from where the person lived to  8 where the net was.  9 Q   You were asked, I believe by Mr. Macaulay, and I may  10 at this hour may be mistaking it for Mr. Goldie, with  11 respect to the observation of catch -- no, it was Mr.  12 Goldie.  I stand corrected.  The observation of catch  13 by the Department of Fisheries and Oceans.  14 A   Yes.  15 Q   And the correlation of their catch estimates, of your  16 catch estimates?  17 A   Yes.  18 Q   Did the departmental officials, in your discussions of  19 them, and when they provided you with those catch  20 estimates, give you their opinions as to the accuracy  21 of those estimates?  22 A   Yes.  23 Q   And what -- and who was that, and what did they say?  24 A   Peter Woloshym, the Fisheries officer from Hazelton,  25 always indicated that he considered his estimates very  26 approximate.  When he did indicate, when I questioned  27 him about methods and the basis for the estimate, he  28 indicated that it was based on a limited number of  29 observations of catches.  And he also showed me or  30 provided me with information about river surveys,  31 counts of nets that they had done in various seasons,  32 and the count, to my recollection, would be on the  33 order of 10 to 15 in one season, and perhaps less than  34 that in another.  That information is also covered in  35 the fish management study, as I recall.  36 Q   Yes.  In chapter three.  37 A   In addition, in conversations with Ron Kadawaki, who  38 for much of the time that I was working for Tribal  39 Council was the Skeena management biologist based in  40 Prince Rupert, I talked to him about DFO estimates of  41 Indian catches.  He described them to me as being  42 soft, which I interpreted to mean approximate.  43 Q   Okay.  44 A   Not firm data.  45 Q   I believe that if you could just put book two to the  46 witness and on page 50.  I just want to confirm what I  47 think is correct. 1 THE  MR.  THE  MR.  9 THE  10 MR.  11  12  13 MR.  14  15 THE  16  17 THE  18  19 MR.  2 0 THE  COURT  GRANT  COURT  GRANT  Q  COURT  GRANT  21  22  MR.  MR.  14152  Which tab please?  I think it's at page 50, but I'll just check with  the witness on this, My Lord.  Which tab please?  Tab 2 of book 2.  You said you described the relative relationship.  Could you just indicate what part of the FMS describes  that -- the comparison between the commercial --  This is already in, Mr. Grant.  No, I am not sure if it's there, My Lord.  That  section is in.  I just want to make be sure that's the  section.  GOLDIE:  It's the only section that I looked at, so far as  the cross-examination is concerned.  WITNESS:   Beginning at page 103, Section 3.43 there is a  discussion of DFO Indian Fishery catch estimates.  Well, that isn't necessary.  This isn't  re-examination, Mr. Grant.  No, that section is in.  Yes.  And then the section following in that section.  COURT:  GRANT  COURT  GRANT  MACAULAY:  It's in and it's irrelevant, My Lord.  23 THE COURT:  Then it's not re-examination.  24 MR. GRANT:  The witness had referred to chapter three, and as  25 you may recall, but I thought it was in that -- I just  26 wanted to make sure it was in that section he was  27 referring to, because part of chapter three had not  28 been included.  That's fine.  Those -- thank you, Mr.  29 Morrell.  Those are all my questions.  3 0 THE COURT:  Thank you.  31 MR. GOLDIE:  I take it we are excluding from volumes one and two  32 everything that has not been marked?  33 THE COURT:  Yes, I should think so.  Yes.  All right.  34 We'll adjourn then until a week from this coming  35 Monday.  I hope you all have a productive interval.  I  36 want to leave with counsel a present which is not  37 intended to be opened tomorrow.  It's not an April  38 fools trick or anything.  It is a matter that I would  39 wish to have counsels' comments on.  It relates to a  40 matter that Mr. Rush raised the other day.  And you  41 will forgive me, Mr. Grant, when I wrote it I  42 mentioned Mr. Rush in the text of what I wrote,  43 because it was he that raised the matter with me.  I  44 intended no disrespect in leaving you out.  It's a  45 matter upon which I am requesting counsel to let me  46 have their views.  47 MR. GRANT:  Does it refer to when we reconvene -- 14153  1 THE COURT:  Oh, yes.  I would like to have your views either in  2 writing before then, or in writing at this time when  3 we reconvene.  4 MR. GRANT:  That's the 10th?  5 THE COURT:  Yes.  All right.  Thank you Madam Reporter for  6 outstanding service above and beyond the call of duty.  7 THE REGISTRAR: Order in court.  Court stands adjourned.  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 ADJOURNED AT 7:00 P.M.  10, 1989 AT 10:00 A.M.)  TO APRIL  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD.


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