@prefix ns0: . @prefix edm: . @prefix dcterms: . @prefix dc: . @prefix skos: . ns0:identifierAIP "aa9db1eb-22bb-4f95-95d5-b50c3eae7a81"@en ; edm:dataProvider "CONTENTdm"@en ; dcterms:isPartOf "Delgamuukw Trial Transcripts"@en ; dcterms:creator "British Columbia. Supreme Court"@en ; dcterms:issued "2013"@en ; dcterms:created "1989-03-28"@en ; dcterms:description "In the Supreme Court of British Columbia, between: Delgamuukw, also known as Albert Tait, suing on his own behalf and on behalf of all the members of the House of Delgamuukw, and others, plaintiffs, and Her Majesty the Queen in right of the Province of British Columbia and the Attorney General of Canada, defendants: proceedings at trial."@en, ""@en ; edm:aggregatedCHO "https://open.library.ubc.ca/collections/delgamuukw/items/1.0018396/source.json"@en ; dc:format "application/pdf"@en ; skos:note " 13730 Submissions 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE THE MR. VANCOUVER, B.C. March 28, 1989 REGISTRAR: Order in court. In the Supreme Court of British Columbia, Vancouver, this Tuesday, March 28th, 1989. Calling Delgamuukw versus Her Majesty the Queen at bar. COURT: Mr. Rush. RUSH: My lord, I would like to address you on the question of the scheduling issue. You may recall that we deferred until this morning the issue of scheduling the month of June. We -- the plaintiffs are not in a position at this point to schedule the case for the month of June or schedule after that point. There is a present financial difficulty with the plaintiffs' funding of the case, and the present financial standing at this point does not allow us to schedule our case after the end of May. And we will require that the case be stood down at that time from the plaintiffs' perspective and we'll make a submission to you later on, and that will be the submission that we will make to the court unless the present financial circumstances of the plaintiffs change for the better. The schedule for the month of May, as I advised your lordship, is the following: We I think have already scheduled the first week of May, that's a down week. COURT: Yes. RUSH: And May the 8th, I think I advised your lordship that Susan Marsden, Miss Marsden will be testifying for the period of one week in that -- in the month, and I've advised my learned friends that for the week of May the 15th, Dr. Robert Galois will testify, and again we've scheduled one week for his evidence, and in the week of May the 23rd, which is the last full week of May, the evidence of Dr. Barbara Lane will be tendered. THE COURT: I don't know why I have always assumed, I hope incorrectly, that Dr. Lane may be more than a one-week witness, or can she be done in one week? RUSH: We're proposing that she be done in one week. COURT: I see, all right. RUSH: Basically we have, for the most part, proposed that the direct and cross for each of the plaintiffs' experts be a week in duration. I think for the most part my friends have agreed with our timetabling on that, so that is our present schedule. I can advise your lordship that were circumstances otherwise THE MR. MR. THE MR. 13731 Submissions 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. RUSH: THE COURT MR. RUSH: THE COURT financially we would not have finished the plaintiffs' case at the end of the month of May, that the -- we would, however, have finished by the end of the month of June. Now, I can only advise your lordship, you asked some time ago that we advise you as much in advance as we ourselves were aware of our circumstances, and I can tell you that two months advance notice is I think what was as much as we could give your lordship and the court in this respect, but obviously circumstances change, and in respect of our application with regard to standing the case down, we will give your lordship as much notice as we can, but I think as things stand presently we're not in a financial position from the plaintiffs' point of view of continuing after the end of the month of May. Well, Mr. Rush, can I just ask you this: I haven't kept track, but I think in late last year or early this year I think you told me you had about 12 witnesses. Yes. Doesn't this almost exhaust that? Almost, yes, yes. We're examining as to calling one further expert witness, possibly two, but we haven't finalized a view of that, and we will always need to call one, possibly two further lay witnesses, and I have advised my friends about that. One will deal with certain genealogies, and we're proposing to do that by way of affidavit. All right. Well, I -- I have to leave the question of the plaintiffs' financial difficulties to others. I can only say, as I've said before, that I would find it, I think intolerable is not too strong a word to use, for the shutting down of this case so close to the end of the plaintiffs' case and at a time when we have been -- at a time after we have been struggling so hard to move this case along. And while it's a personal matter, it's very difficult for me to find other gainful employment during down time because I can no longer sit alone, and because of the fact that we had assumed that we would be sitting to complete the plaintiffs' case in June and that we would even be sitting in July so as to be sure of the completion of the defendant's case by the end of the year, and in that respect I cancelled a long looked forward to trip to Europe, and I think insignificant as that is, it's part of the total picture that the failure of the plaintiffs to be able to proceed will be most 13732 Submissions 1 unfortunate, I think intolerable is not too strong a 2 word. So I hope whoever has to deal with these 3 problems will keep those unhappy words in mind. I 4 think it should be recorded that the court is anxious 5 to have this case completed for many many reasons, not 6 the least of which that other cases are lined up 7 behind it, and their progress depends in part on this 8 one, so I fervently hope that satisfactory 9 arrangements can be made and that it will not be 10 necessary to adjourn this trial for any reason. 11 Subject to that, I don't think there's much more I can 12 properly say. All right, we have another problem this 13 morning, do we not? 14 MR. GOLDIE: Well, I was just going to say with respect to this 15 scheduling, my lord, I will be asking my friends to 16 consider whether the week of May 15th could be taken 17 as a week off and have Dr. Galois in the four-day week 18 of the 23rd and Dr. Lane in the five-day week 19 following. The reason I say that, my lord, is that an 20 appeal in the Supreme Court of Canada which was to be 21 heard in January was postponed and will be heard in 22 the week of May 15th, and it's been set for four days. 23 I do not think -- and the other reason is I do not 24 think that Dr. Barbara Lane can be completed in four 25 days. 2 6 THE COURT: Well, have you — 27 MR. GOLDIE: I haven't approached my friends on this. I just 28 want to inform your lordship that I will be doing so. 29 THE COURT: All right. I won't ask your friends to respond to 30 that at this time. All right. There was a problem 31 raised last week about the identification of defence 32 witnesses, Mr. Goldie. 33 MR. RUSH: I think I raised the issue of the expert witnesses as 34 yet advised of by the defendants, and although this 35 issue was directed at the Provincial defendant, I 36 directed it at both defendants. Basically having been 37 advised by Mr. Goldie last week that the defendants, 38 at least the Provincial defendant, intended to call 39 further expert evidence, I made a proposal with regard 40 to disclosure of that -- of their summaries or 41 opinions, which in sum was that we be given 120 days 42 notice of those opinions and experts' summaries. I 43 also, my lord, would ask that if my friends are now 44 aware of who those experts are and their 45 qualifications, that we should be advised of them 46 immediately. And we're also, I think I mentioned that 47 obviously I think this is attended upon the disclosure 13733 Submissions 1 of opinion or summary, that there be document 2 reference disclosures in the course of disclosing 3 opinions. 4 THE COURT: Will you respond to that, Mr. Goldie? 5 MR. GOLDIE: Well, my lord, there's a possibility of one more 6 expert. The reason that I say possibility is that it 7 was a matter that Mr. Robertson was looking after, and 8 I have to -- I'm in the process of reviewing the 9 memoranda that he had prepared with respect to that. 10 The decision had not been taken before his death 11 because the potential witness had himself suffered a 12 death in his family and had been unavailable for 13 several months. The -- with respect to documents, my 14 friends have the summaries of all of the other experts 15 that we intend calling, and there is -- if there isn't 16 a bibleography of their references, all of the 17 references -- all of the documents, so far as my 18 knowledge goes, have been disclosed, but if my friends 19 are asking me -- I'm not sure what my friends are 20 asking me beyond that. 21 THE COURT: I think they want to fix or have some certainty in 22 the timeliness of the disclosure of the identity and 23 the burden of the evidence to be given by any experts 24 that you're going to -- that are going to be called. 25 MR. GOLDIE: Well, I had intended to observe the 60-day rule, 26 there's no doubt about that. The idea of now 27 extending to 120 has, so far as I can see, no 28 reasonable purpose to it, especially having regard to 29 the advice we received this morning, the plaintiffs 30 may not proceed beyond the end of May. 31 MR. RUSH: Well, I think my friend has not understood or I've 32 not made clear, probably the latter, what it is I'm 33 asking for. I think the 60-day rule about disclosures 34 of who the witnesses are and when they will be called 35 for present -- presently disclosed expert opinions 36 should remain in place for the defendants, as it has 37 for the plaintiffs, but my request is in respect of an 38 expert opinion that we have not had any notice of to 39 this point, and it's that type of opinion, and when my 40 friend says there may be one more, that we wish 41 120-day notice for, and if there are documents that 42 are fresh documents contained or referenced in that 43 report or opinion, then I think those should be 44 disclosed at the same time. So I'm trying to 45 distinguish between those two types of opinions and 46 their disclosure times. 47 THE COURT: Well, this witness, this mystery witness wouldn't be 13734 Submissions 1 called early in your case, would it be, Mr. Goldie? 2 MR. GOLDIE: I don't think so. He's really — if he's called at 3 all, it is because we have come to the conclusion that 4 one of the other experts may not be competent to speak 5 in a very limited area. 6 THE COURT: Yeah. 7 MR. GOLDIE: But I don't wish to go any further than that 8 because I'm still in the course of reviewing Mr. 9 Robertson's memoranda and coming to a conclusion on 10 that point. 11 THE COURT: Well, in view of the length of notice that has been 12 given, the reports of the plaintiffs' experts, I must 13 say I tend to favour 120 days, but I don't think it 14 is -- we're at the 120-day threshold or even close to 15 it yet, and I think perhaps the matter should be 16 deferred for a few weeks and perhaps Mr. Goldie will 17 then have made a decision on whether this witness 18 should be called, and then we'll speak to it again. I 19 think the matter should be spoken to again. Is two 20 weeks away too near, Mr. Goldie? 21 MR. GOLDIE: No. There are other reasons why I'm going to have 22 to make that decision fairly soon. 23 THE COURT: Yes, all right. 24 MR. GOLDIE: And I anticipate making it within the two weeks. 25 THE COURT: Well, I think the matter should be raised again say 26 around the start of Mr. George's evidence, which I 27 think starts on April 17th. Can the matter be spoken 28 to again then? All right, thank you. 29 MR. GOLDIE: My lord, unless my friends have something further, 30 I wish to seek a direction from your lordship with 31 respect to a Notice to Admit before Mr. -- the next 32 witness is heard. It -- this has to do with a Notice 33 to Admit which was dated July 26th, 1988, and the 34 background of it arises out of the discussion that was 35 held on -- on July the 4th, 1988, and I have handed up 36 a volume of documents to your lordship, and the 37 transcript is the extract from -- the transcript is 38 found under tab 1. Now, the background of the 39 discussion was an application by my client for an 40 order with respect to band documents, and in the 41 course of that discussion there was reference made to 42 fishing licences, food fishing licences given to 43 the -- given out by the Government of Canada. The 44 discussion got around to the point of the disclosure 45 of those in the -- in the custody of the plaintiffs, 46 and at page 7558 Mr. Grant said at line 28: 47 13735 Submissions 1 \"Just one point, and that is on the food fishing 2 permit, my lord. If food fishing permit system is 3 a system that applies to Indians. If my friends 4 disclose all food fishing permits that are issued 5 out of the Hazelton District Office which covers 6 in its entirety the area within the claim, that is 7 not all the claim area but the Hazelton area 8 office covers pretty well all of its area within 9 there. I suspect that without the aid of 10 genealogies, they would be able to pretty sure 11 that 95 and 99 percent of them are the Gitksan and 12 Wet'suwet'en.\" 13 14 That is to say those who have been granted licences 15 are the Gitksan and Wet'suwet'en. 16 17 \"They have a different problem out of the Smithers 18 office but not out of the Hazelton office.\" 19 20 My friend's point there being that these matters would 21 be available to the defendants if they made these 22 searches. And after this discussion the -- Mr. 23 Macaulay on the next page said, he was responding to a 24 question how soon disclosure of those permits could be 25 made, he said at line 5: 26 27 \"It was done a year ago approximately, my lord. We 28 have listed hundreds and hundreds of food fishing 2 9 permits. We have the copies, we have the carbons, 30 the originals are in the hands of the permitees, 31 and I doubt very much if a permitee keeps them, 32 individual persons, and not necessarily Gitksan.\" 33 34 And then he said that they had gone to a great deal of 35 trouble to provide the disclosure and the list that 36 had been done, and then at line 31 your lordship said: 37 38 \"All right. Well, I am going to adjourn this party 39 application to some date towards the end of July 40 when the matter could be spoken again and, Mr. 41 Goldie, I think you can take immediate steps, 42 based on what Mr. Macaulay has said and if you 43 haven't got what you think you need from the 44 plaintiffs by that time, then I may have to make 45 an Order that I would prefer not to make.\" 46 47 Now, of course the defendants were precluded from 13736 Submissions 1 approaching any of the plaintiffs personally, as we 2 had been warned that would be regarded as improper. 3 The Notice to Admit that arose out of that is under 4 tab 2, and it was served on I think July the 26th or a 5 couple -- within a couple of days. It's dated July 6 the 26th, and it was a Notice to Admit facts, not 7 documents. And the facts that were sought to be 8 admitted are set out and starting at page 2: 9 10 \"Except for those who are people in the Houses of 11 the Kitwancool Chiefs as alleged in paragraph 52 12 of the Amended Statement of Claim: 13 14 1. That each of the persons named in items 5095 15 to 5118 inclusive in the 8th Supplementary List 16 of Documents of the Defendant The Attorney General 17 of Canada, dated May 11, 1987 was, on or about the 18 date stated, issued with an Indian Food Licence 19 similar in its printed parts to, or to a like 20 effect to, Exhibit 588.\" 21 22 Now, my lord, Exhibit 588 is under tab 3, and it is, 23 as your lordship will see, a form with a number and 24 headed \"Indian Food Licence\". There's a name, and 25 under \"Fee\" there is printed the word \"Nil\", and then 26 the printed words: 27 28 \"Being an Indian is hereby licenced to fish for 29 fish to be used for food for himself and his 30 family in the waters of.\" 31 32 And then that is to be filled in, by method, and that 33 is to be filled in, for species, and that is to be 34 filled in. Then there's a provision for the time that 35 the licence is valid and at the place where it is 36 issued at and the person issuing it. And then there 37 is a provision for the information with respect to the 38 licensee, and there's a signature of the applicant 39 immediately following the words, and I quote: 40 41 \"I certify that I am an Indian registered under the 42 Indian Act.\" 43 44 Now, that -- it was the fact that it was sought to be 45 admitted was that certain people, and I'll come to the 46 lists themselves, were: 47 13737 Submissions 1 \"Issued with an Indian Food Licence similar in its 2 printed parts to, or to a like effect to Exhibit 3 588; is or —\" 4 5 And then continuing: 6 7 \"is or was a Gitksan or Wet'suwet'en person.\" 8 9 And then pausing there, that is to take into 10 consideration the fact that there may have been some 11 deaths. And continuing: 12 13 \"And if living on October 23rd, 1984, is or was a 14 named Plaintiff or is or was represented by a 15 named Plaintiff.\" 16 17 Now, each of paragraphs 2, 3, 4, 5, 6, 7, and 8 are 18 similar in referring to different parts of the Federal 19 Defendant's list of documents. There is a variation 20 because some of the licences are issued in the names 21 of bands, and I'll come to that shortly. Now, if I 22 could ask your lordship to turn to page -- or tab 4, 23 this is the list to which paragraph 1 of the Notice to 24 Admit refers, and the list is substantially in excess 25 of this, and the selection has been made because this 26 appears to be from the inspection relating to people 27 who are or were plaintiffs in this action. For 28 instance, on the first page, document 5098 is a copy 29 of an Indian Food Fishing Licence issued to Chris 30 Skultz, I think that should be Skulsh. 5099, August 31 the 1st, 1980 copy of Indian Food Fishing Licence 32 issued to Peter Muldoe, a name that has been heard a 33 number of times, and of course he has given evidence 34 here. 5100, copy of Indian Food Fishing Licence 35 issued to Stephen Robinson. And over the page, Ernest 36 Hyzims, Herb Wesley, Jeffery Harris, George Turner, 37 and so on. My lord, I could go through each of the 38 other document lists or excerpts under -- tab 5 is the 39 documents that were disclosed on the 10th 40 Supplementary List, under tab 6 there was one name 41 that appeared to be relevant, under tab 7 there was a 42 very considerable list of people. And there is 43 repetition, the same names appear on a number of 44 occasions. On page 2 under tab 7 the name Robert 45 Jackson, for instance, appears, and Peter Muldoe on 46 the next page, Robert Jackson, James Morrison, Stanley 47 Williams, Chris -- on page 15, Chris Skulsh, Walter 1373? Submissions 1 Wilson is the third name there, and so on, until we 2 get to tab 9. There your lordship will see that the 3 licences were issued to Kitsegukla Band members, 4 Kitwanga Band Council, Gitwangak Band, Gitwangak Band 5 members, Kispiox Band, and the Notice to Admit is 6 worded with respect to those, so as to take into 7 account the names which are disclosed on the list. 8 And under tab 10 we have licence issued to the 9 Kitsegukla Band, the Moricetown Band, Hagwilget Band, 10 the Glen Vowell Band, and the same thing, there are -- 11 that continues. Now, the first position that my 12 friend took is indicated in his letter under tab 12, 13 and he said first that he could not begin to answer 14 the Notice within the time required, and of course I 15 recognized that. And then my friend took the position 16 that the Rule 31(3) requires a copy of a document to 17 be attached to the Notice when delivered. I responded 18 to that under tab 13 by saying that with respect to 19 the points that he raised, the Notice sent you is 20 confined to admission of fact and did not require 21 admission of documents: 22 23 \"Rule 31(1) speaks of notices to admit documents or 24 facts and while Form 21 assumes both are required 25 a Notice may, as did the Notice in respect of 26 fishing permits, refer to facts alone. 27 Under the old rules separate notices were required 28 in respect of documents and facts. The new rule, 29 which allows a Notice to refer to both, does not 30 alter the fact that each is a separate matter and 31 Form 21 recognizes this.\" 32 33 I say: 34 35 \"Rule 31(3) applies only to a Notice to Admit 3 6 documents.\" 37 38 That's the rule that requires a copy of the document 39 to be attached. And then I concluded by asking my 40 friend to reconsider his letter -- his position, I 41 should say. And he did so in his letter of August the 42 4th, and he was good enough to characterize my 43 argument with respect to rule 31(3) is interesting but 44 he did not agree with it. And the -- then he goes on 45 to say: 46 47 \"Your Notice to Admit requests wide-ranging and 13739 Submissions 1 detailed admissions as to facts. We would be 2 greatly assisted to have the documents from which 3 the admissions are being sought. I suspect that 4 you have pulled these documents from Canada's 5 Supplementary Lists and therefore have easy access 6 to them. It is more convenient for you to provide 7 me with copies of your documents than for me to 8 duplicate the effort of searching, culling and 9 copying the documents from Canada's List.\" 10 11 And I replied to that in a letter under tab 15 on the 12 5th of August, and I say: 13 14 \"You suggest, or rather suspect, that we have 15 copies of the fishing permits listed in Canada's 16 Lists. We do not and I have no present intention 17 of obtaining copies. 18 The admission I seek is that your clients were 19 issued with permits in form similar to a court 20 exhibit. I would not think it necessary that the 21 copies in Canada's hands be inspected for the 22 purposes of such an admission.\" 23 2 4 And so on. And I say: 25 26 \"If the admission set out in my Notice to Admit 27 continues to create difficulties, perhaps you 2 8 would be good enough to let me know the terms of 29 an admission you would be prepared to make.\" 30 31 And then my friend said in his letter of August the 32 10th: 33 34 \"I will have to review the copies of the fishing 35 permits listed on Canada's lists in order to 36 respond to your Notice to Admit. When I have done 37 so, I will get back to you about your request and 38 whether there are other terms of an admission we 39 would be prepared to make.\" 40 41 And then I wrote asking my friends -- under tab 17 I 42 wrote in September asking him if he could clarify his 43 position, and then he responded to that on September 44 9th saying he was continuing to review it. And on 45 February 21st of this year I asked my friend to let me 46 have his final position, and that was followed by some 47 correspondence on March 16th. I said: 13740 Submissions 1 \"If I do not have your final position in this 2 matter by Monday, March 20th, I will ask that Mr. 3 Morrell be stood down until this matter has been 4 resolved by the judge.\" 5 6 I might say, my lord, that the whole purpose of this 7 is directed towards Mr. Morrell's cross-examination. 8 And then on tab 21 my friend's letter of March the 9 21st, when he takes his -- the position that I gather 10 this is his final position. He says: 11 12 \"We are unable to make the admissions which you 13 request in your Notice to Admit of July 26, 1988. 14 We are unable to admit that the documents were 15 'issued' to the persons enumerated in the listed 16 numbers of the Federal Defendant's Supplementary 17 Document Lists. In some cases the persons are 18 deceased or cannot be identified. In other cases 19 the persons cannot confirm or say anything about 20 the 'issuance' of the food fishing licence.\" 21 22 And then he states that as to the scheduling, the 23 request has no bearing on the scheduling. I have 24 indicated to your lordship the importance of the 25 documents. They are primarily of significance with 26 respect to Mr. Morrell's cross-examination because he 27 purports to testify with respect to the regulation of 28 Indian Fisheries. From his evidence it would not 29 appear that he has taken into consideration the nature 30 of the regulation evidence by these permits. The 31 ruling or direction which I seek from your lordship is 32 that there be a presumption of fact, rebuttable, that 33 a food fishing permit in form similar to Exhibit 588 34 was issued to each of the persons, bands named or 35 identified in the Notice to Admit, that such permits 36 were issued on the application of the persons or bands 37 named or identified, and that such individual persons 38 named or identified were or are plaintiffs. Now, I 39 should modify that with respect to the band councils, 40 they're not plaintiffs, the individuals. Now, this, 41 my lord, is a presumption of fact, it -- I point out 42 to your lordship that it was stated by my friend, Mr. 43 Grant, on the 4th of July in the transcript reference 44 under tab 1, he said: 45 46 \"I suspect that without the aid of genealogies, 47 they would be able to be pretty sure that 95 and 13741 Submissions 1 99 percent of them are either Gitksan or 2 Wet'suwet'en.\" 3 4 That's at line 36, 38. With that and with the 5 evidence that is the inferences to be drawn from the 6 names that are stated, that the -- it is, in my 7 submission, within your lordship's discretion to make 8 the ruling I request. I have a couple of references 9 to Phipson and Sopinka. First, Phipson, my lord, on 10 page 1046, the learned author says in the first line 11 under the heading \"Presumptions\": 12 13 \"Presumptions are devices whereby the courts are 14 entitled to pronounce on an issue notwithstanding 15 that there is no evidence or insufficient evidence 16 about it. They take effect by way of allocating 17 the burden of proof in relation to that issue to 18 one party or the other.\" 19 20 Then on page 1047, the top of the page, \"Presumptions 21 of Fact\": 22 23 \"Strictly speaking, the term 'presumption of fact' 24 is a misnomer. It describes the readiness of the 25 courts to draw certain inferences from common 26 human experience. In reality it is no more than a 27 slightly grandiose term for the ordinary process 28 of judicial reasoning about facts. It remains 29 a term of importance largely because the law 30 relating to presumption is intolerably confused, 31 and one source of that confusion has been the 32 failure of the judges to differentiate clearly the 33 inferences of fact which the law requires them to 34 draw (true presumptions) from those which common 35 sense impels them to draw (presumptions 36 of fact).\" 37 38 Sopinka deals with the consequences of that in a 39 little more -- in a little more detailed way. At page 40 375 the learned author states: 41 42 \"Presumptions of law are a consequence 'annexed 43 by law to particular facts'. A presumption of 44 fact is 'an inference which the mind naturally and 45 logically draws from given facts, irrespective of 46 their legal effect'.\" 47 13742 Submissions 1 And then he goes on to talk about presumptions of fact 2 at page 377: 3 4 \"When facts adduced raise a presumption of fact 5 they give rise to a permissive inference which the 6 trier of fact may, but not need, draw. Inasmuch 7 as it is the usual function of the trier of fact 8 to draw inferences from other facts, one may 9 wonder why certain facts or a combination thereof 10 should be accorded special treatment.\" 11 12 And then he goes on to discuss that, and the last 13 paragraph on page 378: 14 15 \"The term 'presumption of fact' is used in many 16 instances in which it is desired merely to shift 17 the secondary burden to a particular party. When 18 used in this sense, it means that the facts are 19 such that a certain inference should, but need 20 not, be logically drawn.\" 21 22 Now, in my submission the appropriate way of dealing 23 with this is that there should be a ruling from your 24 lordship that there is a presumption of fact in the 25 manner that I have described. Now, that is 26 presumptions of fact are always rebuttable. And my 27 friends are at liberty to demonstrate that the people 28 who are listed there are either not Gitksan or 29 Wet'suwet'en, although my friend Mr. Grant has stated 30 that 95 or 99 percent of them are, and that they have 31 been issued in accordance with the terms of Exhibit 32 588. 33 THE COURT: Mr. Goldie, doesn't that legal device described both 34 by Phipson and Sopinka relate to the mental processes 35 that go on, or the treatment that he is given after or 36 to facts that are established in evidence? 37 MR. GOLDIE: Well, the facts — 38 THE COURT: Wouldn't you have to have these food permits in 39 evidence before I could indulge myself in that kind of 4 0 presumptive game? 41 MR. GOLDIE: Not in my submission, my lord. The form is in 42 evidence now. The fact which is sought to be admitted 43 is that similar forms were issued to the people listed 44 by the Government of Canada as in respect of which 45 they have the copies of the licence. The licence 46 itself is in the possession of the licencee, and of 47 course if one was to get those in evidence one would 13743 Submissions 1 have to either subpoena all of the potential or 2 punitive licensees or to find some other way of 3 gaining an admission, but the admission that is sought 4 and the one that I say is properly the subject matter 5 of a presumption is that similar licences were 6 listed -- were issued to all of the people that are 7 listed. 8 THE COURT: Well, on page 377, Mr. Sopinka said this: 9 10 \"When facts adduced raise a presumption of fact 11 they give rise to a permissive inference.\" 12 13 Et cetera. He starts out by saying \"When facts 14 adduced raise a presumption\". Seems to me that this 15 process that you're -- for which you're contending 16 arises after the facts are adduced, and putting them 17 in the production lists of the Attorney General of 18 Canada doesn't quite reach that level. 19 MR. GOLDIE: Well, I rely — 2 0 THE COURT: Can you not put them in? 21 MR. GOLDIE: I beg your pardon, my lord. 22 THE COURT: If you were to put them in evidence, if you could, 23 then I don't rule on that, because I've heard Mr. Rush 24 say a number of times he doesn't think these are 25 business records, but if, for example, they were 26 business records and you could put them in, then I 27 would have no difficulty with your proposition. 28 MR. GOLDIE: Well, I rely upon this, my lord, and Phipson at 29 page 1047, the author said: 30 31 \"Strictly speaking, the term 'presumption of fact' 32 is a misnomer. It describes the readiness of the 33 courts to draw certain inferences from common 34 human experience.\" 35 36 Now, there is evidence of the regulation by the 37 Department of Fisheries of the food fishing activities 38 of native Indians, and as I say, Exhibit 588 was -- 39 has been proven. And I say in reality -- the learned 40 author goes on to say: 41 42 \"In reality it is no more than a slightly grandiose 43 term for the ordinary process of judicial 44 reasoning about facts.\" 45 46 Now, the fact that -- your lordship, that there is a 47 regulation by the Department of Fisheries and Oceans 13744 Submissions 1 of -- called food fishing, and secondly, that there is 2 a permit in hand, and thirdly that the Government of 3 Canada has stated that it has documents in its 4 possession which are Food Fishing Permits. The 5 inference that I ask your lordship to draw is that 6 those -- the originals of those permits were issued to 7 the people listed, and that is a rebuttable 8 presumption. It shifts the burden to the person 9 within whose knowledge that presumption can be 10 rebutted. 11 THE COURT: Well, I — presently advised, Mr. Goldie, I would be 12 with you if those copies of permits were in evidence. 13 MR. GOLDIE: Well, I can certainly -- I can certainly obtain 14 copies of the copies, because the Government of Canada 15 does not have the originals in evidence. 16 THE COURT: No. 17 MR. GOLDIE: Or does not have the originals in its possession. 18 But I can certainly obtain copies, and I can file 19 those copies. 20 THE COURT: But on what basis are they admissible? 21 MR. GOLDIE: Well, there's no doubt in my mind that they are 22 business records. 23 THE COURT: Well, it seems to me that's the argument that I have 24 to have, because I think I recall Mr. Rush quickly as 25 having indicated it more than once that he did -- he 26 doesn't think they are business records. 27 MR. GOLDIE: Well, they are the — 28 THE COURT: Or admissible, or on some other basis. It seems to 29 me that there's -- is there a presumption which may be 30 admissible of regularity. I seem to recall something 31 sometime about a presumption of regularity with regard 32 to estate documents or this sort of thing. If there's 33 some basis of admissibility of the documents are in, 34 then they may well rank rebuttal presumption in the 35 absence of anything else that they were issued to the 36 plaintiffs. Certainly the names are -- many of the 37 names are familiar. 38 MR. GOLDIE: That of course is one of the things that I rely 39 upon in applying what Phipson calls common human 40 experience or judicial common sense. 41 THE COURT: Yes. I'm quite prepared to apply the common sense, 42 or what's left of it, to evidence, but I am not 43 presently pursuaded that I can apply my particular 44 brand of common sense to the list of documents of the 45 Attorney General of Canada. 46 MR. GOLDIE: Well — 47 MR. RUSH: The -- your lordship will appreciate the concern that 13745 Submissions 1 I have is that the whole purpose of this lengthy 2 exercise was to -- are was to enable Mr. Morrell to be 3 cross-examined on the food fishing regulation, and 4 part of the cross-examination of course depends upon 5 the quantity of licences that are issued. It's not 6 much good having evidence of just one licence, but I 7 am -- I would ask your lordship if your lordship is 8 concerned only with the fact that the -- that there 9 are no documents available which answer the 10 description given the Government of Canada's list -- 11 THE COURT: I'm prepared to accept the facts that those 12 documents exist, just because they're in the list. I 13 don't think I can accept the fact that they're in 14 evidence. 15 MR. GOLDIE: No, no, I appreciate that, I appreciate that, 16 because the Notice to Admit was not to bring into the 17 courtroom the copies. The Notice to Admit was that 18 the originals had been issued, and the inference that 19 I -- that I had asked that be drawn was of course one 20 that the plaintiffs who are in the possession of the 21 information could rebut, but I am quite happy to make 22 arrangements to have a copy of all of the documents 23 listed by the -- by the Federal defendant to be filed, 24 but I would like to be in a position to -- subject to 25 your lordship's ruling on the question of 26 admissibility, and I'm prepared to deal with that when 27 we get the documents or before. 28 THE COURT: Well, I'm -- at the moment you haven't persuaded me, 29 Mr. Goldie, that I can just now make a declaration, 30 that of rebuttal of presumption. I think you've got 31 to get those documents into evidence in some way, and 32 if you're able to do that I haven't heard Mr. 33 Rush's -- but then it may be that depending on what 34 else happens I would make that presumption. I don't 35 think I can commit myself to that at the movement. I 36 don't think I can do anything until the documents are 37 in evidence. 38 MR. GOLDIE: But I do want to emphasize that the Notice to Admit 39 did not require the documents to be placed in 4 0 evidence. 41 THE COURT: And I think that if the — if there had been a 42 positive response to the Notice to Admit, this 43 probably would be solved, and in fact, that's the 44 reason for that rule to be there. I don't think that 45 the search for truth can be defeated in most cases by 46 failure to admit a fact if it's capable of being 47 proven in some other way. It's to shortcut the 13746 Submissions 1 necessity for that proof that we have admissions of 2 facts and admissions of documents. I think in view of 3 the failure of the plaintiffs to respond positively to 4 the Notice, then I think you're in the position of 5 having to prove the documents, unfortunate as that may 6 be. 7 MR. GOLDIE: Well, I -- as I say -- I do want to emphasize that 8 I had no interest in proving the copies which are in 9 the hands of the Government of Canada. 10 THE COURT: I think referring to that now — 11 MR. GOLDIE: I had hoped that your lordship's statement that 12 the -- that you haven't got what you think you need 13 from the plaintiffs, and my submission had been that 14 it is documents from the custody of the plaintiffs 15 that I want. 16 THE COURT: Yes. 17 MR. GOLDIE: Or acknowledgement that the documents had been 18 issued, then you would make an order that you would 19 prefer not to make. Well, I accept your lordship's 20 statements that you prefer not to make the order I'm 21 asking for, but it doesn't really meet the 22 requirements of the case to simply call in the 23 Government of Canada and argue about the admissibility 24 of the copies. But I've made my submission, my lord. 25 THE COURT: I might make the point by way of the presumption 26 process, which is, as I've said and you have said, is 27 probably rebuttable, but I don't at the moment see how 28 I can assist you with respect to documents that aren't 29 before me. I think -- I think I phrased it well the 30 other day when I said to you the other day I've -- the 31 other day being in July of 1988, where I think we're 32 down to measuring very fine grains of sands here, and 33 I also mentioned and noticed that I had forgotten all 34 about it, I mentioned the story yesterday of the rugby 35 players, it would be better if we went on with the 36 game than to worry about the rules, but I don't 37 think -- I don't think I can -- as I said before, I 38 don't think I can suspend the rules. 39 MR. GOLDIE: Well, I had thought, of course, my submission was 40 based not on your lordship suspending the rules but on 41 your lordship accepting and using a device for 42 shifting the burden of proof, that's all it is. 4 3 However, I've made my submission, my lord. 44 THE COURT: Yes, all right. I don't think I can help you at the 45 moment. Is there anything you need to add to this, 46 Mr. Rush? I don't need to hear you in reply to Mr. 47 Goldie's submission, it doesn't seem to me to be a 13747 Submissions 1 formal matter to -- 2 MR. RUSH: I think it's much more than a formal matter, my lord, 3 and I don't think it's just a matter of counting 4 grains of sand or shifting them, I think it's a matter 5 of that the plaintiffs being able to, in most 6 instances, to make the admissions that are sought as 7 admissions of fact, and that was the point of the 8 response of -- my final response to my learned friend, 9 and where we are not in that position we simply cannot 10 make the admission. There are 1,885 separate permits 11 that are involved with up to three to five -- up to 12 three or in some cases five separate fact admissions 13 on each one. 14 THE COURT: Well, I accept -- I see that, but it does seem to me 15 that it would not be beyond reasonable for the 16 plaintiffs to admit that if the Attorney General of 17 Canada has in its possession a copy of a licence 18 issued to Pete Muldoe, that that licence was issued to 19 a Gitksan person -- 20 MR. RUSH: Oh, yes, my lord. The point about Pete Muldoe is of 21 course, if my friends, concerned as they are about 22 these admissions, there have been a number of Gitksan 23 and Wet'suwet'en people that have both been called as 24 witnesses and cross-examined on territorial affidavits 25 where for the -- for many of them those permits were 26 put to those witnesses and many of them they weren't. 27 The opportunity was certainly there for my friend to 28 determine whether or not those facts could be 29 admitted. Now, I should advise your lordship that 30 we're taking steps, I've asked from the Federal 31 Government the copies of the band documents, because I 32 think that they are in a different category, and 33 we're -- if I haven't received those copies, but if 34 I -- if and when I did I would -- I think I can look 35 at those separately, but I -- I was hoping I would be 36 able to get them before today. That being the case, I 37 say, my lord, that with regard to the types of 38 admissions that are being sought in respect of the 39 vast number of individuals and separate permits, that 40 the admissions simply cannot be made in as 41 straightforward way as my friend would think. I want 42 to point out as well that with regard to what would 43 allow your lordship to make a presumption, I think 44 your evaluation of the existing fact base to make 45 those presumptions is correct in the sense that my 46 friend cannot demonstrate to the court that similar 47 original forms were issued to other plaintiffs. 1374E Submissions 1 That's not a fact in the case. My friend cannot 2 demonstrate that the licence is in the hands of the 3 licensee; that's not a fact in the case. And I say 4 that you can't then jump from the absence of those 5 facts to the presumption that similar licences of the 6 kind that is exhibited containing the facts that are 7 sought to be admitted in the Notice, that those 8 similar facts should be presumed in respect of the 9 licences. And I say that your lordship's 10 determination, or at least your tentative 11 determination on that is correct. But that's really 12 all I have to say. 13 THE COURT: All right. Well, I think at sometime counsel have 14 promised me we're going to have an argument about 15 business records, and there may be other -- there may 16 be other categories of admissibility. It's been said 17 various classifications of categories are never 18 closed, and this may be one of them, but in the 19 existing concepts of the law there may be avenues that 20 have to be explored, and until that happens I don't 21 think I can do anything about the problem Mr. Goldie 22 faces. Certainly I have never understood that the 23 court has any authority to coerce a party into making 24 any admissions at all if the system's functioning on 25 the assumption that the court does not have that 26 authority, and I think it's probably best that it 27 should not. All right. Shall we proceed with the 28 witness. 29 MR. MACAULAY: My lord, before we proceed with the witness, I 30 have to tell your lordship I have submissions to make 31 on the relevancy of most of the witness' evidence, not 32 just part, and I'm in your lordship's hands whether 33 that submission should be made before the witness is 34 sworn, after he's sworn, before his evidence is led as 35 to his qualifications or after. 36 THE COURT: I think if there's going to be a contest that it's 37 best that the witness be called and we see what he's 38 qualified to give evidence about. 39 MR. MACAULAY: This has nothing to do with qualifications, my 40 lord, this is relevance. We may have submissions to 41 make on qualifications, but if certain chapters of his 42 report are not relevant, then no point in making 43 submissions on his qualifications or lack of 44 qualifications in dealing with those chapters. 45 MR. GRANT: My lord, if I may speak here, I will be leading Mr. 46 Morrell's evidence. This is a similar issue I think 47 you faced with Dr. Daly, if you recall, in which we 13749 Submissions 1 went through Dr. Daly's qualifications, and the first 2 question that Mr. Willms asked, he raised whether or 3 not with the qualifications and relevance, and in that 4 case Mr. Willms and Miss Koenigsberg said \"Well, we 5 have concerns about the relevance of some of his 6 evidence\", and that was that very large report. I 7 think the appropriate practise, and the practise that 8 I assumed, because my friend did have the courtesy of 9 giving me notice of some of his concerns about 10 relevance, is the approach of having the witness 11 called, qualified, seeing what his areas of expertise 12 are, and dealing -- there's no -- I don't believe from 13 what either my friends have said that there's any 14 question that there is parts of his report that are 15 relevant and parts of his evidence that are relevant, 16 but there are parts that they dispute relevance, and 17 in the context of both his qualifications and the 18 context of the evidence that the court will make that 19 ruling, and I submit that that's the appropriate 20 procedure to follow. 21 THE COURT: Does your objection, Mr. Macaulay, go to the whole 22 of his evidence or just a part? 23 MR. MACAULAY: Most of it, what, 90 percent. 24 THE COURT: Well, I don't think there's anything magical about 25 calling the witness and having him qualified if his 26 qualifications are not in dispute. I think the 27 question of relevance can be determined on the basis 28 of statements of counsel, so I'm in two minds about 29 the way to proceed. You would like to do it first, 30 would you, Mr. Macaulay? 31 MR. MACAULAY: Well, it seems to me that we narrow the area of 32 inquiry into qualifications if we dispose of the 33 relevance issue in this case. 34 THE COURT: All right. And you, Mr. Grant, want to get into the 35 evidence and wait for an objection, do you? 36 MR. GRANT: Well — 37 MR. MACAULAY: I wouldn't think two sentences. 38 MR. GRANT: That would be different, my lord. I appreciate what 39 my friend's objection is on relevance, but for you to 40 make that -- and I agree that the objection -- the 41 question of relevance is something to be argued, but 42 the context in which that evidence is; in other words, 43 within the range of his qualifications and what he is 44 saying in his opinion, I submit, are important for you 45 to know to make that ruling on relevance, and I don't 46 necessarily say that means the entirety of his 47 evidence, but put it in this context of the area of 13750 Submissions 1 expertise, which is fisheries management and fisheries 2 science, I quite frankly don't think that my friends 3 and I are that far apart. I say that -- 4 THE COURT: You accept that you want the evidence in and he says 5 I shouldn't hear it. 6 MR. GOLDIE: Very slight difference. 7 MR. GRANT: No, in — I think my friend — I think my friend has 8 a concern about the characterization of the witness' 9 evidence, which if correct sustains his view, that is 10 he says this relevance is going to make in points, and 11 that point is not relevant, and I don't disagree with 12 my friend. If the evidence is going in to make that 13 point, it's not relevant, but the evidence is not 14 going in for the purpose my friend is supposing. 15 THE COURT: All right. Mr. Goldie, do you want to contribute to 16 this? 17 MR. GOLDIE: Well, I will support Mr. Macaulay with respect to 18 what I understand to be his principal objection. As 19 well, I have certain objections based on 20 qualifications, so that I can make my submissions at 21 any time. 22 THE COURT: All right. Well, if there's going to be an argument 23 about qualifications, I think I'll proceed in the way 24 suggested by Mr. Grant, and I'll deal with the matter 25 as soon as we get to the question of qualifications. 26 I must say that I think these matters very often can 27 be dealt with in the way of statements of counsel, and 28 I have in mind Mr. -- I think it was Chief Justice 29 Gayle(?), who said in Regina versus Deitrich that we 30 waste too much time at criminal trials on voir dires, 31 we should determine the admissibility on the basis of 32 statements of counsel. And I think that's a 33 commendable practise, but we haven't followed it in 34 this case, and for that reason I'll deal with the 35 question of qualifications first. You feel free to 36 object whenever you think your position is at risk, 37 Mr. Macaulay. All right. 38 MR. MACAULAY: Oh, yes. 3 9 THE COURT: Thank you. 40 MR. GRANT: Call Mr. Mike Morrell to the stand. 41 42 MICHAEL R. MORRELL, a witness herein 43 called on behalf of the Plaintiffs, 44 having been duly sworn, testified as 45 follows: 46 47 THE REGISTRAR: Please state your name for the record, please, 13751 Submissions 1 and spell your last name? 2 A Michael R. Morrell, M-O-R-R-E-L-L. 3 THE REGISTRAR: Thank you, you may be seated. 4 MR. GRANT: My lord, before asking the questions I will — 5 regarding qualifications of Mr. Morrell, I will -- I 6 am endeavouring to qualify Mr. Morrell in the field of 7 fisheries science as a fisheries scientist qualified 8 to give opinion evidence on the nature of the 9 contemporary and historical fisheries of the Gitksan 10 and Wet'suwet'en, including the Gitksan and 11 Wet'suwet'en management of those fisheries. Also, to 12 give opinions on those fisheries, that is the Gitksan 13 and Wet'suwet'en fisheries, in the context of the 14 history and current status of all fisheries affecting 15 Skeena stocks, that is the Skeena fisheries stocks, 16 and the status of all Skeena fishery stocks. Thirdly, 17 the relationship of Skeena stocks to other stocks in 18 the region as defined in map 20 of the map atlas. 19 Fourthly — 20 THE COURT: That big one that I had here? 21 MR. GRANT: It is the large map atlas. I don't believe you have 22 map 20 yet. 23 THE COURT: Oh, all right. 24 MR. GRANT: It will be tendered through this witness. Three 25 maps will be tendered through this witness actually. 26 Fourthly, the location of Gitksan and Wet'suwet'en 27 fishing sites as reflected in map 22. Fifthly, the 28 impact of fisheries management of the Department of 29 Fisheries and Oceans on the Gitksan and Wet'suwet'en 30 fisheries, historically and up to the present. 31 THE COURT: Could you let me have that one again, please, impact 32 of fisheries management of the Department of Fisheries 33 and Oceans upon -- 34 MR. GRANT: Gitksan and Wet'suwet'en fisheries, historically and 35 up to the present. 36 MR. GOLDIE: My lord, I wonder if my friend might clarify a 37 phrase. He used the phrase \"Gitksan and Wet'suwet'en 38 fisheries\". I assume he's talking about the run of 39 fish in the Skeena and Bulkley Rivers and tributaries. 40 MR. GRANT: I commenced using that term, the contemporary and 41 historical fisheries of the Gitksan and Wet'suwet'en, 42 including the Gitksan and Wet'suwet'en management of 43 those fisheries. These are the fisheries of the 44 Gitksan and Wet'suwet'en people within the territory, 45 the claimed territory. 46 MR. GOLDIE: As alleged, I mean that's an issue for your 47 lordship. 13752 M.R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant Oh, yes, it's within the claim territories. The claim territories, yes. All right. My lord, I have a document book which includes the C.V., curriculum Vitae of Mr. Morrell. Can you turn to tab 1 -- oh, possibly, my lord, just for ease, this one -- an exhibit number could be reserved for this book and then we'll mark them by tab number. I'm not certain what the next number is. fRAR: The next exhibit number will be 971. )N IN CHIEF BY MR. GRANT: Exhibit 971. Can you turn to tab 1, Mr. Morrell? I'm there. You -- you were born in Chicago, Illinois on May 4th, 1942? Yes. And this document that is set out at tab 1 is a curriculum -- is your Curriculum Vitae? That's right. And you obtained a Bachelor of Arts in biology in 1968? That's right. From Stanford University? That's right. Now, in -- you took -- what courses did you take in that -- in obtaining your Bachelor of Arts which would be relevant to your subsequent work with the Gitksan and Wet'suwet'en people? Well, in some sense my whole education is relevant to it. In terms of work leading to my biology degree, it's a core curriculum of basic biology courses, basic botany, zoology, anatomy, physiology, that sort of thing, genetics, becoming more specific to fisheries. Science tasks would be courses in ecology, statistics, basic statistics course, and a biometrics course. I spent a summer session at Stanford's Marine Institution, Hopkins Marine Station at Pacific Grove, taking intensive course work in marine invertebrate biology and icthyology. What is icthyology? Icthyology, the study of fishes. Okay. And what is biometrics? Biometrics is statistics as applied to biological problems. Did you -- Statistical analysis. 1 THE COURT 2 MR. GRANT 3 THE COURT 4 MR. GRANT 5 6 7 8 9 10 THE REGIS 11 12 EXAMINATI 13 Q 14 A 15 Q 16 17 A 18 Q 19 20 A 21 Q 22 23 A 24 Q 25 A 26 Q 27 28 29 30 A 31 32 33 34 35 36 37 38 39 40 41 Q 42 A 43 Q 44 A 45 46 Q 47 A 13753 M.R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 Q Did you use statistical analysis with your subsequent 2 work with the Gitksan and Wet'suwet'en? 3 A Yes. In analysing harvest, monitoring data in 4 particular, but in many other ways. 5 Q And did you take any courses at -- I'm sorry -- at the 6 University of Washington? It's not reflected here, 7 but if I may go back to the Stanford degree -- Yes? 8 A It seems to me that in Canada there is a distinction 9 drawn between a Bachelor of Science and a Bachelor of 10 Arts that may or may not be drawn by Stanford now. At 11 the time that I was attending Stanford all degrees in 12 biology were Bachelor of Art degrees. It doesn't 13 suggest that it's anything less than anything 14 different from a Bachelor of Science degree in a 15 Canadian university. 16 Q What did you do at Monterey at the Marine Station at 17 Pacific Grove; that's at Monterey? 18 A Pacific Grove, right adjacent to Monterey. 19 Q Yes? 20 A Normally the institution is a research and -- research 21 facility with permanent staff and professors and 22 graduate students. In the summertime they give 23 advanced undergraduate courses, at which time regular 24 students from Stanford, as well as people, many of 25 them teachers from outside the system, come to do 26 these summer courses. The summer courses consist of 27 intense field, laboratory and lecture courses in the 28 subject matter of the course. What I did when I was 29 there was spend most of my waking hours at the -- at 30 the station or in the field collecting, making 31 observations of marine life, doing lab work, listening 32 to lectures regarding both marine invertebrates of the 33 area and fishes. 34 Q And you took a course at the University of Washington, 35 or a series of courses there subsequently? 36 A Yeah. After I received my -- there was some 37 intervening years in there when I was in Chile in the 38 Marine Corps. I was there for three and a half years. 39 On my return I did a small amount of work remaining 40 from my undergraduate degree at Stanford, applied for 41 graduate work at University of British Columbia and 42 University of Washington in fisheries. At the 43 university I was accepted at both places. I couldn't 44 begin work, it was not possible to begin work at 45 U.B.C. until September. I finished my degree at 46 Stanford in approximately March 1968, and University 47 of Washington is on the quarter system, as well as 13754 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 M.R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant Stanford, so I did the spring quarter at the University of Washington in preparation for enrollment in their graduate programme at the School of Fisheries. My intention was not only to use the time but also to get a taste of that institution. And during the time that I was there I also made trips to U.B.C, and ultimately decided to attend U.B.C. So while I was spending that one quarter in University of Washington, I did course work in fisheries biology, a graduate course in fisheries biology, an advanced undergraduate course in biometrics, another statistics course. I can't immediately recall the other course work I did, there were a couple of courses I did. Q Did you take courses under Dr. Chapman at the University of Washington? A Yes. Q Who was he? A He is a statistician, well known in fisheries circles. His major published work has to do with the management of fur seal populations in the North Pacific and the statistics involved in that. Can we take the morning break, Mr. Grant? Yes, certainly. Thank you. THE COURT MR. GRANT THE COURT THE REGISTRAR: Order in court. (PROCEEDINGS ADJOURNED AT 11:15) I hereby certify the foregoing to be a true and accurate transcript of the proceedings herein transcribed to the best of my skill and ability Graham D. Parker Official Reporter United Reporting Service Ltd. 13755 M. R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Grant. 5 MR. GRANT: 6 Q Thank you. I believe when we left at the break you 7 were talking about transferring to U.B.C. where you 8 did your Masters of Science in Zoology at the 9 Institute of Animal Resource Ecology? 10 A That's right. 11 MR. GRANT: And why did you make the decision to go to U.B.C. 12 to the Institute of Animal Resource Ecology as opposed 13 to the University of Washington? 14 MR. GOLDIE: I'll concede that that was the right decision. 15 THE WITNESS: Shall I answer the question or — 16 MR. GRANT: Go ahead. Mr. Goldie's just trying to get a 17 presumption of fact here. 18 MR. GOLDIE: He's about to rebut it. 19 MR. GRANT: 20 Q I'll save that for the more important ones. 21 A I put them both on my short list because they were 22 institutions with good reputations in teaching 23 fisheries science. Many of the people working for 24 fisheries agencies of both the United States and 25 Canada have been to one or the other of those. I made 26 my choice between them on the basis of my personal 27 experience at University of Washington, my experience 28 of University of British Columbia on visiting it, 29 seeing the library, speaking to people at the 30 institute, and also on advice that I received from 31 people working in the field. I recall that Dr. Sette 32 with whom I worked at the U.S. Fish and Wildlife 33 Service -- 34 Q How do you spell that? 35 A S-e-t-t-e. -- suggested that, in a very diplomatic 36 way, that in his view University of B.C. expected more 37 of its graduate students than University of 38 Washington. 39 Q Now, the Institute of Animal Resource Ecology at 40 U.B.C, that was -- at the time that you went there 41 and may still be -- was a semi-autonomous unit within 42 the Department of Zoology; is that right? 43 A That's right. The exact administrative arrangements 44 I'm not clear about. Many of the professors of the 45 institute also held positions in the Department of 46 Zoology. 47 Q And Peter Larkin was the head of it at that time? 13756 M. R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 A When I got there Dr. Larkin, Dr. Peter Larkin, who's 2 now the Dean of Graduate Studies at U.B.C, was the 3 head of the Institute of Animal Resource Ecology. If 4 I can backtrack a bit in history, it was originally 5 established as the Institute of Fisheries under the 6 directorship of Norman J. Wilimovsky, who was my 7 research supervisor in my time there. Its focus then 8 was explicitly fishery biology, which is an applied 9 branch of ecology, population biology. At some time 10 shortly before my arrival there, the -- a number of 11 members of the institute wanted to broaden its scope 12 somewhat to include other aspects of applied 13 population biology. That was a trend that continued 14 through the time that I was there. Many of the staff 15 are best known as fishery scientists. That would 16 certainly be Dr. Wilimovsky, Dr. Larkin, Dr. Carl 17 Walters, who joined the institute during my time 18 there, Dr. J. D. McPhail. However others, notably I 19 guess Dr. C. S. Holling, who was director of the 20 institute subsequent to Dr. Larkin's term, Dr. Holling 21 sort of epitomizes another element within the 22 institute, favouring a broader view of population 23 biology, population ecology. His interest was -- he 24 started as a forest entomologist, another kind of 25 applied ecologist, acquired lots of experience in 26 mathematical modelling and became interested in human 27 ecology and was one of the spokespeople for a 28 broadening of the scope of the institute of bringing 29 in of economists, other social scientists, to try to 30 apply the techniques of population biology developed 31 in studies of animal populations to human populations, 32 and thereby crossing some academic boundaries and 33 widening the scope of the institute into the social 34 sciences. 35 Q Was that occurring while you were doing your graduate 36 work there? 37 A That's right. 38 Q Now, did you take any courses while at U.B.C. in 39 economics -- 40 A That's right. 41 Q -- that related to your subsequent work? 42 A Yes. In my -- I did -- the requirements of the 43 Masters Science degree from the institute involved 44 course work and production of a thesis. I did I 45 believe all my course work in my first year there, and 46 courses included fisheries biology -- no, I did an 47 ichthyology course there, fisheries biology, a 13757 M. R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 graduate ecology seminar, and also in my first year I 2 did a fourth year undergraduate course in the 3 economics department in resource ecology. In my second 4 year I did a graduate ichthyology course in the 5 institute. 6 Q Now, what do you -- there's two terms I'd like you to 7 explain, one that you said that Dr. Holling was 8 involved in, and that was human ecology, what do you 9 mean by human ecology? What is that? 10 A I gave a start on that definition earlier. I can 11 repeat that, and perhaps you want to ask questions 12 leading to an amplification of that. It's an 13 application of the techniques and concepts developed 14 in ecology of animal populations to human populations. 15 And that -- that in a sense develops a frontier 16 between biology and social sciences, so that 17 economics, perhaps sociology, psychology, 18 anthropology, are brought to bear on problems having 19 to do with human populations and their behaviour, as 20 animal populations. 21 Q You then mention an economics course, and I think if I 22 have my note right it was in resource ecology? 23 A Resource economics. 24 Q I'm sorry, resource economics. What did that course 25 entail and what did you do in that course? 26 A First I was required to do a crash directed reading 27 course in basic economic theory, and then the actual 28 course work of resource economics dealt with economic 29 aspects of resource management, forest management, 30 fishery management. As I recall, those were the two 31 main areas from which examples were drawn, and the 32 focus was certainly -- the reason for that focus has 33 to do with the course taking place in British Columbia 34 I'm sure. 35 Q Okay. And that was a fourth year undergraduate 36 course? 37 A That's right. 38 Q And did you do papers in that course in -- with 39 respect to fisheries? 40 A That's right. 41 Q What was that on? 42 A My term paper for that course was an analysis of the 43 federal government, I suppose at that time the 44 Department of Fisheries, in any case, the predecessor 45 of the present Department of Fisheries and Oceans', 46 policy of license limitation and its relation to -- 47 license limitation as a response to problems lumped 13758 M. R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 under the heading of the common property problem in 2 fisheries management, and the problems associated with 3 fisheries and other resources that are considered in 4 some systems as being available to anyone with the 5 wherewithal to harvest them. And that leads to 6 certain classic problems, which possibly we'll get 7 into later. 8 Q And you made observations of that kind of problem 9 before you took this course while you were in Chile, 10 for example? 11 A Oh, yes, common property problems are endemic to many 12 fisheries throughout the world. 13 Q I'll come back to that point and you can explain it. 14 You did a Masters thesis that you've -- at U.B.C. on 15 \"Microcosm experiments with laboratory populations of 16 guppies and their implication for fisheries 17 management\", and I'm reading from your curriculum 18 vitae. Can you explain what that thesis was about? 19 A Okay. Incidentally, that's the topic, not the title 20 of the thesis. 21 Q Right. 22 A I don't recall the title, but it went more 23 specifically to the subject matter. It was a study of 24 reproductive response of female guppies to competition 25 with other guppies for food or to food stress you 26 could say. What I was studying was a phenomenon that 27 had been observed by others in wild and laboratory 28 populations wherein a population of organisms 29 effectively adopts a different strategy of 30 apportionment of the energy that they dedicate to 31 reproduction, in response to changing conditions of 32 competition or population density. 33 What I found was that female guppies that were 34 stressed for food, as would happen in a high 35 population situation, produced fewer but larger young 36 than female guppies raised in a more favourable 37 environment which would simulate low population 38 density, low competition, generally good -- good 39 conditions from the point of view of the population 40 members. Under the lower population, better 41 conditions, the guppies produced more numerous but 42 smaller young with the same amount of effort; all 43 other things being equal. 44 Q Okay. 45 A The application of that to fisheries management is 46 that one of the fundamental concepts of fishery 47 biology and indeed population biology in general, is 13759 M. R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 that many of the characteristics of populations vary 2 according to the density of populations, in effect, 3 the size of the populations, and this variability 4 happens in such a way that populations tend towards 5 stable numbers. In other words, as in the example of 6 reproductive rate which is specifically what I was 7 looking at, at high population levels reproductive 8 rates tend to drop. As population is lowered, 9 reproductive rates increase. In other words, a 10 reproductive rate responds to changes in density, as 11 if -- so as to make the population tend towards a 12 stable equilibrium position. 13 The importance of this for fisheries biology is 14 that as you reduce a population of fish by harvesting 15 it, you can expect the reproductive rate of that 16 population to increase in the same way that the 17 guppies produced more numerous young at -- under 18 conditions of lower competition, smaller populations. 19 Since lower populations reproduce at a higher rate, 20 they produce more young in excess of the requirements 21 to maintain the population stable at that level than 22 they would at a higher population level, and the 23 result of that is that there's a higher sustainable 24 yield at a lower population density. It appears 25 paradoxical perhaps at first sight. 2 6 Q Just a moment. 27 A I'd like to make one more comment to perhaps clarify 28 that apparent paradox. 29 Q Yes. 30 A A definition of sustainable yield would be the yield 31 that that can be taken from a population without 32 causing a long term change in population size. You 33 take a harvest, clearly that reduces the population in 34 the short-term, but the population by reproduction 35 quickly replaces that difference, and so that yield is 36 available to be taken in the next unit of time, the 37 next year or the next generation. 38 Q And when you're talking about a lower competition 39 you're talking about on, for example, with salmon, the 4 0 spawning grounds, lower competition amongst the 41 species, not a competition of harvesters? 42 A No. 43 Q Yes. Now, this is demonstrated -- is this 44 demonstrated by standard -- a standard graphic 45 analysis? 46 A Sure. At the centre of fisheries management theory is 47 this idea that lower populations reproduce at a higher 13760 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. GRANT: THE COURT MR. GRANT M. R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant rate than higher populations. There are many mathematical representations of this that underly population analysis to determine the proper rate of harvest, or the association among a given rate of harvest, a given population size, and a given sustainable yield. One such model is one associated with the name of W. E. Ricker who has worked for the Fisheries Research Board of Canada and later the Department of Fisheries and Oceans -- all the same institution, but changing names -- for many many years. He's presented many papers in the -- in this general field as in others. The general field is called stock and recruitment analysis, and I've presented an example of that in one of the appendices of my opinion report, appendix 4 I believe. Okay. Just a moment. My lord, just so that the reference can be referred to, and I will be asking to reserve the next number for this, Volume 2 of the Morrell document book consists -- Tab 2? Volume 2, which I'm just going to tender, consists of the January 31st, '87 Morrell opinion, and together with that the six appendices. And I'm not -- I just want to refer the witness to this Ricker curve in appendix 4, which is at tab 5. And my friends have got all of these now, so I did not -- they were already delivered to my friends, so I haven't reproduced them needlessly once again, but that's what it consists of. Okay. I'd ask that the next number be reserved for it, and it will be -- it is Volume 2 of the Morrell document book, but it is the Morrell opinion together with six appendices. Now, I'd ask -- So that's 972 will be the — THE REGISTRAR: The book, and then the tabs can be dashed. MR. GRANT: Q I'd ask if you could refer to appendix 4, and because the opinion is at tab 1, my lord, appendix 4 is actually at tab 5. And what I'd like you to do, just to assist in your explanation to his lordship what you're referring to, is just to refer to the graph and explain -- I think it's at A4.1 after page 3; is that right? Okay. Is that the right table in that? Yes, that's the basic model. THE COURT MR. GRANT THE COURT: A Q A 13761 M. R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. GRANT THE COURT MR. GRANT THE COURT MR. GRANT Q You have that? The Ricker stock recruit model. Whereabouts? It's right after page 3, my lord, and it's sideways -- Yes, I have it. Thank you. Ricker stock recruit model. There is a series of tables, but this is the first one. Can you just explain for his lordship what that is about or represents? This is one of the models that Ricker uses and is accepted in fisheries management? A That's right. The reference is included in the appendix here. Along the horizontal axis -- along the horizontal axis is represented the size of a population of spawners. I'll talk about this in terms of salmon biology. It could apply to any sort of fish population. The units are arbitrary. On the vertical axis is indicated the mature progeny that result from the spawning of the spawner population. The relationship between the size of the spawning population on the horizontal axis and their ultimate mature returning progeny is indicated by the broken line that goes in a concave downwards curve. The solid line running at a 45-degree angle, it's not actually in this case a 45-degree angle, but the solid line running at an angle rising to the right across the graph, is simply a reference point plotted such that one unit on the horizontal axis corresponds to one unit on the vertical axis on that line. In other words that is the relationship between spawning population and returning progeny that ensures that the spawning population is just replacing itself. THE COURT: The mature progeny is mature returning progeny is it? THE WITNESS: That's right. The next generation of spawners before fisheries take place. THE COURT: How do you ever know that? THE WITNESS: Pardon me? THE COURT: How do you ever know what the result is before fisheries take place, or are you just -- THE WITNESS: It's often very difficult to measure that in practise. THE COURT: Is this a projection? THE WITNESS: It's possible to collect data on it. The ideal situation would be a completely enclosed population, as in a population of a lake species, where you can measure not only -- you can estimate not only the 13762 M. R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 spawning population, but also by keeping catch records 2 you can -- you can measure the part of the population 3 that is taken as harvest. 4 THE COURT: I see. 5 THE WITNESS: In a salmon population it's rather more 6 difficult, but attempts have been made to do it. 7 There has been one done on the Skeena fisheries and 8 there's a reference to that in one of my reports here. 9 THE COURT: All right. 10 THE WITNESS: The exercise in general is to identify those 11 returning progeny that are taken in the fisheries, and 12 there are various techniques for doing this. The 13 nature of the relationship though is clear on the 14 basis of theory. There are several points on the 15 curve that you know to be true a priori. Notably at 16 the beginning of the curve when there's zero spawners, 17 you know you have zero mature progeny. It's also 18 intuitively obvious that as the numbers of spawners 19 goes up, the number of progeny increases, and it is 20 further confirmed by experience and observation of the 21 real world that populations do not expand indefinitely 22 and, therefore, as the number of spawners increases, 23 at some point the numbers of progeny reproduced per 24 spawning adult must decrease. And so you know that in 25 a -- in general, the curve is going to have this 2 6 concave downwards form. 27 And if we know those three things, which are 28 reasonable assumptions, then we can -- then we can 29 postulate that there must be an equilibrium level of 30 population represented by a spawner population of 1.0 31 towards the right of the horizontal axis at which the 32 spawning population just replaces itself. At smaller 33 populations, the spawning population produces a total 34 return of progeny that is considerably in excess of 35 the spawning population, and that difference 36 between -- represented graphically here, between the 37 replacement line and the dotted line, is what's called 38 the harvestable surplus or the sustainable yield. 3 9 MR. GRANT: 4 0 Q Go ahead. 41 A Okay. And to repeat the definition of that, that 42 yield can be taken, and by taking that harvest you 43 reduce the relatively large returning progeny 44 population to a level equivalent to the parent 45 spawning population, and by definition then you have a 46 sustainable yield. 47 That's represented in another way on the next page 13763 M. R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 where with the same horizontal axis what's graphed is 2 just that, sustainable yield, and you get a 3 dome-shaped curve. The exact location and shape of 4 this curve, of course, is going to vary from 5 population to population in the real world, but by the 6 same line of reasoning that applies to the first 7 graph, we can argue a priori that the curve should 8 have a dome shape and that there should be a maximum 9 sustainable yield at some intermediate population 10 level less than the largish equilibrium population 11 that we would expect to be achieved if there were no 12 fishery at all. And further reduction in the spawning 13 population below the point that produces the maximum 14 in this dome, would result in smaller sustainable 15 yields. 16 Q Okay. What I'd like to do is to move you from that -- 17 A Okay. 18 Q -- to another concept which is alluded to so far this 19 morning, and that is three terms. When I introduced 20 your qualifications, I introduced you as a fisheries 21 scientist. When you talk about your thesis topic, 22 which you've just explained, and the Ricker curve, you 23 talk about fisheries management. 24 A Okay. 25 Q And you've also alluded to fisheries biology. Can you 26 explain those terms or their interconnection, if any? 27 What you mean by those terms? 28 A List the terms for me again, please? 29 Q Fisheries management, fisheries biology, and fisheries 30 science? 31 A Okay. They overlap. Let's say fishery science is the 32 broadest, and I would define that as the study of fish 33 populations and the humans that harvest them. I think 34 I'd leave it simple as that. Fisheries management 35 then would be the body of knowledge associated with 36 setting policy regulations otherwise manipulating both 37 the fish populations and the harvesters in an effort 38 to achieve a socially desirable result. Fisheries 39 biology taken literally could be seen to be a study of 40 the fish populations -- well, not even that. Let me 41 complete that thought. Could be taken literally to be 42 just a study of the fish populations, except for the 43 term fishery which implies the interaction between the 44 human and the fish populations. So, as I say, the 45 three terms overlap a good deal and are used to some 46 degree interchangeably. They certainly all relate to 47 the same body of knowledge. 13764 M. R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 Q Now, in the course of study of any of those three, or 2 let us say fisheries science, does that involve, as a 3 person with your background, or fisheries manager let 4 us say -- I'm sorry. Does the study of fisheries 5 science involve the study of the humans who harvest 6 the fishery or utilize the fishery? 7 A Yes. 8 Q Okay. Now, in the context of fisheries managers, do 9 they -- are they involved in the study of the 10 phenomenon of the harvesters as well as the fish 11 stocks? 12 A Certainly. 13 Q Okay. 14 A As I mentioned in the definition, a fisheries manager 15 is attempting to influence both the fish populations 16 and the harvesters so as to achieve a desired result 17 at the simplest level having to do with producing a 18 desired mix of, in a given year, of harvest and a 19 residual unharvested population to produce future 20 harvests. 21 Q Okay. Now, I'd like to, having had that introduction 22 of those concepts, I'd like to go to your relevant 23 work experience from your curriculum vitae, and you 24 start out -- the first relevant work experience you 25 refer to is a fisheries technician with the California 26 Department of Fish and Game involving field studies of 27 marine sport fish between 1960 and 1964. This was 28 work you did while you were at Stanford; is that 29 right? 30 A That's right. 31 Q Now, can you explain what work you did there that was 32 relevant to your subsequent work with the Gitksan and 33 Wet'suwet'en and what experience you've had? 34 A Okay. I was working for the California Department of 35 Fish and Game on a long-term study of sport fisheries, 36 marine sport fisheries. My work on that project 37 involved travelling to the coast, sampling catches of 38 sport fishermen by various methods, travelling to the 39 places where people fished from the shore or from 40 docks, and interviewing fishermen making various 41 measurements of their catch identifying the catch, 42 weighing it, et cetera. I also rode sport charter 43 boats for a twofold purpose. In part I was capturing 44 and tagging the same fish that they were -- that they 45 were fishing for, and also in the course of that I 46 would sample their catches, make the same sorts of 47 measurements that I did in the shore sampling, and the 13765 M. R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant other sort of work I did would be to wait at fishing docks where sport fishermen landed with their catches, meet the sport fishermen, obtain their permission to view their catch, identify it, and make the measurements that I had to make. Okay. That's the field data collection part of it. In addition, I did work involving compilation of data -- Okay. I'll come to that in a moment. Okay. Okay. Now, in the course of your field data collection, did you collect data as to fishers' strategies? I collected data on fishing effort, that is, the locations which they fished, the amount of time they spent fishing, the sort of gear they were using. That's the data collection aspect. The relevance of those data was to assist in estimation of the total catch, and also particular -- and also from those data one could make inferences -- from those data and related information that wasn't collected as data, but that came as a result of associating with the fishermen and being in the field, to make inferences regarding the strategy of the fishers. For example, in the charter boat fishery there were trade-offs between distance travelled, cost to the operator, what they charged the people who were paying for the charter, and the return that they could expect, the catch that they could expect. In general, more distant grounds, cost more to get to, both to the operators and to the fishermen, and produce better catches. Other locations would be associated with catches of different species, for example. Okay. Now, that aspect of the data, does that have anything to do with fisheries science? Certainly. Can you explain it? Okay. The — : Mr. Grant, I'm sorry, but I'm not sure where this is going, but is this evidence preliminary to a discussion of the current fishery policies of the Department of Oceans and Fisheries or something like that? Well, there's -- I don't think I should hear it if it is. This, of course, is with respect to the California Fish and Game Branch. Well, I know, but I assume that it's got some 1 2 3 4 5 6 Q 7 A 8 9 Q 10 A 11 Q 12 13 A 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Q 34 35 A 36 Q 37 A 38 THE COURT 39 40 41 42 43 MR. GRANT 44 THE COURT 45 MR. GRANT 46 47 THE COURT 13766 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. GRANT THE COURT MR. GRANT THE COURT: MR. GRANT: M. R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant preliminary relevance to what we're going to get to. Yes. And — This is what I would broach it on. My lord, there's -- I'm not here to pass on the policies of the Department of Oceans and Fisheries. And I -- and it is my position that the evidence of this witness is not to give you -- to give you a factual basis to pass on the policies of the Department of Fisheries and Oceans, and that's where I say that the -- the intent of this evidence is not to do that, but this evidence here isn't even related to that, my lord. My friends have a couple of objections that at least they've alluded to in correspondence or referred to in correspondence, and there's another that is unrelated, and that is this witness' research with the Gitksan and the Wet'suwet'en in terms of the Gitksan and Wet'suwet'en management of the fishery. That evidence is relevant as to the very issues set out in the statement of claim. Well, I think that I can understand the relevance of that. I don't want to jump into this particular body of water prematurely, but it seems to me that we're a long way afield. Well, my lord, if I could just clarify for your lordship further, I -- the challenge that my friends make to that, as I understand it, is not a challenge of relevance, but they're saying that this witness is not qualified to give opinions as to the methodologies, as to the fisheries management or the management of the fisheries by the Gitksan and Wet'suwet'en, where this witness has obviously relied upon, for example, interviewing techniques that he's done or persons under his direction have done, and this kind of thing. And they're saying that their objection is this witness is not an anthropologist. And I'm not suggesting for a moment that this witness is an anthropologist, but in the field of fisheries science, I'm exploring what's recognized and accepted in that field in terms of research methodology, and it is more than counting fish. And that's the focus of this evidence, and it's not focused on the policies of DFO. That's the focus of this on qualifications because I saw that, at least from the correspondence from my friends, and what they have said thus far, that that was one of their approaches, their challenge THE COURT: MR. GRANT: 13767 Discussion 1 to his qualifications and certain aspects of his 2 report. 3 THE COURT: Well, all right. I won't do more than I've done up 4 to now to alert you to my concern about the indication 5 that I see developing here, and I hope I'm wrong in 6 that. I'll allow you to proceed, but soon we have to 7 come to the question of relevance of the evidence to 8 the issues in this case. 9 MR. MACAULAY: My lord, I'm going to submit that the whole 10 report is dedicated to the proposition that DFO has 11 mismanaged the fishery and that it ought to be turned 12 over to the Gitksan and Wet'suwet'en. That's what the 13 report is about. And I have a reference on almost 14 every page of the report to that effect. And that's 15 why I wanted to make my submission on relevance. My 16 submission is mainly on relevance, not on 17 qualifications. I may have some submissions on 18 qualifications. 19 THE COURT: Well, I understand that, Mr. Macaulay. 20 MR. MACAULAY: And your lordship has picked up right away on the 21 basis on which I make my submission. 22 THE COURT: Well, I did it all the way from the coast of 23 California, Mr. Macaulay. 24 I'll allow you to proceed, Mr. Grant, keeping in 25 mind what I've said and what your friend has said. 26 MR. MACAULAY: I don't say we're prejudiced by hearing this, 27 it's just that it's wasting time. 28 THE COURT: Well, that may be. It seems to me, Mr. Grant, that 29 it would be perfectly competent for the witness, and I 30 know these things can't be packaged as tidily as I'm 31 suggesting, it would be perfectly competent for the 32 witness to be telling me what the Gitksan and the 33 Wet'suwet'en have done and either historically or in 34 the modern era of managing or contributing to the 35 management of the fishery, but it would not be 36 relevant for the witness to tell me all the wrong or 37 bad or questionable things that the Department of 38 Ocean and Fisheries have done. That may be too 39 simplistic, but that's rather as I see the issues in 40 this case. But I'll be glad to hear what you have to 41 say as the matter develops. 42 MR. GRANT: Well, maybe Mr. Macaulay has changed his position, 43 and I'm the last to want to spend more time on 44 qualifications than necessary, but as of March 9th Mr. 45 Macaulay said, or through the voice -- yes, it was 46 signed on his behalf, that: 47 1376? Discussion 1 \"We will also object to those portions 2 of the report and the appendices which 3 purport to offer anthropological opinions.\" 4 5 And then he says, an example of the type of 6 statement that we object to is obtained at page 4: 7 8 \"'Indian fishing has always been regulated by 9 customs and laws deeply imbedded in the 10 Indian cultural tradition deriving from 11 generations of experience of the 12 relationship between fish and people.'\" 13 14 Now, what this witness -- this witness has studied 15 the Gitksan and Wet'suwet'en fishery. He studied the 16 Gitksan and Wet'suwet'en management of the fishery 17 historically and in the present. It's one of the 18 areas of his qualification. If Mr. Macaulay is saying 19 that he does not object to that now, then I don't have 20 to pursue this area of qualification at all. 21 THE COURT: Oh, I think he still says that that is beyond the — 22 well, no, I don't think he -- I'm not sure what his 23 position would be with respect to that. He says now 24 that -- he says that it's not relevant, but he doesn't 25 say even now it goes to qualifications. It's Mr. 26 Goldie who's concerned about qualifications. 27 MR. GOLDIE: Well, to take the example that my friend is using, 2 8 we've had primary evidence on what the laws of the 29 Gitksan are. We shouldn't hear it through the lips of 30 this witness. He has no qualifications with respect 31 to the laws of the Gitksan or the customs of the 32 Gitksan. We've -- I have a binder of references which 33 the lay witnesses, who are in a position to talk about 34 such things, have talked about them. 35 THE COURT: Well, I think that we run the risk of misleading 36 ourselves when we start labelling things. If you're 37 talking about the laws and the customs, he may not be 38 competent, but if you're talking about fishing 39 practises, he may be. 40 MR. GOLDIE: Well, I don't have any objection to him describing 41 what happens, but to attach to what he sees something 42 which has happened for millenia, is objectionable. 43 THE COURT: Well, this may be another example of the different 44 solitudes that we're concerned with. What I might 45 call practises may amount in Gitksan terminology to 46 law or custom. They may be the same thing. 47 MR. GOLDIE: They may well be, but that has been described by 13769 Discussion 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 witnesses who have asserted \"We are the people who obey those laws.\" THE COURT: I see we have a problem, but let's carry on. MR. MACAULAY: Before we carry on, my lord, I think I'm entitled to quote from a letter that my friend quoted from partway through. I begin my letter by saying: \"Specifically we object to those portions of the report and the appendices which challenge the existence of Canada's jurisdiction over fisheries and criticize the management policies of the Department of Fisheries and Oceans.\" And then I refer in my quote to your lordship's reasons for judgment of February 18th, 1988. And then I go on at the second page of the letter, half-way down the second page, to deal with the matters that would come properly under the heading of qualifications. I don't see how that involves a change of position. That's my letter of March 9, 1989. : Yes. Well, there were two objections, and my friend's made clear the first one he's standing on. He made that very clear this morning, and I understand that. : Yes. All right. : And, of course, I think I've directed you to this very point of the position that I take which is that the relevance of this, of any evidence about DFO fisheries management, is the impact of that management on the Gitksan and Wet'suwet'en fisheries. That's all; historically, and in the present. In other words, does it still exist? Does it exist in a modified form, does it not exist, are certainly issues that your lordship is going to have to rule on, the ownership and the jurisdiction or the management of the fishery itself. : Well — : But I think, as the evidence will come out, the witness has done other work which bears on what my friend says about alternatives, but that's not -- : Well, let me just lay on you a concern I have. Let us assume that the impact is such that the Gitksan and Wet'suwet'en are all starving, or that they've had to completely change their diet from a fish-based economy to something quite different. How would that affect the question of ownership and jurisdiction? MR. GRANT THE COURT MR. GRANT THE COURT MR. GRANT THE COURT 13770 Discussion 1 MR. GRANT: Well, I'm now speaking from memory and was quoted 2 speaking off the top of my head earlier this morning 3 so I'm reluctant to do it, but, as I recall, there's 4 an issue of \"abandonment\", for example, raised by the 5 defendants, and the question of the importance of the 6 fishery today to the Gitksan and Wet'suwet'en 7 certainly is evidence of the continued operation of 8 their fishery. It's not -- it's not the only 9 evidence, and I'm certainly not suggesting it would 10 be, but that evidence would be relevant for your 11 lordship in concluding whether the Gitksan and 12 Wet'suwet'en fishery and the ownership and operation 13 of that fishery still exists. 14 THE COURT: Well, you see, I have abundant evidence, I guess I 15 shouldn't call anything abundant because it may turn 16 out to be insufficient, but at the moment I have a 17 body of evidence which -- from the last witness, who 18 said that when Mr. Brown arrived at Fort Babine in 19 1822 or 1823 he found fish economies, and I'd be 20 surprised if anyone challenges that then or now, but 21 let's accept for the moment that that was the case at 22 the time of contact. 2 3 MR. GRANT: Yes. 24 THE COURT: How does the mismanagement of the fishery, if such 25 it should be, from that time until this, affect the 26 question of ownership and jurisdiction? 27 MR. GRANT: Well, that's where I say my friends are -- my 28 friends, of course, have framed that term, the 29 mismanagement or -- of the fishery. It's not a 30 question here of the management or proper or improper 31 management of the fishery by DFO. I'm not saying 32 that -- that's certainly not germane, and I concur 33 with your lordship on that. What is germane is the 34 impact of the conduct of DFO on the Gitksan and 35 Wet'suwet'en, given that you have Dr. Ray saying that 36 in 19 -- at the time of contact, you have evidence now 37 that at the time of contact you had fish economies. 38 Do you have fish economies today? Are those fish 39 economies -- are they within -- are they being 40 operated and managed by the Gitksan and the 41 Wet'suwet'en, or by the Department of Fisheries and 42 Oceans, or a mixture of both, and what are the rights 43 of the Gitksan and Wet'suwet'en to their fishery as of 44 the date of the issuance of the writ? And in looking 45 at that, what is the scope of their management, and in 46 looking at the scope of their management, you can't -- 47 we cannot take this in isolation, DFO's fisheries 13771 Discussion 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT: management. DFO exists. It's existed for some time, and its impact on the fishery is there. I mean, Mr. Goldie's request this morning and his concern about food fish permits accentuates the very issue that clearly that that is an issue raised by the defendants and it's an issue that I say we can deal with. But it's not -- ultimately at the end of the day you may find or you may not find that fisheries managed properly or improperly, and I concur that's not the issue for this witness, but my friends I think are misled because the appendix 1 is a report prepared by Mr. Morrell which he was going to refer to on the Gitksan and Wet'suwet'en fishery in the Skeena River system in which he does look at alternatives, and that the mandate of that report was different than the mandate of his evidence, but there's material in that report that he will be referring to and relying on here. All right. Well, as I say, I'm not going to stop you, Mr. Grant, not at the moment, but I'm becoming uneasy about the magnitude of the problem that we have with this witness which I think is much more severe than we've had with others. Let's see how we get along. Okay. Do you think there's any point in diving back into evidence or should we -- Maybe we can break, my lord. We're going to be breaking in four minutes anyway. I think we'll adjourn now. THE REGISTRAR: Order in court. This court will adjourn until two. (PROCEEDINGS ADJOURNED FOR LUNCHEON RECESS) I hereby certify the foregoing to be a true and accurate transcript of the proceedings herein to the best of my skill and ability. Tanita S. French Official Reporter MR. GRANT THE COURT MR. GRANT THE COURT 13772 Discussion 1 2 3 4 5 6 (PROCEEDINGS RESUMED AT 2:00) 7 8 THE REGISTRAR: Order in court. 9 THE COURT: Mr. Grant. 10 MR. GRANT: 11 Q Thank you. Just to bring us up to where we are, my 12 lord, just regarding this work with where we left off, 13 Mr. Morrell, was the work with the California 14 Department of Fish and Game, and as I understand your 15 evidence in that work which -- that work spanned five 16 years? 17 A Right. 18 Q And it -- included in that work you had contact with 19 fishermen and interviewed fishermen? 20 A That's right. 21 MR. GOLDIE: I think he said sports fishermen. 22 MR. GRANT: 23 Q Yes. It was sports fishermen that was involved in 24 that study, yes? 25 A Right. 26 Q And you were involved in catch and data collection? 27 A That's right. 28 Q You were involved in the tabulation of data? 29 A Yes. 30 Q And you were involved in analysis of total catch 31 estimates? 32 A I was involved in some steps of that process. 33 Q Yes, okay. And during the course of that work with 34 the sports fishermen did you learn about methodology 35 of approaching sports fishermen when you were doing 36 that type of data gathering? 37 A It was one of the key things I learned about in the 38 course of that work. I was wearing something of a 39 uniform with a shoulder patch identifying me as 40 representative of California Department of Fish and 41 Game, and that to most fishermen means game warden, 42 and so their initial response when I show up is \"Maybe 43 I've done something wrong, I'm being investigated\", 44 and so my initial task was to reassure them that I was 45 collecting data on their catch, I was interested in a 46 description of what they were actually doing. I 47 wasn't passing judgment on whether it was legal or 13773 M.R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 illegal, but I was collecting research data, and that 2 what I was interested in was the actuality of what 3 they were doing and that I was not threatening them in 4 any way. 5 Q Now, I would like to move to the second relevant work 6 experience. You were a fishery technician with the 7 U.S. Fish and Wildlife Service of the Bureau of 8 Commercial Fisheries. And in that work you were 9 involved in analyses of historical catch, among other 10 things; is that right? 11 A That's right. 12 Q And was this involving what types of -- you were 13 involved with the commercial fishery in this work? 14 A That's right. 15 MR. GRANT: Can you just summarize the relevant aspects of that 16 work and why you say that's relevant to your 17 subsequent research? 18 MR. GOLDIE: Perhaps, my lord, when my friend says \"relevant to 19 your subsequent research\", I realize he's trying to be 20 accommodating, but I think the witness should just 21 tell us what he did rather than endeavouring to pass a 22 judgment on what is relevant or what isn't relevant. 23 MR. GRANT: Well, this is under the heading on this Curriculum 24 Vitae of \"Relevant work experience\". His Curriculum 25 Vitae was prepared for this, he may have done many 26 things. 27 THE COURT: All right. I think we will have to take Mr. 28 Goldie's observation as a proper one, not for the 29 purpose of expediting the evidence, it will have to be 30 understood that you're not asking the witness to pass 31 on the rational relevance of anything, but merely 32 directing his attention to the subject matter of the 33 report. 34 MR. GRANT: That's right, the work that is relevant to the 35 subject matter of his report. 3 6 THE COURT: Yes. 37 A Would you repeat the question for me, please. 3 8 MR. GRANT: 39 Q Okay, I'll probably rephrase it. Which -- can you 40 explain that work in the context of what you have 41 subsequently done in the preparation of the report for 42 this court, relevant experience you obtained? 43 A Okay. The setting is a small laboratory on the 44 Stanford campus of the U.S. Bureau of Commercial 45 Fisheries, an agency of the U.S. Federal Government. 46 Dr. O.E. Sette, S-E-T-T-E, quite a renowned fishery 47 scientist, was head of the lab, and in many ways the 13774 M.R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 lab was created to support him in his thinking, his 2 research. The project of his that I was involved in 3 was an analysis of long-term catch records of the 4 Alaska herring fishery, the Alaska commercial herring 5 fishery from three separate areas, and he was tackling 6 the -- a classic problem in much of fisheries science 7 of trying to distinguish between actual abundance of a 8 fish population and its availability or catchability 9 to the fleet. When you're dealing with catch 10 statistics the results of the interaction between the 11 fishers, their technical capability, the weather and 12 the abundance of the fish, abundance of fish is only 13 one of many factors that influences the level of 14 catch, and so he was developing an original analysis 15 to attempt to grapple with this problem. I was the 16 person handling the data, the long data series from 17 three different places. As I recall, the earliest 18 catch statistics were from 1919, and I was doing the 19 work in 1962, so we're talking maybe 40 years of catch 20 data. 21 Q Um-hum. And did you deal with that data from that 22 40-year time span as part of your work? 23 A That was my job, to -- at that time computers were not 24 widely used in fishery research, they were used in 25 some quarters, and Dr. Sette's lab was beginning to 26 computerize some aspects of their work, but I was 27 doing many of the operations that today would be done 28 by a computer on a desk calculator. I was doing 29 repetitive calculations with a great mass of data, 30 generating lots of paper and having large bookkeeping 31 and filing problems. 32 Q Well, did you do similar work in your research of the 33 Gitksan and Wet'suwet'en fishery, albeit in different 34 ways? 35 A There were certainly similarities in the volume of 36 data. The gathering of data from disparate sources, 37 having to think about the nature of the problem, and 38 apply statistical and mathematical techniques that 39 were appropriate to the task at hand given the 40 limitations of the available data. 41 Q Was this -- would this work you did there be part of 42 what's known as applied mathematics in terms of or 43 with respect to the statistical data? 44 A Sure. 45 Q I would like to go to the next work you did relating 46 to this area, and that is your work with the Peace 47 Corps in Chile, and you describe it as biological and 13775 M.R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 organizing work with fishing cooperatives, and that 2 was from 1964 until 1967. Now, can you just explain 3 in brief to the court what you did when you were in 4 that work that has a bearing on your subsequent work 5 with the Gitksan and Wet'suwet'en? 6 A The most important part of that job for the work we're 7 talking about here was the first two years when I 8 lived in a small coastal fishing village, well off of 9 the main highway, working with fishing people, living 10 in a remote area, operating in a commercial fishery, 11 but quite marginal to the main-stream economy and 12 society of the country. They were in transition 13 between very low technology, a very low technology 14 approach to fishing, that is they -- until a few years 15 before my arrival they had not had motorized vessels, 16 they had not had synthetic twines and ropes, operated 17 with largely home-made fishing gear. At the time that 18 I arrived they were in their second or third year of 19 using larger motorized vessels, fishing more gear, 20 they had capability of operating farther from their 21 home port in rough weather than they had before. 22 Q What -- this fishery was a commercial fishery? 23 A That's right. 24 Q And these -- the people in this village that you were 25 working with and this fishing cooperative, were they 26 dealing with what is known in the fisheries parlance 27 as a common property fishery? 28 A It was a common property fishery, as are most 29 fisheries of the world, I would say. That is, no one 30 of the fishermen, no group of the fishermen had 31 anything like ownership rights to the fish until they 32 were captured, and the fish belonged to whoever could 33 capture them. That leads to some very vexing problems 34 in terms of fisheries economics and also in terms of 35 fish population management. 36 Q Just one moment, please. Now, in terms of your work 37 with the people there, you said this was in a remote 38 area. You've already described about your research 39 methods with the California Fish and Game branch with 40 the sports fishermen. Did you develop, in terms of 41 communication with people in terms of your study of 42 what was going on, similar research methods in terms 43 of interview contact and this type of thing? 44 A Um-hum. I was originally assigned to that fishing 45 cooperative because of my background in fisheries. I 46 don't think the Peace Corps really had a very clear 47 idea of what was required under the circumstances. 13776 M.R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 The problems that people were having did not relate a 2 great deal to management of the fishery. Their 3 problems had much more to do with marketing and 4 dealing with the consequences of the common property 5 problem. I, out of my own interest and because I was 6 living in the village and wanted to understand what 7 was going on, went fishing with the fishermen, paid 8 attention to how they fished, tried to understand why 9 they did what they did, made the decisions that they 10 were making. My focus in that was the principal focus 11 of the cooperative, which was dealing with the 12 marketing problems that they were dealing with. The 13 situation they were in before the cooperative was 14 that -- that they were -- they were forced to sell 15 their catch to the few people in the village that had 16 motorized vessels, and could take the catch a two-hour 17 trip up a river to the nearest road access. It wasn't 18 practical for the fishermen to take it up the river 19 themselves, and so they sold in the village. The 20 cooperative was an attempt to skip over the middle men 21 in the village with the motorized vessels by giving 22 the fishermen a way to market their fish directly 23 through the town called Baldevia(phonetics), which was 24 at the road. 25 Q Now, from your observations and work there for two 26 years, were there any analogies that you drew from 27 that experience and from the situation those fishermen 28 were in in Chile and your observations of the Gitksan 29 and Wet'suwet'en fishery? 30 A I got there at an opportune time to see the 31 development of the difficulties associated with the 32 common property problem. The fishermen had, with 33 acquisition of motorized vessels and more efficient 34 fishing gear, increased their catching power a good 35 deal. In the marketing situation that they were in 36 catching more fish didn't necessarily mean that they 37 made more money, because they were competing with each 38 other to sell to the few buyers. So to a certain 39 extent the more they caught the lower the price was. 40 Also, they were having to make more money in order to 41 pay off their new vessels and gear. A consequence of 42 that was that they ranged further afield, they put 43 more pressure on the stocks, they had to invest more 44 time, effort and money in making their catches. It 45 was a classic tragedy of the common situation, that's 46 the short term for it. That is, they -- each of -- 47 each of the fishermen was competing with all of the 13777 M.R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 others to increase his share of a limited resource, 2 and the only way he could practically do that was to 3 catch as much as he could as fast as he could, even 4 though this didn't work at all in his long-term 5 interest in that it tended to deplete at least the 6 most accessible stocks, and even in the short term it 7 didn't work as well as it might in individual 8 fishermen's self-interest in that they were competing 9 with each other to market their catch. 10 Q What was the analogy of that description you said with 11 the Gitksan and Wet'suwet'en, with your study of the 12 Gitksan and Wet'suwet'en and Skeena fishery? 13 A Okay — 14 MR. GOLDIE: Well, I object to that, my lord. He was asked what 15 are the analogies. He's described a series of events 16 when there is an analogy for your lordship to 17 describe. 18 THE COURT: I lost what the specific question was to which the 19 objection was taken. 20 MR. GRANT: Well, I had asked him what was the analogies between 21 what he learned there with respect to the Gitksan and 22 Wet'suwet'en, and of course I'm focusing here on 23 experience as part of his qualifications, my lord, and 24 the witness -- I do agree with Mr. Goldie, the witness 25 described a number of things that happened there. Now 26 I'm trying -- I want to bring him back to that point 27 and say what analogy are you -- what -- and maybe I 28 framed the question not as good a way as I could, but 29 I want to know what the relationship -- how that 30 assisted him with respect to his work with the Gitksan 31 and Wet'suwet'en in preparing this opinion that's 32 before your lordship. 33 THE COURT: Well, I'm — I must say, I have great difficulty 34 ruling on a matter of this kind. It doesn't seem to 35 me to bear much relation to the issues in this case, 36 and it only would be justified as part of the 37 qualification of the witness, I suppose. 38 MR. GRANT: That's all I'm going to. And my lord, the reason I 39 asked the last question was because of what you have 40 just said, and I agree it's not obvious as to why 41 that -- how that would assist the witness with respect 42 to his work and preparation of this opinion. If it 43 was obvious I wouldn't have asked the last question, 44 but I don't think it is obvious, and that's why I wish 45 the witness to -- 46 THE COURT: No. It certainly isn't obvious. I'm trying my best 47 to find a way in which I can say it's permissible. At 13778 M.R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 the moment I'm stuck. 2 MR. GOLDIE: There is no way, my lord. The witness has given 3 the factual description of what he did. 4 THE COURT: Yes. 5 MR. GOLDIE: It's a matter of argument now as to whether there 6 is anything that he has stated which is applicable to 7 evidence which he is yet to give, but asking him to 8 state what the analogy is is precisely the -- it will 9 be precisely the outcome of any submission that's 10 made. 11 MR. GRANT: Well, maybe I can rephrase the question, because I 12 think the analogy is where my friend is jumping -- is 13 finding -- 14 THE COURT: Thank you. 15 MR. GRANT: 16 Q How did those observations that you have just 17 described in respect to your experience in your work 18 in Chile, how did they assist you in your -- as far as 19 your experience and background in respect of your 20 preparation in your research of the Gitksan and 21 Wet'suwet'en? 22 A The existence of the cooperative, the organization of 23 the cooperative was an attempt on the part of the 24 fishermen to minimize the extent to which they were 25 competing with each other and willy-nilly be driven to 26 work against their own long-term self-interest. The 27 non-Indian fisheries on Skeena stocks are common 28 property fisheries, as were the fisheries that I was 29 working with in Chile without the cooperative. The 30 Gitksan and Wet'suwet'en systems contain many elements 31 within them that help avoid many of the problems 32 endemic in a common property situation. 33 Q You describe in your Curriculum Vitae that you did 34 work as a teaching assistant in 1968 to 1970, and in 35 that work you taught a second-year course, biology 36 course for biology majors; is that right? 37 A That's right. 38 Q And in -- as part you were a laboratory instructor for 39 that course and you reviewed the primary biology work, 40 once again of course in preparation in teaching of 41 that course? 42 A That's right. That's a part-time job of the sort that 43 the university makes available to graduate students to 44 provide them with some money and provide the 45 undergraduates with some teaching assistance. 46 Q Now, both your work with Dr. Krebs as a research 47 assistant in field studies of the Great Blue Heron, 13779 M.R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 and your work as a biologist with Templeton 2 Engineering involving field studies of waterfowl 3 reproduction and migration in the Mackenzie Delta gave 4 you further experience in terms of field work and data 5 collection, albeit not with fish, but with the birds? 6 A That's right. And the -- the Mackenzie Delta work 7 also involved analysis of field data and preparation 8 of the report, so it is getting me deeper into 9 exposing me to more steps in the process of conducting 10 a biological study. 11 Q And then you did work as a biologist for the B.C. 12 Provincial Museum in 1974, and in this work you were 13 involved in an inventory of the birds in the Bulkley 14 Valley region, and was this your first direct contact 15 with the area or portion of the area under -- that you 16 subsequently studied for the Gitksan and Wet'suwet'en? 17 A It was the first time I had been to the central 18 interior of B.C. This work, as stated in the C.V., 19 was centred on the Bulkley Valley region. It extended 20 into the Kispiox Valley west on the Skeena as far as 21 Terrace, south and east into the Lakes District, east 22 to Babine Lake, covered much of the Wet'suwet'en and 23 the Gitksan country. One aspect of this job -- well, 24 two aspects of it, in this case I was given a very 25 broad mandate by the Provincial Museum to go to the 26 field, design a study to survey the bird fauna of the 27 area, they gave me a truck and an assistant and I was 28 on my own for the summer collecting the data, 29 travelling the region, brought the data back, designed 30 and executed the computer analysis, and prepared the 31 information for write-up as part of a larger resource 32 inventory of the area. 33 Q Um-hum? 34 A In the course of this work, too, I had my first 35 personal contact with Wet'suwet'en people. I met Roy 36 Morris at the -- at the Nadina River end of Francois 37 Lake, where he was on a beaver hunt. He helped me get 38 my vehicle unstuck and also we chatted awhile, and he 39 showed me his net fishing in the lake and gave me some 40 of his catch. That was the first time I had eaten 41 burbot or ling. 42 Q Burbot? 43 A Yes. 44 Q Thank you. And you observed him net fishing in the 45 lake? 46 A I saw his net and I saw his catch. 47 Q Yes. And in 1975 you did work as a biologist for 13780 M.R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 L.G.L. Ltd., and this was with field studies in the 2 Beaufort Sea waterbird migration? 3 A That's right. 4 Q And on this occasion you were involved in the design, 5 execution, and analysis and reported with respect to 6 your field data? 7 A That's right. I was part of a five-person team 8 conducting a study on contract with Canadian Wildlife 9 Service as part of the larger Beaufort Sea study, and 10 it led to two of the publications in the publication 11 list. 12 Q Just turn over to that, that's the next page. Would 13 you just indicate, are those the first two? 14 A The first two of which I am co-author. 15 Q It's on page 3 of the C.V., my lord. Then in 1977, 16 '78 you were involved with the biologist with the 17 Telkwa Foundation involved in environmental research 18 and education. And once again here you did the 19 teaching of course in biology and environmental 20 courses? 21 A I did a wide variety of things. I wouldn't call any 22 of them courses; a lot of visits to schools, work with 23 other community organizations, everything fit under 24 the heading of environmental education. I did many 25 different things, nature walks, guest lectures at 26 college courses, slide shows for highschools, a wide 27 variety of things. 28 Q And then you did -- in '78-'79 you did work as a 29 biology instructor at Northwest College, including the 30 design and instruction of university level courses? 31 A That's right. I taught a first-year biology course at 32 the Smithers Campus of Northwest Community College, 33 which has its central base in Terrace. 34 Q And then from 1979 until 1987 you worked for the 35 Gitksan and Wet'suwet'en Tribal Council as a 36 biologist, and you were involved in the design and 37 direction of investigation of Indian fisheries on the 38 Upper Skeena River? 39 A That's right. 40 Q And that study culminated in the 1985 Fish Management 41 Study report which is appendix 2 to your opinion 42 report; is that right? 43 A I think it's appendix 1. 44 Q Or appendix 1? 45 A Otherwise, yes. 46 Q Now, I would like to just turn you to volume 2 of your 47 document book, that is your opinion, and turn you to 13781 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 A Q A Q A Q A Q A M.R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant tab 1, which is the opinion itself, page 2 and 3, and I'm referring to this, my lord, as a short-cut with respect to expansion on that last area of the Curriculum Vitae. On the top of page 2 you explain what you did, and page 2 and 3 summarizes what you did or were asked to do by the Tribal Council; is that right? It's at -- I'm sorry, it's at tab 1. Oh, okay. Tab 1, page 2? Page 2. Yes. Now, and you were -- now, as part of this work in 1981 did you take -- were you involved in a training programme which dealt with interview techniques? Yes. The spring of 1981. Can you explain who taught that course and what it was focused on and what you learned from it? Okay. I'll give a little bit of background on it. That was when three Gitksan and Wet'suwet'en staff joined the Fish Management Study, which at that point had been underway for two years. Um-hum? Also at that time the Gitksan-Wet'suwet'en land claims office was assembling a separate historical research team, which also had -- was just beginning historical interview field work, so the Tribal Council set up a training course for the -- primarily for the Gitksan and Wet'suwet'en staff of these two projects. As supervisor of one of these groups of people I attended the course as well. The course was four weeks long, it involved a week of lectures, seminars by George MacDonald from National Museum of Humanity, I guess it's called now, in Ottawa. He's an anthropologist, Ethnologist, archaeologist, I believe. Q Yes, who else taught you? A Another week was taught by Dr. Harvey Feit from McGill University, an anthropologist who has worked extensively with the James Bay Cree. THE COURT: I'm having trouble with all this, Mr. Grant. It's interesting, but I just can't believe we need this kind of detail to get on with this case. MR. GRANT: Well, my lord, the — that's why I raised the question. THE COURT: Either the witness knows something about fisheries, and if so he can give an opinion on fisheries, and no doubt he knows something about fisheries, but the details of the courses that he's taken, the courses that he's given, who else gave courses seems to me 13782 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 M.R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant goes way beyond anything that's necessary. MR. GRANT: Well, I wish I would -- all I am raising, my lord, is evidence of why -- of the experience and training the witnesses had with respect to this area. THE COURT: There's no end to the amount of evidence that could be led on this sort of thing with most experts if it was necessary, but it isn't found to be necessary. MR. GRANT: But -- well, that's why I raised the question, and I didn't read all of Mr. Macaulay's letter, because I understood quite clearly that his first objection he was maintaining and made it very clear he was maintaining. The second objection is different. The second objection is that this witness' expertise through interviewing of Gitksan and Wet'suwet'en people with respect to the fisheries management system should not be allowed in. THE COURT: Mr. Grant, if it takes the better part of a day to qualify a witness, it almost demonstrates that there's something wrong with the evidence. Either this witness can give some qualified evidence or he can't. I just -- I'm sorry, but I just can't see what help it is to know all these things that you have been telling me for the last half hour. MR. GRANT: Well, my lord, it's the — as I say, it's only if the witness is -- I mean we've faced this with other witnesses as well, and at the beginning of qualifications there is a broad attack on qualifications, by the end of it the attack seems to be minimized. I would like nothing more than to spend half an hour on qualifications of the witness, because I would like to get into the substance of his evidence, but given the discussion that was had this morning, I submit that his experience and his training with respect to interviewing techniques and what's learned is important to lead if my friends are objecting to that base of his -- THE COURT: I think we'll come to that if they decide to cross-examine, but -- and you can probably be entitled to reexamine, but the way this is going I mean I think it's almost as if we're interviewing the witness for a job, and I'm sure he doesn't want a job. I'm sorry, I'm having real trouble with it. If I could just have a moment. Yes. MR. GRANT THE COURT MR. GRANT Q Mr. Morrell, in fisheries science is interviewing part of the methodology accepted in the field to study 13783 M.R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 fisheries science and fisheries management? 2 A Certainly. 3 Q In terms of your -- you have reviewed page 2 and 3 of 4 your summary report, you've had an opportunity to look 5 over those? 6 A Yes. 7 Q And that is a background as to what you did, albeit a 8 summary of what you did in the eight years that you 9 worked with the Gitksan and Wet'suwet'en? 10 A That's right. 11 Q Your fish management study, which is at appendix 1 of 12 volume 2, dealt with, amongst -- actually, I should 13 just refer his lordship to that, it's at tab 2, dealt 14 with in the introduction a summary of what -- this is 15 the first four pages of what you were -- the 16 background of that work? 17 A That's right. 18 Q And that work in the fish management study was, 19 amongst other things, to analyse an alternative to the 20 present fisheries management regime? 21 A That's right. 22 Q You've prepared subsequent to that this report? 23 A Excuse me. 24 Q Go ahead. 25 A An alternative to the present fishing management 26 regime, that's what I'm picking up on. The mandate 27 was to recommend a management regime for the Gitksan 28 and Wet'suwet'en fisheries based on Gitksan and 29 Wet'suwet'en management that could co-exist or 30 coordinate with the management by other agencies, the 31 Department of Fisheries and Oceans, for example, in 32 Alaska, and other agencies of other fisheries on 33 Skeena stocks. 34 Q And as part of that research, in order to do that you 35 had to, as well as studying the fishery, that is the 36 fish runs, et cetera, and the impact of other 37 fisheries on those runs, you studied the Gitksan and 38 Wet'suwet'en management regime itself? 39 A That's right. As well as the management regimes 40 operating in other fisheries that affected the same 41 stocks. So I also had to study the Department of 42 Fisheries and Oceans management regime. 43 Q And that's reflected in the 1985 Fish Management 44 Study, which is in appendix 1 to your opinion report? 45 A That's right. 46 Q And in preparing -- and then subsequent to that you 47 prepared the opinion report, which is at tab 1 of 13784 M.R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 volume 2, that's the one that was done in January of 2 1987? 3 A That's right. 4 Q And that was prepared for evidence for this court? 5 A That's right. 6 Q Just going back to your Curriculum Vitae, under 7 \"Expert Witness\", it's correct that you've given 8 expert evidence on three occasions in the Provincial 9 Court of British Columbia, twice with respect to the 10 Skeena system and once with respect to the Fraser 11 River system; is that right? 12 A That's right. 13 Q And you've given evidence in the County Court of 14 British Columbia in 1980? 15 A Yes. 16 Q And that was all expert evidence? 17 A That's right. 18 Q And you're a member of the American Fisheries Society? 19 A Yes. 20 Q Now, just going to your publications; as well as the 21 first two publications, you were a co-author of the 22 Submission of the Gitksan and Wet'suwet'en to the 23 Royal Commission on Pacific Fisheries Policy known as 24 the Pearse Commission? 25 A That's right. 26 Q And the fourth item down on the publications is the 27 1985 Fish Management Study? 2 8 A No. 29 Q I'm sorry, that's a Submission to the House of Commons 30 Standing Committee that you prepared? 31 A On Fisheries and Forestry, that's right. 32 Q And you were co-author of that? 33 A That's right. 34 Q And the fifth item, I'm sorry, is appendix 1? 35 A That's right. 36 Q And as well as that you did a data report from -- in 37 1985, an update of part of the Fish Management Study? 38 A It was another year of similar activities with 39 different staff monitoring the fishery for 1985, and 40 there was a separate report written for that. 41 Q And you also did a presentation on co-management to a 42 group at the University of British Columbia? 43 A That's right. I was invited to do a paper to -- I 44 don't have the exact reference on the -- at the top of 45 my mind. I can tell you approximately that it was a 46 conference on co-management organized by Evelyn 47 Pinkerton of the School of Planning at the University 13785 M.R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant 1 of B.C. It brought together professionals in social 2 sciences and in biology and other aspects of fisheries 3 management to discuss problems of fisheries 4 management. I participated in a symposium on native 5 fisheries. The title of my paper was something to the 6 effect of \"The Struggle To Integrate State and Indian 7 Management in the Salmon Fisheries of the Skeena 8 River\". I can provide the exact reference. The 9 publication arising out of that conference is now in 10 press. It's going to be published by University of 11 B.C. Press, I believe. 12 Q Now, if you, in studying a fishery management system, 13 whatever fisheries management system a fishery 14 scientist studies, what other areas of literature do 15 you review within your field, aside from fisheries? I 16 mean is it legitimate within your field to study other 17 areas outside of your field of expertise in analysing 18 other fisheries management schemes? 19 A As in any research endeavour, you go where the 20 information is. I'm a little confused by the 21 question. Literature or other sources relating to 22 management institutions, administrative structures, 23 behaviour, human behaviour that is. 24 Q Do — 25 A Management decision-making, all sorts of things are 26 relevant. 27 Q Do fishery scientists refer to historical documents? 28 A Yes. 29 Q And that's accepted within your field? 30 A Yes. 31 Q Is there other areas that fishery scientists, in 32 studying fishery management regimes, other fields that 33 they look to in analysis of fishery management 34 systems? 35 A Certainly. It's - fisheries science is 36 interdisciplinary study in terms of traditional narrow 37 academic disciplines, and so you can operate in the 38 areas that other people might call psychology, or 39 anthropology, or economics, or history or planning, a 40 whole computer science, mathematics, statistics, a 41 whole series of fields are relevant, it just depends 42 on the job at hand. 43 Q And did you go to any of those other fields in your 44 study? 45 A Um-hum. In terms of literature, there are 46 bibliographies associated with my various reports, and 47 they will include the sources that may be considered 13786 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 M.R. Morrell (for Plaintiffs) In chief on qualifications by Mr. Grant primarily historical, primarily anthropological, archival, mathematical, economic. There are other sources of information that are not literature that are also relevant. Q Um-hum? A As, for example, the body of interviews with Gitksan and Wet'suwet'en people that have been collected by the Gitksan and Wet'suwet'en Tribal Council over the years, interviews with officials of the Department of Fisheries and Oceans, with the Provincial Fish and Wildlife Branch, other people who are involved in different aspects of the various fisheries and the management of fish stocks in the area of interest. Q And did you go to all of those sources? A Yes. Q And is that an acceptable part of fisheries science? A Yes. MR. GRANT: Thank you. Those are all my questions on qualifications. THE COURT: Mr. Macaulay, you indicated you didn't have any quarrel with the qualifications of the witness. MR. MACAULAY: I didn't say that, my lord. My friend, Mr. Grant, related the second part of my letter. But my main submission will concern relevance rather than qualifications. I think my friend, Mr. Goldie, probably will deal with qualifications. THE COURT: All right. MR. MACAULAY: I may have something to add to that, but it's relevance that I'm emphasizing. THE COURT: Are you content that Mr. Goldie should cross-examine first then? MR. MACAULAY: Yes, my lord. THE COURT: Yes, all right, Mr. Goldie. CROSS-EXAMINATION BY MR. GOLDIE: Q Mr. Morrell, just a few questions about some of the answers you gave to Mr. Grant. I think you told his lordship that when you were at the Institute of Animal Resource Ecology you gave a term paper dealing with the policy of licence limitation and response to the problem of common property? A That was a term paper in the course in resource economics that I did, yes. Q Yes? A It wasn't part of the institute curriculum, it was outside the institute. Q It was part of your qualification for your degree? 13787 M.R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Goldie 1 A That's right. It was accepted as course work towards 2 my degree. 3 Q The licence limitation that you referred to, it is the 4 limitation with respect to ocean fisheries, licences 5 of boats and individuals engaging in ocean fisheries? 6 A That's right. 7 Q Yes. 8 A Specifically the salmon fisheries of B.C. 9 Q Yes. Ocean, which are ocean fisheries so far as the 10 licensing of boats and limitations on licences is 11 concerned, is it not? 12 A That's right. 13 Q Yes. 14 A Ocean and estuary, but that's a minor point. 15 Q Yes. Well, no, I accept your correction. 16 A Um-hum. 17 Q But what is the definition of an estuary? 18 A The mouth of a river. 19 Q Yes. Where the tidal effect is felt, is it not? 20 A Fair enough. 21 MR. GOLDIE: Yes. 22 THE COURT: How far up the Skeena does that extend? 23 A To the vicinity of Terrace. 24 THE COURT: Yes, all right. 25 MR. GOLDIE: 26 Q Your Master's Degree at U.B.C. was in zoology, and I 27 take it was not a study of fisheries management? 28 A My degrees from the Department of Zoology that has to 29 do with the institutional relations between the 30 Department of Zoology and the institution where I 31 worked. The institute is in some sense part of the 32 Department of Zoology. They don't give their own 33 degrees. My thesis dealt with fishery management, it 34 was directed towards fishery management. I worked 35 with a specialist in -- my research supervisor was a 36 specialist in fishery management and ichthyology. 37 Q What is a guppy? 38 A A guppy is a tropical fish, a small tropical fish. 39 The ones that I worked with are native to the island 40 of Trinidad in the Caribbean. 41 Q Yes. Your thesis, was not it a study of the 42 interaction of guppies with human beings, was it? 43 A No. 44 Q It was a laboratory study and the application of a 45 principal? 46 A That's right. The class of studies is called 47 microcosm studies where you create an environment in 13788 M.R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Goldie 1 the laboratory that is designed to simulate or mimic 2 aspects of the larger outside world. 3 Q Yes. And what you were seeking to simulate was food 4 stress? 5 A Food stress and competition, the effects of high 6 population density on fish populations. 7 Q Without regard to any particular area in the world, it 8 was just to create that condition? 9 A That's right. A theoretical problem. 10 Q Right, I understand. Now, you gave some evidence with 11 respect to the Ricker stock recruit model? 12 A That's right. 13 Q That was something which embodied a principal that you 14 were testing in your work for your thesis; is that not 15 correct? 16 A My thesis work related to that. 17 Q Yes? 18 A The phenomenon of density dependent reproduction. 19 Q And in the -- in these graphs which you showed to his 20 lordship, is that assumed -- is it assumed that the 21 food supply expands to meet the expanding population? 22 A Not at all. 23 Q Is that an assumption that is made? 24 A Not at all. The idea is that food or some other 25 resource or constellation of resource stays constant 26 as the population expands, and thus limits it. 27 Q That was the thrust of my question, is that there is 28 an assumed constant at work in that relationship 29 depicted in the graph? 30 A All right, yes. 31 Q Now, you talked about your work experience in the -- 32 in California. I understand that that was primarily a 33 summer or part-time job? 34 A Summer and part time during school. 35 Q Yes, all right. And that was under supervision? 36 A That's right. 37 Q And — 38 A Excuse me. The field work I did on my own, but I 39 reported to someone who suggested where I should do my 40 field work and gave me direction. 41 Q When I say \"under supervision\", I mean that what you 42 went and collected by yourself you were asked to 43 collect by your supervisor? 44 A That's right. 45 Q Yes. And you weren't telling the sports fishermen 46 what to do, you were simply observing what they did? 47 A Exactly. 13789 M.R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Goldie 1 Q Then in 1962, '63 you were a fish technician, and your 2 particular interest was in the analysis of historical 3 catch of the herring fishery of Alaska? 4 A That's right. 5 Q That is an ocean fishery? 6 A That's right. 7 Q And the research was directed towards the question of 8 catchability? 9 A An attempt to distinguish between the technical term 10 is your class strength, actual abundance of different 11 ages of herring, to distinguish between that and their 12 availability to the fishery, trying to pull 13 information on both of those aspects out of catch 14 statistics. 15 Q Apart from the experience that you gained in analysing 16 data, that aspect of the ocean fishery had nothing -- 17 has no relevance to the studies that you made of the 18 river fishery in the Skeena and Bulkley Valleys? 19 A I wouldn't say that it has no relevance. There are 20 similarities running through all fishery studies, all 21 scientific studies in fact. 22 Q Well, the similarities that exist between all 23 scientific studies is an attempt to arrive by 24 objective means at the answers to questions? 25 A I would take that as a -- I would specify further the 26 objective means I would put in systematic, I would 27 include description of methodology, I would include 28 specifications about data and data handling, that's 29 the ballpark, yes. 30 Q By objective means, I meant something that could be 31 duplicated by somebody else using the same -- 32 A That's one of the principal criteria, yes. 33 Q Yes. And then in 1964-1967 you spent sometime in 34 Chile, and you said the first two years were the most 35 important? 36 A Yes. 37 Q And I think you said that the emphasis was on fishery 38 management -- I'm sorry, on marketing? 39 A That's right. 40 Q Yes? 41 A Marketing and community organization, I would say. 42 Q Yes. This was a commercial fishery? 43 A That's right. 44 Q And an ocean fishery? 45 A Ocean and estuary again. 46 Q Yes? 47 A Many different species involved. 13790 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 A A Q A M.R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Goldie Q Just so that we're clear, there is no estuarian fishery on the Skeena within the lands claim area, is there? There's no estuary within the Gitksan and Wet'suwet'en area, right. No. And therefore, and it also follows there's no ocean fishery there? That's right. Yes. And indeed, there is no recognized commercial fishery there? It's widely recognized in the community. There is a commercial fishery in the area, yes. Q Carried on by the Gitksan and Wet'suwet'en? A Yes. GOLDIE: Yes. Against the law? GRANT: That's the issue for the court, isn't it, with respect. That's the very issue. MACAULAY: It's not an issue before this court, my lord. GRANT: Well, with respect, the scope of the Gitksan and Wet'suwet'en management -- Only ultimately you say if you're successful in your action for ownership and jurisdiction, the present laws relating to the fisheries might be struck down. The issue of -- the issue of whether or not that is or is not against the law is an issue that may well come within the ambit of this court in terms of the scope of the Gitksan and ownership and jurisdiction if the court makes that finding. Well, I think Mr. Goldie's question is clearly directed towards the existing Statute Law of Canada-British Columbia, was it not? Whether those laws are ultimately held to be valid or invalid is possibly an issue at this trial, but accepting or adopting conventional constitutional practises, I would have to treat an existing Statute of Canada as being valid until I conclude that they are invalid, and surely none of us are under any misapprehension what Mr. Goldie means when he said fishing and described it as against the law or contrary to the law is a descriptive term, is it not? I'm not sure that there is before me a pleading under which I can strike down the legislation or Constitutional basis, there might be, but at the moment I'm not sure if -- well, what I'm stating is the question of whether it's against the law or within the scope of Section 35 is not the question, it's a question of law, that's my friend's -- that's the objection. It's a question of MR MR MR MR THE COURT: MR. GRANT: THE COURT: 13791 M.R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Goldie law he's asking the witness here. Well, if -- if Gitksan or Wet'suwet'en person put a net across the Skeena or the Babine then in the claim territory, took fish out of it and sold it, they would be presumably prosecuted and if convicted they would be punished by some court of competent jurisdiction. Surely that's all Mr. Goldie means by his question, didn't you, Mr. Goldie? Yes. It's just a question of fact. What is this witness, his understanding of the commercial fishery to which he referred. It's -- I'm suggesting to him that it is, to his knowledge, an illegal one. Illegal as being contrary to existing law? : Yes. Of Canada not yet declared to be invalid. : That's correct. Yes. I think on that basis you can go ahead. That's your understanding, isn't it, Mr. Morrell? I see the question as a complex one. I think there are a number of laws involved here. There's the Fisheries Act, there are band bylaws, and there is Gitksan-Wet'suwet'en traditional law. And they say different things regarding a commercial fishery in the Gitksan-Wet'suwet'en territory. But to your knowledge, it is illegal under the laws of Canada? Under the Fisheries Act. Yes? I am aware there's a section of the Fisheries Act that limits what Indians can do with fish that they catch in the fisheries. Yes? Yes. So that's -- the commercial fishery of which you speak of is illegal in that sense? Under the Fisheries Act? Yes? The only qualification I would put on that is that I -- I realize that I'm not meant to venture into areas of law here, but I understand there's a conflict between the Fisheries Act and the band's bylaws which has been passed by several of the Gitksan-Wet'suwet'en band which authorize fishing in the areas to which the band bylaws apply. What areas, to your understanding, do those band bylaws apply? 1 2 1 3 4 5 6 7 8 1 9 MR. GOLDIE 10 11 12 13 THE COURT: 14 MR. GOLDIE 15 THE COURT: 16 MR. GOLDIE 17 THE COURT: 18 MR. GOLDIE 19 Q 20 A 21 22 23 1 24 1 25 1 26 Q 27 i 28 A 29 Q 30 A 31 32 33 Q 34 A 35 Q 36 37 A 38 Q 39 A 40 41 42 43 44 45 46 Q 47 13792 M.R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Goldie 1 A I understand they apply to the areas designated as 2 reserved within the Gitksan-Wet'suwet'en territory. 3 Q And from your time spent, that's a small part of the 4 so-called land claims area? 5 A Of the traditional territory of the Gitksan and 6 Wet'suwet'en. 7 Q Yes. The land claims area; isn't that correct? 8 A That's another term for it. I'm out of the habit of 9 using that term. 10 Q Yes. You're accustomed to using the terms you hear in 11 the Tribal Council? 12 A That's right. 13 Q Yes. 14 A And the terms that the chiefs use as well. 15 Q Yes. Now, the -- the report that you've done, that 16 too was under supervision, the report, the 1985 17 report? 18 A In a broad sense I received a mandate at the beginning 19 of it, yes, and direction. In fact, the mandate was 20 developed in a step-wise process. My initial contact 21 with the Tribal Council was with Neil Sterritt, who 22 was the land claims director at the time. He was my 23 immediate supervisor. In conversation with him I 24 developed an idea of the sort of study that was 25 required, I wrote up a short proposal, which I then 26 presented to a committee of hereditary chiefs who made 27 up what was called the Land Claims Advisory Committee, 28 presented the proposal to them, discussed it, revised 29 it, and in that sort of a process we developed the 30 proposal which was my guideline in doing the fish 31 management study. After that it was -- I had a great 32 deal of freedom in deciding how to implement the 33 mandate, how to achieve the objectives that they gave 34 me. 35 Q Well, the statement that you make on page 2 of your 36 introduction -- 37 A 2? 38 Q 2? 39 A The opinion report or the fish management study? 40 Q The 1987 report says, and I quote: 41 42 \"My first assignment with the Tribal Council was to 43 design and carry out a comprehensive study of the 44 Gitksan and Wet'suwet'en salmon fisheries under 45 the direction of hereditary and elected leadership 46 of the Gitksan and Wet'suwet'en.\" 47 13793 M.R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Goldie 1 Is that a true statement or is it not? 2 A It's a true statement in the sense that I just 3 explained, that there was a proposal worked out with 4 them beginning with an initiative taken by Neil 5 Sterritt, then land claims director. Work that time 6 was working under the direction of the elected 7 leadership, Bill Blackwater at the time that I went to 8 work there, and the proposal was further elaborated in 9 discussions with hereditary chiefs. 10 THE COURT: Can we take the afternoon adjournment, Mr. Goldie? 11 MR. GOLDIE: That's fine, thank you, my lord. 12 THE COURT: Thank you. 13 THE REGISTRAR: Order in court. Court will recess. 14 15 (PROCEEDINGS ADJOURNED AT 3:05) 16 17 I hereby certify the foregoing to be 18 a true and accurate transcript of the 19 proceedings herein transcribed to the 20 best of my skill and ability 21 22 23 24 25 Graham D. Parker 26 Official Reporter 27 United Reporting Service Ltd. 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 13794 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Goldie 1 (PROCEEDINGS RECONVENED PURSUANT TO AFTERNOON RECESS) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Goldie. 5 MR. GOLDIE: 6 Q Thank you, my lord. 7 Mr. Morrell, I take it that when you arrived in 8 the Bulkley Valley you had not undertaken any study of 9 the Skeena River fisheries, and when I say Skeena 10 River fisheries I'm talking not of the ocean or tidal 11 fisheries, but the river fisheries? 12 A And the time period you're talking about is 1974 when 13 I was there on my -- 14 Q At the time that you arrived in the Bulkley Valley, 15 yes. 16 A I arrived there once to work. I arrived there another 17 time to live. The first time I was ever there was in 18 1974 when I was working for the B.C. Provincial 19 Museum. 2 0 Q Right. 21 A I was not studying any fisheries at that time. 22 Q And then you went to live there in 1976? 23 A That's right. 24 Q And at that time I take it that you had made then no 25 study of the Skeena River fisheries, and I'm talking 26 about the river fisheries? 27 A That's right. I went there to live because I wanted 28 to live in that place. 29 Q Yes. Or the history of the Gitksan people? 30 A That's right. 31 Q Or the history of the Carrier or Wet'suwet'en people? 32 A That's right. 33 Q They called themselves Carrier at that time, did they 34 not? 35 A It was the Gitksan-Carrier Tribal Council when I first 36 arrived, yes. 37 Q Or that you had any knowledge of any archaeological 38 research in the Skeena-Bulkley River areas? 39 A When I was there in 1974 it was part of a team effort, 40 a resource inventory of the area, and some of my 41 colleagues on that study were archaeologists, were 42 doing an archaeological survey, so in the course of 43 that I had some exposure to it. It wasn't my 44 principal concern. 45 Q Some of it rubbed off on you in conversation? 46 A That's right. 47 Q Yes. 13795 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Goldie 1 A Incidentally, there was a fishery study going on as 2 part of that too, a fishery inventory. 3 Q But that wasn't anything that you were concerned with? 4 A It was not my principal work. I was staying at the 5 same place, crossing paths with those people, hitching 6 rides on their airplanes, sharing their camps. 7 Q But I think you told his lordship that your 8 responsibility was with respect to a bird inventory? 9 A That's right. 10 Q And your previous two assignments had been related to 11 birds? 12 A That sounds right. Yes. 13 Q Yes. Nor had you made any -- had any knowledge of any 14 anthropological studies of the Tsimshian peoples or 15 their laws and customs? 16 A I'm sort of scouring my memory. I certainly had not 17 made any large scale study. I may have had some 18 knowledge of it. 19 Q Or any anthropological studies of the Athapaskan 20 peoples of the Bulkley River Valley or their laws and 21 customs? 22 A That's right. 23 Q And wouldn't you agree with me that that was also the 24 state of your knowledge when you were hired by the 25 Tribal Council to undertake the study that we referred 26 to a couple of minutes ago, a comprehensive study of 27 the Gitksan and Wet'suwet'en salmon fisheries? 28 A By that time I had been living in the valley for -- in 29 the Bulkley Valley for something like three years, and 30 I had -- I had paid attention to the activities of the 31 Tribal Council and of the various bands in the area. 32 I'm interested in people and in cultures and so I'm 33 sure I had some knowledge by then. 34 Q Uh-huh. What you read in the newspapers? 35 A I may have read some papers as well. 36 Q Well, I wonder if Exhibit 763 could be put before the 37 witness? This is the Gitksan-Carrier Tribal Council 38 newsletter of February, 1982, and if you could just 39 turn to page 6, there's a page there in the middle of 40 which is a list of names and above that list of names 41 the word \"Land Claims Office\"? 42 A Uh-huh. 43 Q And on the right-hand side there's the name \"Mike 44 Morrell - Biologist\"? 45 A Yes. 46 Q Is that an accurate description of your -- 47 A People referred to me as the staff biologist, staff 13796 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Goldie 1 fishery biologist, biologist, fishery person. 2 Q Right. And over on the next page there's a column on 3 the right-hand side column headed \"Mike Morrell - Fish 4 Biologist\"? 5 A Yes. 6 Q And in the last paragraph: 7 8 \"In the first summer, Mike worked with 9 fishermen between Gitanmaax, Kispiox and 10 Moricetown to collect accurate information 11 on salmon catches.\" 12 13 That's the first summer of your employment? 14 A Right. 15 Q And what year would that be? 16 A 1979 I believe. 17 Q Right. And then there purports to be a quotation: 18 19 \"Until I started this job all I knew about 20 Indian fishing was what I read in the 21 papers.\" 22 23 Stopping there. 24 A Uh-huh. 25 Q Is that an accurate statement? 26 A Substantially accurate. 27 Q Yes. My understanding is that the source of your 28 information of the contemporary Indian fishery were 29 members of the various Gitksan and Wet'suwet'en 30 villages. 31 A My source of information about the contemporary 32 fishery? 33 Q Yes. That's right. 34 A A good deal of it was personal observation of the 35 fishery during field work -- 36 Q Yes. 37 A -- on the river. 38 Q But — yes? 39 A Sometimes I was by myself. Sometimes I was talking to 40 Gitksan and Wet'suwet'en people. 41 Q And — yes? 42 A I had finished. 43 Q Yes. All right. And at other times the information 44 was gathered by the staff members that you referred to 45 earlier? 46 A The first two years of the study, the 1979 and 1980 47 field seasons I was operating -- I was the only person 13797 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Goldie 1 on the fish management study. 2 Q But thereafter -- 3 A In 1981, four Gitksan and Wet'suwet'en staff members 4 were hired, and from that point -- well, the next two 5 years of the study, they did most of the field work. 6 Q Yes. And they provided you with the data that you 7 have used in the course of describing the contemporary 8 Gitksan fishery? 9 A That's right. 10 Q All right. 11 A I did collect data during those latter years as well, 12 but I had much more administrative responsibility at 13 that point. 14 Q Well, for instance, in the documents received with Mr. 15 Grant's letter of March the 22nd, the first -- the 16 first 16 interviews appear all have been conducted by 17 a M. Goertzen and Alex Morgan, or by M. Goertzen 18 himself or herself? 19 A Can you refer me to what you're looking at? 20 Q Yes. I'll get you the letter itself from the 21 documents. I'm going to show you -- we've arranged 22 these in the order that we received them, and this 23 was -- these were delivered to us on March the 22nd, 24 and the description, you can check that if you wish. 25 The documents themselves are under the tab numbers. 2 6 A Uh-huh. 27 Q But those all indicate that they were conducted by 28 people other than yourself? I'm not being critical of 29 you, Mr. Morrell, I just want you to -- 30 A I'm just reviewing the list. 31 Q Yes. 32 A Right. You're talking about the first 16? Just the 33 first page? 34 Q Yes, just that first page. And these were the people 35 that were instructed at this course that you took that 36 you described to my friend? 37 A No. Myrtle Goertzen was -- let me start back. Alex 38 Morgan was working for the Tribal Council in 39 connection with a court case that was referred to 40 around the Tribal Council as the profit a prendre case 41 or the \"pap\" case, preparing maps of fishing grounds, 42 fishing sites, on reserves. During part of this 43 project Alex Morgan was assisted by staff of the fish 44 management study, however, during the fishing season, 45 beginning around May, those staff were needed for 46 field work in connection with the contemporary fishery 47 and so other people were hired to work with Alex. So 13798 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Goldie 1 the regular staff of the fish management study were 2 the ones who went through the training programme. 3 Myrtle Goertzen was another person from the community. 4 Q Yes. And, in any event, there were people who were on 5 Mr. Scott Clark's staff, as you were? 6 A Scott Clark was research director at that time I 7 believe. 8 Q Yes. 9 A Yes. 10 Q And so your answer to my question is yes, they were 11 employed -- they were under Mr. Clark, as you were? 12 A He was the supervisor of all research. Yes. 13 Q Yes. All right. Now, I do not understand that you 14 claim any particular expertise as an historian? 15 A Maybe you could give me examples of what you mean. 16 I'm not sure what I'm restricting myself to by 17 saying -- 18 Q My understanding is you don't claim to be an 19 historian? 20 A Yes, I'm not an academic historian. 21 Q Nor do you claim to be an anthropologist? 22 A That's right. That's not my profession. 23 Q And anything you have done that falls under the 24 heading of either history or anthropology has either 25 been provided you by others or checked by others? 26 A I'm having trouble with the narrow definitions of data 27 of information in the world. In my work with the 28 Gitksan and Wet'suwet'en I have dealt with information 29 that could be called historical information, that 30 could be called anthropological information. I feel 31 that I'm competent to deal with it, and I feel that in 32 the context of fishery science and fishery management 33 it's material that I'm professionally competent to 34 deal with and adds to my expertise about the matters 35 we're discussing here. I don't want to restrict 36 myself by saying that anything that happened before a 37 certain date is a matter for an historian to look at 38 and I'm not competent to deal with it. 39 Q No, but your expertise that you claim with respect to 40 such material comes from the years that you spent with 41 it, not from any academic qualifications? 42 A That sounds fair to me. 43 Q Yes. And I'm talking both anthropology and history? 44 A Again, the categorization of information as falling 45 into one of those categories, as opposed to say 46 fishery science, is a tricky one, and I'm not wanting 47 to be compartmentalized like that. 13799 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Goldie 1 Q But you have asserted, have you not, that so far as 2 your techniques are concerned you're satisfied with 3 them because they were reviewed and they were done 4 under the direction of Mr. Scott Clark who's an 5 academic anthropologist? 6 A I can see that lending credibility to them as social 7 science research. 8 Q Yes, but that's what you asserted when you were 9 questioned about your qualifications in the case of 10 Regina vs. Wilson at Smithers. Do you not recall 11 that? 12 A I recall discussing that. Yes. 13 Q Yes. And you said that, and I'm referring to page 12 14 of the transcript, the question at line 19: 15 16 \"Q But you do not -- you are not yourself -- 17 you do not yourself have a background to say 18 whether or not your techniques would stand 19 up to accepted anthropological research 20 practises or accepted historiographical 21 research practises, do you? 22 A Um, as far as I know, the -- the techniques 23 are sound and they were done under the 24 direction of the Land Claims Research 25 Director at the time, Scott Clark, who's an 26 academic anthropologist from Carlton.\" 27 2 8 Do you remember -- 29 A That's a two-part answer. 30 Q Yes. 31 A But as far as I can see, as an intelligent informed 32 person, the techniques are sound and, in addition to 33 that, they have a certain stamp of approval by someone 34 who has an academic background in the field. 35 Q And the question was put to you \"And he was working 36 for the Tribal Council also?\" And you stated 37 \"Directing the research.\" You remember that question 38 and answer? 39 A His title was -- 40 Q Yes. 41 A -- research director. 42 Q And the next question: 43 44 \"Q Directing research. These researches that 45 you have made were done entirely while you 46 were in the employ of the Tribal Council; is 47 that correct?\" 13800 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Goldie 1 2 And you said: 3 4 \"A That's right.\" 5 6 That's correct? 7 A That's right. That's what I said. 8 MR. GOLDIE: All right. 9 THE COURT: What is that you're reading from, Mr. Goldie? 10 MR. GOLDIE: The transcript of a prosecution in the provincial 11 court at Smithers. 12 THE COURT: Yes. Thank you. 13 MR. GOLDIE: 14 Q Regina vs. Walter Wilson, June the 1st, 1987. 15 Do you speak either Gitksan or Wet'suwet'en? 16 A No, I can't carry on a conversation. I know some 17 words. 18 Q Are you a member of a Gitksan house? 19 A No. 20 Q Or of a Wet'suwet'en clan or house? 21 A No. 22 Q I suggested to you that the source of much of your 23 historical information and anthropological information 24 was other members of the research staff, for instance, 25 Susan Marsden provided you with information that 26 you've used? 27 A Some information, yes, she did. For example, she did 28 a report on Gitksan sites on the Kispiox River. We 29 collaborated on that for fishing ground research. 30 Q Is that the report that in Volume number 1 is under 31 tab 5? 32 A That's right. 33 Q Yes. She actually produced that, did she not? 34 A Yes. 35 Q Yes. All right. And would I be correct in my 36 understanding that the tabulation of material of the 37 contemporary fishery is yours and that is what you've 38 used in your statistical series? 39 A The tabulation of the material on the contemporary 40 fishery? 41 Q Yes. 42 A Are you referring to catch data -- 43 Q Yes. 44 A -- and things of that nature? 45 Q Yes. 46 A I collected some of the data myself, other parts of 47 the data were collected by different people who were 13801 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Goldie working on the project. The computer analysis was done under my direction. I did some of it on my own, and others were done by other staff members of the proj ect. But when it comes to the narrative with respect to the -- both the contemporary fishery and the traditional fishery, you have relied upon information which you've been given by others? The narrative about the contemporary fishery -- Yes. is based largely on my own experience and data. And the interviews conducted by others? Pardon me? And the interviews conducted by others? I suppose some of the information in the -- you're talking about now the narrative portion of the contemporary fishery section of the 1985 FMS report? Yes, and the references you make to the narrative fishery in the report prepared for your opinion here. To the contemporary fishery? Yes. It's based on personal observation, it's based on data collected by others, and -- well, personal observation is data collected by myself. Three sources, personal observation, data collected by others, and dated collected by yourself? Yes. Personal observation and data collected by myself I don't really distinguish. Same thing? Yes. But when it comes to the so-called traditional -- sorry, the traditional fishery, that is to say, the fishery which is alleged to have been carried on since a long time before your arrival in the valley, you've had to rely entirely upon what others have told you? About events before I got there, yes. Yes. And you have relied upon others to validate the techniques that you have used in your use of that information? I don't see that I rely upon other people to validate it. I think the material stands on its own. I can defend it. I can explain it. Well, you accepted, for instance, what Miss Marsden told you about her researches? Yes. She's a colleague. I have respect for her ability to do the work. All right. Thank you. That's all I have. 1 2 1 3 4 5 Q 6 7 8 9 A 10 Q 11 A 12 Q 13 A 14 Q 15 A 16 17 18 Q 19 20 A 21 Q 22 A 23 24 25 Q 26 27 A 28 ] 29 Q 30 A 31 Q 32 33 34 35 36 A 37 Q 38 39 40 A 41 42 1 43 Q 44 45 A 46 47 ] MR. GOLDIE 13802 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Macaulay 1 THE COURT: Thank you. Mr. Macaulay? 2 3 CROSS-EXAMINATION ON QUALIFICATIONS BY MR. MACAULAY: 4 Q Now, Mr. Morrell, you have never managed a fishery 5 have you? 6 A That might be a question of definition. I'd say no as 7 a first approximation. 8 Q And now the person who manages the fishery on the 9 Skeena is the Department of Fisheries and Oceans 10 stationed at Prince Rupert? 11 A No, in my view the -- various people manage the Indian 12 fishery in the Gitksan and Wet'suwet'en territory. 13 Q Oh, come on now. 14 A The hereditary chiefs. 15 Q The fishery is governed by the federal government, 16 isn't it? 17 A We may be into a question of definition here. 18 Q No, no, no, no definition. Who enforces fisheries' 19 regulations on the Skeena River? 20 A The hereditary chiefs of the Gitksan and Wet'suwet'en 21 do. 22 Q Is that your answer? 23 A Fisheries officers of the Department of Fisheries and 24 Oceans do. Conservation officers of the provincial 25 government also enforce regulations. There are 26 different sets of regulations. 27 Q In what way does the provincial government govern the 28 Skeena fishery? 29 A The provincial government, as I understand it, has a 30 set of regulations governing sport fishing, fishing 31 in -- for resident species in lakes and streams. 32 Q In lakes? 33 A They also — 34 Q Skeena? 35 A They also have people who study and recommend 36 regulations regarding steelhead trout. I 37 understand -- I know that there are administrative 38 arrangements between the province and the federal 39 government regarding their regulations about fishing 40 for steelhead, and I know that the federal government, 41 the Department of Fisheries and Oceans, promulgates 42 and enforces regulations regarding salmon fishing. 43 Q Who decides when the fishing will start and stop on 44 the Skeena? 45 A This is the same answer. There are overlapping 46 jurisdictions here. The Gitksan and Wet'suwet'en 47 hereditary chiefs start and stop fishing on fishing 13803 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Macaulay 1 grounds that they control. The Department of 2 Fisheries and Oceans issues regulations designed to 3 open and close the Indian fishery, and there are also 4 regulations that are provincial that also are designed 5 to regulate fisheries within the area. 6 Q Let's deal with the salmon fishery on the Skeena. 7 A Okay. 8 Q There are closed days; you know that? 9 A There are days when the Department of Fisheries and 10 Oceans regulations say that no fishing is permitted. 11 Q Right. And the Department of Fisheries and Oceans 12 sets that policy by themselves? 13 A At various times they've done so in consultation with 14 representatives of the bands and of the 15 Gitksan-Wet'suwet'en Tribal Council and of the 16 hereditary chiefs. 17 Q Who decides? Who has the final decision on when a day 18 will be a closed day? 19 A The Department of Fisheries and Oceans, to my 20 knowledge, in negotiations and discussions with the 21 Gitksan-Wet'suwet'en Tribal Council -- 22 Q You're dodging the question. 23 A -- has always maintained that they have the final say 24 as to -- 25 Q Who has the final say? 26 A That they, the Department of Fisheries and Oceans, has 27 the final say in determining what regulations will be. 28 Q Well, based on your studies and observations over all 29 these years, who does have the final say, in your 30 view? 31 A As far as promulgating the regulations? 32 Q Yes. 33 A The Department of Fisheries and Oceans. 34 Q And — 35 A That is not to say that those are effective 36 regulations. Those regulations are widely ignored. 37 Q They're widely ignored by who? 38 A Indian fishers fishing under the authority of the 39 hereditary chiefs. 40 Q Are you telling me that the hereditary chiefs tell the 41 Gitksan or Wet'suwet'en to go and fish whenever the 42 Department of Fisheries regulations provide? 43 A Essentially. It's not a matter of saying -- yes, it's 44 saying a chief may say to someone that he or she is 45 authorizing to fish on fishing grounds under the 46 authority of that chief. You may fish there. It's 47 possible that sometimes they say this is 13804 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Macaulay 1 notwithstanding regulations of the Department of 2 Fisheries and Oceans, or words to that effect. 3 Q To your knowledge -- 4 A I'd say more often the Department of Fisheries and 5 Oceans would not be mentioned. 6 Q Well, you're aware from time to time that certain days 7 are closed days according to the Department of 8 Fisheries and Oceans? 9 A That's right. 10 Q And you're telling me that the hereditary chiefs are 11 telling the members of their houses to go and fish 12 anyway? 13 A I'd say it's more that they're not telling them not to 14 and that their permission applies. It's -- they're two 15 independent systems in practise. 16 Q And then there is a management system that you have 17 observed closely, is there? 18 A That's right. 19 Q And that's the hereditary chiefs' system? 20 A That's right. 21 Q Have you any experience -- have you observed the 22 Department of Fisheries and Oceans management system? 23 A Yes. 24 Q And where did you do that? 25 A Where? 26 Q Yes. In what town or village or place? 27 A I'm sort of at a loss as to where to start. I'm 28 certainly aware of regulations promulgated by the 29 Department of Fisheries and Oceans. I'm aware of 30 Department of Fisheries and Oceans fisheries officers 31 patrolling the river in river boats and in trucks. 32 I'm aware that they arrest people, issue them with 33 citations, confiscate nets, burn nets, give 34 instructions to people, and that that is part of the 35 Department of Fisheries and Oceans efforts to manage 36 that fishery. I'm also aware through conversations 37 with other employees of the Department of Fisheries 38 and Oceans management biologists operating on the 39 Skeena of management systems that they use in managing 40 the tidal commercial fisheries, so that would be 41 another aspect of the management system. So, yes, I'm 42 aware of many aspects of the Department of Fisheries 43 and Oceans management system. 44 Q And you gained that knowledge from living in the 45 Bulkley Valley and on the Skeena in the claim area? 46 A That's right, and also from systematically seeking 47 that information. 13805 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Macaulay 1 Q You've spoken to some members of the staff of the 2 manager of the fisheries? 3 A I've had ongoing relationships with the biologists and 4 various staff members of the Department of Fisheries 5 and Oceans, yes, including the fisheries officers in 6 the Hazelton area and the Smithers area. 7 MR. MACAULAY: Who's the manager now of the Skeena fishery? 8 MR. GRANT: Of the Department of Fisheries? 9 MR. MACAULAY: The witness knows. I don't need help from my 10 friend. The witness knows what I'm talking about. 11 MR. GRANT: I just want it to be clear on the record. 12 MR. MACAULAY: Well, the witness is clear. That's the important 13 thing. 14 THE COURT: That's surely so, isn't it, Mr. Grant? 15 MR. MACAULAY: 16 Q Who's the manager of the Skeena fishery, the whole 17 river? 18 A There's no position with that title that I know about. 19 I'm not being evasive, but there are various people 20 who purport to exercise management authority. There's 21 conflict in the system. If you're asking me who is 22 the area supervisor for area 4, I could make a guess. 23 I've been away from the area for a year and a half. 24 The last — 25 Q But area 4 is on the coast, isn't it? 26 A That's right. Could you be more specific about who 27 you mean by the manager? 28 Q Who's the -- well, you say that there is no one 29 manager. There are Gitksan managers and there are 30 federal officials who purport to manage; isn't that 31 what you're saying? 32 A I said that there were at least three separate systems 33 that I can think of, all of whom purport to manage it. 34 Q Who is the federal person who, to use your word, 35 purports to manage it? 36 A I'm trying to look at my understanding of the 37 Department of Fisheries and Oceans organization. 38 Perhaps it would be the north coast division chief who 39 would be the person of the Department of Fisheries and 40 Oceans who in their system has authority over the 41 entire Skeena. The last person I knew who held that 42 position was Paul Sprout. I'm not sure who holds that 43 position now. 44 Q And did you deal with him? 45 A I have spoken to him. I had more contact with the 46 Skeena management biologist Les Jantz and his 47 predecessor Ron Kalawaki. 13806 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Macaulay 1 Q Those are staff members in the northern division? 2 A Pardon me? 3 Q Those are fisheries' staff officers in the northern 4 division advisory? 5 A That's right. The title is Skeena management 6 biologist of those last two people. 7 Q Now, turning to another thing, from whom did you learn 8 about Gitksan laws? 9 A From quite a number of people. In my opinion, I rely 10 on interviews conducted by staff of the 11 Gitksan-Wet'suwet'en Tribal Council. In addition, I 12 rely on my own conversations, on my own conversations 13 with Gitksan and Wet'suwet'en people. I lived in the 14 community for -- in the Hazelton area for eight years, 15 in the Smithers area for three years previous to that, 16 and I had many contacts with people who had one thing 17 or another to teach me about Gitksan and Wet'suwet'en 18 law. 19 Q So that it's your own researches that have taught you 20 about the Gitksan law, your direct contact with quite 21 a large number of people? 22 A And the interviews that I referred to. 23 Q Well, are you the author of the text on what's known 2 4 as map 22? 25 A Can you tell me the title of that map or show it to 2 6 me? 27 MR. MACAULAY: Fishing sites — 28 MR. GRANT: Show the map to him. 29 THE WITNESS: That's the fishing site map? 3 0 MR. MACAULAY: 31 Q Yes. 32 A I didn't write the text for that one. 33 Q You did not? 34 A No. I was involved in production of the map. Susan 35 Marsden wrote the text. I reviewed the text. 36 Q You reviewed the text? 37 A Yes, we collaborated on this. 38 Q Well, it starts with the words. 39 40 \"The Gitksan and Wet'suwet'en have complex 41 legal systems which delineate, among other 42 things, the foundation perpetuation and 43 regulation of territorial ownership.\" 44 45 Are those your words? 46 A Susan Marsden wrote them. I reviewed them. 47 Q And were you her supervisor in that regard? 13807 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Macaulay 1 A No, we were collaborators. 2 Q And what did you have to say to her about those words 3 when you read those? 4 A As I recall, I made very few changes, if any, in her 5 original text. I don't -- I don't have any problem 6 with agreeing with that. That was the purpose of my 7 reviewing it. 8 Q You agreed with that? 9 A Yes. 10 Q And you base that on your own experience in talking to 11 hereditary chiefs and others? 12 A And reading the interviews and living in the area, 13 yes. 14 Q Now, there are two other maps, one is called the 15 salmon map 23, and the other fish map 20, and there's 16 a text on each one? 17 A Yes. I wrote the text on both of those. 18 Q That's your text? 19 A Yes. 20 Q And those maps are of a more technical nature than the 21 one that Susan Marsden wrote the text for? 22 A They're both about fish and statistics. 23 Q Yes, and that's your field, isn't it? 24 A Yes, that's part of my field. 25 Q Well, isn't that your field, your academic training is 26 in biology, fish biology? 27 A I think it's broader than that. Fishery science. I 28 don't want to quibble about terms. There's a lot of 29 biology in my background. There are other things as 30 well. 31 Q Now, did you purport to do research and document the 32 traditional Indian approach to the fisheries and fish 33 populations? 34 A Yes. 35 Q Well, isn't that a combination of history and 36 anthropology and without any content of biology at 37 all? 38 A It's certainly not without biological content. It 39 contains things that you could call history and 40 anthropology sure. It's all fishery science as far as 41 I'm concerned. 42 Q It's all fishery science? 43 A Yes. 44 Q So that you don't characterize those as either history 45 or anthropology. 46 A If you'd read me the exact words again? 47 Q \"Research and document the traditional Indian approach 13808 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Macaulay 1 to the fisheries and the fish populations.\" 2 A I can see that being material for a number of academic 3 disciplines including fishery biology, including 4 fishery science, including anthropology, including 5 history, and it might well fall into other categories. 6 Q Did you rely on such authors as Hewes? 7 A Yes, I've read material by Hewes. 8 Q Hewes is an anthropologist? 9 A That's my understanding, that he's an academic. He's 10 employed in an anthropology department, or has been. 11 Q Did you deal directly with Mr. Hewes? 12 A I have spoken to him on the phone I recall, but my 13 main contact with him is through I think one published 14 work. 15 Q And in what way did you rely on Hewes' work? 16 A I'd like to see the paper. I believe that -- 17 Q You have the paper, haven't you? 18 A Yes. There's a Hewes and a Kew. They were both works 19 that I consulted as part of my -- the little 20 mathematical model that I constructed of the 21 precontact fisheries on the Skeena. 22 Q Right. 23 A I don't immediately distinguish them in my mind. 24 Q When you read Hewes did you consult one of your 25 colleagues who's an anthropologist who -- in 26 connection with your reading of Hewes? 27 A Not that I recall. My main concern in that, as I 28 recall, was to try to extract from that his 29 conclusions about per capita consumption of fish, 30 probably on the Fraser. As I say, I may be confusing 31 Hewes' work with Kew's; is that right? 32 Q You've got it right. And could you make out from 33 Hewes whether that was dressed fish or gutted fish or 34 what kind of fish it was? 35 A I really don't recall. I have -- I have notes that I 36 used in the preparation of that mathematical model in 37 which I laid out my reasoning and the basis for my 38 assumptions in the model so I can retrieve that 39 information. 40 MR. MACAULAY: Did you express opinions on ownership of the 41 fish in the water in your report? 42 MR. GRANT: Is my friend referring to the '85 report or this 43 opinion report? 44 MR. MACAULAY: Either report. The '85 report is part of the 45 present report and it's folded into it. There is no 46 difference between his report and the '85 report. 47 MR. GRANT: Well, there are just two different studies that my 13809 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Macaulay 1 friend was involved in. I agree with my friend -- if 2 my friend is referring to '85, maybe it would assist 3 the witness in clarifying what time frame he's talking 4 about. 5 THE COURT: Are you able to do that Mr. Macaulay? 6 MR. MACAULAY: What, the — whether it's the '85 report or the 7 present report, the ownership of fish in the water? 8 THE COURT: You've asked him if he expressed an opinion on that 9 question. 10 MR. MACAULAY: I think it's in both, my lord. 11 THE COURT: You can't answer that? 12 MR. MACAULAY: 13 Q It is in both. Ownership -- an opinion about 14 ownership of the fish in the water. 15 A Ownership of the fish in the water? 16 Q Yes, for before they're caught. 17 A Before they're caught? 18 Q Yes. In the Skeena. 19 A Uh-huh. 20 MR. MACAULAY: Well, do you have an opinion on the ownership of 21 fish in the water before they're caught? 22 THE COURT: Are we talking about fish heading out to sea or fish 23 coming back to spawn or -- 24 MR. MACAULAY: They only come one way I think, my lord. 25 THE COURT: Pardon? 2 6 MR. MACAULAY: I think they only come one way, don't they, and 27 they spawn and die. 28 THE COURT: Some fish do, but different fish go in each 29 direction. 3 0 MR. MACAULAY: 31 Q All right. Fish coming upriver. We'll confine it to 32 fish coming upriver. 33 A I don't recall expressing an opinion on that. The 34 reports are -- I don't know if they're officially 35 before the court or not. They're certainly in these 36 binders. The question of ownership of the fish in the 37 water is a tricky one. 38 Q Well, you don't recall expressing an opinion about 39 that on that tricky subject? 40 A I don't recall expressing an opinion as to whether the 41 fish in the water -- 42 Q Belonged to any particular person? 43 A -- belonged to anyone, yes. 44 Q And do you recall expressing an opinion on the 45 ownership of fishing stations? 46 A Certainly that, yes. 47 Q And on what did you rely, on whom did you rely or what 13810 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 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Macaulay did you rely, in expressing those opinions of ownership of land? A On the statements of the chiefs and any Gitksan and Wet'suwet'en person that I've talked to about it. It's a widely held understanding. Q Did you draw any distinction between reserve land and land that is not on reserve in that regard? No. That is, in regard to fishing stations? A Q A Q A No. You don't know of any difference that there might be? Certainly there are differences as far as the laws of Canada are concerned. Q Yes. A I don't believe there's any difference as far as the Gitksan and Wet'suwet'en laws are concerned. Q Did you express opinions in either your 1985 report or in the report submitted to the court on that subject, the ownership of fishing stations? A That must be in there. I certainly hold that opinion. I hold an opinion on that. Q You think it probably is in there? A Sure. MR. MACAULAY: Those are my questions, my lord. THE COURT: All right. Thank you. Is it convenient to stay and deal with this question? We should ask madam reporter first. I think I'm getting an indication that madam reporter would rather do this tomorrow morning. I'm not at all critical of that view. No, I think perhaps we should adjourn. I guess we're running substantially behind are we, Mr. Grant? MR. GRANT: Yes, my lord. I had indicated to my friends I had hoped to be completed the evidence of the witness in a day and I had been optimistic that it would be less than half a day than where we are now. I do understand, although I wasn't here last week and I just want a clarification from your lordship, I know that next week you had indicated you were unavailable generally. I had anticipated that if there were problems you would encourage or you would leave open the practise of sitting on Saturday to complete the witness. THE COURT: Well, I indicated we could sit Saturday and Monday. MR. GRANT: That's the clarification I needed. THE COURT: If we have to. MR. GRANT: If we have to. 13811 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 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Macaulay THE COURT: I would rather avoid sitting Monday and I'd prefer to sit longer hours and try and finish on Saturday, but if we can't, then carry on on Monday. I would certainly hope that that -- I would prefer that as well. All right. Well, do counsel have any suggestions about what sort of extra hours we might sit? Should we start at 9:30 tomorrow morning for example? That would be, given that we are adjourning now, that would be worthwhile I think, my lord. All right. And I think we should plan on staying an extra hour tomorrow afternoon. That's possible. And we'll decide that and where we'll -- what we'll do the next day. Yes, my lord. All right. Thank you. THE REGISTRAR: Order in court. This court will adjourn until 9:30 tomorrow morning. (PROCEEDINGS ADJOURNED TO MARCH 29th, 1989) I hereby certify the foregoing to be a true and accurate transcript of the proceedings herein to the best of my skill and ability. Tanita S. French Official Reporter MR. GRANT: THE COURT: MR. GRANT: THE COURT: MR. GRANT: THE COURT: MR. GRANT: THE COURT: 13812 M. R. Morrell (for Plaintiffs) Cross-exam on qualifications by Mr. Macaulay 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"@en ; edm:hasType "Trial proceedings"@en ; dcterms:spatial "British Columbia"@en ; dcterms:identifier "KEB529.5.L3 B757"@en, "KEB529_5_L3_B757_1989-03-28_01"@en ; edm:isShownAt "10.14288/1.0018396"@en ; dcterms:language "English"@en ; dcterms:subject "Uukw, Delgam, 1937-"@en, "Indigenous peoples--Canada"@en, "Oral history"@en, "Wet'suwet'en First Nation"@en ; edm:provider "Vancouver : University of British Columbia Library"@en ; dcterms:publisher "Vancouver : United Reporting Service Ltd."@en ; dcterms:rights "Images provided for research and reference use only. For permission to publish, copy, or otherwise distribute these images, please contact the Courts of British Columbia: http://www.courts.gov.bc.ca/"@en ; dcterms:source "Original Format: University of British Columbia. Library. Law Library."@en ; dcterms:title "[Proceedings of the Supreme Court of British Columbia 1989-03-28]"@en ; dcterms:type "Text"@en .