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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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9477 Proceedings 1 VANCOUVER, B.C. 2 November 10, 1988 3 4 THE REGISTRAR: Order in court. 5 THE COURT: Owing to the absence of the Lieutenant-Governor in 6 the Province I'm required as administrator to sign a 7 large volume of documents this morning, and I'm told 8 that it will take about 15 minutes at about 10:30. I 9 have to adjourn for that purpose. I understand the 10 time pressures that counsel have mentioned and if 11 necessary we'll sit extra this evening to make up the 12 lost time. 13 MR. GRANT: Thank you, my lord. I anticipate from what Mr. 14 Willms said to me yesterday that we'll maybe finish by 15 noon hour or a little later. 16 THE COURT: Oh, well, I can't sit into the noon hour today, but 17 I hope this won't mean that we will have to come back 18 this afternoon unnecessarily, but that may be the 19 result. 20 MR. GRANT: Yes, of course we're available. Dr. Hatler's flight 21 is scheduled for 4:30 today if things work out. 22 THE COURT: We'll do the best we can. 23 THE REGISTRAR: In the Supreme Court of British Columbia, 24 Vancouver, this Thursday, November 10, 1988. In the 25 matter of Delgamuukw versus Her Majesty the Queen at 26 bar, my lord. And I caution the witness, you're still 27 under oath. 28 MR. GRANT: My lord, before I start, I would like to raise a 29 matter which causes me some concern, and I think we 30 can canvass it on Monday, because counsel for the 31 defendants may wish to take a position on it. We have 32 proposed in the two-week period of November 28th to 33 December 5th a cross-examination of 28 witnesses. The 34 history of this has been with the other experiences 35 we've had, has been that the Provincial defendant 36 immediately before the cross-examination delivered a 37 list of documents to me, that is the day -- the Friday 38 before. Of course, we didn't have an opportunity to 39 review those documents. Between the Provincial and 40 Federal defendants we're now, I think I can safely 41 say, although I haven't calculated the numbers, are 42 dealing with over 25,000 documents. We will be 43 seeking a direction from your lordship that those 44 defendants provide us with an indication or listing of 45 the documents upon which they're going to refer in the 46 cross-examination of these witnesses. Ultimately, my 47 lord, we take the position that that will expedite 947? Proceedings 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. THE COURT MR. THE MR. THE MR. matters, that it will save time, and when we're dealing with lists I think the Provincial -- one of the lists is up to the list number 35, either the Provincial or Federal defendant, and we want to have some assistance in this matter, because to say it's on our our list of documents when we're dealing with between 20 and 30,000 documents is of no aid to us at all, and in order for us to properly prepare we're going to have four counsel working with these witnesses, and it's just unrealistic for us to canvass that. We're prepared to speak to this matter Monday morning, but I did want to raise it. Now, there was some comity, at least with the Federal defendants, I know for certain on the Jeff Boys commission, and I'm certain in this regard, I'm not saying the Provincial defendants didn't, I'm not sure exactly what happened there, but I would ask that that matter be raised and my friend may want to consider it, and if we do come back this afternoon they may want to respond to that this afternoon, or else in the alternative Monday morning, but we will be seeking that assistance so we can shorten the cross-examination. Have counsel given any thought to the hours we will sit in Smithers? I operated on the assumption of the regular hours, but of course I wasn't -- I certainly didn't canvass that. I -- there is one concern we have, and that is that we've tried to schedule it so that counsel -- some counsel will be in court and then on subsequent dates out of court, and we've tried to match that up, so if my friend's cross-examinations take longer in court or outside of court we may have to do some juggling of the witnesses, but I think that if it assists I don't think we'll be opposed to longer hours, subject to the health -- The problem with longer hours has always been the reporters. Yes. And some of the witnesses are elderly too. I don't think you can sit longer hours without making arrangements to have extra reporters available if they're difficult witnesses. Yes, yes. I'll leave that with counsel. Well, my friends may wish to respond to that on Monday as well, as well as the exhibits they wish to use. The other matter is housekeeping. I've been asked by Mr. Rush to have, I believe it's the overlay COURT GRANT GRANT COURT GRANT COURT GRANT 9479 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 2 3 4 5 6 7 THE COURT 8 9 10 MR. GRANT 11 12 13 14 15 16 THE COURT 17 MR. GRANT 18 THE COURT 19 MR. GRANT 20 THE COURT 21 22 MR. GRANT 23 24 THE COURT 25 MR. GRANT 26 Q 27 28 A 29 Q 30 31 32 33 34 35 36 37 38 39 40 41 42 43 A 44 Q 45 46 47 maps right up to 9-A, the large maps, removed from the court, those exhibits taken from the court, and the three trapline maps that I believe Mr. Goldie put in as exhibits are those linen maps. If they could be taken because of for the commission evidence of Mr. Boys on cross-examination. Well, I think what counsel had better do is give Madam Registrar the specific exhibits that you wish to have sent to Smithers and we'll make arrangements. This isn't for Smithers, this is for removal from court into the custody of plaintiff's counsel for cross-examination of Jeff Boys, which is commission evidence of this case going on in Victoria. It's another little side line that you have not yet had to worry about No, I haven't. All right. But we need those exhibits. All right. I trust my friends will not oppose such an order. Yes, all right. Well, what I said still applies though. I'll get the exhibit numbers and advise Madam Registrar. For Smithers, yes, thank you. Oh, yes, yes. You have map 19 in front of you, Dr. Hatler? Yes. Now, as with map 18, this particular map, and also I would ask that you have Exhibit 795, your expert report, and you refer to the grizzly bear along with the other bear starting at page 67, and the process of course you've already indicated that you -- you already indicated that you relied on the maps derived from the report and you combined the two bears in your report. I just refer you to page 68, the second full paragraph of your report, you state that you're: "Aware of no bear fossils from British Columbia." This would be no palaeontological fossil, is that right? That's right. "but archaeological materials confirm that both species have been in the province, and the study area, since long before European contact." 9480 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 And on some of the maps -- well, yes, and on map 19 2 you do mark near Burke Channel, I guess that's at the 3 mouth of the channel that leads to Bella Coola, that 4 there are archaeological remains, that's on the far 5 right hand of map 19, and is that one of the 6 references that you were referring to there, is 7 that -- that archaeological remain reference is from 8 one of the three sources? 9 A That must be, yes. 10 Q It appears that you refer to Hester and Nelson? 11 A Yes, it's Hester and Nelson. 12 Q Now, you do indicate that Allaire identified black 13 bear in the strata, and that was black bear, and you 14 marked that on your previous map 18. Now, once again, 15 is there -- can you describe for the court to assist 16 his lordship, you've talked about the range of the 17 bears and their habitat. Is there a distinctive 18 difference between the conduct of the black bears and 19 the grizzly bear in terms of how they range? 20 A I'm not sure that I understand the question, but there 21 are differences in habitat use. They are very 22 similar, however, in the way as a species they carve 23 up the range in the sense that they're territorial 24 animals, and usually you have adults with distinct 25 home ranges and maintaining these territorial 26 boundaries to some extent, and numbers of transient 27 animals, usually young animals, that are wandering 28 throughout these established ranges looking for an 29 opening essentially. 30 Q And that's the same with both? 31 A Both species operate similarly. 32 Q All right. Have you seen or do you know of any 33 studies where there has been human -- can you comment 34 on the effect of human activity in terms of killing a 35 bear, for example, does it -- where it benefits or 36 causes detriment to the bear population? 37 A Both results are possible, depending on the level of 38 the harvest or the killing. It's well known that in 39 some areas that have become very accessible and where 40 there are openings in the forest cover, for instance, 41 that are quite large, grizzly bears are not adverse to 42 being in the open and are usually in a much sparser 43 density in the total area. In other words, there are 44 more black bears per unit area than grizzly bears, 45 that they can be over harvested and have been in many 46 areas, although I indicated the fact of these 47 transient bears that are wandering throughout these 9481 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 territories that don't have any distinct home ranges, 2 yet often again young bears, they are kept from 3 establishing by the territorial behaviour of the older 4 bears, and you can, by removing some of the large old 5 animals that have over the years built up large 6 ranges, then make a territory available that could be 7 established by say one or two transients or maybe even 8 three in some cases. They can -- they haven't yet had 9 a chance to establish -- to expand territorial 10 boundaries, so you can get a higher density locally 11 provided that all the resources are there. In other 12 words, what I'm saying is that -- that there is pretty 13 good evidence, and it's been done experimentally with 14 black bears, they wouldn't do it with grizzly bears 15 because of their rarity relatively, but in Alberta 16 they selectively removed large male bears and 17 increased local densities of black bears by that 18 procedure. 19 Q So from that it would be -- from what you say there, 20 and I think you already described this with respect to 21 the beaver, is that conservation and management of the 22 wildlife resource with an objective of increasing and 23 enhancing population does not necessarily mean that 24 you leave everything that -- that any killing, for 25 example, of any of the wildlife or taking beaver for 26 fur damages -- is counter-productive to conservation 27 and management? 28 A That's right. Basically preservation does not ensure 29 the highest numbers, and especially for territorial 30 species. 31 Q And of the nine species that you're talking about, 32 there's the grizzly bears and the black bears are 33 territorial. Are any of the others the same 34 principals would apply; beavers, I guess. 35 A Probably both beavers and marmots. There haven't been 36 any studies on the hoary marmots that bear directly on 37 that question, but close relatives, yellow-bellied 38 marmots behave that way, and there are other aspects 39 of their life history are similar. They just occur in 40 different areas, so it's likely that hoary marmots are 41 also territory. 42 Q Where did you take this picture of the grizzly bears 43 in Exhibit 358-19? 44 A That one was actually taken in Alaska. 45 Q Were any of the pictures of the species that you've 46 taken here, and all of them you have taken except for 47 the beaver, were any of them taken within the 9482 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 territory, the study area? 2 A The moose was, cariboo, the goat, the moose, the 3 marmot, and the bear. 4 Q Is that picture of the grizzlies that you have there, 5 it appears -- it shows that they're on an open slope, 6 this is what you were there describing as a typical, 7 where they would be more open than the black bear, is 8 that right? 9 A Commonly you will find grizzly bears in open areas, 10 often in alpine areas. Less often you will find black 11 bears in that kind of a situation. 12 Q In the summary at the top in the second last column 13 under the records you refer to 1908 a land surveyor 14 report of both black and grizzly bears as very 15 plentiful in the lower Kispiox area while a 1912 16 report stated that both were numerous in the Stuart to 17 Nation Lakes area. Is that consistent with your -- 18 with the other information that you gathered, or was 19 that — 20 A Yes. Basically both species of bears occur throughout 21 the study area with some differences along the coast, 22 and especially on the islands, but on the mainland 23 section in particular you're likely to see either 24 species in the study area. There are local smaller 25 areas where you're more likely to see a grizzly than a 26 black bear and vice versa, usually relating to the 27 amount of forest cover and the density of your forest 2 8 cover. 29 Q Can you give an example of that in the study area? 30 A Yes. When you get up into the -- in the Spatsizi 31 area, for instance, all of the mountains north of the 32 Stikine, Three Sisters range, and that section of the 33 Cassiar Mountains, you're more likely to see grizzly 34 bear than black bear. 35 Q Um-hum? 36 A Within the Spatsizi Park area itself, in the southern 37 portion of the park and in Tatlatui Park more likely 38 to see a grizzly bear than a black. On the west side 39 of the park in the Eaglenest range, you're quite 40 likely to see both, and as you go farther west and 41 more into the -- into the more forested areas, you 42 start to get more into the black bear country. 43 Q On Exhibit 358-19 there is the name Spatsizi Plateau. 44 You see that on the upper part? 45 A Yes. 46 Q And is that -- that's the area of the Spatsizi Park? 47 A That's a portion of the Spatsizi Park area. 9483 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 Q 2 3 4 A 5 MR. GRANT 6 THE COURT 7 A 8 THE COURT 9 A 10 11 12 13 14 Q 15 16 A 17 Q 18 19 A 20 Q 21 A 22 23 24 Q 25 A 26 27 Q 28 A 29 30 Q 31 32 33 A 34 MR. GRANT 35 THE COURT 36 MR. GRANT 37 Q 38 39 40 41 A 42 MR. GRANT 43 44 THE COURT 45 46 47 A And that would be an area where you just described that the grizzlys would be more common than the black bears? At least more commonly seen. More commonly seen? On the east side? Pardon? On the east side of the Spatsizi? Yes. And on the south side. And those areas there's more alpine and sub-alpine habitat. In some areas of Spatsizi Park, particularly on the west side where there have been some burns, black bear seem to be a little more abundant, and in the Eaglenest range. You talked about the other park, I think it's Tatlatui? Tatlatui, yes. Can you just indicate to his lordship where you're referring to there? Okay. I see Kinaskan Lake. Is it in that area? No. I always get balled up by the east-west orientation of this map, but basically you know where Thutade Lake is in the upper Finlay area. Yes? The Tatlatui Park includes most of those lakes which are essentially north of Thutade. The lakes at the headwaters of the Finlay River? So there's Kitchener Lake and Tatlatui Lake and several lakes right in there. There's a protrusion in the black line just to the west of that. Would that be part of the area you would be describing? Some of it would be in that area, yes. Have you been able to locate that, your lordship? Yes. The lakes that the witness was describing are those that are pointing to -- were those that were at the headwaters of the Finlay River just north of Thutade Lake, there's a series of lakes there? They're off the map. No, they're not. They're just north of the -- of the black -- or just east of the black line. Well, there's a number of lakes, but I thought someone mentioned the headwaters of the Finlay, and I assumed -- I assumed the Finlay? The headwaters of the Finlay. 9484 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 THE COURT 2 A 3 THE COURT 4 MR. GRANT 5 Q 6 7 A 8 THE COURT 9 10 A 11 THE COURT 12 A 13 14 THE COURT 15 MR. GRANT 16 Q 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 A 38 39 40 41 42 43 44 45 46 Q 47 : Which direction is the Finlay flowing? The Finlay is flowing east in this section here. : Oh, all right. Towards -- so those lakes are at the headwaters that you see on the map, Dr. Hatler? Yes. : That's the collection of lakes of which Thutade is in the southern -- Yes. : Does the Finlay flow east into what? It flows east for a ways and then it flows southward and goes into what we now call Williston Reservoir. : Oh, yes, all right. Now, I would like to refer you to your report itself, and at page 75 you talk about your summary and conclusions, and you've already described about the records, and the cautions you put there. I would like to refer you to page 76, the changes in distribution. And you state in your report: "Of the nine species considered, five are not believed to have changed significantly in either local occurrence or residential status between 1860 and the present. Those include the marmot, hare, beaver and both species of bears; note that all have most certainly undergone changes in population levels through normal processes during that period, but not such that they would be reflected on a range map." Can you expand on that in terms of the -- you say they have -- why do you say they've almost certainly gone through changes of population levels under normal processes and what do you mean "normal processes"? Yeah. That -- "normal processes" would be by any kind of natural mortality, but I think I would have to include in that category predation by humans as well. I would be willing to expand it to include that here, because I think that it applies that I -- but there haven't been any major environmental catastrophic type things which would I think be necessary to change the actual distribution. There haven't been any exterminations that can be identified. Um-hum. And you, doctor, you also suggest that the mountain goat may also best fit in that category, and 9485 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 2 3 4 5 6 A 7 8 9 10 Q 11 A 12 13 14 15 Q 16 A 17 18 19 20 21 22 23 24 25 26 27 28 29 THE COURT 30 31 A 32 THE COURT 33 A 34 35 THE COURT 36 MR. GRANT 37 Q 38 39 A 40 Q 41 42 43 44 45 46 47 A if it can be safely assumed that the distribution during the time period indicated would have been man-caused reductions, then goat range also remains largely unchanged. Is that the same principal applies? Yes. Basically what I'm saying there is that -- well, see how I can explain it here. It is somewhat different from what I just described for the other five species. Right. Here I am aware that there have been some mountains that -- where human predation has actually removed a local population, or at least a local tradition for use of some of these mountains. What time period are you talking about now? Presumably in the -- within the past -- well, they seem to have been mostly in the 40's and 50's from the sources that I've talked to, but I think I also indicated in the earlier discussion -- in the earlier discussion that some of those that formerly had been without goats now have been recolonized and are coming back. There probably are some individual mountains that still lack goats and which may at once had them, but again, it wouldn't likely be reflected on a range map at this scale. It's hard to distinguish at this point in time if a mountain formerly had goats and now doesn't, or if it has been one of those that has rarely been used by goats ever. : You talk about residential status; you mean residential status of the animals, don't you? That's right, yeah. : Yeah. Whether they're regularly occurring in that area or occasional, or something to that nature. : Yeah. You talk about the three cervids, and this would be the deer, moose and the caribou? That's right. "Have all certainly changed in both distribution and numbers since 1860. Caribou have suffered a shrinkage of occupied range." And just to pause, that's the shrinkage that you've shown on your map as in that middle bar area? That's correct. 9486 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 Q 2 "And have declined in some parts of the study area 3 although they have been increasing in the south in 4 recent years. Mule deer have made a discontinuous 5 expansion into marginal northern areas, probably 6 increasing total study area numbers at the same 7 time, and moose have greatly increased both in 8 continuous range and numbers." 9 10 And you -- this is your conclusion, and you explained 11 yesterday the -- your belief as to the reasoning why 12 that occurred with respect to mule deer and moose? 13 A That's right. 14 Q Which you referred to in the body of your report under 15 the mule deer and moose in more detail? 16 A That's right. 17 Q Now, then you refer to the habitat features, and of 18 course you yesterday have adopted that part of your -- 19 you've adopted this entire report. Now, I would like 20 to refer you to page -- and you talk about aspects of 21 climate, which you -- and that on page 77 is what you 22 explained yesterday in terms of the ability of the 23 animals, different species to survive in extreme cold 24 and how it helps or hinders, depending on the species 25 you're talking about. 2 6 A Right. 27 Q Now, on page 78 you talk about the human factors, and 28 you indicate that your first sentence that: 29 30 "Fires and clearing associated with early European 31 settlement almost certainly enhanced habitats for 32 the forest species, particularly moose, beaver and 33 black bear." 34 35 And you have explained that with respect to the moose 36 and the black bear. Can you explain that with respect 37 to the beaver or why that is? Why would fires and 38 clearing enhance the habitat for beaver? 39 A One of the tree species that thrives and comes back 40 after a fire in some coniferous forest types is poplar 41 or quaking aspen. That's the prime beaver food 42 throughout the North American range of the species. 43 Other poplars, such as cottonwood, are also much used 44 and they also thrive in a burn, but they're not 45 characteristic of burns to the extent that the quaking 46 aspens are. Willows also do well in a burn, so that 47 those are both species that beavers do respond to, and 9487 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. GRANT THE COURT MR. GRANT THE COURT MR. GRANT Q A Q A for instance, on Isle Royale and Lake Michigan, there beavers were virtually unknown prior to its being burned, and we're well outside the study area, but it's just a well-documented case where the beaver has greatly increased following suitable recolonization of the whole burned island by aspen or -- My Lord, I have one or two other questions, but I 'm — I'm going to be called when the documents arrive. Oh, I see. Thank you. Then you describe how logging in summer habitat areas has probably had a similar effect in some areas. Now, are you talking here again with respect to these same three species: Moose, beaver and black bear? Primarily, yes. Some possible effect for deer as well. And then you talk about: "The clearing of lowland deciduous forests for agriculture has probably been a major factor for some species, especially moose and beavers, and probably hares." Can you explain why you say that with respect to those three species? Again, these deciduous forests are what the beavers thrive on so that when they're removed the essential feature of the habitat for beavers has been removed. I say probably hares, because they also -- in other areas seem to do well in some of these lowland mixed forest situations which we have in decreasing supply, and for instance, the Bulkley Valley, and there the hare cycles have not been as -- the amplitude of the peaks has not been as high there as many other areas in the last 40, 50 years, and there are historic records of very high peaks in the past, so that's a bit of a speculation, but it's a possibility. There certainly has been some kind of a major shift in hare population processes so that they don't peak as high as they used to in some of these southern -- the southern portion of the study area. For moose, again, they -- the valley bottoms are the ultimate winter range. That's where they go when the crunch comes when they have to be -- when snow conditions are so bad when they reach their maximum, they go to the 9488 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT: A THE COURT: A extreme valley bottom, and that's where they use the mostly riparian deciduous vegetation for food, and again that valley bottom areas are also the areas selected by human beings for agriculture and transportation corridors and all sorts of developments. You said -- you said the moose population has increased substantially in a previous page? In a lot of areas it has. So the numbers go up -- the numbers go up the distribution changes? That's generally the case. The distribution hasn't changed much for moose in probably 50 years because it had pretty well filled the -- pretty well filled the habitat. There's been probably at the margins recessions and advances of the -- of the distribution, depending on the characteristics mainly of winters, but what I'm saying here is that while we have lots of summer range produced by logging, we're probably at a kind of a plateau in how much of an increase we can expect without easy winters. The last four or five years we've had very easy winters, so it's not uncommon to find moose at timber line in January. I've seen that in an area that I regularly go to throughout the winter, and that's not common for a hard winter. Most of them will be concentrated in the lowlands. The next time we do have a hard winter we're going to have probably major mortality in many areas of northwestern B.C. because they have increased in numbers, but they haven't really showed the way they will. Um-hum, all right. I will have to adjourn for a few minutes. Thank you. THE REGISTRAR: Order in court. Court will recess. (SHORT RECESS TAKEN) THE REGISTRAR: Order in court. THE COURT: Thank you. MR. GRANT: Dr. Hatler, you mentioned earlier about -- or just before we took this break, about the mountain goats and that there -- and it was with reference to your earlier statement on page 76 that the mountain goats -- there's been a decrease in some areas within the study area. Can you explain where that was that you were referring to? THE COURT: Sorry. What map number is that? THE COURT: 9489 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. GRANT THE COURT MR. GRANT Q Not the map number, I'm referring to his report. I see, yes, thank you. Page 78? Page 76. And he said the he says: A Q A "If it can safely be assumed that changes in distribution during the time period indicated would have been man-caused reductions, then goat range also remains largely unchanged. That statement is based on the fact that ranges in the most settled parts of the study area are still populated by goats, albeit at reduced numbers in some." And I think you referred to the fact in expanding on that that there are some areas where goats were on certain mountains and they no longer are there, or they have -- they were there, they're no longer there, and now they have returned. Can you refer to what -- Yeah. You're talking about? I can give you some examples. The large mountain that forms the backdrop for the town of Smithers, Hudson Bay Mountain, was apparently historically well populated with goats, and I believe, if I recall correctly, my primary informant on this was the old -- the conservation officer that had been in Smithers for about 25 years at the time that I arrived as a regional biologist. He was the one who told me that there had been a period of time after the mining road was developed there giving easy access to the alpine, that people hunted it quite heavily, that there also in the early 70's there was a period of time when helicopters were used for hunting in that area and also for caribou in that Telkwa Mountain area, and that hurt those herds quite badly such that Hudson Bay Mountain there were quite a number of years when there were -- it was believed that there were no mountain goats left there. It was also true of the mountain in behind Hudson Bay, it's called McDonnell Ridge. In that area a microwave tower was established and a road to service that microwave tower, and the people can drive all over the alpine in that area, and there too the mountain goats were said to have been virtually extinct on that mountain at that time one time, although again they're back on there now, so that -- Are they on Hudson Bay Mountain again? 9490 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 A Not -- I still am not aware of any sightings on the 2 main block of the mountain itself, but there is a 3 little spur ridge that goes off to the west, across a 4 little valley called Silver Basin, and there are 5 mountain goats there now, and I've seen as many as 14 6 there in recent years. 7 Q I was asking you about your comments on page 78, and 8 you say: 9 10 "More recently, intensive fire suppression has had 11 a negative effect, upsetting the natural 12 cycles" -- 13 14 This is the end of the first paragraph under "Human 15 Factors": 16 17 "Which produce serai habitats, and intensive 18 forestry which attempts to bypass the 'brush' 19 stage of forest growth is also detrimental." 20 21 Can you just expand on what you're referring to there 22 and why you say that? 23 A Okay. I probably should define this term "serai 24 habitat". What I'm referring to there is the early 25 stages of growth after forest removal, so that if we 26 have, for instance, a mixed pine and spruce area where 27 the forest cover is removed, it will come back -- 28 early off it will be colonized by things like grass in 29 various forms, and then the next stage will be small 30 seedlings, often again aspen will be one of these 31 pioneering tree species in many of the areas of the 32 north, and willows and rasberry bushes and roses, and 33 and various species that are used as food by a large 34 number of wildlife species. Failing -- and fire has 35 been a factor which has produced the pattern of 36 vegetation growth that exists throughout the north 37 well back into history, and so that you will have 38 different aged forest stands and you will have patches 39 of these early serai stages that are well used by 40 animals. The adjacent forest may be used as cover. 41 The fire suppression activities of the Ministry of 42 Forests to protect forests for timber use have reduced 43 the amount of these new habitats that are coming into 44 production, so it has reduced in effect the carrying 45 capacity of the land in many areas. 46 THE COURT: Surely that's balanced by the logging, isn't it? 47 A It isn't -- I wish it were. It isn't because -- and 9491 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 there are two things that are involved here. One is 2 that the -- and it probably would if -- the logging I 3 think could balance it a little better, but some of 4 the clear cuts are so large and so open that the 5 animals don't get out into the centres of them, so if 6 there is there's still this pattern of -- they're used 7 around the edges, but there's large areas of unused 8 habitat. The other thing is the silviculture 9 practises, and this is what I'm referring to by 10 bypassing the brush stage, there's a term in forestry, 11 it's called non-productive brush, and wildlife 12 biologists call it wildlife food. If we get in 13 there -- 14 MR. GRANT: 15 Q It's the same thing you're referring to? 16 A You apply herbicides and do various cutting techniques 17 and try to short-circuit this stage so that we get 18 immediately back into conifer production, we're 19 reducing the time period when even clear cuts would be 20 beneficial to wildlife. There's a period of six or 21 seven years and different stages of those serai 22 habitats are useful for different species. The moose 23 is about the first, from about years 7 to 10 or 12, 24 when it's at a maximum production. For snowshoe hares 25 and for lynx it's up around 50 years after a burn it's 26 really good for them, beavers probably 20, 25 years, 27 so there's different stages of these -- of the 28 regenerating forest that are useful for wildlife, but 29 what has happened with an intensive focus on raising 30 conifers is that we're trying to remove -- we are in 31 fact removing the amount of productive habitat for 32 wildlife at many stages. 33 Q Before going to the last paragraph there, I would just 34 like to refer you back to page 44 of your report, 35 actually the sentence starts on the bottom of page 43, 36 and this is a reference to your section on mule deer. 37 And you referred to this on page 43, 44: 38 39 "In some winters the coast deer may be reduced to 40 feeding mostly on conifer needles and twigs, 41 especially those of hemlock and on algae among 42 beach debris. Both forms may also use arboreal 43 lichens in winter." 44 45 And that when you say both forms you're talking here 46 about the coastal deer, the black tail and the mule 47 deer, the interior one? 9492 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 A That's right. 2 Q 3 "And deer in the Smithers area often concentrate in 4 active logging areas and use lichens made 5 available on recently felled trees." 6 7 Now, Dr. Hatler, this suggests to me that active 8 logging areas, I take it you're referring here to 9 which would be clear-cut logging that you're referring 10 to as clear cut. It appears to me what you're 11 suggesting is that the clear cuts, at least with 12 respect to mule deer, are beneficial and an 13 enhancement to their habitat. Can you explain that 14 statement? 15 A Yeah. 16 Q Or am I right in that assumption? 17 A All I'm doing here is providing a sentence which 18 documents the fact that deer use lichens. The way 19 they do it naturally is that they're wandering around 20 among the forest, snow gathers on a branch that might 21 be partly dead or loose for some reason or another, 22 often that will be the one that has the most lichens 23 on it, it falls to the ground, and the deer then eats 24 the lichens off the branches that are in this wind 25 fall or in the snow breakage branches. Sometimes the 26 snow will get deep enough and hard enough so they can 27 actually reach forage right on the trees. The caribou 28 do that in the southeastern B.C. 29 Q This is in forest where there's no logging? 30 A That's right. What I'm saying is what I've seen here 31 is that sometimes when you have a bunch of trees down 32 you will see the deer then concentrating in these 33 areas using the lichens that are available by that 34 method. In that -- in that year and at that time 35 they're doing okay, but next year there's none 36 available, so you have to take that into 37 consideration. They do use the lichens, is all I'm 38 saying here, but I would say that quite the contrary 39 is true, most of the concentrations that I have seen 40 have suggested to me that the deer were stressed to 41 concentrate to the extent that they did, and I had one 42 logger tell me they had 400 deer using -- he was 43 feeding 400 deer that year, and the next year he said 44 there were none left, that the wolves had gotten them 45 all. Possibly there was an effect of predators being 46 able to exploit that concentration, but more likely 47 the fact that there were that many in that kind of a 9493 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 stress situation was that they didn't make it for that 2 reason, but that's a speculation of course, but I'm 3 not saying that this is a good way to feed deer. The 4 long-term effect is detrimental. 5 Q And the long-term effect you're saying is negative? 6 A That's right. 7 Q I'm going back to page 78 of your report, Dr. Hatler, 8 and you say -- you then caution, and you're dealing 9 with human factors as well, that: 10 11 "The species which has most clearly declined in 12 both numbers and in extent of occupied range is 13 the caribou, but that is not believed to have been 14 a habitat response. Rather, it seems mostly 15 likely to have resulted from direct and indirect 16 effects of human developments, especially 17 transportation corridors and dams." 18 19 And that's what you were describing yesterday, and the 20 belt where the caribou were but no longer are, is that 21 Bulkley Valley, that transportation corridor belt it 22 appears. I mean a wide swath -- 23 A Yes. 24 Q Around it. And now, I just want to clear up something 25 that may be of conventional wisdom, and it may be a 26 misunderstanding on my part. You have not indicated 27 that the caribou decline in any of this study area is 28 a direct result of the moose moving in and replacing 29 the caribou? 30 A No. The moose would not replace the caribou because 31 they have very different habitat characteristics, but 32 there could be an effect of moose moving in, and there 33 have been several hypothesized ways they do that. One 34 would be is that they -- moose might bring in a higher 35 wolf population than would be possible if only the 36 caribou were in the area, they couldn't support as 37 high a wolf population as if there was caribou and 38 moose, therefore there's a continuing greater pressure 39 on the caribou than there might otherwise be. That's 40 a hypothesis, it's not fully demonstrated. The other 41 thing, there might have been parasites or diseases 42 associated with the moose or the deer that moved in 43 that the caribou became susceptible to but were not -- 44 that they don't have themselves. That doesn't seem 45 likely, given the fact that the moose and the deer and 46 the caribou occur elsewhere together. So that there 47 are possibilities but they seem less likely. 9494 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 Q And you refer to Stevenson and Hatler. This is one of 2 your own publications in the -- after the other 3 conclusions about: 4 5 "Roads and railways provide access to hunters and 6 poachers particularly when they cut across 7 migration routes, while reservoirs may interrupt 8 or prevent obligatory migrations, or lead to mass 9 mortality." 10 11 And that's as a result of a report you've done with 12 Stevenson? 13 A That's right. That was -- it's a detailed review of 14 caribou populations and habitats in southern and 15 central British Columbia, so it was essentially the 16 southern half of B.C. wherever the caribou occur and 17 also a little segment of everything south of Highway 18 16 plus the area in the north-east coal development. 19 MR. GRANT: Thank you, Dr. Hatler, those are all my questions. 20 I would ask, my lord, before I sit down, if -- I want 21 to advise the court that in anticipation of objections 22 my friend had raised before Dr. Hatler took the stand, 23 I have prepared the background material upon which he 24 relied, and it was five volumes, one volume of which I 25 have tendered to the court, but I have not -- I've 26 foregone the rest as it appears, and my friend now, 27 with the admissibility of the report, is not 28 challenging the facts upon which Dr. Hatler relies, 29 that is that they're not -- these published documents 30 aren't before the court. However, given that the 31 document -- the first binder, it incorporates the 32 reference I made to Dr. Darlington on zoogeography, 33 and the palaeontological material, as well as the 34 majority of the early historical records, I would ask 35 that all of which I understand are published 36 materials, or archival materials and would not be 37 objectionable, are admissible on that ground. I would 38 ask that that binder, except for Exhibit -- except for 39 tab 1, which is the C.V. and has already been marked, 40 that that binder be marked as the next exhibit number. 41 And I do not intend to file the additional four 42 binders, although the table of contents of all binders 43 are there, that Dr. Hatler's referred to it. 44 THE COURT: Thank you. Mr. Willms. 45 MR. WILLMS: My lord, the only difficulty that I have is much of 46 this material is simply similar to what you would read 47 while you were in university, or I mean it's part of 9495 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 the knowledge that the witness brings with him. I don't see why that needs to be marked as an exhibit. The report's in. I don't see where this goes to add anything, and certainly to the extent that this witness hasn't adopted everything that's in every document here, it's not in evidence, and I just think it's unduly burdensome and not very helpful, and who knows what else is in here that may be beyond what this witness can adopt within his own area of expertise. THE COURT: I'm generally not in favour, Mr. Grant, of just putting great volumes of material in as exhibits unless there's a particular reason for it. You had to make it available to your friend, but he says he doesn't want it and you don't need it for the purpose for the evidence you've produced. Why should it go in? MR. GRANT: So long as it's clear then, my friend is not then later going to challenge any aspect of the report itself, because the background documentation is not before the court, that is the references to which the witness made, and of course that was our intent. THE COURT: He won't do that because if he wants to challenge that he would have to do it in cross-examination. MR. GRANT: Well, yes. He would have to deal with it here at cross-examination. THE COURT: Why don't we adjourn this until Mr. Willms has finished his cross-examination. MR. GRANT: That's perfectly satisfactory. In any event, I would ask that alternatively that the index which was referred to by Dr. Hatler as a sampling of the documents -- tab 1 has already been marked as an exhibit of course, and I would ask that tab 2 be marked as an exhibit, because it was referred to by Dr. Hatler, specifically quotes, and that -- the quote that I referred to was not put in. THE COURT: Well, tab 1 is in, the index is not in. You want to put the index in? MR. GRANT: The index in and tab 2. MR. WILLMS: All I can say about the index is that it's already in. It's in the list of references at the back. In fact, the more complete index of what Dr. Hatler referred to is in his report, and so why file a partial -- THE COURT: Right. MR. GRANT: Well, yes, it's just that I referred him in evidence to this as a sampling of that, and it's only because 9496 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 it was referred to in terms of tab 2. 2 THE COURT: I don't think we need the index, Mr. Grant. What 3 about tab 2, Mr. Willms? 4 MR. WILLMS: My lord, it sets out what zoogeography is. I 5 understand the witness says that's what it is, and I 6 don't have any objections on that one. 7 THE COURT: Tab 2 then will be Exhibit 796. 8 THE REGISTRAR: My lord, well, tab 1 is marked 794-1. 9 THE COURT: Yes, all right. 10 THE REGISTRAR: So even if we take tab 1 and 2 out of the book 11 they can remain 794-1, 794-2. 12 THE COURT: All right. Tab 2 will be 794-2. 13 14 EXHIBIT 794-2 - "Zoogeography" by Philip Darington 15 16 17 MR. GRANT: Those are all my questions of this witness. 18 THE COURT: All right, thank you. I'm going to take that tab 19 out -- no, maybe I won't, I won't ever get that book 20 closed again. Go ahead, Mr. Willms, thank you. 21 You're going first? Oh, I'm sorry, there was 22 something I was going to ask the witness and I may 23 forget. I haven't heard anything about brown bears? 24 A Grizzly bears and brown bears are the same species. 25 THE COURT: Same species, but there's a difference, isn't there? 26 A No. There are brown black bears. 27 THE COURT: Oh, all right. 28 A There are white black bears and grey black bears, but 29 the species is black bear, and there are different 30 colour phases, and the actual term "brown bear" is 31 reserved for the whole circumpolar species of grizzly 32 brown bear complex. The brown bears on Admiralty 33 Island, the great kodiak brown bear, is a grizzly bear 34 in actual fact, and the grizzly bears are the brown 35 bears that occur in Europe are all in that same 36 species as well. 37 THE COURT: So the brown black bears, they can climb trees? 38 A Right. 39 THE COURT: The brown grizzlys can't climb trees? 40 A The cubs can, the young ones can. 41 THE COURT: Yes. Until their claws get long? 42 A Yes. 43 THE COURT: All right. When we see the smaller species of brown 44 bear in the woods of British Columbia, we're looking 45 at probably, if we're lucky, a brown black bear, if 46 we're unlucky it's a grizzly? 47 A It could be either. 9497 D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 THE COURT 2 A 3 4 THE COURT 5 6 A 7 THE COURT 8 MR. GRANT 9 Q 10 11 A 12 THE COURT 13 14 15 A 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 THE COURT 33 34 A 35 THE COURT 36 A 37 38 39 40 41 42 43 THE COURT 44 45 46 47 : Could be either? The colour is not a good -- is not a really good -- there are also very black grizzly bears. : If we see a brown mature bear up a tree, we're looking at a brown black bear? Mostly, yeah. : Yes, all right. Just one point. There are white-faced black bears within the study eye area, is that right? That's right. : All right. And the other thing you said was you mentioned the scarcity of grizzlies. How scarce are they? I was saying scarcity in comparison to black bears. They don't occur anywhere in near the densities that black bears do, so you might have a black bear every ten square miles and a grizzly every hundred square miles. That varies from from place to place, of course. Nobody knows really what the grizzly bear population of B.C. is, but the estimates that I've seen are certainly far too low than the existing estimates. For instance, they say there, I think, they say there are 30,000 Grizzly bears in Alaska and something like 8 to 10,000 in the Yukon, and quite a bit fewer than that, I don't remember the number now, for B.C., but B.C. shouldn't have fewer than the Yukon and it should be very near what, you know, it should be closer to what Alaska has than the Yukon has. So what I was saying in effect is they don't occur in great herds normally. : You say there's several times more black than there are grizzly? In some areas, for sure. : Yes? But out on the coast you get higher densities of both, and you're really going out on a limb trying to estimate numbers of these animals because of the fact that they're again not conspicuous, they're in thick forest when they're active often, and in the wintertime they're sleeping, so you can't go out and count tracks. : All right. I think I'll take a short adjournment. We've got to change reporters anyways, Mr. Willms. 949? D.F. Hatler (for Plaintiffs) In chief by Mr. Grant 1 2 (MORNING RECESS TAKEN AT 11:10) 3 4 I hereby certify the foregoing to be 5 a true and accurate transcript of the 6 proceedings herein transcribed to the 7 best of my skill and ability 8 9 10 11 12 Graham D. Parker 13 Official Reporter 14 United Reporting Service Ltd. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 9499 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 (PROCEEDINGS RECONVENED AT 11:30 a.m.) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Willms. 5 MR. WILLMS: 6 Q Dr. Hatler, I'm showing you a letter dated April 23rd, 7 1985, a three page letter from Mr. Overstall to 8 yourself. That's a letter that you received in 9 respect of your report? 10 A Um-hmm. 11 Q Yes? 12 A Yes. 13 MR. WILLMS: Might that be Exhibit 784-16, my lord? 14 THE COURT: 784-16, yes, thank you. 15 THE REGISTRAR: Of the grey book. Sorry, I think it's 15. 16 MR. GRANT: Yes, fifteen. 17 MR. WILLMS: Should be 15. 18 THE REGISTRAR: Yes. 19 THE COURT: Yes, it's 15. 20 21 (EXHIBIT 784-15 - Letter dd. April 23, 1985 from Mr. 22 Overstall to Dr. Hatler) 23 24 MR. WILLMS: 25 Q And just turning to the second page, the species that 26 you are to investigate were set out to you by Mr. 27 Overstall? 28 A Yes. 29 Q All right. That's set out on the second paragraph. 30 And then the particular issue of the decline of the 31 caribou and the increase in the moose was also 32 something that you were specifically asked to look at? 33 A Yes, I guess so. 34 Q So that before you started doing any of your research, 35 you had those points in mind that that was what you 36 were aiming at? 37 A No, I wouldn't say that. I had those points in mind 38 long before I got this letter because I was well aware 39 of them as common knowledge around the area. 40 Q Now in July, and I'm showing you a second letter from 41 Mr. Overstall to yourself. Mr. Overstall wrote you 42 again, further to his letter of April 23rd; is that 43 correct? 44 A Yes. 45 MR. WILLMS: And could this be Exhibit 784-16, my lord. 46 THE COURT: What's the date of it, please? 47 MR. WILLMS: July 2nd, 1985. 9500 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 THE COURT: Yes. 2 3 (EXHIBIT 784-16 - Letter from Mr. Overstall to Dr. 4 Hatler dd. July 2, 1985) 5 6 MR. WILLMS: 7 Q In this letter, Mr. Overstall sets out on the first 8 page, five steps or five stages for mapping and 9 describing the distribution of the species. Did you 10 follow those five steps? 11 A The quick answer is no. 12 Q Which one is -- 13 A But -- well, in the first one I didn't -- I didn't do. 14 The second one, of course, I attempted to do. That 15 would have been part of it in any case. The third 16 item I didn't do because it wasn't really -- it isn't 17 possible to establish habitat capability for a time 18 period when you don't -- when no one was there 19 describing habitat. 20 I should -- before I go on with the others, I 21 should say that at this early stage we were still 22 exploring what could be done, and in the initial 23 contacts to me, my first answers were that I didn't 24 really think that it was going to be possible to do 25 it, although I was interested in some aspects of it. 26 Some -- as far as detailed information, I knew from my 27 own experience what kind of information was available, 28 particularly in terms of habitat capability. And so 29 I -- some of the ideas that he had -- he was trying to 30 look for things that might be possible, because he was 31 trying to woo me into doing the project and I was 32 still uncertain that I really wanted to do it. 33 So we were at this stage, kind of negotiating on 34 what actually I could do, and many of these items I 35 ruled out as possibilities fairly early and that 36 was -- that's why, when you look at the "Methods" 37 section of the report, you'll see that a lot of these 38 things are not mentioned. 39 Q Yeah. That's — 40 A And I certainly agreed -- do you want to continue on 41 with 4 and 5? 42 Q I would like you to continue on with 4 and 5. 43 A Yeah, okay. I haven't discussed in any great detail 44 that moose, caribou, wolf dynamic, that was something 45 that he thought was important, but to me, it's just a 46 hypothesis -- I discussed that a little while ago -- 47 and I didn't deal with it to any great extent. 9501 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 Cyclic variability. What he meant there was any 2 predictable regular population fluctuations. That 3 really is applicable only to the hare, and I have 4 discussed it in that. And as far as, again, this 5 habitat capability business, I didn't address that in 6 the sense I think that maybe he was thinking about it 7 here. 8 And for item five, that one was not part of the 9 contract. On that one I -- although I talked about 10 this palaeontology information and zoogeographic 11 patterns of the animal use, we decided that this was 12 not going to be part of the project, item five. 13 Q Okay. 14 A And I think it was specifically excluded from the 15 contract terms as well. 16 Q And in respect of the paragraph on the initial 17 research and habitat mapping there is a suggestion 18 that you get in touch with Sybille Haeussler. Did you 19 do that? 2 0 A No, I didn't. 21 Q I thought ultimately you used some material? 22 A I did. I was given her report and the maps by Richard 23 Overstall later on, but I never did specifically 24 interact with Sybille at all. It wasn't convenient 25 for me at the time. 26 Q Okay. So you received information that she had 27 prepared but you never spoke to her? 28 A That's right. 29 Q All right. And then in the second paragraph, full 30 paragraph on page 2, there is a suggestion of an 31 assemblage of resource data including archaeological 32 and palaeoclimatic? 33 A Um-hmm. 34 Q Did you receive archaeological information and 35 palaeoclimatic information from Mr. Overstall? 36 A I believe that he was the one who got for me the -- I 37 believe all three of those archaeological sources were 38 the ones that he got for me because they had gotten 39 them for other reasons. 40 Q And what about palaeoclimatic information? 41 A Some of it -- I think the paper relating to tree ring 42 growth and the identification of that neoglacial 43 period from tree ring growth in the Alaska and the 44 Yukon, Jacoby, I believe, was the lead author of that 45 one, that was in a pre-publication in-press status at 46 the time and he had written away for it, and so he 47 gave me the copy that he got, so I got that one from 9502 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 him. 2 And I think that he referred me to Rolf Mathewes 3 to identify other good palaeoclimatic sources. 4 Q You responded on July 23rd to Mr. Overstall with a -- 5 and this is the cover letter. You sent him a cover 6 letter and a proposal? 7 A Um-hmm. 8 Q And this is the cover letter for your research 9 proposal? 10 A That's right. 11 MR. WILLMS: 784-17, my lord. 12 THE COURT: Thank you. 13 THE REGISTRAR: 784-17. 14 15 (EXHIBIT 784-17 - Letter dd. July 23, 1985 from Dr. 16 Hatler to Mr. Overstall) 17 18 MR. WILLMS: 19 Q In the first paragraph of this exhibit, you say in the 20 second line: 21 22 "I still have considerable difficulty visualizing 23 just how much of the basic data required will be 24 picked up by your present researchers, and 25 therefore how deep I will need to dig." 26 27 How much of the research that is cited in your 28 bibliography was provided to you by Mr. Overstall? 29 A Very little in the end. That was why -- at that stage 30 I still didn't know. We had discussed the possibility 31 that since they did have Mr. Mathewes who was the 32 palaeoclimate expert and some of these other people 33 involved, that it would be an unnecessary duplication 34 of effort for me to try to use -- to go over some of 35 their -- to cover the same ground that they might also 36 cover in their reviews. It turned out that scheduling 37 of their work and mine didn't make that practical, and 38 as I indicated, I did contact people like Mathewes to 39 ask what are some good basic references I could start 40 with, so then using the bibliographies of those I can 41 find additional sources I should go to. But 42 basically, it ended up that I was pretty much on my 4 3 own. 44 Q All right. In the third paragraph of this letter, you 45 refer to vegetation analyses. Is that the analyses 46 that was ultimately the base map, the biogeoclimatic 47 base map that you used? I'm down in the third 9503 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 paragraph. 2 A Third paragraph. I gathered that -- at the time, I 3 gathered that the vegetation analyses were being done 4 by Sybille Haeussler. I didn't know what all they 5 covered or what the extent of their -- yeah, I thought 6 maybe some of this kind of information would be in 7 there. 8 Q When you reviewed the vegetation analyses that you 9 used as the base map for your maps, was there 10 quantification of the amount of land logged? 11 A I don't believe there was, but I don't remember. 12 Q Or land cleared? 13 A I don't recall, but I don't think so. 14 Q Or land burned? 15 A Again, I don't -- there may have been some time 16 periods, but I did not spend a lot of time with the 17 report. It turned out that I realized that the -- 18 given the size of the area and the constraints of how 19 much time I was going to have to operate, you know, 20 there was sort of an upper limit of how much was going 21 to be available for this project and how much time I 22 was going to be able to spend on it, that I wasn't 23 going to be able to operate in that kind of detail on 24 a site-by-site basis anyway. So what I -- the only 25 thing that was really useful to me from -- from the 26 vegetation analysis that was done, was the base map at 27 the biogeoclimatic zones at the proper scale, and that 28 was lifted from the B.C. Forest Service research map 29 which has been prepared for the entire province and 30 that I had a fair amount of faith in as being 31 accurately representing the vegetation zones. So I 32 went with that and didn't bother too much with any 33 other aspect of the vegetation report. 34 Q So just -- are you saying that because of the scope of 35 the area, the size of the area and specially the map 36 dimensions, that it just wouldn't be possible to put 37 land logged, cleared or burned in? 38 A Oh, it would certainly be possible. We did do that in 39 the caribou report that I referred to for the southern 40 and central part of the province. There we have 41 mapped insect outbreaks and fires and all sorts of 42 stuff, but it takes a lot of time and it wasn't 43 something that I felt I could do it in the time that 44 was available here. 45 So basically, the -- the biogeoclimatic classifi- 46 cation was as deep as I could go. 47 Q When you did your study in southern British Columbia, 9504 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 you focused on things like logging, clearing and 2 burning in order to get the most accurate picture of 3 the habitat changes; is that right? 4 A That's right. 5 Q I'm showing you a letter dated October 7th, 1985, from 6 Mr. Overstall to yourself, and that's a letter about 7 your report -- or your proposed report? 8 A Yes. 9 MR. WILLMS: Yes. Exhibit 784-18, my Lord. 10 THE COURT: Yes. 11 12 (EXHIBIT 784-18 - Letter from Mr. Overstall to Dr. 13 Hatler dd. October 7, 1985) 14 15 MR. WILLMS: 16 Q The second paragraph of that letter refers to Ms. 17 Haeussler's plant distribution proposal and Mr. 18 Mathewes' palaeoenvironmental proposal. Do you still 19 have copies of those? 20 A No, I don't. 21 Q What did you do with them? 22 A I presume I turfed them because I wouldn't have had 23 any use for them. I maintained a file that says 24 Gitksan-Wet'suwet'en. Everything I had went into that 25 file and that's what I gave Mr. Grant. So seeing this 26 letter, I don't even remember getting them, but I 27 presume if he refers to it here, that it was there, 2 8 but I didn't need them for anything or want them for 2 9 anything. 30 Q What about there is a reference to Skip Ray. Did you 31 keep those excerpts? 32 A That seems like something I would have kept, but I 33 don't know where it is if I did. That would be what I 34 referred to in terms of the compilations of the 35 species that were the fur sales and what not relating 36 to the Hudson's Bay records. So I may have that in my 37 literature files somewhere. 38 Q Where would that be, up north? 39 A Yes. 40 Q Well, perhaps -- and if anything arises out of that, 41 my lord, perhaps you could look at that when you 42 return -- 43 A Okay. 44 Q -- to the north, and if you have that, produce it to 45 my friends. 46 The next piece of correspondence that I would like 47 to show you is a letter from Mr. Overstall to yourself 9505 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 2 3 4 A 5 6 MR. WILLMS 7 8 9 10 11 MR. WILLMS 12 Q 13 14 15 16 A 17 Q 18 A 19 Q 20 21 A 22 23 Q 24 A 25 Q 26 A 27 Q 28 A 29 Q 30 A 31 Q 32 A 33 Q 34 35 A 36 37 38 39 40 41 42 43 44 45 46 Q 47 dated November 12th, 1985. That's a letter about the work that you were doing for the plaintiffs in this action? This would be the cover letter that came with the contract, I guess. : Might that be Exhibit 784-19, my lord. (EXHIBIT 784-19 - Letter from Mr. Overstall to Dr. Hatler dd. November 12, 1985) The last line -- the last paragraph says -- refers to: "The workshop on the biophysical evidence looks like it's being scheduled just after the Christmas break." Was there a workshop on biophysical evidence? Yes. When was it? I don't remember specifically. Do you remember other than -- do you remember who else was there at this workshop? I remember -- I certainly remember some. I don't know that I could name everyone that was there. Was Dr. Ray there, Skip Ray? I don't remember. Was Sybille Haeussler there? Yes. Was Mr. Mathewes there? Yes. Dr. Gottesfeld? I don't recall if he was or not. Mr. Chilton? Yes. Was any part of this workshop on biophysical evidence about your report or about your proposed evidence? Not specifically. It was primarily, I think, an effort to let each of the individuals know what others were doing in the event that there was any kind of mutual information that would be of use to the other. And also, I think that the broad hope that Mr. Overstall and the people that were organizing, he had -- was to understand how it would all fit together and how it might be modelled. But there was no direction or anything for individuals, it was mainly a report of what they were finding and what they were doing. Would this be accurate, a description of a sharing of each witness' preliminary investigations or 9506 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 2 A 3 4 Q 5 A 6 Q 7 A 8 Q 9 MR. GRANT 10 A 11 MR. GRANT 12 13 14 15 16 17 18 19 THE COURT 20 MR. GRANT 21 22 23 24 THE COURT 25 26 27 28 MR. GRANT 29 THE COURT 30 31 32 33 34 35 36 37 38 39 40 MR. GRANT 41 42 43 THE COURT 44 MR. GRANT 45 46 47 preliminary observations? I would say that that's a fairly close description, yes . With the other witnesses? Those that were there, yes. Did you make any notes of that meeting? No, I didn't. Did anyone make notes of that meeting? : Just a moment, my lord. Yes, I think -- : My lord, if I can interject here, because I don't want to put the witness -- this -- and I was going to raise it on redirect but I can advise the court that this was a meeting with legal counsel and when my friend raises, "Were any notes made at the meeting," of course there were discussions with legal counsel, of course, legal counsel's notes. I'm sure my friend is not endeavouring to ascertain -- : I think he is. : Well, the position I take is it was a meeting with respect to preparation of legal counsel, it's not a -- I think some of the documentation in the 15 that you have before you may arise from that specific -- : Well, we are both at a disadvantage, Mr. Grant. I didn't have the benefit of your submissions on Monday when I heard from Miss Mandell on this question, and he didn't have the advantage of hearing your argument. : No. : I can tell counsel that I hope to be able to deliver my reasons in that matter this afternoon, and I would think that this sort of thing is something that I would rule should probably be disclosed. The -- if I can put it in crude terms, this is part of the matrix of information which could condition an expert's report, and under the new practise, regrettable as that seems, but as set out in the Phillip Barratt case, it is probably deemed to be -- the solicitor's brief privilege is deemed to be raised and said to be admissible. : Well, to the extent that, of course, that will be up to the witness to deal with, the extent -- the terms of affecting the witness' report. But -- : Well, you see the conditions -- : In terms of counsel's decisions, in terms of counsel, what we are moving very close to here, my lord, and I guess I do appreciate the situation we are in, but I just want to -- I think it's appropriate for 9507 D.F. Hatler (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 me to raise the objection. THE COURT: Of course it is, but I'm going as far as I can go in my reasons to protect what I call "counsel's musings". But if the number of witnesses, all potential experts get together with technical advisers and counsel and other members of the litigation team, then if notes are kept, I think they are probably producible. And if there aren't notes kept, well then the subject matter of the oral communications is probably a proper subject for cross-examination, although where there is no writing, what I'm proposing is we have a voir dire to find out what the words are, because I can't rule in any other way whether they are likely to affect the substance or content of the opinion or the credibility of the witness. I don't think Mr. Willms is putting any emphasis in this connection on credibility, but I think the intention of Mr. Justice Finch's judgment is that an inflow of information that might condition the mind of the witness in relation to the subject matter of litigation is producible. Well, to the extent that it conditions the mind of the witness. What I'm worrying about is in terms of where -- Well it might. What I'm concerned about is how close we are broaching to the conditioning of the decisions of counsel in terms of trial strategy, and that I -- that's where I'm concerned. Well, that's where the difficult interface may be found. If I have a document, I can look at it and balance the historical objective of protecting counsel's strategy against the need to know what has affected the mind of the witness in the preparation of his opinion. But if it's just oral communications, then I see no way around the problem, short of having a voir dire. I don't think at the moment there is anything I can rule on. I don't think I can stop you from questioning the witness. MR. WILLMS: My lord, I understand there is a letter from Mr. Overstall to the witness, and in fact letters from Mr. Overstall to all the people that attended this meeting, discussing what happened at the meeting. But I haven't seen that, that's kind of a wild guess on my part, but my understanding was from the description that Miss Mandell gave to the Pojar communication was that that -- that he was at that meeting and that Mr. MR. GRANT THE COURT MR. GRANT THE COURT 950? D.F. Hatler (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. GRANT THE COURT MR. Overstall was writing to him -- or Mr. Pojar was writing to Mr. Overstall about what happened at the meeting. So I understand there is a document about this meeting, and I don't want to take up the court's time with exploring with this witness his recollection of the meeting at this time if it turns out that that document would fall within the category proposed. And I am -- I am content -- and I'm sorry that -- I'm not trying to put any pressure on your lordship, of course I can't, but if it's coming this afternoon, that may solve this particular area without needing to enter on -- upon a voir dire right now. The Pojar document is one of the 15, I believe, that you have, so it is one of the specific documents you had ruled on. Well, I've ruled on the Pojar document. I have looked at it, your friend hasn't seen it, and I have concluded that it should be privileged. Those parts have been left out. But that doesn't help me with respect to this, I don't think. WILLMS: Q All right. Well then, let me just -- this meeting was held before you drafted or prepared the first draft of your report, the biophysical evidence meeting? I would say yes. And was there discussion at the meeting between you and anyone about what the scope of your report might be? By "scope" you mean what it was about or what the conclusions would be? No, no. What you -- what would be in it and what wouldn't be in it, that's what I mean by the scope of the report? I recall that I gave a bit of a presentation to the group saying, "This is what I'm doing and this is -- these are the species that I'm involved with and if any of you" -- I remember, I think it was at that time, I said, "If any of you have information that relates, I would be interested in it particularly." And then I went to Mr. Mathewes about some good references for the palaeoclimatic information and so forth. But I also recall that I didn't get -- I didn't get a whole lot from that meeting in the sense that I hoped there would be more available from the other disciplines and that I would have to dig less, as I indicated in the previous letter, and that didn't turn A Q A A 9509 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 out to be the case. 2 Q And just back to the one question I asked before my 3 friend objected, do you know whether anybody took 4 minutes of that meeting? 5 A I -- I had forgotten about Jim Pojar. I gather he was 6 taking -- he was taking notes of some sort and I 7 presume Richard was but I don't distinctly recall. He 8 usually does keep notes when he is dealing with 9 things. 10 Q Did Mr. Overstall subsequently write to you about the 11 meeting? 12 A I believe that he wrote to me and sent me a copy of 13 Mr. Pojar's letter, I think that's all I got from it 14 subsequent. 15 Q So on -- as far as you are aware, the only documents 16 that you received in respect of that meeting, you 17 remember getting a letter from Mr. Overstall and a 18 copy of something that Mr. Pojar had prepared? 19 A That's — that's all I recall. 20 Q And as far as your evidence is concerned today, there 21 was nothing that transpired in that meeting that 22 changed your report in any way? 23 A No. 24 Q Or your proposed report, the area that you were going 25 to work on? 26 A Yeah, right. 27 Q This is a -- is that a copy of your contract with the 28 Gitksan-Wet'suwet'en Tribal Council for the work that 2 9 you did? 30 A Yes, it is. 31 MR. WILLMS: And my lord, Exhibit 784-20, please. 32 33 (EXHIBIT 784-20 - Copy of Dr. Hatler's Contract with 34 the Gitksan-Wet'suwet'en Tribal Council) 35 36 MR. GRANT: My lord, just because I note on it, and I just want 37 to be clear, there is a handwritten note of 38 "privilege", and there was a yellow sticky on this 39 which I had put on, and that had that on it when it 40 was photocopied, that wasn't taken off, that yellow 41 sticky. So that's not part of the contract. 42 THE COURT: All right. 43 MR. WILLMS: 44 Q Can you -- on the last page there is a signature for 45 the tribal council. Do you know who signed for the 46 tribal council? 47 A No, I don't. 9510 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 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms MR. WILLMS: Showing you a letter dated May 5th, 1986. THE COURT: Are you putting in the agreement? MR. WILLMS: Yes. THE REGISTRAR: 784-20, my lord. THE COURT: All right. MR. WILLMS: Q This document is a letter dated May 5th, 1986, from Mr. Overstall to yourself about your report? A Okay. MR. WILLMS: Yes. Exhibit 784-21, my lord, please. (EXHIBIT 784-21 - Letter from Mr. Overstall to Dr. Hatler dd. May 5, 1986) MR. MR. WILLMS: Q You refer in the first paragraph of Exhibit 784-21 -- sorry, Mr. Overstall refers to the draft report. Is this -- was that your first draft that he is referring to? A Yes. It must have been, yes. Q Do you still have a copy of that draft? A I did this on a word processor, it was the first thing I ever did on it, and everything that I did to it was without back-ups, so no. I have since learned not to do that, but all my changes were mechanical. Q All right. Well, you must have produced a hard copy to send? A I did, yeah. And I -- that was subsequently -- I turfed it after I made the new -- made the new one after the editing was done, so I don't have an original. I tend to weed out my files fairly regularly. I have too much stuff in there as it is. Q There is a reference at the bottom of the letter to the technical committee. Did you talk with anyone or speak or correspond with anyone on a technical committee? A Where is this, I'm sorry? Q Very bottom, it says "cc: Committee"? No. All right. Audrey Woods, Technical A Q A GRANT: Do you know what that is' No. THE COURT The same comment applies to the handwriting on the right-hand side, my lord, that's not part of the letter. That was a note, again, that was on a sticky, I think, and it was photocopied. All right. 9511 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 MR. WILLMS 2 Q 3 4 5 6 A 7 MR. WILLMS 8 9 10 11 12 MR. WILLMS 13 Q 14 15 16 17 18 A 19 20 21 Q 22 A 23 24 Q 25 26 27 A 28 29 Q 30 31 A 32 Q 33 34 A 35 36 37 38 39 40 41 42 43 44 45 46 Q 47 The next document I would like to refer you to, Dr. Hatler, is a letter from Mr. Overstall to yourself dated January 13th, 1987. And as you can see from the first line, that's in respect of your report? Yes. : Exhibit 784-22, my lord. (EXHIBIT 784-22 - Letter from Mr. Overstall to Dr. Hatler dd. January 13, 1987) The second line refers to a print-out of your draft with some minor editorial suggestions marked. Did you -- you sent your draft, the hard copy, to Mr. Overstall. Did you get that back from him or did you get something different back from him? I don't recall. It would have been -- you know, are you -- you are asking maybe he made a copy and sent it back to me or -- Well, what I'm getting at is did he mark up your. He marked up a -- the draft that I had sent. Not much, but some. And did he also send you a clean draft of your report, perhaps on word processing equipment that he had available to him? No. He didn't have anything on a word processor at all. It was all on mine. So when he says -- it's your print-out that he's returning to you? That's correct, that's right, yeah. So do you have a copy of that draft with his comments on it? No, I don't. That -- I'm a little confused myself here, because I didn't realize that I had -- that he had actually marked things up twice, and in fact, I don't think that he did. There were relatively few comments. Most of them were typographical errors or questions of "I don't understand this, could you explain more," or something. But there was very little change that was required and certainly not much change. I didn't have that much time left on the contract, so there couldn't have been. But I didn't recall that there had been two separate communications on this, so it's -- In any event, whether there were one or two, you don't have a hard copy anymore? 9512 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 A No, I don't. All I have is -- I have -- the original, 2 again, it was my first time, and my -- that original 3 draft I didn't know how to make the margins right or 4 anything and it was pretty weird, and I finally got a 5 good -- the last copy I sent, I said, "When you get 6 the figures in, please send me a copy because I'm not 7 going to keep any of that stuff." So I have a copy he 8 sent me but I didn't keep mine. 9 Q And the second paragraph, Mr. Overstall refers to 10 "proof copies of the animal distribution maps," 11 requesting you to proofread the maps and the text 12 which has been paraphrased from your report? 13 A Um-hmm. 14 Q Did you receive proofed copies of the animal 15 distribution maps? 16 A Yes, I did. 17 Q Did you keep them? 18 A No, I didn't. I sent them back. 19 Q You sent them back? 20 A After I worked on them, yes. 21 Q To Mr. Overstall? 22 A Yes. 23 Q Have you seen them since you sent them back to him? 24 A No. 25 Q The paraphrasing on those proofs, do you know who did 26 those -- that paraphrasing? 27 A I was led to understand that it was somebody who 28 worked with or for the cartographer. 2 9 Q But you don't know who? 30 A No, I don't. 31 Q The next correspondence I would like to show you, Dr. 32 Hatler, is a letter of January 27th, 1987, and this is 33 your cover letter to Mr. Overstall with your completed 34 report. 35 A That is, yes. 36 MR. WILLMS: All right. Exhibit 784-23, my lord. 37 THE COURT: Yes. 38 39 (EXHIBIT 784-23 - Letter from Dr. Hatler to Mr. 40 Overstall dd. January 27, 1987) 41 42 MR. WILLMS: 43 Q You refer there to incorporating most of the changes 44 that Mr. Overstall recommended? 45 A Right. 46 Q And then you made some other changes on your own; is 47 that correct? 9513 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 A 2 3 4 Q 5 6 7 A 8 9 10 11 12 13 14 Q 15 16 17 18 19 20 21 22 A 23 24 Q 25 A 26 MR. GRANT 27 28 29 30 31 32 33 34 35 THE COURT 36 MR. WILLM 37 Q 38 39 A 40 Q 41 A 42 43 Q 44 A 45 Q 46 A 47 Yes. They were just where I noticed typographical errors. I found more when I read it the other day, but — Is the report that you sent to Mr. Overstall the same as the document that's been marked Exhibit 795 in court today? Basically. Some of the changes that were made the other day, like changing the word "east" to "west" and changing "52.5" to "55.5", were some of the changes that I later discovered. Have I referred to them here or -- it might be later after that even. But other than those changes, yes, they were a word here and there. You say in the second to the last paragraph of the letter: "I made a draft copy for myself, to use while working on the maps, (but) I wouldn't mind getting (a final copy)." Did you keep that draft copy that you used? No. That's the one I referred to earlier, after I got the final copy, that was the one that I kept. The final copy? Yes. After Richard sent me the final copy. : Just, my lord, it wasn't set out on the record, but I did correct the court exhibit copy and informed my friend off the record. The references are there's some handwritten corrections on pages 3, 23, 42 and 69 of Exhibit 795, and those are the corrections to which I believe the witness is referring to. Just noting that because it wasn't set out on the record. And if you see that you'll see those corrections. My friend is aware of them. : Yes. Did you correspond with Richard Daly about your report? No, I didn't. And did they correspond with you? I don't think I've ever had any correspondence from Mr. Daly, no. And what about a Richard Lee, have you -- Correspondence? -- had correspondence? I believe that I had a discussion with both of those gentlemen at one time, but no correspondence that I 9514 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 recall. 2 Q Was it about the substance of your report? 3 A I believe that it probably was, yes. 4 Q Do you remember when that discussion took place? 5 A No, I don't. It would have been -- no, I don't recall 6 at all whether it was during the period I was working 7 on it or sometime later. I am inclined to think it 8 was probably sometime during because I didn't have 9 much to do with the project after it was over. 10 Q Did they make any comments on the substance of your 11 report? 12 A I don't believe so. Not -- I don't think that there 13 was much -- much discussion about substance as much 14 about the generality of what I was doing, from my 15 standpoint. I don't remember who else was there 16 either. I just have this vague recollection, when 17 I -- when I ran into Mr. Daly here yesterday, I 18 recalled that I had met him but it took me awhile to 19 remember where. 20 Q As a result of any of your discussions with Mr. 21 Daly -- Dr. Daly or Mr. Lee, did the -- did your 22 report change in any way? 23 A No. 24 Q Now the last document in the correspondence series 25 that I would like to refer you to is a letter of 26 February 10th, 1987, from yourself to Mr. Overstall, 27 and this letter accompanied your maps -- or should I 28 say your maps accompanied this letter? 29 A Yeah. I believe this was the -- with the draft maps 30 that you referred to earlier. 31 MR. WILLMS: All right. Could that be Exhibit 784-24 my lord, 32 please. 33 34 (EXHIBIT 784-24 - Letter from Dr. Hatler to Mr. 35 Overstall dd. February 10, 1987) 36 37 MR. WILLMS: 38 Q The first paragraph you refer to "the mammal 39 distribution maps and map text, revised according to 40 your instructions." So you changed your maps and map 41 texts according to Mr. Overstall's instructions? 42 A Mr. Overstall's instructions were to review the maps 43 and to change the text as required, and I did that. 44 There were no specific instructions as to what to do, 45 if that's what you are suggesting. 46 Q Your instructions were to revise it as you saw fit and 47 that's what you mean? 9515 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 A 2 Q 3 4 5 6 7 A 8 9 10 11 Q 12 13 14 15 16 17 18 19 20 21 A 22 Q 23 24 A 25 Q 26 27 28 29 A 30 Q 31 32 A 33 Q 34 35 A 36 Q 37 38 A 39 40 THE COURT: 41 A 42 43 44 45 46 47 MR. WILLMS That's right. In your second paragraph, you refer to the diskette copy that you've repaired and reprinted. Is this -- what you did with your computer is instead of keeping a backup diskette for each draft, you just had one diskette and you kept revising that? It was -- it's a hard disk, and I had it all on hard disk and I didn't have any backup diskettes, which I now do regularly, and one should do, I later found out in another project, but I didn't at that time. Paragraph five refers to the Haeussler -- and I'm part way down. You say towards the end of that paragraph: "On all original maps, I used biogeo. zones and elevations extensively, assuming some species occurrence to follow particular zones/elevations rather closely. To accomplish that, I overlaid the transparency on Sybille's original Biogeo. zone map." Right. Right. And that was the method that you used to prepare the transparencies? That is correct. All right. And maybe just as an example, and it's in the courtroom here, if I can take the transparency off first. Is that the underlying map prepared by Miss Haeussler of the biogeoclimatic zones that you used? I presume it is. It looks similar, yes. And when you received this map, did it have the black outline that is shown? Yes, it did. Yes, it did. And now just overlaying, is this your -- this is your caribou transparency? Yes, it is. What was the first line that you drew on the transparency? It generally speaking was this one. I would get -- I would actually -- The external boundaries? Yes. I didn't draw them at all, to be honest. I think I had my daughter draw all of those on each transparency because I knew that each time I went back to a particular map I was going to want to put it down on the same place again at the time, and that was just a convenient mark to be able to do that. 9516 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 Q So that what guided you throughout on your maps was 2 the outline of the claim area? 3 A It didn't guide me, it oriented the map, but I didn't 4 pay any attention to it because it didn't have any 5 relevance to animal distribution as the way I was 6 mapping it. I was mapping by biogeoclimatic zones 7 which go across the unit anyway, so it was just a 8 control point so that I -- I could have used lakes but 9 it was convenient, it was there. 10 Q Did you, when you mapped the distribution of a 11 particular species, assume that where -- even though 12 you didn't have any firsthand knowledge of the 13 existence of a species in the area, assume that if the 14 biogeoclimatic zone was the correct habitat, that 15 there would likely be caribou there? 16 A There were a number of things that went into the 17 decision, and it was a very difficult task, I might 18 say, again, at this scale, because with my own 19 personal experience I would know, for instance, if 20 there are -- that I hadn't seen caribou here or here 21 or here, but knowing that the extent of where they 22 regularly occurred, knowing the -- it seemed like the 23 most likely controlling factor would be the vegetation 24 features, so I used that where there was any doubt. 25 Again, I would say that with this kind of an 26 exercise -- and I think probably everybody who has 27 ever mapped a distribution has had these problems -- 28 exactly where to put the boundary is not always that 29 clear because there are no sharp boundaries in nature 30 to -- and man likes to map sharp boundaries, likes to 31 have things completely under control; nature doesn't 32 like you to do that and doesn't enable you to do that 33 very easily. 34 These boundaries are consistent with the facts 35 that I have but cannot be construed to be the final 36 word, and I emphasize that earlier. I would move any 37 boundary gladly with any kind of additional 38 information that made that seem either necessary or 39 possible. 4 0 THE COURT: Would you excuse me just a moment. Sorry, thank 41 you. Would you excuse me one moment more, Mr. Willms, 42 please. 43 Well, did you assume, firstly, that species found 44 in one climatic zone would be found throughout the 45 zone, or did you assume that species found in one 46 vegetation area would be found throughout the 47 vegetation area, or did you assume both? 9517 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 THE WITNESS: It varies for each of the species. There are — 2 certainly it's judgmental for a lot of them if you 3 don't have specific data for each location. For 4 instance, for caribou, you are likely to find them in 5 any of these zones. They occur in many of the zones. 6 They occur more frequently in some than in others and 7 that's part of the -- part of the way that you can map 8 the common abundant versus just plain present. You 9 know that there is an occasional caribou in there, you 10 know that there is not really very good habitat, 11 generally speaking, for it, but they are there, so you 12 lay those as present. Again, I would emphasize that 13 very little for the four ungula species and for the 14 bears was actually my own. Most of this was lifted 15 directly from the provincial management plans for 16 those species which I felt was -- even though I had 17 some reservations about it, even when I was helping 18 put them together, I felt that that was probably the 19 best description that was available at this time. In 20 some cases more recent information enabled me to jog 21 boundaries one way or another, but for those six 22 species, basically what we see here is what you would 23 also see on a provincial species management plan. 24 THE COURT: Is it inaccurate for me to note that the common 25 versus abundant designation was determined by 26 extrapolation? 27 THE WITNESS: It's — well, not really extrapolation in any kind 28 of a true -- true sense of from densities. Excuse me, 29 just a minute. 30 THE COURT: Sorry, you — 31 THE WITNESS: We know that there are large herds in several 32 locations in this area. There aren't any large herds 33 in the area that's shown in green on this particular 34 map in the lower density area. So it was based on 35 known distributions of the biggest groups, some idea 36 of the extent of their ranges, and the certain 37 knowledge that we didn't know enough to map their 38 exact population boundaries so that's why you get a 39 large area coloured in rather than several smaller 40 areas which is what probably the actual distribution 41 is. 42 THE COURT: Then you are extrapolating from large densities? 43 THE WITNESS: Well, from areas of known large numbers, yeah. 44 THE COURT: You are using climatic and vegetation zones and 4 5 judgment? 46 THE WITNESS: And experience, yeah. 47 THE COURT: All right. 951? D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 THE WITNESS: That's right. 2 MR. GRANT: That's with respect to caribou, I believe. I just 3 wonder if you were referring to all? 4 THE WITNESS: Well, it would be applicable to most of the 5 species. For the caribou -- for the southern half of 6 the caribou map, we had the added detailed information 7 in the report that I had prepared earlier with Susan 8 Stevenson on the caribou-forestry interactions in that 9 portion of the province, so that enabled a refinement 10 of the previous provincial map that hadn't been 11 available before. But for most species there wasn't 12 even that kind of information. 13 It's -- it nevertheless is a finer -- the 14 boundaries are shown in a little bit more detail than 15 on previous more general maps such as in the Banfield 16 Mammals of Canada or Cowan and Guiguet's Mammals of 17 British Columbia. There they show much wider 18 boundaries. This is a little more refined but there 19 is need for a lot more systematic information. 20 The bit of information that's missing on all of 21 these is a systematic way of designating the areas 22 where the distribution stops. What you are generally 23 doing is connecting your -- the two areas that have 24 animals without knowing if there are animals in 25 between, but without any of the additional 26 information, assuming that there are animals in 27 between. To get that systematic information on 28 absence, you have to have surveys that systematically 29 cover the whole area and say "They are not here, they 30 are not here, they are not here." I was able to do 31 that, for instance, for the area up around -- to the 32 south-west of Telegraph Creek, because I had done some 33 work there for a mining company, the Golden Bear 34 Access Road project, and I had always felt that the 35 mountains in that area, as seen from a distance when I 36 was up on a mountain, looked like there ought to be 37 caribou there too, but the locals say there are not 38 and I just don't understand why and I don't know if I 39 believe it. But I spent a lot of time on the ground 40 and flying over the area and I was able to confirm 41 they are not there -- I don't know why -- but it looks 42 suitable. So that area I believe may have been on the 43 previous map but was taken out a little bit here. 44 That's the kind of thing, but it's an ongoing process 45 and this -- and of course the animals change their 46 distributions too, so -- 47 THE COURT: You are going to be some little time, are you, Mr. 9519 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 Willms? 2 MR. WILLMS: If I can finish up on this point before, if that's 3 all right, my lord? 4 THE COURT: Yes, all right. 5 MR. WILLMS: 6 Q Just on the word biogeoclimatic, that's biology, the 7 biology of the area; is that right, like the 8 vegetation? 9 A It's — that's right. 10 Q Okay. Geo is geography? 11 A Geology probably. Oh yeah, geo. 12 Q Probably geography? 13 A Yeah. 14 Q And climatic is -- 15 A Yeah, geography means place, yeah. 16 Q And climatic. And as you said in your Exhibit 784-24, 17 what you did with each species was you used the zones 18 extensively, assuming some species occurrence to 19 follow particular zones and elevations rather closely? 20 A That's right. 21 Q And the method that you've just described here was the 22 same method that you used for each of the nine 23 species? 24 A Basically. Again, for the six -- for the four 25 ungulates and for the bears, I first roughed out that 26 provincial distribution and then looked for any 27 variances that I might have had with information 28 since. I don't think that there was any for bears, 29 for instance. I think it's identical to what you 30 would find on a provincial species management plan for 31 those two species. There was a little bit of 32 embellishment for moose because of the extra 33 information that I had from some of the historical 34 sources. There was quite a bit for caribou because 35 that's the species I've been most involved with and 36 particularly since I stopped work with the ranch, I've 37 done a lot more work with the caribou than I did when 38 I worked for the ranch. Mountain goats, that's a good 39 species to use the biogeoclimatic zones because you 40 are looking at the Alpine area as -- except as I 41 indicated where you have these little local below 42 timber line occurrences. But it's combining all the 43 available information, essentially. 44 MR. WILLMS: I think, my lord, I would like — and I've spoken 45 to my friend about this, and I'm sure -- I hope there 46 wouldn't be any difficulty, because my friend does 47 want copies of these but I would like to mark these 9520 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 two as exhibits since they've been referred by the 2 witness, that is the underlying map and the overlay of 3 the caribou. 4 THE COURT: All right. 5 MR. GRANT: My lord, I would ask that — I have no problem with 6 the overlay right now. I would ask that the number be 7 reserved for the underlying map because this is a 8 map -- a draft prepared by Miss Haeussler, and in the 9 preparation of her evidence we will need that and I 10 don't really want that -- I just ask that we will -- 11 we can bring it -- have it available and return it to 12 the court. Part of the preparation, that's all. 13 THE COURT: All right. Well the underlying map will be the next 14 exhibit. 15 THE REGISTRAR: Be Exhibit 796. 16 17 (EXHIBIT 796 - Underlying Map) 18 19 THE COURT: That number will be reserved for that purpose and 20 the overlay will be 797, all right. 21 22 (EXHIBIT 797 - Overlay map of the Caribou) 23 24 MR. WILLMS: My lord, in fact, I have no problem with my friend, 25 subject to whatever your lordship may rule, with 26 marking it and letting my friend have it to prepare 27 Miss Haeussler. I think that might be most 28 appropriate. 29 MR. GRANT: Well, it's one or the other. I just don't want it 30 to be -- I want to be able to take it today. 31 THE COURT: Yes. You don't agree, Mr. Willms, do you, that 32 biology means vegetation? 33 THE WITNESS: Well, he was referring to it in that case, but 34 vegetation is one aspect of biology, yes. 35 THE COURT: Yes. Animals are another one? 36 THE WITNESS: Yes. But for the purposes of the — of that 37 mapping it is vegetation that they are talking about. 38 THE COURT: I see. 39 THE WITNESS: That was done by the Ministry of Forests and they 40 map the vegetation as affected by topography and by 41 climate. 42 THE COURT: If you are being more precise and if you wanted to 43 refer just to vegetation, what word would you use 44 rather than biology? 45 THE WITNESS: Botany. 4 6 THE COURT: Botany, yes. All right. 47 MR. GRANT: My lord, I just wonder if my friend can indicate how 9521 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 long he would be. As I indicated, I wanted to arrange 2 Dr. Hatler's schedule, and if my friend -- if he can 3 leave by 3:30 -- 4 MR. WILLMS: I don't think that will be possible, my lord. I 5 will try to finish Dr. Hatler this afternoon and your 6 lordship has already indicated, but as I told my 7 friend yesterday, assuming that I started at ten today 8 I didn't see any problem with Dr. Hatler, but I 9 started somewhat later than ten. 10 THE COURT: Yes. All right. Well, I think I'll adjourn until 11 quarter to two and I'll do my best to be back here. I 12 may be late but I'll try. So can we reconvene at 13 quarter to two. 14 THE REGISTRAR: Order in court. This court stands adjourned 15 until quarter to two. 16 17 (PROCEEDINGS ADJOURNED AT 12:30 p.m.) 18 19 I hereby certify the foregoing to be 20 a true and accurate transcript of the 21 proceedings herein transcribed to the 22 best of my skill and ability. 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 AT 2:50) 9522 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 2 THE REGISTRAR: Order in court. 3 THE COURT: Mr. Willms. 4 MR. WILLMS: Just trying to recall. It's Exhibit 358 is the 5 maps? 6 THE REGISTRAR: Yes, 358. 7 MR. WILLMS: 8 Q Dr. Hatler, you're at Exhibit 358-11, the caribou? 9 A Yes. 10 Q And you have some colour codes on that. Can you 11 explain the density of caribou to area that you're 12 depicting by common to abundant? 13 A You mean in terms of numbers? 14 Q In terms of numbers? 15 A No. That has been done I believe in the Provincial 16 species plan. They've attached numbers to them but 17 without any real strong basis for it, because those 18 entire areas haven't been surveyed, so they're 19 relative to each other. I used the terminology that 20 was used in the Provincial plans, but I don't -- I 21 don't attach any numerical significance to them and 22 wouldn't want to do so. 23 Q When you were preparing these maps, did you review the 24 B.C. Fish and Wildlife distribution map for caribou? 25 A The one that's in the Provincial species plan, yes. 26 Q And I'm showing you a wildlife distribution big game 27 series mapping. Did you refer -- and this is for 28 caribou. Did you refer to that in preparing your map 29 11? 30 A I would say that this is probably the base copy of the 31 coloured map that which appears in the species 32 management plans, it looks similar. The terminology 33 looks about the same. 34 Q And are you familiar with this particular series? 35 A Yes, I am. 36 MR. WILLMS: All right. My lord, I would like to mark that as 37 the next exhibit. 38 THE COURT: How should it be described, please? 39 MR. WILLMS: It's entitled "Wildlife Distribution Mapping, Big 40 Game Series". 41 THE COURT: "Wildlife Distribution" — 42 MR. WILLMS: "Mapping, Big Game Series", and then it's "Caribou" 43 underlined. 4 4 THE COURT: 7 98. 45 THE REGISTRAR: 798, my lord. This is your copy. 4 6 THE COURT: Thank you. 47 EXHIBIT 798 - Wildlife distribution Mapping, Big 9523 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 Game Series, Caribou 2 3 MR. WILLMS: 4 Q This particular -- did you take any part in the 5 preparation while you were employed by the provincial 6 government of this -- parts of this map? 7 A Yes. But not -- my part usually was to answer 8 questions put to me by Dan Blower, who was, I believe, 9 co-ordinating this mapping. He had questions about 10 "Do you know if there are any caribou out such and 11 such a place, do you think that they're abundant" and 12 so on, so that they were mostly subjective answers to 13 questions of that sort. And that's the way pretty 14 well all of the mapping was done. 15 Q What -- the main map here, the distribution and 16 relative abundance is on the right-hand side, the 17 letters N,F,M,P, and E. 18 A Um-hum. 19 Q Is that correct? 20 A That's right. 21 Q And so wherever you see a particular letter anywhere 22 on the map, the map is meant to depict that population 23 of caribou or that distribution of caribou in the 24 particular area that matches the code? 25 A That's right. 26 Q How does this particular map compare in terms of 27 relative abundance to map 11 that you've prepared? 28 A I believe that in mine I lumped the categories "Common 29 to Abundant" would include moderate and plentiful, and 30 a few would be present. 31 Q So that if you lump moderate to plentiful, that would 32 be a range of one caribou per ten square miles or 33 less? 34 A Well, if you agree with those numerical ratings, I 35 don't. I don't think there's any sound basis for 36 having a numerical rating for these, but it was sort 37 of done after the mapping was done. It's an attempt 38 with the information available to come up with some 39 numbers, but again, I know very well the kind of 40 information that went into the preparation of these 41 maps and numbers and densities don't really have 42 anything to do with it, because the density, the 43 number of animals per square mile will depend entirely 44 on where you draw the outside boundaries. If you draw 45 the boundaries right around a herd of a hundred, one 46 square mile, the density will be a hundred animals per 47 square miles. If you draw the boundaries out at ten 9524 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 miles, it will be ten animals per square miles. So 2 what I'm saying, there aren't uniform distribution of 3 animals, there are not enough surveys and censuses and 4 analyses of the in-between areas to know exactly what 5 the densities are. I don't have any problem with the 6 concept of more and less and so on, but -- 7 THE COURT: How; high, medium and low? 8 A That's right. But I felt that even high, medium and 9 low for most of these species wouldn't be possible 10 with the information given, again depending on where 11 you draw the boundary. If you draw right around 12 Spatsizi Park and you just want to include that area, 13 then it would be high, but if you include the whole 14 distribution, you've got some areas that don't get 15 much caribou use as well. 16 THE COURT: Do I read this right? Do I read this right, showing 17 the City of Vancouver being a high-density caribou 18 area? 19 A No. It's a no area. 20 MR. WILLMS: It's an N, my lord. 21 THE COURT: Where's the N? 22 MR. WILLMS: Under the 2: There's a big 2 — 23 A N, for not present. 24 MR. WILLMS: And then there's an N under the big 2. 25 THE COURT: All I see is H's around there. I'm looking at this 2 6 one. 27 MR. WILLMS: 28 Q Perhaps you can explain what the index on the 29 left-hand side means, Dr. Hatler? 30 A Yeah. What this is is the reliability index, and so 31 they are quite -- they have a high degree of 32 confidence that there are no caribou in the Vancouver 33 area, and -- 34 THE COURT: A bold statement for them to make. 35 MR. WILLMS: 3 6 Q And then if you -- 37 A And that's virtually -- there and along the coast is 38 the only areas that you will see that high rating. 39 Those were areas where it's pretty evident that there 40 are no caribou, therefore they have a high degree of 41 confidence in that assessment. 42 Q And you'll see that for part -- it appears that for 43 part of the map 11 area on reliability, the index for 44 the provincial map ranges between low and medium? 45 A Right. 46 Q All right. Is any of the work that you did in this 47 study, or the Spatsizi study, or Spatsizi -- you know 9525 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 what I mean? 2 A Mm-hmm. 3 Q Increase the reliability in any of these areas? 4 A The mapping is done at such at a much larger scale, 5 that's what I tried to explain a few minutes ago, that 6 still for the large area probably the reliability 7 hasn't been increased all that much, for the smaller 8 areas, yes. 9 Q How would you categorize the reliability on map 11 of 10 the distribution that you've set out? 11 A Probably moderate for the northern half and high for 12 the southern half, relative to the same ratings on 13 here. 14 THE COURT: What are these dark lines on this map? 15 A Those were the boundaries of those particular relative 16 abundance assessments -- oh, the dark lines? 17 THE COURT: Yes? 18 A Are the administrative regions of the province, so the 19 one in the upper left-hand corner with a 6 -- 2 0 THE COURT: Yeah? 21 A That would be the Skeena region which we've talked 22 about. 23 MR. WILLMS: 24 Q That was the region when you were employed as the 25 regional biologist, was that your region? 26 A That's correct. 27 Q The one noticeable difference between your map 11, or 28 at least in the claim area, is that there doesn't 29 appear to be -- right near Telkwa in map 11 and just 30 to the right and below Telkwa in map 11 you've shown 31 the abundance as being common to abundant, and then in 32 Exhibit 798 it's shown as few. Is that because of 33 your personal observation from living in the area? 34 A Most of the changes that were done in the southern 35 half of the map were done on the basis of the report 36 by Stevenson and Hatler 1985, which was a detailed 37 study of all this area. Those two areas that are 38 mapped there were mapped in that report as relatively 39 high density population focal points, focal areas, so 40 it was based on that work primarily. Still, I would 41 be interested in your reference to that point. 42 Q Well, it appears -- 43 A The reason why that would emerge as few is because, 44 again, as I had explained earlier, the boundaries are 45 so much larger, so that if you take a focal point of 46 caribou and then increased the amount of area that 47 you're referring to, you say that there are fewer 9526 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 caribou per square mile because you have a larger 2 area, not fewer animals. It depends on where you draw 3 your lines, and that's what makes it difficult. 4 MR. GRANT: Just before my friend finishes, I just want to 5 clarify with the witness, it refers to April '77. Is 6 that the date of, as far as you know, of when these -- 7 this map was prepared, in 1977? 8 A I guess that must be it, yes. 9 MR. GRANT: Yeah, okay. 10 MR. WILLMS: Yes. I thought that was self-evident, my lord, and 11 I apologize for not clarifying that. 12 THE COURT: Okay. 13 MR. WILLMS: 14 Q Do you know, or are you aware of, and I'm still on 15 caribou, my lord, but not on this map anymore, a Dr. 16 Bergerud, B-e-r-g-e-r-u-d, from the University of 17 Victoria. 18 A Yeah. He pronounces it Bergerud, and I know him very 19 well, yes. 20 Q You know that in 1978 Dr. Bergerud did a major status 21 assessment for caribou in British Columbia? 22 A Yes. His conclusions and mine have been in a constant 23 state of controversy for a number of years. 24 Q At the conclusion that has been in controversy is that 25 in this -- in that assessment -- and by the way, you 26 relied on that assessment, or you reviewed in 27 preparing your report? 28 A I cited it, yes. It's the focal document for caribou 2 9 management in B.C. If Tom Bergerud hadn't gotten in 30 and done that work probably people wouldn't have been 31 interested enough to do anything with the species, I 32 give him that. I was the one who got him involved. I 33 had known him in university. It's just that some of 34 his conclusions were not well supported, and I've 35 documented that in great detail in that Hatler and -- 36 Stevenson and Hatler report. 37 Q The conclusion, though, that Dr. Bergerud reached, was 38 that predation and hunting were the major cause for 39 population change in caribou? 40 A That's a simplified version, but yes. 41 Q And your conclusion, and I think that you mentioned 42 two things yesterday, one was the habitat change? 43 A Yes. 44 Q And the other, I think you mentioned possibly climate? 45 A I don't believe the climate has been that much of an 46 effect on caribou, I haven't suggested that in the 47 report. 9527 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 Q 2 3 A 4 5 6 7 8 9 10 11 12 13 14 15 16 Q 17 MR. GRANT: 18 19 A 20 21 22 23 24 25 26 27 28 29 30 THE COURT: 31 32 33 MR. WILLMS 34 THE COURT: 35 MR. WILLMS 36 THE COURT: 37 MR. WILLMS 38 THE COURT: 39 MR. WILLMS 40 THE COURT: 41 42 A 43 44 45 46 47 Sorry. I thought you suggested yesterday that as the climate got warmer maybe the caribou moved up? I just -- that isn't in the report anywhere. Somebody I think questioned that as a possibility, and I said maybe, but I don't subscribe to that in any -- it's a possibility that hasn't been ruled out. I think the climate is very important in some aspects of caribou biology, but not in the macro sense. I think it affects population dynamics, and I certainly subscribe to that, and my reports show that. My major disagreement with Dr. Bergerud, however, is not that I disagree completely with his conclusions, they may be correct, what I disagreed with is the evidence that he uses to support it. He hasn't adequately demonstrated his case, and -- If I can turn to that -- Just a moment, I just wanted to make sure -- I wasn't sure if the witness was finished? Well, I just was -- I guess I would like to say that this reflects back to what I had said earlier about science. You know, there's always new information that seems to be coming available and may change a conclusion, and I give you as an example back in about 1900 in the late 1800's a scientist by the name of J.J. Thompson got the Nobel Prize for proving that the electron is a particle, and then about 40 years later his son got the Nobel Prize for proving it's a wave, just different information, and so it's -- it's a dynamic situation. Mr. Willms, you said that this doctor's conclusions were that something and hunting were the major causes of -- : Predation. What is it? : Predation, P-r-e-d-a-t-i-o-n. Are the major causes of caribou what? : Loss. Loss? Thank you. : The population change. And you don't necessarily agree with that, but you think that what is more important? I am -- I think that from my own studies I have found climatic effects on the young calves being more important than predation, but I have also found that our assessment methods for caribou, and I've written a report on this, that part of the problem that was being observed in the mid '70's and which I called 952? D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 attention to and said "Look, we better get Bergerud in 2 here, he knows about caribou, he's the North American 3 expert", which he is, if you can judge that from the 4 number of publications involved, but we were counting 5 caribou at the wrong time of year and getting a biased 6 view, and I've demonstrated that very well in a recent 7 report, so that there were actually always more 8 caribou calves there than we were counting. We were 9 counting at a time when the females were not in the 10 areas that we were counting, when the females and 11 calves were not in the areas. It's hard to describe 12 this quickly, and I'm motivated to be quick today, but 13 the situation is not settled yet, but I have not been 14 happy with the evidence which supports Dr. Bergerud's 15 case, and that's what science is based on, is 16 evidence, not who a person is or, you know, what he 17 might -- what his opinion might be. Ultimately it's 18 got to be the evidence that's the foundation, and in 19 that -- in that thought I was well aware in preparing 20 this report and the maps and so forth that -- that 21 this wasn't going to be in isolation forever, and as 22 an independent consultant credibility is my major 23 necessity. I didn't want this to be my last job, so I 24 wasn't -- I wasn't cooking things here, I was 25 providing the best information possible, but quite 26 happy -- quite happy to have any kind of input that 27 would change -- well, distributional boundaries are 28 always ephemeral. They are in all publications except 29 in ones where there's exceeding detail over a small 30 area, but Bergerud and I still have our disagreement 31 on these things, and the argument is still ongoing and 32 the research is still ongoing. 33 Q And just turning to -- was your study in 1985 one of 34 the reasons why you don't accept Dr. Bergerud's 35 theory? 36 A Which? 37 Q You did a study in southern British Columbia? 38 A The Stevenson — 39 Q Yeah? 40 A That was where I first became aware of how easily he 41 interpreted some data, and in my own follow up, 42 looking at the data very closely and realizing that it 43 wasn't as simple as it appeared. Up until that time I 44 had never realized that I hadn't analyzed it to that 45 depth. 46 Q In your study in 1985 you referred to two types of 47 caribou, mountain caribou and northern caribou? 9529 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 A Um-hum. 2 Q Yes? 3 A Yes. 4 Q Those are two different ecotypes? 5 A That's what we called them, and that's largely 6 based -- we agreed with Bergerud's assessment on that 7 point? 8 Q Is there a difference in climate between northern 9 British Columbia and northwestern British Columbia and 10 southern British Columbia, your study area? 11 A There are -- that portion of southern British Columbia 12 which would be in region 3 and region 4, essentially 13 the Rockies and Monashee Mountains and some of that, 14 and the Caribou Mountains south of Prince George, 15 there you have the fairly deep snow country, not the 16 kind of open northern rolling plateau and open hills 17 that we have in the north. Those are the caribou 18 there that depend in the wintertime on arboreal 19 lichens, lichens that grow in the trees, and those are 20 the ones that at one time were actually called a 21 different sub-species, they're not now, and those are 22 the mountain caribou. The northern caribou are the 23 ones that feed in winter mostly off the ground, they 24 paw the ground and they eat vegetation off the ground, 25 ground lichens, and all sorts of grasses and sedges 26 and what not, but they don't use lichens off the trees 27 very much. In this study area all of the caribou 28 north of this boundary probably, which includes the 29 area of absence now, all of the ones to the north are 30 certainly what we call the northern caribou. 31 Q So if you look to the left on map 11, you would call 32 those the northern caribou? 33 A That's right. 34 Q And if you look to the right you would call those -- 35 what would you call the ones to the right? 36 A From recent evidence I think I would be inclined to 37 call those northern caribou as well. I don't think 38 that there are any mountain caribou in this study 39 area. 40 Q All right. And the caribou that you studied in 41 southern British Columbia was mountain caribou? 42 A No. It was both. 43 Q Well, can you turn to page 18 of Exhibit 795? 44 A 18? 45 Q 18. On page 18 you -- and I'm on the paragraph 46 starting at the very top of the page, down to where 47 you refer to Stevenson and Hatler? 9530 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 A Mm-hmm. 2 Q And you say: 3 4 "Referred to the arboreal-lichen-eating type 5 of the deep snow areas in the southeastern 6 portions of the province as 'mountain caribou', 7 and those that use primarily terrestrial 8 vegetation (including lichens), as 'northern 9 caribou'. The animals in the present study area 10 are all of the northern ecotype." 11 12 A Mm-hmm. 13 Q Now, maybe I'm just confused, but I thought you were 14 referring there to studying mountain caribou in your 15 '85 study and northern caribou here; is that wrong, am 16 I wrong? 17 A Yes. 18 Q All right. So you studied both? 19 A I studied both to the extent that it included this 20 area. At the time of that study it really wasn't 21 clear exactly where these fit. 22 MR. GRANT: You're indicating the study area to the right? 23 A The area to the right, so that would be in the south. 24 It wasn't clear because there hadn't been that much 25 work done, although my expectation, at least from the 26 experience with the Telkwa caribou, was that we 27 wouldn't see them as being arboreal lichen. And this 28 is a distinction on food habits, and therefore 29 probably -- well, it certainly is related to snow 30 cover, and I suspect that if the caribou in the north 31 couldn't dig up material from the ground they would 32 find a way to take it off the trees. They're 33 survivors, and that's -- they haven't read any books 34 and they don't have anything to rationalize. Their 35 job is living, and they work at it pretty well full 36 time, so that distinction is for convenience in 37 dealing with forestry interactions. There are a group 38 of caribou which we know always subsist year after 39 year through the winter on the arboreal lichens. 40 There have been recent studies now which confirm that 41 these tweedsmuir caribou are primarily also using 42 ground lichens, and therefore by that definition fit 43 in the northern ecotype, but I had already made that 44 statement here that that was the case, and that's -- 45 and these caribou were in that Stevenson and Hatler 46 study. 47 Q The ones to the right of Babine lake and the Bulkley 9531 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 River? 2 A That's right. Everything south of Highway 16. 3 Q Is there an artificial barrier through there -- or 4 sorry, a natural barrier, like a river, that runs in 5 that light shaded area? 6 A No. The first artificial barrier was the -- was the 7 waters of Ootsa Lake behind Kenney Dam. 8 Q Sorry. I changed it from artifical to -- are there 9 natural barriers that run through there, like for 10 example the Bulkley River, Babine Lake? 11 A By barrier, you mean they would exclude movement of 12 animals? 13 Q No. I mean like a physical break in the land? 14 A Of course the river is there, but it means nothing to 15 the caribou. 16 Q Well, what's stopping the caribou from getting across 17 this reservoir? 18 A That is a -- if you have never seen that reservoir, we 19 used to refer to that as a Social Credit tree farm. 20 They did not clear the lake -- the valley of timber 21 before they flooded it, and so when the water came up 22 all of the shore line is very thickly lined with 23 standing snags, and any animal that gets in the water 24 there gets hung up in all the debris and so forth that 25 was in front of it. That did happen with moose, it 2 6 was well documented. They didn't document it with 27 caribou probably because the caribou crossing was a 28 lot farther south -- or east. I always want to call 29 this way is south on the map here. But they've found 30 many moose that were hung up and drowning and dying in 31 about the mid 50's as a result of not being able to 32 get through the debris and not being able to follow 33 their normal migration paths. 34 Q And your hypothesis is that applies to the caribou as 35 well? 36 A I am suspicious because of the timing that that may 37 well have happened, but I don't have direct 38 information on it. 39 Q Now, in -- just on staying with map 11, you've listed 40 factors in the middle column combining to limit the 41 growth and the spread of caribou populations, and then 42 you list natural predation. Do you mean that's 43 predation by wolves and grizzly bears and wolverine? 44 A Whatever. 45 Q And then human harvest, hunting? 46 A Yes. 47 Q Habitat loss? 9532 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 A 2 Q 3 A 4 Q 5 6 A 7 Q 8 9 10 A 11 Q 12 13 14 15 16 17 A 18 Q 19 A 20 MR. WILLMS 21 THE REGIST 22 MR. WILLMS 23 MR. GRANT: 24 25 26 27 28 29 30 31 32 33 MR. WILLMS 34 35 36 37 MR. GRANT: 38 THE COURT: 39 40 MR. WILLMS 41 THE COURT: 42 43 44 45 46 MR. WILLMS 47 Right. And climatic effects? Yes. All right. When you listed that were you listing that in order of importance? No. Now, in 1987 you authored a report entitled "Perspectives On Inventory of Caribou in British Columbia"? That's right. And I've got the whole document, if you want to look at it, but I've just taken some extracts from it. Do you recognize the title page, and what is included here is the section on biological factors affecting inventory and the area assessments from pages 56 to 64, and then your conclusions at 69 and 70? Um-hum. You recognize those as being part of that report? Yes, I do. : Can that be the next tab in 784, my lord. RAR: It will be 784-25. : Tab 25. My lord, I take the position that if my friend wishes to use this report that he should put in the whole report. I don't mind him referring to these sections now, but my friend has done some editing, I have not -- I haven't had an opportunity to compare that to what's not edited, and it may reflect, particularly this report may refer to conclusion, this part is conclusions and recommendations, and I would ask that he have the whole report available for the exhibit. : My lord, I don't have it all copied, but if my friend wants the whole report marked I'll mark the whole report. I can make copies of it and mark it later. That's fine. All right. You're putting this in as part of the series, the 784 series, are you? : Yes. Is that -- does it qualify for the same treatment as the 784 series? I gather that 784 series were the documents that your friend furnished to you as part of their file or the file of the witnesses. Is this the same thing? : What I intended and maybe I wasn't clear, what I intended for the 784 series and whatever the next grey 9533 D.F. Hatler (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 binders would be, would be a collection of all of the Province's cross-examination of all of the plaintiff's experts, so that they would all be in one place. THE COURT: All right. So it's not just a collection of the documents that were furnished under the Phillips Barratt rule? MR. WILLMS: No. THE COURT: All right. You want this to be 784-25, do you? THE REGISTRAR: 25. MR. GRANT: I would ask of course that that of course would be reserved for the full report. THE COURT: Yes, all right. MR. WILLMS: And perhaps what I might do, if my friend wants to, I'll get a copy of the full report to him, and if he still thinks he wants it all marked that's fine. I don't think once he looks at it he will, but -- THE COURT: All right. EXHIBIT 784-25 - Report on Perspectives on Inventory of Caribou in British Columbia by David Hatler MR. WILLMS: Q But I have no problem with that. What -- I'm mostly interested to start with in page 60 figure 11, and on figure 11 what you have set out here, Dr. Hatler, is a comparison of some assessments of calf recruitment in caribou herds in British Columbia? A It's -- I wouldn't call -- well, yeah, that's fair enough, sure. Q And in there, and just so that we can focus what Dr. Bergerud concluded in his report, you will see you've got 1978a, figure 19 cited there, and he suggests an area of depressed recruitment in northwestern British Columbia, and that it's higher in south, central and northeastern B.C., where wolves are less common. Now, I'm not saying those are your conclusions, you're just setting out what Dr. Bergerud concluded, correct? A Correct. Q And then when you were discussing this, you said, and this is in your conclusions at page 69, first of all you discuss at the top that caribou are mobile and wide-ranging, in the first sentence, and then you discuss the telemetry studies, and those were studies you did, weren't they? A That's correct. Q The telemetry studies? And then you say this: 9534 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 2 "The overall conclusion is that caribou inventory 3 in the province has produced unsatisfactory data 4 since it commenced in the 1970's." 5 6 Now, that's your conclusion for the whole province, 7 isn't it? 8 A That's -- that's correct, although there haven't been 9 that many areas where the inventory has been done, but 10 go ahead. 11 Q But all that I'm suggesting to you is that you have a 12 theory about the caribou, you know Dr. Bergerud has a 13 theory about the caribou, and there just isn't enough 14 data to pick one or the other yet? 15 A For the whole area, no, but the best local information 16 and the most revealing local information is mine. 17 Q All right. Are you referring to the telemetry 18 studies? 19 A That's right. 20 Q But if your telemetry studies found that the estimates 21 of caribou population in that area were pessimistic -- 22 A That's right. 23 Q Presumably they would always have been pessimistic? 24 A If -- if done in that season, but pessimistic in the 25 sense that they would have given poorer results, they 26 would have shown lower calf ratios than actually 27 existed, and my point is that if, for instance, you 28 arbitrarily say that if calf ratios are lower than ten 29 percent we're going to start shooting wolves from 30 helicopters, as an example, and you go out and measure 31 and by an October count and find that you come up with 32 a number of eight percent, when in fact if you did 33 that same count in November you would find out it was 34 15 percent, you would still shoot the wolves from the 35 helicopter, even though it's higher than what you 36 said. I showed quite clearly and I had statistical 37 significance to that effect that there was a bias by 38 doing that October count, and I also had, as a result 39 of having these animals radio collared, the ability to 40 understand why some of these animals weren't being 41 counted, because they weren't in the count areas. The 42 animals least likely to be in the count areas were the 43 females with the small calves, which were the very 44 ones we wanted to count. 45 Q But if they were always the least likely to be there, 46 I'm suggesting that -- 47 A It varies from year to year. 9535 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 Q But if the count is taken at the same time and in the 2 same incorrect manner each year, year to year -- 3 A Um-hum. 4 Q And there is a drop year to year -- 5 A Yes. 6 Q All your data shows is that the count was pessimistic 7 all the time? 8 A Not necessarily. Again, an early snow fall could move 9 a bunch of animals to the November area in October, so 10 then you would get a higher count, but that -- there 11 were no previous data and there are no really high 12 data during that time period, except in a few years 13 when there was very very good calf survival because it 14 was a very very warm spring. You could have two 15 different years, and yet you have to read both of the 16 reports to get all this, and I can't begin to touch on 17 it here. That was why I didn't in this report. It's 18 a can of worms, and I didn't feel that this was the 19 place to get into all of the controversy. I have one 20 sentence that says that, that we disagree on it and 21 therefore it can't all be covered here. And why you 22 called attention to that map, I think -- or that 23 figure, I think that that's probably the best way to 24 explain it here. 25 Q You mean from the map on the next page? 26 A No. This figure on page 61 of the handout that you 27 gave me there. 28 Q Right. It follows figure 11? 29 A Figure 11 text is on page 60 and then the actual 30 figure is on page 61. And what I want you to 31 understand here is that this figure has been used in 32 three publications by Dr. Bergerud, and he has used it 33 in every case as shown here with slight refinements, 34 and what in one case he's shown it as wolves and not 35 food and another case he's shown it as wolves and not 36 forestry, but all I have changed on this figure -- 37 it's exactly as he has depicted it, the only thing I 38 have done is added the symbols around each of the 39 numbers, and so that gives the season of count. The 40 little circles are -- were counts during pre-rut or 41 rut, usually in October, September or October, but the 42 triangles were counts that were in the summer, the 43 hexigons were in winter, and so on, so -- and the 44 summer counts -- you wouldn't expect winter counts to 45 be higher than fall counts, you would expect some loss 46 of calves. This is the calf percentage that we're 47 talking about here. I find it remarkable that the 9536 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 wolves known to be common in areas that are counted in 2 the fall, but they don't know to be common in the 3 other areas, there aren't any wolf counts to go with 4 this. The assessment of the wolf alignments came 5 after the tabulation of these calf counts. The wolf 6 numbers are assumptions, particularly as they relate 7 to a local caribou population. Again, Bergerud may be 8 right, but he has not demonstrated it, and this is all 9 that I'm saying. 10 Q And I -- if I can get back to what I suggested before 11 then, that there is just inadequate data to say that 12 he's right; is that what you're saying? 13 A That's right. 14 Q But there's also inadequate data to say that he's 15 wrong? 16 A That's right. 17 Q Perhaps you could turn to the mountain goat map 12, 18 please. When you prepared map 12 did you use the 19 Wildlife Distribution Mapping Big Game Series done in 20 1977 for the mountain goat? 21 A Assuming that that was the version that was coloured 22 and appeared in the subsequent species management 23 plan, yes. I assume that it was and it wasn't 24 changed. 25 Q Perhaps you can look at this and tell me whether or 26 not you recognize that? 27 A No. This shows a more fragmented distribution than 28 was shown in the species management plan. It shows 29 more in-between areas, it's probably more similar to 30 what I did in some areas. 31 Q You think what you've looked at is something that is 32 an updated version of this? 33 A No. I think that what I've looked at is a -- the 34 scale difference was such that they couldn't show 35 these tiny areas so that they -- what they did was 36 take all of these "fews" and connected the outer 37 boundaries, for instance. That's what I did, and 38 that's what one does depending on the scale. 39 Q So you don't recognize this document then as something 40 you used or relied on? 41 A I've explained that I used the ones out of the species 42 management plans, which were then supposed to depict 43 the distribution, and I didn't use the large scales at 44 all. 45 Q Do you have a numerical count for map 12 for "common", 46 what you mean by "common" and what you mean by 47 "present" in terms of -- 9537 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 A 2 3 4 5 6 7 Q 8 9 A 10 11 Q 12 13 A 14 15 16 MR. GRANT 17 18 A 19 20 MR. GRANT 21 22 THE COURT 23 A 24 MR. WILLM 25 Q 26 27 28 A 29 30 31 32 33 34 35 36 Q 37 38 A 39 Q 40 41 42 43 44 A 45 46 47 No. Again, it's based on a -- the same kind of lumping from the government source using the category "few" probably to indicate my representation of "present", and anything above "few" to indicate "common". And were there only the three on that map, I didn't look at that? Yeah. The other question I had is did you keep copies of the government maps that you used? They're in the species management plans, and I do have those, yes. And those were part of the facts upon which you based your report? That's right. They're referred to in the -- they're in that large -- in the list and in the bibleography, yes . : They're all listed in the bibliography to Exhibit 795-A, my lord? Probably under M.O.E. or something like that. Is there -- : Under M.O.E., and they go on, there's seven of them that are referred to. : What does M.O.E. mean? Ministry of Environment. All right. That -- are those maps -- or are those descriptions a series of maps, is that what they are? I'm on page 87 of Exhibit 795? Those are species management plans, and they include within each of them there is a distribution map for that species with these abundance codes, which you've showed there. I have -- I'm not certain that they showed three abundance codes on those maps, but they -- those are all dated 1979 or 1980, whereas the draft maps that you're showing are 1977, so that they're more recent than the ones that I used. And each one of these, when you say 14 pages, in each one is a map? That -- one of the pages is a map, yes. Did you, other than the -- I think you referred to some observations that you made personally about mountain goat. Did you do any original research respecting the range and distribution of mountain goat in the map 12 area? I have done some of the inventory, quite a bit of it in fact in that area. There was one series of flights done in July of sometime in the '70's, I don't remember, probably about 1973, it was an attempt for 953? D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 the first time to get a first look at goat 2 distribution, and I have referred to that enough in 3 the past so that I knew roughly what the distribution 4 was from that, but it was a one-shot survey passing 5 over each area once, and gave only minimal results. 6 Q Now, on map 11 in the last paragraph you say -- oh, 7 sorry, map 12? 8 A Map 12. 9 MR. GRANT: Are you referring to the summary? 10 MR. WILLMS: 11 Q Midway down the last paragraph under the summary on 12 the right-hand side you say: 13 14 "As with caribou at least a few local groups in the 15 southern half of the map area are believed to have 16 been negatively affected by recent human 17 pressures." 18 19 Do you include hunting in that? 2 0 A Yes, I do. 21 Q And I think you said -- 22 A That's the primary effect for goats. 23 Q Primary effect? You said yesterday that the large -- 24 the largest group of mountain goats that you had seen 25 was approximately 90? 26 A Yes. 27 Q Would taking 42 mountain goats from one group of 28 mountain goats be a factor in the management or 29 conservation of that local goat population? 30 A I assume it would be, yes. 31 MR. WILLMS: And in your opinion would the killing of 42 32 mountain goats in any particular area be a good 33 wildlife management practise? 34 MR. GRANT: My lord, I would ask that my friend — I think it 35 would depend upon the area and I -- I know the 36 hypothesis to which my friend is referring, and I 37 think he should complete the hypothesis as to the area 38 in which he is referring to give the witness an 39 opportunity to comment. 40 MR. WILLMS: 41 Q Is there any area within the black outline here on map 42 12 where killing 42 mountain goats in a particular 43 local area would be a good wildlife management 44 practise? 45 A Any particular area? 46 Q Anywhere, is there anywhere in there where there are 47 so many goats that killing 42 would be a good idea? 9539 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 A In one local population? 2 Q In one local population? 3 A No, it wouldn't. 4 Q Would killing 14 mountain goats from a herd of 36 5 goats have effect on the management or conservation of 6 that herd? 7 A Long term? 8 Q Short term or long term? 9 A Say it again, please? 10 Q Would killing 14 mountain goats from a herd of 36 have 11 any effect on the management or conservation of that 12 herd? 13 A Effect management or conservation? 14 Q No. Any effect on the management or conservation of 15 that herd? 16 A I don't think you're wording it quite right, but what 17 you're saying is would that hurt the herd? 18 Q Would that hurt the herd? 19 A Is that right? It depends a little bit on the sex and 20 age of that kill, but it's not something that it 21 couldn't recover from, but it wouldn't be something it 22 could withstand year after year. 23 Q Is it true that male goats are relatively solitary or 24 in small groups, maybe two to five, most of the year? 25 A Yes. 26 Q So that if you had maybe 36 goats together, would that 27 indicate that it was likely a nursery band of goats, 28 that is made up of females? 29 A That would be quite likely, but that isn't the way you 30 phrased the question. You didn't say -- you said the 31 population was 36 that they were taking it from, you 32 didn't say it was from 36 in one place. 33 Q No. I'm getting to a different question now. 34 A Okay. 35 Q But getting back to it, and by "nursery band", I mean 36 breeding age females and sub-adults, male or female, 37 and young? 38 A Yes. 39 Q If there were 36, would that indicate it was likely a 40 nursery band? 41 A Yes, it would. 42 Q And does that change your -- what you said a minute 43 ago if you assume that the 36 is a nursery band? 44 A If you -- well again, you didn't specify before that 45 it was a band, but if you were removing that number of 46 animals from that nursery band it would not be the 47 thing that a manager would want to strive for, that's 9540 D.F. Hatler (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 A A A Q A for sure, but again, it wouldn't be -- it wouldn't -- it wouldn't end the herd in that one year. It's something that you couldn't sustain obviously. And I think -- and you've -- local populations of mountain goats which are subject to large losses relative to the population are slow to recover from that, aren't they? They seem to be, yes. There's been experience with that in southeastern B.C. Now, the next map is moose, map 13. And I take it once again your notation on density is a relative notation, it doesn't relate to numbers per area? Only to the -- it relates probably to the same extent that the provincial maps do, but it's just that I prefer not to use those because they're quasi-fictional. Are these the maps that you used to make map 13, the ones you're calling quasi-fictional? The numbers. The numbers? Not the maps. The maps are based on relative abundance, but trying to attach a number density to a very large area that has not been surveyed is to me not wise, and I advised against it while we were preparing those maps. What that leads to is later on somebody saying "Oh, okay if there is this many moose there then what has happened to it all", after somebody actually does a survey. So I was never in favour of trying to attach numbers if we had no numbers, and that was commonly done in the preparation of those provincial maps. Well, what was the point, doctor, of making your own maps? Why not just use the other ones and that explanation? I essentially did, except for the three species that are not mapped: The marmot, the beaver and the hare. Yeah? But I essentially did use those maps, but what I did was to change the distributions where I had more information. I see, all right. But I used the provincial distribution as the base to work from. WILLMS: Q Is it one of your hypotheses that a factor affecting moose numbers is networks of roads increasing the accessibility for hunting? THE COURT A THE COURT A THE COURT A MR. 9541 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 A Yes. 2 Q On map 13 the areas that appear to be common appear to 3 follow the roads, am I misreading the map, and it 4 seems like there's more around the roads than where 5 there are no roads? 6 A Well, I would look at it a different way. I would say 7 the roads are encroaching on good moose habitat, but 8 you know, that all depends on your point of view. The 9 high -- the density may be relatively high, that's not 10 to say they wouldn't be higher, and in most cases the 11 roads that are shown here are the highways where there 12 are more restrictions, and also they're in the 13 ultimate valley bottoms where the moose are present in 14 highest densities primarily during the time of year 15 when they're not hunted. The -- the worst roads for 16 the problem that I'm talking about are networks of 17 logging and mining roads which go up slope where the 18 animals are during the hunting season, and in concert 19 with the opening up of the habitat opening up so that 20 the animals are more visible it can be fairly 21 devastating, and it's pretty evident in many areas. 22 Q You hunt moose in the Bulkley Valley regularly? 23 A Yes, I do. I would have been there this morning. 24 Q To your observation has the moose population increased 25 since 1982? 26 A Yes, it has. 27 MR. GRANT: Is my friend saying in the Bulkley Valley? 28 MR. WILLMS: Yes. I'm sticking with the Bulkley Valley. 29 THE COURT: And since 1982? 30 A I would say that it probably has increased -- as I 31 indicated the other day, it certainly hasn't 32 decreased, it probably has increased. There hasn't 33 been a good opportunity to adequately document that 34 because there have been very very good winters to 35 enhance that survival, and the animals in those good 36 winters have not been concentrated to where they could 37 easily be counted, but I would guess if we were able 38 to do a count in a bad winter soon you would find that 39 they had increased over that time period. 40 THE COURT: You did say 1982? 41 A Well — 42 THE COURT: Or agreed with counsel? 43 A Well, I would say that since the early '80's, yes. 44 THE COURT: Was it 1982? 45 MR. WILLMS: 46 Q I said 1982. 47 A 1982 is what he said, and it's likely that they have 9542 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 increased since then, because they have been -- the 2 last hard winter was 1981, '82. 3 Q And in addition, limited entry hunting restrictions 4 were placed on the area in 1981? 5 A Yes. Those were totally unnecessary and to the extent 6 that they were undertaken, and that's a long story 7 too, and I begin to understand some of your questions 8 now, but the -- 9 Q Well, I'm going to suggest that -- 10 A I would not -- you would not be able, in any kind of a 11 rational assessment, be able to separate out the 12 effect of the easy winters and the hunting regulations 13 in the establishment of any increases. 14 Q Could be the easy winters, is that what you're saying? 15 A I'm saying that the easy winters definitely had a 16 major effect. There was very little hunting of female 17 moose prior to the establishment of the limited entry. 18 The limited entry was set on bulls, and it was set on 19 bulls on the assumption that there was an inadequate 20 productivity among the female moose, but that was not 21 demonstrated, and in fact, the only study that was 22 done on that subject was done by me the previous year, 23 the year before I ceased being the regional wildlife 24 biologist. At that time the Prince George biologist 25 and I got together, we had a small limited entry 26 season on female moose in the valley at that time, we 27 endeavoured to determine whether or not there was a 28 productivity problem by obtaining from the hunters the 29 reproductive tracks of those moose. I had done that 30 kind of work in Alaska and I knew how to do it, the 31 Prince George biologist didn't, so we did it together. 32 He was the one concerned in his area because he had 33 records of moose being born too late in the year of 34 animals being bred late. A moose if she misses her -- 35 getting impregnated on the first heat will come into 36 heat again and the young are born too late in the 37 spring, they're too small in the winter and not 38 surviving, and so on. He was getting the feeling that 39 this was going on. The Prince George area is very 40 flat, heavily logged, lots of logging areas, so at 41 that time we got together, we did our study, pretty 42 well confirmed there was a problem in Prince George, 43 it showed that there was not in the Skeena region. 44 There was a high pregnancy rate, the fetuses were all 45 about the same size, we didn't have the same problem. 46 The limited entry season was set anyway in the 47 Smithers area by an inexperienced biologist under the 9543 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 tutelage of an inexperienced regional director and was 2 never -- was never changed significantly thereafter, 3 but it's -- 4 MR. WILLMS: Do you -- I'm showing you the minutes of a 5 Gitksan-Carrier Tribal Council meeting held at Glen 6 Vowell Community Hall on Thursday November 15th, 1975, 7 and you'll see -- 8 MR. GRANT: I just wonder if this is a listed document of my 9 friend's? 10 MR. WILLMS: It's a listed document of the Attorney General of 11 Canada. It's number 12255. 12 MR. GRANT: 12255, thank you. 13 MR. WILLMS: 14 Q And it's an extract, my lord. I haven't put in -- I 15 just put in the part where they've referred to 16 somebody named, I think it's the witness, Dave Hatler, 17 but if you look on page 6, there's a reference to Les 18 Cox, Dave Hatler, wildlife biology Skeena region. Do 19 you recall attending a meeting of the Gitksan-Carrier 20 Tribal Council? 21 A I attended meetings of that sort occasionally 22 throughout my tenure as a wildlife biologist, yeah. I 23 don't remember -- well, I guess -- I remember driving 24 out to Glen Vowell but I don't remember much other 25 than that. 26 Q Did you get -- do you remember getting or your office 27 getting minutes of the meeting? 28 A No, I don't. 29 Q If you turn to page 7, and perhaps since you didn't 30 get this document you might just read the first four 31 or five paragraphs under the name Dave Hatler, and 32 then I'll ask you whether it's refreshed your memory 33 as to the meeting? 34 A I have some trouble reading it in that it's somebody 35 else's assessment of things I said, but I don't quite 36 follow what it is they think I said, so I'm having 37 some trouble with it. I would prefer if you just put 38 a question to me specifically about a specific point 39 so that I can try to figure out what it's about. 40 Q No. And if you've read all that I do have a specific 41 question. 42 A I've skimmed it quickly, yes. 43 Q Do you recall, either at this particular meeting or at 44 any meeting, suggesting that you had to make hunting 45 restrictions as time went by in this area? 46 A That was a regular part of my job. 47 Q All right. And in particular, do you remember 9544 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 suggesting hunting restrictions for moose? 2 A Hunting restrictions at what time of year and in what 3 area? One of the things I was involved in at that 4 time was trying to get a handle on and a little more 5 control over the hunting of moose during the winter by 6 subsistence permits, and that was one that I said 7 definitely it had to be put under a little more 8 control from my point of view at that time because it 9 was not -- it was in an area and at a time when the 10 moose are more concentrated, as I've explained 11 earlier. I also was prepared to do whatever 12 restrictions appeared necessary from the information 13 available during the regular hunting season as well, 14 and did make some of those. 15 Q But you were concerned about the number of people 16 coming into the area to hunt species such as moose? 17 A I was concerned about it? 18 Q Yes? 19 A I think maybe it was a response to a question. I was 20 commonly asked in these meetings why can't the 21 regulations be made so that the local people get a 22 special break, and I may have been responding to a 23 question like that. I saw something here which 24 suggested that kind of question. 25 Q Okay. Can you just tell us what the limited entry 26 hunting restrictions are? You've said it's limited to 27 male? 28 A The limited entry hunting restrictions now? 29 Q No. The ones brought in in 1981? 30 A As I recall, the limited entry was -- first of all, 31 the previous limited entry season on cow moose was 32 stopped, the new limited entry, which means a permit 33 hunt, was for all bulls for the time period from the 34 usual hunting -- start of the hunting season, which 35 was September 15th until sometime around the middle of 36 October, so there was about a month closure during -- 37 during that time period, to anyone other than those 38 with a permit. And during the first year they 39 actually did the same thing that was done in Prince 40 George where the problem actually was identified. 41 They left it open for young bulls, two-point antlers 42 or smaller. That was also withdrawn the following 43 year, so that suddenly the restrictions were greater 44 in the regions than in the Prince George -- in region 45 6 than in the Prince George area, even though the same 46 problems -- the problem hadn't been identified in the 47 Skeena region. That's the way it still stands, there 9545 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 is that same season. 2 MR. WILLMS: I just have a few questions and then I'll finish 3 moose. 4 THE COURT: All right. 5 MR. GRANT: Yes, my lord, I just wanted to get some sense from 6 my friend. I discussed with the witness, there are 7 some problems in terms of his own children who are 8 expecting to -- who are 13 year old, I believe, is 9 expecting -- he's arranging to pick her up and 10 everything else up north, and if my friend is going to 11 be going to four o'clock or if he needs -- I don't 12 know how much more time he needs. I'm concerned and 13 I'm also concerned about bringing this witness back 14 down on Monday morning. I don't know what is -- I'm 15 in my friend's hands to a certain degree as to his 16 time. I understood from Miss Koenigsberg she will not 17 be cross-examining. 18 THE COURT: How long are you going to be, Mr. Willms? 19 MR. WILLMS: Well, I think that I will be at least until four, 20 my lord, at least. 21 THE COURT 22 MR. GRANT 2 3 THE COURT That misses the plane, doesn't it? Yes. That would certainly miss the plane. And then we have the option of carrying on now and 24 missing the plane and finishing and having the witness 25 come back on Monday. 26 MR. GRANT: Yes. That's the reality which we have. 27 THE COURT: What would you prefer? We have a light week next 28 week, as I gather. 29 MR. GRANT: A light week, yes, yeah. I think there's some 30 difficulties with it. If I can just for a moment, my 31 lord -- 32 THE COURT: Mr. Grant, we don't have to have the witness back on 33 Monday, unless -- 34 MR. GRANT: Well, the other option of course is to complete the 35 witness -- would be to complete the witness on the 36 first day in Smithers. 37 THE COURT 3 8 MR. GRANT 3 9 THE COURT 4 0 MR. GRANT Well, we're pretty tight there already. Yeah, we are, and -- That would mean taking all these maps and -- Well, the map atlas I anticipate might be up there 41 in any event for some of the other witnesses, at least 42 a copy of it. Possibly the witness -- over the break 43 the witness can try to make some arrangements. I 44 think at least we'll try and complete today. 45 THE COURT: All right. If it meant just not taking a break I 46 would be glad to carry on, but -- 47 MR. GRANT: Well, if that's — 9546 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 THE COURT: But if you think it would be useful to have some 2 time to make your arrangements, well, we'll take a 3 break. What would you like to do? 4 MR. GRANT: Maybe we should not, aside from changing the 5 reporter, we should not take a break, and then because 6 we'll make arrangements for transport for him, if he's 7 finished by quarter to four. 8 THE COURT: Can you finish by quarter to four, Mr. Willms? 9 MR. WILLMS: I think I can. As maybe everyone's aware now, part 10 of my cross-examination, including mapping -- marking 11 those documents has gone, and that will shorten it. 12 THE COURT: I'm happy. Shall we carry on for now? 13 MR. WILLMS: Yes. That's fine with me, my lord. 14 THE COURT: All right. 15 MR. WILLMS: 16 Q Can you turn to page 22 of your report, this is 17 Exhibit 795, and it's still just finishing up on the 18 moose. And here, this is the section where you were 19 dealing with the history and the records, and you 20 discuss in that first full paragraph on the page notes 21 of where moose were, and at the very last line you say 22 this: "At about the same time" -- that's the last of 23 the first paragraph: 24 25 "French (1921) wrote that in northern B.C. the 26 caribou had only a few years previously been 27 replaced by moose as the number one species in the 28 economic life of the Indian." 29 30 Does that statement accord with your observations from 31 living in the area today? 32 A I don't think I understand the question. 33 Q Well, from your observation -- you live up in the 34 north? 35 A Yes. 36 Q All right. You've observed the people who live there, 37 including the Indians who lived near where you live? 38 A Yes. 39 Q All right. Have you observed that moose has replaced 40 caribou as the number 1 species in their economic 41 life? 42 A You mean right now? 43 Q Right now? 44 A I haven't observed any use of caribou because there 45 wasn't that option, I guess, but no, I don't think I'm 46 really qualified to answer that question. I was 47 citing this man's observation in 1921 in relation to 9547 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 the presence of caribou and the disappearance of 2 caribou in that part of central B.C., but I don't know 3 how to attach that to the present at all. 4 Q When was the Kenney Dam -- when was the Nechako 5 Reservoir flooded? 6 A I believe that the -- that it came up to full flood in 7 the mid 50's, around '54 or '55. 8 Q Now, just on page 34 of your report you're talking in 9 the paragraph, and this is about moose again and their 10 response to changes in forest cover, and then you say 11 at the very last two lines: 12 13 "The permanent habitats are important in their 14 support of moose populations between the transient 15 habitats, both spatially and temporally, but the 16 really conspicuous increases and maintenance 17 of large numbers generally occurs in the latter." 18 19 And by "latter", you mean in the transient moose 20 habitats? 21 A That's right. 22 MR. WILLMS: All right. 23 2 4 (SHORT BREAK TAKEN) 25 26 I hereby certify the foregoing to be 27 a true and accurate transcript of the 28 proceedings herein transcribed to the 29 best of my skill and ability 30 31 32 33 34 Graham D. Parker 35 Official Reporter 36 United Reporting Service Ltd. 37 38 39 40 41 42 43 44 45 46 47 954? D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 (PROCEEDINGS RESUMED) 2 3 MR. WILLMS: 4 Q At one of those transient areas -- and the one you are 5 discussing here is a burn area in this paragraph? 6 A That's right. 7 Q And logging creates a transient area as well? 8 A It does in some cases but not to the same extent, and 9 it also depends on area. But as I explained, I think, 10 yesterday, there seems to be something, presumably the 11 amount of patches of cover that are left here and 12 there, you know, burn, which provide for cover for 13 moose which you don't have in the clear-cut and you 14 just don't get the response with the logging. 15 Q Now in terms of burns and this cover, are you talking 16 about the burns that are suppressed or are you talking 17 about the burns that just go wild over large areas? 18 A I think that both are true. A small burn will be good 19 provided that the surrounding habitat is appropriate. 20 But some of the very, very large burns are also very 21 good. 22 Q The very, very large burns? 23 A They're never as complete as the chain saw. There is 24 always a little dip somewhere with very moist 25 conditions that remains behind and there are always 26 patches of conifer that are remaining in the old 27 burns. Whereas the clear-cuts are moonscape. 28 Q All right. And when you are referring to clear-cuts 29 and unsuppressed forest fires in the north, can you -- 30 do you have an indication of the difference in the 31 size? In an unsuppressed forest fire -- are you aware 32 of unsuppressed forest fires that have exceeded the 33 area of a clear-cut? 34 A Oh, yes. 35 Q The important aspect to the moose for cover is a place 36 for protection; is that what the cover is for? 37 A I'm not sure. That's what it would seem but it may -- 38 there may also be some effect -- well, you are 39 speaking protection from predators or something? 40 Q Well — 41 A It seems to be some manner of protection, whether from 42 predators or from just feeling secure, or in some 43 cases there may be, and often is in fact, a need for 44 what we call thermal cover. And where that effect is 45 most needed is in the wintertime not in the summer 46 time, of course, although shade is sometimes badly 47 needed by these animals in the summer time too, they 9549 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 really heat up. So thermal cover is really important 2 as well and you get that throughout most of the moose 3 range by timber. 4 Q Is the critical factor the size of the area where the 5 cover has been removed? 6 A Primarily, yes. 7 Q What colour is a calving moose? 8 A What colour is a calving moose or a calf moose? 9 Q No, a moose that's calving, the female, what colour? 10 A Generally light brown. 11 Q Light brown? 12 A But at that time of year, you'll often have 13 variations. It depends on a number of things, the 14 stage of the moult certainly being one. Usually the 15 animals that have young are the last moulting and 16 that's true of all the species. They do their 17 moulting later, after they've had their young; they 18 put their energy into having their young. 19 Q So they would maintain their usual colour longer than 20 the non-calving moose; is that correct? 21 A They tend to get darker when they moult. They get the 22 new unbleached hair and it's darker when they moult, 23 yes. Age of the animal also makes quite a difference. 24 A young animal would be darker than an old one. 25 Q Page 43 of your report, this is the mule deer, if you 26 could just turn to that. What -- under ecology after 27 you discussed the Coastal Rain Forest, the Northern 28 Mountain and Canadian Boreal Forest, you say this: 29 30 "In all, the animal does best in open forest 31 conditions promoting secondary successional 32 vegetation, thus it is similar ecologically to 33 moose." 34 35 Are you referring there to the clearing of the 36 coniferous cover and the promotion of this secondary 37 growth; is that what you are referring to? 38 A No. Open forest means cover that's not dense. So 39 that parkland type habitat where you have trees here 40 and there but not very tight closed canopy which 41 excludes sunlight and therefore decreases the amount 42 of foliage on the forest floor. Again, what a fire 43 often does is opens up the forest without completely 44 removing it, and it's that open characteristic that 45 allows the growth of the forage plants. 46 Q Okay. And once again, it's the size of the openness 47 that may determine whether it's beneficial or not 9550 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 beneficial? 2 A Yeah. But please distinguish here between open forest 3 and no forest. I'm talking about still having trees. 4 Q All right. After a burn? 5 A At any time. What I'm talking about in this sentence 6 is open forest as being the best, which means not 7 dense in terms of the conifers. The burn is a -- is 8 another category. That, of course, is very open for a 9 period of time too, but as I explained, often and 10 almost always, in fact, with patches of cover through- 11 out, so the animal is never very far from some kind of 12 cover. 13 Q What is a yellow-belly marmot? 14 A A yellow-bellied marmot -- sorry about this -- is 15 marmota flaviventris. 16 MR. WILLMS: Maybe you can spell that. 17 THE COURT: Are you moving to marmots now? 18 MR. WILLMS: Yes, I am, my lord, but I'm not going to — 19 A It's essentially a lowland species of marmots, it's a 20 western marmot. There are three species of marmot -- 21 there are three species of marmot -- well, not 22 including the Vancouver Island marmot which is 23 separate. But on the mainland North America there is 24 the black marmot or the species which you know as 25 woodchuck or groundhog, and then there is the yellow- 26 bellied marmot which occurs in B.C.. It occurs 27 primarily in the Cariboo and probably over into the 28 Kootneys -- I'm not even sure of its full distribution 29 in the province -- and it's common in places like 30 Montana and Colorado. It's a dryland, rock, rock and 31 sagebrush marmot. 32 Q Are you -- are there any that are in the -- 33 A No. 34 Q -- map area? 35 A No. 36 Q If I might just have a moment, my lord. 37 Can you turn to map 19, the grizzly bear. 38 There -- did you take that photograph in the upper 39 right-hand corner? 40 A Yes, I did. 41 Q The colour of the bear that appears to be sort of 42 silvery at the top; is that right? 43 A Well, they are light coloured phase grizzly bears, 44 yes. 45 Q And are -- is that typical or are there many different 46 colours? 47 A Many different colours. 9551 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms 1 Q Is it -- is it the case that both black bears and 2 grizzly bears benefit from burns and other removal of 3 forest cover? 4 A Yes. As with moose, probably more from burns than 5 from some other removals, but they -- bears definitely 6 do survive on vegetation which grows in the early 7 successional stages. 8 Q In all of these maps, you've assumed that the 9 vegetation in relation to climate and major 10 disturbances like fire have been relatively constant 11 over time; is that correct? 12 A Constant over time. You mean within a short time 13 period or long time period? I think that the early 14 discussions were -- or the discussions of the records 15 since the glaciation were designed to show that in 16 fact that has not been the case. 17 Q All right. And maybe if I can get to that. You know 18 from the research that you've done on this report, 19 that the climate in the area has gotten warmer since 20 the little ice age? 21 A Apparently it has, yes. 22 Q And so it's likely that the habitat that you've 23 discussed with respect to some of these animals is 24 different today than it was at the beginning or even 25 in the mid-1800s? 26 A Yes. 27 Q And I think -- and correct me if I'm wrong -- your 28 premise with almost all of these animals, or maybe all 29 of them, is that habitat is of primary importance in 30 the ability of each species to populate a particular 31 area? 32 A It's the basic parameter that decides whether or not a 33 species can occur in an area, for sure. 34 Q Now, I'm going to suggest that since the habitat has 35 likely changed since the little ice age, you cannot 36 say today what the range and distribution of these 37 species was in the early 1800s? 38 A I don't think that I have said what the range and 39 distribution was in the early 1800s. I've indicated 40 sightings pre-1860, but I haven't -- I haven't by any 41 means tried to map those out, because although I don't 42 expect that the habitat has changed as much as the 43 climate, that in that time -- and that was my thesis 44 with regard to the moose -- that it seems like a lot 45 of those same habitats were there but the -- under the 46 climatic conditions pertaining, it was difficult for 47 the animals to subsist anyways. 9552 D.F. Hatler (for Plaintiffs) Cross-exam by Mr. Willms Re-exam by Mr. Grant 1 Q So what you have depicted here is a -- within a 2 relatively recent history, a snapshot of the 3 distribution and range of each of these animals? 4 A Basically, yes. Although there is some additional 5 information on the moose sheet and on the caribou 6 sheet and on the deer sheet as well. There was enough 7 information to indicate changes, so there are more 8 than one snapshot for some of them. 9 Q All right. You've mentioned moose and then -- which 10 you, I think, said came down from the north and the 11 east and the deer which came up from the south and the 12 west? 13 A That's right. And the caribou range has receded. 14 MR. WILLMS: And the caribou range, that has changed. 15 Those are all the questions that I have, my lord. 16 THE COURT: Thank you. No cross-examination, Ms. Koenigsberg? 17 MS. KOENIGSBERG: No, I have no cross, my lord. 18 THE COURT: Thank you, Mr. Grant. 19 MR. GRANT: Thank you. I just have a few questions on redirect. 20 21 RE-EXAMINATION BY MR. GRANT: 22 Q You were referred to a letter from Mr. Overstall, 23 Exhibit 784-15, the first one that you were referred 24 to, and I will -- don't need to refer to it -- in 25 which he makes reference to asking you about the 2 6 caribou and moose movements within the area. You 27 recall that you were asked that by Mr. Willms this 28 morning? 29 A Yes. 30 Q And if Mr. Overstall had not made mention of asking 31 you about the caribou and the moose migrations within 32 the area, would you still have included it in your 33 zoogeography opinion? 34 A Oh, yes. That's a major feature of those -- of the 35 history of those species that's well known to anybody 36 who has done work in the area. 37 Q Exhibit 784-25, the excerpt of your report, was a 38 reference to the telemetry studies? 39 A Telemetry. 40 Q I'll leave it to you. Where did you do that study? 41 A That's the Spatsizi Park work. 42 Q That's within the region that you've studied here? 43 A Yes, it is. 44 Q You were asked about the 1982 -- post-1982 improvement 45 in moose and you've indicated that 1981, '82 was the 46 last severe winter. If there had been severe winters 47 since 1981, '82, do you believe that the moose 9553 D.F. Hatler (for Plaintiffs) Re-exam by Mr. Grant 1 population would have continued to increase or would 2 have been impacted even if there was limited entry 3 hunting? 4 A I think it would have declined. 5 Q Thank you. And would you say the same effect if there 6 had been no limit -- if the limited entry hunting 7 regulations had not been in place, but there had been 8 the continued mild winters, would that have had an 9 impact on the moose population in the Bulkley valley? 10 A What I tried to point out there was that the moose 11 population is made up of more than one sex and age 12 class. Hunting is aimed at only one sex class, the 13 males to any extent. That's the way it had been for a 14 number of years. There was some limited entry on 15 females but primarily we were hunting males. That 16 there was no apparent -- certainly no way to document 17 that the hunting was cutting into the population. 18 What you try to do is -- and any farmer will tell you 19 he doesn't keep all his bulls for a species that -- 20 where one bull can service many, you don't need all of 21 the bulls, so that a number of those are being 22 removed. And those were the only classes that were 23 being removed, but the limited entry also stopped 24 that, on the premise that it would increase 25 productivity which in fact was not a problem. So 26 that's the only point that I was trying to make there. 27 But having said that, it's likely that there were 28 more moose because there were fewer being shot as well 29 as the easy winters. But you cannot stockpile moose. 30 As soon as -- if we were to get a bad winter, all of 31 those are going to be lost. There will be large 32 losses on the railway, there is going to be large 33 losses on the highway and so on. So that it's not 34 really advisable to try to stockpile those animals in 35 that kind of an area. 36 Q I see. When you say -- if you do stockpile and get a 37 large population, you increase it? 38 A You want to maintain your cow population and you want 39 to maintain your productivity. And if you have 40 information that you have problems with productivity, 41 then probably the first thing you want to think about 42 is protecting some bulls. But there was no shortage 43 of bulls and no evidence for shortage of bulls. 44 Q Is there -- one of the last questions my friend asked 45 you was with respect to this little ice age. You've 46 described the effect of that on the cervids, the deer, 47 the moose and the caribou, and -- the deer and moose, 9554 D.F. Hatler (for Plaintiffs) Re-exam by Mr. Grant 1 and you've described on the caribou the impact since 2 1860. Is it correct that your opinion with respect to 3 the other species is that the habitat has remained -- 4 that those other species have -- their populations 5 have remained relatively stable since long before 6 1860? 7 A The distribution has. 8 Q The distribution, I'm sorry. 9 A But I wouldn't say that the populations -- I would 10 guess that the kind of climate which seems to have 11 prevailed during the little ice age would have been 12 hard on everything. But all of those other species, 13 interestingly, and I described that in the report, are 14 species that have some kind of behavioural or 15 physiological adaptation to severe winter conditions, 16 to snow conditions. They hibernate, they store food, 17 they withdraw under the snow cover, or in the case of 18 caribou and goats, they are very well insulated 19 creatures that like to get up in the wind blown areas. 20 So they are all cold-adapted animals and probably did 21 better than some others might under those conditions. 22 Q Okay. I just want to make one reference to map 12 23 which is the goat map. 24 Is there in the area in the mountain ranges south 25 of Gitsegukla, is there still to the present time a 26 common pop -- that is, are mountain goats common in 27 that mountain range to the south of Gitsegukla? 28 MR. WILLMS: My lord, this is nothing new and this is what the 29 map says. I don't know what my friend is getting at 30 here, but that's what the map says. 31 MR. GRANT: 32 Q Okay. Have you seen any impact as a result of killing 33 as much as 42 goats in that area in the last 20 years? 34 A I haven't been there frequently so I can't really 35 comment on that. I don't know how the numbers have 36 changed in that particular area, if they have. But is 37 this the area that we are referring to with the 42 38 goats? 39 Q Well, I'm suggesting that, yes. 40 A No, I can't answer that. 41 MR. GRANT: Thank you. 42 Thank you very much, Dr. Hatler. 43 THE COURT: All right. Thank you, Doctor, you are excused if 44 you want to take your leave, and wish you a fair wind 4 5 home. 46 (WITNESS EXCUSED) 47 THE COURT: All right. Anything else, Mr. Grant? 9555 D.F. Hatler (for Plaintiffs) Re-exam by Mr. Grant 1 MR. GRANT: I think that completes the day and the week. 2 THE COURT: All right. Well, I have — which I can give to 3 counsel -- almost a final copy of my reasons on the 4 question of production. It hasn't -- Madam Registrar, 5 you can give a copy to counsel. It hasn't been proof- 6 read and I've already noted one small change and I'll 7 be making some other minor changes, but that would 8 substantially be the reasons that I'll be delivering 9 in the usual way on Monday. And counsel may find it 10 easier to have it over the weekend. All right. 11 MR. WILLMS: I was just going to say, my lord, it's F, C.F. 12 Willms, if you are doing the typographic. 13 THE COURT: What does it say, Mr. Willms, I don't have a copy? 14 MR. WILLMS: It says CH. which are the first two. 15 THE COURT: It should be C.F.? 16 MR. WILLMS: Yes. CH. would be Chuck, or short for. 17 THE COURT: I'll mention that. 18 MS. KOENIGSBERG: Should we write "Draft" across the top of our 19 copies? 20 THE COURT: Oh, you can if you want. All right then. I wish 21 you a pleasant holiday weekend. Oh, what do you want 22 to do with the book? 23 MR. GRANT: In the circumstances, tab 1 and tab 2 should be 24 marked as the exhibits and I'll take the rest back. 25 THE COURT: All right. Well, I will leave that to Madam 26 Registrar. 27 THE REGISTRAR: I'll do that. 28 THE COURT: All right, thank you. 29 THE REGISTRAR: Order in court. Court stands adjourned until 30 Monday, November 14, 1988 at 10:00 a.m.. 31 32 (PROCEEDINGS ADJOURNED AT 3:30 p.m.) 33 34 I hereby certify the foregoing to be 35 a true and accurate transcript of the 36 proceedings herein transcribed to the 37 best of my skill and ability. 38 39 40 41 42 Toni Kerekes, 43 O.R., R.P.R. 44 United Reporting Service Ltd. 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 1988-11-10]
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