IN THE SUPREME COURT OF BRITISH COLUMBIA · No. 90 0913 Victoria Registry IN THE SUPREME COURT OF...

No. 90 0913 Victoria Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

ROGER WILLIAM, on his own behalf and on behalf of all other members of the Xeni Gwet’in First Nations Government

and on behalf of all other members of the Tsilhqot’in Nation PLAINTIFF

AND:

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, THE REGIONAL MANAGER OF THE

CARIBOO FOREST REGION and THE ATTORNEY GENERAL OF CANADA

DEFENDANTS

ARGUMENT OF THE PLAINTIFF

APPENDIX 1: OVERVIEW OF PLAINTIFF’S WITNESSES, SELECT TSILHQOT’IN

GENEALOGIES, TRAPLINE SUMMARIES WOODWARD & COMPANY Barristers and Solicitors 844 Courtney Street, 2nd Floor Victoria, BC V8W 1C4 Solicitors for the Plaintiff

ATTORNEY GENERAL OF BRITISH COLUMBIA Civil Litigation Section 3RD Floor, 1405 Douglas Street Victoria, BC V8W 9J5 Solicitor for the Defendants, Her Majesty the Queen in the Right of the Province of British Columbia and the Manager of the Cariboo Forest Region

DEPARTMENT OF JUSTICE, CANADA Aboriginal Law Section 900 – 840 Howe Street Vancouver, B.C. V6Z 2S9 Solicitor for the Defendant, The Attorney General of Canada

ROSENBERG & ROSENBERG Barristers & Solicitors 671D Market Hill Road Vancouver, BC V5Z 4B5 Solicitors for the Plaintiff

BORDEN LADNER GERVAIS LLP Barristers & Solicitors 1200 Waterfront Centre, 200 Burrard Street Vancouver, BC V7X 1T2 Solicitor for the Defendants, Her Majesty the Queen in the Right of the Province of British Columbia and the Manager of the Cariboo Forest Region

Exhibit 43 Photograph 29

Appendix 1 Overview of Plaintiff's Witnesses, Select Tsilhqot'in

Genealogies, Trapline Summaries

Tab Summary of the Lay Witness Evidence A Summary of the Expert Witness Evidence B Select Tsilhqot'in Genealogies C Trapline Summaries D

Appendix 1A Summary of Lay Witnesses of the Plaintiff

SUMMARY OF LAY WITNESSES OF THE PLAINTIFF.......................................................... 2

Martin Quilt ................................................................................................................................ 2 Chief Roger William................................................................................................................... 2 Francis Setah............................................................................................................................... 3 Minnie Charleyboy ..................................................................................................................... 3 Theophile (Ubill) Lulua .............................................................................................................. 4 Francis Sammy William ............................................................................................................. 4 David Lulua ................................................................................................................................ 5 Doris Lulua ................................................................................................................................. 5 Annie Williams ........................................................................................................................... 6 Mabel William ............................................................................................................................ 6 Harry Setah ................................................................................................................................. 7 Norman George Setah................................................................................................................. 7 Julie Quilt.................................................................................................................................... 8 David Setah................................................................................................................................. 8 Joseph William............................................................................................................................ 8 Theophile (Ubill) Hunlin ............................................................................................................ 9 Gilbert Solomon.......................................................................................................................... 9 Chief Ervin Charleyboy ............................................................................................................ 10 Christine Cooper ....................................................................................................................... 10 Patricia Guichon........................................................................................................................ 11 Lloyd Myers.............................................................................................................................. 11 Thomas Billyboy....................................................................................................................... 12 Elizabeth Jeff ............................................................................................................................ 12 Cecelia Quilt ............................................................................................................................. 13 Patrick Alphonse....................................................................................................................... 13 William Setah............................................................................................................................ 14 Eliza William ............................................................................................................................ 14 Amelia Hunlin........................................................................................................................... 14 Agnes Pigeon ............................................................................................................................ 15

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SUMMARY OF LAY WITNESSES OF THE PLAINTIFF

MARTIN QUILT

1. Martin Quilt gave his deposition on November 21, 26 to 29 and December 2, 3, and 9 to

11, 2002. British Columbia objected to portions of the deposition evidence given by Mr. Quilt.

The Court accepted the reliability of oral history of Martin Quilt subject to certain exceptions.1

Qualifying Mr. Quilt, as a reliable source for giving oral history was more complicated than

other witnesses because he testified before the order was made that set out the threshold test for

reliability of oral history evidence.2 Please refer to Appendix 1 for more information on Mr.

Quilt’s qualifications.

2. Mr. Quilt’s testimony included evidence about hunting and trapping, peace treaties, war

with other First Nations, place names and 20th century trade.

CHIEF ROGER WILLIAM

3. Chief Roger William testified on September 8 to 12, 15 to 19, 22 to 25, October 7 to 10,

14 to 16, 20 to 24, November 3 to 4, and 12, 2003, January 5 to 9, 13 to 16, February 2, 3, 11 to

13, 16 and 17, 2004. The Court ruled that Chief Roger William’s testimony met the threshold

test for reliability of oral history evidence.3

4. Chief Roger William’s testimony included evidence about ancestral and historical

leadership, modern political representation, modern assertion of territorial claim, caretakers,

vision for future stewardship, the lack of access to Tsilhqot’in timber and Brittany Lake Forest

Management, and his own use of the territory.

1 William et al. v. British Columbia et al., 2004 BCSC 1022 at para. 27; exceptions at William et al. v. British Columbia et al., 2004 BCSC 1022 at paras. 15, 16. 2 William et al. v. British Columbia et al., 2004 BCSC 148. 3 William et al. v. British Columbia et al., 2004 BCSC 1022 at para. 24.

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FRANCIS SETAH

5. Francis Setah testified on November 17 to 20, November 24 to 27, December 1, 2, 3, 4, 8

and 9, 2003. British Columbia objected to portions of evidence given by Francis Setah. The

Court accepted the reliability of oral history of Francis Setah subject to certain exceptions.4

Qualifying Mr. Setah, as a reliable source for giving oral history was more complicated than for

other witnesses because he testified before the order was made that set out the threshold test for

reliability of oral history evidence.5 Please refer to Appendix 1 for more information on Mr.

Setah’s qualifications.

6. Mr. Setah’s testimony included evidence clarifying some genealogical information about

the Setah family. His testimony also included evidence about distinct language, self-recognition

of collective identity, occupation of the Claim Area, the absence of other First Nations in the

Claim Area, cremation, burial and grave sites, the character of the land, technology,

transportation networks and crossings, place and resource names, evidence of the Xeni Gwet’in

as a group existing pre-1820, 20th century trade and the transmission of oral history.

MINNIE CHARLEYBOY

7. Minnie Charleyboy testified on March 1 to 5, 8 to 11, 22 to 26, and 29 to 31 and April 1,

2004. British Columbia and Canada cross-examined Mrs. Charleyboy and both agreed that Mrs.

Charleyboy met the reliability threshold test. The Court ruled that Mrs. Charleyboy met the

threshold test for reliability of oral history evidence.6

8. Mrs. Charleyboy’s testimony included evidence about genealogy, mainly about the Lulua

family, but also about her ancestors in the Nemiah and Kahkul Families. Her testimony also

included evidence about legends that were consistent with Farrand’s versions, shared histories

(the first priest to put up a cross), laws, sanctions and shared customs, occupation of the Claim

4 William et al. v. British Columbia et al., 2004 BCSC 1022 at para. 28; exceptions at William et al. v. British Columbia et al., 2004 BCSC 1022 at paras. 17, 18. 5 William et al. v. British Columbia et al., 2004 BCSC 148. 6 Transcript, March 1, 2004, Minnie Charleyboy Direct-Exam, at 00045, 36-38; William et al. v. British Columbia et al., 2004 BCSC 1022 at para. 22.

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Area, house sites, cremation, burial and grave sites in the Claim Area, national cooperation in

war time, war with other First Nations, the Tsilhqot’in War and its causes, place and resource

names and the reputation of oral history teachers. Mrs. Charleyboy was relied upon by John

Dewhirst.

THEOPHILE (UBILL) LULUA

9. Theophile Lulua (commonly referred to by the short version of Theophile, “Ubill”)

testified on April 1 to 2, 13 to 15, 2004; his affidavit is Exhibit 0013. British Columbia and

Canada cross-examined Mr. Lulua and both agreed that Mr. Lulua met the threshold for

reliability of oral history. The Court ruled that Mr. Lulua met the threshold test for reliability of

oral history evidence.7

10. Mr. Lulua’s testimony included evidence of interference with continuity, non-seasonal

trapping, hunting and fishing, housing sites, cremation and burial grounds and place names, the

Xeni Gwet’in existing as a group pre-1820, trapping and hunting being integral to the culture, the

transmission of oral history and time depth defined. Mr. Lulua also named the following as

being qualified teachers of Tsilhqot’in traditional knowledge: Eileen William, Martin Quilt,

Francis Setah and Francis William (also called Francis Sammy).

FRANCIS SAMMY WILLIAM

11. Francis William testified on May 25, 26, and 27, 2004; his affidavits are Exhibits 0157

and 0158. British Columbia and Canada cross-examined Mr. William and both agreed that Mr.

William met the threshold test for reliability of oral history evidence. The Court ruled that Mr.

William met the threshold test for reliability of oral history evidence.8

12. Mr. William’s testimony included evidence about the use of the claim area throughout his

lifetime. His testimony also included evidence about religion and laws, specifically, medicine

man powers and gatherings at Lhiz Bay. He also testified about trapping, hunting, fishing, and

7 Transcript, April 1, 2004, Theophile (Ubill) Lulua Direct-Exam, at 00041, 8-31. 8 Transcript, May 25, 2004, Francis William Direct-Exam, at 00010, 10-14.

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gathering, house sites, the reluctance of non-Tsilhqot’ins to enter the territory because intruders

were killed, wars and battles against other First Nations, the Tsilhqot’in War and its causes,

responses to attempted preemptions, the importance of trapping and the reputation of specific

oral history teachers.

DAVID LULUA

13. David Lulua testified on September 7, 2004; his affidavit is Exhibit 0109. British

Columbia and Canada cross-examined Mr. Lulua and both agreed that Mr. Lulua met the

threshold test for reliability of oral history evidence. The Court implicitly ruled that Mr. Lulua

met the threshold test for reliability of oral history evidence by allowing him to testify.9

14. Mr. Lulua’s testimony included evidence describing his trapping experience and how

clear cutting in his Trapline has affected his ability to trap. In his testimony, he also lists a

number of specific animals and how he would sell or trade them.

DORIS LULUA

15. Doris Lulua testified on September 8 and 9 2004; her affidavits are Exhibits 0160, 0161

and 0162. British Columbia and Canada cross-examined Mrs. Lulua and both agreed that Mrs.

Lulua met the threshold test for reliability of oral history evidence. The Court ruled that Mrs.

Lulua met the threshold test for reliability of oral history evidence.10

16. Ms. Lulua’s testimony included evidence about past and current use of the Claim Area

including traditional foot trail networks. She spoke at length about settlement patterns and parts

of the Claim Area traditionally used by specific families. Her testimony also included evidence

about legends and other shared histories, self-recognition and national identity, Lulua and

Guichon genealogy, occupation of the Claim Area in different seasons, house sites, cremation

and burial grounds, trails, water routes and crossings, land tenure and internal allocation of

interests in land, place and resource names and the meaning of “land” to Tsilhqot’in people.

9 Transcript, September 7, 2004, David Lulua Direct-Exam, at 00026, 8 - 00027, 4. 10 Transcript, September 8, 2004, Doris Lulua Direct-Exam, at 00014, 44-45.

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ANNIE WILLIAMS

17. Annie Williams testified on September 20, 21, and 22, 2004; her affidavits are Exhibits

0112, 0113 and 0114. British Columbia and Canada cross-examined Mrs. Williams and both

agreed that Mrs. Williams met the threshold test for reliability of oral history evidence. The

Court ruled that Mrs. Williams met the threshold test for reliability of oral history evidence.11

18. Former Chief Williams’ testimony included evidence about the spiritual significance of

the forest and the animals that dwell there. She spoke about the continuity between traditional

Traplines and the present Traplines. She spoke about how "trapping" encompasses a wide range

of activities that make up a traditional lifestyle. She also described what it means to lead a

traditional lifestyle.

MABEL WILLIAM

19. Mabel William testified on October 4, 2004; her affidavits are Exhibits 0173 and 0174.

British Columbia and Canada cross-examined Mrs. William and both agreed that Mrs. William

met the threshold test for reliability of oral history evidence. The Court ruled that Mrs. William

met the threshold test for reliability of oral history evidence.12

20. Mrs. William’s testimony included evidence about traditional Tsilhqot'in winter homes

and about her family's use of various areas throughout the Brittany and Traplines. She spoke

about use of the traditional foot trails and the places her family would go to fish and hunt

throughout the year. She also spoke of the collective sense of Tsilhqot’in land, self-recognition

of collective identification, occupation of the Claim Area, war customs, weaponry and songs,

responses to attempted preemptions, runners watching over the land, place and resource names,

evidence of the Xeni Gwet’in existing as a group pre-1820 and time depth defined.

11 Transcript, September 20, 2004, Annie Williams Direct-Exam, at 00037, 27-29. 12 Transcript, October 4, 2004, Mabel William Direct-Exam, at 00024, 47 – 00025, 9.

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HARRY SETAH

21. Harry Setah testified on October 12 to 15, and 18 and 19, 2004. British Columbia and

Canada cross-examined Mr. Setah and both agreed that Mr. Setah met the threshold test for

reliability of oral history evidence. The Court ruled that Mr. Setah met the threshold test for

reliability of oral history evidence.13

22. Mr. Setah’s testimony included evidence about Tsilhqot’in religion and laws, occupation

of Tsilhqot’in land, specifically, trapping and hunting, fishing, gathering, grazing, haying and

ranching and non-seasonal use during all the seasons. He also spoke about trails, water routes

and crossings, caretaking, the importance of trapping, crown recognition and other

accommodations.

NORMAN GEORGE SETAH

23. Norman George Setah testified on October 19 to 22, November 1 to 2, 4, 8, 9, 18, 29, 30,

and December 1, and 6 to 8, 2004. British Columbia and Canada cross-examined Mr. Setah and

both agreed that Mr. Setah passed the threshold test for reliability of oral history evidence. The

Court ruled that Mr. Setah met the threshold test for reliability of oral history evidence.14

24. Mr. Setah’s testimony included evidence about oral transmission not being influenced by

books, the use of landmarks as memory aids and teaching by carrying out activities. He spoke at

length about the Tsilhqot’in War. He also spoke about laws, sanctions and shared customs,

communication across the territory, absence of other First Nations, housing sites, cremation,

burial and grave sites, the reluctance of non-Tsilhqot’ins to enter the territory, war customs,

weaponry and songs, national cooperation during war time, runners watching over the land, trade

with other First Nations, trade with HBC, 20th century trade and the reputation of oral history

teachers.

13 Transcript, October 12, 2004, Harry Setah Direct-Exam, at 00024, 12-14. 14 Transcript, October 20, 2004, Norman George Setah Direct-Exam, at 00020, 9-19.

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JULIE QUILT

25. Julie Quilt testified on November 5, 2004; her affidavit is Exhibit 0203. British

Columbia and Canada cross-examined Mrs. Quilt and both agreed that Mrs. Quilt met the

threshold test for reliability of oral history evidence. The Court ruled that Mrs. Quilt met the


26. Mrs. Quilt’s testimony included evidence about the Tsilhqot’in' laws she had been taught

covering everything from puberty rights to the proper behaviour of twins. She spoke about

ancestral and historic leadership, religion, laws, genealogy and trade with other First Nations.

Mrs. Quilt is a Tsilhqot'in Elder.

DAVID SETAH

27. David Setah testified on January 17 to 21, February 1, 2, 4, 7 to 9, 11, 15, 16, 28, and

March 1, 2005. British Columbia and Canada cross-examined Mr. Setah and both agreed that

Mr. Setah met the threshold test for reliability of oral history evidence. The Court ruled that Mr.

Setah met the threshold test for reliability of oral history evidence.16

28. Mr. Setah’s testimony included evidence about modern political representation, use of the

claim area, character of the land, modern assertions of territorial claims, caretaking, claim area as

a wildlife refuge, decimation of surrounding areas, vision for future stewardship, infringement,

crown failure to recognize/demarcate Tsilhqot’in title, and consultation (Brittany Lake Forest

Management Plan).

JOSEPH WILLIAM

29. Joseph William testified on February 17, 2005; his affidavit is Exhibit 0355. British

Columbia and Canada cross-examined Mr. William and both agreed that Mr. William met the

15 Transcript, November 5, 2004, Julie Quilt Direct-Exam, at 00010, 3-7. 16 Transcript, January 17, 2005, David Setah Direct-Exam, at 00032, 29-31.

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threshold test for reliability of oral history evidence. The Court ruled that Mr. William met the


30. Mr. William’s testimony included evidence about being raised in a traditional way and

his family’s activities throughout their territory. He spoke about legends, genealogy, trapping

and hunting, fishing, gathering, housing sites, technology, trails, water routes and crossings, the

importance of trapping and trade with other First Nations (Lillooet).

THEOPHILE (UBILL) HUNLIN

31. Ubill Hunlin, now deceased, testified on March 7 to 9, and 14, and 15, 2005. British

Columbia and Canada cross-examined Mr. Hunlin and both agreed that Mr. Hunlin met the

threshold test for reliability of oral history evidence. The Court ruled that Mr. Hunlin met the


32. Mr. Hunlin’s testimony included evidence about genealogy and kinship terms, occupation

of the Claim Area during the fall and winter, transportation networks, trade with other First

Nations and evidence of the Xeni Gwet’in existing as a group before sovereignty.

GILBERT SOLOMON

33. Gilbert Solomon testified on March 15 to 17, 2005 and April 5 to 8, 2005; his affidavits

are Exhibits 0366 and 0367. British Columbia and Canada cross-examined Mr. Solomon and

both agreed that Mr. Solomon met the threshold test for reliability of oral history evidence. The

Court ruled that Mr. Solomon met the threshold test for reliability of oral history evidence.19

34. Mr. Solomon’s testimony included evidence about ancestral and historic Chiefs, detailed

accounts of legends, detailed laws, sanctions and shared customs, occupation in the Nemiah

Valley, house sites, carrying capacity, technology, solidarity, the Tsilhqot’in War and its causes,

17 Transcript, February 17, 2005, Joseph William Direct-Exam, at 00005, 3-4. 18 Transcript, March 7, 2005, Theophile Hunlin Direct-Exam, at 00029, 47 – 00030, 7. 19 Transcript, March 15, 2005, Gilbert Solomon Direct-Exam, at 00035, 12-13.

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responses to attempted preemptions, runners watching over the land, the interference of forestry

with traditional practices, interference with continuity of trapping, habitat destruction, and the

reputation of his teachers.

CHIEF ERVIN CHARLEYBOY

35. Chief Ervin Charleyboy testified on April 18 to 22, 2005, May 3, 5 and 6, 2005. British

Columbia and Canada cross-examined Chief Ervin Charleyboy and both agreed that Chief Ervin

Charleyboy met the threshold test for reliability of oral history evidence. The Court ruled that

Chief Ervin Charleyboy met the threshold test for reliability of oral history evidence.20

36. Chief Charleyboy’s testimony included evidence about ancestral and historic Chiefs,

modern political representation, the collective sense of Tsilhqot’in land, laws, sanctions and

shared customs, distinct language, self-recognition of collective identification, genealogy, war

customs, weaponry and songs, national cooperation during war time, responses to other threats to

title, the Tsilhqot’in war and its causes, customary law regarding land, lands around the Claim

Area being logged and authorizations for larger tenures.

CHRISTINE COOPER

37. Christine Cooper testified on May 2, 2005; her affidavit is Exhibit 0398. British

Columbia and Canada cross-examined Mrs. Cooper and both agreed that Mrs. Cooper met the

threshold test for reliability of oral history evidence. The Court ruled that Mrs. Cooper met the


38. Mrs. Cooper’s testimony included evidence about religion and ancestral laws, genealogy

of the Hance family, trapping and hunting, fishing, house sites, interference with continuity, the

importance of trapping and infringement that causes habitat destruction, such as logging.

20 Transcript, April 18, 2005, Ervin Charleyboy Direct-Exam, at 00019, 8-11. 21 Transcript, May 2, 2005, Christine Cooper Direct-Exam, at 00004, 24-40.

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PATRICIA GUICHON

39. Patricia Guichon testified on May 9 to 12, 2005. British Columbia and Canada cross-

examined Mrs. Guichon and both agreed that Mrs. Guichon met the threshold test for reliability

of oral history evidence. The Court ruled that Mrs. Guichon met the threshold test for reliability

of oral history evidence.22

40. Mrs. Guichon’s testimony included evidence about ancestral and historic leadership,

legends, other shared histories, genealogy, occupation of the claim area, house sites, weaponry,

war songs and dances, wars and battles against other First Nations and the Tsilhqot’in War and

its causes.

LLOYD MYERS

41. Lloyd Myers testified on May 30, and 31, 2005; his affidavits are Exhibits 0416 and

0417. British Columbia and Canada did not object to Mr. Myer’s testifying to oral history. The

Court implicitly ruled that Mr. Myers met the threshold test for reliability of oral history

evidence by allowing his to testify in that regard.23

42. Mr. Myers’s testimony included evidence about modern political representation, trapping

and hunting, fishing and gathering (specifically the Eastern Trapline), house sites, interference

with continuity, what the land means to Tsilhqot’in people, infringement by forest development

activities, licenses and authorizations granted to Tsilhqot’ins and joint ventures. He also spoke

about the lack of capacity, specifically, lack of money to consult regarding referrals, the

importance of trapping for survival, trade, for example, trading hides to get money for food,

interference with the continuity of trapping. and habitat destruction.

22 Transcript, May 9, 2005, Patricia Guichon Direct-Exam, at 00031, 34-36. 23 Transcript, May 30, 2005, Lloyd Myers Direct-Exam, at 00002, 37-43.

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THOMAS BILLYBOY

43. Thomas Billyboy testified on June 1 to 3, 6 and 15, 2005. British Columbia and Canada

cross-examined Mr. Billyboy and both agreed that Mr. Billyboy met the threshold test for

reliability of oral history evidence. The Court ruled that Mr. Billyboy met the threshold test for

reliability of oral history evidence.24

44. Mr. Billyboy’s testimony included evidence about modern political representation,

religion and ancestral laws, genealogy that dates the Billyboy family back to the late 1700’s, the

ability to share information across the territory with runners, a description of external

boundaries, the overlapping of treaty lines with other First Nations, house sites, trails, water

routes and crossings, the absence of other Aboriginal groups in the territory, the reluctance of

non-Tsilhqot’ins to enter the territory, weaponry, war songs and dances, national cooperation

during war time, wars and battles with other First Nations, specifically, the Carriers, the

Tsilhqot’in War and its causes, runners watching over the land, the meaning of the land to

Tsilhqot’in people, licenses and authorizations granted to Tsilhqot’in, the Crown’s failure to

recognize and demarcate Tsilhqot’in title, the lack of capacity, the importance of trapping in

order to survive, trade with other First Nations and the reputations of specific oral history

teachers.

ELIZABETH JEFF

45. Elizabeth Jeff testified on June 14, 2005; her affidavits are Exhibits 0431 and 0432.

Mrs. Jeff gave a day of testimony, including some cross-examination by British Columbia, but

fell ill before BC could complete cross-examination and before Canada could start..25

46. Mrs. Jeff’s affidavit includes evidence about legends, stories about fixing the land,

technology, the Tsilhqot’in war, trade with other First Nations, the transmission of oral history

and time depth.

24 Transcript, June 1, 2005, Thomas Billyboy Direct-Exam, at 00045, 16-19. 25 Transcript, June 14, 2005, Elizabeth Jeff.

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CECELIA QUILT

47. Cecelia Quilt testified on October 6, 2005; her affidavit is Exhibit 0439. British

Columbia and Canada cross-examined Mrs. Quilt and both agreed that Mrs. Quilt met the

threshold test for reliability of oral history evidence. The Court implicitly ruled that Mrs. Quilt

met the threshold test for reliability of oral history evidence by allowing her to testify.26

48. Mrs. Quilt’s testimony included evidence about the Quilt family genealogy, external

boundaries, trapping and hunting, fishing, gathering, house sites, cremation and burial grounds,

technology, trails, water routes and crossings, wars and battles against other First Nations,

caretakers and trade with other First Nations.

PATRICK ALPHONSE

49. Mr. Alphonse’s affidavit is Exhibit 0437. Mr. Alphonse, now deceased, was 84 years old

when his affidavit was sworn. He was born on October 5, 1920. He was raised at Tl’etinqox

(Anaham) and in the meadows behind (north of) the Tl’etinqox’in (Anaham) reserve. Patrick

Alphonse spoke Tsilhqot’in and a little bit of English.27

50. Mr. Alphonse’s affidavit discusses Chief Anaham and his descendants, the legend of

Tsyl?as and ?Eniyud, law, sanctions and shared customs (how Tsilhqot’in Nation protects its

territory and gatherings at Potato Mountain and Siwash, genealogy and kinship, specifically his

great grandmother, Tudud and great grandfather, Chief Anaham, housing sites, solidarity, war

with other First Nations, runners watching over the land and migration of the nation.

26 Transcript, October 6, 2005, Cecilia Quilt Direct-Exam, at 00003, 46 – 00005, 1. 27 Exhibit 0437, Affidavit of Patrick Alphonse, April 15, 2005, at paras.2-5, 9-11, 15, 16-17.

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WILLIAM SETAH

51. Mr. Setah’s affidavit is Exhibit 0012. Mr. Setah, now deceased, was born in Nemiah

Valley in 1926 and was a member of the Xeni Gwet'in. Mr. Setah had been a trapper since he

was 12 and was taught to trap by his father.28

52. Mr. Setah’s affidavit discusses where and how he would trap the various animals he

regularly trapped. Based on his 50 years of experience he believes that clear-cut logging and

trapping cannot take place on the same land.

ELIZA WILLIAM

53. Mrs. William’s affidavits are Exhibits 0105 and 0106. Mrs. William, now deceased, was

a Tsilhqot'in Elder from Tsi Del Del. Her first language was Tsilhqot'in and she was born in the

Naghatalhchož area. At the time of her affidavit she was over 90 years old.29

54. Mrs. William’s affidavit discusses the use of the claim area by Jamadis and of the

location of the graves of a number of prominent Tsilhqot'in. She also discusses other shared

histories, such as the Spanish Flu, genealogy and kinship terms of the Lulua, Nemiah and George

families, housing sites inside the Brittany Triangle, the Tsilhqot’in War and its causes and her

traditional teachers dating back to 1846 and earlier.

AMELIA HUNLIN

55. Mrs. Hunlin’s affidavit is Exhibit 0108. Mrs. Hunlin, now deceased, was 78 years old at

the time of her affidavit. She was a member of the Xeni Gwet'in Indian Band and a Tsilhqot'in

Elder from Eagle Lake. She spoke Tsilhqot’in and did not understand English very well.

Amelia Hunlin was the wife of Ubil Hunlin and the daughter of Andy George, who is the son of

Captain George.30

28 Exhibit 0012, Affidavit of William Setah, September 27, 1989 29 Exhibit 0106, Affidavit #2 of Eliza William, July 29, 2003, at paras.4-5. 30 Exhibit 0108, Affidavit of Amelia Hunlin, June 25, 2003, at paras.3, 8.

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56. Mrs. Hunlin’s affidavit discusses the genealogy and kinship terms of the George family,

housing sites at Captain George Town and place and recourse names.

AGNES PIGEON

57. Mrs. Pigeon’s affidavit is Exhibit 0110. Mrs. Pigeon was born near Stum Lake on

February 2, 1921. She was 82 years old when her affidavit was sworn. She was a Tsilhqot'in

elder of Tl'etinqoxt'in Indian Band (Anaham reserve). Agnes Pigeon speaks Tsilhqot’in but can

understand and write some English from her four years at mission school when she was a child.31

58. Mrs. Pigeon’s affidavit discusses how Tsilhqot’in history and traditions are passed down

and how reliability is ensured through repetition and correction. She also discusses ancestral and

historic Chiefs (specifically, Chief Anaham), genealogy and kinship terms for the Johnny family

and what the land means to Tsilhqot’in people.

31 Exhibit 0110, Affidavit of Agnes Pigeon, August 13, 2003, at paras.8-9, 20-21, 23.

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Appendix 1B Summary of Expert Witnesses of the Plaintiff

SUMMARY OF THE EXPERT WITNESSES OF THE PLAINTIFF.......................................... 2

Dr. Richard G. Matson, Archaeologist ....................................................................................... 2 Dr. Douglas Hudson, Anthropologist ......................................................................................... 7 Dr. Brian T. Guy, Hydrologist .................................................................................................. 16 Clayton Apps, Wildlife Ecologist ............................................................................................. 17 Dr. Nancy J. Turner, Ethnobotanist .......................................................................................... 20 Dr. David Dinwoodie, Anthropologist...................................................................................... 23 Dr. Ken Brealey, Historical Geographer................................................................................... 34 Mike Demarchi, Biologist and Wildlife Ecologist ................................................................... 42 Professor Hamar Foster, Legal Historian.................................................................................. 46 Dr. Ken Coates, Historian......................................................................................................... 51 John Dewhirst, Anthropologist ................................................................................................. 60 David Carson, Forester ............................................................................................................. 69 John Fuller, Forester ................................................................................................................. 77 James S. Hackett, Forester ........................................................................................................ 81 Dr. Edwin Blewett, Economist ................................................................................................. 82 David S. Coster, Forester .......................................................................................................... 83 Alex Pawliuk............................................................................................................................. 84 Dr. Eung-Do Cook, Linguist..................................................................................................... 85 Dr. Mathis Wackernagel, Ecological Community Modeler ..................................................... 88

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SUMMARY OF THE EXPERT WITNESSES OF THE PLAINTIFF

DR. RICHARD G. MATSON, ARCHAEOLOGIST

Credentials 1. Dr. Matson holds a B.A. in Anthropology from the University of California in Riverside

(1966). He holds a Ph.D. in Anthropology from the University of California at Davis (1971). He

is a Professor of Archaeology in the Anthropology and Sociology Department at the University

of British Columbia, where he has been since 1972. Dr. Matson undertook extensive fieldwork in

the Chilcotin in 1974 (8 weeks), 1979 (15 weeks), 1983 (15 weeks), 1984 (4 weeks) and 1985 (8

weeks), and, in addition, visited relevant parts of the Chilcotin in 1973, 1975, 1978, 1986, 1996

and 2000. Dr. Matson has published extensively in his field. Of particular relevance to his

opinions in this case is his book manuscript, "Athapaskans and Migration: The Archaeology of

Eagle Lake, British Columbia." Eagle Lake is in the Claim Area and has been the focus of Dr.

Matson’s work over many years. It is worth noting that the Bear Lake site, which was a focus of

his archaeological work, happens to be in the Claim Area, but this work was done long before

the present claims were filed.

Expertise 2. On day 110, May 10, 2004, on page 00022, line 30, the Court said:

I’m satisfied that Dr. Matson is a qualified archaeologist and entitled to express opinions in his field, and in particular a field concerning the length of time that the Tsilhqot'in as Athapaskans have been in the territory, which is what I understand his report to be directed to. As to the weight that I give that report will depend on the reliance on the issues that counsel have raised in cross-examination.

The principal “issues that Counsel have raised in cross-examination” with respect to Dr.

Matson’s expertise were stated by them in short submissions before the statement of the Court

that has been quoted above. Counsel for the Province pointed out that much of Dr. Matson’s

work was done as leader of a team and that he relied on other team members for the data on

which his opinions rested. Counsel for Canada noted that Dr. Matson was not himself an expert

in Dendrochronology (tree ring dating). But, of course, all the scientific dating methods

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discussed in Dr. Matson’s testimony, namely: carbon 14 isotopic dating, dendrochronology, and

accelerated mass spectrometry dating, and their variations, all require laboratory expertise on

which field archaeologists must rely and on which they are not themselves experts. However, a

bridge of reliance links the laboratory findings to the field work and leads to the scientific

findings being incorporated and respected in the archaeological reports.

Expert Report 3. Dr. Matson’s submitted his report entitled "Opinion on Roger William and Xeni Gwet'in

etc." which became Exhibit 0147. The report is organized under four headings. The first is

“Qualifications,” which has already been summarized here. The second is “Literature Review”

which was extensive.

4. The third heading in Dr. Matson’s report is “Facts and Assumptions”. Under that heading

of his report, Dr. Matson contrasts the Athapaskan culture of the Tsilhqot’in with the series of

cultures which he names, collectively, as the Plateau Pithouse Tradition (PPT), which includes,

but is not limited to, the ancestors of the Interior Salish people. PPT and Athapaskan

archaeological sites can be distinguished from each other by their location, their house forms,

and their artifacts. The house forms are materially different. The PPT house forms were pit

houses dug into the ground with strong wood rafters as a roof and with the rafters covered with

sod, and an entry in the middle of the roof. The PPT houses were located in agglomerations,

usually near a river. The Athapaskan houses were largely rectangular lodges with a single ridge

pole and wooden walls joining to form an “A” cross-section. There were some Athapaskan pit

houses but they were usually isolated. The Athapaskan houses tended to be near a lake.

5. The PPT culture began slightly over 3000 years ago in southern BC. There are a number

of older-than-A.D. 1400 dates for the PPT in the Eagle Lake area which show a relatively

consistent PPT occupation from about 2000 years ago. The last date as a structural construction

date is 1425 for a PPT pithouse. A PPT pithouse would be made from wood which grew earlier

than the date of construction of the house and would have a likely use of 50 years. So the last

evidence of PPT culture in the Claim Area is about 1475.

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6. The Bear Lake site is the earliest identified Athapaskan site in the Claim Area. An

average of three radio carbon dates for a prehistoric rectangular lodge at the site give a date of

1645-1660. The site is clearly Athapaskan for five reasons: .1, Location, 2, Dwelling structure

form, 3, Projectile point style, 4, Overall lithic assemblage, and 5, Lithic debitage pattern.

7. Dr. Matson summarizes this segment of his report in this way:

Thus, this research shows that the Tsilhqot’in were in the area at a minimum since A.D. 1645-60, and at a maximum, possibly since A.D. 1475, subject to the probabilities involved in radiocarbon dating. The apparent gap of 200-250 years between the two possible dates may reflect a real gap when this area was a “no-mans” land perhaps used by the two ethnic groups, but considered too insecure for either group to winter there.

8. It is implicit in this passage and explicit throughout Dr. Matson’s testimony that he

considered that the PPT culture people and the Tsilhqot'in did not both simultaneously occupy

the area once it became occupied by the Tsilhqot’in people . Dr. Matson said in his report:

With respect to the presence, and as far as can be determined, exclusive presence of the Tsilhqot’in in the western portions of the Brittany Triangle, this is well established long before A.D. 1800 by abundant, direct, empirical archaeological evidence. The extension of this presence, and control, over the entire Brittany Triangle, is an inference well supported by the patterns shown in ethnographic British Columbian patterns. The traplines to the west of Chilko river are in territory controlled by the Tsilhqot'in prior to their occupation and control of the Chilko river.

9. The fourth heading in Dr. Matson’s report is “Conclusions”. Those conclusions are set out succinctly in his report and should be repeated in this summary:

4). Conclusions.

Based on the above facts and assumptions my opinion is as flows: a. When was the first presence of the Tsilhqot’in in the Xeni Gwet’in

Trapline Territory and the Brittany Triangle as defined in the Statement of Claim?

As above, the Bear Lake site (EkSa 36) demonstrates the presence of a winter dwelling Tsilhqot’in site dating to A.D. 1645-1660

4

according to three averaged radiocarbon dates. The presence of abundant lithics there also supports a date prior to A.D. 1800.

A maximum date for the Eagle Lake area is provided by a radiocarbon date from the non-Athapaskan P.P.T. presence extending into the last 1000 years.

My opinion is that the Tsilhqot’in have been in the Brittany Triangle since A.D. 1645-1660. The Trapline Territory would probably have been occupied by Tsilhqot’in at the same time or slightly later.

b. What was the nature of the Tsilhqot’in occupation of the Brittany Triangle and the Trapline Territory in 1846? i. was the occupation exclusive?

My opinion is that parts of the Brittany Triangle adjacent to the Chilko River was almost exclusively Tsilhqot'in by the end of the 17th century. The entire area was probably, but not definitely occupied by Tsilhqot'in shortly afterwards and this occupation would be exclusive. The Trapline Territory to the south of the Brittany Triangle would have either been occupied at the same time as the Brittany Triangle or shortly afterwards. The Xeni Gwet’in territory to the west of the Chilko river would have been occupied exclusively prior to the Chilko river.

ii. who controlled the territory?

In my opinion, The Tsilhqot’in certainly controlled the western portions of the Brittany Triangle by the late 17th century and likely the eastern portions as well. The Xeni Gwet’in to the west of the Chilko river would have been controlled by the Tsilhqot’in prior to this time.

iii. what use was made of the resources in the territories, and by whom in 1846.

The archaeological record is clear for the Chilko River and indicates that control and use of the resources by Tsilhqot’in dates back to the 17th century.

Testimony 10. Dr. Matson was examined in chief, cross-examined by both Counsel for the Province and

Council for Canada, and re-examined. The cross-examinations were careful, well prepared and

5

detailed. They indicate the universal interest in all aspects of archaeology. They also indicate a

study of Dr. Matson’s body of archaeological work. Dr. Matson described a number of

techniques of archaeological dating, including isotopic carbon-14 which has a decomposition

half life to C 12 of 1500 years; dendrochronology, which through the study of tree rings,

produces comparables based on growth patterns over identical climatic periods; accelerated mass

spectrometry which can use very small quantities to identify isotopic ratios; and comparisons of

undated layers with similar dated layers. Dr. Matson pointed out that the dating of the pre-history

Athapaskan house sites at Bear Lake was done by three separate laboratories all of which

indicate dates well prior to 1800.

11. Dr. Matson also described his adoption of the direct historical approach (comparison of

archaeological layers with known ethnographic time frames) into the parallel direct historical

approach (doing the same comparison at two sites where one of the sites has established

archaeological layers) where a divergence in dates may show a migration event.

12. The cross-examination extended to site furniture examination; lithic assemblage

comparisons beneath historic components; charcoal dating of root roasting pits; identification of

Athabaskan Kavik projectile points and Athapaskan-style versions of Kamloops projectile

points; and the use of Athapaskan biface stone tools compared to cortex spall tools for scraping

hides.

13. Dr. Matson emphasized in cross-examination at page 43 on day 111 (11 May 2004) that

the PPT culture people were in the Claim Area in 1400 A.D. and were gone from the Claim Area

by 1500 A.D.; and that there was no territorial overlap between the PPT culture people and the

Tsilhqot’in Athapaskan people in the Claim Area and no sharing of access to the resources,

notably salmon, of the Claim Area.

14. It is the Plaintiff’s submission that Dr. Matson’s carefully worded conclusions were not

impaired in any way on cross-examination or by any reservation about his expertise in carrying

out particular scientific analyses. Archaeology is a high-level skill, dependent on assessing

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evidence from a variety of sources with developed judgment and wide experience. Cross-

examination showing that it is not an exact science scarcely seems relevant.

15. The Plaintiff submits that Dr. Matson’s expert opinion carries the full weight of his

lengthy and exacting expertise.

DR. DOUGLAS HUDSON, ANTHROPOLOGIST

Credentials

16. Dr. Hudson holds the degrees of B.A. (Honours), M.A. and Ph.D., all in anthropology.

His Ph.D. thesis was based on research on social organization and resource use amongst the

Carrier people of Upper Stuart Lake. He teaches anthropology courses at the University College

of the Fraser Valley. He has carried out research with the Tlingits of the Taku River, the Nisga’a

of the Nass River, the Carrier and Sekani in north central British Columbia, the Dunne-Za and

Salteaux in the Peace River, and anthropological and archaeological studies with Lillooet and

Okanagan communities.

Expertise 17. On Day 130, September 16, 2004, at page 00035, lines 43, to page 00036, line 5, the

Court said:

I’m satisfied that Dr. Hudson is qualified as an anthropologist and qualified to express opinions in his field of anthropology and as an ethnohistorian, and in particular to give opinion evidence on the occupation of the claim area historically and from and before 1808 to after 1846 in trade and war relations between First Nations in the Chilcotin region from the late 1700s to the early 1900s.

18. Counsel for neither defendant objected to Dr. Hudson being qualified as an expert,

though they cross-examined him on the scope and depth of his expertise.

7

Expert Report 19. Dr. Hudson presented his expert report entitled “Tsilhqot’in Report”. It became Exhibit

0166. It gives a report on the relationship between the Tsilhqot’in and the neighbouring First

Nations, as described in the anthropological and historical literature. That literature starts from

1808 (but contains references to events before 1808).

20. Dr. Hudson was asked by the plaintiff’s solicitors to address six questions about the

Tsilhqot’in use and occupancy of the area described in the Statement of Claim as the Brittany

Triangle and Trapline Territory (The Claim Area). Before doing so, Dr. Hudson stated a general

conclusion in these terms:

Conclusion

My opinion is that that historical and anthropological literature indicate there was a recognition by neighbouring First Nations that from at least as early as 1808 there were aboriginal or First Nations peoples known as Tsilhqot’in in the region west of the Fraser River, east of the Coast Mountains, north of the headwaters of the Bridge River, and along and south of the Chilcotin River and its headwaters. I have itemized in this report each of the neighbouring First Nations and their recognition of Tsilhqot’in territory. Furthermore, the literature referred to in this report indicates that prior to and at 1846 the Tsilhqot’in utilized the terrestrial, riverine, and lake resources of the aforementioned region, occupied the region noted above, had several winter village locations, and had an important role in a regional trading network in which items from the coast made their way into the interior of British Columbia. There is evidence that the Tsilhqot’in protected their territory prior to and after 1846 and killed intruders. The Claim Area falls well within Tsilhqot’in territory as recognized by the Tsilhqot’in themselves and by neighbouring First Nations groups (which are indicated below).

21. The most helpful way of indicating the neighbouring First Nations groups is probably by

reproducing Map 1, which formed part of Dr. Hudson’s report at page 36, and which is

reproduced on the following page.

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22. For the sake of clarity it should be said that the word “Kwak” is an abbreviation for

Kwakwaka’wakw (Kwakiutl), that Stl’atl’imx is a more correct name for the Lillooet, and that

the number 2 to the south west of the Tsilhqot’in area represents the Klahoose People.

23. The language of the Secwepemc and the Stl’atl’imx was interior Salish, the language of

the Nuxalx, Kwakwaka’wakw, Homolco and Klahoose was Coast Salish, and the language of the

Carrier and Tsilhqot’in was Athabascan.

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Tsilhqot’in Ethnology

24. Under the heading “Tsilhqot’in Ethnology” Dr. Hudson addresses the six questions which

he was asked to answer by the plaintiff’s solicitors. The questions and Dr. Hudson’s answers are

set up below, either in Dr. Hudson’s words or as a summary.

1. Is there evidence that any First Nation other than the Tsilhqot’in occupied the

Claim Area prior to 1846?

Summary Response The available historical and ethnographic literature indicate that there is no evidence that any other First Nation other than the Tsilhqot’in Occupied the Claim Area in the period prior to 1846. Further, the historical materials that I have looked at indicate that Tsilhqot’in, and no other First Nations, occupied the Claim Area in the 1820s, and prior to 1808 and before and after 1846. This is reflected in the fur trade accounts of Simon Fraser in 1808, McDougall in 1822 (quoted in Anon., Fort Chilcotin manuscript, Original source HBCA B. 188/6/7, fo. 24d-26), statements by priest Nobili in 1845 in which he described his travels to Tsilhqot’in lands, and the anthropological writings of Livingston Farrand on the Tsilhqot’in in 1898 (1900), the writings by priest Morice in the late 1890s and early 1900s, James Teit on the Secwepemc, or Shuswap (1909) and Stl’atl’imx, or Lillooet (1906), Robert Lane (1953, 1981) and Tyhurst (1984) on the Tsilhqot’in.

25. Dr. Hudson expands on that answer by discussing the Archaeological Record, the

Historical Record and the Anthropological Record, each of which supports the conclusions in his

summary of his answer.

2. From the perspective of other First Nations, did the Tsilhqot’in historically protect

their territory including the Claim Area?

Summary Response Based on a review of the available literature, it is clear that the Tsilhqot’in historically protected their territory including the Claim Area. Other First Nations saw the Tsilhqot’in as aggressive in both protecting their lands, and in carrying out attacks on neighbouring groups. Several examples of these are described below.

26. Dr. Hudson expands on this answer in responding to Question 3.

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3. If so, is there evidence that, prior to 1846, the Tsilhqot’in took steps to exclude other First Nations from their territory and the Claim Area?

Summary Response Based on a review of the available literature, there is evidence that the Tsilhqot’in protected their territory, and killed intruders, prior to 1846 around the Claim Area.

27. Dr. Hudson discusses Father Morice’s account of the destruction of the Carrier village of

Chinlac in about 1745 by a Tsilhqot'in war party.

28. He discusses Factor McGillivray’s account in the records of Fort Alexandria of the

conflict between the Talkotin People and the Tsilhqot’in People in 1826, starting from the killing

of three or four Talkotin hunters who had ventured into Tsilhqot’in territory. As was often the

case one of the party was left alive to return to his people as a warning.

29. Dr. Hudson quotes from Mr. Teit writing in about 1906 describing past hostile

relationships between the Tsilhqot’in People and the Lillooet People in these terms:

“The Chilcotin were no very formidable enemies of the Lilloet, for they never ventured to attack the villages. However, they made the mountains to the north dangerous for the hunters. Twice they slaughtered hunting- parties of three men each, and once they massacred a hunting-party of four persons. Several times they also attacked camps when the hunters were away, and captured some women and children. They would also steal boys and girls who were wandering some distance away from camp. Occasionally they attacked the people of the Lakes, and frequently cut off single hunters and small hunting-parties, and in 1892 they were supposed to have been the murderers of a party of four on the Bridge River. Once a long time ago they attacked a large party of Lake people who were camped on the Blackwater River, on their way to trade at Jervis Inlet, and killed them all except a woman, who escaped in a small canoe. When some Lilooet visited the place afterwards, they found that the children had all been disemboweled and their bodies stuck up on sticks. After the small hunting-parties mentioned before had been slaughtered by the Chilcotin, the Pemberton band, aided by some of the Lake people, organized an expedition to take revenge. The Chilcotin, who were neighbours of the Lilooet, had no settled place of abode, and consequently were hard to find. The Lilooet war-party, however, located a large camp of them on the north side of Bridge River, at a place in the mountains called

11

xwalxa’stcin, which means “Many-Roots,” a noted root-gathering place of the Shuswap, Lillooet, and Chilcotin. The Chilcotin were engaged in hunting and digging roots. They were attacked suddenly, many were killed, and their camp was burned. After this, the Lillooet returned home, having suffered hardly any loss themselves. People captured by the Chilcotin never came back. Some of them were sold to the Coast tribes and to the Carriers; and one Lillooet slave was found a few years ago living among the Tahltan of the Upper Stikine, and another was said to have been among the Haida.” (Teit 1906: 237).

(our emphasis)

30. This passage again reveals the warning nature of their attacks, first, in allowing a woman

to escape, and, second, in disemboweling children and placing their bodies up on stakes.

31. Dr. Hudson, here, as throughout his report, seeks to evaluate the evidence through an

appreciation of the perspective of the particular chronicler. Teit was based in Kamloops and was

particularly interested in the Secwepmec and in their relations with their neighbours.

4. From the historical record and the available information about the perspectives of other First Nations, did the Tsilhqot’in hunt and trap in and around the Claim Area, and trade products obtained from in or around the Claim Area historically?

Summary Response Based on a review of the available literature, the Tsilhqot’in historically hunted and trapped in and around the Claim Area, and traded products obtained from and in an area that included the Claim Area. This pattern dates to at least 1808.

[NOTE: Dr. Hudson means back to at least 1808, not up to at least 1808.]

32. The salmon runs into Chilko Lake and up the Chilcotin and other rivers flowing into the

Fraser from the west were of Sockeye. Those runs are on a four year cycle with a particularly

large run expected every fourth year. Salmon was a principle source of food for the Tsilhqot’in

People, when available, and in years of low salmon returns on the Chilcotin River and into

Chilko Lake and other lakes the Tsilhqot’in traded to the West with peoples on the coast and to

the East with peoples on the Fraser River. Ignace, drawing on Teit, describes Shuswap peoples as

12

trading salmon and salmon oil to the Tsilhqot’in and receiving form the Tsilhqot’in dentalium

shells, woven goat’s hair blankets, rabbit skins and marmot skins.

5. Summarize trade relations between the Tsilhqot’in and other First Nations during the time period from the late 1700s to the early 1900s.

Summary Response Based on a review of the available literature, there were trade relations between the Tsilhqot’in and other First Nations between the late 1700s to the early 1900s, and these relations were based on the strategic location of the Tsilhqot’in between the coast and interior that gave them access to resources from both regions, as well as resources from their own lands. The Tsilhqot’in were not seen as particularly friendly, but as they had access to specific resources, such as dentalium shells from the coast, woven goat’s hair blankets, and rabbit skins and marmot skins from their own territory, connections by other neighbouring groups were necessary to acquire such items. It is significant to note that the products that the Tsilhqot’in had reflected both their use of the mountains, and their proximity to the coast, as well as their strategic position between the coast and the rest of the interior. The main trade routs in the Claim Area were (based on Tyhurst 1984:151-174, Lane 1953, Teit various):

1) From Tatlayoko Lake and Chilko Lake via Homathko River and Southgate River

to Bute Inlet. Southgate River was the preferred route for trade with the Homalco. 2) From Chilko Lake and Taseko Lakes via Warner Pass and Tyaughton Creek to

Bridge River. This provided access to Stl’atl’imx/Lillooet. 3) Several routes that connected to Chilcotin River and Fraser River, giving access

to Secwepemc/Shuswap. 4) From Tatlayoko Lake and Chilko Lake via Anahim Lake to Bella Coola River,

giving access to Nuxalk/Bella Coola. 6. Do the Father Nobili letters of 1845 provide any evidence of Tsilhqot’in use and occupation of the area in and around the Claim Area prior to 1846?

Summary Response Based on a review of the available literature, the Father Nobili letters appear to be generally accurate in terms of their agreement with historical routes, descriptions of First Nations and their Territories, and historical events, as I understand them. Nobili was directed into the land of the Tsilhqot’in along routes already known and in existence prior to his trip in October and November, 1845. (Detailed information on the accounts of this trip is given on page 19 below).

13

The writings of Father Nobili that I have read appear to confirm the residency of the Tsilhqot’in in or around the Claim Area. My reading of Nobili’s letters is that he traveled westward from the Fraser River, and then southwesterly to Chilko Lake. On his trip, Nobili described what I see as at least three Tsilhqot’in winter villages containing multi-family lodges. An alternative interpretation of his writings could place his travels westward to Anahim Lake. In either interpretation, these villages clearly place Tsilhqot’in people in and around the Claim Area in the 1840s. In letters dated November 30 and December 27, 1845, Nobili described three Tsilhqot’in villages in 1845, one or two of which I see as likely being in the Claim Area. Nobili’s descriptions indicate that the Tsilhqot’in occupied winter villages. One of these villages, which I call “Village 2”, is described as having three big lodges, with about 130 people.

33. Father Nobili’s account of his mission to the Tsilhqot’in is in terms which indicate that he

visited four villages. Dr. Hudson describes them as “at least three”. And since the final village

was estimated by Father Nobili to be near the coast, perhaps a two day walk, Dr. Hudson’s

opinion is that Father Nobili’s descriptions reflect a trip to Chilko Lake.

34. It is encouraging to note that Father Nobili reports that “polygamy prevailed everywhere,

and everywhere I succeeded in abolishing it.” Father Nobili recorded having married 36 people

(18 marriages) but apparently nobody twice.

35. Dr. Hudson relies also in his report on the records of Father Morice and in passages

relevant to the exclusive and regular use of their territory by the Tsilhqot’in Peoples. Dr. Hudson

quotes from Father Morice in this way:

Oblate priest Adrian Morice wrote on his missionary experiences in the 1800s and early 1900s with Tsilhqot’in and Carrier groups. His writings are found in both French and English. One of his earliest comments on Tsilhqot’in is in French in 1897, in the book Au Pays de l’Ours Noir, based on his missionary work in the Chilcotins in the 1880s, in which he wrote:

“Ces sauvages doivent leur nom distinctif a la riviere Tsilkoh, appelee par les blancs Tsilkohtine, don’t ils peoplent la vallee. (Morice 1897:2)

With respect to the Tsilhqot’in territory, Morice (1897:3) wrote: “Mais le territoire des Tsilkohtines est loin d’etre resserre par les limites etroites de la vallee. Comme ils sont encore nomads pour la plupart (du moins c’etait le cas il y a quatorze ans), on peut regarder come leurs terres de chasse et de peche

14

les immenses forets ou plateaux-prairies qui s’etendent entre le 51 degree et le 52 degree 30 de latitude nord. A l’est et a l’ouest, leur pays est borde respectivement par le Fraser et la chaine des monts cascades.” Morice goes on to write that the Tsilhqot’ins have 4-5 bands.

Testimony

36. Dr. Hudson was subjected to fully prepared cross-examination by counsel for both

defendants. The opinions expressed in this report were not modified by him in any respect.

Sometimes he referred to traits in his writing style and was grateful for clarifications made by the

plaintiff’s solicitors in the preparation of the final version of his report and for clarifications

made during cross-examination. He expressed regret at not including Wilson Duff’s map of

indigenous communities throughout British Columbia as of 1850 which was introduced in cross-

examination and later marked for identification though not, at that stage, as an exhibit. Dr.

Hudson was asked about the Writ of Summons, filed for limitation protection, and the Statement

of Intent, filed for treaty purposes within the last few years by the Esketemc, part of the

Secwetemc People, and he said that those filings did not in any respect affect the conclusions he

expressed in his report.

37. Relying largely on Teit, whose principal field of study was Secwetemc, including

Esketemc, culture, and who was making his investigations about 1900, Dr. Hudson placed the

western boundary of Secwetemc territory and so the eastern boundary of Tsilhqot’in territory

along the north-south line through Coyote’s Sweat House and south to Many Roots shown at the

intersection of “Chilcotin”, “Lillooet” and Shuswap territory on Teit’s 1909 map of Shuswap

Territory contained on page 27 of Dr. Hudson’s report.

38. In conclusion, the plaintiff submits that Dr. Hudson’s report and expert testimony

supports the view that the resources utilized by the Tsilhqot’in people to sustain their community

at the sizes described for the periods before 1800, through the 1800s and into the 20th century to

the present day, through harvesting, hunting, fishing and trading, existed at locations throughout

their traditional territory, including the whole of the Claim Area, and were used on a regular

basis, as seasonally available, and were protected from use by others by exclusion of all others

15

from those resources in all those relevant periods, subject only to unlawful, unjustified and

strongly-resisted infringements.

DR. BRIAN T. GUY, HYDROLOGIST Credentials

39. Mr. Guy holds a Ph.D. and a Masters of Science in Water Resources Engineering from

the University of Guelph, and a Bachelor of Science in Physical Geography from UBC. He is a

Professional Geoscientist, a Professional Hydrologist, and serves as an Adjunct Professor at the

University of British Columbia. Dr. Guy has published a number of refereed journal articles on

Forest and Land Use Hydrology and has been working in the area of hydrology research and

practice since 1980.

Expertise

40. On Day 142, October 18, 2004, at page 00002, lines 16 to 19, the Court said: "I have read

Dr. Guy's CV and I'm satisfied that he is an expert in the field of hydrology and forest hydrology

and entitled to express views in that field."

Expert Report

41. Dr. Guy presented his report entitled "Potential Impacts of Forest Harvesting on

Hydrology and Water Quality in Xeni G'Wet'in [sic] Claim Area"; it was marked Exhibit 0183.

42. Dr. Guy was asked to:

• Identify the basic hydrological features and patterns in the Claim Area and highlight any

features or set of attributes that may be important or unique;

• Evaluate impacts of a range of silviculture prescriptions including large-scale industrial

clear-cut logging; and

• Address, to the extent of his expertise, potential impacts to animal habitat and evaluate,

where appropriate, issues relating to micro-climates, vegetation, water quality, changes in

water levels and seasonal flow, and soil erosion.

16

43. Dr. Guy concluded that potential hydrological impacts associated with forest harvesting

activities in the claim area included:

• Increased snow accumulation in winter; • Faster snowmelt rates in spring; • Increased annual water yield; • Earlier and higher peak flows in spring; • Faster response to rainfall; • Increased late summer streamflows, soil moisture, water tables and water levels in lakes,

ponds and wetlands; • Possible introduction of sediment to streams lakes, wetlands, and ponds from roads and

cutblocks; and • Channel erosion and scour.

44. He found that hydrologic and sediment regime changes could in turn impact water

quality, domestic and agricultural water supplies, and habitat for aquatic and terrestrial species.

CLAYTON APPS, WILDLIFE ECOLOGIST

Credentials

45. Mr. Apps holds the degree of Bachelor of Science in Zoology and Biology from the

University of Alberta, and a Masters in Environmental Design from the University of Calgary;

he is currently a Ph.D. candidate in the Resources and the Environment Program at the

University of Calgary. During his Masters, Mr. Apps completed the core curriculum in

Geographic Information systems (GIS) with the Department of Geography. He is a member of

the College of Applied Biology and, as an R.P. Bio., has engaged in long-term research work on

lynx habitat in British Columbia. He has performed ecology and wildlife habitat research with

Parks Canada, the BC Ministry of Water, Land and Air Protection, the BC Ministry of Forests,

and the BC Ministry of Sustainable Resource Management. His CV is Exhibit 0197.

Expertise 46. On Day 149, November 3, 2004, at page 00002, lines 26 to 31, counsel for the plaintiff,

Murray Browne, said:

17

My Lord, the plaintiff is putting forward Clayton Apps as an expert in wildlife ecology, qualified to generate predictive habitat models and to express opinions on the potential impacts of forestry and forest management on lynx, lynx habitat and prey species for lynx.

47. At page 00002, line 47, the Court said:

Mr. Browne, I’ve read the curriculum vitae and I’m satisfied that Mr. Apps is entitled to express opinions in the areas which you have outlined.

Expert Report

48. Mr. Apps presented his report entitled “An Evaluation of Canada Lynx Conservation

Near the Brittany Triangle, Chilcotin Region, British Columbia” dated January 2003; the final

version of the report is Exhibit 0198. Mr. Apps also submitted a map that was made Exhibit

0199. The Crown placed into evidence an earlier draft of his report which was marked Exhibit

0200. The report reviews lynx ecology and conservation within the Brittany Triangle and

traplines of the Xeni Gwet’in.

49. Mr. Apps was posed four questions by the plaintiff’s solicitors:

1. Does the Claim Area contain valuable lynx habitat and, if so, how much of the

Claim Area and what parts of the Claim Area contain valuable lynx habitat?

• The Brittany Triangle is mostly comprised of relatively high-quality lynx habitat with the exception of its extreme southwestern portion.

• Other quality lynx habitat include: Lower Linfield Creek drainage, between Tatlayoko Lake and the northern arm of Chilko Lake, upper Brittany drainage, and northeast of Taseko Lake.

2. Has the regional importance of the Claim Area been increased by clear-cut logging

around the Claim Area and, if so, is all or part of the Claim Area a "refuge" for lynx?

• … the regional significance to lynx of some parts of the Claim Area, namely the Brittany

Triangle, is higher now due to the distribution and timing of forest harvest in some surrounding landscapes.

3. Will large-scale industrial logging in the Claim Area have adverse affects on lynx

population stability, genetic diversity, and habitat and, if so, in what ways?

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• If forestry is conducted with the primary objective of maximizing economic return of wood fibre production, then adverse effects on the local lynx population can be expected.

• Forest management practices that are expected to affect lynx productivity include commercial harvest road construction and both pre and post-harvest silviculture.

4. In my understanding, do provincial government decision-makers have sufficient

scientific in formation and sufficient freedom within policies and legislation to protect sustainable populations of lynx and to ensure viable lynx habitat when making decisions about forestry in the Claim Area?

• Given the timber supply objectives into the future, I believe that any concessions that can

be made to maintain or promote habitat quality for lynx cannot ensure a self-sustaining local lynx population into the future, notwithstanding inherent habitat potential. (Exhibit 0198, Apps, January 2003 Report, 6)

• Lynx habitat is not explicitly considered in access management within the region, and the productivity and effectiveness of some core habitat areas may be compromised by open-road access. (Exhibit 0198, Apps, January 2003 Report, 6)

Testimony

50. In testimony, Mr. Apps said he didn’t understand how limiting potential [allowable]

impact on timber supply can help enhance the ability to manage for biodiversity.

51. Mr. Apps described a source population as a population of animals associated with a

landscape that is productive enough that reproduction in that population is high enough and

survival in that population is high enough such that that population provides a source of

emigrants to the surrounding regional landscape, much of which may be more suboptimal

habitat. He calls such a source a "wellspring" of animals that is important to the stability of

larger regional populations. Mr. Apps pointed out that, as a result of forest management in the

nearby landscape, the regional significance of the Brittany Triangle to the larger lynx population

in the region has increased.

52. Mr. Apps also spoke of the poor quality of evidence available to the Ministry, noting that

the most neglected aspect of lynx biology and management to date involves consideration of the

contribution of habitat factors to population levels. He told the Court that precise habitat

protection requirements and enhancement possibilities for lynx are not yet known, but it is clear

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that the largest potential for habitat-related impacts on lynx in BC is the forest industry, whose

activities are dominant and widespread throughout the province.

53. Mr. Apps noted that he has been hired in the past to work for various Ministries and that,

in the case of his work with the Ministry of Environment Lands and Parks, his recommendations

for season closure and for spatial control of the lynx hunt have not been implemented.

DR. NANCY J. TURNER, ETHNOBOTANIST

Credentials

54. Dr. Turner is one of the foremost ethnobotanists in the world. She holds a Ph.D. in

botany from the University of British Columbia and has published extensively for the past three

decades. She is a full professor at the University of Victoria, a fellow of the Linnean Society of

London, and a research associate with the British Columbia Provincial Museum. Her works

include hundreds of articles in peer reviewed journals and a number of authoritative texts on

plant use by First Nations in B.C. Her publications include the books Plant Technology of First

Peoples in British Columbia, Food Plants of Interior First Peoples, Traditional Plant Foods of

Canadian Indian Peoples and Ulkatcho Food and Medicine Plants. She has received extensive

awards and recognition, is a member of the Order of British Columbia and has been listed as

“one of the top ten thinkers in British Columbia”.

55. Dr. Turner has conducted field research with various coastal and interior Aboriginal

peoples of British Columbia. Her work includes ethnobotanical research with elders and plant

specialists of the Stl'atl'imx (Lillooet), Secwepemc (Shuswap), Nlaka'pamux (Thompson),

Okanagan, Ktunaxa (Kootenay), and various Athapaskan groups, including the Tsilhqot'in

(Chilcotin) and Ulkatcho Carrier. Her work with the Tsilhqot’in began prior to her research for

the court case and included field research with Helena Myers of the Yunesit'in (Stone)

community in 1988. Dr. Turner was qualified as an expert and testified before the B.C. Supreme

Court in the case of R. v. Jacobs, [1998] B.C.J. No. 3114. Dr. Turner’s C.V. is Exhibit 0204.

Expertise

20

56. On Day 156, November 16, 2004, The Court noted, at page 00001, line 34, that Dr.

Turner was being put forward as:

… as an expert in ethnoecology and ethnobotany, qualified to express opinions on traditional ecological knowledge, the general relationship between First Nations and land and resources, processes and timelines for the acquisition of ecological knowledge and development of social, coastal and spiritual connections to the land and its resources, the Tsilhqot'in and Xeni Gwet'in relationships to their traditional lands, transfer of traditional ecological knowledge and resources between First Nations in British Columbia, and the impact of industrial development on traditional relationships between First Nations and their land and resources.

57. Both Defendants' counsel south to limit Dr. Turner's expertise to ethnobotany, ignoring

the broad subject matter of her work. We understand that the Court ultimately felt the Crown's

objections would go to weight when the Court said, on November 17, 2004 at page 00058, line

13:

It's really a question of argument at this point, it seems to me. So maybe we should proceed with the evidence and come back to the argument.

Expert Report

58. Dr. Turner presented her expert report dated August 2004. It became Exhibit 0205. Dr.

Turner’s general terms of reference were to express an opinion on the relationship between First

Nations and plants and the environment, on the relationships between the Tsilhqot'in and plants

and the environment, and on the repetitive use of plants and occupation or management of sites.

Dr. Turner provided the following summary on page 2 of her report:

“In my opinion, the Tsilhqot'in have occupied the Claim Area historically through the management and repetitive harvesting of plants. Based on my professional experience, readings and my interviews with Tsilhqot'in Elders, it is my opinion that the Tsilhqot'in and Xeni Gwet'in people have been resident for at least 250-300 years in their Claim Area.” “In my professional opinion it would not have been possible for the Xeni Gwet’in and other Tsilhqot'in to have acquired their knowledge and developed their names and terminology for the connection to the plant resources in their territory within

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the shorter time frame of the last 150 years. There is ample evidence that the Tsilhqot’in traded plants and plant-based medicines with other neighbouring First Nations such as Nuxalk people of the Bella Coola valley. The exclusion or alienation of indigenous peoples, including the Tsilhqot'in, from their traditional lands through government activities and regulations, industries such as logging, and privatization, has resulted in great hardship, loss of self-sufficiency and loss of access to traditional food and medicine sources, ultimately negatively affecting people's health and well-being…”

59. Dr. Turner organized her report under five headings:

1. Relationships between First Nations and Plants and the Environment 2. Repetitive use of plants and occupation or management of sites 3. Time Depth 4. Trade 5. The potential impacts of large-scale industrial logging on the plants and the

environment in the Claim Area and on the Xeni Gwet’in and Tsilhqot’in.

Overview

60. Dr. Nancy Turner is one of the pre-eminent ethnobotanists in the world. Her opinions

merit a high degree of weight. She began her research on Tsilhqot’in ethnobotany prior to

having any knowledge of the trial and was able to describe in her testimony and under cross-

examination her objective scientific methodology for conducting her research. Dr. Turner

concluded as follows:

“In my opinion, the Tsilhqot'in have occupied the Claim Area historically through the management and repetitive harvesting of plants. Based on my professional experience, readings and my interviews with Tsilhqot'in Elders, it is my opinion that the Tsilhqot'in and Xeni Gwet'in people have been resident for at least 250-300 years in their Claim Area.” “In my opinion, the Tsilhqot'in have occupied the Claim Area historically through the use, management and repetitive harvesting of plants. “Based on my knowledge of Tsilhqot’in ethnobotany and of plant trade by other First Nations I expect that the Tsilhqot’in would have traded plants with other First Nations prior to the early 1800s.”

61. The only conclusion that suffered on cross-examination was time depth. Dr. Turner was

not able to provide examples of other ethnobotanists who have used plant knowledge to estimate

time depth of occupation. However, Dr. Turner supports her opinion with facts such as the

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“plentiful feast of roots” given to Simon Fraser by the Tsilhqot’in in 1808. Her time depth

estimate still stands as her personal opinion but it is the one slightly weaker area of an otherwise

rock solid set of conclusions.

62. Dr. Turner provided two supplemental reports identifying unique Tsilhqot’in plant

names. The Tsilhqot’in have at least 58 unique plant names and, of these, 13 are for plants that

do not grow north of Tsilhqot’in Territory. The importance is that if the Tsilhqot’in move into

the Territory from the north at some point in history, it would have taken them a period of time

to discover and name these plants.

63. Dr. Turner not only states that the Tsilhqot’in have occupied many parts of the Territory

through repetitive use and harvesting, she also concludes that landscape features at Potato

Mountain are an “artifact” of Tsilhqot’in management over many generations. Dr. Turner draws

an important link between Tsilhqot’in laws and rituals and the management of the environment.

64. She also noted that the Tsilhqot’in stated they engaged in controlled burning to increase

the size of bear tooth and mountain potato roots.

65. Dr. Turner dismissed the Crown’s theory that the Shuswap (Plateau Pithouse Tradition)

occupied the Claim Area or the Territory at the same time as the Tsilhqot’in. She stated that if

they had been contemporaneous, she would have expected to see a lot more sharing of plant

names.

DR. DAVID DINWOODIE, ANTHROPOLOGIST

Credentials

66. Professor Dinwoodie is an associate professor in the Department of Anthropology at the

University of New Mexico. He holds a B.A. degree from the University of Montana, and an

M.A. and Ph.D. from the University of Chicago. His Ph.D. dissertation in 1996 was entitled

“Reserve Memories: a Study of Historical Consciousness on the Nemiah Valley Indian Reserve."

He has published, given papers, and lectured widely in aspects of anthropology. Prior to the

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preparation of his report, Dr. Dinwoodie did fieldwork in the Nemiah Valley reserve of the Xeni

Gwet’in band of the Tsilhqot’in people during the following periods:

September 1990 to March 1991 September to November 1991 October 1992 July 1996 October 1997 August 1998 May-June 1999 August 2000 May 2003

67. So the Xeni Gwet’in band of the Tsilhqot’in People represent a specific and intense area

of study for Dr. Dinwoodie.

Expertise

68. Dr. Dinwoodie started giving his testimony on Day 168, December 14, 2004 and at page

00094, line 28, on that day the Court said:

Obviously counsel are not objecting to the report being marked as an exhibit. I’m satisfied that Dr. Dinwoodie is entitled to express opinions in his field of expertise, which, as is indicated, is linguistic and sociocultural anthropology.

69. Dr. Dinwoodie disclaimed any academic knowledge of Canadian history. But, of course,

he relied on archival historical literature, much of which was also relied upon by Dr. Coates, who

was later qualified as an historian, and by Dr. Foster, who was later qualified as a legal historian.

Dr. Dinwoodie’s reliance on that literature was used as an entry into the temporal anthropology

of the Tsilhqot’in people from before contact until the present.

Expert Report

70. Dr. Dinwoodie was asked to address six questions and those questions and his answers

are summarized below.

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A. Are the Tsilhqot’in a Distinct Aboriginal Group?

71. Dr. Dinwoodie says that anthropology regards the Tsilhqot’in people as a distinct

aboriginal group. They live in a distinct territory; they have a distinct language; and they have

maintained and still maintain a way of life marked by a distinct blend of sub-arctic, plateau and

coastal practices. (They share some practices with one group of neighbours, other practices with

another group of neighbours, and taken as a whole they have a distinct system of behaviour.) The

Tsilhqot’in have a distinct system of meaning and values, that is, they have what anthropologists

call a distinct “culture."

72. The Tsilhqot’in homeland was along the eastern slope of the Coast Range, from the

headwaters of the Dean River in the north to below Chilko Lake in the south, and from the divide

of the Coast Range in the west to the Fraser River in the east. All evidence, archaeological and

anthropological, suggests that the Tsilhqot’in have been in continuous occupation of their

traditional territory since a time well prior to European contact.

73. The Tsilhqot’in fulfill the attributes of an ethnic community in that they have:

1. A collective proper name

2. A myth of common ancestry

3. Shared historical memories

4. One or more differentiating elements of common culture

5. An association with a specific “homeland”

6. A sense of solidarity for significant sectors of the population.

74. Dr. Dinwoodie refers to the anthropological and historical literature. In all such accounts

the Tsilhqot’in are described as a distinct people whose history extends back beyond the time of

contact with Europeans. Dr. Dinwoodie gives examples from the literature.

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B. When was the first contact between Europeans and: 1) The Tsilhqot’in; 2) The Xeni Gwet’in?

75. The first definite contact between Europeans and people identifiable as Tsilhqot’in was

by Simon Fraser in his exploration up and down the river that now bears his name. That occurred

in 1808. There was spasmodic contact but no mutually beneficial interplay between the

Tsilhqot’in and Europeans throughout the 19th Century.

76. There were efforts made by Europeans to contact the Xeni Gwet’in (the Stone

Tsilhqot’in), mostly to hunt them down for purposes such as punishment, which were of interest

only to the European side of the equation, but the first definite contact with the band now known

as the Xeni Gwet’in did not occur until 1913 when they were first referred to as the Nemiah

Band. Reference to the Stone Tsilhqot’in occur in the anthropological and historical literature but

none of those accounts mentions actual contact.

C. Assume 1846 as the date of assertion of British Sovereignty over British Columbia: 1. Were the Tsilhqot’in a distinct aboriginal group in 1846 2. Did the Xeni Gwet’in, or a predecessor group, exist as a sub-group of the

Tsilhqot’in in 1846.

77. Dr. Dinwoodie’s answers to those two questions can be stated in short form in his own

words.

1. The Tsilhqot’in

The Tsilhqot’in were a distinct aboriginal group in 1846. Evidence suggests that there were four major divisions at the time. The main division was located almost due south along the Coast Mountains in the upper Chilcotin River drainage and adjoining areas including Tatla Lake, Chilco Late, Potato Mountain, Nemiah Valley, and the upper Tazeko River drainage. A third division was located east and north of the Chilco Lake division, in the lower Tazeko River drainage and broad swath south of the Chilcotin River. The fourth division was located in the area east of the Nakant’un, apparently as far as Alexis Creek (see Morice 1894: 22-3, Teit 1909: 759-62.)

In sum, as of 1846 the Tsilhqot’in represented a well articulated, substantial and clearly distinct aboriginal group.

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The area occupied by the Tsilhqot’in was described by Father Morice in 1906 and in almost identical terms by Diamond Jenness in 1932: The Chilcotin … occupied the headwaters of the Chilcotin River and the Anahim lake district from about latitude 51 degrees 10’ to latitude 52 degrees 40’, and from the Cascade mountains in the west to within measurable distance of the Fraser river in the east. (Jenness 1932:361)

2. The Xeni Gwet’in:

While the name Xeni Gwet’in does not appear in the anthropological literature until 2002 and the name, the Nemaiah Valley Indian Tribe, only appears in literature in 1913 (see C ii. above), it is my opinion that the Xeni Gwet’in or a predecessor group lived in the Nemiah Valley as of 1846. They were one of the groups whites eventually designated as “Stick Chilcotin”, the Tsilhqot’in people “live(ing) in small scattered communities around Chezikut Lake, Puntzee Lake, Anahem or Nacoontloon Lake, Tatla Lake, Chilco Lake, etc.” (Teit 1909:760). They were most likely associated with Chilco Lake since the valley abuts the lake. Xeni is, in fact, the most accommodating place to live on Chilco Lake. Farrand observes that locals also used the phrase Stone Chilcotin to denominate all the Tsilhqot’in people who continued the traditional life:

There are a considerable number of families leading a semi-nomadic life on the old tribal territory in the woods and mountains to the westward. These latter, considerably less influenced by civilization than their reservation relatives, are known by whites as Stone Chilcotin or Stonies.” (Farrand 1899:645)

Stone Chilcotin seems to have been a broad term that included the Stick Chilcotin. Morice labeled all the western Tsilhqot’in the Tchilkotines des Rochers (Morice 1883:373) or the Stone Tsilhqot’in (Morice 1894:23). In sum, the Xeni Gwet’in or a predecessor group lived in the area of Xeni or Nemiah Valley in 1846. The whites that moved into the greater Chilcotin area during the time of the Fraser Gold Rush (1860s) knew of them as Stick or Stone Indians.

D. What were the approximate boundaries of the Tsilhqot’in territory in 1846, and did that traditional territory include the Xeni Gwet’in Trapline and the Brittany Triangle as defined in the Statement of Claim.

78. Based on evidence in anthropological accounts and historical accounts Dr. Dinwoodie

responds to this question. The anthropological accounts on which he relies are Farrand (1898),

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Teit (1909), Jenness (1932) and Lane (1953). The historical records to which he refers were

Simon Fraser (1808), George McDougall (1822), McGillivary (1829), Cox (1831), and Father

Morice (1833, 1890).

79. Dr. Dinwoodie’s answer to this question is in these terms:

In 1846 Tsilhqot’in traditional territory went from just west of the divide of the Coast Range on the west to a north-south line not far west of the Fraser River to the east. The northern boundary was just north of Anahim Lake (roughly 52.5 degrees north latitude), the southern boundary some distance beyond the southern tip of Chilco Lake (roughly 51 degrees latitude). The outline of the territory is roughly the shape of a rectangle with the west side tipped out at the top to accommodate the orientation of the Coast Range. Diamond Jenness’ map, Approximate distribution of the Cordilleran tribes in 1725 A.D. (1932:352) provides a sound overall (if not precise) representation of Tsilhqot’in traditional territory. Though the outline is not as distinctive, Robert Lane’s map of Tsilhqot’in territory provides more detail (1953:36). The traditional territory included the Xeni Gwet’in Trapline and the Brittany Triangle.

E. What was the Nature of the Tsilhqot’in occupation of the Brittany Triangle and the

Trapline Territory in 1846? In answering this question, please take into account the following matters:

1. Was the occupation exclusive? 2. Were there other people in the area? 3. Who controlled the territory? 4. Were there routes, and who traveled those routes? 5. What use was made of the resources in the territories, and by whom in 1846?

80. Dr. Dinwoodie gives an overview in answer to this question in these terms:

Overview For a period of time extending back from the present 200 years or more, the Tsilhqot’in were in exclusive occupation of a territory bounded by a line just west of the divide of the Coast Range on the west, a line not far west of the Fraser River to the east, just beyond Anahim Lake to the north, to beyond Chilko Lake to the south (for a visual representation, see Diamond Jenness’s map of the approximate distribution of the Cordilleran tribes in 1725 A.D., (1932:352) and Robert B. Lane’s map of “Chilcotin Territory” (Lane 1953:36). The area described here and represented in the maps cited above is the traditional territory at and before the time of contact. Several early observers indicate that the

28

missionaries and the government encouraged the Tsilhqot’in to settle further east in order that they be able to farm and where they might be more accessible and visible (e.g., Teit 1909:762). The nature of Tsilhqot’in occupation of their traditional territory is best understood by considering three points. First, they maintained exclusive control of a recognized territory and they were conscious of that fact. Second, within their territory they maintained an institutionalized schedule of use centred on the (proto-agricultural) root-harvest. Thirdly, their cultural relationship with their territory went beyond their utilitarian interests in it. Their broadly cultural relationship to the land (their traditional territory) is empirically attested in their geographical nomenclature and associated narratives.

81. Dr. Dinwoodie gives three cases illustrating that the Tsilhqot’in maintained exclusive

control of their territory and were conscious of doing so and coordinated in their actions in doing

so. But those three cases are only examples among many.

82. The first case illustrates the standard Tsilhqot’in response to an intrusive hunting party.

Four Talkotins were found hunting in Tsilhqot’in territory in 1826. Three of the four were

“inhumanely butchered” and the fourth escaped “dangerously wounded” to carry the message

back to his people. In short, the Tsilhqot’in did not permit trespassing without permission.

83. The second case illustrates that the Tsilhqot’in would not accept a Hudson Bay post or

Hudson Bay traders in their territory and drove out the Chilcotin Post set up by the Hudson Bay

Company in 1829 by hostile actions against the Hudson Bay traders and their Indian employees.

The latter would not venture into Tsilhqot’in territory.

84. The third example is the Chilcotin War of 1864 on which Dr. Dinwoodie quotes Judge

Begbie:

There has never, since 1858, been any trouble with Indians except once in 1864, known as the year of the Chilcotin Expedition. In that case, some white men had, under color of the pre-emption act, taken possession of some Indian lands (not, I believe, reserved as such, -- the whole matter arose on the west of Fraser River, where no magistrate or white population had ever been, -- but de facto Indian lands, their old accustomed camping place, including a much-valued spring of water), and even after this, continued to treat the natives with great contumely and

29

breach of faith. The natives were few in number, but very warlike and great hunters. They had no idea of the number of whites, whom they had not seen. They shot down every white whom they did see, twenty-one I think, including a trail party of Mr. Waddington’s – one or two escaped their notice. Six Indians were induced to surrender, and were hung. The expense to the colony was inordinate. Except in such cases, which cannot affect the progress of society for good or evil, no trouble is to be apprehended. (Begbie 1872:27-8)

(our emphasis)

85. Some white men had taken possession of some Indian lands and continued to treat the

natives with great contumely and breach of faith. The Tsilhqot’in killed every white man whom

they saw and completely eradicated the white intruders from their territory. They did that in

support of their entitlement to exclusive occupancy of their traditional territory.

86. Judge Begbie’s account in the Report of the Hon H.L. Langevin, Federal Minister of

Public Works immediately after British Columbia joined Confederation, is not tainted in any

way, nor is its weight as proof affected, by the fact that Dr. Dinwoodie is not an expert in

Canadian History, was not qualified as such, and did not know who the Honourable H.L.

Langevin was.

87. Dr. Dinwoodie then discusses the Tsilhqot’in’s highly organized schedule of resource

use. He says that the activity around which the schedule was organized was the (proto-

agricultural) harvest of roots, particularly avalanche lily (Erythrium grandiflorium) and spring

beauty (Claytonia lanceolata). Dr. Dinwoodie discusses the allocation of root gathering grounds

between bands and families. “Sites with good wood and water near good root grounds were

coveted and families would return to the same sites every year.” He describes the seasonal

hunting and gathering practices of the Tsilhqot’in, including the rotation from their winter

villages in the valleys and around the lakes and rivers, up the mountains as the snowline rises and

up to the tree line, gathering roots. On good fishing years they temporarily left the mountain

territory for river bottoms to harvest the spawning salmon and then in the fall they would return

to the high country and stay there through the fall, hunting marmots and big game and harvesting

berries. As winter approached they descended to their winter villages again in the valley bottoms.

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The coherence of the society was cemented rather than diffused by their regular seasonal and

gathering rounds.

88. Finally, under this question, Dr. Dinwoodie describes the depth of the cultural

relationship of the Tsilhqot’in with their territory as it is marked by the nature and richness of the

Tsilhqot’in’s ethno-geographical nomenclature, in other words place names. Dr. Dinwoodie

estimates that there are upwards of five hundred Tsilhqot’in place names in their traditional

territory and that the vast majority are associated with stories that are called to mind every time

people encounter the specific place and every time they hear the name. Dr. Dinwoodie describes

mythological relationships with game and specific territorial locations which cement the

Tsilhqot’in cultural closeness with their land.

F. Were the Trapping Activities (as defined in the Statement of Claim) an integral part of the distinctive culture of the Xeni Gwet’in or the Tsilhqot’in prior to contact with Europeans. In considering this point, the significance of the practice, custom or tradition to the aboriginal community is a factor to be considered in determining whether the Trapping Activities are integral to the distinctive culture. Were the Trapping activities of central significance to the Tsilhqot’in? Were the Trapping Activities one of the defining and central attributes of the Tsilhqot’in? Without the Trapping Activities, would the culture in question have been fundamentally altered or other than what it was? Did the Trapping Activities have continuity with the practices, customs, and traditions that existed prior to contact? Did Trapping Activities characterize the traditional culture, and lie at the core of Tsilhqot’in peoples’ identity?

89. Dr. Dinwoodie’s answer to all those questions is “Yes."

90. Dr. Dinwoodie quotes from Father Morice (1894); Teit (1909) and Jenness (1932) as the

foremost authorities in the field of anthropology as being in agreement that the Trapping

Activities of the Tsilhqot’in, as they were defined in the Statement of Claim, were an integral

part of the distinctive culture of the Xeni Gwet’in, and the Tsilhqot’in generally, prior to contact

with Europeans.

91. Dr. Dinwoodie also examines the archival literature, particularly the Hudson Bay

literature which describes the significance of hunting and trapping for food and clothing in the

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seasonal rounds of the Tsilhqot’in people and the fact that the Tsilhqot’in used the product of

hunting and trapping as part of their essential pre-contact food, clothing and trade items with the

Homalco to the west and the Secwepemc to the east.

92. Dr. Dinwoodie refers to Father Morice and to Lane in giving a description of Tsilhqot’in

fish weirs, fish traps and fish nets and land-based traps for beaver, marten and other small

animals, lynx, bear, marmot, and snares and pitfalls.

93. Father Morice listed the animals trapped by the Tsilhqot’in as elk, moose, caribou, deer,

mountain sheep, mountain goats, hoary marmots, ground hogs, hares, porcupines, beavers,

muskrats, black bear, marten, fisher, otter, wolverine, lynx, fox, wolf, coyote, ermine and mink.

He adds that waterfowl were also sought after by means of trapping devices.

94. In conclusion we turn to Dr. Dinwoodie’s Report at page 16 where he refers to Mel

Rothenburger's: “The Chilcotin War: the True Story of a Defiant Chief’s Fight to Save his Land

from White Civilization.” (1978, Langley, British Columbia). Mr. Rothenburger describes one of

the European expeditions which were led into Tsilhqot’in territory to seek revenge in the

aftermath of the Chilcotin War. The expedition was led by Cox. The description is in these

terms:

He pushed 25 miles south of Tatla Lake into Klatassine’s favorite hunting and fishing territory, the mountainous range covering 30 miles east-west between Mosely Creek, a branch of the Homathko, and Chilko Lake, stretching like an inland sea almost 40 miles itself to the foot of the Coast Mountains. Dozens of Indian trails crisscrossed the area, and the expedition’s scouting parties covered 20- or 30 miles a day in their search. One day before any Indians had been sighted, one of Cox’s scouting parties came upon a new trail in hilly country which was followed for several hours. They discovered a village of deserted Indian lodges, and in a thickly wooded area found a cache of flour, bacon, saddles and other goods from McDonald’s pack train. (Rothenburger 1978:153)

95. It is of considerable significance in understanding the intensity of use by the Tsilhqot’in

people of their resource and sustenance-gathering territory in the mountains that dozens of Indian

32

trails crisscrossed the area. Only intensive use over long periods would account for dozens of

Indian trails crisscrossing the area.

Testimony 96. Dr. Dinwoodie was examined in chief, cross-examined by Counsel for each defendant,

and re-examined. While the cross-examination was detailed and carefully prepared it did not

detract from the weight that should be attached to Dr. Dinwoodie’s expert opinions. Indeed, it

only served to clarify and emphasize them without changing them.

97. One exchange between Mr. Cameron and Dr. Dinwoodie at Day 177, January 11, 2005 at

page 00051 to 00053 makes a significant point:

[Q] Now, on page 20 and 21 you describe at the bottom the boundary of the Tsilhqot’in traditional territory in 1846. When you used the term “territory,” what did you mean by that term? A That’s a good question. I meant to approximate something like the Tsilhqot'in concept of territory, something like that. Nen. In other words, they talk about nen. The way it shows up in Lhin Desch’osh, in other words – the translation is country I think in that particular…So I’m thinking about land that they believed in some sense was part of their cultural domain. Q And would that be limited to land that they were using in some fashion or could it also extend to land that they weren’t in sort of a utilitarian sense, I suppose, using? A It would extend to areas that they weren’t using in a utilitarian sense but were part of – I mean, this would go into a little bit more of what I take them to mean by I guess “country." But it definitely goes beyond utilitarian uses as we normally understand them. Q So, for example, a mountain that had some sort of spiritual significance would be considered part of Tsilhqot’in territory even if that mountain wasn’t being used for hunting purposes or there wasn’t any fishing near or there wasn’t anybody living on the slopes of the mountain, for example? A That’s a possibility.

(our emphasis)

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98. So the Tsilhqot’in culture and connection to their land was not purely utilitarian. And

their uses of the land were not purely utilitarian. Their “use” of the land could be spiritual and

cultural. Here and elsewhere Dr. Dinwoodie’s testimony reaches into the aboriginal perspective,

which his expertise permits him to do.

DR. KEN BREALEY, HISTORICAL GEOGRAPHER

Credentials

99. Dr. Brealey holds a first class Ph.D. in Human Geography from the University of British

Columbia, and a first class MA in Human Geography from Simon Fraser University. Since 1996,

Dr. Brealey has held various academic positions and has taught courses in several sub-disciplines

of geography, including Historical Geography and Aboriginal Geography. He has also worked

as both a researcher and consultant in these areas. Dr. Brealey has authored several refereed

publications, including a 1995 article (based on his MA thesis) in Canadian Geographer, titled:

Mapping Them ‘Out’: Euro-Canadian Cartography and the Appropriation of Nuxalk and

Ts’ilhqot’in First Nations’ Territories in British Columbia, 1793-1916.1 The subject of Dr.

Brealey’s Ph.D. dissertation was the history of First Nations cartography in British Columbia

between first contact and the present; Dr. Brealey testified that the intent of his thesis was, in

part, “… to try to make sense of how indigenous peoples themselves territorialized/understood

their sense of place…”.2

Expertise

100. Neither British Columbia nor Canada objected to Dr. Brealey’s qualifications or to the

introduction of his report as a full exhibit. On January 4, 2005 (at p. 26 of the certified

transcript), the Court held as follows:

1 1995 Canadian Geographer 39(2), 140-156. Exhibit 0240, Expert Report of Kenneth Brealey, September 22, 2004, at iv. 2 Certified transcript, 4 January 2005, at p. 2, lines 28-43.

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28 THE COURT: And 1 1m satisfied, having read29 Dr. Brealey's curriculum vitae and having heard30 his evidence this morning, that he is an expert in31 historical geography and qualified to express32 opinions on the interpretation and mapping of33 sites, areas, locations, place names, events,34 routes, boundaries and territories referred to in35 historical documents and maps, and on the36 historical territoriality of First Nations,37 including the Tsilhqot'in.

Expert Report

101. Dr. Brealey's report, "Historical Geography of the Tsilhqot'in", was tiled in court as

Exhibit 240. As part of his report, he also prepared a series of seven maps of Tsilhqot'in

territory; these maps were filed as Exhibits 241-247.

102. Dr. Brealey was asked by plaintiffs counsel to conduct a historical mapping project of

the Claim Area and of Tsilhqot' in territory generally, based on the documentary (i.e. Euro

Canadian) written and cartographic record, with a view to visualizing and describing the

historical geography of Tsilhqot' in land use, occupancy, trade and international relations. Dr.

Brealey's report was not based on Aboriginal oral histories or traditional ecological knowledge,

except to the extent those sources surface in the Euro-Canadian record.

103. Dr. Brealey was careful to note the assumptions made during his research and the basis

on which those assumptions were made. Dr. Brealey also noted the limitations of the Euro

Canadian record. At page 2 of his report, he writes: cc••• this reconstruction of the historical

geography of the Tsilhqot'in Nation had to address a number of concerns - not the least of which

was the rather poor knowledge the relevant authorities had of Tsilhqot'in territory well into the

post-contact period." In particular, Dr. Brealey noted that the Euro-Canadian record of

Tsilhqot'in territory becomes more accurate and less ambiguous precisely at the time that a

clearer understanding of traditional Tsilhqot'in use and occupancy has already been

compromised by contact and colonization.

104. Dr. Brealey organized his report under seven headings, based on the corresponding map

numbers:

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1. Tsilhqot'in Boundaries

2. Tsilhqot'in Conflicts

3. Tsilhqot'in Ethnogeography

4. The Chilcotin War

5. Tsilhqot'in Geographic Features

6. Tsilhqot'in Land Use and Occupancy

7. Tsilhqot'in Historical Geography

Map 1-Tsilhqot'in Boundaries (Exhibit 241)

105. This map describes the external boundaries of Tsilhqot' in territory and the general

distribution of "sub-national tribes, bands or septs", as documented by various authorities from

Simon Fraser in 1808 through to Robert Lane in 1953. Dr. Brealey notes the hazards involved in

mapping the boundaries of oral, semi-nomadic societies and the further complication that, until

at least the late 19th century, Europeans knew almost nothing of the geography within and

surrounding Tsilhqot'in territory.

106. Dr. Brealey provides a useful perspective on the territoriality of "nomadic" peoples:

... nomadism is a form of territoriality ... that accommodates the needs of kinshipbased societies having a relatively low level of technological "development" andoperating in physiographic or climatic environments that often yield theirresources grudgingly.'

107. Dr. Brealey further expands on territoriality and nomadism as follows:

... territoriality is defined as the attempt by any individual, group or institution toaffect, influence, or control people, phenomena, and relationships by delimitingand asserting control over a geographic area, which becomes the territory. Putalternately, it is a function of three independent exertions: a) one that classifies anarea with respect to others; b) one that involves some form of sharedcommunication within or across it; and c) one concerned with enforcing controlover it. ... The important point is that oral nomadic societies ... are not "lessterritorial" than, say, nation-states or trading blocs. They are simplydifferent [emphasis added]."

3 Exhibit 0240, Expert Report of Kenneth Brealey, September 22, 2004, at 6, n. 1.4 Exhibit 0240, Expert Report of Kenneth Brealey, September 22, 2004, at 6, n. 6.

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108. Map 1 uses colour tinting to approximate the three areas where contact-induced change

has realigned the boundaries of Tsilhqot’in territory. Dr. Brealey’s opinion is that, even given

the general eastward shift of the Tsilhqot’in following post-contact disease epidemics, “… at no

time do [these eastern movements] appear to have affected or appreciably altered traditional

Tsilhqot’in land use and occupancy in the claim area.”5 That is, the boundaries of Tsilhqot’in

territory have included the Claim Area during all relevant time-scales.

Map 2 – Tsilhqot’in Conflicts (Exhibit 242)

109. This map records the general area and orientation of conflicts between the Tsilhqot’in

and their neighbours, as documented in the written record. Dr. Brealey’s opinion is that, to the

extent that conflict always has a territorial component, the location and orientation of the

conflicts documented on Map 2 demonstrate that the Tsilhqot’in boundaries outlined on Map 1

were recognized and defended. Dr. Brealey writes (at pp. 20-21 of his report): “The important

point, again, is that both Tsilhqot’in and non-Tsilhqot’in recognized the Claim Area as lying

firmly within Tsilhqot’in territory.”

110. Dr. Brealey further elaborates on the “territorial component” of conflicts between

Aboriginal nations:

… it is incorrect to dismiss raids or feuds (much less battles or wars) as merely “vengeance” for previous wrongs. In oral societies characterized by shared experience and responsibility, there is no distinction drawn between the actions of an individual and the collective of which they are a part…, but also no difference between the “body of the collective” and the “body of the territory” in which national identity is rooted.6

Map 3 – Tsilhqot’in Ethnogeography (Exhibit 243)

111. This map records the routes of Europeans who traveled through or along the edges of

Tsilhqot’in territory, from Alexander Mackenzie in 1793 through to reserve commissioner A.W.

Vowell in 1899. Black markers on the map denote sites where these Europeans documented an

indigenous presence, settlement, or other sign of use and occupation. Dr. Brealey notes that it is

5 Exhibit 0240, Expert Report of Kenneth Brealey, September 22, 2004, at 7-8, n. 12. 6 Exhibit 0240, Expert Report of Kenneth Brealey, September 22, 2004, at 20, n. 21.

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important to consider these routes in the context of what Europeans actually knew of the country

in which they traveled (for example, George McDougall was the first European to actually enter

Tsilhqot’in territory, in 1822). Dr. Brealey’s opinion is that the limited “lines of sight” visible

from these European routes ultimately determined the nature and extent of early Euro-Canadian

knowledge about the use, occupation and geography of Tsilhqot’in territory. At page 33 of his

report, he writes:

… it is my opinion that these routes ultimately constituted the basic scaffolding around which the Euro-Canadian “archive of knowledge” of Tsilhqot’in land use, occupancy and jurisdiction iterately evolved. It is in this sense, therefore, that Map 3 displays the “lines of sight” that interpreted and recorded Tsilhqot’in geography from “on the ground”….

Map 4 – The Chilcotin War (Exhibit 244)

112. This map shows the main events in, and the routes of the colonial expeditions dispatched

into the interior to quell, the Chilcotin War of 1864. As Dr. Brealey describes at p. 39 of his

report, “The 1864 Chilcotin War is the only instance of armed resistance to colonial authority by

an indigenous nation in what becomes British Columbia since first contact.” In Dr. Brealey’s

opinion (at p. 43 of his report), the events and European expedition routes of the Chilcotin War

are:

… important elaborations on the geographical range of Tsilhqot’in land use, occupancy, and jurisdiction already compiled on Maps 1 through 3. Indeed, at no time does any expedition member ever suggest that the people they encounter en route are other than Tsilhqot’in…. Most importantly, the three “epitomizing events” that launched the war (E1 through E3) roughly triangulate the traditional territory of those Teit called the Stick (or Morice and Smith the Stone) Chilcotin; and in mirroring the same degree of “Tsilhqot’in tolerance” to territorial encroachment suggested by the raid and battle vectors on Map 2 basically confirm, in places, the locations of the [Tsilhqot’in] boundaries shown on Map 1.

Map 5 – Tsilhqot’in Geographic Features (Exhibit 245)

113. This map takes most of the data compiled on Maps 1 through 4 and on Map 6 and

presents it, where appropriate, in a site-specific format. It shows the main trails, rivers and

lakes, and all places that have been documented in Tsilhqot’in territory between first contact and

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the contemporary land claims period. Locational markers are colour-coded to differentiate: a)

known Tsilhqot’in sites (in red); b) sites that may or may not have been used, accessed or

occupied by Tsilhqot’ins in the pre- or post-contact periods (in yellow); c) known non-

Tsilhqot’in sites (in green); and, d) preemptions (in blue).

114. Map 5 also documents the Tsilhqot’in transportation network and trails (in brown). Dr.

Brealey’s conservative estimate is that more than 90% of the total trail mileage displayed on

Map 5 is of indigenous origin.7 At page 48 of his report, Dr. Brealey notes, however, that rivers,

creeks and trails shown on Map 5 are not exhaustive and that, “… there would have been

countless subsidiary trails, routes, creeks or portages that would have been used by Tsilhqot’in in

pre-contact times, but have since been overgrown, abandoned, or obliterated by third party

resource activity.”

115. Much detailed information on Map 5 is presented in the “text boxes” and their footnotes,

at pages 50 to 92 of the report. Highlights from this section of the report include:

• A description of the apparent locations of crosses erected in 1845 by Father Nobili: at

Canoe Crossing (Biny Gwechugh) on Chilko Lake, at Tatla Lake (Tatl’ah Biny) and on

either side of the Chilcotin River at what is now the Newton Ranch.

• Descriptions of Tsilhqot’in responses to several preemptions, including: the Manning

Ranch (which figured prominently in the Chilcotin War of 1864); the Salmon Ranch

(Salmon was apparently threatened by resident Tsilhqot’in before 1872); Tom Hance’s

ranch at Hanceville (Hance apparently paid the resident Tsilhqot’in $500 so Hance could

establish a ranch); Ben Franklin’s preemption near Tatla Creek sometime in the 1890’s

(Franklin allegedly paid Old Guichon, a Tsilhqot’in, a caddy of tobacco – Franklin

apparently described the “Queen’s law” and the corresponding legality of preemptions,

only to have Old Guichon respond to the effect that no Queen had ever talked to him);

and Lewis Elkins’ Ranch #2 on the south shore of Cochin Lake and Edmund Elkins’

7 Exhibit 0240, Expert Report of Kenneth Brealey, September 22, 2004, at 48, n. 9.

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Ranch at the west end of Nemiah Valley (Tsilhqot’in responses to the Elkins preemptions

are described in oral history and other evidence).

• Descriptions of important Tsilhqot’in settlements (e.g. Chilko Lake and Nacoontloon /

Anahim Lake), of other important use and occupation areas (e.g. Potato Mountain and

Yohetta Valley), and of the regional origins of current Tsilhqot’in bands (e.g. Anaham,

Nemiah and Stone).

Map 6 – Tsilhqot’in Land Use and Occupancy (Exhibit 246)

116. This map summarizes the basic patterns of Tsilhqot’in land use and occupancy that can

be confirmed, or reasonably inferred, from evidence adduced elsewhere in the report. The main

thematic feature of this map is a series of “directional flowlines” colour-coded to differentiate: a)

pre-contact use and/or occupancy patterns (in blue); b) post-contact, but pre-reserve, patterns

(yellow); and c) post-reserve patterns (purple). This map also shows Indian reserves allotted for

(or requested by or on behalf of) Tsilhqot’ins.

117. Dr. Brealey presents a useful summary of Tsilhqot’in social organization and of the

“dynamic and kinetic” character of Tsilhqot’in land use and occupancy, which he takes from

leading authorities (e.g. Lane, Tyhurst and Dinwoodie). At page 93, footnote 4, of his report, he

writes:

Writ large, Tsilhqot’in land use and occupancy patterns at monthly, seasonal or annual scales were typical of other Athapaskan plateau cultures, and had both social and physiographical determinants. According to Lane… the fundamental social unit was the nuclear family. It could operate independently, but more commonly allied with the families of brothers to form a co-resident group, or encampment…. Tsilhqot’in “whose winter village populations were large, or whose locations did not vary… year to year… [typically dwelt] in circular pithouses… [but] those… who did not winter in the same location every year, or… in areas where the ground was difficult to excavate… [in] gabled rectangular houses”… or even sapling shelters, but in all cases “within sight or sound of each other”…. Several encampments would usually share hunting and gathering territories and would often cooperate in building fish weirs or game fences, but familial ownership of weirs and wintering sites was acknowledged. A number of interrelated encampments formed the regional band. It took its name from the lake where the members customarily wintered – after contact some adopted the

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name of the leading “chief” – but beyond that band boundaries were loosely defined [citations omitted].

118. Dr. Brealey continues by describing the Tsilhqot’in seasonal round, as follows:

In winter, encampments formed at major and minor lakes, and Tsilhqot’in ice fished for suckers and trout. Smaller parties would disperse to hunt marmots, deer, moose and beaver. Where snow was not too deep, herbs were gathered. Spring was a difficult time as the rivers were at their highest, ground was at its soggiest, and ice was soft, but Tsilhqot’in would follow the melting snowline into the higher country, and by early summer would be hunting, and gathering blossoms and roots on the mountain slopes. In late summer people would descend to the rivers and streams for salmon fishing, gathering berries and medicinal plants as they went. In early fall, they would return to the high country to hunt big game and gather berries, and as winter approached, moved back to their wintering grounds at the lakes [citation omitted].

119. In Dr. Brealey’s opinion, although Map 6 does not (and cannot) capture the minutiae of

daily movements, the map paints a reasonably thorough picture of Tsilhqot’in land use and

occupancy patterns during and after contact. Dr. Brealey notes that, although there is a general

shift in these patterns reflecting the general eastward shift of Tsilhqot’in boundaries following

contact, at no time does it compromise Tsilhqot’in territorial integrity or continuity in the Claim

Area. In Dr. Brealey’s opinion, however, reserve allocation clearly affected traditional patterns

of Tsilhqot’in use and occupancy; while some traditional patterns in the western plateaux and

coast ranges persisted, the reserves initiated a process of “settling down”, with significant effects

on the range and purpose of Tsilhqot’in land use and occupancy.

Map 7 – Tsilhqot’in Historical Geography (Exhibit 247)

120. This map presents a composite of Maps 1-6, but without the dialogue boxes that

accompany Map 5. At page 98, Dr. Brealey describes Map 7 and concludes his report as

follows:

So far as I am aware, it is not only the first, but in fact the only complete and thorough cartographical representation of Tsilhqot’in land use and occupancy that can be constructed from primary materials, as evaluated, interpreted and understood in a social scientific register. I think that it also shows a very high level of temporal and spatial

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continuity between what otherwise does appear, prior to their reconstruction, as a set of rather disconnected or fragmentary facts. If there are gaps and discontinuities, they must always be contextualized in the disruptions and dislocations of contact and colonization. Indeed, it must be remembered that in any cross-cultural context, and where evaluation, interpretation and understanding are themselves culturally determined, even a map like this one understates the case. British Columbia, after all, is a hybrid place where not only one, but two (or perhaps even more) quite different perspectives, quite different territorialities, and quite different value systems have only recently come into collision. Put alternately, geographies constructed by narrative, song, dance, and genealogy have many points of connection to those constructed by surveys, maps, journals and texts, but they cannot be reduced to them [emphasis added].

Testimony

121. Counsel for both BC and Canada cross-examined Dr. Brealey at length. Dr. Brealey’s

opinions and conclusions were unshaken, although parts of the cross-examination re-emphasized

the point Dr. Brealey had already made several times in his report: namely, that one has to be

wary of placing too much reliance on historical maps made by Europeans who knew little about

the geography of Tsilhqot’in territory.

MIKE DEMARCHI, BIOLOGIST AND WILDLIFE ECOLOGIST Credentials

122. Mike Demarchi holds a Bachelor of Science in Biology, with a marine biology major,

from the University of Victoria and a Masters of Science in Forestry Wildlife Ecology and

Management from the University of British Columbia. Mr. Demarchi has conducted a large-

scale inventory of mountain goat populations as part of a two-year co-management study

between the Nisga’a Lisims Government and the Province of BC and is currently conducting a

10-year investigation into the effects of road development on grizzly bears in the Nass Valley for

the BC Ministry of Water, Land and Air Protection. He has worked with the Department of

National Defence, the BC Ministry of Transportation and Highways, and the BC Ministry of

Environment, Lands and Parks; his CV is Exhibit 0368, Tab 1.

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Expertise

123. On Day 209, April 4, 2005, at page 00001, lines 34 to 37, Counsel for the defendant

stipulated that he would recognize Mr. Demarchi as “an expert in the field of wildlife biology

and wildlife ecology.” The Court agreed at page 00001, lines 39 to 40, saying:

And I have read the curriculum vitae, which would lead me to the same conclusion.

124. Neither Defendants’ counsel objected to Mr. Demarchi being qualified as an expert,

although BC suggested during cross-examination that Mr. Demarchi was more a generalist

expert than a specialist.

Expert Reports

125. Mr. Demarchi prepared two expert reports for this case – both of which were made

exhibits. The reports are, respectively:

1. Mountain Goats (Oreamnos americanus) in and near the Brittany Triangle and Trapline

Areas, British Columbia, dated August 2004 (Exhibit 0368.2A). 2. Forests, Industrial Forestry, Wildlife, and Habitat in and near the Brittany Triangle and

Trapline Areas, British Columbia, dated January 2005 (Exhibit 0368.2B). Report 1: Mountain Goats 126. For this report, Mr. Demarchi was requested to address the following topics:

1. The predicted presence and range of mountain goats in the claim area

• Rocky and vegetated faces of the mountains in and around the claim area; and, • Low probability that numbers exceed 1,000 at any given time.

2. What is the predicted range of mountain goats in the Claim Area?

• Occurrence on the forested and bares slopes of mountains that attain elevations where alpine tundra exists

• Demarchi has mapped potential mountain goat habitat in and around the claim

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3. What movement patterns do you predict? Would mountain goats ever move to lower elevations, into valleys or into forested areas?

• Daily movement between feeding and resting areas and nearby escape terrain • Seasonal movements from alpine to forested areas for mineral licks and deep snow

avoidance • Dispersal movements through lower elevation for genetic variation purposes

4. Does the Claim Area contain potentially important mountain goat habitat and why

is it important habitat? If so, which areas contain potentially important mountain goat habitat and why is it important habitat?

• Because the area contains habitat that meets the needs of mountain goats – it is

important. • Although not the highest quality, it is the only habitat for those goats that live there so

it is important for that population.

5. The potential impacts of large-scale industrial logging in the Claim Area?

• The temporary loss of critical winter range through forest harvesting • Disturbance and displacement caused by activities associated with industrial forestry • The indirect effects of increased access for humans and predators • Increased energy expenditure and malnutrition can result in weight loss which in turn

can reduce fecundity of female ungulates, increase an animal’s susceptibility to predation, or cause death by malnutrition or exposure

• Roads facilitate legal and illegal activities associate with hunting, fishing, poaching, prospecting, camping, and hiking.

6. From a wildlife conservation perspective, what should the provincial government do

to ensure sustainable mountain goat populations and habitat in the Claim Area?

• Improve mountain goat research and monitoring – in particular, sex ratio information needs to be introduced to surveys

• Make it illegal to kill females • Improve technical requirements and create regulations intended to provide habitat

protection • Standards for research programs need to be devised • Move away from increased extraction rates and self-regulation by industry • Strengthen existing enforcement capacity

127. Mr. Demarchi also provides a number of recommendations for conservation of mountain

goats in the claim area.

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Report 2: Forests, Industrial Forestry, Wildlife, and Habitat 128. This report addressed the following questions:

1. If industrial forestry was to proceed in the Claim Area, as it has done in areas adjacent to the Claim Area, is it likely that any key species of wildlife would be adversely affected? Key species include: fisher and American marten; snowshoe hare, squirrels and other species that may be important prey species for fisher and marten; grouse, including spruce grouse; and ungulates.

Yes – all the key species would be adversely effected by industrial forestry in the claim area; impacted species include but are not limited to: fisher, American marten, snowshoe hare, red squirrel, southern red-backed vole, northern flying squirrel, and spruce grouse.

2. By what means might actions and outcomes of industrial forestry adversely affect

key species of wildlife?

Human caused mortality • Direct death from machinery encroachment • Increased risk of mortality resulting from increased access and direct motor vehicle

impact

Adverse effects on habitat structure • Destruction of resting, nesting and denning habitat • Silviculture practices designed to reduce animal damage to trees • Economic value of highly structured mature forests leaves remaining mature forest at

risk of fire

3. What are some important differences between industrial forestry and non-anthropogenic forest-stand-initiating events with respect to wildlife habitat and suitability?

The report includes a table setting out differences between logging and natural disturbances at 11. This has been included below, in the General section of this memo.

4. What is the relative habitat suitability of the Claim Area compared to areas

surrounding the Claim Area in light of the extensive clear-cut logging around the borders and areas outside the Claim Area?

• Industrial forestry outside the Claim Area has resulted in the situation whereby the

relative habitat suitability for key species in the forested reaches of the Claim Areas is presently greater than in the surrounding areas affected by industrial forestry.

• Reasons for the decrease in suitability include: 1) adverse effects of forestry on wildlife habitat and 2) uncertainty about the compatibility of industrial forestry with wildlife habitat conservation over extended spatial and temporal scales.

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• The apparent problems simply regenerating forests on harvested sites in the Chilcotin – make Mr. Demarchi doubt that, under current knowledge, industrial forestry will account for wildlife values in the claim area.

Testimony 129. On cross-examination, the Province tried to suggest Mr. Demarchi was advocating by

quoting another report of his, on the Nass Valley, which suggested that Forestry and Mountain

Goat populations were not incompatible. Mr. Demarchi pointed out that the Nass contained

much better Mountain Goat habitat and that Goats got salt from sea air there, rather than using

salt licks in forested areas.

130. Mr. Demarchi suggested that there were two reasons to temper optimism about the

compatibility of vertebrates and forestry: 1) the time lags inherent and the eventual outcome

derived from any change in practice (some current trends are not favourable to vertebrates); and

2) the fact that it remains undemonstrated that a complex combination of vertebrate needs can be

economically sustained in managed stands. He noted that:

… it is impossible to maximize every value that a piece of forested land provides. There are trade-offs that have to be made, decisions have to be made. If you are going to focus your efforts on industrial forestry on that piece of land, there will be species that will suffer as a result. If you’re going to focus your efforts on protecting species, then you may severely limit your options for industrial forestry.

131. Mr. Demarchi also pointed out that second growth trees in various parts of the province

have proven to be of inferior quality,.

PROFESSOR HAMAR FOSTER, LEGAL HISTORIAN

Credentials

132. Professor Foster is a professor in the Faculty of Law at the University of Victoria and has

been a member of that faculty since 1978 and a full professor since 1993. He holds the degrees

of B.A. (Hons), M.A., L.L.B and M.Jur. (with distinction); he has published widely in reputable

journals on legal history, particularly but not exclusively the legal history of British Columbia,

and on aboriginal law, again particularly but not exclusively aboriginal law in British Columbia.

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Expertise

133. On Day 214, April 11 2005, the Court, at page 00019, lines 19-25, said:

And I’m satisfied that Professor Foster is a legal historian who is qualified to do research and interpret historical documents and express opinions on historical relations between aboriginals and non-aboriginal people and legal systems in the transboundary west including what is now British Columbia.

134. Both of the Defendants conceded Professor Foster’s expertise as described by the Court.

Expert Report

135. Professor Foster’s expert report, prepared at the request of the plaintiff’s solicitors, was

filed in court as Exhibit 0391. It was prepared in the form of responses to three questions that

had been posed by the Plaintiff’s solicitors. The responses are set out fully in the report. But

Professor Foster concluded his report with a summary of his response to each of the three

questions. The three questions and Professor Foster’s summary of his responses to each question

are set out below.

1. How would a legal historian determine whether a particular Aboriginal group had a system of law prior to contact with Europeans and throughout the period of European contact and settlement? Assuming such a system of law existed, how would a legal historian ascertain its content and operations?

Response Summary:

As a legal historian, I operate on the assumption that Aboriginal people in BC were organized in societies and engaged in behaviour that can and should be characterized as legal, that is, behaviour that is governed by rules and principles as well as influenced by values or interests. However, because stateless societies lack police and courts, enforcement in such societies falls upon the relevant kin group, members of which sometimes need to be persuaded to do their duty by persons with influence. And of course not all behaviour is rule-governed and rules are not always followed: all societies experience deviance. As historian Patricia Limerick has said, “(i)n thinking about (North) American Indian history, it has become essential to follow the policy of cautious street crossers: Remember to look both ways.”

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For the reasons given earlier, determining anything but the broad outlines of these laws from the documentary record alone is difficult. The method described by Reid and employed here is that of historical analogy, looking for “form hidden in apparent formlessness,” This means, in large part, reading documents in the light of information and contextual knowledge gleaned form other sources, in order to see if there is evidence of legal principles in the documents that are similar to, or different from, those in the established sources.

2. Based on the historical documents you have received and your expertise as a legal historian, can you comment on the presence or absence of a Tsilhqot’in system of law historically?

Response Summary:

As anthropologist Michael Asch has said with respect to describing the culture of another Athapaskan people, the Slavey, “any interpretation…is bound to contain errors and must be considered tentative at best.” 141 The same is true of my attempt to discern the outlines of Tsilhqot’in law. I cannot say much about particular rules – the mesh in the documentary net is simply too wide to catch details so small – but I can say that the documents I have examined reveal, sometimes quite strikingly, evidence of the legal principles concerning homicide, property and territory. They do not disclose the sort of elaborate system of law characteristic of some coastal nations but, given the nature of the evidence, that was not to be expected. When Judge Begbie asked the Tsilhqot’in chiefs what their law of murder was, he was recognizing that they had law, whatever he might have thought of it. So were Riske and McIntyre when they paid rent; the colonial press when they spoke of “Chilcoaten territory”; Governor Seymour when he described some lands as under the jurisdiction of Alexis and others under that of Anaheim; and Marcus Smith when he referred to the Tsilhqot’in at Alexis Creek as having “undisputed possession of the land from time immemorial.” The details may be sketchy, but the evidence supports the conclusion that there was a Tsilhqot’in people, sharing a common language, composed of several tribes with chiefs and sub-chiefs, controlling territory and enjoying property rights in specified lands. Although authority appears to have been diffuse and consensual, some leaders, notably Anaheim but including, for a time, Klatsassin, had particular influence.

3. Based on the historical documents and your expertise as a legal historian, how would you interpret the causes of the Chilcotin War? What role, if any, would you attribute to Tsilhqot’in law in this conflict?

Response Summary: The immediate cause of the Chilcotin War was the ill-advised threat of smallpox. But the Tsilhqot’in had always been concerned about incursions into their territory and

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Waddington’s wagon road, constructed without permission and without compensation, represented the greatest incursion to date. Even elements of the colonial press acknowledged that land was a key issue in the conflict, and so did Judge Begbie. The role of law can be seen most clearly in the statement, “You are in our country; you owe us bread;” in the role of Anaheim and Tahpit in the killing of Manning for appropriating tribal lands; and in the attempt by Ahan to buy his pardon. The Chilcotin War, to use Carol Rose’s expression, arrested attention. Even more than some of the other instances discussed above, it put others on notice that the Tsilhqot’in had a prior claim.

Testimony

136. Professor Foster was examined in chief, cross-examined by counsel for each of the

defendants, and re-examined. In the end the central conclusions to which the whole of Professor

Foster’s careful testimony was directed, under the historical methods and according to the

historical principles he describes in answer to the first question, were unaffected by his cross-

examination. Those central conclusions, as contained in the second and third summaries, are

these, first:

…the evidence supports the conclusion that there was a Tsilhqot’in people, sharing a common language, composed of several tribes with chiefs and sub-chiefs, controlling territory and enjoying property rights in specified lands.

which, in the phrase “controlling territory” indicates exclusive possession and occupation, and,

second, to repeat, emphasize, and explain the summary:

But the Tsilhqot’in had always been concerned about incursions into their territory and Waddington’s wagon road, constructed without permission and without compensation, represented the greatest incursion to date. Even elements of the colonial press acknowledged that land was a key issue in the conflict, and so did Judge Begbie. The role of law can be seen most clearly in the statement, “You are in our country; you owe us bread:’ in the role of Anaheim and Tahpit in the killing of Manning for appropriating tribal lands: and in the attempt by Ahan to buy his pardon. The Chilcotin War, to use Carol Rose’s expression, arrested attention. Even more than some of the other instances discussed above, it put others on notice that the Tsilhqot’in had a prior claim.

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which refers to the most notorious but only one of the many demonstrations of the Tsilhqot’in

People’s determination to preserve the exclusive nature of their possession and occupation of

their traditional territory.

[NOTE: The reference to Carol Rose is to the author of the article, “Possession as the Origin of Property”, (1985), 52, The University of Chicago Law Review 73. The article explores the legal attributes and consequences of possession as the foundation of title and refers to the importance of notice to others of the claim to possession in a way that cannot be overlooked, or, in other words, a way that “arrests attention”.]

137. In answering the second question, Professor Foster divides his response into these

segments: “Terminology, Language and Common Identity”, “Territory and Boundaries”, and

“Other Laws”. The segments on “Land” and “Territory and Boundaries”, are closely relevant to

the geographic scope and extent of the aboriginal title claimed in this case.

138. Professor Foster refers in his testimony to Judge Begbie’s letter to Governor Douglas in

1860 which says that the one thing that hasn’t been done, and needs to be done, is to extinguish

the Indian Title. That passage in Professor Foster’s testimony grew out of questions in cross

examination relating to Governor Douglas who said:

The native Indian population of Vancouver Island have distinct ideas of property in land and mutually recognize their several exclusive possessory rights in certain districts…

139. But when Professor Foster moves on in his testimony his full answer contains this

passage, which is not limited in its terms, or in the plaintiff’s submission, in its context or in its

application, to Vancouver Island:

It looks as if both Douglas and later Trutch eventually decided a number of things. I think they decided they could obtain Indian land without entering the treaty process, which they regarded as a very difficult process, which should come as no surprise to us today. They regarded the Indian population as in serious decline and possibly at the risk of extinction. They regarded the cost as increasingly mitigating against making treaties. And I think the fourth and probably most important consideration is that Although they regarded these people as having distinct ideas about property and land, they did not believe that they were under a legal obligation to make treaties and to extinguish that title. And it’s one of the mysteries of BC history. In 1860 Judge Begbie writes to

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Douglas and says, the one thing we haven’t done that we need to do is extinguish the Indian title, and after that nothing is done.

140. In conclusion, the Plaintiff submits that Professor Foster’s expert testimony supports the

view that the Tsilhqot’in People had Aboriginal Title to an extensive territory including the

whole of the claim area before, at, and after 1846, based on widely asserted and recognized

exclusive possession and occupation coupled with regular use, all in accordance with the laws of

the Tsilhqot’in People. Professor Foster’s testimony to that effect was unshaken on cross-

examination.

DR. KEN COATES, HISTORIAN

Credentials

141. Dr. Coates holds the degrees of B.A., M.A. and Ph.D., all in the field of history. From

1980 to 2004, Dr. Coates held teaching and academic administrative positions of increasing

responsibility at universities in British Columbia, the Maritimes, and the Prairies, in Canada, and

at Waikato University in New Zealand. His major fields of scholarly interest are Indigenous

Rights and Land Claims; Northern and Arctic Studies; Indigenous Peoples/Indigenous-

Newcomer Encounters; and World and Comparative History; and he has published widely in

those fields.

Expertise

142. On day 231, May 16, 2005, on page 00046, line 1, the Court said:

THE COURT: 19 on his and 18 on yours, but I think we know what we’re talking about. And I’m prepared to as well acknowledge that Dr. Coates is a professional historian who is entitled to express opinions on matters of Canadian History and in particular those outlined at page 18 of Exhibit #406 or page 19 of Exhibit #407, as qualified by his evidence…

143. At page 00012, line 21, Dr. Coates’ qualification to express opinions on five subjects

were elicited by counsel for the Plaintiff, as outlined at page 18 of Exhibit 0406

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Contact experiences involving indigenous and non-indigenous peoples; dates of contact between First Nations and newcomers; differing Native and newcomer perspectives on historical events and processes; the interpretation and use of historical documents and archival records; the analysis of historical documents in relation to Aboriginal social structures and the interaction of indigenous and newcomer legal systems.

Expert Report (Exhibits 0406 and 0407)

144. The Table of Contents of Dr. Coates’ Report is like this:

Table of Contents

Curriculum Vitae: Dr. Ken Coates General Conclusions

I. Introductory Comments II. Date of Contact

A. What are the most significant historical events in determining the date of contact with the Tsilhqot’in by Europeans? B. Can you comment on the date of contact with respect to different Tsilhqot’in groups?

1. What are some of the different possible dates for different

Tsilhqot’in groups? 2. Was the date of contact with the so-called “Stone” Tsilhqot’in

different from the date of contact with other Tsilhqot’in groups and what is the best estimate for the date of contact with the Xeni Gwet’in (Nemiah Valley) group of the Tsilhqot’in?

3. Is there a distinction in historical analysis between the date of contact and the date of sustained contact or influence by Europeans?

III. Relations Between Tsilhqot’in and European Traders:

A. To what extent did the Tsilhqot’in participate in the European fur trade? B. To what extend did the “Stone” Tsilhqot’in and the Xeni Gwet’in

participate in the European fur trade historically? C. Was the Tsilhqot’in participation in the European trade different in

manner or degree from the participation of other First Nations? 1. If so, in what way? D. Did the European fur trade create the Tsilhqot’in trade in furs or other

items or was there a pre-existing trade in furs and other items? E. If the Tsilhqot’in trade was pre-existing, what were the impacts and

influences of the European fur trade on the pre-existing aboriginal trade? F. Is there evidence that the Tsilhqot’in took steps historically to stop or limit

the European fur trade in and around their territory? 1. If so, why, and to what extent did they succeed?

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IV. Is there archival historical evidence that supports or contradicts the presence of an

“Organized” Society and “Tsilhqot’in Law” among the Tsilhqot’in? A. Is there documented European awareness of Tsilhqot’in political

structures? Is there evidence of federal government recognition of Tsilhqot’in organized society and Tsilhqot’in law?

B. Is there documented evidence of Tsilhqot’in social organization? C. Is there historical evidence of Tsilhqot’in traditional law and authority? D. Is there historical evidence demonstrating newcomer awareness of

Tsilhqot’in territory? E. Are there Tsilhqot’in comments in the historical records about traditional

society ? F. Tsilhqot’in in Newcomer Recollections of the Contact Experience.

VI. Final Observations.

145. Under the initial heading of General Conclusions, Dr. Coates set out these conclusions:

General Conclusions: The review of the history of Tsilhqot’in relations with newcomers, emphasizing the first century of direct contact, reveals several clear patterns and supports the following specific conclusions: 1. It is not possible to provide precise indications of the date of contact between all

of the Tsilhqot’in groups and newcomers. The first European explorers to enter Tsilhqot’in traditional territory arrived in the late 18th and early 19th century; subsequent contacts were sporadic and uneven, and were not consistent throughout the region. By the middle to the end of the 1830s, most Tsilhqot’in would likely have been aware of, and had contact with, Europeans.

2. There is substantial and significant difference between the date of first contact and

the period of sustained contact and influence by newcomers, particularly external (British and Canadian) authorities. Governments (colonial, federal or provincial) had no effective presence in Tsilhqot’in territory until at least the last two decades of the 19th century (1880s and 1890s).

3. The Tsilhqot’in participated in trade with coastal First Nations before the arrival

of the Europeans; the arrival of the Europeans did not create the concept of trade or exchange of surplus products. Rather, long-standing indigenous trading networks influenced the evolution and development of European-First Nations trade.

4. The arrival of European traders, on the coast and in the interior, changed the

nature and extent of Tsilhqot’in trading activity, and provided additional trading opportunities for the Tsilhqot’in.

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5. The Tsilhqot’in response to the arrival of the European fur traders was more constrained, limited and unenthusiastic than was the norm among First Nations in the interior of what is now known as British Columbia;

6. The limited interest among Tsilhqot’in in the fur trade reduced the exposure of

Europeans to Tsilhqot’in society and therefore restricted the number of historical descriptions of Tsilhqot’in affairs. Despite the small amount of European documentation on the Tsilhqot’in, there is considerable evidence of the existence of an organized society and of the functioning of Tsilhqot’in law.

7. Europeans working and living in the interior of British Columbia recognized that

the Tsilhqot’in were an organized society and maintained internal control over their territories, resources and people.

8. The federal government, through the instructions to and actions of Marcus Smith,

recognized the Tsilhqot’in to be an organized society with control over their traditional territories. Furthermore, the federal government, through agents and officials like Marcus Smith, provided the Tsilhqot’in with specific indications that they recognized the Tsilhqot’in as a people, acknowledged their control over traditional territories, and were anxious to resolve outstanding land issues through some form of formal process, consistent with federal treaty-making activities elsewhere in Western Canada.

Date of Contact

146. Under the general heading of “Date of Contact,” Dr. Coates mentions Alexander

Mackezie’s journey to the Pacific in 1793, Simon Fraser’s journey down the Fraser and back in

1808, the establishment of Fort Alexandria on the Fraser River in 1821, and the short-lived

efforts of the Hudson’s Bay Company to establish a Tsilhqot’in post in Tsilhqot’in territory in

1829, which were abandoned in 1844.

147. But Dr. Coates makes very clear that contact was not a simple event for each indigenous

nation. It was a gradual process. European trade goods may have found their way into

Tsilhqot’in territory before any newcomer. Once contact was made between one European and

one Tsilhqot’in there may have been no mutual influence between those two groups until many

years later when different contacts which came about for different reasons may have made for

more influential interactions.

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148. Only sporadic contacts were made between whites and Tsilhqot’ins before 1870 and all

whites were driven out of Tsilhqot’in territory in the aftermath of the Tsilhqot’in War in 1864.

149. Dr. Coates found it impossible to give a precise date for first significant contacts between

whites and the Xeni Gwet’in but suggested that it was likely to have been significantly later than

for Tsilhqot’in People nearer the Fraser River for two reasons: First, the initial penetration by the

newcomers was up the Fraser River and the Chilcotin River and would not have reached into

Xeni Gwet’in territory, and, second, the Xeni Gwet’in, like the Tsilhqot’in People generally, had

little interest in contact with the newcomers and led a life of seasonal movement which made

contact difficult and trade for European goods, as opposed to traditional trade goods being traded

with indigenous neighbours, virtually meaningless.

Relations between Tsilhqot’in and European Traders:

150. The North West Company set up a trading post at Fort Alexandria in about 1821. That

post was taken over by the amalgamated Hudson Bay Company on the 1824 amalgamation. The

post was near Quesnel, on the Fraser, in Carrier territory. It was not successful in attracting any

significant trade with the Tsilhqot’in People. A new post was established in Tsilhqot’in territory

in 1829. It was called Fort Chilcotin, or the Chilcotin Outpost. It was established because the

Tsilhqot’in People who were encountered by Hudson Bay employees seemed well nourished and

well clothed and rich in beaver pelts and all animal skins. But Fort Chilcotin became a focus for

disputes and resentments and the opportunities to trade at the fort were largely ignored by the

Tsilhqot’in. Also the lives of the Hudson Bay employees at the fort were often thought by them

to be threatened and endangered. Fort Chilcotin was abandoned by the Hudson Bay Company in

1844 after fifteen years. It had been uneconomic and a source of danger and no prospect of

change was seen by the company.

151. The Tsilhqot’in People continued their trade links for traditional goods, of which salmon

in poor return years for sockeye, remained the most important. But the European fur traders

offered little of interest to a people who moved with the seasons and traveled light. In

consequence there was no significant contact into Tsilhqot’in territory by European fur traders.

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152. In the aftermath of the Chilcotin War of 1864, Governor Seymour reported to the

Colonial Office in London in these terms: (Dispatch No 56, 4 October 1864):

The Indian insurrection is referred to by you as merely of Colonial importance. I would however beg most respectfully to point out, that should a real war break out between the Indian population and the whites, the former numbering about 60,000 and the latter about 7,000 I may find myself compelled to follow in the footsteps of the Governor of Colorado, whose Proclamation I forwarded in my Despatch No 49 24 Sept and invite every white man to shoot every Indian he may meet. Such a Proclamation would not be badly received here in a case of emergency.

153. Clearly the Tsilhqot’in defence of their territory in 1864 in what Judge Begbie and

Margaret Ormsby described as a dispute over land, had shown up the atmosphere of hostility

which guided much of the newcomer relations with the Tsilhqot’in.

Is there archival historical evidence that supports or contradicts the presence of an “organized” society and “Tsilhqot’in Law” among the Tsilhqot’in?

154. Dr. Coates describes references in the historical literature to contacts between the

newcomers and the Tsilhqot’in. He says that European observers understood that there were

internal divisions among the Tsilhqot’in and that the “bands” were closely related to specific

regions or territories. There were frequent references in the literature in the period around 1870

to three of the principal chiefs, Chief Alexis, Chief Anaheim and Chief Eulas. In other periods

also there were references to chiefs by name. Marcus Smith, in 1875, described the Tsilhqot’in as

being “divided into six tribes, each with a chief and several petty chiefs.” Dr. Coates noted that

Marcus Smith referred to the Tsilhqot’in in these terms:

He described them as “divided into six tribes, each with a chief and several petty chiefs.” He estimated their population as between five and six hundred persons, all speaking the same language and he made presents to the three chiefs he met on this journey: Eulas, Alexis and Anaheim. He noted that when Chief Anaheim gave a “grand” potlatch other Tsilhqot’in tribes attended. He again noted their seasonal round, mainly hunting and fishing, and again distinguished certain tracts of land as Chief Alexis’ “camp” or Chief Anaheim’s “headquarters.” Perhaps

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most notably he speaks of the tribe at Alexis as having had “undisputed possession of the land from time immemorial.”

(our emphasis)

155. Dr. Coates also noted Father Morice’s reference in about 1900 to the Chinlac Massacre of

1745 in which Father Morice referred to Chief Khalpan being the chief and leader of the war

party.

156. So Dr. Coates concludes that the Tsilhqot’in society was organized into six bands, each

with a chief and several subordinate chiefs, though he notes that Chief Anaheim could succeed

Chief Alexis and so become chief of at least two bands by a process which Marcus Smith

described as “election”. The organizational system could bring all the people together for a

“Grand” potlatch which would certainly serve to reaffirm the organizational structure of the

Tsilhqot’in People. (See Marcus Smith’s report to the Federal Government, Smith to Powell, 21

August 1875).

157. Dr. Coates, in describing the survey expeditions on behalf of the Canadian Pacific

Railway, beginning in 1872, said this:

The significance of these initial exploratory journeys rests primarily with the fact that Marcus Smith, Deputy Engineer in Chief for British Columbia, worked with the Tsilhqot’in guides and, in 1872, paid them a fee, or a toll, for access to their territories. Smith and the CPR clearly wished to remain on good terms with the local First Nations, particularly with stories of the 1864 Chilcotin War still fresh in regional memory. Among the Tsilhqot’ins, the payment of fees or tolls would have been understood as recognition of their territories and, more specifically, the control exercised by specific Chiefs and Tsilhqot’in groups.

(our emphasis)

158. Dr. Coates also says O’Reilly, traveling to Tsilhqot’in territory from Bute Inlet in 1872,

had difficulty getting across Tsilhqot’in land until his arrangement with Chief Alexis was “paid

in full”.

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159. There is a significant passage in Dr. Coates report about the survey done by Marcus

Smith. The significance of the passage in law was addressed by Federal Crown Counsel and

responded to by Mr. Rosenberg on behalf of the plaintiff. That issue is not being addressed in

this summary. But Dr. Coates makes telling points about the organization of the Tsilhqot’in

people, and their relationship to their territory, in this passage:

The actions of Marcus Smith represent, from both the Tsilhqot’in and federal government’s perspective, a critical stage. Working through Marcus Smith, who clearly acted as representative of the Government of Canada, federal officials made clear overtures to the Tsilhqot’in people, representations which indicated that they intended to continue with the federal government to Tsilhqot’in discussions in the near future. It cannot be asserted that the federal government did not understand the significance of the gifts and the recognition of the Tsilhqot’in demands for payments for crossing their territories, for federal officials were dealing, through treaty negotiations, with the outcome of similar situations west of the Great Lakes and on the prairies. The nature of the commentary between Marcus Smith and government officials makes it quite evident that the government knew precisely what it was doing, including raising Tsilhqot’in expectations, and proceeding with their plans because of the high priority attached to the construction of the railway. Historical geographer Cole Harris provides an observation about federal attitudes towards Aboriginal rights in British Columbia that makes Laird’s support of Smith’s approach more understandable: “Early in 1875, then, the Dominion position was this: native people had an interest in the lands of British Columbia that limited the absolute property of the province and that should be extinguished by treaty.” It is useful to reflect on how this situation might be understood from the Tsilhqot’in perspective, drawing inferences from Smith’s actions and words because of the absence of written Tsilhqot’in documentation. In my view, the Tsilhqot’in would have understood Marcus Smith to be a representative of the federal government because he presented himself as such. They would have understood that he recognized their tribal structure and political organization, because he worked well and repeatedly within their system. They would have understood that he, a representative of the Government of Canada, respected their territories because he had, over a period of several years, paid for the right to traverse Tsilhqot’in territory. They would have understood, because of the representations that he made on behalf of the federal government, that there would be future discussions before there would be any development on Tsilhqot’in land. In sum, Marcus Smith established formal and politicized relationships with the Tsilhqot’in, in accordance with their understanding of their control over their traditional lands. And Marcus Smith did this with the concurrence and support of federal officials, who fully recognized that such actions were, in the North West Angle and on the prairies, an integral part of the

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treaty-making process. Marcus Smith acted, further, even though British Columbia-based officials asked the federal government not to proceed, and in full recognition that this was an extraordinary step in the history of First Nations-government relations in British Columbia.

(our emphasis)

160. In relation to Tsilhqot’in internal social organization, and the laws which guided it, Dr.

Coates referred to a marriage ceremony which was described in this way:

The marriage ceremony was of the simplest. The couple repaired to a running stream, narrow enough for them to shake hands over it. They joined hands, and swore to be man and wife together. The water flowing beneath symbolized that henceforth the currents of their two lives should flow in one stream, even until they reached the ocean, death.

161. In a passage under the headings “Is there historical evidence of Tsilhqot’in traditional law

and authority” Dr. Coates refers, first, to the Tsilhqot’in custom of extracting payment from

newcomers for traversing their land; second, to the payments in kind, namely cultivated land,

seeds, and irrigation, supplied by Riske and McIntyre who settled near the mouth of the

Chilcotin River in 1868 and were permitted by the Tsilhqot’in to do so because the Tsilhqot’in

gained from their presence; and, third, to the newcomers who wanted to settle or tried to settle in

Tsilhqot’in territory and who were respectively discouraged or driven out by the hostility of the

Tsilhqot’in people protecting their land.

162. Dr. Coates quotes Riske and McIntyre as saying of the Tsilhqot’in:

They have always however considered the land theirs and that we are beholden to them for it and occupy it on sufferance.” Interestingly, ten years later Riske and McIntyre were still describing themselves as “inhabitants of Chilcotin who were living at … sufferance.

163. The hostility of the Tsilhqot’in to attempts to preempt Tsilhqot’in territory or to take the

resources of the territory without consultation and measures for accommodation may fairly be

said to have continued on the part of the Tsilhqot’in people to the present time.

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164. Dr. Coates’ Report affirms, by reference to the archival historical literature, that the

Tsilhqot’in people, including the Xeni Gwet’in, were identified by their indigenous neighbours

before first contact and treated by them as having a Tsilhqot’in territory from which all others

were excluded; that they had a system of social organization involving their own laws to protect

their territory; and that those conditions continued long after first contact and the proclamation of

British Sovereignty and were only ameliorated with respect to exclusions by the overwhelming

force of the newcomers, and not until the 20th Century. The Tsilhqot’in’s claim to their territory

has never abated.

165. Dr. Coates was elaborately cross-examined. He added much detail to his Report through

cross-examination about the Hudson Bay archives, particularly the record of the Chilcotin Post.

The weight to be attached to his opinions as expressed in his Report was only increased by the

cross-examination.

JOHN DEWHIRST, ANTHROPOLOGIST Credentials

166. Mr. Dewhirst obtained his B.A. in Anthropology from the University of British Columbia

in 1967 and his M.A. in Anthropology from the University of Illinois in 1972. He worked for

Parks Canada from 1967 to 1985 and in that period he participated in many archaeological and

anthropological projects including the Yuquot project, a large multi-discipline project in relation

to a Mowachaht village on the west coast of Vancouver Island which was carried out by Parks

Canada over many years. Mr. Dewhirst was tendered as an expert in Cultural Anthropology,

which was said to include the fields of ethnography, ethno history, genealogy, kinship and social

organization, demography, oral history, archaeology and traditional land use of aboriginal

communities. Mr. Dewhirst has been qualified as an expert and given expert evidence in a

number of leading Aboriginal Rights cases in British Columbia. He worked on the preparation of

a Traditional Use Study for the Tsilhqot’in National Government, starting in 2000.

167. Mr. Dewhirst is the founder and principal officer of Archaeo Research Ltd. He is assisted

in his work by staff members of that company. Since 1985 he has prepared numerous

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archaeological and anthropological reports as principal of that firm. He has been employed by

both the Crown and First Nations. Mr. Dewhirst is not an expert in aboriginal linguistics and

was not put forward as such.

Expertise

168. On Day 255, October 12, 2005, at page 00027, lines 11 to 14, the Court said:

I should say for the record, Mr. Woodward, that I’m satisfied that Mr. Dewhirst is a cultural anthropologist and accordingly entitled to express opinions on that field.

Expert Reports

169. Mr. Dewhirst was the author of four expert reports, all filed as exhibits:

1. Exhibit 0441, “Ancestors of the Modern Xeni Gwet’in Community,” September

2004, Vols. 1, 2 and 3 2. Exhibit 0442, “Ancestors and Descendants of Mabel William and Descendants of

Guichon (Guichon family) and Reference Materials,” April, 13, 2005, Vols. 1 and 2. Exhibit 442 consists of two reports: the Mabel William Report and the Guichon Family Report

3. Exhibit 0443, “Tsilhqot’in Use and Occupancy of the Xeni Gwet’in Claim Area,

1793-1864,” August 8, 2005 4. Exhibit 0438, “Affidavit #2 of Mr. Dewhirst,” January 20, 2004. This affidavit is

being treated, by agreement of Counsel, as an expert report on oral history

170. Exhibits 0441 and 0442, the ancestry reports, establish the chain of ancestry from the

modern population to a set of key ancestors prior to 1846. Exhibit 0443 takes this information

one step further, and places those key ancestors in the Claim Area, prior to 1846. An example of

this process can be seen as follows: Firstly, in the ancestry report there is the opinion about the

descent of the Lulua family from Chief Nemiah.

The modern Lulua family descends from two mid-19th century male ancestors, Nunsilian and Nemiah. … Chief Nemiah, was likely born before 1846 and perhaps as early as 1827.

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Exhibit 0441, Expert Report of John Dewhirst, September 2004, at 16, s. 3.0

[Note: Similar conclusions to the above are reached for the Quilt, Setah, William, and George family also found in Exhibit 0441, Expert Report of John Dewhirst, September 2004, as well as for the descendants of Kahkul and Elizabeth. Exhibit 0442 provides similar ancestral information for the family of Mabel William and the Guichon family.]

171. Then, secondly, in the Use and Occupancy Report there is the opinion about Chief

Nemiah’s connection to the Claim Area:

I have connected the modern Lulua family to the Claim Area through some of their ancestors: Nunsulian and his wife Annie, and the through Nemiah and his wife Akous (Dewhirst 2004:Sec. 3).41 Nemiah spent his life in and around the Claim Area, particularly the Nemiah Valley and Chilko Lake … Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, page 70, at para. 284

172. Mr. Dewhirst follows this pattern for several other families, and is able to place ancestors

of the leading modern Nemiah families in or around the Claim Area prior to 1846.

173. Mr. Dewhirst was examined in chief, cross-examined by Counsel for the Province and

Counsel for Canada, and re-examined on those reports over a period of 19 days. Several hours of

cross-examination were devoted to whether, if Nemiah was a chief by virtue of leadership

qualities at any time, he was not referred to as chief in the documents of the non-Indian justice

system when he was apprehended, tried, and convicted of murder. Throughout that extensive

segment of cross-examination, Mr. Dewhirst’s answer was that Nemiah’s status as chief was not

attained by election but by leadership and standing and when his leadership qualities and

standing were dissipated by being pursued then he might well no longer have been regarded as a

chief.

174. Cross-examination revealed the important relation between the law and the ability of the

colonial administration to assert sovereign control in the Tsilhqot’in territory when Mr. B.

Franklin wrote to the Attorney General on March 6, 1891: “On account of not having the proper

law books I have had a hard time to capture an Indian named Nemiah.”

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The Use and Occupancy Report

175. Question 1, the principal question in the Use and Occupancy Report, is in these terms:

Did the Tsilhqot’in live in and use the Claim Area between 1793 and 1864? If so, did the Tsilhqot’in move away from the Claim Area as their place of occupation at any time prior to 1864?

176. In addressing this question, Mr. Dewhirst analyzed archival documents to show

Tsilhqot’in use and occupation of these specific places in the Claim Area: Chilco Lake, Chilco

River, Nemiah Valley, Cascade Mountains and Potato Mountains, Tatlayoko Lake, Tatla Lake,

Cochin Lake, Big Eagle or Choelquoet Lake, Little Eagle Lake, Tsuniah Lake and Tribal

Territories.

177. Mr. Dewhirst relied on archival material, including: George McDougall’s Hudson’s Bay

Company Report of 1822; William Connolly’s Population Estimates of Known Parts of New

Caledonia for the Hudson’s Bay Company in 1827; Joseph McGillivry’s “Narrative and Sketch

of the Chilcotin Country” of 1827; The Hudson’s Bay Company Census of 1838 done at the

Chilcotin post; The Chilcotin Post Journal (1837-1844); Father Nobili’s account of his Chilcotin

missionary journey of 1845; the “Chilcotin War Map” prepared by the Royal Engineers in 1864;

the accounts and maps of Waddington, (1868); Milton and Cheadle (1869); Marcus Smith

(1877); and A.L. Poudrier (1890) and Reserve Commissioner W.A. Vowell’s Census in the

Nemiah Valley in 1899.

178. Mr. Dewhirst quotes from a report by Governor Fredrick Seymour in 1864 to the

Colonial Office in London in which Governor Seymour describes “The Chilcotin Country” and

with which Governor Seymour includes a copy of the Royal Engineers Chilcotin War Map. This

is the quotation from Governor Seymour’s Report which is relied on by Mr. Dewhirst.

Within the great barrier of the Cascade range lies the Chilcoten country to which the murderers retired. It was almost unknown to whitemen until recent events have caused it to be ransacked by armed bands of volunteers in its remotest corners. I enclose a map drawn by the Royal Engineers of the supposed features of the country, and also out of the Bute Inlet country compiled from Indian

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information & recent research to show how complete our ignorance was hitherto been. The Territory occupied by the Chilcotens extends probably 200 miles North to South. From the summits of the Bute Inlet mounts to the West Road River. E to W the Tribe roamed from the Cascade range to the Fraser, a distance of 200 miles… the Indian trails which traverse the country concentre at Benshee Lake… To the southward the great indentation formed by the sweep of the Cascade mountains it was believed many of the Chilcoatens had their hunting and fishing grounds but the country had escaped the visits of the most adventurous whitemen. Such was the extent of the knowledge of this vast territory we possessed when it became necessary to invade it… (Seymour 1846b:146-148)

(our emphasis)

Opinions on Use and Occupancy of the Claim Area 179. Mr. Dewhirst gave the following opinions in Exhibit 0443:

6. In my opinion there was a Tsilhqot’in population resident in the Claim Area prior to 1822, because in 1822 there was a reported substantial Tsilhqot’in population of 53 families around Chilko Lake in the Claim Area, which I have estimated conservatively at 360 people. On the Chilko River and a section of the Chilcotin River below its confluence with the Chilko, there was a reported population of 131 families, which I have estimated to represent 890 Tsilhqot’ins, including their “followers and strangers.” An undetermined, but significant, portion of those 890 people lived in or near to the Claim Area, and undoubtedly must have used and occupied it. This significant Tsilhqot’in population present in 1822 was likely in place before 1793, and that population continued to use and occupy the Claim Area since 1822. 7. In my opinion, during the period from 1822 to 1864, the Tsilhqot'in population in place before 1822 continued to use and occupy the Claim Area. The 1838 census of Chilcotin Post has reported three Tsilhqot'in winter villages that were located within or adjacent to the Claim Area. Those villages have a combined recorded total population of 329 people, who undoubtedly used and occupied the Claim Area. Those villages do not represent all the Tsilhqot’ins who used the Claim Area, because Tsilhqot’in populations known to exist and use and occupy the Claim Area in 1838 were not recorded in the 1838 census, therefore the Tsilhqot’in population of the Claim Area in 1838 was significantly greater than the 329 reported people. 49. In my opinion, the geographical coverage of the 1838 census is a small part of a greater Tsilhqot’in territory that was not fully known to Europeans at that

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time. The census is confined to relatively few Tsilhqot'in groups and their associated areas. Only those groups that Europeans interacted with significantly and areas that Europeans had actually visited were recorded in the census. In 1838 those areas known to Europeans in the Chilcotin included only the Chilko River and a section of the Chilcotin River below its confluence with the Chilko. In 1838 Europeans had not actually visited Chilko Lake, Nemiah Valley, Tsunniah Lake and the Taseko River valley. Europeans also had not gone farther west beyond Puntzi Lake; and Chilcotin Lake, Cochin Lake, Big Eagle Lake, Tatla Lake and Tatlayoko Lake – all unknown to Europeans in 1838 – were discovered in the early 1860’s to have significant Tsilhqot’in populations. In my opinion, those Tsilhqot'in populations must have been present in all those unknown areas, including the Claim Area, in 1838, and most likely for generations earlier. Evidence supporting this opinion, particularly for the Claim Area, is presented in detail elsewhere in this report (Sections 2.0-3.0) 157. In my opinion, the information on Tsilhqot’in use and occupancy of specific places in the Claim Area, taken together as a whole, shows evidence of use and occupancy before and after 1846, even in instances when the archival reports on these places are post-1860. The archival documents describe fishing stations, hunting grounds, camps, villages and trail networks. All these features reflect an in-depth and reaffirmed intimate knowledge of an area that results only through many generations of use by the same groups, who pass their knowledge on to succeeding generations. For example, effective resource harvesting at fishing stations depends on knowledge of when each species of fish arrives in certain areas. Similarly, root harvesting grounds in the mountains can be used only if people know where and when certain plants are available. 158. Many of the archival sources report trail networks, which in their contexts, indicate long term use and occupancy of areas beyond the trails themselves. The trails themselves are formed as a result of repeated use over generations of occupancy. Because trails go from one place to another, they provide access to resources and places along the way and indicate a use and occupancy of an area beyond the trail itself. Trails also show that the Tsilhqot’in are connected to each other socially and to habitation sites and resource harvesting areas throughout their territory. 159. I am also of the opinion that the long term use and occupancy of the Claim Area since before and after 1846 has been exclusively Tsilhqot’in. There is no available archival evidence for Tsilhqot’in groups being displaced from the Claim Area. In my opinion, there was a significant resident Tsilhqot’in population there prior to 1846 and afterwards. Despite the devastating smallpox epidemics of 1863, the surviving families from the pre-existing resident population continued to use and occupy the Claim Area and they are there today. 408. In my opinion, the resident Tsilhqot'in population who used and occupied the Claim Area did not move away from the Claim Area in the historic period, but

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later became identified as the “Stone Indians” in reference to their use and occupancy of the rugged southern Chilcotin area that includes the Claim Area. As stated above (Sections 2.0, 3.0), these Tsilhqot’in have persisted as a resident population in the Claim Area from prior to 1822 to the present day.

(our emphasis)

180. The second of the two questions which Mr. Dewhirst was asked and to which his Use and

Occupancy Report was directed is:

2. What migrations took place with respect to the Ulgatcho Band? How do you account for the presence of Tsilhqot’in people within the Ulgatcho Band?

Mr. Dewhirst answered that question in this paragraph:

441. I am of the opinion, based on the above discussion, that before the smallpox epidemics of 1863, a significant Tsilhqot’in population was present in the greater Anahim Lake area. After the smallpox epidemic, some surviving families remained in the area while others took up with Chief Anaham and eventually moved to Anaham Flat, where an already existing Tsilhqot’in population resided. Despite the move, Anaham and his band continued to use and occupy the Anahim Lake area. The resident Tsilhqot’in population continued to reside there and intermarried with Ulgatcho Carrier families who sporadically migrated southward. In the early 20th century, the Dept. of Indian Affairs established Indian Reserves for the Ulkatcho Indian Band in the Anahim Lake area, and by 1950 the whole band had relocated to Anahim Lake. Today, the Ulkatcho Indian Band is a mixed Carrier-Tsilhqot’in community.

(our emphasis)

181. The extensive cross-examination of Mr. Dewhirst confirmed that Mr. Dewhirst did not

speak the Tsilhqot’in language and that he did not have any specialization in linguistics. The

cross-examination also confirmed that in his genealogical work Mr. Dewhirst’s staff had worked

with members of the plaintiff’s solicitor’s law firm in retrieving archival material, particularly

baptismal records, to assist in genealogical reconstruction. The cross-examination did not give

rise to any doubt whatsoever about the authorship or independence of Mr. Dewhirst’s reports,

which reflected only the deployment of his own lengthy experience and undoubted expertise.

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Reliability of Tsilhqot’in Oral History

182. In paragraph 25 of Exhibit 0438, Affidavit #2 of John Dewhirst, the oral history affidavit,

John Dewhirst sets out in sub paragraphs (a) through (i) the factual reasons why he places

confidence in Tsilhqot’in oral history. This is the evidence this Court relied upon in making the

February 6, 2004 ruling on oral history. Mr. Dewhirst’s approach is in sharp contrast to Dr. von

Gernet’s approach, which was to simply dismiss all oral history in theory, because he finds it

unreliable in principle.

Summary of Key Opinions

183. Mr. Dewhirst was on the stand for 19 days, and his reports are very long. Following are

some selected extracts from his testimony that will be of special interest to the Court.

In my opinion, the Tsilhqot'in/in lived in and used the Claim Area between 1793 and 1864, and the resident Tsilhqot'in population did not move away from the Claim Area before or after 1864.

Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, page 2, at para. 1 A key aspect of each family's seasonal round was its regular visits to the same main resource harvesting areas year after year. In my opinion, the round ensured that families were able to exploit a wide range of resources that fluctuated seasonally and locally.

Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, page 11, at para. 29 In my opinion, Lejacq describes how the Tsilhqot'ins live differently from Europeans. The Tsilhqot'ins do not stay year round in one village like Europeans. Instead, the Tsilhqot'in live in families, each with its own hunting ground, fishing ground and other resource procurement areas, to which families move in a seasonal round throughout the year. The Tsilhqot'in have a number of fixed or regularly used places at these resource grounds that are occupied year after year.

Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, page 13, at para. 37 Also in my opinion, a long term result of Tsilhqot'in marriage practices is continued use and occupancy of the same areas by the same closely interrelated families for generations.

Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, page 14, at para. 41

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In my opinion, those Tsilhqot'in populations must have been present in all those unknown areas, including the Claim Area, in 1838, and most likely for generations earlier.

Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, page 17, at para. 49 In my opinion, this significantly relatively larger Tsilhqot'in population attests to the Tsilhqot'in use and occupancy of the Chilko and Chilcotin Rivers, which includes part of the Claim Area. The larger Tsilhqot'in population would also provide a military advantage and therefore control over their area to the exclusion of neighbouring tribes.

Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, pages 40-41, at para. 152 Many of the archival sources report trail networks, which in their contexts, indicate long term use and occupancy of areas beyond the trails themselves.

Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, page 42, at para. 158 I am also of the opinion that the longer term use and occupancy of the Claim Area since before and after 1846 has been exclusively Tsilhqot'in.

Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, page 42, at para. 159 The modern Lulua family descends from two mid-19th century male ancestors, Nunsilian and Nemiah. … Chief Nemiah, was likely born before 1846 and perhaps as early as 1827.

Exhibit 0441, Expert Report of John Dewhirst, September 2004, at 16, s. 3.0

[Note: Similar conclusions to the above are reached for the Quilt, Setah, William, and George family also found in Exhibit 441, as well as for the descendants of Kahkul and Elizabeth. Exhibit 442 provides similar ancestral information for the family of Mabel William and the Guichon family.]

In my opinion, the consistency and validity of oral history is high in Tsilhqot’in culture. This is demonstrated, in part, by the fact that Lane was able to collect most of the same stories as Farrand some 50 years or more later. It is also demonstrated by the impressive corroboration between oral genealogical histories I’ve collected from Tsilhqot’in individuals and external documentary sources of genealogical information, including baptismal and death certificates.

Exhibit 0438, Affidavit #2 of John Dewhirst, at para. 34. Tsilhqot’in traditional culture is more intact than that of most other First Nations in British Columbia, largely due to the isolation of Tsilhqot’in communities like

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the Xeni Gwet’in. In my opinion, this gives more consistency and validity to Tsilhqot’in oral history compared to oral histories of First Nations that have lost much of their language and culture.

Exhibit 0438, Affidavit #2 of John Dewhirst, at para. 36. In my opinion, it is likely that Tsilhqot'in stories about land-use are consistent and valid because transmission of these stories was for many years integral to the survival of the Tsilhqot'in people. Tsilhqot'ins needed to learn where, when and how to find and gather resources on their traditional lands. The underlying basis of Tsilhqot'in sustenance is the ability to harvest seasonally-fluctuating localized resources that are widely-distributed in a large traditional territory. This ability derives from an intimate knowledge of the land and traditional practices that young Tsilhqot'ins learn from older generations through oral teachings and participation in this seasonal way of life.

Exhibit 0438, Affidavit #2 of John Dewhirst, at para. 37 DAVID CARSON, FORESTER

Credentials

184. David M. Carson holds a Bachelor of Forestry degree from the University of Toronto and

is a Registered Professional Forester in the provinces of Ontario and British Columbia. He has

over twenty-two years of experience working as a forester in the forest regions of Ontario,

Northern Alberta, and throughout British Columbia. As Manager of the Victoria branch of

Timberline Forest Inventory Consultants Ltd., Mr. Carson directs a team of 12 resource

professionals including forest analysts and planners, forest inventory and ecology specialists, and

geographers and geographic information specialists.

Expertise

185. In a ruling dated November 17, 2005, the Court said, at paragraph 14 it was:

… satisfied that Mr. Carson is a registered professional forester and, on the evidence I have read and heard, qualified to express opinions in the general area of forestry, strategic planning and timber supply analysis."

186. At paragraph 15, the Court also ruled that Mr. Carson "is qualified to express opinions on

forestry land use planning."

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Expert Report

187. Defendants’ counsel attacked Mr. Carson's expert report on a number of fronts and on

November 17, 2005, the Court ruled "I conclude that the Carson report meets the test of

necessity set out in R. v. Mohan" (Oral Reasons for Judgment, November 17, 2005, at paragraph

13). The report became Exhibit 0464.

188. Mr. Carson was asked to answer a number of questions which are set out in the Summary

section at the start of his report. These are set out below.

What is the likelihood that industrial forest activity would have taken place in the Claim Area should the court action not have taken place?

The answer to this question depends on time frame. Beginning before 1981 and

culminating prior to the court action, it is my opinion that there had been a

continuous building of pressure to harvest within the Claim Area. It is my opinion

that at the time of the court action, and should the action not have taken place,

there was no doubt that the Government of B.C. had every intention to proceed

with timber harvest in the Claim Area, and a high likelihood that industrial

forest activity would proceed.

To what extent has land use planning undertaken by the Government of British Columbia directed forest harvesting into the Claim Area?

I am certain that strategic land use planning decisions made by the B.C.

Government, including those specifically associated with the CCLUP, have

directed harvest into the Claim Area. The CCLUP (approved October 1994)

included the concept of certainty of access to resources and certainty was seen by

resource users as a major product of the planning process. The CCLUP dedicated

80% of the Plan area, within which the Claim Area falls, to the commercial

resource land base. This was translated into specific targets for subunits of the

Plan area. These targets when finalized included 70% access to productive forest

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land in Special Resource Development Zones, and 81% in Integrated Resource

Management Zones, which are both represented in the Claim Area.

To what extent has timber supply review undertaken by the Government of British Columbia incorporated the presumption of forest harvesting within the Claim Area, and to what degree is the AAC dependant on the Claim Area?

The timber supply situation in the Williams Lake TSA is one of shortages if

marginally valuable sources of timber volume, such as slow growing stands,

economically marginal stands, and mountain pine beetle killed stands are not

harvested. These marginal sources are disproportionately located in the Three

Western Supply Blocks and by extension the Claim Area. It is my opinion that

analysis of timber supply undertaken by the Ministry of Forests over the period

1981 through 2003 indicates an increasing dependence on the timber volume from

the Claim Area. The vast majority of the Claim Area was available for harvest

according to B.C. Government policy (timber harvesting land base and CCLUP

targets) and the Williams Lake TSA AAC includes the Claim Area in the

contributing land base. At the time of the court action it is my opinion that the

AAC of the Williams Lake TSA fully included the contribution of the Claim Area

and was dependant upon that contribution.

To what extent has Ministerial apportionment by the Government of British Columbia reflected the assumption that harvest would proceed in the Claim Area?

Apportionment is the distribution of the AAC among timber tenures by the

Minister of Forests in accordance with Section 10 of the Forest Act. As the final

strategic step in the process of planning for harvest, the Minister of Forests

apportions the AAC as determined by the Chief Forester. In my opinion,

Ministerial apportionment of the allowable cut of the Williams Lake TSA directs

harvesting into the Three Western Supply Blocks increasing harvest pressure on

the Claim Area.

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Before 1981

189. Based on Chilko PSYU planning, and in my opinion, it was the intention of the Forest

Service in 1973 to allow harvesting to proceed in the majority of the Claim Area while protecting

from harvest the recreational areas in the southern portions of the Nemiah Traplines areas.

However, harvest pressure was low due to the remoteness of the Claim Area from the milling

centre in Williams Lake.

190. In my opinion, The Chilcotin Wilderness Park Study (April 1976) confirmed the

opportunity to undertake logging in the Claim Area within the Chilko PSYU in areas that were

not in the candidate parks.

191. Portions of the land and forests of the Claim Area have been included in the managed

forest land base since at least 1957, and in my opinion have contributed to timber supply and

been available for harvest since that time. Inherent in contribution to timber supply is the

assumption in timber supply analysis that harvest would take place at some point in time.

192. It is my opinion that before 1981, despite availability for harvest, pressure to harvest

timber in the Claim Area was low.

1981 Through 1988

193. In my opinion, inclusion in the Williams Lake TSA (1980) made the Claim Area eligible

for contribution to the next AAC determination. The AAC for the Williams Lake TSA

was determined in 1981. At that time only 82% of the demand for timber could be

accommodated without inclusion of the Three Western Supply Blocks, and by extension the

Claim Area. In my opinion this is the beginning of the building of harvest pressure in the Three

Western Supply Blocks and by extension the Claim Area.

194. It is my opinion that inclusion of a large portion of the Claim Area in the Chilko

Provincial Forest (October 1983) demonstrated Ministry of Forests intention to manage the area

as forested land.

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195. The award in 1983 to Carrier Lumber of a licence to harvest in the Three Western Supply

Blocks aimed at harvesting mountain pine beetle-kill stands confirms that harvest pressure was

being translated into action. In 1985 there was an increase in the AAC of 1,250,000m3 aimed at

beetle salvage harvest. Mountain pine beetle damage in the Brittany Triangle made the Brittany

portion of the Claim Area a candidate for harvest of these volumes.

196. In my opinion, the uplift of the AAC, apportionment, and the issuance of licences were

increasing the harvest pressure in the Claim Area during this time period. In general, during the

period from 1981 to 1988 there was a building of pressure to harvest within the Claim Area. By

1988, in my opinion, the likelihood of industrial harvest in the Claim Area was moderate and

growing.

1989 Through 1995

197. It is my opinion that completion of the Tsuniah Lake Local Resource Use Plan in

1992 represented B.C. Government decision making with regard to land and resource use in the

Claim Area, specifically that harvesting would proceed once other resource issues were

addressed. In my opinion, this plan provides evidence of the high likelihood of logging taking

place within the Claim Area.

198. Based on A 20 Year Timber Availability Assessment for the Williams Lake Timber

Supply Area - 1992 Assessment, I conclude that without the Three Western Supply Blocks the

short-term harvest in the Williams Lake TSA could not be met. Implicit in this is added harvest

pressure on the Claim Area.

199. Timber supply analyses performed during this period (1989 through 1995) indicate

that environmental protection was putting pressure on timber supply and that the Three

Western Supply Blocks were being considered as mainstream contributors to timber supply. In

my opinion MoF staff were experiencing increasing difficulty in identifying harvest

opportunities to meet licence commitments.

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200. By the end of 1992 the AAC of the Williams Lake TSA was fully allocated. Pressure to

find timber to satisfy all committed volume was being applied to all available land, including

the Claim Area.

201. It is my opinion that with the establishment of Ts'yl-os Provincial Park in 1994, there

existed a higher level of harvest pressure on the remaining portions of the Claim Area due to

the expectation that the remaining land base outside of the park, including the Claim Area, would

be available for resource development.

202. MoF timber supply analysis undertaken in 1994 predicted falling harvests in the Williams

Lake TSA for five decades but a rising proportion of harvest coming from the Three Western

Supply Blocks, and by extension the Claim Area. It is my opinion that harvest pressure on the

Claim Area, presuming no major changes in B.C. Government policy, would only increase with

time.

203. By 1995 no solution had been identified for implementation of the Brittany Lake

Forest Management Plan. However, in my opinion, the process provides insight into the

intentions of the B.C. Government. It is my opinion based on the Brittany Lake Forest

Management Plan process, that the B.C. Ministry of Forests believed that harvesting in the Claim

Area must proceed in a timely fashion to avoid a loss of merchantable timber due to decay with

time of the beetle- killed stands. It is my opinion based on the Brittany Lake Forest Management

Plan process, that the B.C. Ministry of Forests was determined to harvest the beetle-kill wood

within the Brittany Triangle as soon as possible through industrial forest harvest.

204. During the period of 1989 through 1995 various strategic planning processes were

defining the land base available for harvest and addressing environmental and recreational issues

to allow harvest to proceed in the portions of the Claim Area outside of Provincial parks. The

Three Western Supply Blocks, and therefore the Claim Area, were receiving direct attention in

timber supply analysis and licences were issued that applied to the Claim Area. In my opinion,

the likelihood of harvest in the Claim Area was high by 1995.

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1996 Through 1999

205. The AAC determination in 1996 increased pressure on marginally merchantable timber.

Very nearly 28% of the harvest was to be from unmerchantable stands, or beetle killed stands.

With intense recent past harvesting in surrounding areas, the pressure to harvest in the

Brittany Triangle was great. In my opinion, the determination of the AAC in 1996 fully

incorporated the contribution of the Claim Area and was dependant on timber from the Claim

Area. It is my opinion, that with the AAC at an elevated level (for mountain pine beetle salvage)

and fully committed, harvest pressure on the Claim Area was high.

206. There existed little flexibility in timber supply in the Williams Lake TSA in early 1996.

Such a tight supply of available timber invariably applied pressure to harvest in the Claim Area.

207. The Chilcotin District (November 1996) identified all reasonable opportunities for timber

to fulfill the requirements of Forest Licence A20016, and a large proportion of that available

timber was in Claim Area. In my opinion this confirms high pressure to harvest within the claim

area.

208. It is my opinion that given the AAC was at an elevated level for mountain pine beetle-kill

harvest, and that the AAC was in a practical sense fully committed, it became increasingly likely

that any largely un-logged areas such as the Claim Area would be harvested. Supporting this

opinion is the following quotation with regard to the Brittany Triangle from an MoF April 10,

1997 study:

"Beetle killed timber in the Brittany Triangle is critical to all Licensees who have recently been issued beetle salvage Forest Licences."

209. In attempting to deal with log-arounds (contentious areas being avoided for harvesting)

the MoF reported in 1999 that licensees had nearly 1 million cubic meters of mountain pine

beetle infested timber identified in forest development plans within the Brittany Triangle area. In

my opinion this represents high pressure to have harvesting taking place in the Claim Area,

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especially because there were few similar opportunities for harvest elsewhere in the Williams

Lake TSA.

210. During the period of 1996 to 1999 expectations of access to timber in the Claim Area

crystallized through the CCLUP implementation process and AAC determination. The Ministry

of Forests displayed determination to have harvesting proceed in the Claim Area for reasons of

beetle-kill salvage and timber shortages for existing commitments. In my opinion, this time

period represents the culmination of pressure on the Claim Area, should the court action not have

taken place.

Post 1999

211. Strategic planning after 1999 has not produced results that I can use to help form my

opinion. However, there are no planning initiatives underway which have the authority to modify

CCLUP targets, and therefore these processes are unlikely to have an impact on my prior opinion

with respect to the CCLUP.

212. The timber supply analysis in 2003 provides an indication of the intentions of the B.C.

Government with respect to the Claim Area. Timber supply analysis in 2003 implemented

CCLUP targets and included contribution from the Three Western Supply Blocks. It is

my opinion that these facts put the Claim Area firmly in the mainstream of contribution to

harvest.

213. The area of land and timber contributing to timber supply in the Williams Lake TSA in

2003 had increased substantially due to the redefinition of the standard of minimum

merchantable stands. Due to the composition of the forests of the Three Western Supply Blocks,

it is my opinion that this change resulted in a higher proportion of the harvest to be found in the

Three Western Supply Blocks, and by extension the Claim Area.

Analysis of timber supply undertaken to support determination of the AAC indicated an elevated harvest level in the first decade of analysis for mountain

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pine beetle salvage. This demonstrates continued high pressure on the Claim Area as a constituent of the Three Western Supply Blocks.

In his 2003 AAC rationale, the Chief Forester acknowledged First Nations issues

but due to uncertainty of the outcome of this court action, he included the Claim

Area in the AAC determination.

The B.C. Government has defined 107,962 ha within the Claim Area as timber

harvesting land base. AAC apportionment in 2003 demonstrated that the situation

of intense pressure to harvest had not changed. It is worthwhile to repeat at this

point that forest licensees had rights to harvest, but also the obligation to harvest.

Given the harvest pressures discussed throughout this opinion report, it is my

opinion that with a large area within the Claim Area included in the

timber harvesting land base, harvest of the full AAC could not be achieved

without the contribution of the Claim Area.

JOHN FULLER, FORESTER Credentials

214. Mr. John Fuller holds a Bachelor of Forestry degree from the University of British

Columbia and is a Registered Professional Forester. Mr. Fuller is the Senior Consultant in the

Victoria office of Timberline Forest Inventory Consultants Ltd. and has held this position since

June 2005. He has been registered as a Professional Forester in British Columbia sine 1981.

During the thirty-three years of Mr. Fuller's forestry career he has worked in various positions in

Western Canada and was employed for six years in the temperate hardwood forests of south

eastern Australia. His employers have included government agencies, forest industry companies

and forestry consulting firms. Significant positions held by Mr. Fuller include: Timber Officer

(State of Victoria, Australia); Assistant Manager of a Forest District (State of Victoria,

Australia); Manager of a Branch Office for a forestry consulting firm (BC); Principal and

Executive Officer with Timberline and Regional Manager of Timberline's Prince George Office

(BC).

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Expertise 215. On Day 279, December 5, 2005, at page 00025, line 41, counsel for the Plaintiff tendered

Mr. Fuller as "a registered professional forester entitled to give opinions with respect to

operational forestry, including planning, harvesting and silviculture, to do forest inventory

mapping and aerial photographic interpretation." British Columbia objected on the basis that

parts of Mr. Fuller's report went beyond his expertise, and counsel for Canada suggested that the

witness was tendered for further-reaching expertise than he was originally put forward for. The

Court decided that the objections went to weight. Mr. Fuller's expert report A Summary Of

Operational Timber Harvesting, Harvest Planning And Intensive Silviculture Activities Within

The Trapline And Brittany Claim Areas because Exhibit 0467.

Expert Report

216. Mr. Fuller was engaged as an expert witness to prepare a report that identifies the

operational timber harvesting and harvest planning activities that have taken place within the

Trapline and Brittany Claim Areas. Mr. Fuller also produced a number of maps that show past

harvesting and planned harvesting in the Claim Area. Those maps are listed as Exhibits 0467A

to 0467T.

217. Mr. Fuller included the following summary of his report:

In this report I have addressed two primary objectives. Firstly, to identify where

harvesting has occurred within the Trapline and Brittany Claim Areas. Secondly,

to identify where harvest was planned within the Claim Areas. I identified the

status of the planned harvest as approved, or as proposed. The maps and attendant

tables form the core of this report. The maps identify the locations of the

harvested areas and planned harvest. The attendant tables provide the references

from the documentation I reviewed for the sources I have used in making my

determinations of harvest and planned harvest.

…

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In my review of the documentation relating to harvesting and to a greater extent

the documentation relating to harvest planning, I identified information that I

thought may assist the Court in understanding the atmosphere in which planning

decisions were made. This includes information such as correspondence between

government agencies and between Ministry of Forest (MoF) and licensees.

It is my opinion that one large area that I note on the maps and in the tables as

Unit A has been harvested. I have not been able to identify the licensee(s)

responsible for this harvesting. I have described the area harvested as the area of

Unit A.

I have identified twenty-eight Timber Sale Licences (TSLs) that in my opinion

were awarded to individuals and licensees for harvest within the Claim Areas.

The total area of these licences plus the area of Unit A is 5,121 hectares. This area

is in my opinion the total area of TSLs issued within the Claim Areas.

No harvesting was undertaken on two of these TSLs, and only small amounts of

harvesting occurred on several other TSLs. I have identified and have displayed

on maps the locations where harvesting occurred in most of the other TSLs. The

total area of these mapped locations is 2,802 hectares and it is my opinion that

2,802 hectares of forest have been harvested within the Claim Areas under

licences issued by the MoF between 1945 and 1989.

While researching harvesting under TSLs I have identified several occurrences of

harvesting under minor forms of licences issued by the Ministry of Forests, such

as Licence to Cut and Cash Timber Sale Licences. I did not conduct research to

identify harvesting that has been undertaken in the Claim Areas by minor forms

of licences.

My research indicates and it is my opinion that a total of 1,274.6 kilometres of

roads, trails and seismic lines have been constructed in the Claim Areas to

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September of 2001. These road and related features occupy a total area of 2,010

hectares.

It is my opinion that the Ministry of Forests (MoF) have undertaken incremental

silviculture treatments on 495 hectares of forest land in the Claim Areas.

In my review of the documentation I identified a significant amount of harvest

that was planned for the Claim Areas by holders of replaceable forest licences,

non-replaceable forest licences, one timber sale licence and the Small Business

Forest Enterprise Program (SBFEP). I have not identified any harvest planning

within the Claim Areas prior to 1989. I believe that harvest planning took place

prior to this date, but documentation available for my review has not included any

harvest plans that include the Claim Areas prior to 1989. My review has focused

on the Forest Development Plans (FDPs) that licensees and the SBFEP submit

annually. The MoF prepared consolidated FDPs beginning in 1992, which

displayed the entire licensee and SBFEP planned harvest on one set of maps. The

maps in the individual Licensee and SBFEP annual plans, and in the consolidated

FDPs provide the location of blocks. I used these maps to identify if a planned

block was located within the Claim Areas.

Blocks were often classified within the more recent FDPs as being approved or

proposed. Approved meant, in most cases that the MoF District Manager

reviewed the FDP, and he approved the cutting permit and/or block within the

plan. Proposed meant that he had not yet reviewed the cutting permit/block, or, he

had withheld his approval. In some instances Cutting Permits were issued which

authorized the harvest of blocks located within the Claim Areas. The status of

these blocks is noted as issued. I have identified the total number of blocks

planned within the annual FDPs by licensees and SBFEP, and these are displayed

in the following table by year and by status of approved and proposed or issued.

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I have calculated the total area of the harvest blocks that were planned for each

status for the Claim Areas by licensee/SBFEP FDPs for each year from 1989 to

2002. The total area of blocks is listed by year in the following summary table.

JAMES S. HACKETT, FORESTER

Credentials

218. Mr. James Hackett holds a Bachelor of Science in Forestry and a Masters in Forest

Economics from the University of British Columbia; he is a Registered Professional Forester.

Mr. Hackett has been working in the forestry industry in BC since 1980, and has held upper-level

management positions with large forestry companies since the early 1990s. He has performed

analyses of stumpage policy for the Attorney General, is the President of the Interior Lumber

Manufacturers Association, and sits on the Forest Appeals Commission of British Columbia.

Expertise 219. Plaintiff's counsel put forward Mr. Hackett as an expert entitled to provide opinion on

stumpage and timber valuation matters. On Day 279, January 9, 2006, at page 00017, lines 32 to

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34, the Court was "satisfied that Mr. Hackett is qualified in those areas to express opinion

evidence." Defendant counsel raised no objections to this qualification.

Expert Report

220. Mr. Hackett presented two reports, his original and a supplementary report required to

clarify some changes to his valuation based on lately acquired information; these report were,

respectively, "Stumpage Calculations for Roger William et al. v. Her Majesty the Queen in Right

of the Province of British Columbia et al." (Exhibit 0474) and "Supplemental Report on

Stumpage Calculations for Roger William et al. v. Her Majesty the Queen in Right of the

Province of British Columbia et al." (Exhibit 0475)"

221. Mr. Hackett determined that the nominal value of stumpage revenue for wood removed

from the Claim Area was $751,754.11 for the period 1959 to 1998. He estimated the market

value of the total volume of logs removed from the Claim Area, using current interior log prices,

as $27,972,933.12.

DR. EDWIN BLEWETT, ECONOMIST

Credentials

222. Dr. Blewett holds a Masters in Economics from Queens University and a Ph.D. in

Economics from the University of British Columbia. He has worked as a senior economist for

the Department of Fisheries and Oceans and has held a Lecturer position at Wilfred Laurier

University. He has worked for the Maa-nulth First Nation analyzing treaty outcomes, and has

developed timber price forecasts for the Washington State Department of Natural Resources.

His CV is Exhibit 0476.

Expertise

223. On Day 285, January 10, 2006, at page 00001, lines 40 to 44, Plaintiff's counsel sought to

have Dr. Blewett qualified as "an economist with expertise to provide the court with opinion

evidence on the present value of stumpage revenue received by the Province from logging in the

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claim area." At page 00002, line 8 the Court agreed that Dr. Blewett was "qualified to express

opinions in the areas" stated by Plaintiff's counsel.

Expert Report

224. Dr. Blewett provided two opinions to the court, both entitled: "Xeni Gwet'in Claim

Calculations"; the first dated October 14, 2005 (Exhibit 0477) and the second dated, January 5,

2006 (Exhibit 0478).

225. Dr. Blewett was asked to calculate the value of stumpage revenues from timber

harvesting from the Claim Area assuming that those revenues were invested and earned a rate of

return. He determined that the current value of stumpage revenues compounded at 3% real was

$10,462,135.51. Using the Indian and Northern Affaires Canada Rate of Interest on Capital and

Revenue Accounts it was $12,896,896.51.

DAVID S. COSTER, FORESTER

Credentials

226. David Coster holds a Bachelor of Science in Forestry from the University of New

Brunswick. He is a professional forester with a decade of experience in Geographic Information

Systems (GIS) and he has performed timber supply analysis for a number of commercial forestry

interests.

Expertise

227. On Day 286, January 11, 2006, at page 00005, lines 7 to 12, Plaintiff's counsel put Mr.

Coster forward as "an expert to give opinion evidence with respect to growth and yield modeling

of forest stands with respect to the variable density yield projection model, use of geographic

information systems and the forest inventory." Counsel for the Defendants did not object and at

page 00005, lines 37 to 39, the Court agreed that it was "satisfied that he is entitled to express

opinions in the areas that counsel has put forward." His CV is Exhibit 0479.

83

Expert Report

228. Mr. Coster presented his expert report entitled "Nemiah Land Claim Trapline Harvested

Areas Projection Project" which became Exhibit 0480. The objective of Mr. Coster's report was

to determine what the current timber volume would be in the areas harvested in the TSLs and

Unit A in the Claim Area if they had not been harvested.

229. Mr. Coster's report concluded:

On the basis of the methodologies I have outlined above, it is my opinion that a total of 516,021 cubic meters of timber would currently exist in TSLs and Unit A under the Trapline and Brittany Claim Areas if they had not been harvested.

230. He provides a table of his projections for each harvested area at page 5 of his report.

ALEX PAWLIUK

Credentials

231. Alex Pawliuk has 36 years experience in the forest industry. He worked in management

and consulting positions covering a wide spectrum of operations including: being a Timber

Cruising and Log Scaling Licence holder with the Ministry of Forests.; Divisional Forestry

Engineer with MacMillan Bloedel Ltd., responsible for the planning and development of 500,000

m3 of timber annually; owned and operated a small value-added wood products company

specializing in heli-logging of salvage timber and sawmilling it into high value vertical-grain

specialty boards for the Japanese market; and managing in-house marketing of the export and

domestic log production for a north coastal major licensee with an annual harvest of 350,000 m3.

In the course of marketing or brokering logs, Mr. Pawliuk's regular activities included detailed

evaluations of timber stands, cruise information and logs for bidding, production and sales

purposes.

84

Expertise

232. On Day 286, January 11, 2006, at page 00023, lines 37 and 38, Plaintiff's counsel put Mr.

Pawliuk forward as "as an expert to give timber valuation" and the Court agreed that he was

"entitled to express opinions in this field of expertise"; Mr. Pawliuk's resume is Exhibit 0479.

Expert Report

233. Mr. Pawliuk presented his report entitled "Estimate of Current Market Value of Projected

Timber Volumes in the Nemiah Land Claim Area"; it became Exhibit 0482.

234. Mr. Pawliuk prepared estimates of current market values for the timber projections made

by Mr. Coster, timber that would have been present in the claim area if past infringements had

not occurred. Mr. Pawliuk estimated that value, covering 2,787 ha. in the Claim Area and

representing a predicted log volume of 516,021 cubic metres, would conservatively have a

current market value in the range of $39,300,434 with an average value of $76.16 per cubic

metre.

DR. EUNG-DO COOK, LINGUIST

Credentials

235. Dr. Cook holds a Bachelor of Arts and a Master of Arts from Chung-Ang University in

Korea, an M.A. from the University of Hawaii, and a Ph.D. in Linguistics from the University of

Alberta. He was a Professor at the University of Calgary from 1960 to 2000 and was Head of the

Department of Linguistics from 1976 to 1985. He now holds the post of Professor Emeritus at

the University of Calgary. Dr. Cook has published extensively in his field of Linguistics,

especially the Linguistics of North American Indian Languages. In 1989 he edited (with Karen

D. Rice) a book, entitled: "Athapaskan Linguistics: Current Perspectives on a Language Family,"

and he contributed to that book the article: "Chilcotin Tone and Verb Paradigms."

85

Expertise

236. The defendants did not wish to challenge the expertise of Dr. Cook or to cross-examine

him on his report. Accordingly, Dr. Cook was not called to testify and his report stands un-

contradicted.

Expert Report

237. Dr. Cook’s report was entered as Exhibit 0546 on May 25, 2006. At the same time, a

document entitled Tsilhqot’in, a Selected and Annotated Bibliography, prepared by Dr. Cook,

was entered as Exhibit 0545, and Dr. Cook’s curriculum vitae was entered as Exhibit 0547.

238. Dr. Cook’s report is framed as a response to two questions, set out below.

1. Is Tsilhqot’in a distinct language as the term is used by linguists and other scholars who specialize in ethnic studies?

Dr. Cook started his examination of this question with a clear answer. He then stated the

subordinate questions that he considered in reaching his clear answer:

1. Is Chilcotin a distinct language? My answer to this question is unequivocal “yes”. In deriving this answer I have considered the following questions: (a) How unique is the term used by the Chilcotin people and in scholarly literature? (b) Is the term consistently used to identify a distinct language by those who identify and classify the Athabaskan (Athapaskan) languages? (c) How well is the term recognized in established scientific literature? (d) Has there been any controversy on the classification of Chilcotin as a distinct language? (e) What are structural (linguistic) characteristics that distinguish Chilcotin from Athabaskan and other neighbouring languages?

In relation to the recognition of Chilcotin as a distinct language in the literature, Dr. Cook

said this:

Chilcotin as a distinct language is well established in major reference sources, including textbooks and encyclopaedias. Landar (1976) includes Chilcotin in his most comprehensive list of Amerindian language names. Driver (1970) identifies

86

Chilcotin as a distinct language in one of the maps (Map 38) attached to Indians of North America, the most popular university-level textbook on the topic. The encyclopaedias and other major reference books in which Chilcotin is identified as a distinct language include The Canadian Encyclopaedia (Hurtig Publishers, 1985), International Encyclopaedia of Linguistics (Oxford University Press, 1991), The Languages of Canada (Didier, 1979), and Language in Canada (Cambridge University Press, 1998).

239. Dr. Cook noted that Chilcotin has structural characteristics that are unique to Chilcotin

and are not shared by other Athabaskan languages. Dr. Cook makes tight linguistic comparison

between Chilcotin and neighbouring Athabaskan languages (Carrier, Babine, Sekani) and shows

some of the distinctive features of Chilcotin but also shows the descent of these languages from a

long-ago predecessor proto-Athabaskan language. Dr. Cook concludes that there is “hardly any

mutual intelligibility” between Chilcotin and Carrier, neighbouring Athabaskan languages, but

“no mutual intelligibility whatsoever” between Chilcotin or Carrier, on the one hand, and any

neighbouring Salish language, including Lillooet, Shuswap and Thompson, on the other hand.

2. How long has Chilcotin been a distinct language?

Dr. Cook gave his response to this question in these terms:

It is not possible to determine how long Chilcotin (or any aboriginal language for that matter) has existed as a distinct language. But I have no hesitation in saying that Chilcotin has been a distinct speech community for more than five hundred years or even more than a thousand years.

240. And later in his report:

Putting aside the reliability of lexicostatistics, the most interesting and important point is that none of those who have studied time depth relationships within Athabaskan has proposed any distinct duration of time shorter than 1500 years between any Athabaskan language and Proto-Athabaskan (see Swadesh 1958). Krauss (1976), after a through review of the matter, proposes “a maximum divergence within Athapaskan of 2400 +/- 500 years.” Based on these studies, as well as what is known of historical developments of languages in general, it is safe to conclude that Chilcotin has been a distinct language for many centuries, certainly more than 500 years.

87

DR. MATHIS WACKERNAGEL, ECOLOGICAL COMMUNITY MODELER

Credentials

241. Dr. Wackernagel holds a Ph.D. in Community and Regional Planning. He also holds a

Master of Science in Mechanical Engineering. As his Ph.D. thesis, he developed the “Ecological

Footprint” concept, which measures how much land and water area is required by a given human

population. He is the founder and executive director of the Global Footprint Network, which is

an organization focused on refining and promoting the use of the Ecological Footprint as a

resource management metric. Since 1995, Dr. Wackernagel has held various academic positions

in the areas of ecology and geography and also worked as both a researcher and consultant in

these areas.

Expertise

242. Neither of the counsel for the Defendants objected to Dr. Wackernagel being qualified as

an expert to provide the opinions contained in his report. Dr. Wackernagel’s report was entered

by consent. He did not give evidence in direct; nor was he cross-examined by counsel for the

defendants.

Expert Report

243. Dr. Wackernagel’s report, entitled “Assessment of Human Population Carrying Capacity

Prior to European Influence and Trade of the Brittany Triangle and Xeni Gwet’in Trapline Areas

in the Nemiah Valley, British Columbia (the “Claim Area”)”, was filed in court as Exhibit 0356.

244. Dr. Wackernagel was asked by plaintiff’s counsel to estimate the human carrying

capacity of the Claim Area, and to develop an upper estimate of the population density, before

European influences and trade. Chronologically, this translated to approximately the year 1800.

88

245. According to Dr. Wackernagel, the concept of ‘carrying capacity’ is defined as the

maximum population of a given species that can be supported over time within a certain

geographic region. Dr. Wackernagel summarized its application in this context as follows:

In this report, I use the notion ‘carrying capacity of the Claim Area pre European influence and trade’ as a short cut for ‘the number of people the Claim Area was able to support with its biocapacity, recognizing the consumption patterns, the prevalent technology, the resource management strategies, and the trade patterns that typified life in the Claim Area pre-European influence and trade.

246. Due to the limited availability of data for the time period in question, Dr. Wackernagel

arrived at his estimate through the use of proxy data. To test the accuracy of his methodologies,

he used six different approaches, which produced the following estimate:

By taking six different approaches of assessing the carrying capacity of the Claim Area prior to European influence and trade, I conclude that the Claim Area supported a human population most likely on the order of 100-1000 people. The carrying capacity of the Claim Area was less likely to be in the range of 1,000-10,000 people, and also less likely to be in the range of 10-100 people.

247. Dr. Wackernagel’s methodology included the following assumptions:

1. The Xeni Gwet’in and the Tsilhqot’in did not engage in large-scale, intensive

agriculture but did use burning and other plant management techniques to perpetuate or enhance the availability of certain food plants.

2. The Xeni Gwet’in and the Tsilhqot’in had a large range of skills and indigenous

technologies for hunting (bows and arrows, fences, traps), food gathering, food preservation, and shelter building. Not before 1700, but prior to contact with Europeans, they had access to horses. The Xeni Gwet’in and the Tsilhqot’in did not have guns. Neither did they have access to metal or glass containers for preparing and preserving food. They did not have guns until the early 1800s, and the use of guns appears not to have been widespread until the late 1800s.

3. The Xeni Gwet’in and the Tsilhqot’in practiced seasonal rounds with winter

camps close to the lakes. This translated into a seasonal use of foods (mountain potatoes, salmon, deer).

4. There are historical records and oral histories demonstrating that the Tsilhqot’in

took action to protect their Territory against unauthorized intrusion by other First Nations and by non-indigenous settlers. This fact meant that there would have

89

been an incentive to prevent population levels from dipping significantly below the biological capacity of the region, the primary reason being that it takes people to defend territory. The fact that the Tsilhqot’in had to defend their territory historically suggests that they would have maximized their population size rather than leaving biocapacity vacant. Thus, I have assumed that they utilized the full biological capacity of their territory.

5. Considering the descriptions of the traditional diets, I assume that protein from

animal products (mainly mammal meat and fish) made up a significant portion (roughly half) of the overall food calorie intake of the Xeni Gwet’in and the Tsilhqot’in, complemented by plant-based carbohydrates from wild potatoes, berries, etc.

248. The carrying capacity estimates were generated through the following approaches:

1. Extrapolation of population data of a key regional species: wild horses

In his first approach, Dr. Wackernagel estimated available ungulate

biomass, and then estimated the human population that this key food

source could support. He used known wild horse populations in the

Brittany Triangle as a proxy indicator to estimate overall available

ungulate biomass in the Claim Area. As the wild horses have overlapping

food niches with other ungulates, they were used to estimate grazing

capacity for the Brittany Triangle, which was then extrapolated to the

entire Claim Area. Dr. Wackernagel used available data on sustainable

harvesting rates of ungulate populations by humans, human caloric

requirements and anthropological information on diet, to estimate the

human population that could be sustained by the ungulate population in

the Claim Area. This approach yielded a population estimate of 110-800

people.

2. Extrapolating from key predator populations: wolves

In his second approach, Dr. Wackernagel essentially tested his first

approach by generating a second estimate of ungulate biomass within the

Claim Area. Here, he used wolf population estimates for the Claim Area,

90

combined with data on caloric requirements of wolves and harvesting rates

of ungulate biomass to extrapolate the ungulate biomass within the Claim

Area. This was then used to estimate the availability of ungulate biomass

for human consumption based on some of the metrics in the first approach.

The resulting population estimate was 180-900 people.

3. Extrapolating from population data of a key competitor species: bears

Bears were identified as the species in the Claim Area with food sources

that overlap the most with those of a human population living off the land.

Dr. Wackernagel used B.C. government estimates of the potential of the

Claim Area to support bear populations. This is a critical difference than

actual bear populations, given that the two populations compete (and, in

modern times, humans have crowded out bear populations in some areas).

The capability of the Claim Area to support bear populations was then

translated to human populations through comparison of caloric

requirements. The resulting population estimate was 100-720 people.

4. Extrapolation from population of harvestable animals: the predator-prey balance

Dr. Wackernagel also used available population estimates of predators and

(ungulate) prey to determine the amount of ungulate biomass available for

human consumption (and thus determining the maximum possible human

population). Claim Area population estimates were generated by

multiplying provincial estimates by the percentage size of the Claim Area

and further reducing them based on the relative productivity of the Claim

Area for habitat purposes, which, in the opinion of Dr. Wackernagel, is

potentially the most robust methodology. The resulting population

estimate was 100-300 people.

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5. Comparison of current livestock densities in the United States

Dr. Wackernagel also used wildlife harvest rates to translate U.S. livestock

consumption to an estimate of the equivalent per capita wildlife population

that would be required to sustain that level of consumption. The ungulate

population estimates for the Claim Area from approach #4 were then

divided by the per capita wildlife equivalents to estimate the human

carrying capacity. This approach was premised on the assumption that the

present-day population eats as much animal based food per capita as

humans in the Claim Area would have consumed prior to European trade

and influences. However, Dr. Wackernagel noted two factors that suggest

that the present-day population may consume less animal based food: first,

his review of anthropological accounts suggest that animal based food was

historically a larger percentage of diet; second, present-day people are

more sedentary and, hence, likely have lower caloric requirements overall.

Consequently, this approach likely underestimates the amount of wildlife

that was required to sustain human populations in the Claim Area prior to

European influences and trade (and therefore would overestimate the

possible human population). Based on the wildlife estimates in approach

#4, the resulting population estimate was 80-160 people.

6. Review of anthropological documents relating to diet

Dr. Wackernagel reviewed anthropological sources to determine that it

was unlikely that substantial amounts of food could be stored for multiple

years. As a result, Dr. Wackernagel reasoned that population size would

be limited by the worst year - possibly within a 25-50 year time span as it

takes a minimum of one generation to recover from famine. On this basis,

Dr. Wackernagel concluded that the above estimates of up to 800-900

people were likely maximum population estimates.

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Appendix 1C SELECT TSILHQOT'IN GENEALOGIES

SELECT TSILHQOT'IN GENEALOGIES.................................................................................... 2

Introduction................................................................................................................................. 2 Genealogy of Chief Roger William ............................................................................................ 3 Genealogy of Eagle Lake Henry................................................................................................. 7 Genealogy of Francis Setah ........................................................................................................ 9 Genealogy of Minnie Charleyboy............................................................................................. 13 Genealogy of Gilbert Solomon ................................................................................................. 16 Genealogy of Mabel William.................................................................................................... 18 Genealogy of Patricia Guichon................................................................................................. 21 Genealogy of Amelia George ................................................................................................... 23 Genealogy of Cecelia Quilt....................................................................................................... 26 Genealogy of Lulua Family ...................................................................................................... 28

1

Appendix 1C SELECT TSILHQOT'IN GENEALOGIES

INTRODUCTION

1. John Dewhirst has provided the expert opinion that “the modern Xeni Gwet’in and

Tsilhqot’in extended families are descendants of key ancestors who used and occupied the claim

area before 1846.”1 Mr. Dewhirst concluded that “Genealogical evidence… clearly indicates that

ancestors of the modern Xeni Gwet’in lived in the Nemiah Valley, at Big Eagle Lake and

elsewhere in the Claim Area before 1846. The genealogies of these families also demonstrate

their post-1846 presence in the Claim Area that includes survival of the 1863 smallpox epidemic

and continued use and occupancy of the Area.”2

2. In this appendix, the family histories of ten contemporary Tsilhqot’in people are traced

back to their ancestors. John Dewhirst has provided this honourable court with two expert

reports in which he traces the connection between contemporary Tsilhqot’in individuals back to

their Tsilhqot’in ancestors present in the Claim Area at the time of sovereignty.3 John Dewhirst

used lay witnesses (particularly Minnie Charleyboy) as the starting point of his research which

set out the evidence of these genealogies through the documentary record. In this appendix we

have done the reverse, we have used oral history largely unavailable to Mr. Dewhirst to

demonstrate the same family relationships. No deviation was found between the genealogies as

set out in the documents and the genealogy as set out by oral history. Several points flow from

this:

1. Firstly, the importance of the genealogies is that they place the ancestors of the

modern Xeni Gwet'in in the Claim Area prior to 1846.

1 Exhibit 0443, John Dewhirst Expert Report at p. 69. 2 Exhibit 0443, John Dewhirst Expert Report at p. 69. 3 See Exhibit 0441, John Dewhirst Expert Report, September 2004, and Exhibit 0442, John Dewhirst Expert Report, April 2005. See also Exhibit 0443, John Dewhirst Expert Report, August 2005, in which John Dewhirst places the ancestors of contemporary Tsilhqot’in people in the claim area in 1846.

2

2. Secondly, the summary of evidence that follows demonstrates that the oral history

of the Tsilhqot’in people on this point, their ancestry, is accurate, because no

deviations from the available written record is found.

1. In what follows, the genealogies of the following Tsilhqot’in people is presented as set

out in both the historical documents and the oral history evidence. These genealogies can be

independently established using both documentary and oral history evidence.

a. Chief Roger William

b. Eagle Lake Henry

c. Francis Setah

d. Minnie Charleyboy

e. Gilbert Solomon

f. Mabel William

g. Patricia Guichon

h. Amelia George

i. Cecelia Quilt

j. Doris Lulua

GENEALOGY OF CHIEF ROGER WILLIAM

2. The genealogy of Chief Roger William, a current member of the Xeni Gwet’in First Nation,

can be traced back to Kahkul (Qaq’ez) and Elizabeth. The evidence presented in this case

establishes that Qaq’ez was born prior to 18464, and that he was a Tsilhqot’in person from

4 Qaq’ez had children at the time of the Tsilhqot’in war in 1864. Therefore, he was likely born prior to 1846. Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 00019, 10-32. In addition, John Dewhirst concluded Kahkul (Qaq’ez) was born 1846 or earlier, Exhibit 0441, Expert Report of John Dewhirst, September 2004, at 31.

3

M`fg`s`kgbgn] Ahmx.5 Qaq’ez was the brother of Lha Ts’as?in, one of the warriors of the

Tsilhqot’in war.6 The evidence shows that Qaq’ez also fought in the Tsilhqot’in War.7

3. Qaq’ez had children with Elizabeth (Lisabed). Lisabed’s English name was Elizabeth.8

When she was young, Lisabed would spend winters around M`fg`s`kgbgn] Ahmx at Ch’exqud.9

Lisabed is buried at Ts’uni?ad, in the southwest corner of the lake.10 According to John

Dewhirst, Elizabeth was born no later than 1846.11 John Dewhirst concluded that Kahkul

(Qaq’ez) and Elizabeth used parts of the M`fg`s`kgbgn] Ahmx or the Big Eagle Lake area and

other parts of the Claim area during their lives.12 In addition, John Dewhirst opined that

“considering that the Tsilhqot’in practice of traditional or customary family use areas continue

for generations,… the parents of Lhats’as?in and Kahkul most likely used and occupied the

Naghatlhchoz or the Big Eagle Lake area before and after 1826.”13

4. The genealogy of Chief Roger William back to Kahkul (Qaq’ez) and Elizabeth can be

independently traced through both documentary evidence and oral history evidence.

5. Genealogy of Chief Roger William through Documentary Evidence: John Dewhirst has

traced the genealogy of Roger William, the current Chief of the Xeni Gwet’in First Nation to

Kahkul and Elizabeth.14

• Baptismal records indicate that ‘Elysabeth’ and ‘Krarkrelh’ had a daughter named Agnes, who was baptised in 1875 at the age of four and a half.15 Therefore, Agnes was born in late 1870.16 Census records show Agnes was born in Nemiah Valley.17

5 Exhibit 0174, Affidavit #2 of Mabel William, at para 47; Exhibit 0106, Affidavit #2 of Eliza William, at para 8. Transcript, March 1, 2004, Minnie Charleyboy Cross-Exam, at 00040, 31-34. According to the expert evidence of John Dewhirst, Kahkul was born and raised around Eagle Lake (Exhibit 0441, September 2004, at p. 31) 6 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 49; Exhibit 0174, Affidavit #2 of Mabel William, at para 49. Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 00008, 22. 7 Exhibit 0441, Expert Report of John Dewhirst, September 2004, at p. 31; Exhibit 0443, Expert Report of John Dewhirst, August 2005, at para 321. Transcript, May 12, 2005, Patricia Guichon Cross-Exam, at 00036, 47-00037, 5. Transcript, September 25, 2003, Chief Roger William Direct Exam, 00046, 45-47. 8 Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 00009, 40. 9 Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 000010, 9-15. 10 Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 00015, 39- 00016, 40. 11 Exhibit 0443, Expert Report of John Dewhirst, August 2005, at 78. 12 Exhibit 0443, Expert Report of John Dewhirst, August 2005, at 79. 13 Exhibit 0443, Expert Report of John Dewhirst, August 2005, at 78. 14 See Exhibit 0441, Expert Report of John Dewhirst, 2004, at Vol. 1 at Chart 5 (Siblings and Descendants of Kahkul)

4

• Agnes, had a daughter named Annie, who was born in Nemiah Valley. 18 Anny’s

baptismal records list her parents as ‘Agnès’ from ‘Chilcot Lake’ and ‘Algin’. 19 According to Mr. Dewhirst, ‘Algin’ is Father Thomas’s rendition of the English name Elkins.20

• Baptismal Records show ‘Anny Elkin’ was married to ‘Sammy’ of Nemiah Valley in

1926.21 Sam William is listed on the 1940 census with his wife Annie and daughter Eileen who was born November 1, 1938.22

• According to Band Membership documents, Eileen is a current member of the Xeni

Gwet’in First Nation, and was born November 1, 1938.23 Eileen is Chief Roger William’s mother.

• Chief Roger William is also a current member of the Xeni Gwet’in First Nation.24

6. Genealogy of Chief Roger William through Oral History Evidence: Oral History

evidence confirms that Chief Roger William is descended from Kahkul (Qaq’ez) and Elizabeth

(Lisabed).

15 Exhibit 0156-1882/00/00.001, Baptismal records of “Agnes”. Oblates of Mary Immaculate (OMI). Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 1, 95 R 1, 1866-1882 at record 1339. The date of the baptismal record is recorded as 1875 on page 107 of the baptismal register, see also Transcript, October 13, 2005, John Dewhirst Direct-Exam, at 00003, 21. 16Transcript, October 12, 2005, John Dewhirst Direct-Exam, at 00067, 22-23. 17 Exhibit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo at p. 4 of transcript. Due to the similarity in dates between the 1911 census, which lists Agnes as born in 1876, and the baptismal records which list Agnes, baptised in 1875 at age 41/2, John Dewhirst has given his opinion that the ‘Agnes’ referred to in each is likely the same person (Transcript, October 12, 2005, John Dewhirst Direct-Exam, at 00070, 13-15). 18 Exhibit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo, at p. 4. 19 Exhibit 0156-1911/00/00.001, Baptismal records of “Anny Elkin”. Oblates of Mary Immaculate (OMI). Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 3, 95 R 3, 1902-1911, at p. 32, record 4108. Mr. Dewhirst testified that ‘Chilcot’ is a French rendition of ‘Chelquoit Lake’ (Transcript, October 13, 2004, John Dewhirst Direct-Exam, at 00004, 7-21). 20 Transcript, October 12, 2005, John Dewhirst Direct-Exam, at 00064, 32-33. 21 Exhibit 0156-1911/00/00.001, Baptismal records of “Anny Elkin”. Oblates of Mary Immaculate (OMI). Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 3, 95 R 3, 1902-1911 at p. 32, record 4108. 22 Exhibit 0156-1940/00/00.002, Department of Indian Affairs (DIA). 1940. File Census 1940: Canim Lake-Anaham, part 3 of 3. Census Book of Indians. National Archives of Canada, Ottawa, RG 10, Volume 12317, at page following 2645. 23 Exhibit 0444, Department of Indian and Northern Development (DIAND). 2002. Xeni Gwet’in First Nations Government Band Membership List, Family Grouping Listing, printed September 30, 2002 24 Exhibit 0444, Department of Indian and Northern Development (DIAND). 2002. Xeni Gwet’in First Nations Government Band Membership List, Family Grouping Listing, printed September 30, 2002

5

• Qaq’ez was Tsilhqot’in from around M`fg`s`kgbgn].25 Qaq’ez is buried at Xenedi?an.26 Qaq’ez was the brother of Lha Ts’as?in.27 Qaqez had children before 1864.28Qaqez had 6 daughters.29 One of Qaq’ez’s daugh 30ters was Agnes.

• Lisabed’s English name was Elizabeth.31 When she was young, Lisabed would spend

winters around M`fg`s`kgbgn] Biny at Ch’exqud.32 Lisabed is buried at Ts’uni?ad, in the southwest corner of the lake.33 Lisabed was the mother of Agnes.34

• Agnes was Tsilhqot’in from Xeni, and lived at M`fg`s`kgbgn] Ahmx.35 Agnes died of

the flu in Nu M`s`?>`w (Mountain House).36 Agnes was the mother of Annie Bulyan (William).37

• Annie William was called Annie Elkin before she was with Sammy.38 Annie William

was also known as Annie Bulyan.39 Annie Bulyan spoke Tsilhqot’in and was raised Tsilhqot’in.40 Annie William was from M`fg`s`kgbgn] Ahmx (Choelquoit Lake).41 Annie William died around 1980.42 Annie was around 80 years old when she died.43

25 Exhibit 0174, Affidavit #2 of Mabel William, at para 47; Exhibit 0106, Affidavit #2 of Eliza William, at para 8. Transcript, March 1, 2004, Minnie Charleyboy Cross-Exam, at 00040, 31-34. 26 Exhibit 0174, Affidavit #2 of Mabel William, at para 51; Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 21. 27 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 49; Exhibit 0174, Affidavit #2 of Mabel William, para 49; Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 00008, 22. 28 Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 00019, 10- 32. 29 Exhibit 0160, Affidavit #1 of Doris Lulua, at para 32. 30 Exhibit 0174, Affidavit #2 of Mabel William, at para 47; Exhibit 0106, Affidavit #2 of Eliza William, para 8. Transcript, September 10, 2003, Chief Roger William, at 00026, 36-39. Transcript, March 2, 2004, Minnie Charleyboy Direct-Exam, at 00008, 11-15; 00018, 33-47. 31 Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 00009, 40. 32 Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 000010, 9-15. 33 Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 00015, 39-00016, 40. 34 According to Minnie Charleyboy’s evidence, Lisabed was the mother of Sa Yets’en and Sa Yets’en was Agnes’s sister. Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 00009, 28; Transcript, March 1, 2004, Minnie Charleyboy Direct-Exam, at 00035, 34-39. 35 Transcript, September 10, 2003, Chief Roger William, at 00026, 7-21. Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 00022, 24-25. 36 Exhibit 0174, Affidavit #2 of Mabel William, at para 67. Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 00022, 26 -00023, 16. 37 Exhibit 0174, Affidavit #2 of Mabel William, at para 47 and 67. Transcript, September 10, 2003, Chief Roger William, at 00026, 7-9; 00025, 24-26. Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 00025, 35-38. 38 Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 15 39 Annie’s husband was Sammy William, who was also called Sammy Bulyan. See Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 7. Exhibit 0355, Affidavit #1 of Joseph William, at para. 8. Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 37. Transcript, September 10, 2003, Chief Roger William, at 00025, 26. 40 Transcript, January 17, 2005, David Setah Direct-Exam, at 00016, 20-23 41 Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 15. Exhibit 0366, Affidavit #1 of Gilbert Solomon, at para 11. 42 Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 15. Exhibit 366, Affidavit #1 of Gilbert Solomon, at para 11. 43 Exhibit 366, Affidavit #1 of Gilbert Solomon, at para 11.

6

Annie William is buried at Xexti.44 Qaq’ez was the grandfather of Annie Bulyan.45 Annie was the mother of Eileen.46

• Sammy William was sometimes called Sam Bulyan.47 Sammy William was Xeni

Gwet’in from Nemiah Valley.48 Sammy spoke Tsilhqot’in and was raised Tsilhqot’in.49 Sammy William was born in 1892.50 Sammy William died when he was 87, in about 1979.51 Sammy William was buried at the graveyard at Xexti, west of Xeni Biny in Nemiah Valley.52 Sammy was the father of Eileen.53

• Eileen is a Tsilhqot’in person and a member of the Xeni Gwet’in Band.54 Eileen is the

mother of Chief Roger William.55

GENEALOGY OF EAGLE LAKE HENRY

7. The genealogy of Eagle Lake Henry, of the Xeni Gwet’in First Nation, can be traced back to

Kahkul (Qaq’ez) and Elizabeth using both documentary evidence and oral history evidence.

8. Genealogy of Eagle Lake Henry from Documents and Expert Opinion: John Dewhirst

has traced Eagle Lake Henry’s genealogy to Kahkul (Qaq’ez) and Elizabeth.56

• Baptismal records indicate that ‘Elysabeth’ and ‘Krarkrelh’ had a daughter named Agnes, who was baptised in 1875 at the age of four and a half.57 Therefore, Agnes was born in

44 Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 15. Exhibit 0355, Affidavit #1 of Joseph William, at para. 8. 45 Exhibit 0174, Affidavit #2 of Mabel William, at para 47. Exhibit 0160, Affidavit #1 of Doris Lulua at para 32, in which Doris indicates that Annie Elkin’s mom was Madi?an’s sister and Madi?an’s father was Qaqez. 46 Transcript, October 12, 2004, Harry Setah Direct-Exam, at 00015, 25 to28. Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 28 where Francis notes that Eileen is his sister, and his parents are Annie and Sammy William; Transcript, September 10, 2003, Chief Roger William, at 00025, 20-26. 47 Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 7. Exhibit 0355, Affidavit #1 of Joseph William, at para. 8. Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 37. Transcript, September 10, 2003, Chief Roger William, at 00025, 26. 48 Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 7. Exhibit 0355, Affidavit #1 of Joseph William, at para. 8. Transcript, September 10, 2003, Chief Roger William, at 00025, 24-38. 49 Transcript, January 17, 2005, David Setah Direct-Exam, at 00016, 20-23 50 Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 7. 51 Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 7. Exhibit 366, Affidavit #1 of Gilbert Solomon, at para 11, wherein Gilbert Solomon estimates Sammy died around 1978 or 1979. 52 Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 7. Exhibit 0355, Affidavit #1 of Joseph William, at para. 8. 53 Transcript, October 12, 2004, Harry Setah Direct-Exam, at 00015, 25-28. Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 28 notes that Eileen is the sister of Francis Sammy William, and his parents are Annie and Sammy William. 54 Transcript, September 10, 2003, Chief Roger William, at 00025, 1-12. 55 Transcript, October 12, 2004, Harry Setah Cross-Exam, at 00021, 37-40. Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 28(l) Transcript, September 10, 2003, Chief Roger William, at 00025, 1-9. 56 See Exhibit 0441, Expert Report of John Dewhirst, 2004, at Vol. 1 at Chart 5 (Siblings and Descendants of Kahkul)

7

late 1870.58 According to the 1911 census, Agnes was born in Nemiah Valley.59 Agnes and Sil had a son named “Alexis Kratloz” or “Eagle Lake Henry”.60

• Eagle Lake Henry died April 9, 1968 at the approximate age of 82.61 His birthplace is

listed on the death registration as Choelquoit Lake, B.C., and he was buried on Crown Land, lot C1191E.

9. Genealogy of Eagle Lake Henry from Oral History/Tradition Evidence

• Qaq’ez was Tsilhqot’in from around M`fg`s`kgbgn] Ahmx.62 Qaq’ez is buried at Xenedi?an.63 Qaq’ez was the brother of Lha Ts’as?in.64 Qaq’ez had 6 daughters.65 One of Qaq’ez’s daughters was Agnes.66

• Agnes died of the flu in Nu Nataša?ax (Mountain House).67 Agnes was the mother of

?Elegesi (Eagle Lake Henry).68 • Eagle Lake Henry was also called ?Elegesi.69 Eagle Lake Henry was also called Alexis

Sill.70 Qaq’ez was the grandfather of ?Elegesi (Eagle Lake Henry).71 Eagle Lake Henry was born at Mt M`s`?>`w.72

57 Exhibit 0156-1882/00/00.001, Baptismal records of “Agnes”. Oblates of Mary Immaculate (OMI). Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 1, 95 R 1, 1866-1882 at record 1339. The date of the baptismal record is recorded as 1875 on page 107 of the baptismal register, see also Transcript, October 13, 2005, John Dewhirst Direct-Exam, at 00003, 21. 58Transcript, October 12, 2005, John Dewhirst Direct-Exam, at 00067, 22-23. 59 Exhibit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo at p. 4 of transcript. Due to the similarity in dates between the 1911 census, which lists Agnes as born in 1876, and the baptismal records which list Agnes, baptised in 1875 at age 41/2, John Dewhirst has given his opinion that the ‘Agnes’ referred to in each is likely the same person (Transcript, October 12, 2005, John Dewhirst Direct-Exam, at 00070, 13-15). 60 Exhibit 0156-1911/00/00.001, Baptismal record of “Alexis Krâtloz” or “Eagle Lake Henry”. Oblates of Mary Immaculate (OMI). Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 3, 95 R 3, 1902-1911 at p. 232, record 4883. 61 Exhibit 0156-1968/04/09.001, BCVSA. 1968. Death Certificate of Eagle Lake Henry. B.C. Archives, Death Registrations, GR 2951, Microfilm B13239, Reg. # 1968-09-010790.) 62 Exhibit 0174, Affidavit #2 of Mabel William, at para 47. Exhibit 0106, Affidavit #2 of Eliza William, at para 8. Transcript, March 1, 2004, Minnie Charleyboy Cross-Exam, at 00040, 31-34. 63 Exhibit 0174, Affidavit #2 of Mabel William, at para 51. Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 21. 64 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 49. Exhibit 0174, Affidavit #2 of Mabel William, at para 49. Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 00008, 22. 65 Exhibit 0160, Affidavit #1 of Doris Lulua at para 32. 66 Exhibit 0174, Affidavit #2 of Mabel William, at para 47; Exhibit 0106, Affidavit #2 of Eliza William, para 8. Transcript, September 10, 2003, Chief Roger William, at 00026, 36-39. Transcript, March 2, 2004, Minnie Charleyboy Direct-Exam, at 00008, 11-15; 00018, 33-47. 67 Exhibit 0174, Affidavit #2 of Mabel William, at para 67. 68 Exhibit 0174, Affidavit #2 of Mabel William, at para 47 and 67. Transcript, March 1, 2004, Minnie Charleyboy Direct-Exam, at 00035, 34-35. 69 Exhibit 0174, Affidavit #2 of Mabel William, at para 5. Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 3. Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 19. Transcript, March 1, 2004, Minnie Charleyboy Direct-Exam, at 00036, 2-4. 70 Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 19.

8

GENEALOGY OF FRANCIS SETAH

10. The genealogy of Francis Setah, a current member of the Xeni Gwet'in First Nation, can be

traced back to Louis Setah (Sit' ax) and Nancy. According to John Dewhirst, Nancy and Setah

spent most of their lives in the Claim Area. 7J The documentary evidence establishes that Louis

Setah (Sit'ax) was born in the Nemiah Valley between 182774 and 1849. 75 "Seitah" was listed

as one of the Chilcotin warriors at large following the ChiIcotin War. 76 Sit'ax (pronounced 'See

tah') was a Tsilhqot'in man " from Xeni. 78 Sit'ax lived around Xeni when he was 0ld 7 9

According to the death record, Louis died in the Nemiah Valley on October 29 th, 1927.80

11. Oral history, and the documentary evidence, establishes that Louis Setah (Sit'ax) was

married to a woman named Nancy." Nancy was a Tsilhqot'm'f and was born in the Nemiah

Valley83 The documentary evidence establishes that Nancy was born in Nemiah Valley between

184584 and 18518 5 Nancy Setah died in the Nemiah Valley of old age in 1938 8 6 According to

7J Exhibit 0174, Affidavit #2 of Mabel William, at para 47. Transcript, March 1,2004, Minnie Charleyboy DirectExam, at 00035, 7-22,72 Transcript, April I, 2004, Theophile UbiII Lulua, at 00047, 43-19.7J Exhibit 0443, Expert Report of John Dewhirst, August 2005, at p. 76, para. 306.74 Exhibit 0156-1927/11/15.001, British Columbia Vital Statistics Agency. Death Registrations, B.C. Archives, GR2951. Film B11361, Reg. #1927-09-011037.75 Exhibit 0156-1911/00/00.001, Baptismal record of Louis Setah (Ludovicum Tchitarr). Oblates of MaryImmaculate (OMI). Untitled Baptismal Register. Roman Catholic Diocese ofKamloops Chancery, Vol. 3, 95 R 3,1902-1911, at p. 83, record 4287.76 Exhibit 0156-1864/08/27.001, Birch and Cox Correspondence, August 27,1864, at 2148893.77 Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 22. Transcript, May 10,2005, Patricia GuichonDirect-Exam, at 00029,10-13.78 Exhibit 0174, Affidavit #2 of Mabel William, at para. 39.Transcript, May 26, 2005, Francis Sammy WilliamCross-Exam, at 00045, 46-00046,1. Transcript, May 10,2005, Patricia Guichon Direct-Exam, at 00029,10-14.79 Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 22,80 Exhibit 0156-1927/11115.001, British Columbia Vital Statistics Agency. Death Registrations, B.C. Archives, GR2951. Film B11361, Reg. # 1927-09-0 11 037."Exhihit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, DistrictNo. 14- Yale-Cariboo at p. 2 of transcript. Exhibit 0174, Affidavit #2 of Mabel William, at para. 39. Exhibit 0157,Affidavit #1 of Francis Sammy William, at para. 24.82 Exhibit 0174, Affidavit #2 of Mabel William, at para. 39. Exhibit 0157, Affidavit #1 of Francis Sammy William,at para. 24.8l Exhibit 0174, Affidavit #2 of Mabel William, at para. 39. Exhibit 0156-1911/00/00.002, Dominion of Canada.1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo, at p. 2 of transcript.84 Exhibit 0156-1938/11/30.001 (BCVSA. 1938. Death Certificate of Nancy Setah. B.C. Archives, DeathRegistration, GR 2951, Microfilm B13374, Reg. #1938-09-022544.85 Exhibit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, DistrictNo. 14- Yale-Cariboo, at p. 2 of transcript.

9

the death registration, she was a member of the Nemiah Valley Band and died on the Nemiah

Valley Indian Reserve. 87

12. Oral history evidence indicates that Sit'ax's parents were both Tsilhqot'in from the Nemiah

Valley88 John Dewhirst has concluded that the parents of Louis Setah (Sit'ax) and the parents of

his wife Nancy would have lived in the Nemiah Valley in the early 1800's.89

13. The genealogy of Francis Setah back to Louis Setah (Sit'ax) and Nancy can be traced

through both documentary evidence and oral history evidence. The evidence shows that every

generation of the Setah family from Louis Setah (Sit'ax) and Nancy to Francis Setah has lived in

the Nemiah Valley.

14. Genealogy of Francis Setah through Documentary Evidence: In his expert evidence, John

Dewhirst traced the genealogy of Francis Setah, a current member of the Xeni Gwet'in Band,

back to Louis Setah 9 0

•

•

Louis Setah was born in the Nemiah Valley between 182791and 184992 According tothe death record, Louis died in the Nemiah Valley on October 29th

, 19279 3

Nanc~ Setah was the wife of Louis Setah.94 She was born in Nemiah Valley between1845 5 and 1851.96 Nancy Setah died in the Nemiah Valley of old age in 1938.97

86 Exhibit 0156-1938/11130.001, BCVSA. 1938. Death Certificate of Nancy Setah. B.C. Archives, DeathRegistration, GR 2951, Microfilm B13374, Reg. #1938-09-022544.87 Exbibit 0156-1938/11130.001, BCVSA. 1938. Death Certificate of Nancy Setah. B.C. Archives, DeathRegistration, GR 2951, Microfilm B13374, Reg. #1938-09-022544. Exhibit 0174, Affidavit #2 of Mabel William,at para. 39.sa Exhibit 0174, Affidavit #2 of Mabel William, at para. 39. Transcript. May 10,2005, Patricia Guichon DirectExam, at 00030,30-35.89 Exhibit 0443, Expert Report of John Dewhirst, August 2005, at p. 75.90 See Exhibit 0441, Expert Report of John Dewhirst, 2004, at Vol. 1 at Chart 3. Descendents of Louis Setah (SetahFamily).91 Exhibit 0156-1927/11115.001, British Columbia Vital Statistics Agency. Death Registrations, B.C. Archives, GR2951. Film B11361, Reg. #1927-09-011037.92 Exhibit 0156-1911100/00.001, Baptismal record of Louis Setah (Ludovicum Tchitarr). Oblates of MaryImmaculate (OMI). Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 3, 95 R 3,1902-1911, at p. 83, record 4287.9J Exhibit 0156-1927/11115.001, British Columbia Vital Statistics Agency. Death Registrations, B.C. Archives, GR2951. Film BI1361, Reg. #1927-09-011037.94Exhibit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, DistrictNo. 14- Yale-Cariboo at p. 2 of transcript.

10

According to the death registration, she was a member of the Nemiah Valley Band and died on the Nemiah Valley Indian Reserve.98

• Johnny Setah was born in the Nemiah Valley in 1875.99 Johnny Setah had a son named

Little George Setah.100 • Little George Setah was born in 1899.101 He was baptised in 1902, at the age of about 3

years, to parents “Awonewon (Johnny Setah)” and Christine, both from Nemiah Valley.102 According to his death certificate, Little George was born in the Nemiah Valley to parents from the Nemiah Valley, and he was buried in the Nemiah Valley.103 Little George Setah died in a train accident in 1971.104 Little George Setah had a son named Francis who was born in 1929.105

• Francis Setah was born in the Nemiah Valley in October 1929.106 He is a current

member of the Xeni Gwet’in First Nations Band.107 15. Genealogy of Francis Setah through Oral History Evidence: The oral history evidence

confirms that Francis Setah is descended from Louis Setah, also known as Sit’ax.

95 Exhibit 0156-1938/11/30.001 (BCVSA. 1938. Death Certificate of Nancy Setah. B.C. Archives, Death Registration, GR 2951, Microfilm B13374, Reg. #1938-09-022544. 96 Exhibit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo, at p. 2 of transcript. 97 Exhibit 0156-1938/11/30.001, BCVSA. 1938. Death Certificate of Nancy Setah. B.C. Archives, Death Registration, GR 2951, Microfilm B13374, Reg. #1938-09-022544. 98 Exhibit 0156-1938/11/30.001, BCVSA. 1938. Death Certificate of Nancy Setah. B.C. Archives, Death Registration, GR 2951, Microfilm B13374, Reg. #1938-09-022544. 99 Exhibit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo, at p. 2 of transcript 100 Exhibit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo, at p. 2-3 of transcript; Exhibit 0156-1971/11/29.001, BCVSA. 1971. Death Certificate of Little George Setah. B.C. Archives, Death Registrations, GR 2951. Microfilm B13362, Reg. # 1971-09-016556.) 101 Exhibit 0156-1940/00/00.002, Department of Indian Affairs (DIA). 1940. File Census 1940: Canim Lake-Anaham, part 3 of 3. Census Book of Indians. National Archives of Canada, Ottawa, RG 10, Volume 12317, page following p. 2645. 102 Exhibit 0156-1911/00/00.001, Baptismal record of “Georges Setah”. Oblates of Mary Immaculate (OMI). Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 3, 95 R 3, 1902-1911, at p. 24, record 4050. 103 Exhibit 0156-1971/11/29.001, BCVSA. 1971. Death Certificate of Little George Setah. B.C. Archives, Death Registrations, GR 2951. Microfilm B13362, Reg. # 1971-09-016556. 104 Exhibit 0156-1971/11/29.001, BCVSA. 1971. Death Certificate of Little George Setah. B.C. Archives, Death Registrations, GR 2951. Microfilm B13362, Reg. # 1971-09-016556. 105 Exhibit 0156-1940/00/00.002, Department of Indian Affairs (DIA). 1940. File Census 1940: Canim Lake-Anaham, part 3 of 3. Census Book of Indians. National Archives of Canada, Ottawa, RG 10, Volume 12317, at p. following p. 2645. 106 Exhibit 0156-1940/00/00.002, Department of Indian Affairs (DIA). 1940. File Census 1940: Canim Lake-Anaham, part 3 of 3. Census Book of Indians. National Archives of Canada, Ottawa, RG 10, Volume 12317, page following 2645. 107 Exhibit 0444, Department of Indian and Northern Development (DIAND). 2002. Xeni Gwet’in First Nations Government Band Membership List, Family Grouping Listing, printed September 30, 2002,

11

• Sit’ax’s mother was Tsilhqot’in from Xeni.108 Sit’ax’s father was Tsilhqot’in from the Nemiah Area.109

• Sit’ax was Tsilhqot’in.110 Sit’ax was born in Xeni.111 Sit’ax was from Nemiah.112

Sit’ax lived around Xeni when he was old.113 Sit’ax was also called Old Setah.114 Sit’ax was the father of ?Eweniwen [Johnny Setah].115

• Sit’ax was married to Nancy.116 Sit’ax and Nancy had a cabin at S`s?Èt?sÈ`m in Xeni.117

Nancy was Tsilhqot’in.118 Nancy was born and raised around Xeni. 119 Nancy is buried in the Tsilhqot’in graveyard in Xexti Biny (Nemiah Lake).120

• Johnny Setah’s Tsilhqot’in name is ?Eweniwen.121 ?Eweniwen [Johnny] was a member

of the Nemiah Band122 and was buried at Xex Ti, in Nemiah.123 Johnny Setah was Tsilhqot’in.124 ?Eweniwen [Johnny Setah] was the father of Little George.125

• Little George was called “George Nentsel” 126 or Juzd Nentsel127 in Tsilhqot’in.

Little George was a member of the Nemiah band,128 was run over by a train129, and

was buried at Xexti.

.131

130 George Setah was the grandson of Sit’ax

108 Exhibit 0174, Affidavit #2 of Mabel William, at para. 39. 109 Transcript, May 10, 2005, Patricia Guichon Direct-Exam, at 00030, 30-35. 110 Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 22. Transcript, May 10, 2005, Patricia Guichon Direct-Exam, p. 00029, ll. 10-13. 111 Exhibit 0174, Affidavit #2 of Mabel William, at para. 39. 112 Transcript, May 26, 2005, Francis Sammy William Cross-Exam, at 00045, 46-00046, 1. Transcript, May 10, 2005, Patricia Guichon Direct-Exam, at 00029, 10-14. 113 Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 22. 114 Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 9. 115 Transcript, October 20, 2004, Norman George Setah Direct-Exam, at 00014, 14-18. Transcript, December 7, 2004, Norman George Setah Cross Exam, at 00041, 39-40. Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 26. Exhibit 355, Affidavit #1 of Joseph William, at para. 37. Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 9. 116 Exhibit 0174, Affidavit #2 of Mabel William, at para. 39. Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 24. 117 Exhibit 0174, Affidavit #2 of Mabel William, at para. 56(vii). 118 Exhibit 0174, Affidavit #2 of Mabel William, at para. 39. Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 24. 119 Exhibit 0174, Affidavit #2 of Mabel William, at para. 39. 120 Exhibit 0174, Affidavit #2 of Mabel William, at para. 39. 121 Transcript, October 20, 2004, Norman George Setah Direct-Exam, p. 00014 line 23. See also Exhibit 0174, Affidavit #2 of Mabel William, at para 58(v). Transcript, March 4, 2004, Minnie Charleyboy Direct-Exam, at 00008, 1-2. 122 Transcript, October 20, 2004, Norman George Setah Direct-Exam, at 00015. 7. 123 Transcript, October 20, 2004, Norman George Setah Direct-Exam, at 00014, 28. Exhibit 0157, Affidavit #1 of Francis Sammy William, at para. 27. 124 Transcript, January 17, 2005, David Setah Direct-Exam, at 00013, 23-24. See also 00012, 42-44 where David Setah names his grandparents ‘Johnny Setah and also Nellie or Mili’. 125 Transcript, October 20, 2004, Norman George Setah Direct-Exam, at 00013 at 23-25. Transcript, December 7, 2004, Norman George Setah Cross Exam, at 00041, 35-36. Exhibit 0158, Affidavit #2 of Francis Sammy William, at para. 92. Transcript, December 7, 2004, Norman George Setah Cross Exam, at 00041, 35-36.

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• Little George Setah had a son named Francis.132

GENEALOGY OF MINNIE CHARLEYBOY

16. The genealogy of Minnie Charleyboy, can be traced back to Nemiah. The evidence shows

that Nemiah was Tsilhqot’in133 and was born in the Nemiah Valley between 1827134, and

1841.135 Old Nemiah died on July 11, 1927 at the age of ‘over 100 years’.136 According to John

Dewhirst’s expert opinion, “Place names on archival maps strongly suggest that Nemiah was

from the Claim Area around Chilko Lake and the Southgate River in the early 1860’s and likely

earlier”.137 John Dewhirst has concluded that “Nemiah spent his life in and around the Claim

Area, particularly the Nemiah Valley and Chilko Lake.”138 He also concluded that “Nemiah was

a Stone Indian and their territory included the Chilko Lake and Nemiah Valley region. Nemiah

appears to have formed his own band among the Stone Indians who had already established land

use and occupancy in the Nemiah Valley and surrounding area”.139

17. Minnie Charleyboy’s genealogy can be traced back to Nemiah and Akous. This genealogy

can be independently confirmed using both documentary evidence and oral history evidence.

126 Transcript, October 20, 2004, Norman George Setah Direct-Exam, at 00013 5-6. 127 Transcript, December 7, 2004, Norman George Setah Cross Exam, at 00041, 32-34. 128 Transcript, October 20, 2004, Norman George Setah Direct-Exam, at 00014, 9. 129 Transcript, October 20, 2004, Norman George Setah Direct-Exam, at 00013, 29-30. 130 Transcript, October 20, 2004, Norman George Setah Direct-Exam, at 00013, 36. 131 Transcript, November 8, 2004, Norman George Setah Direct-Exam, at 00030, 44, -00031, 1 132 Transcript, October 20, 2004, Norman George Setah Direct-Exam, at 00013, 5-43 and 00010, 40. 133 Exhibit 0105, Affidavit #1 of Eliza William, at para. 7. 134 Exhibit 0156-1927/07/31.001, British Columbia Vital Statistics Agency. 1927. Death Certificate of Old Nemiah. B.C. Archives, Death Registrations, GR 2951. Microfilm B13361, Reg. #1927-09-011026) 135 Exhibit 0156-1911/00/00.001 (orig. ) PLT-004056 (trans.), Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo, p. 3 of transcript. 136 Exhibit 0156-1927/07/31.001, British Columbia Vital Statistics Agency. 1927. Death Certificate of Old Nemiah. B.C. Archives, Death Registrations, GR 2951. Microfilm B13361, Reg. #1927-09-011026) 137 Exhibit 0443, Expert Report of John Dewhirst, August 2005, at p. 72, para. 292. 138 Exhibit 0443, Expert Report of John Dewhirst, August 2005, at p. 70, para. 284. 139 Exhibit 0443, Expert Report of John Dewhirst, August 2005, at p. 72, para. 293.

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18. Genealogy of Minnie Charleyboy through Documentary Evidence: John Dewhirst has traced

Minnie Charleyboy’s genealogy back to Nemiah and Akous.140

• Nemiah was born in the Nemiah Valley between 1827141, and 1841.142 Old Nemiah died on the Stone Reserve in the Chilcotin, on July 11, 1927.143 “Nebaia” and “Akous” had a daughter “Jenny” who was baptised on November 10, 1877 at the age of two.144 According to John Dewhirst, Jenny and Jeannie are likely different spellings of the same name.145 “Jeannie” was born in Nemiah Valley.146

• Jeannie married Jack Lulua. 147 Jack Lulua was born in Nemiah Valley between 1867148

and 1870.149 Jack Lulua is listed on the 1940 census, along with his daughter Emily, and granddaughter Minnie.150 Emily’s date of birth is listed as November 6, 1914.151 Minnie’s date of birth is listed as June 30, 1934.152

• Minnie Lulua married Patrick Charleyboy153 and is now listed on the Alexis Creek Band

Membership list.154

140 See Exhibit 0441, Expert Report of John Dewhirst, 2004, at Vol. 1 at Chart 1 (Descendants of Nunsulian and Nemiah (Lulua Family). 141 Exhibit 0156-1927/07/31.001, British Columbia Vital Statistics Agency. 1927. Death Certificate of Old Nemiah. B.C. Archives, Death Registrations, GR 2951. Microfilm B13361, Reg. #1927-09-011026) 142 Exhibit 0156-1911/00/00.001 (orig. ) PLT-004056 (trans.), Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo, p. 3 of transcript. 143 Exhibit 0156-1927/07/31.001, British Columbia Vital Statistics Agency. 1927. Death Certificate of Old Nemiah. B.C. Archives, Death Registrations, GR 2951. Microfilm B13361, Reg. #1927-09-011026) 144 Exhibit 0156-1882/00/00.001, Baptismal records of “Jenny”. Oblates of Mary Immaculate (OMI). Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 1, 95 R 1, 1866-1882, at record 1688. 145 Exhibit 0441, Expert Report of John Dewhirst, at Volume 2, Tab 3, fn. 40 146 Exhibit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo, at. p. 4 of transcript. 147 Exhibit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo at p. 4 of transcript. 148 Exhibit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo, p. 4 of transcript. 149 Exhibit 0156-1949/05/16.001, BCVSA, Death Registrations, B.C. Archives, GR 2951, Registration of Death of an Indian Lulua, Jack, Death, B13376, 1949-09-095185 (PLT- 003976); Exhibit 0156-1940/00/00.001, Department of Indian Affairs. Census 1940: Nemiah Valley- Williams Lake, part 7 of 7. Census Book of Indians. National Archives of Canada, Ottawa, RG 10, V. 12317 (C-005379), p. 2453. 150 Exhibit 0156-1940/00/00.001, Department of Indian Affairs (DIA). 1940. File Census 1940: Nemiah Valley-Williams Lake part 7 of 7, Census Book of Indians, National Archives of Canada, Ottawa, R.G. 10, Volume 12317, at page following 2454 151 Exhibit 0156-1940/00/00.001, Department of Indian Affairs (DIA). 1940. File Census 1940: Nemiah Valley-Williams Lake part 7 of 7, Census Book of Indians, National Archives of Canada, Ottawa, R.G. 10, Volume 12317, at page following 2454 152 Exhibit 0156-1940/00/00.001, Department of Indian Affairs (DIA). 1940. File Census 1940: Nemiah Valley-Williams Lake part 7 of 7, Census Book of Indians, National Archives of Canada, Ottawa, R.G. 10, Volume 12317, at page following 2454 153 Transcript, October 14, 2005, John Dewhirst Direct-Exam, at 00033, 18-20. 154 Exhibit 0444 (Department of Indian and Northern Development (DIAND). 2002. Alexis Creek Indian Band Membership List, Family Grouping Listing, printed September 30, 2002)

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19. Genealogy of Minnie Charleyboy through Oral History Evidence: According to oral history

evidence, Minnie Charleyboy is descended from Nemiah.

• Nemiah was the father of Jeannie. 155 Nemiah was Tsilhqot’in.156 Louisa was the mother of Jeannie.157

• Jeannie was Tsilhqot’in.158 Jeannie died from sickness and is buried at Nu M`s`?>`w

(Mountain House).159 Jeannie was the mother of Emily.160 • Jack Lulua’s Tsilhqot’in name was Hadediny.161 Jack Lulua was a member of the Xeni

Gwet’in Band162 and was from around M`fg`s`kgbgn] Ahmx.163 Jack Lulua lived around M`fg`s`kgbgn] Ahmx all his life.164 Jack Lulua died in around 1947.165 He is buried at the graveyard at Eagle Lake at S?h BgÈdc Ch]>`m.166 Jack Lulua was the father of Emily.167

• Emily Ekks is the married name of Emily Lulua.168 Emily Ekks was Tsilhqot’in.169

Emily Ekks was born in 1914.170 Emily Ekks was raised near M`fg`s`kgbgn] (Choelquioit Lake).171 Emily Ekks married Donald Ekks around 1960.172

155 Exhibit 0160, Affidavit #1 of Doris Lulua, at para 22. Exhibit 0105, Affidavit #1 of Eliza William, at para. 7. 156 Exhibit 0105, Affidavit #1 of Eliza William, at para. 7. 157 Exhibit 0105, Affidavit #1 of Eliza William, at para 7. 158 Exhibit 0105, Affidavit #1 of Eliza William, at para. 7. Transcript, March 2, 2004, Minnie Charleyboy Direct-Exam, at 00014, 27-28. 159 Exhibit 0160, Affidavit #1 of Doris Lulua, at para 22. Exhibit 0105, Affidavit #1 of Eliza William, at para. 7, and 14. 160 Exhibit 0160, Affidavit #1 of Doris Lulua, at para 23. Eliza William indicates that Emily was her sister, and Eliza’s parents were Jack and Jeannie, see Exhibit 0105, Affidavit #1 of Eliza William, at para. 6 and 7. See also Exhibit 0114, Affidavit #3 of Annie Williams, at para. 7, where Annie explains that the mother of Emily Ekks was the wife of Jack Lulua. Transcript, March 2, 2004, Minnie Charleyboy Direct-Exam, p. 00014, 13-14. 161 Exhibit 0160, Affidavit #1 of Doris Lulua, at para 18. 162 Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 7. 163 Exhibit 0160, Affidavit #1 of Doris Lulua, at para 18. Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 106. 164 Exhibit 0160, Affidavit #1 of Doris Lulua, at para 19. 165 Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 106. 166 Exhibit 0160, Affidavit #1 of Doris Lulua, at para 18. Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 106. 167 Exhibit 0160, Affidavit #1 of Doris Lulua, at para 23. Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 7. Eliza William indicates that Emily was her sister, and Eliza’s parents were Jack and Jeannie, see Exhibit 0105, Affidavit #1 of Eliza William, at para. 6 and 7. Transcript, March 2, 2004, Minnie Charleyboy Direct-Exam, at 00013, 46 to 00014, 7. 168 Exhibit 0114, Affidavit #3 of Annie Williams, at para. 3. Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 5. 169 Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 5. 170 Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 5. 171 Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 5. 172 Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 6.

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• Minnie Charleyboy is the daughter of Emily Ekks.173

GENEALOGY OF GILBERT SOLOMON

20. The genealogy of Gilbert Solomon, a current member of the Xeni Gwet’in First Nation, can

be traced back to Nemiah and Akous. The entire genealogy can be traced using documentary

evidence, which is confirmed in large part by oral history evidence.

21. Genealogy of Gilbert Solomon from Documents and Expert Opinion: John Dewhirst has

traced the Genealogy of Gilbert Solomon, a current member of the Xeni Gwet’in back to Nemiah

and Akous in his expert witness evidence.174

• According to census documents, Nemiah was born in 1841 in Nemiah Valley.175 Old Nemiah died on the Stone Reserve in the Chilcotin, on July 11, 1927.176

• According to baptismal records, Nemaia and Akeus had a son named Marcellin who was

baptised in 1881 at the age of one and a half.177 Therefore Marcellin’s date of birth is approximately 1879.178

• According to baptismal records for Maria Marcellin (Solomon), her parents were listed as

‘Marcellin Lucie’ and ‘Lucie Marcellin’.179 According to Mr. Dewhirst, priests who did not have full information for the mother’s family they would list both the mother and father’s name.180 Mr. Dewhirst concluded that Maria’s father was Marcellin and her mother was Lucie.181 1911 census records show a family which consisted of Nemiah Paddy, Nemiah Lucy (wife), and Nemiah Maria (daughter).182 Mr. Dewhirst’s opinion

173 Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 5 and 10; Transcript, April 13, 2004, Theophile Ubill Lulua Cross-Exam, at 00033, 18-20. 174 See Exhibit 0441, Expert Report of John Dewhirst, 2004, at Vol. 1 at Chart 1 (Descendants of Nunsulian and Nemiah (Lulua Family)). 175 Exhibit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo, p. 3 of transcript. 176 Exhibit 0156-1927/07/31.001, British Columbia Vital Statistics Agency. 1927. Death Certificate of Old Nemiah. B.C. Archives, Death Registrations, GR 2951. Microfilm B13361, Reg. #1927-09-011026. 177 Exhibit 0156-1882/00/00.001, Baptismal record of “Marcellin”. Oblates of Mary Immaculate (OMI) Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 1, 95 R 1, 1866-1882 at record 2032. 178 Transcript, October 13, 2005, John Dewhirst Direct-Exam, at 00024, 40. 179 Exhibit 0156-1911/00/00.001, Baptismal Record of “Maria Marcellin”. Oblates of Mary Immaculate (OMI). Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 3, 95 R 3, 1902-1911, at p. 230, record 4876. 180 Transcript, October 13, 2005, John Dewhirst Direct-Exam, at 00023, 21-27. 181 Transcript, October 13, 2005, John Dewhirst Direct-Exam, at 00023, 21-27. 182 Exhibit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo, at p. 1 of transcript.

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was that ‘Paddy’ was likely a nickname for Marcellin.183 Nemiah Paddy (Marcellin’s) birthplace is listed on the census as Nemiah Valley.184

• Maria was married to Timothy [Solomon] in November 16, 1929.185 Census documents

list Timothy and Maria Solomon as well a son named Henry.186 Henry was born in October 1929.187

• Henry Solomon is the father of Gilbert Solomon.188 Henry Solomon was a member of

the Xeni Gwet’in First Nation, and was born October 21, 1929.189 • Gilbert Solomon is a current member of the Xeni Gwet’in First Nation.190 Gilbert

Solomon was born on March 9, 1957.191

22. Genealogy of Gilbert Solomon through Oral History

• Mariah Solomon was the mother of Henry Solomon.192 Mariah Solomon died in around 1974 or 1975.193 Timothy Solomon was called Damodee (phonetic).194 Damodee was Tsilhqot’in.195 Timothy Solomon raised Henry Solomon.196

• Henry Solomon was Tsilhqot’in,197 and a member of the Xeni Gwet’in Band.198 Henry

Solomon is the father of Gilbert Solomon.199 Mabel Solomon was the mother of Gilbert Solomon.200

183 Transcript, October 13, 2005, John Dewhirst Direct-Exam, at 00025, 3-4 and p. 00026, 25-32. For a detailed discussion of the evidence that Marcellin and Paddy are the same man, see Transcript, October 14, 2005, John Dewhirst Direct-Exam, 00002, 43- 00008, 25. 184 Exhibit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo, at p. 1 of transcript. 185 Exhibit 0156-1911/00/00.001, Baptismal Record of “Maria Marcellin”. Oblates of Mary Immaculate (OMI). Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 3, 95 R 3, 1902-1911 at p. 230, record 4876. 186 Exhibit 0156-1930/00/00.002, Department of Indian Affairs, 1930, Canim Lake- Toosey (Riske Creek) part 5 of 7, Census Book of Indians, National Archives of Canada, RG 10, Volume 12317, at page preceding p. 2381. 187 Exhibit 0444, Department of Indian and Northern Development (DIAND). 2002. Xeni Gwet’in First Nations Government Band Membership List, Family Grouping Listing, printed September 30, 2002 188 Transcript, October 13, 2005, John Dewhirst Direct-Exam, p. 00021, ll. 33-34. 189 Exhibit 0444, Department of Indian and Northern Development (DIAND). 2002. Xeni Gwet’in First Nations Government Band Membership List, Family Grouping Listing, printed September 30, 2002. 190 Exhibit 0444, Department of Indian and Northern Development (DIAND). 2002. Xeni Gwet’in First Nations Government Band Membership List, Family Grouping Listing, printed September 30, 2002. 191 Exhibit 0444 (Department of Indian and Northern Development (DIAND). 2002. Xeni Gwet’in First Nations Government Band Membership List, Family Grouping Listing, printed September 30, 2002) 192 Exhibit 0366, Affidavit #1 of Gilbert Solomon, at para 8. 193 Exhibit 0366, Affidavit #1 of Gilbert Solomon, at para 8. 194 Exhibit 0366, Affidavit #1 of Gilbert Solomon, at para 8. 195 Exhibit 0366, Affidavit #1 of Gilbert Solomon, at para 8. 196 Exhibit 0366, Affidavit #1 of Gilbert Solomon, at para 8. 197 Exhibit 0366, Affidavit #1 of Gilbert Solomon, at para 7. 198 Transcript, July 10 2002, Deposition of Martin Quilt Direct-Exam, at 142, 15-20. 199 Exhibit 0366, Affidavit #1 of Gilbert Solomon, at para 7. 200 Exhibit 0366, Affidavit #1 of Gilbert Solomon, at para 10.

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GENEALOGY OF MABEL WILLIAM

23. The genealogy of Mabel William, a current member of the Xeni Gwet’in First Nation, can be

traced back to Chief Keogh (Qi ?Ungh) and Caroline (Gadulin) through both documentary

evidence and oral history evidence. Keogh was chief of the ‘Stone Indians”.201 Keogh’s

territory as described by Marcus Smith included the North-Western part of the Claim Area,

between Tatla Lake and the outlet of Chilko Lake.202 According to John Dewhirst, ‘Kreor’ and

‘Keogh’ are different ways of recording the same name.203

24. Genealogy of Mabel William from Documents and Expert Opinion: John Dewhirst has traced

the genealogy of Mabel William, a current member of the Xeni Gwet’in back to Marguerite.204

• Marguerite was baptised on April 20, 1881 and is listed in the baptismal register as mother of Chief Keoh.205 Based on the birth-year of their eldest child, John Dewhirst has estimated Kreor and Caroline’s dates of birth as no later than ca. 1844.206 Therefore Marguerite’s birth date is likely in the 1820’s.

• Kreor and Caroline had daughters named Melanie and Amanda who were baptised on

May 19, 1870.207 Baptismal records for Melanie and Amanda, contain the margin notes that Melanie became Mrs. Charleyboy and Amanda became Mrs. Toby208. According to John Dewhirst, Kreor and Caroline were very likely the parents of Annie based on the baptismal records for her sisters Amanda and Melanie.209

201 Exhibit 0156-1872/06/14.001, Marcus Smith Journey to Bute Inlet from Appendix E of CPR Report at at 118. 202 Exhibit 0442, John Dewhirst Expert Report, April 2005, at Vol. 1, p. 9. 203 Exhibit 0442, John Dewhirst Expert Report, April 2005, at Vol. 1, p. 8. 204 see Exhibit 0442, John Dewhirst Expert Report, 2005, at Vol. 1,Tab A at Chart 1 (Ancestors and Descendants of Mabel William) 205 Exhibit 0156-1882/00/00.001, Baptismal record of “Marguerite, mère du Chef Kéoh”. Oblates of Mary Immaculate (OMI). Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 1, 95 R 1, 1866-1882 at record 2099. 206 Exhibit 0442, John Dewhirst Expert Report, 2005, at Vol. 1, p. 8. 207 Exhibit 0156-1882/00/00.001, Baptismal records of “Mélanie” and “Amanda”. Oblates of Mary Immaculate (OMI). 1866-1882. Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 1, 95 R 1, 1866-1882. 208 Exhibit 0156-1882/00/00.001, Baptismal records of “Mélanie” and “Amanda”. Oblates of Mary Immaculate (OMI). 1866-1882. Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 1, 95 R 1, 1866-1882, at records 91 and 92. 209 Exhibit 0442, Expert Report of John Dewhirst, Volume 1, Tab A at p. 8-10.

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• Altsing (Annie) and Fancy William had a son named Jimmy William, born June 3, 1897.210 Fancy William was listed as a trapper.211 Jimmy William died December 23, 1979 at the age of 82.212 On his death certificate, his wife is listed as Charley, Nelly.213

• Jimmy (Benzing) William and Nelly J.B. had a daughter Mabel, who was baptised in

1918.214 Mabel William is a current member of the Xeni Gwet’in First Nation, and was born April 27, 1918.215

25. Genealogy of Mabel William from Oral History: Oral History evidence confirms that Mabel

William is descended from Chief Keogh (Qi ?Ungh) and Caroline (Gadulin).

• Gadulin was the mother of Hanlhdzany (Annie).216 Gadulin was a Tsilhqot’in from Tsi Del Del.217 Gadulin died in June, from flu brought round by a priest.218 Gadulin was buried at Redstone.219

• Qi ?Ungh was a chief.220 Qi ?Ungh was Tsilhqot’in.221 Qi ?Ungh is buried at Alexis

Creek, in the middle of Telford’s field.222 Qi ?Ungh was the father of Kanlh223 and Amanda.224

• Hanlhdzany’s other name was Annie.225 Hanlhdzany was Tsi Del Del Tsilhqot’in, and

only spoke Tsilhqot’in.226 Hanlhdzany is the mother of Jimmy William.227 Hanlhdzany had several sisters.

210 Exhibit 0156-1897/06/03.001, BCVSA. 1897. Birth Certificate of Jimmy William. B.C. Archives, Death Registrations, FR 2951. Microfilm B13600, Reg. #1979-09-020275 211 Exhibit 0156-1897/06/03.001, BCVSA. 1897. Birth Certificate of Jimmy William. B.C. Archives, Death Registrations, FR 2951. Microfilm B13600, Reg. #1979-09-020275) 212 Exhibit 0156-1979/02/15.001, BCVSA. 1979. Death Certificate of Jimmy William. B.C. Archives, Death Registrations, GR 2951. Microfilm B13600, Reg. #1979-09-020275). 213 Exhibit 0156-1979/02/15.001, BCVSA. 1979. Death Certificate of Jimmy William. B.C. Archives, Death Registrations, GR 2951. Microfilm B13600, Reg. #1979-09-020275). 214 Exhibit 0156-1922/00/00.001, Baptismal record of “Mable”. Oblates of Mary Immaculate (OMI). 1916-1922. Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 5, 95 R 5, 1916-1922 at p. 83, 19 June, 1918; and Exhibit 0156-19297/00/00.001, Department of Indian Affairs. Census 1927-1929. Anaham-Toosey, part 3 of 7 at page following 104. 215 Exhibit 0444, Department of Indian and Northern Development (DIAND). 2002. Xeni Gwet’in First Nations Government Band Membership List, Family Grouping Listing, printed September 30, 2002. 216 Exhibit 0173, Affidavit #1 of Mabel William, at para 12; Exhibit 0431, Affidavit #1 of Elizabeth Jeff at para 10. 217 Exhibit 0173, Affidavit #1 of Mabel William, at para 12 218 Exhibit 0173, Affidavit #1 of Mabel William, at para 12 (this would be in the early 1920’s) 219 Transcript, May 10, 2005, Patricia Guichon Direct-Exam, at 00005, 47. 220 Transcript, May 12, 2005, Patricia Guichon Cross-Exam, at 00029, 39-47. 221 Transcript, May 10, 2005, Patricia Guichon Direct-Exam, at 00005, 18-20. 222 Transcript, May 10, 2005, Patricia Guichon Direct-Exam, at 00006, 5-8. 223 Transcript, May 09, 2005, Patricia Guichon Direct-Exam, at 00013, 46. 224 Transcript, May 12, 2005, Patricia Guichon Cross-Exam, at 00029, 39-47. 225 Exhibit 0173, Affidavit #1 of Mabel William, at para 9; See also Transcript, May 10, 2005, Patricia Guichon Direct-Exam, at 00008, 4-6. 226 Exhibit 0173, Affidavit #1 of Mabel William, at para 9; Exhibit 0431, Affidavit #1 of Elizabeth Jeff at para. 10, confirms that Hanlhdzany was Tsilhqot’in.

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• Hanlhdzany had a sister named Kanlh228. Kanlh was Tsilhqot’in.229 Gadulin was the mother of Kanlh.230 Kanlh’s other name was Josephine.231

• Hanlhdzany had a sister named Qanlht’os.232 Quanlht’os’s other name was Amanda.233

Quanlht’os was Tsilhqot’in.234 Amanda’s husband was Captain Toby.235 • Hanlhdzany had a sister named Dzunh.236 Dzunh’s English name was Melanie.237

Dzunh was Tsilhqot’in.238 Dzunh married Chief William Charleyboy.239 • Hanlhdzany had a sister named ?Andzil.240 ?Andzil was Tsilhqot’in.241 • Kanlh had a sister named ?Elusk’al, whose English name was ?Agad and who had a

different father.242 ?Elusk’al lived near K’I Del Del (Redbush) at Yeqox Gwatish.243 • Hanlhdzany’s husband was Bendzi.244 Bendzi was Tsi Del Del Tsilhqot’in.245 Bendzi’s

parents were Tsilhqot’in.246 Bendzi’s other name was William.247 Bendzi was the father of Jimmy William.248

227 Exhibit 0173, Affidavit #1 of Mabel William, at para 7 and 9. 228 Transcript, May 10, 2005, Patricia Guichon Direct-Exam, at 00006, 27-32. Exhibit 0173, Affidavit #1 of Mabel William, at para 10. 229 Exhibit 0431, Affidavit #1 of Elizabeth Jeff, at para. 10. See also Transcript, May 09, 2005, Patricia Guichon Direct-Exam, at 00022, 35. 230 Transcript, May 9, 2005, Patricia Guichon Direct-Exam, 00023, 27. 231 Transcript, May 9, 2005, Patricia Guichon Direct-Exam, 00010, 18-19. Exhibit 0173, Affidavit #1 of Mabel William, at para 10. Exhibit 0106, Affidavit #2 of Eliza William, para. 16. 232 Transcript, May 10, 2005, Patricia Guichon Direct-Exam, 00006, 27-32. Exhibit 0173, Affidavit #1 of Mabel William, at para 10 233 Transcript, May 12, 2005, Patricia Guichon Cross-Exam, at 00029, ll. 24-26. Exhibit 0173, Affidavit #1 of Mabel William, at para 10. 234 Exhibit 0431, Affidavit #1 of Elizabeth Jeff, at para. 10. 235 Transcript, May 12, 2005, Patricia Guichon Cross-Exam, at 00029 at 40-44. 236 Exhibit 0431, Affidavit #1 of Elizabeth Jeff, at para10. Transcript, May 10, 2005, Patricia Guichon Direct-Exam, at 00006, 27-32. Exhibit 0173, Affidavit #1 of Mabel William, at para 10. 237 Exhibit 0173, Affidavit #1 of Mabel William, at para 10. Transcript, May 12, 2005, Patricia Guichon Cross-Exam, at 000029, 13-20 (name spelled Elannie). 238 Exhibit 0431, Affidavit #1 of Elizabeth Jeff, at para. 10. 239 Exhibit 0431, Affidavit #1 of Elizabeth Jeff, at para. 10. 240 Exhibit 0173, Affidavit #1 of Mabel William, at para 10. 241 Exhibit 0431, Affidavit #1 of Elizabeth Jeff at para. 10. 242 Transcript, May 10, 2005, Patricia Guichon Direct-Exam at 00006, 27-36. 243 Transcript, May 10, 2005, Patricia Guichon Direct-Exam, at 00007, 2-3. 244 Exhibit 0173, Affidavit #1 of Mabel William, at para 11. 245 Exhibit 0173, Affidavit #1 of Mabel William, at para 9. In Exhibit 0157, Affidavit #1 of Francis Sammy William, para 115, Mabel’s grandfather is called Will-yum (phonetic) and he is Tsi Del Del. 246 Exhibit 0173, Affidavit #1 of Mabel William, at para 13. 247 Exhibit 0173, Affidavit #1 of Mabel William, at para 9. 248 Exhibit 0173, Affidavit #1 of Mabel William, at para 9. In Exhibit 0157, Affidavit #1 of Francis Sammy William, para 115, Mabel’s grandfather is called Will-yum (phonetic) and he is Tsi Del Del.

20

• Jimmy William was Tsi Del Del Tsilhqot’in.249 Jimmy William was the father of Mabel William.250 Nelly was the mother of Mabel William.251 Nelly was Tsilhqot’in.252

• Mabel William was born at Bendzi Biny (Putzi Lake) in the springtime.253 Her Indian

status card, attached to her affidavit lists her birth-date as April 27, 1918.254

GENEALOGY OF PATRICIA GUICHON

26. Patricia Guichon’s genealogy can be traced to Old Guichon using both oral history evidence

and documentary evidence. According to John Dewhirst, “Archival documents and oral history

demonstrate that Guichon lived in and used the Claim Area.”255

27. Genealogy of Patricia Guichon from Documents and Expert Opinion: John Dewhirst has

traced the genealogy of Patricia Guichon to Guichon and Rosa.256

• “Gui-charn” is listed on the 1901 census at 70+ years of age.257 His date of birth as recorded by the census was therefore ca 1831.258 Old Guichon, Patricia Guichon’s grandfather, was involved in the Tsilhqot’in wars with the white people.259 Old Guichon’s father was also involved in the Tsilhqot’in wars with the white people.260

• “Old Guichon” and Rosa gave birth to Teddy Guichon on January 25, 1889.261 “Ernest

Tady Guichon” was baptised in 1909, at 20 years of age, to Old Guichon of Tatla Lake,

249 Exhibit 0173, Affidavit #1 of Mabel William, at para 7. 250 Exhibit 0173, Affidavit #1 of Mabel William, at para 7. 251 Exhibit 0173, Affidavit #1 of Mabel William, at para 7. 252 Exhibit 0173, Affidavit #1 of Mabel William, at para 7. 253 Exhibit 0173, Affidavit #1 of Mabel William, at para 4. 254 Exhibit 0173, Affidavit #1 of Mabel William, at para 5, see also Exhibit ‘A’ of Affidavit. 255 Exhibit 0443, Expert Report of John Dewhirst, August 2005, at p. 87, at para. 355. 256 Exhibit 0442, John Dewhirst Expert Report, 2005, at Vol. 1, Tab B, Chart 2 (Descendants of Guichon (Old Guichon) 257 Exhibit 0156-1901/00/00.001, Dominion of Canada. 1901. Canada Census of 1901. British Columbia. District 5- Yale and Subdistrict No. A- Cariboo. B.C. Archives, GR-2927. Microfilm B11276, at page 11, line 47. 258 Exhibit 0442, Expert Report of John Dewhirst, April 2005, at Tab B, p. 3. 259 Transcript, May 9, 2005, Patricia Guichon Cross-Exam, at 00030, 43 to 00031, 11; Exhibit 0432, Affidavit #2 of Elizabeth Jeff, November 13, 2004, at para. 56. See also Exhibit 0442, Expert Report of John Dewhirst, April 2005, Volume 1, at Tab B, p. 10-11. 260 Transcript, May 9, 2005, Patricia Guichon Cross-Exam, at 00032 1-16. 261 Exhibit 0156-1889/01/25.001, British Columbia Vital Statistics Agency. 1897. Birth Certificate of Teddy Guichon. Created on January 27, 1950. B.C. Archives, Birth Registrations, GR 2965. Microfilm Film B13801, Reg. #1889-09-996553

21

and Rosa of Tatla lake.262 In census documents, Teddy Guichon, born in 1899, is listed with his wife Amelia, and daughter Patricia who born January 5, 1927.263

• Patricia Guichon was born January 5, 1927 and is a current member of the Alexis Creek

First Nation.264

28. Genealogy of Patricia Guichon from Oral History: • Old Guichon’s mother was ‘Gna’zan’ or ‘Gazan’.265 • Guichon, Old Guichon or Gwegen were the names of Teddy Guichon’s father.266 Old

Guichon was Dzelh Yi Gwet’in.267 • Teddy Guichon’s mother was Sidoren. 268 Sidoren was called Tsitex Nilin in

Tsilhqot’in.269 Sidoren was Tsilhqot’in from Bluff Lake.270 Sidoren is buried at Naslhiny Tsi Xanqish, place number 200.271

• Patricia Guichon’s father was baptized Ernest, but was called by his other name Teddy or

Tadi.272 Patricia’s father was also known as Gwetsin.273 Teddy Guichon was Tsilhqot’in.274 Teddy Guichon was raised around Tatla Lake.275 Patricia Guichon’s mother was Milya.276 Milya’s English name was Amelia Billyboy.277 Milya was Tsilhqot’in.278

• Patricia Guichon was born January 5th.279

262 Exhibit 0156-1911/00/00.003, Oblates of Mary Immaculate (OMI) 1902-1911. Baptismal record of Ernest Tady GUICHON. Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 3, 95 R 3, 1902-1911, at p. 209, record 4791. 263 Exhibit 0156-1929/00/00.001, Department of Indian Affairs. 1929. File Census 1927-1929: Canoe Creek- Anaham, part 2 of 7; at page following p. 88 (or 2158); Exhibit 0156-1930/00/00.001 (Department of Indian Affairs (DIA). 1930. File Census 1930: Alexandria/Anaheim Part 4 of 7, at page following 2188) 264 Exhibit 0444, Department of Indian and Northern Development (DIAND). 2002. Xeni Gwet’in First Nations Government Band Membership List, Family Grouping Listing, printed September 30, 2002) 265 Exhibit 0431, Affidavit #1 of Elizabeth Jeff, at para 9 (name spelled ‘Gna’zan’). 266 Transcript, May 9, 2005, Patricia Guichon Cross-Exam, at 00026, 1-14. 267 Transcript, May 12, 2005, Patricia Guichon Cross-Exam, at 00024, 35-40. 268 Transcript, May 9, 2005, Patricia Guichon Cross-Exam, at 00026, 1-14. 269 Transcript, May 10, 2005, Patricia Guichon Direct-Exam, at 00022, 21-33. 270 Transcript, May 10, 2005, Patricia Guichon Direct-Exam, at 00022, 35-42. 271 Transcript, May 10, 2005, Patricia Guichon Direct-Exam, at 00023, 8-17. 272 Transcript, May 9, 2005, Patricia Guichon Direct-Exam, at 00017, 12-14. 273 Transcript, May 9, 2005, Patricia Guichon Direct-Exam, at 00017, 18. Exhibit 0174, Affidavit #2 of Mabel William, at para 56 indicates that Teddy Guichon was called ‘Gwetsen’. 274 Transcript, May 9, 2005, Patricia Guichon Direct-Exam, at 00017, 32 and 33. 275 Transcript, October 4, 2004, Mabel William Cross-Exam, at 00034, 30. 276 Transcript, May 9, 2005, Patricia Guichon Direct-Exam, at 00019, 18. 277 Transcript, May 9, 2005, Patricia Guichon Cross-Exam, at 00027, 2-4. 278 Transcript, May 9, 2005, Patricia Guichon Direct-Exam, at 00020, 10. 279 Transcript, May 9, 2005, Patricia Guichon Direct-Exam, at 00005, l. 9.

22

GENEALOGY OF AMELIA GEORGE

29. The genealogy of Amelia George, a current member of the Xeni Gwet’in First Nation, can be

traced back to Chief ?Achig and Tsolouout. ?Achig was Tsilhqot’in280 from Xeni.281 ?Achig

was the Chief of the Xeni Gwet’in.282 On the 1901 census, “Ah-cheek” is listed as 38 years

old,283 placing his date of birth c. 1863.284 ?Achig died in Xeni around the time of the

sickness.285 John Dewhirst has provided his expert opinion that “?Achig and his wife lived

used the Claim Area throughout their lives”,

and

so

earlier.288

286 and that the parents of Chief ?Achig were al

Xeni Gwet’in and must have lived in and used the Claim Area, including the Nemiah Valley,

because that is where ?Achig was raised.287 Given that ?Achig was born ca. 1863, his parents

were likely born no later than ca. 1843, and possibly

30. This genealogy from ?Achig to Amelia George can be traced through both documentary

evidence and oral history evidence.

31. Genealogy of Amelia George from Documents and Expert Opinion: In his expert evidence,

John Dewhirst traced Amelia George’s genealogy to Chief ?Achig and Tsolouout.289

• On the 1901 census, “Ah-cheek” is listed as 38 years old.290 This would make his date of birth c. 1863.291 “Atchigk” and “Tsolousout”, had a son named Captain George who was baptised in 1906 at the age of 23.292

280 Exhibit 0105, Affidavit #1 of Eliza William, at para 17. Transcript, April 6, 2005, Gilbert Solomon Direct-Exam, at 00006, 9-10. 281 Exhibit 0174, Affidavit #2 of Mabel William, at para 65. Exhibit 0105, Affidavit #1 of Eliza William, at para 17. Transcript, April 6, 2005, Gilbert Solomon Direct-Exam, at 00006, 9-12. 282 Transcript, April 6, 2005, Gilbert Solomon Direct-Exam, at 00006, 2-5; Exhibit 0174, Affidavit #2 of Mabel William, at para 52. 283 Exhibit 0156-1901/00/00.001, Dominion of Canada. 1901. Canada Census of 1901. British Columbia. District 5- Yale and Subdistrict No. A- Cariboo. B.C. Archives, GR-2927. Microfilm B11276., at page 11, line 4). 284 Transcript, October 14, 2005, John Dewhirst Direct-Exam, at 00019, 27. 285 Exhibit 0174, Affidavit #2 of Mabel William, at para 65. 286 Exhibit 0443, Expert Report of John Dewhirst, August 2005, at p. 84, para. 344. 287 Exhibit 0443, Expert Report of John Dewhirst, August 2005, at p. 84, para. 345. 288 Exhibit 0443, Expert Report of John Dewhirst, August 2005, at p. 84, para. 345. 289 See Exhibit 0441, Expert Report of John Dewhirst, 2004, at Vol. 1 at Chart 6 (Descendants of Chief ?Achig (George Family)) 290 Exhibit 0156-1901/00/00.001, Dominion of Canada. 1901. Canada Census of 1901. British Columbia. District 5- Yale and Subdistrict No. A- Cariboo. B.C. Archives, GR-2927. Microfilm B11276., at page 11, line 4). 291 Transcript, October 14, 2005, John Dewhirst Direct-Exam, at 00019, 27.

23

• Captain George was born in 1883 and died February 7, 1975.293 According to his death

record, Captain George was usually resident in Nemiah Valley, and was buried in the Nemiah Valley Indian Cemetery.294

• “Charley George” born in 1883, had a son Andy George who was born in August

1906.295 Baptismal records for “Andre”, the French equivalent of Andy,296 note that both parents were from Nemiah Valley, Chilcoten.297

• “Andre” George was married at Redstone to Lizzie in 1926.298 Andy George, his wife

Lizzie and daughter Amelia are listed together on both the 1940 Canada census, and the 1930 Indian Affairs census.299 A notation on the second side of the census book, notes that Captain George is the father of Andy George.300

• Amelia Hunlin, born November 10, 1925 was a member of the Xeni Gwet’in First Nation

in 2002.301

32. Genealogy of Amelia George from Oral History/Tradition Evidence: Oral History evidence

confirms that Amelia George is descended from Chief ?Achig.

• ?Achig was raised around Xeni.302 ?Achig was Tsilhqot’in.303 ?Achig died in Xeni around the time of the sickness.304 ?Achig was a chief.305 ?Achig was the Xeni Chief.306 ?Achig was the father of ?Eskish (Captain George).307

292 Exhibit 0156-1911/00/00/003, Baptismal record of “Captain Georges”. Oblates of Mary Immaculate (OMI) 1902-1911. Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 3, 95 R #, 1902-1911, at p. 133, record 4487. 293 Exhibit 0156-1975/02/07.001, British Columbia Vital Statistics Agency (BCVSA). 1965. Death Certificate of Captain George. B.C. Archives, Death Registrations, GR 2951, Microfilm B13340, Reg. # 1975-09-00339. 294 Exhibit 0156-1975/02/07.001, British Columbia Vital Statistics Agency (BCVSA). 1965. Death Certificate of Captain George. B.C. Archives, Death Registrations, GR 2951, Microfilm B13340, Reg. # 1975-09-00339. 295 Exhibit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo, at p. 2 of transcript; 296 Transcript, October 14, 2005, John Dewhirst Direct-Exam, p. 00014, ll. 36-37. 297 Exhibit 0156-1911/00/00.003, Baptismal Record of “Andre George”. Oblates of Mary Immaculate (OMI) Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 3, 95 R 3, 1902-1911, at p. 156, record 4577. 298 Exhibit 0156-1911/00/00.003, Baptismal Record of “Andre George”. Oblates of Mary Immaculate (OMI) Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 3, 95 R 3, 1902-1911, at p. 156, record 4577. 299 Exhibit 0156-1940/00/00.002, Department of Indian Affairs (DIA). 1940. File Census 1940: Canim Lake-Anaham, part 3 of 3. Census Book of Indians. National Archives of Canada, Ottawa, RG 10, Volume 12317 at page preceding p. 2645. 300 Exhibit 0156-1930/00/00.002, Department of Indian Affairs (DIA). 1930. File Census 1930: Canim Lake-Tootsey (Riske Creek), part 5 of 7. Census Book of Indians. National Archives of Canada, Ottawa, RG 10, Vol. 12317, p. 235 and preceding. 301 Exhibit 0444, Department of Indian and Northern Development (DIAND). 2002. Xeni Gwet’in First Nations Government Band Membership List, Family Grouping Listing, printed September 30, 2002) 302 Exhibit 0174, Affidavit #2 of Mabel William, at para 65. Exhibit 0105, Affidavit #1 of Eliza William, at para 17. Transcript, April 6, 2005, Gilbert Solomon Direct-Exam, at 00006, 9-12.

24

• Captain George’s other name was ?Eskish.308 ?Eskish (Captain George) was

Tsilhqot’in.309 ?Eskish was Xeni Gwet’in.310 Captain George had a house and meadow at Captain Georgetown, which is named after him.311 Captain George died when he was 92 years old, and he is buried by a gravesite in Naghataneqed, called Chel Kdsd?f`m.312 Captain George is the father of Andy George.313

• Captain George’s wife was Marie Madeline.314 Madeline was Tsilhqot’in.315 Captain

George’s wife was also called Madeline George316 Marie Madeline is buried at Xex Ti.317 Marie Madeline is the mother of Andy George.318

• Andy George was Tsilhqot’in from Nemiah.319 Andy’s Tsilhqot’in name was Tselxex.320

Andy George is buried at Xexti.321 Andy George was the father of Amelia Hunlin (nee George).322

303 Exhibit 0105, Affidavit #1 of Eliza William, at para 17. Transcript, April 6, 2005, Gilbert Solomon Direct-Exam, at 00006, 9-10. 304 Exhibit 0174, Affidavit #2 of Mabel William, at para 65. 305 Exhibit 0174, Affidavit #2 of Mabel William, at para 52. Transcript, April 6, 2005, Gilbert Solomon Direct-Exam, at 00006, 2-5. 306 Transcript, April 6, 2005, Gilbert Solomon Direct-Exam, at 00006, 2-5. 307 Exhibit 0174, Affidavit #2 of Mabel William, at para 65. Exhibit 0105, Affidavit #1 of Eliza William, at para 17. Transcript, March 2, 2004, Minnie Charleyboy Direct-Exam, at 00011, 2-9. 308 Exhibit 0174, Affidavit #2 of Mabel William, at para 65. Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, at 00014, l. 14. 309 Exhibit 0174, Affidavit #2 of Mabel William, at para 65. Exhibit 0108, Affidavit of Amelia Hunlin, at para 7. Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 20. Transcript, April 6, 2005, Gilbert Solomon Direct-Exam, at 00006, 20-21. 310 Exhibit 0174, Affidavit #2 of Mabel William, at para 65. Transcript, March 2, 2004, Minnie Charleyboy Direct-Exam, at 00011, 2-9. 311 Exhibit 0108, Affidavit #1 of Amelia Hunlin, at para 7. 312 Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 20. 313 Exhibit 0105, Affidavit #1 of Eliza William, at para 13. Exhibit 0108, Affidavit #1 of Amelia Hunlin at para. 7 and 8. Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, p. 00014, l. 46. Transcript, March 2, 2004, Minnie Charleyboy Direct-Exam, at 00010, at 41-46. 314 Exhibit 0105, Affidavit #1 of Eliza William, at para 12. Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 00021, 22-47 (spelled Mali Medlin). 315 Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 23. 316 Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 23. 317 Exhibit 0105, Affidavit #1 of Eliza William, at para 12. 318 Exhibit 0105, Affidavit #1 of Eliza William, at para 13. Exhibit 0108, Affidavit #1 of Amelia Hunlin at para. 7 and 8 (Andy George’s mother’s name is spelled Madie). Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 00021, 28-00022, 5 (Andy George’s mother’s name is spelled Madi Medlin). 319 Exhibit 0108, Affidavit #1 of Amelia Hunlin, at para 5. Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, p. 00013, l. 43. 320 Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, at 00014, 4-6. 321 Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, at 00014, 1-3. 322 Exhibit 0108, Affidavit #1 of Amelia Hunlin, at para 5. Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, at 00012, 31.

25

• Andy George married Lizzie.323 Lizzie George was Tsilhqot’in from Eagle Lake.324 Lizzie George was the daughter of Hadedi (Jack Lulua).325 Lizzie George was the mother of Amelia Hunlin (nee George).326

• Amelia Hunlin was 78 years old in June, 2003.327 Her year of birth is therefore 1925.

Amelia married Ubill Hunlin.328 Amelia Hunlin is Tsilhqot’in and a member of the Xeni Gwet’in Indian Band.329 Amelia George is buried at Xexti, in Xeni.330 Amelia had children named Tory, Dennis, Harvey, Leona, Mona and Tillion.331

GENEALOGY OF CECELIA QUILT

33. The genealogy of the Quilt family can be traced independently using both documentary and

oral history evidence from Cecelia Quilt to Quill (?Ul Quill) and Qumtnan.

34. Genealogy of Cecelia Quilt from Documents and Expert Opinion: John Dewhirst has traced

the genealogy of Cecelia Quilt back to Quill and Qumtnan.332

• 1891 census documents list a “Quill”, age 45, which would place his date of birth at c. 1846.333 Qumtnan, age 35 is also listed on the 1891 census under ‘Quill”.334 The relationship between ‘Kiwal’ and ‘Kwutnan” is confirmed by the baptismal records for Louis Quilt, a brother of Vital.335

323 Exhibit 0105, Affidavit #1 of Eliza William, at para 13. Lizzie is the sister of Eliza Lulua, and daughter of Jeannie Nemiah and Jack Lulua. Transcript, May 25, 2005, Francis Sammy William Direct-Exam, at 00010, 42-47. 324 Exhibit 0108, Affidavit #1 of Amelia Hunlin, at para 6. Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, p. 00013, l. 41. 325 Exhibit 0108, Affidavit #1 of Amelia Hunlin, at para 9. 326 Exhibit 0108, Affidavit #1 of Amelia Hunlin, at para 6. Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, p. 00013, ll. 32-36. 327 Exhibit 0108, Affidavit #1 of Amelia Hunlin, at para 3. 328 Exhibit 0108, Affidavit #1 of Amelia Hunlin, at para 4. Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, p. 00012, l. 31. 329 Exhibit 0108, Affidavit #1 of Amelia Hunlin, at para 3. 330 Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, at 00013, 26-28. 331 Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, at 00012, 44-00013, 15. 332 See Exhibit 0441, Expert Report of John Dewhirst, 2004, at Vol. 1 at Chart 2 (Descendants of Quill (Quilt Family). 333 Exhibit 0156-1891/00/00.001, Dominion of Canada. 1891. Canada Census of 1891. British Columbia, District No. 1, Cariboo, Subdistrict A, Alexandria No. 5. B.C. Archives, GR-0288. Microfilm B07040, p. 10, at 8. 334 Exhibit 0156-1891/00/00.001, Dominion of Canada. 1891. Canada Census of 1891. British Columbia, District No. 1, Cariboo, Subdistrict A, Alexandria No. 5. B.C. Archives, GR-0288. Microfilm B07040, p. 10, at 8. 335 Transcript, October 14, 2005, John Dewhirst Direct-Exam, 00042, 14-18. See also Exhibit 0156-1902/00/00.001, Baptismal record of “Louis Quilt” OMI. Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 2, 95 R 2, 1882-1902, at p. 56, record 2600.

26

• Baptismal records show “Kiwal” and “Kontnan” were the parents of “Vital Quilt”.336 “Petal Quilt” was born February 5, 1888, and died June 7, 1946.337

• The 1940 census, records “Petille Quilt” with a date of birth of February, 5, 1888, along

with his daughter Cecelia, born October 10, 1924.338 According to John Dewhirst, ‘Petal’ is the Tsilhqot'in way of saying ‘Vital’, a French name likely assigned by FPriests.

rench

339 • Cecilia Vital Quilt was born October 10, 1924 according to the 1940 census of the

Nemiah Valley Indian Band.340

35. Genealogy of Cecilia Quilt from Oral History/Tradition Evidence

• ?Ul Quill was Tsilhqot’in.341 ?Ul Quill had ?Atažl (Petal Quilt).342 • ?Atažl’s mother was Tsilhqot’in from Naghatalchož (Eagle Lake).343 • ?Atažl’s English name was Petal Quilt.344 ?Atažl is buried at Yunešit’in (Stone).345

?Atažl is the father of Cecelia Quilt.346 • Louisa Quilt’s nickname was Cowboy Foot, and her name before she was married was

Bobby.347 Louisa Quilt was Tsilhqot’in.348 Louisa Quilt was the mother of Cecelia Quilt.349

• Cecelia Quilt is Tsilhqot’in.350

336 Exhibit 0156-1902/00/00.001, Baptismal record of “Vital Quilt”. OMI. Untitled Baptismal Register. Roman Catholic Diocese of Kamloops Chancery, Vol. 2, 95 R 2, 1882-1902 at 67, record 2713. 337 Exhibit 0156-1946/08/21.001, BCVSA. 1946. Death Certificate of Petal Quilt. B.C. Archives, Death Registrations, GR 2951. Microfilm # B13376, Reg. # 1946-09-095267) 338 Exhibit 0156-1940/00/00.001, Department of Indian Affairs (DIA). 1940. Nemiah Valley- Williams Lake, part 7 of 7, Census Book of Indians, National Archives of Canada, Ottawa, RG 10, Volume 12317, at page following p. 2465. 339 Transcript, October 14, 2005, John Dewhirst Direct-Exam, 00037, 33-37. 340 Exhibit 0156-1940/00/00.001, Department of Indian Affairs (DIA). 1940. Nemiah Valley- Williams Lake, part 7 of 7, Census Book of Indians, National Archives of Canada, Ottawa, RG 10, Volume 12317, at page following p. 2465. 341 Exhibit 0203, Affidavit #1 of Julie Quilt, at para. 15. Exhibit 0439, Affidavit #1 of Cecelia Quilt, at para. 9. 342 Exhibit 0203, Affidavit #1 of Julie Quilt, at para. 15. 343 Exhibit 0439, Affidavit #1 of Cecelia Quilt, at para. 9. 344 Exhibit 0439, Affidavit #1 of Cecelia Quilt, at para. 7. 345 Exhibit 0439, Affidavit #1 of Cecelia Quilt, at para. 9. 346 Exhibit 0439, Affidavit #1 of Cecelia Quilt, at para. 7. 347 Exhibit 0439, Affidavit #1 of Cecelia Quilt, at para. 11. 348 Exhibit 0439, Affidavit #1 of Cecelia Quilt, at para. 11. 349 Exhibit 0439, Affidavit #1 of Cecelia Quilt, at para.11. 350 Exhibit 0439, Affidavit #1 of Cecelia Quilt, at para. 6.

27

GENEALOGY OF LULUA FAMILY

36. Doris Lulua’s genealogy can be traced to Jack Lulua and his parents Nentsel?eyen and

Annie. Nentsel?eyen was Tsilhqot’in351 and lived around the Chilko Lake Area, along the

Chilko River.352 Nentsel?eyen is buried near Henry’s crossing at the Chilko River junction.353

According to John Dewhirst, Nunsulian was probably born no later than ca. 1849.354

37. Annie was Tsilhqot’in.355 Annie lived around M`fg`s`kgbgn] Ahmx.356 Annie died when

she was very old in approximately 1939.357 Annie is buried at Tši Ch’ed Diž?an at Eagle

Lake.358 Annie’s mother was Tsilhqot’in from M`fg`s`kgbgn].359

38. Nentsel?eyen was the father of Jack Lulua.360 Annie was the mother of Jack Lulua.361 (Jack

Lulua) was Tsilhqot’in,362 and was a member of the Xeni Gwet’in band.363 Jack Lulua was

from around M`fg`s`kgbgn] Ahmx 364 and resided in the Nemiah Valley.365 Hadediny was

buried at S?h Ch’ed Ch]>`m at M`fg`s`kgbgn] Ahmx.366

351 Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, para. 9. 352 Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, para. 9. 353 Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, para. 9. 354 Exhibit 441, John Dewhirst Expert Report, September 2004, at Vol. 1, section 3.1. 355 Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, para. 8. 356 Exhibit 0160, Affidavit #1 of Doris Lulua, para. 25. 357 Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, para. 1 and 8 (Eliza indicates that she was 90 years old in 2003, and Annie died when she was 26, placing Annie’s death in approx. 1939). 358 Exhibit 0160, Affidavit #1 of Doris Lulua, para. 25. Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, para. 8. 359 Transcript, March 2, 2004, Minnie Charleyboy Direct-Exam, p. 00027, 29-35. 360 Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, para. 9; Transcript, March 2, 2004, Minnie Charleyboy Direct-Exam, p. 00022, 33-34. 361 Exhibit 0160, Affidavit #1 of Doris Lulua, para. 25; Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, para. 8. Transcript, March 2, 2004, Minnie Charleyboy Direct-Exam, at 00026, 23-26. 362 Exhibit 0160, Affidavit #1 of Doris Lulua, para. 18; Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, para. 6. 363 Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 7. Exhibit 0156-1949/05/16.001, BCVSA, Death Registrations, B.C. Archives, GR 2951, Registration of Death of an Indian Lulua, Jack, Death, B13376, 1949-09-095185 (PLT- 003976); Exhibit 0156-1940/00/00.001, Department of Indian Affairs. Census 1940: Nemiah Valley- Williams Lake, part 7 of 7. Census Book of Indians. National Archives of Canada, Ottawa, RG 10, V. 12317 (C-005379), p. 2453. 364 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 18. 365 Exhibit 0156-1949/05/16.001, BCVSA, Death Registrations, B.C. Archives, GR 2951, Registration of Death of an Indian Lulua, Jack, Death, B13376, 1949-09-095185 (PLT- 003976) 366 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 21; Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para. 6; Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para 106. Exhibit 0156-1949/05/16.001, BCVSA, Death Registrations, B.C. Archives, GR 2951, Registration of Death of an Indian Lulua, Jack, Death, B13376, 1949-09-095185 (PLT- 003976)

28

39. John Dewhirst’s expert opinion is that Nunsulian and his wife Annie traditionally used the

area known in English as the Big Eagle or Choelquoit Lake.367 Mr. Dewhirst also concluded that

this area was subsequently used by their son Jack Lulua, his brother Eagle Lake Johnny and their

descendants.368 Mr. Dewhirst also concluded that “Given the Tsilhqot’in practice of traditional

or customary family use areas… the parents of Nunsulian and Annie likely used the same areas

and were likely present in the area prior to 1849.”369

40. The genealogy of the Lulua family can be traced through oral history and is corroborated in

large part through the documentary records.

41. Genealogy of Lulua Family from Documentary Evidence

• Jack Lulua was a member of the Nemiah Valley Band.370 Jack was resident in Nemiah Valley.371 Jack Lulua was born in Nemiah Valley between 1867372 and 1870.373 Jack Lulua died in 1949 at age 79.374 Jack was buried at the Nemiah Valley Reserve.375 Jack Lulua married Jeannie. 376 Jack Lulua was the father of Eileen Ellen Lulua.377

367 Exhibit 0443, Expert Report of John Dewhirst at p. 70, at para. 284. 368 Exhibit 0443, Expert Report of John Dewhirst at p. 70, at para. 284. 369 Exhibit 0443, Expert Report of John Dewhirst, at p. 70, at para. 285. 370 Exhibit 0156-1949/05/16.001, BCVSA, Death Registrations, B.C. Archives, GR 2951, Registration of Death of an Indian Lulua, Jack, Death, B13376, 1949-09-095185 (PLT- 003976); Exhibit 0156-1940/00/00.001, Department of Indian Affairs. Census 1940: Nemiah Valley- Williams Lake, part 7 of 7. Census Book of Indians. National Archives of Canada, Ottawa, RG 10, V. 12317 (C-005379), p. 2453. 371 Exhibit 0156-1949/05/16.001, BCVSA, Death Registrations, B.C. Archives, GR 2951, Registration of Death of an Indian Lulua, Jack, Death, B13376, 1949-09-095185 (PLT- 003976) 372 Exhibit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo, p. 4 of transcript. 373 Exhibit 0156-1949/05/16.001, BCVSA, Death Registrations, B.C. Archives, GR 2951, Registration of Death of an Indian Lulua, Jack, Death, B13376, 1949-09-095185 (PLT- 003976); Exhibit 0156-1940/00/00.001, Department of Indian Affairs. Census 1940: Nemiah Valley- Williams Lake, part 7 of 7. Census Book of Indians. National Archives of Canada, Ottawa, RG 10, V. 12317 (C-005379), p. 2453. 374 Exhibit 0156-1949/05/16.001, BCVSA, Death Registrations, B.C. Archives, GR 2951, Registration of Death of an Indian Lulua, Jack, Death, B13376, 1949-09-095185 (PLT- 003976) 375 Exhibit 0156-1949/05/16.001, BCVSA, Death Registrations, B.C. Archives, GR 2951, Registration of Death of an Indian Lulua, Jack, Death, B13376, 1949-09-095185 (PLT- 003976) 376 Exhibit 0156-1911/00/00.002, Dominion of Canada. 1911. Census of Canada, 1911. British Columbia, District No. 14- Yale-Cariboo at p. 4 of transcript. 377 Exhibit 0156-1948/08/26.0001, BCVSA, Death Registrations, B.C. Archives, GR 2951, Registration of Death Lulua Eileen Ellen, Death, B13376, PLT- 003974; Exhibit 0156-1940/00/00.001, Department of Indian Affairs. Census 1940: Nemiah Valley- Williams Lake, part 7 of 7. Census Book of Indians. National Archives of Canada, Ottawa, RG 10, V. 12317 (C-005379), p. 2453.

29

• Eileen Ellen Lulua was born July 7, 1905.378 Eileen Ellen Lulua was a member of the Nemiah Valley Band.379 Eileen died August 26, 1948.380 Eileen was buried in the Nemiah Valley Burial Grounds at Tatla Lake.381

• Eileen Ellen Lulua was the mother of Doris Lulua. • Doris Lulua was born June 1, 1930.382

42. Genealogy of Lulua Family from Oral History Evidence

• Nentsel?eyen was Tsilhqot’in.383 Nentsel?eyen lived around the Chilko Lake Area, along the Chilko River.384 Nentsel?eyen is buried near Henry’s crossing at the Chilko River junction.385 Nentsel?eyen was the father of Jack Lulua.386

• Annie was Tsilhqot’in.387 Annie lived around M`fg`s`kgbgn] Ahmx.388 Annie’s mother

was Tsilhqot’in from M`fg`s`kgbgn] Ahmx.389 Annie died when she was very old in approximately 1939.390 Annie is buried at S?h BgÈdc Ch]>`m at Eagle Lake.391 Annie was the mother of Jack Lulua.392 Annie remarried Nezulhtsin after Jack Lulua’s father died.393 Nezulhtsin was also called Jamadis or John Baptiste.394

378 Exhibit 0156-1948/08/26.0001, BCVSA, Death Registrations, B.C. Archives, GR 2951, Registration of Death Lulua Eileen Ellen, Death, B13376, PLT- 003974; Exhibit 0156-1940/00/00.001, Department of Indian Affairs. Census 1940: Nemiah Valley- Williams Lake, part 7 of 7. Census Book of Indians. National Archives of Canada, Ottawa, RG 10, V. 12317 (C-005379), p. 2453. 379 Exhibit 0156-1948/08/26.0001, BCVSA, Death Registrations, B.C. Archives, GR 2951, Registration of Death Lulua Eileen Ellen, Death, B13376, PLT- 003974; Exhibit 0156-1940/00/00.001, Department of Indian Affairs. Census 1940: Nemiah Valley- Williams Lake, part 7 of 7. Census Book of Indians. National Archives of Canada, Ottawa, RG 10, V. 12317 (C-005379), p. 2453. 380 Exhibit 0156-1948/08/26.0001, BCVSA, Death Registrations, B.C. Archives, GR 2951, Registration of Death Lulua Eileen Ellen, Death, B13376, PLT- 003974 381 Exhibit 0156-1948/08/26.0001, BCVSA, Death Registrations, B.C. Archives, GR 2951, Registration of Death Lulua Eileen Ellen, Death, B13376, PLT- 003974 382 Exhibit 0156-1940/00/00.001, Department of Indian Affairs. Census 1940: Nemiah Valley- Williams Lake, part 7 of 7. Census Book of Indians. National Archives of Canada, Ottawa, RG 10, V. 12317 (C-005379), p. 2453. 383 Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para. 9. 384 Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para. 9. 385 Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para. 9. 386 Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para. 9; Transcript, March 2, 2004, Minnie Charleyboy Direct-Exam, at 00022, 33-34. 387 Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para. 8. 388 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 25. 389 Transcript, March 2, 2004, Minnie Charleyboy Direct-Exam, at 00027, 29-35. 390 Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para. 1 and 8 (Eliza indicates that she was 90 years old in 2003, and Annie died when she was 26, placing Annie’s death in approx. 1939). 391 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 25. Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para. 8. 392 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 25; Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para. 8. Transcript, March 2, 2004, Minnie Charleyboy Direct-Exam, p. 00026, 23-26. 393 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 25; Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para. 10 394 Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para. 10

30

• Hadediny was also called Jack Lulua.395 Hadediny (Jack Lulua) was Tsilhqot’in,396 and

was a member of the Xeni Gwet’in band.397 Jack Lulua was from around M`fg`s`kgbgn] Ahmx.398 Hadediny was buried at S?h BgÈdc Ch]>`m at M`fg`s`kgbgn] Ahmx.399 Hadediny (Jack Lulua) was the father of ?Ileen.400

• Jack Lulua married Jeannie.401 Jeannie was the daughter of Nemiah.402 Jeannie was the

mother of ?Ileen.403 • ?Ileen (Elaine Lulua) was the mother of Doris Lulua.404 ?Ileen was Tsilhqot’in from

M`fg`s`kgbgn] Ahmx.405 ?Ileen was a member of the Xeni Gwet’in Band.406 ?Ileen married a white man.407

395 Transcript, October 20, 2004, Norman George Setah Direct Exam, at 00030, 42; Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 18. 396 Exhibit 0160, Affidavit #1 of Doris Lulua, para. 18; Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para. 6. 397 Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para. 7. 398 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 18. 399 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 21; Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para. 6; Exhibit 0012, Affidavit of Theophile Ubill Lulua, at para 106. 400 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 16(a). Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para. 5 and 6 (Eliza indicates that Jack Lulua is her father and Elaine Lulua is her sister). Exhibit 00012, Affidavit of Theophile Ubill Lulua, at para. 5, 7 and 12. 401 Transcript, March 2, 2004, Minnie Charleyboy Direct-Exam, at 00002, 38-40. 402 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 22; Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para. 7. 403 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 16(a). 404 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 16. 405 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 16. 406 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 16. 407 Exhibit 0160, Affidavit #1 of Doris Lulua, at para. 16(c)

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Appendix 1D Summary of Traplines

SUMMARIES OF TRAPLINES .................................................................................................... 2

Introduction................................................................................................................................. 2 Trapline #01, Tommy Lulua ....................................................................................................... 3 Trapline #02, Lashway Lulua ..................................................................................................... 4 Trapline #03, Eugene Sammy William....................................................................................... 5 Trapline #04, Sam William......................................................................................................... 6 Trapline #05, Fred Cyr................................................................................................................ 7 Trapline #06, Jimmy Sam William............................................................................................. 8 Trapline #08, William Setah ....................................................................................................... 9 Trapline #09, Little George Setah............................................................................................. 10 Trapline #10, Annie William/ Francis Setah ............................................................................ 11 Trapline #11, Felix Lulua ......................................................................................................... 12 Trapline #12, Eagle Lake Henry............................................................................................... 13 Trapline #13, Captain George................................................................................................... 14 Trapline #14, Jimmy Sam William........................................................................................... 15 Trapline #15, Andy George ...................................................................................................... 16

1

SUMMARIES OF TRAPLINES INTRODUCTION On December 20, 1977, the Nemiah Valley Indian Band signed a band council resolution

amalgamating individual band members’ traplines into a single line. The band trapline was an

amalgamation of 12 individual traplines: Andy George (#15), Jimmy Sammy William (#14),

Captain George (#13), Little George Setah (#9), William Setah (#8), Francis Setah (#10), Sam

William (#4), Felix Lulua (#11), Eagle Lake Henry (#12), Eugene William (#3), Lashway Lulua

(#2) and Tommy Lulua (#1). In November 1984, the Band trapline boundaries were finalized

with only part of the Eagle Lake Henry line included, and the lines originally registered to Fred

Cyr (#05) and Jimmy Sam William (#06) included.

Exhibit 0468-23-1977/12/20.005, Band Council Resolution; Exhibit 0468-23-1978/01/10.001, Letter from J.H. Fiddler, Indian and Northern Affaires; to Wildlife Branch; Exhibit 0468-23-1980/01/10.001, Application to Register Trapline; Exhibit 0468-23-1980/01/18.001; Application approved at 2; Exhibit 0468-23-1990/08/26.001, Expert Repot of David J. Spalding, at 100408

Exhibit 0468-23-1988/05/10.001 is a map provided by the Wildlife Branch showing the

amalgamated trapline (NT 0504T002) as amended on May 10, 1988. Below are summaries of

the history of the various traplines that made up the amalgamated Xeni Gwet'in trapline; these

histories demonstrate continuity of land use and continuous exercise of the trapping right. For

the Court's convenience, we have labeled the traplines with the same numbers used by David

Spalding in his report "A History of the Nemiah Valley Trapline Registrations."

Exhibit 0468-23-1988/05/10.001, Map of Nemiah Valley Indian Band Trapline; Exhibit 0156-1990/08/26.001, Expert Repot of David J. Spalding at 100101.

2

TRAPLINE #01, TOMMY LULUA Tommy Lulua's earliest application to register a trapline was October 1, 1929. Tommy Lulua

(1901-1978) was a member of the Nemiah Indian Band; he was the son of Jeannie Nemiah and

Jack Lulua (son of Nunsulian and Annie). He married Susan Inez English, who was the daughter

of Kahkul (brother to Lhats'as?in) and Elizabeth. Mr. Lulua applied to amend his registration on

February 29, 1937. A boundary change was made in 1965 and the line was cancelled on January

18, 1980 in favour of the Band line.

Exhibit 0109, Affidavit of David Lulua, November 23, 1990, at para. 9; Exhibit 468-01-1929/10/01.001, Letter dated October 1, 1929 from Tommy Lulua to Indian Agent; Exhibit 468-01-1929/10/01.001, Letter dated October 10, 1929 from Indian Agent, Taylor, to Tommy Lulua Exhibit 0441, Expert Report of John Dewhirst, at 35,10; Exhibit 0468-01-1937/02/09.002, Application; Exhibit 0468-01-1937/03/20,001, Letter from Police Constable Broughton forwarding sketches of line; Exhibit 0468-01-1965/03/27.001, Application to Register a Trapline - Amendment; Exhibit 0156-1990/08/26.001, Expert Repot of David J. Spalding, at 100108

3

TRAPLINE #02, LASHWAY LULUA Lashway Lulua's first trapline application was in October of 1929. Lashway Lulua (born 1897)

was the brother of Tommy Lulua, and served as Chief of the Nemiah Valley Indian Band. A

small alteration of his line was made in 1937, but it otherwise remained unchanged until January

18, 1980 when it became part of the Band line.

Exhibit 0468-02-1929/10/25.001, Application for Registration of a Trapline, October 1929; Exhibit 0441, Expert Report of John Dewhirst, at 19; Exhibit 0468-02-1937/02/09.002, Amending Application to Register a Trapline; Exhibit 0468-02-1937/11/24.001; Exhibit 0156-1990/08/26.001, Expert Report of David J. Spalding, at 100115

4

TRAPLINE #03, EUGENE SAMMY WILLIAM Eugene Sammy William (Eugene Sammy) (born 1918) was the son of Sammy and Annie Bulyan

(also known as Symphorian William and Annie Elkins). Eugene William first applied for

registration of his line in 1942. The trapline was cancelled in favour of the Band line in 1980.

Affidavit #2 of Mabel Williams, at para 8. See also Testimony of Harry Setah, October 12, 2004 at 00026, 17-18; Exhibit 0441, Expert Report of John Dewhirst, at 29; Exhibit 0468-03-1942/05/28.001, Application to register a trapline; Exhibit 0156-1990/08/26.001, Expert Repot of David J. Spalding, at 100120

5

TRAPLINE #04, SAM WILLIAM Symphorian (Sam William) was Eugene and Helena William's father and the husband of Annie

Elkin. He was born around 1892 and was the son of "Long Jim" and Marie. Long Jim was a son

of Kawdah who was born around 1839 in Nemaiah Valley. Sam William first applied for a

trapline on December 22, 1931. He indicated on his registration form that he had been trapping

there for approximately 10 years before that. The line became part of the Band line in 1980.

Exhibit 0441, Expert Report of John Dewhirst, at 27 to 30; Exhibit 0468-04-1931/12/22.001, Application to Register a Trapline; Exhibit 0156-1990/08/26.001, Expert Report of David J. Spalding, at 100129

6

TRAPLINE #05, FRED CYR This trapline was registered with two white men in a row and was cancelled in 1957.

Exhibit 0468-23-1990/08/26.001, Expert Report of David J. Spalding, at 100136

7

TRAPLINE #06, JIMMY SAM WILLIAM Jimmy William (Bulyan) was, like Eugene, a son of Sammy William. This line was transferred

from George and Donald Myers to Jimmy Sam William because an Indian Agent determined the

line was within Nemiah Valley Indian Band Territory and encouraged the transfer. George

Myers was himself half-Tsilhqot'in and married Pauline Quilt (Stone) by whom he had two sons

Jimmy and Donald; Donald married a Nemiah woman, Helena Williams.

Exhibit 0441, Expert Report of John Dewhirst, at 29; Exhibit 0468-06-1937/05/11.001, Letter from Taylor, Indian Agent, to Constable Broughton; Exhibit 0468-06-1938/01/10.001, Letter from Broughton to Tailor explaining relinquishment; Exhibit 0441, Expert Report of John Dewhirst, at X, fn 260

8

TRAPLINE #08, WILLIAM SETAH This line was first registered to Donald George, a Tsilhqot'in from Redstone, in 1931. Mr.

George indicated on his registration form that he had been trapping there all of his life. In 1940,

the line was transferred to Eddie Quilt who married Eliza William, a Nemiah Band member; and

became a Nemiah Band member himself. Eddie Quilt's mother, Elsie Kowales, was a Xeni

Gwet'in woman. In 1942, Eddie Quilt transferred the line to Johnny Setah, a Nemiah Band

Member, who in turn relinquished it to his son William.

Exhibit 0468-06-1954/05/11.002, Application to Register a Trapline, Donald George; Exhibit 0468-23-1990/08/26.001, Expert Report of David J. Spalding, at 100165; Exhibit 0468-23-1990/08/26.001, Expert Report of David J. Spalding, at 100170; Affidavit of Martin Quilt, July 9/02, at 22-23; Exhibit 0441, Expert Report of John Dewhirst, at 22; Exhibit Ex 468-08-1943/02 /03.001, Note from Christie, Indian Agent, to Constable W.G. Bailey; Exhibit 0468-08-1956/11/07.001, Relinquishment to John Setah; Exhibit 0468-08-1956/10/12.005, Application to Register a Trapline, William Setah,

9

TRAPLINE #09, LITTLE GEORGE SETAH Little George Setah (Juzd Nentsel), a Nemiah Band member, was the son of Awenowon (Johnny

Setah) (1875-1955) and his first wife Christine. Awenowon was a member of the Nemiah Valley

Indian Band with a residence at Tatlayoko Lake; he was the son of Sit'ax (Louis Setah) and

Nancy, both born in the Nemiah Valley in the first half of the 19th Century. Little George Setah

registered this trapline in October of 1932. The trapline was cancelled in 1980 in favour of the

Band trapline.

Exhibit 0441, Expert Report of John Dewhirst, at 24; Exhibit 0468-09-1932/10/31.002, Application to Register a Trapline, Little George Setah; Exhibit 0468-09-1932/11/07.001, Letter enclosing Application from Broughton; Exhibit 0468-23-1990/08/26.001, Expert Report of David J. Spalding, at 100181

10

TRAPLINE #10, ANNIE WILLIAM/ FRANCIS SETAH Annie William, a Nemiah Valley Indian Band member, first registered a smaller version of this line in December of 1931. Annie William was the wife of Sammy William and the maternal grandmother of Martin Quilt. Francis Setah applied to register a larger line in November 1954. Francis Setah's line became part of the larger Band line in 1980.

Exhibit 0468-10-1931/12/22.001, Application to Register a Trapline; Exhibit 0441, Expert Report of John Dewhirst, at 4; Exhibit 0468-10-1954/11/19.001, Letter from Christie, Indian Agent, forwarding Application of Francis Setah; Exhibit 0468-23-1990/08/26.001, Expert Report of David J. Spalding, at 100191

11

TRAPLINE #11, FELIX LULUA In November 1929, Jack Lulua applied for a line that he acknowledged having trapped

throughout his life. In 1932 and 1945, Eagle Lake Henry applied for a larger trapline enclosing

Jack Lulua's line. After the death of Jack Lulua in 1949, Eagle Lake Henry agreed to split his

trapline with Jack's son, Felix Lulua. The line was later incorporated into the Band line.

Exhibit 0468-11-1929/10/30.001, Letter from Jack Lulua to Indian Agent, requesting registration of his trapline ; Exhibit 0468-11-1929/11/04.002, letter from Indian Agent acknowledging request and including registration; Exhibit 0468-11-1932/03/10.002, Application for Registration of a Trapline, Eagle Lake Henry; Exhibit 0468-11-1956/10/29.001, Application to Split Registered Trapline with Felix Lulua; Exhibit 0468-23-1990/08/26.001 Expert Repot of David J. Spalding, at 100207E

12

TRAPLINE #12, EAGLE LAKE HENRY In 1930, ?Eligasi (Eagle Lake Henry) (ca. 1886-1968) applied to renew a registered trapline.

While the original registration was not located, the Indian Agent noted that Eagle Lake Henry

had been trapping on the line all his life and the renewal indicated at least 25 years of use. This

is the same line, noted above, that ?Eligasi agreed to split with Felix Lulua. Eagle Lake Henry

may have willed the trapline to Eugene William on his death. In 1976, the line was made into a

Public Trapping Area (PTA #7). Eagle Lake Henry's parents were Agnes and Thomas Sill;

Agnes was the daughter of Kahkul and Elisabeth.

Exhibit 0468-12-1930/10/21.001, Letter of Constable Broughton enclosing Eagle Lake Henry Renewal; Exhibit 0468-12-1931/10/06.001, Letter from Constable Broughton indicating long-term ownership of line by Eagle Lake Henry; Exhibit 0468-12-1930/11/03.002, Application to Register a Trapline, Eagle Lake Henry; Exhibit 0468-23-1990/08/26.001 at 100207, Application to split line with Felix Lulua; Exhibit 0468-12-0000/00/00.001, Ministry of the Environment Referral Slip saying Eagle Lake Henry willed the Trapline to Eugene William; Exhibit 0441, Expert Report of John Dewhirst, at 33

13

TRAPLINE #13, CAPTAIN GEORGE In 1930, Nemiah Valley Indian Band member, Captain George, submitted an application for this

trapline. The line was corrected and amended in 1933. The line was cancelled and incorporated

into the Nemiah Valley Indian Band Line in 1980. Captain George (1881-3 to 1974) was the son

of Chief ?Achig; he married Madleen (Mary Madeline) Lulua, a granddaughter of Kakul.

Exhibit 0468-13-1930/09/05.001, Letter from District Game Warden, to Taylor, Indian Agent, accepting Captain George Application for a Registered Trapline; Exhibit 0468-13-1933/01/27.002; Exhibit 0468-13-1933/03/09.001, Amended Application for Registration of a Trapline, Captain George, January 27, 1933; Exhibit 0468-13-1980/01/18.001, Application for Registration of the Nemiah Valley Indian Band Trapline; Exhibit 0441, Expert Report of John Dewhirst, at 38

14

TRAPLINE #14, JIMMY SAM WILLIAM Jimmy Sam William, a Nemiah Valley Indian Band member, appears to have traded another

trapper for this line in April-May of 1954, giving up Trapline #6 above. The line was cancelled

in favour of the Nemaiah Valley Indian Band line in 1980.

Exhibit 0468-14-1954/04/08.001, Letter from Bristow and Jimmy William to Christie, Indian Agent, requesting exchange of trapline; Exhibit 0468-13-1980/01/18.001, Application for Registration of the Nemiah Valley Indian Band Trapline

15

TRAPLINE #15, ANDY GEORGE Andy George applied to register a trapline in the vicinity of the Lord River, at the south end of

Taseko Lake on May 16, 1931. He indicated that he had been trapping the area for 10 years.

There is some evidence that Andy George may also have trapped around Beece Creek, in what

became the Jimmy Sam William line east of the Taseko Lakes. Andy George (1906-1990) was

the son of Captain George.

Exhibit 0468-15-1931/05/16.002, Application for Registration of a Trapline, Andy George; Exhibit 0468-15-1931/07/14.001, Acceptance of Registration; 0468-15-1931/05/16.001, Letter from Taylor, Indian Agent, to Game Warden, noting that line was previously registered as being at Beece Creek; Exhibit 0441, Expert Report of John Dewhirst, at 38;

16

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