CONTENTdm
Delgamuukw Trial Transcripts
British Columbia. Supreme Court
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.
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9209 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 October 28, 1988 2 Vancouver, B.C. 3 4 (PROCEEDINGS RECONVENED AT 10:00 a.m.) 5 6 THE REGISTRAR: Order in court. In the Supreme Court of British 7 Columbia, Vancouver, this Friday, October 28th, 1988, 8 in the matter of Delgamuukw versus Her Majesty the 9 Queen at bar. 10 Caution the witness, you are still under oath. 11 THE COURT: Mr. Willms. 12 MR. WILLMS: 13 Q My lord. 14 Dr. Gottesfeld, when we adjourned last day, we 15 were at Exhibit 785 on page 14, and I had asked you 16 whether or not you used soil pit 13. And I was 17 referring you to the last paragraph on page 14, 18 whether you used soil pit 13 as an off-site comparison 19 for the pits that you excavated on the debris fan. 20 And I think -- I think you said you didn't, but that 21 you would check overnight? 22 A Um-hmm. 23 Q Did you? 24 A Well, yesterday you had not referred me to the last 25 paragraph on page 14, and I have looked at my field 26 notes and apparently I did. 2 7 THE COURT: You did? 28 A I did. I have examined my field notes for that day 29 and I can reconstruct the occurrence that day. 30 MR. WILLMS: 31 Q Well, no, that's fine. I was confused by your report 32 and your answer, but if that's your off-site 33 comparison, maybe we can carry on. And just to make 34 it clear, you compared this pit 13 with the pits that 35 you excavated on the debris fan, and that was your 36 comparative analysis? 37 A In part, yes. 38 Q When you did this comparative analysis, all of your 39 observed criteria were morphological, weren't they? 40 A Yes, they were. It was a field study. 41 Q So you didn't do any chemical criteria in your 42 comparative analysis? 43 A No. 44 Q If you made any error in your morphological analysis 45 of the material in test pit 13, that error would be 46 repeated, would it not, through your comparison? 47 A Perhaps. But there was more than test pit 13 that was 9210 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 used. There is a base for what -- what a well- 2 developed soil of approximately 10,000 years should 3 look like, there is my experience throughout the 4 Skeena area, as well as a number of observations in 5 the study area. 6 Q If you -- 7 A There are soil pits that were -- which have 8 observations on them recorded in the field notes which 9 are now presented in figure 16. I recall numerous 10 shallow soil pits that were dug in the course of the 11 field work. For instance, if you take a few shovel 12 fulls and take a peek and see if it was the same as 13 previously examined sections. Perhaps one would pick 14 a place and attempt to -- they would take a soil 15 profile and run into a boulder at 20 centimetres and 16 decide this section wasn't adequate, or have big tree 17 roots and perceive one couldn't cut through them with 18 a shovel. 19 So there were very many more exposures examined 20 than those which are shown in the soil diagrams on 21 figure 16, part one and two, figure 17 and figure 18. 22 And in addition, there are a number of soil profiles 23 which were collected in other parts of the study area 24 which are not included in this report. 25 Q You used those as a comparison here? 26 A No. But they contribute to the general background on 27 making interpretations of what is a well-developed 28 soil. What -- how much soil development would one 29 expect at this place. 30 Q Okay. Perhaps you could turn to figure 16, part one 31 in your report, and you've -- and I'm looking at test 32 pit 13. Underneath it, you've described this as being 33 on Pleistocene till, that's P-L-E-I-S-T-O-C-E-N-E, 34 correct? 35 A Yes, yes, Pleistocene. 36 Q But you don't show any till in this test pit, do you, 37 on your diagram? 38 A Yes. I would interpret it at this time, that diagram, 39 as being till. 40 Q You would interpret mottled sand with yellowmottles 41 being till? 42 A Well, I saw this soil profile in the context of the 43 spot that it occurs, not in isolation on the corner of 44 figure 16, part one. And I have my field notes which 45 I will read into the record, if you wish, and my 46 recall of the place. 47 Q Well, just -- I just want to focus on the diagram, and 9211 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 what you've depicted here, because -- correct me if 2 I'm wrong -- but is mottled sand an indication of poor 3 drainage? 4 A Perhaps, yes. At least from time to time. At least 5 sometime during the year that there is impeded 6 drainage. 7 Q And just to be clear, there is no carbon dating you 8 did in test pit 13? 9 A That's correct. 10 Q And no chemical analysis in test pit 13? 11 A That's correct. 12 Q Till is usually a mixture of coarse fragments larger 13 than two millimetres in a sandy, silty, clay matrix, 14 isn't it? 15 A Frequently, yes. 16 Q In fact, till is usually constituted of poorly sorted, 17 that means many different sizes, wide range mixture of 18 particle sizes? 19 A That is its characteristic. Of course the grain 20 composition of the till is dependent on the material 21 that are incorporated. I mean the connotation of till 22 is that they are glacial deposits. If the only thing 23 that are available is, for instance, boulders, then 24 the till would be made of boulders. If there is only 25 sandy material available, then the till will be sandy. 26 If it were -- if there are only clays available, then 27 the till would be clay. But the classical field 28 recognition of tills that you would like to have is a 29 mixture of slices. 30 Q The description "mottled sand with yellowmottles" is 31 very uncharacteristic of a till, isn't it? 32 A Yes, it is. But I believe that this is a till. 33 Q Perhaps you could turn now to the other -- 34 A I have additional data from that locality which I -- 35 which I think is relevant to this discussion. 36 Q Is the data in your report? 37 A No, it's in my field notes. 38 Q Now, could you turn to -- we are still on figure 16, 39 part one. These are all -- and especially sites 1, 2, 40 4 and 5 on the bottom, these are all of the sites that 41 you described as Early Holocene, figure 16, part one. 42 And if you want to refer back, please feel free to 43 refer back to figure 11. 44 THE COURT: You are talking about 1, 2, 4 and 5? 45 MR. WILLMS: 46 Q 1, 2, 4 and 5. My understanding was that those are -- 47 were described by you as Early Holocene? 9212 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 A Um-hmm, correct. 2 Q Correct. 3 THE COURT: Early Holocene is about two to 3000 years ago? 4 MR. WILLMS: No, that's — 5 THE WITNESS: No. Six to ten — 6 THE COURT: Six to ten. 7 THE WITNES: -- thousand years ago. Geologists 8 characteristically start at the bottom with the older 9 deposits, so the early stuff is on the bottom, the 10 middle stuff is higher up, and the youngest material 11 is late or upper. 12 MR. WILLMS: 13 Q In none of these, save and except for perhaps two, did 14 you excavate into the C horizon? 15 A That is in accord with the soil diagrams, yes. 16 Q So that in none of these did you excavate down into 17 the unaffected parent material? 18 A Yes. But I presumably made observations as to the 19 nature of that material. 2 0 Q And you didn't put those on your diagram? 21 A Well, they were not in the soil pits. I mean the 22 field work, collecting soil pits was a relatively 23 small part of the field work. That the essence of the 24 field work was walking on the deposits, finding 25 outcrops, observing materials and drawing conclusions 26 as to what is the nature of this piece of terrain that 27 I'm walking on, what is this stuff made of. 28 Q By looking at it? 29 A By looking at it. And you know, and making 30 observations as to it's nature. And, for example, 31 when you are walking over these debris -- these debris 32 slide fans, there are big boulders that you are 33 climbing over and there is sandy material between 34 them. And one great difficulty in collecting soil 35 profiles is you start digging and you run into a 36 boulder, and one would need a big machine there to 37 make the hole deep enough to remove the boulders and 38 see what's underneath them. And so I used as 39 comparison for C material, observations of fresh 40 debris slide material from the same source area as the 41 presumed source of these older debris types. 42 Q Presumed source? 43 A Presumed source. 44 Q You have shown a large boulder in test pit 1 but there 45 is no boulder in 2, 4, 5 or 13? 46 A There is in 5. 47 A Oh, I see. Sorry. All right, 2, 4 and 13? 9213 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 A Correct. I don't have observations. There presumably 2 was some other reason that the digging stopped at that 3 point. One consideration, of course, is that the 4 field work was done in a short period of time, and 5 that the objective was to map and discover what 6 deposits were out there and to get some kind of a feel 7 for what the relative age of them was. I did not know 8 before I was there how old these materials were or 9 what their area distribution was. This was the 10 first -- these were the days in the field when I 11 decided it. And some of these, for example, figure 13 12 was done the first time I went to the site, I believe, 13 or first time I visited the fan. So I had no idea 14 what comparative, you know, what other kinds of things 15 would be developed. But I think it's quite 16 appropriate to look at fresh material of that same 17 nature and origin to use for comparison of unweathered 18 material. 19 Q And during your walk around you formed some 20 preliminary opinions about how old the material was? 21 A Yes, I did. And of course, as I saw more and more 22 soil, those opinions changed. You try to integrate 23 everything you see and make sense of the distribution 24 of this and how could you figure out these things at 25 the site, but -- what do I have to see next that will 26 clarify my opinion of what is here. 27 Q Okay. I just like to turn to a different topic for a 2 8 moment. 29 THE COURT: Before you do that. Is it your belief that all this 30 material that's shown in these test holes was 31 originally the same as the material in the C Horizon? 32 THE WITNESS: Yes. Yes, we are looking at the weathered 33 edges -- 34 THE COURT: Yes? 35 THE WITNESS: — of debris flows that came out of Chicago Creek. 3 6 THE COURT: Yes? 37 THE WITNESS: And you can see from the topographic forms the 38 lineations on them, where they are pointing, where 39 they came from, and from the material included in 40 them. But these are old granite boulders and the 41 granite doesn't occur underneath them but it occurs up 42 there on the mountain. So you get a feel for what is 43 this material I'm walking on. 44 THE COURT: Yes. But soil — what do you call it, soil 45 generation or creation, takes place over thousands of 46 years? 47 THE WITNESS: Yes, it does. 9214 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 THE COURT: From the parent material which is usually found at 2 the bottom of the profile? 3 THE WITNESS: Yes. So that if you dig — you know, if you dig 4 down deep enough, you will find unweathered parent 5 material. 6 THE COURT: Yes. 7 THE WITNESS: When you get down below the soil development. 8 THE COURT: Right, thank you. 9 MR. WILLMS: 10 Q Now, just turning to a different topic, after the last 11 major glaciation, that is from about 10,000 years ago, 12 is it true that the supply of sediment of the Skeena 13 and other rivers was greater than at present, that is, 14 right after the glacial -- 15 A Tremendously so. 16 THE COURT: Sorry? 17 THE WITNESS: To a very great extent. 18 THE COURT: Thank you. 19 MR. WILLMS: 20 Q And this resulted in deposition of gravel deposits on 21 the wider reaches of the rivers? 22 A Yes. Some of them up to a hundred metres thick. 23 Q Similar but smaller deposits were formed in at least 24 the smaller tributary rivers during the little ice 25 age, 200 to 250 years ago? 26 A I think we have to go back to the last question. In 27 general, yes, but I don't know exactly. I would say 28 yes, sure, similar but much smaller. 29 Q And just on the little ice age, that's from about 1500 3 0 AD. to about 18 00 AD.? 31 A Or even 1850. 32 Q Or even 1850. 33 From your experience as a geologist in the 34 Pacific North West, north-west British Columbia, 35 you've noted that since about 2500 years ago, the 36 regional climate has been more conducive to glacier 37 expansion? 38 A Yes. 39 Q And just generally, does that mean that the regional 40 climate has become generally cooler to at least the 41 little ice age? 42 A Or wetter or both. Cooler or wetter or both cooler 43 and wetter. 44 Q And in fact, during the little ice age, some of the 45 glaciers in the mountains expanded as much as a 46 kilometre and reached elevations below 1200 metres? 47 A Yes. Some even more than a kilometre, two or three or 9215 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 four. 2 Q Since the little ice age, the climate in north-western 3 British Columbia has been warming? 4 A Yes. Apparently consistently warming or drying or 5 both. 6 Q All right. Now, getting back to your description of 7 debris slides, is it typical that debris slides occur 8 during large storm events when soil saturation is at a 9 maximum? 10 A Yes. Characteristically they do. 11 Q And in the streams, the sedimentary debris picks up 12 water and may form mud slurries? 13 A Correct. 14 Q These mud slurries can flow down the valleys and 15 incorporate loose sediment and logs on the way? 16 A That's correct. 17 Q A good method of dating a debris flow is excavating to 18 the in situ sediment in the flow; is that correct? 19 A Provided that there were materials included in the 20 flow that are datable, which is unusual. 21 Q Such as -- it's unusual for a debris flow, for 22 example, to carry a tree down with it if it's a large 23 debris flow? 24 A No, that's extremely common. But the preservation of 25 those logs and trees is extremely unusual because the 26 debris flows are really porous and groundwater flows 27 right through them carrying oxygen, and the wood is 28 oxidized and is lost. And it's quite surprising, but 29 when you look at all debris flows you are hard-pressed 30 to find any signs that there used to be logs in there, 31 although I'm convinced that there were. There has 32 been only one debris flow that I've seen one -- debris 33 flow of some antiquity where I saw logs in place. 34 Q But the dating, carbon dating of material, to get the 35 best estimate of the date of the debris flow in a 36 perfect world, if you got some in situ material from 37 that debris flow, that would tell you pretty 38 accurately how old the flow was? 39 A Yes, it would. And consequently, I've talked to all 40 of the highways engineers in the north-west and told 41 them I'm extremely interested in such materials. That 42 when they develop quarries in the debris fans at the 43 mouths of creeks which are characteristic, to please 44 be on the lookout for any logs that might be in the 45 deposit and call me. I have not received any calls. 46 Q Did you excavate into the debris flows of Chicago 47 Creek to look for such in situ material? 9216 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 A No. But I certainly examined all available outcrops 2 looking for such material. I mean one would really be 3 happy to find such stuff. 4 Q Do you know Mike Morrell? 5 A I do. 6 Q Mike Morrell, M-O-R-R-E-L-L? 7 A I know him well. 8 Q Did you critique his report on Gitksan and 9 Wet'suwet'en fishery management? 10 MS. MANDELL: I think that that's — that question is 11 objectionable. I think if my friend wants to ask him 12 what he did with respect to the report, he should. 13 But I think "critique" is a word that's loaded to 14 intepretation. It should just simply be asked of the 15 witness if he did anything and what did he do. 16 THE COURT: I don't agree, with respect, Ms. Mandell. The 17 cross-examination, I think counsel are entitled to 18 skirt around it and approach it in a leisurely way or 19 they can move directly to it. If there is a 20 pejorative flavour to the question, I hadn't noticed 21 it until you rose, Ms. Mandell. I thought it was a 22 technical, academic term that was well understood, but 23 I'm not sure whether he intended a pejorative 24 connotation. 25 MR. WILLMS: I'm not intending a pejorative, I'm intending 26 critique meaning looked at, point out, criticisms, 27 problems, whatever. It's not pejorative. 28 THE COURT: No, I don't think it's pejorative. 29 MR. WILLMS: 30 Q Did you do that? 31 A I believe I read the report in terms of general 32 interest in the Skeena area. I don't think I ever 33 made any written comments about it. 34 Q How about verbal comments to Mr. Morrell about it? 35 A Well, perhaps. But only -- would have been in only a 36 very general sense like, "That was interesting stuff," 37 like, and I do not think anything in detail. 38 Q You don't recall telling him that any parts of the 39 report that you looked at were, in your view, wrong or 40 inaccurate? 41 A No. 42 Q From your examination in the north-west of British 43 Columbia, have you come across a lava flow called the 44 Tseax, T-S-E-A-X lava flow? 45 A Yes, I know that place well and I spent several weeks 46 looking at it. 47 Q All right. It's about 300 years old? 9217 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 A I believe it to be very close to 300 years in age. 2 MR. WILLMS: Okay. My lord, this is the first document that has 3 both the whited-out and unwhited-out, and I propose to 4 do what we did with Dr. Mathewes, mark them both 5 subject to my friend's objection and later argument. 6 THE COURT: Does your friend know what they are? 7 MR. WILLMS: 8 Q The first one is the -- a letter dated July 8th, 1985, 9 from the tribal council to Mr. Gottesfeld. 10 And Mr. Gottesfeld, if you -- can you identify 11 that as a letter that you received from the tribal 12 council? 13 A The one dated July 8th? 14 Q Yes? 15 A Yes, I recognize this letter, um-hmm. 16 Q Did I give you a marked-up version of it as well? 17 A No. 18 Q With some black on it? Oh, there we are. 19 A Yes, you have. 20 MR. WILLMS: All right. My lord, Exhibit 784-6. 21 THE COURT: Is there no objection? 22 MS. MANDELL: No. 23 24 (EXHIBIT 784-6 - Tab 6 of the Grey Binder, Letter from 25 the Tribal Council to Dr. Gottesfeld dd. July 8, 1985) 26 27 MR. WILLMS: 28 Q This letter from the tribal council, and I'm referring 29 to the second paragraphs down on the first page, sets 30 out the initial purpose of your work; is that correct? 31 A Yes, it is. 32 Q And prior to this date, had you met with a Mr. 33 Overstall and with Susan Marsden? 34 A I have known both of them for more than ten years. 35 Q Does that mean your answer was yes? 36 A Yes. On frequent occasions over the last 10 to 12 37 years. 38 Q Did you meet with them to discuss what became the 39 subject matter of this letter? 40 A Yes, I did. 41 Q Okay. In response to that, you prepared a draft 42 report? 43 A Well, this letter was authorization to do a short 44 course of field work and see what was out there, and I 45 prepared a short report at the end of those three days 46 of field work. 47 Q And I'm showing you an eight-page document entitled 921? A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 "Stekyooden Landslides, draft report by Allen and 2 Leslie Gottesfeld, July 14th, 1985." That's your 3 draft report? 4 A Yes, it is. 5 MR. WILLMS: My lord, Exhibit 784-7. 6 THE COURT: Thank you. 7 8 (EXHIBIT 784-7 - Tab 7 of the Grey Binder, Stekyooden 9 Landslides, Draft report by Allen and Leslie 10 Gottesfeld dd. July 14, 1985) 11 12 MR. WILLMS: 13 Q Now in this report, you've described some observations 14 in this draft, some observations you made at Carnaby, 15 at Chicago Creek and at Mudflat Creek; is that 16 correct? 17 A That's correct. 18 Q And if you could turn in Exhibit 784-7 to page 4, you 19 are describing the Carnaby fan in paragraph 2, and I'm 20 interested in the middle of the paragraph you talk 21 about samples of two logs collected for 14C dating? 22 A Oh, excuse me, I'm looking at the second paragraph on 23 page 2. 24 Q Four, second paragraph on page 4, please. You are 25 talking about two samples collected for carbon 14 26 dating there? 27 A Yes, yes. 28 Q And you took two samples there? 2 9 A I did. 30 Q And then in the third paragraph, you, from your visual 31 observations, concluded that the Carnaby fan suggested 32 "an age of several thousand years"? 33 A Yes, I did. That's what it says. 34 THE COURT: Is that the 1000-5000 years, is that what you mean 35 by "several"? 36 THE WITNESS: Yes, precisely, one to 5000 years. 37 THE COURT: That's the number to which you refer, is it? 38 MR. WILLMS: Well, there is "several" at the beginning and then 39 "one to five" at the end, and I was going to come to 40 that. 41 THE COURT: Where do you see the several? 42 MR. WILLMS: In the very first line, my lord. 43 THE WITNESS: I think there is slightly different degrees of 44 confidence in there. That my -- if I recall, I was 45 thinking of two to 3000 as the most likely age and 46 qualifying it to different degrees to give some 47 latitude for its relative dating for soil development. 9219 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 THE COURT: I haven't found the word "several" in here. 2 MR. WILLMS: My lord, the very first line of the third 3 paragraph: 4 5 "The Carnaby debris fan has an incipient soil 6 development on it suggestive of an age of several 7 thousand years." 8 9 THE COURT: All right, thank you. Yes. 10 MR. WILLMS: 11 Q Was the visual assessment that you made of the Carnaby 12 debris fan similar to the visual assessment that you 13 made of the Chicago debris fan? 14 A Yes, it was. 15 Q And your Carnaby observations here were morphological 16 observations not chemical? 17 A Yes. Although there were a few pH measurements taken 18 of the Carnaby fan. 19 Q Now on page 5, you discussed the Chicago Creek debris 20 fan and these are your observations. How long -- how 21 long did you spend at Chicago Creek before July 14th, 22 1985, in making the observations that are set out on 23 pages five and six? 24 A I think about four hours. I discovered that there was 25 a debris lobe that nearly reached Highway 16 within 26 minutes of going to the locality. That brought the 27 conclusion that this was definitely a place to 28 investigate in detail, and I think I went briefly 29 below the highway, below the Rim Mill where access was 30 easy, to see if there was anything spectacular in that 31 area. I did not see anything. And then went on to 32 look at other areas which I was not familiar with. 33 Q And just turning to the third paragraph, from your 34 observations below the highway, in that last line, you 35 concluded that: 36 37 "The present course of Chicago Creek and of the 38 lower stretch of Seeley Creek is diverted around 39 the lobe of this debris deposit." 40 41 A Okay, yes, that jogs my mind. More than a few minutes 42 above the highway. This is the time I walked up the 43 creek bed, I believe, across the back of the fan and 44 back to the highway. That would have been about an 45 hour above the highway. So I walked up the creek and 4 6 examined the sediment in the creek, and found -- and 47 concluded that the present location of Chicago Creek 9220 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 just above Highway 16 -- this is south of Highway 16, 2 is between the older country rock and the debris flow. 3 It has pebbles in it of glacial till and indurated 4 sediments which are the kind of rock right there. It 5 means it's picking up material from elsewhere. As you 6 walk up a couple hundred metres then it's entirely 7 granite debris. So for that lower piece, that was the 8 observation I made from which I drew the conclusion 9 that it was located along the margin of the flow. 10 Q Well, you say "diverted around the lobe", correct? 11 A Yes, 12 Q And can you turn to your report which is Exhibit 785 13 and turn to figure 11? 14 A Um-hmm. 15 Q I thought that yesterday you said that right near the 16 number 15, Seeley Creek cut through the debris lobe? 17 A That's correct. 18 Q Well, which observations are correct; the ones you 19 made before you wrote the draft report or the ones 20 reflected in figure 11? 21 A I -- as for the lower course -- the observation is 22 correct for the present course of Chicago Creek, that 23 is the material that I walked that day. I did not 24 perceive on 15 minutes observation that the debris 25 lobe extended south of the highway. At Highway 16, 26 the place where Seeley Marsh drains, the spot -- there 27 is a culvert under Highway 16 -- is at the margin of 28 the flow. I did not perceive until I walked down 29 Seeley Creek that it actually cut across the flow, and 30 that was not till the later research. 31 Q So, just to be clear, the observation on page 5 of 32 Exhibit 784-7, that the lower stretch of Seeley Creek 33 is diverted around the lobe of the debris deposit is 34 wrong? 35 A Yes. I have obtained lots more information on that 36 since the time of this initial field work, and I -- 37 that is not my opinion at the present time. 38 Q Because Seeley Creek is diverted around it, then the 39 debris flow didn't dam it, did it? 40 A Oh, that would be correct, if that were true. 41 Although — 42 Q Turn — 43 A No, no, if I may back up a minute. That is not 44 necessarily true. I mean if the debris flow dammed 45 it, the creek may cut through the deposit or flow 46 around the edge of it, depending on where the channel 47 were to be incised. I mean the lake -- you have the 9221 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 dam formed, the water level come up and up and up, 2 there is lots more rain than evaporation, so 3 eventually it spills. The question then will be when 4 it spills, where will the channel be established? 5 Usually in the situations, the channel is established 6 between the flow and the older country rock, into the 7 older surface. In this case, it cuts across the 8 debris lobe, but I did not know it at the time that I 9 prepared this draft report on July 14th. The bulk of 10 the field work was done at the end of July and early 11 August. 12 Q Can you turn to page 6 of Exhibit 784-7, the second 13 paragraph, and you say: 14 15 "We did not succeed in finding direct evidence of 16 a debris flow in the lower portion of Chicago 17 Creek." 18 19 Correct? You gave evidence about that yesterday? 20 A Yes. 21 Q You say: 22 23 "If there was one it may have been removed by 24 subsequent erosion." 25 2 6 And then you say: 27 28 "If a debris torrent proceeded down Chicago Creek 29 it seems likely that no remnants would be 30 preserved." 31 32 That was your opinion at the time? 33 A That was my opinion on July the 14th when I wrote this 34 quick report. 35 Q All right. 36 A I subsequently made three or four other trips to the 37 area to examine it in more and more detail. The 38 general thing that you see there is that the lower 39 reaches of Chicago Creek are deeply entrenched. They 40 are in a little canyon and the sides of it are steep. 41 So it is conceivable that if a debris torrent came 42 shooting down the canyon there might be a skin of it 43 left on the walls and it would be removed by later 44 erosion. And I believe at this point that there are 45 no remnants of the debris flows on those canyon walls, 46 but I did later succeed in finding what I believe to 47 be remnants of that debris torrent on a flat area in 9222 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 the middle stretch of Chicago Creek between Highway 16 2 and the river. 3 Q Yes. If you please turn to figure 11 in your report 4 at Exhibit 785? 5 A Um-hmm. 6 Q You dug one soil pit, that's pit 20, which looks to be 7 clearly in the middle of what you called a 8 Mid-Holocene alluvial deposit? 9 A Yes. It's approximately in the middle of the -- apex 10 of it. I mean not the area, but facing the creek 11 where it would have come out in the central location. 12 Q And you've described that soil pit on figure 18, 13 that's soil pit 20, which is the long pit on figure 14 18? 15 A Just a moment. Oh, this is figure 18? Oh, I think in 16 that case -- 17 THE COURT: Which are you looking for? 18 THE WITNESS: I'm looking for soil pit 20. 19 MR. WILLMS: 20 Q Would you look at figure 18? 21 A There, fine, I have it. 22 Q And what is your description of what you found in soil 23 pit 20? Sorry, at the bottom there, that's Holocene 24 debris torrent deposit? 25 A Debris torrent deposit, yup. And in particular, 26 what's impressive about that place was finding at the 27 depth of half a metre, running into these cobbles of 28 granite and granitic debris, which is comparable to 29 the material that makes up the debris lobe that's 30 present up the valley. 31 Q You dated this pit using the same morphological 32 criteria that you used to date the other pits? 33 A Yes. 34 Q There was no chemical analysis done? 35 A No. 36 Q There was no carbon dating done in test pit 20? 37 A No. There is no absolute date on that material. 38 THE COURT: On 18 or 20 or both? 39 MR. WILLMS: 40 Q On pit 20 which is figure 18. 41 A On that whole deposit of alluvial material on the 42 flat, we have no absolute date on that. 43 THE COURT: Was carbon dating expensive? 44 THE WITNESS: Not extraordinarily so. About $300 a sample. I 45 mean the problem is finding materials suitable for 46 sampling. If I had encountered such stuff I would 47 have had a date on it. 9223 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 THE COURT: There is no organic material here? 2 THE WITNESS: Not in an appropriate position in the profile or 3 any of the exposures I could find. 4 THE COURT: Thank you. 5 MR. WILLMS: 6 Q Well, if you look over to test pit 18 which you've 7 described as a "Sandy Mid-Holocene distal debris 8 deposit on top of Lake Glacial sediments." See that? 9 A Yeah, uh-huh. 10 Q What's the "Abrupt boundary, organic lenses"? 11 A I interpreted that as the top of a buried soil that 12 was -- and that the material from 40 centimetres down 13 was an Early Holocene soil which was buried by 14 approximately 40 centimetres of material later on, 15 presumably. 16 Q You could have carbon dated that organic lens? 17 A As I recall, it was very wispy and decayed and did not 18 present itself to me as a dating opportunity. I mean 19 the problem with carbon 14 dates is that you get 20 really nice numbers for the date, but the context is 21 the critical thing in an interpretation, which is to 22 say, okay, now you have a date that says whatever, 23 3800 years, what does it mean that this item is 3800 24 years old? One could have -- I mean, if this is an 25 organic lens on the top of that soil, it may have been 26 any time in the formation of that soil, and it would 27 have been leached and altered by subsequent 28 weathering. I would really look for a piece of wood 29 in such a circumstance, or a chunk of charcoal. 30 Q Can you -- if you look at centimetre 49 through 31 centimetre 140 on test pit 20, you described that as 32 "Coarse sand with cobbles mostly of granite 10YR 4/4". 33 A Correct. 34 Q And that's the same description that you gave test pit 35 18 for that horizon just above the organic lens; is 36 that correct? 37 A Yes. 38 Q So wouldn't the carbon date of the organic lens tell 39 you the oldest that that particular deposit could be? 40 A Yes. If you got a date from it, it would be a maximum 41 date, but I don't think it would be a reliable date. 42 Q Well, it would be a maximum date, wouldn't it? 43 A Presumably, although it may well have been altered by 44 subsequent leaching and translocation of fluid 45 materials from higher up the column, and it would not 46 be a date that I would put a lot of reliance upon. 47 Q When you made your statement in your draft report 9224 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 about a debris torrent being -- it seeming unlikely 2 that no remnants would be preserved, was that based on 3 your experience in landslides and debris torrents? 4 A No. It was, I think, based on my experience in -- 5 below Chicago Creek of walking up and down the walls 6 of it looking for remnants and finding that the creek 7 was deeply incised, that there was active sloughing 8 going on in the walls of the canyon and it did not 9 look like anything could be stuck on those walls the 10 way they presently formed. 11 I did not, at that time, perceive that there was 12 anything of interest on the little flat, half-way down 13 the reach of the creek. 14 Q How many drafts of your report did you prepare? 15 A Well, if this early report of July 14th is included, 16 there were three drafts. 17 Q So there is this draft, then there is another one, and 18 then the report which has been marked? 19 A Right. There is the draft of about New Year's, 20 January, 4, 5, 6 of 1986, and the final changes to 21 that which were then submitted in -- I don't recall 22 the month of that. Later in '86. 23 Q I think you said October? 24 A October. 25 Q Do you have copies of the second draft? 26 A No. I could not -- I searched and could not discover 27 a copy of it, although I have copies of correspondence 28 related to it and I have a clear memory of the sorts 29 of changes that I made. 30 Q Is it your normal practice to destroy drafts? 31 A Depends on the limits of storage, in that the changes 32 that were made to that second draft were of extremely 33 minor nature and so I didn't perceive there was 34 something worth keeping from the earlier draft. That 35 most of the changes were typographic and so on, so I 36 updated my computer file and erased the earlier draft 37 and I do not have a copy of that draft. 38 Q Not even on memory on your computer? 39 A I searched my files. I was surprised to not find it. 40 I had expected to, but I have clear memory of the 41 kinds of changes that were made. 42 Q Did you speak to Susan Marsden about any of your draft 43 reports? 44 A Yes, there were conversations. 45 Q Did your report change at all as a result of those 46 conversations? 47 A Yes. No, not in terms of was there something written 9225 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 in there that I did not include, but there was an item 2 that I did not include after I discussed it with her. 3 I said, "Well, do you think I should put this item 4 in," and she did not think I should. 5 Q And so you didn't? 6 A And I didn't. 7 Q And at the back of your draft -- sorry, at the back of 8 your report, you have a reference -- I'm referring to 9 page 23. Can you turn -- it's page 23 of your report. 10 A That's the same tab 2? 11 Q Yes. It's tab 2, Exhibit 785? 12 A Um-hmm, page 23. 13 Q As one of your references, you've noted Dr. Mathewes' 14 paleoenvironmental studies? 15 A Correct. 16 Q Do you still have a copy of that? 17 A Yes, I do. 18 Q Do you have it with you today? 19 A I do. 20 Q May I see that? 21 Are you a member of any of the plaintiffs' houses? 22 A No, I am not. 23 Q Can you -- I would like you to turn to Exhibit 785, 24 figure 11. Now on figure 11, you have denoted the two 25 locations where you did carbon 14 analysis with a 26 star? 27 A That's correct. 28 Q And so the carbon 14 dating was pit 14 and pit 11? 29 A I'm not sure about 11, but it's probably 11. It might 30 have been 10. I mean I can't distinguish it on this 31 map. I would have to look at the field notes or the 32 manual -- or this report. 33 Q Well, it's on your -- it's in figure 17. You 34 described it on figure 17 as being 11 and 14? 35 A Um-hmm, fine. 36 Q Correct? 37 A Yes, 11 and 14. 38 Q And you numbered those two samples, one was numbered 39 85-54 and the other one was numbered 85-56. Those 4 0 were your sample numbers? 41 A I have to check my list of sample numbers, but that 42 sounds right. They were numbers like that. 43 Q I thought you identified that yesterday? 44 A Well that's true, but I don't have them in my memory 45 as to which number goes with which sample. 46 Q In retrieving material from these pits for carbon 47 dating, what you wanted to be sure of was that the 9226 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 2 3 A 4 5 6 7 8 9 10 Q 11 12 13 A 14 Q 15 16 A 17 Q 18 19 A 20 Q 21 22 23 A 24 25 26 MR. WILLMS 27 THE COURT: 28 MR. WILLMS 29 THE COURT: 30 31 MR. WILLMS 32 THE COURT: 33 MR. WILLMS 34 THE COURT: 35 36 37 38 39 MR. WILLMS 40 Q 41 42 A 43 Q 44 45 46 47 A test material removed would reflect the age of either the surrounding material or the material below it? Right. That's the critical aspect of collecting carbon 14 samples, is that you must have an idea about when you get the date, what does it mean, what -- you have to have some clear idea of what do you think you are going to do with the sample and treat it in such a manner that it will avoid contamination and that you will get a date that's a good date. And I think you've -- on Exhibit 788, which is at tab 3, you got -- sorry, just for a moment, that's your standard practice in carbon 14 dating? That's correct. Now, you've got five samples that were sent to Beta Analytic for carbon 14 dating? That's correct. Now I noticed that the numbers go 85-50, 51, 52. Did you take a sample 85-53? I did. And I'm showing you a copy of what was described as your field notes. Is this a copy of one page of your field notes which sets out carbon 14 samples? Yes, it is. This is in my handwriting, a page of notes written in the laboratory as I prepared samples for submission for carbon 14 dating. : All right. 784-8, my lord, please. I'm sorry? Oh. : Exhibit 784-8. You are -- what are you submitting, the -- this draft? No, that's seven. : No, my lord, it is a one page -- I see. : Taken from Dr. Gottesfeld's notes. Yes, all right. (EXHIBIT 784-8 - Tab 8 of the Grey Binder, Page of Field Notes of Dr. Gottesfeld) And from these notes, Dr. Gottesfeld, it's clear that you took samples 85-50 all the way through 58? Correct. Perhaps just starting at the top, so that I don't misinterpret or misread what you've got, can you say what you've got beside each one all the way down, starting with 85-50? You mean the description on it? 9227 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 Q Yeah. 2 A Oh, 85-50, the locality was Carnaby fan, the material 3 was wood. 85-51, the locality was Carnaby fan, the 4 material was wood. 85-52, the locality was Carnaby 5 Creek Swamp, the material was wood. 6 Q Is that Comeau Creek? 7 A I'm sorry, Comeau Creek swamp, the material was wood, 8 that's sample 85-52. Sample 85-53, the locality was 9 Seeley Creek swamp, the material was wood. 85-54, the 10 locality was Seeley Creek swamp, the material was 11 wood. 85-55, the locality was Chicago Creek, the 12 material was peat. Presumably Chicago Creek swamp. 13 Q And just there is -- is that "discard" underlined 14 there? 15 A Yes, it is. It says "discard". 16 Q And why? 17 A Well, shall I finish the list before the discussions 18 of the samples? 19 Q Well, if you could just tell me why -- what the 20 relevance of "discard" is? 21 A I did not like the sample. Preferred another. I 22 presume I decided that there was something defective 23 in the sample, that it was -- hadn't been transported 24 well or showed evidence of contamination in the sample 25 or some such and that it was not appropriate for 26 dating. And so I discarded it and made a note, to 27 avoid some -- avoid the experience perhaps some year 28 like this year of searching through the freezer for a 29 replicate sample or an undated sample and not finding 30 it. This is a note to me that I do not have that 31 sample anymore; that at the time I did the lab work I 32 decided it was not suitable. 33 Q Okay. 34 A And I discarded it. Shall I continue the list? 35 Q Please do? 36 A 85-56, the locality was Chicago Creek, the material 37 was gyttja, G-Y-T-T-Y-A (sic). 38 THE COURT: And did you describe that as well? 39 THE WITNESS: There is an asterisks there to a note below. 40 THE COURT: Oh, note below. 41 THE WITNESS: Which has noted the special treatment I made to 42 prepare that sample. That is material which was 43 submitted for dating. 44 MR. WILLMS: 45 Q All right. 46 A And I believe it was actually submitted twice. I mean 47 that there was a supplement made when the material 922? A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 turned out to be of inadequate quantity for accurate 2 dating. 3 Q All right — 4 A I presume that's in the notes I have below, I haven't 5 looked at them in detail. 6 This 85-57, the locality is Chicago Creek, the 7 notation is "retain in freezer". 8 Q Do you still have it in your freezer? 9 A I do. The material is wood. 10 85-58, the locality is Chicago Creek, and again 11 the notation is "retain in freezer". The material is 12 wood. 13 Q Now, just -- 14 A I mean it's my practice to, if possible, retain 15 replicate material in case there is questions in 16 future about the accuracy of the dating. And if 17 material is suitable for dating but I decided it had a 18 lower priority than the material actually submitted, I 19 retain it so that it's stuck in the corners of my 20 freezer. Some blocks of organic material are 20 years 21 old. It's probably time to clean out the corners of 22 the freezer. 23 Q Don't be too quick. 24 What -- can you read from "Samples" on down what 25 you've said there? 26 A Notes about my lab treatment. "Samples removed from 27 freezer Tuesday a.m. at 8:00." Place -- it might be 28 better to read the original notes. 29 Q If you want to read your original, please do. 3 0 A I think I can find them if you give me a moment. The 31 question is will it be faster to find the original or 32 to try to decipher the photocopy. The original was 33 written in paper on hard field paper and it does not 34 photocopy well. 35 Q There it is. 36 A Yes, here is the original. 37 Q You are referring to an original which is identical -- 38 or which -- from which Exhibit 784-8 was photocopied. 39 Is there something on the reverse side of that 40 original? 41 A Yes, the next page. And I believe that was also 42 photocopied and supplied. I think I photocopied these 43 field notes myself one night. I attempted to copy 44 every page and to keep them in the order in which they 45 occurred in my notes. 46 Q Well — 47 A I believe I did. 9229 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. MS. THE MS. THE THE THE THE MR. THE MR. THE MR. THE MR. WILLMS: I don't remember that one, but perhaps we could -- my lord, maybe the easiest thing would be to mark the original field note front and back, as an exhibit. MANDELL WITNESS MANDELL of WITNESS: I have no objections to that. Well — I think Dr. Gottesfeld would probably want a copy it, but I have no objections to it. With your permission, your lordship, I would strongly like to retain at least a copy of these notes. COURT: Oh yes, you can certainly have a copy. WITNESS: And if indeed I did not -- that I neglected to photocopy the back by accident, which I can't tell you without looking through them all, I would need a copy. COURT: A copy can be made at the time of the adjournment. WILLMS: Or if we take a break, my lord, I can make copies and mark the photocopy, perhaps that would be appropriate. COURT: Well, I don't want to break now if we can avoid it. I'll be gone until 11:30 if we break now. WILLMS: All right. 11:15? COURT: Yes. WILLMS: All right, we'll carry on then. COURT: We make plans too, you know. WILLMS: Q Can you now read from your original what is on the balance of Exhibit 784-8? A It says: "Samples removed from freezer Tuesday a.m. at 8:00. Placed in oven at 11:35 a.m. to 12 noon. Samples still frozen. Oven at 84 degrees Celsius. Samples dried on cardboard trays covered with clean aluminium foil." It says -- the trays were covered with foil so that the samples did not come in contact with the cardboard. 85 -- then there is the asterisk note from sample 85-57. Says "gyttja" with a reference to August 7th notes. It says "see August 7th notes," in my handwriting. The rest of this is in the handwriting of Leslie Johnson Gottesfeld. Then it says "block" -- so she made notes while I did the lab work. I didn't remember, but apparently she was with me and I dictated these notes as I worked. 9230 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 2 "Block - 7 centimetres thick by about 13 3 centimetres long by 3 centimetres wide. 4 Remove --" 5 6 This is the preparation of that sample. This is the 7 base of -- the lowest datable material from that 8 trench on Chicago Creek. 9 10 "Remove clay from bottom with knife. 11 Bottom two centimetres -- 12 13 I can't quite read it. 14 15 "(Something) regular surface was sand with fine 16 roots. 17 Remove upper --" 18 19 This is just referring to my attempt to remove 20 potential contamination. 21 22 "Sample about 2 centimetres thick after" -- 23 24 some such. After this preparation was done. So the 25 block was 2 and a half by 13 by 12 centimetres was the 26 measurement of the block size. This was notes on my 27 lab preparation to ensure that the sample was as good 2 8 as it could be. So I mean my technique was to remove 29 a big chunk in the field, take it back to a clean lab 30 where you could spread it out and isolate the smaller 31 piece of peat that would actually be submitted for 32 dating. 33 Q Okay. 34 A On the back side of the page there is -- 35 Q Well, let's just leave the back side of the page until 36 we have copies for everyone. 37 A Fine. 38 Q Just staying with the front side and turning to figure 39 11 -- well, let's start with figure -- I'm sorry, 40 let's start with figure two, which is the large map of 41 the area. Can you say where on figure two you took 42 sample 85-50? 43 A 85-50 was taken in that large debris flow deposit 44 labelled C supra big F capital F on the lower left 45 hand-corner, which I called informally the Carnaby 46 debris flow. That sample was from that deposit and it 47 comes from that line up near the top of it which is a 9231 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 little -- which is to depict a -- this line in here, 2 which depicts a drainage of gully that cuts into the 3 deposit. 4 Q That's where you took 85-50. Where did you take 5 85-51? 6 A From the same general area. I have to refer to my 7 notes for exactly where in that area to the metre they 8 were, but it was within the same place within a 9 hundred metres. 10 Q Now you said you took 85-52 from Comeau Creek? 11 A Comeau Creek swamp, yes. 12 Q Swamp. Where on figure two did you take sample 85-52? 13 A On this figure where it says Comeau Creek on the 14 left-hand side of the map, the western side, it's just 15 south of the e's in "creek", there is a little swamp 16 symbol and this comes from that swamp. 17 Q So there are two dotted areas with A -- capital A 18 small f that move sort of from the lower left-hand 19 corner above the CFF and just above the furthest north 20 one to the left, you've got two little swamp 21 representations? 22 A Right. Conceptually, the sample was taken just past 23 the margin of that northernly Af patch. 24 Q Okay. 25 A I think on the scale of the map, perhaps the swamp 26 should be slightly closer to Af for perfect scale, 27 perhaps, by a millimetre or so, but that's the place. 28 Q Now, turning to figure 11, you've already indicated 29 sample 85-54 was taken from location 14. 30 A That's correct. 31 Q Now from this -- 32 A Wait, wait, wait just a minute. 54 from -- yes, I 33 believe so, uh-huh. 34 Q It looks from this map that figure 14 is not on the 35 Mid-Holocene debris lobe; is that right? 36 A So it appears on the map. 37 Q Well, is that -- is that the case? Is it on it or is 38 it not on it? 39 A Well, it is on it, but the map shows the surface 40 deposit and at that point it's subsurface. But you 41 dig through the swamp deposit and you hit the lobe, 42 the debris lobe. 43 Q All right. So the debris deposit goes much farther, 44 is that right, than what you've shown here? 45 A No, not much farther but somewhat farther, perhaps a 46 hundred to 200 metres. I mean where it's overlaying 47 the swamp material from Seeley Lake. 9232 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 Q If you look at figure 17 which shows test pit 14 -- do 2 you have that? 3 A I have it now, yes. 4 Q How can you tell that that's on the same debris 5 deposit that forms the debris lobe? 6 A I took a steel rod, waded in the creek and thumped the 7 tops of the boulders. You can hear the granite 8 boulders when you bang them with a steel rod. It was 9 a pipe, actually, and you can turn the pipe over and 10 look at the sandy, granitic debris that you pick up 11 between the boulders when you jam it between them. 12 And I physically traced this material from the edge of 13 the visible debris lobe to the position that the 14 sample was taken. 15 Q All right. Are you saying that based on looking at 16 some grit that you pulled out of a pipe that you 17 banged down under the swamp, you could say that it was 18 the same deposit? 19 A Yes, I am. I mean, if you recall, that's quite 20 comparable to taking a core of the swamp. That is 21 taking a core sample but the thickness of it is short. 22 Q Doesn't it just tell you that you've hit a rock? 23 A Well, it tells you that you've hit a big granite 24 boulder, and the place the granite boulder came from 25 is Chicago Creek, the very -- the debris lobe that you 26 are looking at. 27 Q It doesn't tell you when that boulder got there, 28 though, does it? 29 A No, it does not. 30 Q In fact, it could be a deposit from a completely 31 different debris event? 32 A That is — 33 Q Couldn't it? 34 A That is conceivable. And the place to decide that is 35 on the basis of these associated radiocarbon date, it 36 tells you the presumed age of that event. 37 Q Well, doesn't the carbon date here just tell you that 38 whatever is under the carbon dated event is older than 39 that? 4 0 A Yes. It's a minimum age. 41 Q But it doesn't tell you what it is? 42 A Pardon? 43 Q The carbon date doesn't tell you what it is that's 44 under the date, does it? 45 A No. But I physically traced that boulder deposit with 46 fresh granitic grit between the caulk of the boulders 47 continuously from the site that I sampled to the 9233 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 exposures on the fan -- on the debris fan which I 2 interpreted as being Mid-Holocene age which is exposed 3 above the surface. But even on the debris fan there 4 is a metre or so of peat that covers perhaps 85 5 percent of the surface. So even on the fan itself, 6 one must probe around to be assured that there is 7 really granite boulders in there. So it's quite 8 comparable but it's deeper in lacustrine of this 9 origin of the fan. 10 Q Those granite boulders could have come down 8000 years 11 ago? 12 A That's conceivable but I would think unlikely. 13 THE COURT: Take the adjournment now, please? 14 THE REGISTRAR: Order in court. Court will recess. 15 16 (PROCEEDINGS ADJOURNED AT 11:15 a.m.) 17 18 I hereby certify the foregoing to be 19 a true and accurate transcript of the 20 proceedings herein transcribed to the 21 best of my skill and ability. 22 23 24 2 5 26 Toni Kerekes, 27 O.R., R.P.R. 28 United Reporting Service Ltd. 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 4 7 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT) 9234 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 2 THE COURT: Mr. Willms. 3 MR. WILLMS: My lord, we have photocopied both the front and the 4 back of that note now, and I'd ask that the single 5 photocopied page be replaced with both sides as 6 Exhibit 784-8. 7 THE COURT: Yes. All right. 8 MR. WILLMS: 9 Q And before I go back to your report, Dr. Gottesfeld, 10 maybe we can identify what you've written on the back 11 side of Exhibit 784-8. On the back side of your note, 12 starting at the top. 13 A Shall I read? I'm looking at the original, not a 14 photocopy. 15 Q You're looking at the original, and from the page 16 before, which is -- you had the star on 85-57 on the 17 page before? 18 A M'hm. 19 Q And then you said "See star August 7th note". And is 20 the note on the flip side the August 7th note you're 21 talking about? 22 A I am not sure. There is a star on the 85-56. This is 23 an August 7th note. There may well be another one. 24 Q Well, perhaps — 25 A I would have to search through the various notes. My 26 usual procedure is to keep a bound laboratory book so 27 the stuff is in one place. In this case it seemed 28 adviseable to keep all of my notes of this project 29 available. It's on a looseleaf page. So I don't at 30 this point know what exactly that August 7th note is. 31 I would have to look through. Pardon me, is that 32 87-56? Oh, yes. There is a note starred on the back 33 side that says 87-56. 34 Q Okay. 35 A That's presumably it, yes. 36 Q So let's -- starting at the top, and I think I can 37 read most of this, but maybe you can fill in where I 38 can't read it. You have the location of Carnaby, the 39 sample number 85-50, and the next is the dry weight. 4 0 A In grams. 41 Q And the first is -- is that an 83 or a 33? 42 A 83. Shall I read it? It might be quicker. 43 Q Go ahead and read it, yes. 44 A Dry weight, 83.89 grams. Type, wood. Remarks, clean 45 sample, split and retain duplicate. And the last 46 column, dry sample, 34.65 grams. Next sample location 47 Carnaby. Sample number, 85-51. Dry weight, 55.61 9235 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 grams. Type, wood. Remarks, split sample, retain 2 duplicate. Last column, dry sample weight, 17.95 3 grams. Next sample locality Comeau. Sample number, 4 85-52. Dry weight grams, 37.26. Next type, wood. 5 Next column remarks, select, retain fragments. Dry 6 weight -- dry sample weight, 17.48. Next entry 7 locality Seeley. Sample number, 85-53. Dry weight in 8 grams, 40.80. Type, wood. Remarks, retain duplicate, 9 something, retain and split sample. Comment, not used 10 freeze. Dry sample weight, 27.74. Next sample Seeley 11 is the locality. Sample number, 85-54. Dry weight in 12 grams, 3.17 grams. Type, wood. Remark, small sample. 13 Dry sample weight, 3.17 grams. The last entry is 14 Chicago Creek. Sample number, 85-56 corrected from 15 58. 56 is the top number. Dry weight grams, 111 16 grams. Type gyttya, G-Y-T-T-Y-A. Remarks, take lower 17 one centimetre, retain peat, peaty fraction and 18 discard mineral sediments, retain 1.5 centimetres. 19 Dry sample weight, 30.59 grams. Then there's a 20 comment below, "Remove wood from oven at 8:45 to 9:00 21 a.m. weigh and select samples." At which time I 22 presume several columns that had been left blank in 23 the above entry had been filled in. 24 Q The smallest sample was 85-54? 25 A That's correct. 26 Q That was the oldest sample too? 27 A That's correct. 28 Q And now going back to where your samples are shown on 29 figure 17 on test pit 14, that's where that very small 30 sample came from? 31 A That's correct. From approximately 115 centimetres 32 below the surface in a test pit and a core. 33 Q And that tells you that whatever is below that sample 34 is likely older than that? 35 A Yes, it does. 36 Q And over to your other sample, the carbon sample, that 37 is in test pit 11 where you dated it at 1930. That 38 tells you that whatever lies under that is likely 39 older than that? 40 A That's correct. 41 Q Do you remember how many different landslides or 42 debris deposits you were able to identify in the 43 Chicago Creek area? 44 A Would you repeat or clarify the question? 45 Q How many separate debris events were you able to 46 identify from your observations in the Chicago Creek 47 area? 9236 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 A 2 3 4 Q 5 6 A 7 Q 8 9 10 A 11 Q 12 13 A 14 Q 15 16 A 17 Q 18 A 19 THE COURT 20 MR. WILLM 21 A 22 Q 23 24 A 25 Q 26 A 27 Q 28 29 A 30 31 32 33 34 THE COURT 35 A 36 THE COURT 37 A 38 39 40 Q 41 42 43 A 44 45 46 47 THE COURT I would have to look at my notes, but from memory without looking at either the map or my notes I'd say six to eight. And of course that would be a minimum, because you probably wouldn't have identified all of them? Oh, there were likely many more. In your report, you don't need to turn to it, but at page eight you described the massive debris flow that you investigated near Carnaby? Yes. And you described it as having 67 million cubic metres in volume? I do not believe I did. Can I turn to page eight? Oh, certainly. It's at the top under page eight of Exhibit 785. M'hm. Under paragraph 3.2. Right. : Page eight? 3: Page eight. Yeah. 6.5 times 10 with a little 7 above the ten. Is that 65 million? Correct. And the area is 218 hectares? That's right. How does that area compare with all of the accumulated Chicago Creek debris flows? I have to look at the numbers. My impression is that it is about 20 percent smaller than the total Chicago Creek areas. Let's see, the total Chicago Creek areas are 277 hectares, so that's about 30 percent smaller than the total at Chicago Creek. : That's in area, but -- In area. : But not in volume? I did not calculate volumes for the Chicago Creek deposit. I could not get a sense of the thickness of the deposit, which I was able to at Comeau Creek. But you do say at page eight of your report that from the lithology you think that it was a single massive event in the Mid or Late Holocene? Yes, that's what I said. At this point I think there was a -- there was a large massive event. I'm not sure that the total deposit comes from that single event, but the bulk of it does. : When do you start the Late Holocene? 9237 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms About 3,000 years ago. : 3,000? Yeah. : Mid would be 5,000? Would be three to 6,000. 1 A 2 THE COURT 3 A 4 THE COURT 5 A 6 MR. WILLM 7 Q 8 9 10 A 11 12 13 Q 14 15 A 16 Q 17 18 19 A 20 Q 21 22 A 23 Q 24 A 25 26 Q 27 A 28 29 30 31 Q 32 33 A 34 35 THE COURT 36 A 37 38 39 MR. WILLM 40 Q 41 A 42 Q 43 A 44 45 Q 46 A 47 In the samples that you took from Seeley Creek and Chicago Creek for carbon dating only two of those six samples were actually sent for carbon dating? That's correct. Although, I'm not certain right now that there were six samples go out. I have to look at the notes, but that's the approximate number. And if you dated any of those other samples they may assist in dating the overall events at Chicago Creek? That's correct, and that's why I retained the samples. You also investigated -- in addition to the landslides at Carnaby and Chicago Creek and Mudflat Creek you also investigated landslides at Two Mile? No. You didn't investigate a landslide at a place called Two Mile? No, I'm quite sure I did not. Or Two Creek. Sorry. Oh, yes, there's a place I informally called the Two Creek fan. Two Creeks fan. Where's that? It's on figure 2. That was the informal name that we applied to the feature labelled the big Af immediately north of the debris flow deposit that we have been calling Carnaby. Okay. That's down in the lower left-hand corner, and you called that Two Creek? That's correct. Two conspicuous creeks that cut across it. : There is two Af's? It's the middle Af, correct, and it has two creek traces across it. It's an informal name I'm sure no one else uses. And you also described a fan called the Hagwilget fan? Correct. Where is that one? That's the fan that's immediately east of the Chicago Creek deposit labelled big C supra A ordinary F. And to the east, and that's to the right? That's right. That's the area the debris torrent/debris avalanche fan, and that's to the east 923? A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms 1 of the Chicago Creek fan. 2 Q And the Stekyooden fan, where is that? 3 A That is probably the same feature. I made an error 4 and gave two names for it. There is a bit of 5 confusion there. On the topographic maps that 6 mountain is called Hagwilget Peak. By residents it's 7 called Stekyooden, so I may have used both names 8 inadvertently. 9 Q The five carbons -- 10 THE COURT: Sorry. Sorry, Mr. Willms. On figure 2 is 11 Stekyooden as shown in that figure -- 12 A Yes. 13 THE COURT: — The same thing, or do you call that Hagwilget 14 Peak? 15 A That is the mountain labelled Hagwilget Peak on the 16 topographic maps. 17 THE COURT: Is this different from Rocher Deboule? 18 A That peak, Hagwilget Peak or Stekyooden, is part of 19 Rocher Deboule. I'm not sure how much of that 20 mountain massive is accomplished by the term 21 Stekyooden. I don't have that cultural perspective. 22 THE COURT: All right. Thank you. 23 MR. WILLMS: 24 Q When you submitted the five samples to Beta Analytic 25 for carbon dating you expected the age of those 26 samples to be between 3,000 and 5,000 years BP; is 27 that correct? 28 A That's correct. I was looking -- in the field project 29 I was attempting to identify features which were Mid 30 Holocene in age, and I collected samples which would 31 assist in deciding that question. There was a request 32 from the lab if they know that the sample was say 33 30,000 years old they will apply slightly different 34 techniques than if they think the sample is 300 years 35 old, so they asked me for some kind of crude estimate 36 of where in that range it would be so they could 37 decide on the lab treatment. 38 Q If you turn to Exhibit 788, which is tab 3, the dates 39 range from 250 years BP to 3580 BP? 40 A That's correct. 41 Q And the only carbon 14 dates reported by you are the 42 two oldest ones? 43 A That's correct, but the report is written about the 44 Chicago Creek deposit and those are the only dates of 45 the Chicago Creek deposit. I did not write up, or at 46 least in that kind of detail, the other deposits. One 47 of these dates comes from the Comeau Creek swab. I 9239 A. Gottesfeld (for Plaintiffs) Cross-exam by Mr. Willms Re-exam by Ms. Mandell 1 did not describe that, I think. I didn't have that 2 kind of detail in those other aspects. 3 Q But why send samples from Comeau Creek and Carnaby if 4 this report is just about Chicago Creek? 5 A Well, the field project scope was to examine landslide 6 deposits throughout that 25 or 30 kilometres, and look 7 for deposits which may have been of impressive size, 8 and would be Mid/Early Holocene to recent deposits. 9 And dating opportunities are really scarce, and there 10 was also a time constraint to get the dating done 11 promptly, so that I scrambled to find dating 12 opportunities early in the field, or sent in some 13 dates while field work was in progress and develop 14 more field information about the context of the 15 samples as the process went on. 16 Q And when you found that the dates on Chicago Creek 17 were the only dates in the 3,000 BP range you focused 18 your report on Chicago Creek; is that correct? 19 A No, I wouldn't put it in that context. 20 MR. WILLMS: I don't have any further questions, my lord. 21 THE COURT: Ms. Koenigsberg? 22 MS. KOENIGSBERG: I have no questions. 23 THE COURT: Ms. Mandell. 24 2 5 RE-EXAMINATION BY MS. MANDELL: 26 Q I was going to ask you when is an analysis using ph 27 factor, when is that an appropriate analysis to take? 28 I hope I framed the question in a way that accords 29 with your scientific understanding of it. When would 30 you do a ph factor analysis? 31 A Well, it would be part of formal soil description 32 technique. It would be particularly useful in 33 distinguishing Dystric from Eutric Brunisols. 34 Q And when would you normally do a chemical analysis? 35 A That would be part of a formal soil description or 36 establishment of type soil sections. It's quite an 37 elaborate procedure. 38 Q And what is the difference between a full soil 39 analysis, that you're speaking about, and the dating 40 procedure which you were doing for the purposes of 41 this study? 42 A Well, I was doing a field study and trying to develop 43 criteria for identifying pieces of terrain in terms of 44 origin and relative age, and the aspect which seemed 45 most pertinent to that was rubification, the amount of 46 colour alteration in the B horizons. 47 Q And is it standard when you're doing -- when you're 9240 A. Gottesfeld (for Plaintiffs) Re-exam by Ms. Mandell 1 searching for rubification to do either ph factor or 2 chemical analysis? 3 A No. 4 Q When is an investigation into the C level, when is 5 that an appropriate investigation to take? 6 A Well, it's nice to have the C horizon in your soil 7 profiles. I mean, it's critical if you do not know 8 the parent material. If the parent material is 9 available and nearby and it's physical work to do 10 those holes and difficult terrain with a shovel, it 11 was a question of getting the information and covering 12 all the territory. 13 Q And if you do -- if you are able to describe the 14 parent material with the process other than 15 penetrating the C level is it standard then not to 16 penetrate the C level? 17 A In all cases I was confident that I knew the nature of 18 the parent material when I was travelling around. 19 Q Is climatic changes particularly your special area of 20 expertise? 21 A Much -- I mean, much of the emphasis on Quaternary 22 geology pertains to developing the record of the past 23 million or so years. A lot of that is climatic 24 information, so that I'm aware of the climatic 25 implications of the things that I see. In some case 26 it's conspicuous for interpretation, say it features 27 some glacial advances in the last few thousand years. 28 In other places it's quite obscure as to what caused 29 this change that you observe in say the regimen of a 30 river. 31 Q And would you in the course of your work normally or 32 at any time consult a climatologist? 33 MR. WILLMS: I object. This is leading, my lord. My friend can 34 ask whatever background this witness has, and he has 35 just explained it in detail on climate, but she 36 doesn't need to lead him. 37 THE COURT: I missed the question. I'm sorry. 38 MS. MANDELL: I was exploring whether or not — 39 THE COURT: You said would you ever? 40 MS. MANDELL: Would you ever. Is that too leading? 41 THE COURT: Examine — 42 MS. MANDELL: Consult an expert in the field of climatology for 43 more detailed information about the areas that you're 44 exploring. 45 THE COURT: Why is that leading, Mr. Willms? 46 MR. WILLMS: Well, I didn't think that was what she said. If 47 that's what she said that's not leading. 9241 A. Gottesfeld (for Plaintiffs) Re-exam by Ms. Mandell Exam by the Court 1 THE COURT: I think that's what she said. 2 MR. WILLMS: Well, I thought she said do you regularly, is what 3 I thought she said. 4 MS. MANDELL: Have you ever is really — 5 Q Did you get the question? 6 A Yes, I have on occasion consulted climatologists. 7 Q Right. And when you were discussing the methodology 8 of probing with a pike to discern the granite of rocks 9 underneath the creek area, is that standard 10 methodology for determining the shape and size of a 11 landslide? 12 A Well, I'm not sure for -- landslides are not 13 frequently found under swamps, but in terms of 14 deciding on the lithology, the nature of the materials 15 and self deposits that's quite standard. 16 Q And you were asked whether or not the granite boulders 17 there may have come down 8,000 years ago, and you said 18 unlikely, and I'm wondering why you said that? 19 A Well, I physically traced those materials to -- to the 20 debris lobe that was exposed adjacent to the swamp and 21 convinced myself that that was the same feature. That 22 it had physical continuity. It's conceivable that one 23 could have slipped something else in under there and 24 never seen it before, but it seemed unlikely. 25 Q And you were drawn to the various kinds of samples 26 which you prepared, and my question to you is why all 27 the various samples that you had to work with on the 28 eve of August 7th why they weren't all sent to the lab 29 for testing? 30 A Well, there was a limited budget for carbon 14 dating. 31 I believe that the budget was for four samples and I 32 submitted five. 33 Q All right. 34 A And so I had to make a decision on which are the best 35 materials for deriving the information that one could 36 get which are the most important. 37 MS. MANDELL: Excuse me, my lord. Thank you. Those are my 38 questions. 39 THE COURT: Doctor, is it your evidence that part of the Chicago 40 Creek slide took place 3,500 years ago? 41 A I believe that it did very shortly before that date of 42 3580. 43 THE COURT: And this is based largely, or entirely, upon the 44 radiocarbon analysis of organic material taken from -- 45 well, I'm sorry, from radiocarbon analysis of two 46 samples? 47 A Correct. Well, the physical presence is based on 9242 A. Gottesfeld (for Plaintiffs) Exam by the Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE THE THE THE COURT A looking at it on the ground. COURT: Yes. A The dating is based on two samples which both provide minimum dates. COURT: Yeah. A But I believe the older date by the nature of the context, that is the nature of the sediment that's enclosed in it, looks like the material washed out at the end of the debris slide. I think it's very close within a year or two or three of the age of the slide. COURT: You think the older date is the more reliable one than the newer date? A Yes. I have a strong feeling that that date, that from the context of the older date that it should be very close to the true age, and that the other material could well be thousands of years younger. : And is it your evidence that the -- that the slide caused a damming or backing up of Chicago Creek and that that in some way brought the clay deposit to the underbed of Seeley lake? I think that it's very likely. As I read Dr. Mathewes' report the lithology of his clay pan one matches the lithology of the clay deposit that I dated from among the boulders at the edge of the Seeley swamp. I think it is the same layer. : What is the mechanism that causes -- that explains the presence of clay pan from damming of the creek and the possible raising of the water level? Well, what I would imagine happened was there was this great bulge, this big massive deposit came in and filled the valley, that Chicago Creek was then running all over the deposit, or quite disorganized fashion across the top of the deposit, numerous channels washing out the fine crushed rock material from among the boulders and making the lake white with white ground up granite material that came from the debris -- from the debris flow and placement, and then that clay and silt would be distributed throughout the lake and gradually settle down and be incorporated in sediments throughout the lake. THE COURT: That theory then depends upon Seeley Lake and the blockage being relatively at the same elevation? A Yes, but that was certainly so. COURT: And you say that is so, is it? A That is so. That debris material now forms the edge of the lake. And you can see the present Seeley Creek cuts through several metres; two, three, four metres THE COURT A THE 9243 A. Gottesfeld (for Plaintiffs) Exam by the Court Proceedings 1 of the little ravine cutting across that debris lobe. 2 THE COURT: So you say the back-up from Seeley Lake, that the 3 back-up at the dam site spread back upstream, as it 4 were, to Seeley Lake? 5 A Right. So Seeley Lake may well have extended to that 6 place in the past. I don't have a record of the 7 swamp -- the antiquity of the swamp right there. If 8 it did not already exist at the moment the slide was 9 in place or within a few weeks the lake level would 10 have filled up and flooded and started overtopping the 11 debris deposits and then Seeley Lake would have been 12 considerably enlarged both on the east side and on the 13 west side. 14 THE COURT: And on that theory I suppose one should expect to 15 find a clay band not just under Seeley Lake, but 16 throughout that whole flood plane area? 17 A Yes. Yeah, if it was not removed by some subsequent 18 erosion or event it should be a marker horizon to the 19 interface. 20 THE COURT: Did you find clean pan in any of your test holes? 21 A There was more than one -- well, I mean, this deposit 22 which this piece of wood came from which is dated is a 23 silty gray clay, and I think that is the band. I also 24 made another hole within a few metres of it looking 25 around for a sample, perhaps two other holes, and that 26 layer was present there too. 27 THE COURT: A concave band? 28 A Oh, yes, right at the interface of the debris slide 29 any overlying lake sediment. 30 THE COURT: All right. Do counsel have any questions arising 31 out of my questions? 32 MR. WILLMS: No, my lord. 33 MS. MANDELL: No, my lord. 34 THE COURT: All right. 35 MR. WILLMS: My lord before we break — 36 THE COURT: I was just going to excuse Dr. Gottesfeld. 37 Thank you, Doctor, you're excused. 38 39 (WITNESS ASIDE) 40 41 THE COURT: Yes, Mr. Willms. 42 MR. WILLMS: There are two things. Dr. Gottesfeld referred to 43 Susan Marsden, and I would ask -- she was an employee 44 of the Tribal Council, she also is a prospective 45 expert witness, and I would ask that her report -- 46 sorry, that Dr. Gottesfeld's draft report, if it's 47 still in her possession, be produced. That's not one 9244 Proceedings 1 of the things that I canvassed with my friend, because 2 I didn't expect that that's where it might be, as with 3 Dr. Mathewes' report. The second thing -- 4 THE COURT: No problem with that, is there, Ms. Mandell? 5 MS. MANDELL: No. 6 MR. WILLMS: The second thing is order of witnesses following 7 the break. We would appreciate knowing who's next and 8 who follows. We thought it would be Mr. Chilton, I 9 think Mr. Hatler, Ms. Haeussler and perhaps Dr. Kari, 10 but if I'm wrong I would invite my friend to correct 11 me. 12 MS. MANDELL: My lord, my friend is right, the three witnesses 13 that we expect to finish will be Dr.'s Chilton, Hatler 14 and Haeussler. We are not at this moment entirely 15 certain of their order, only because there is problems 16 each of those witnesses have, and we're attempting to 17 accommodate them. I'll advise my friend today as soon 18 as we have heard back from all three of them. I don't 19 believe we'll get into the evidence of Dr. Kari by the 20 next session. We had hoped to set aside the 7th, the 21 first day of our return, to argue before your lordship 22 the question of the documents and privilege and to 23 start with one of those other three witnesses on the 24 8th. 25 THE COURT: Is that convenient, Mr.Willms? 26 MR. WILLMS: That's convenient. I don't know that it will take 27 a whole day to argue the privilege point, but I'm in 2 8 my friend's hands. 29 MS. MANDELL: I don't think that — I don't think I can be more 30 precise than that. If we can start with one of the 31 witnesses thereafter we will. 32 THE COURT: I have some notes that suggest that Chilton, Hatler 33 and Haeussler would take from four to five days all 34 told; is that correct? 35 MS. MANDELL: Well, judging from this last experience we think 36 that we'll have probably underestimated only because 37 we haven't -- we haven't a really clear idea as to how 38 long cross-examination is going to take. 39 THE COURT: But those three witnesses is all we will hear in the 4 0 next two week segment? 41 MS. MANDELL: That's correct. I believe Friday is a day off. 42 THE COURT: Yes, it's a four day week. 43 MS. MANDELL: So we expect that Monday will be taken up with 44 argument and Friday will be off. We have really got 45 three working days for the week of the 7th and a full 46 week thereafter. 47 THE COURT: All right. And then let me see. And we're only 9245 Proceedings 1 sitting for two weeks, are we not? 2 MS. MANDELL: Yes, I believe so. 3 THE COURT: All right. Well, I suppose it's not the end of the 4 world if we run out of witnesses considering the 5 circumstances. 6 MR. WILLMS: And, my lord, if I can just -- I hesitate, but so 7 that we don't prepare unnecessarily right now for Dr. 8 Kari if we know that he's not being called, if that is 9 what my friend is suggesting I'd like to know that. 10 MS. MANDELL: I've said that. 11 MR. WILLMS: All right. That's fine. 12 THE COURT: All right. Well, then I'll look forward to seeing 13 you all in a week's time. Thank you. 14 THE REGISTRAR: We'll adjourn until November the 7th at 10:00 15 a.m.. 16 17 (PROCEEDINGS ADJOURNED TO NOVEMBER 7, 1988 AT 10:00 a.m.) 18 19 I hereby certify the foregoing to be 20 a true and accurate transcript of the 21 proceedings herein to the best of my 22 skill and ability. 23 24 25 Peri McHale, Official Reporter 2 6 UNITED REPORTING SERVICE LTD. 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47
Trial proceedings
British Columbia
KEB529.5.L3 B757
English
Uukw, Delgam, 1937-
Indigenous peoples--Canada
Oral history
Wet'suwet'en First Nation
Vancouver : University of British Columbia Library
Vancouver : United Reporting Service Ltd.
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Original Format: University of British Columbia. Library. Law Library.
[Proceedings of the Supreme Court of British Columbia 1988-10-28]
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