No. 90 0913 Victoria Registry

IN THE SUPREME COURT OF

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 FOREST REGION and THE ATTORNEY GENERAL OF

DEFENDANTS

PLAINTIFF’ S REPLY APPENDIX 1B

PLAINTIFF’S RESPONSE TO THE DEFENDANTS’ SUBMISSIONS ON DEFINITE TRACTS OF LAND

WOODWARD & ATTORNEY GENERAL DEPARTMENT OF COMPANY OF BRITISH COLUMBIA JUSTICE, CANADA Barristers and Solicitors Civil Litigation Section Aboriginal Law Section 844 Courtney Street, 2nd Floor 3RD Floor, 1405 Douglas Street 900 – 840 Howe Street Victoria, BC V8W 1C4 Victoria, BC V8W 9J5 , B.C. V6Z 2S9 Solicitors for the Plaintiff Solicitor for the Defendants, Her Solicitor for the Defendant, Majesty the Queen in the Right of The Attorney General of Canada the Province of British Columbia and the Manager of the Cariboo Forest Region

ROSENBERG & BORDEN LADNER ROSENBERG GERVAIS LLP Barristers & Solicitors Barristers & Solicitors 671D Market Hill Road 1200 Waterfront Centre, 200 Vancouver, BC V5Z 4B5 Burrard Street Solicitors for the Plaintiff 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 38

Plaintiff’s Reply Appendix 1B Plaintiff’s Response to the Defendants’ Submissions on Definite Tracts of Land

A. Southeast Tsilhqox Biny (Chilko Lake): west Ts’il?os () and Relevant Portions of the Tl’echid Gunaz (Long Valley), Yuhitah (Yohetta Valley), Ts’i Talhl?ad (Rainbow Creek), Tsi Tese?an (Tchaikazan Valley) and Tsilhqox Tu Tl’az (Edmonds River) Watersheds ...... 3 1. Definite Tracts of Land...... 3 2. Physically Occupied Before, At & After Crown Sovereignty...... 4 a. Historical Record and Related Expert Opinion ...... 4 b. Genealogical Record, Related Expert Opinion & Tsilhqot’in Evidence ...... 12 c. Additional Expert Opinion and Ethnohistorical Work ...... 26 d. General Points...... 28 3. Summary and Conclusion ...... 36 B. Naghatalhchoz, Gwedzin, Talhiqox and Lhuy Nachasgwengulin...... 36 1. Definite Tracts of Land...... 37 2. Physically Occupied Before, At and After Crown Sovereignty ...... 37 a. Historical Record and Related Expert Opinion ...... 38 (i) 1822-1845 ...... 38 (ii) 1845 – 1897 ...... 40 (iii) 20th Century ...... 47 b. Genealogical Record, Related Expert Opinion & Tsilhqot’in Evidence ...... 48 c. Additional Expert Opinion...... 71 d. General Points...... 72 3. Summary and Conclusion ...... 76 C. Tsimol Ch’ed (Potato Mountains) ...... 77 1. Definite Tract of Land ...... 77 2. Physically Occupied Before, At & After Crown Sovereignty...... 77 a. Historical Record and Related Expert Opinion ...... 78 b. Genealogical Record, Related Expert Opinion & Tsilhqot’in Evidence ...... 85 c. Interference with Continuity...... 108 d. Additional Expert Opinion...... 109 e. General Points...... 112 3. Summary and Conclusion ...... 116 D. T’asbay Se?an Tl’ad (a.k.a. Goat Mountain), Nilht’isiquz (Stikelan Creek Valley), West Tsilhqox Biny (Chilko Lake), Tach’i Dilhgwenlh Dzelh (Huckleberry Mountain) and the Tsilhqox Biny valley from Ch’a Biny (Big Lagoon) to Gwedats’ish (Chiko Lake outlet) ...... 117 1. Definite Tracts of Land...... 117 2. Physically Occupied Before, At and After Crown Sovereignty ...... 118 a. Historical Record and Related Expert Opinion ...... 118 b. Genealogical Record, Related Expert Opinion & Tsilhqot’in Evidence ...... 123 c. Additional Expert Opinion...... 132 d. General Points...... 133

1 3. Summary and Conclusion ...... 136 E. Southwest Tsilqox Biny (Chilko Lake): Talhjez (Franklyn Arm), Nachent’az Dzelh (Boatswain Mountain), Yanats’idlush (Impasse Ridge), Tsi Nentsen Tsish Dzelh (Good Hope Mountain) and Tsilhqox Dzelh (Chilko Mountain)...... 137 1. Definite Tracts of Land...... 137 2. Physically Occupied Before, At & After Crown Sovereignty...... 137 a. Historical Record and Related Expert Opinion ...... 138 b. Genealogical Record, Related Expert Opinion & Tsilhqot’in Evidence ...... 143 c. General Points...... 148 3. Summary and Conclusion ...... 149 F. The Claim Area Lands of the and East of the Taseko Lakes (Taseko Lakes Fish Lake, Little Fish Lake (Wasp Lake), and Onion Lake, Beece Creek; “Snow Mountains” to the east and south of Taseko Lakes) ...... 149 1. Definite Tracts of Land…...... 149 2. Physically Occupied Before, AT & After Crown Sovereignty...... 150 a. Historical Record and Related Expert Opinion ...... 152 b. Genealogical Record, Related Expert Opinion & Tsilhqot’in Evidence ...... 156 c. Additional Expert Evidence...... 179 d. General Points...... 182 3. Summary and Conclusion ...... 188

2 A. SOUTHEAST TSILHQOX BINY (CHILKO LAKE): WEST TS’IL?OS (MOUNT TATLOW) AND RELEVANT PORTIONS OF THE TL’ECHID GUNAZ (LONG VALLEY), YUHITAH (YOHETTA VALLEY), TS’I TALHL?AD (RAINBOW CREEK), TSI TESE?AN (TCHAIKAZAN VALLEY) AND TSILHQOX TU TL’AZ (EDMONDS RIVER) WATERSHEDS

1. DEFINITE TRACTS OF LAND

1. Physiographically, Chilko Lake is a large valley bottom lake ensconced within the Coast or Cascade Mountains in the southern Claim Area.1 Different tracts of land constitute the mountainous area on Chilko Lake south of Nemiah Valley.

2. Mount Tatlow itself, the highest peak in the region, bounds southern Nemiah Valley and runs west down to Chilko Lake. South of Mount Tatlow are the Long Valley, Yohetta Valley, Rainbow Creek, Tchaikazan Valley and Edmond River watersheds that are etched into this mountainous district. These terms delineate this landscape from an English language perspective.

3. The Tsilhqot’in identify these tracts of land in their own terms. Ts’il?os (Mount Tatlow) dominates the landscape and stretches west to Tsilhqox Biny (Chilko Lake) south of Xeni (Nemiah Valley). South of Ts’il?os are the watersheds of Tl’echid Gunaz (Long Valley), Yuhitah (Yohetta Valley), Ts’i Talhl?ad (Rainbow Creek), Tsi Tese?an (Tchaikazan Valley) and Tsilhqox Tu Tl’az (Edmond Creek). These mountainous lands are part of the sweep of Coast or Cascade Mountains known to the Tsilhqot’in as Dzelh Ch’ed (Snow Mountains).

4. The Trapline defines the Claim Area as it surrounds Chilko Lake in this region. In the east it essentially parallels Chilko Lake, running from Mount Tatlow in the north due south before largely encompassing the Edmond River headwaters. Thus, the lands of Mount Tatlow and the watersheds identified above which are of interest here are those surrounding southeast Chilko Lake.

1 Plaintiff’s Argument, Volume 3, para. 937-938.

3 5. This area sharply varies in terrain and elevation, and provides habitat for a number of species:2 Mountain goats and mountain Sheep are found in the rocky, alpine environment. Groundhogs or marmots and marten live at the foot of the alpine. With the snow’s retreat in late spring deer, first the does then the bucks, move up into the mountains3 to feed and stay until the snow’s onset in late fall when they migrate back down to wintering grounds on the forested plateau.4

2. PHYSICALLY OCCUPIED BEFORE, AT & AFTER CROWN SOVEREIGNTY

6. Prior to, at and well after Crown sovereignty the Tsilhqot’in regularly used the lands of Ts’il?os (Mount Tatlow), Tl’echid Gunaz (Long Valley), Yuhitah (Yohetta), Ts’i Talhl?ad (Rainbow Creek), Tsi Tese?an (Tchaikazan River) and Tsilhqox Tu Tl’az (Edmond Creek) that surround Tsilhqox Biny (Chilko Lake) as hunting and gathering grounds, as well as for trapping and fishing.5 This fact is established by a coherent set of evidence from the historical record, expert opinion and oral history.

a. Historical Record and Related Expert Opinion

7. The historical record regarding the Tsilhqot’in is limited by its ‘on the ground’ ‘sight lines.’6 The archival record 1822-1845 from the Hudson Bay Company and the Jesuit missionary Father Nobili identifies relatively early on the resident Tsilhqot’in population on and at the northern outlet of Chilko Lake, as well as the fact that Tsilhqot’ins are traveling the length of Chilko Lake by canoe. The historical record regarding the remote Nemiah Valley, located on the rugged northeast side of Chilko Lake, is relatively late in developing. Nonetheless, it belatedly points to a residential Tsilhqot’in population using and occupying the Nemiah Valley and its mountainous setting as resource exploitation grounds since prior to Euroepean contact. The general historical record, however, did not penetrate into or survey the

2 Plaintiff’s Argument, Volume 3, at para.940-942. 3 Transcript, July 26, 2002, Martin Quilt Direct-Exam, 832, 5-20; 836, 22 – 837, 13; Exhibit 3DIG, ‘L1’. 4 Plaintiff’s Appendix 3, at para. 55; Transcript, November 26, 2003, Francis Setah Direct Exam, 00042, 27 to 00043, 46; Transcript, December 2, 2003, Francis Setah Direct Exam, 00036, 42 to 00037, 1; Transcript, December 4, 2003, Direct Exam, 00028, 32 to 41. 5 Plaintiff’s Argument, Appendix 3, at paras. 136, 152, 186. 6 Exhibit 0240, Expert Report of Ken Brealey, at p. 33.

4 mountains extending from southeast Chilko Lake until after the turn of the 20th century. Per Dr. Brealey, the historical record thus has an obvious blind spot in this area with respect to the early geography of the Tsilhqot’in.7 As will be seen, however, the genealogical record, expert opinion and oral history substantiate early Tsilhqot’in use and occupation of the lands surrounding southeast Chilko Lake, including by a Tsilhqot’in population resident at the intersection of Gunn and Yohetta Valleys located just to the east.

8. That said, the historical record in Tsilhqot’in territory begins in January of 1822 with furtrader George McDougall’s record of his party’s visit to Tsilhqot’ins on the Chilko River. McDougall reported gathering “much information respecting their Country in general,” including something of the Tsilhqot’in perspective on and familiarity with the Chilko Lake area:

… I have every reason to think [the trip] will be attended with many salutary advantages at a future period, they are certainly a fine, brave looking set of Indians, whose lands are far from being poor either, as to or Large Animals, if we can judge from what was told us & that part of their lands which fell under our immediate Eye corroborated a part, which their Dress was still a farther proof of what they told us, … … the River, …, taking its water from a Large Lake which they say is about a half a mile broad and takes them two days En Canot to go from entrance to extremity, extending in the same direction as the River… … [o]ne of them had a Gun, it was one of Barnetts 1808, he says he and several others have had Guns from Indians who came from the Sea, at the extremity of this Lake of theirs, they cross over a Mountain, which portage takes them from 5 to 6 days light. By dint of enquiry & with the help of small sticks we made out to get nearly their strength, they say there are 6 Large Ground Lodges, about the Lake, containing 53 Families…8 [Emphasis added.]

9. As discussed already,9 Dewhirst estimated this Chilko Lake population as numbering 360 Tsilhqot’ins, part of which was a winter resident population in the Nemiah Valley situated at the northern boundary of the lands in question.10 Further, per Dewhirst “these people used canoes on the lake...”11

7 Exhibit 0240, Expert Report of Ken Brealey, at 2, f.n. 3. 8 Exhibit 0156-1822/01/18.001 at 100924-25. 9 Plaintiff’s Reply Appendix, Physical Occupation of Definite Tracts of Land, re Xeni (Nemiah Valley). 10 Exhibit 0443, Expert Report of John Dewhirst, at paras. 136-137, 203, 208. 11 Exhibit 0443, Expert Report of John Dewhirst, at para. 163.

5 10. In 1827, Joseph McGillvary of the Hudson’s Bay Company provided a written overview of “Chilkotin Country” and described Chilko Lake as “surround by lofty Mountains, from which many small Rivers issue therefrom.” McGillvary noted that the Tsilhqot’in regularly exploited their Chilko Lake fish produce and large animal resources, including in especially critical circumstances:

In the Spring they have abundance of Suckers, Trout and White Fish, it abounds in large Animals—such as Rein Deer—Red Deer and Moose Deer—and in the Autunm and Spring Chevreuil are numerous—Salmon however is their principal food, but as this fish does not come up regularly the Chilkotin River their resource is the produce of the Lake, and large Animals. [emphasis added]

11. In this regard, Dewhirst stated:

In my opinion, McGillivray shows that Chilko Lake and Chilko River fisheries together with big game resources in the surrounding area support the resident Tsilhqot'in population year round.12 [emphasis added]

12. In 1831, furtrader Ross Cox recounted his years in west of the Rocky Mountains and provided a brief sketch of that described Chilko River and Chilko Lake.13 Regarding Cox, Dr. Brealey stated, “while he does not specify the extent of ‘their hunting grounds’ would most certainly include the ‘many creeks issuing therefrom’ (and into the Chilko and Chilcotin Rivers and Lakes)… .”14 The waters issuing from Mount Tatlow and Long Valley, as well as those of Rainbow Creek and Edmonds River drain into Chilko Lake.

13. For the year 1835, esteemed provincial anthropologist Wilson Duff, writing in The Indian History of British Columbia (1964), analyzed the historical distribution of Indian populations and estimated the population of Nemiah Valley as 100 persons.15

14. In 1838, the Chilcotin Post census identified the Tsilhqot’in winter village of “Taze Ley” on or near the outlet of Chilko Lake and lead by Chief “Quill Quall Yaw”.16 The reported

12 Exhibit 0443, Expert Report of John Dewhirst, at para. 174. 13 Exhibit 0156-1831/00/00.01: Ross Cox, Adventures of the …, at 3000018-20. 14 Exhibit 0240, Expert Report of Ken Brealey, at 9. 15 Exhibit 0265-1964/00/00.001; Exhibit 0443, Expert Report of John Dewhirst, at para. 204.

6 population alone for “Taze Ley” (Tachi Lhuy) was 194 people, including 46 hunters, estimates that were assuredly too low.17 Dewhirst concluded these Tsilhqot’ins “undoubtedly used… hunting grounds most likely in the Claim Area.”18

15. In November of 1845, Father Giovanni Nobili reportedly visited three areas where Tsilhqot’ins were residing at winter’s onset. According to Dr. Brealey, the third was a village at or near the outlet of Chilko Lake containing an estimated 150 people lead by Chief “Konkwaglia”.19 In this regard, Dewhirst opined that in November 1845 Father Nobili visited the “Taze Lay” village of recorded in the Chilcotin Post’s 1838 census.20 Per Brealey, Nobili thus confirmed that those whom Marcus Smith (1872) classified as Stone Tsilhqot’ins included a group headquartered at Chilko Lake.21 [emphasis added]

16. In the summer of 1862, Lt. Palmer traveled north of the Claim Area from Bella Coola to Fort Alexandria. Palmer noted:

The Carriers are seen in various stages of life, those round the forts speaking Canadian French fluently, and being well versed in the customs of the whites; others who dwell in the mountains, such as the Chilcotins who occupy the country traversed by the fifth and sixth sections of our journey, are seen in a purely savage state of existence, clothed in furs, armed with bows and arrows, in the use of which they are singularly expert, … .22

17. Dewhirst ascertained the “fifth and sixth sections of our journey” and concluded:

In my opinion, the Tsilhqot'in territory described by Palmer and his reference to the Tsilhqot'in dwelling in the mountains includes the Claim Area.23

16 Plaintiff’s Argument, Appendix 3, at para. 59; Exhibit 0443, Expert Report of John Dewhirst, at paras.64-66. 17 Plaintiff’s Argument, Appendix 3, at para. 60; Ex. 0443, Expert Report of John Dewhirst, at paras. 99, 397, 84; Exhibit 0173, Affidavit #1 of Mabel William, at para. 50(vi). 18 Exhibit 0443, Expert Report of John Dewhirst, at paras. 175-176, 397. 19 Exhibit 0240, Expert Report of Ken Brealey, at 26-28 re Nobili, 60 re Fort Chilcotin, and 56 re Chilko Lake; Exhibit 0156-1845/11/30.001 at p. 2195816-7. 20 Exhibit 0443, Expert Report of John Dewhirst, at paras. 76-79. 21 Exhibit 0240, Expert Report of Ken Brealey, at 28. 22 Exhibit 0156-1863/00/00.001. 23 Exhibit 0443, Expert Report of John Dewhirst, at para. 214.

7 18. On July 22, 1864, colonial magistrate William Cox signed a map prepared based on information from Chiefs Alexis and Eulas and which has become known as the Map.24 On this map, the lands under discussion were inscribed with “Favourite resort of Indians in time of danger.” With reference to Chilko Lake, and consistent with McDougall (1822), the map noted, “The Indians take 3 days to pass down the Lake in bark Canoes. There is no trail on either side of the Lake.” With respect to these mapped features Dewhirst opined that they “indicate Tsilhqot’in use and occupancy of the Claim Area for many years prior to 1864.”25 The Chilcotin War Map also depicts a Tsilhqot’in trail network along the Chilko River to near the head of Chilko Lake and connecting into the mountains territory north off the lands in question at Tsuniah Valley. Dewhirst dates the trails to pre-1846.26

19. On September 9, 1864, Governor Seymour reported on the Chilcotin War to the Colonial Office of Great Britain. In his dispatch, Seymour referenced the probable extent of “the Territory occupied by the Chilcotens”, the mountainous region that “their hunting and fishing grounds” were believed to be in, as well as the limited knowledge the Crown had of the area so many years after Crown sovereignty:

The Territory occupied by the Chilcotens extends probably… [f]rom the summits of the mounts to the West Road River. E to W the Tribe roamed from the Cascade range to the Fraser,….. the Indian trails which traverse the country concentre at Benshee Lake...

… We had vaguely heard that a large force under a subordinate officer to Alexis occupied the lodges on the Benshee Lake & that a detachment of Anaheim’s men was in possession of a palisaded fort at Sutleth. All these places lay on the mule trail where the pack trains passed. 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...27 [emphasis added]

24 Exhibit 0265-1864/00/00.001. 25 Exhibit 0443, Expert Report of John Dewhirst, at para. 181. 26 Plaintiff’s Argument, Appendix 3, at para. 118; Exhibit 0443, Dewhirst Report, paras. 266-269, 271, 199-201. 27 Exhibit 156-1864/09/09.001 at para. 4.

8 20. Dewhirst located this reference to “their hunting and fishing grounds” in the Cascade Mountains as including the Claim Area around Chilko Lake, situated as it is inside “the summits of the Bute Inlet mounts” and south of “Benshee Lake” (). Moreover, Dewhirst opined that Seymour’s report is based on a “recognition of long use and occupancy of Tsilhqot’in territory that pre-dates 1846 in those areas, unless otherwise stated.”28 He did not state otherwise.

21. In the period of 1868 - 1869, three other maps were made that included the mountainous Chilko Lake area. Waddington’s two maps of 1868 identify Chilko Lake as “Memeia” Lake. Likewise, the 1869 map of Milton and Cheadle labels Chilko Lake as “Mimeio L[ake]”.29 Dewhirst noted, “these are likely renderings of “Nemiah” and the choice of his name for Chilko Lake suggests that Nemiah was established as a chief or leader in the Chilko Lake area by the late 1860s and probably earlier.”30 In addition, these maps suggest “that Chief Nemiah occupied the Chilko Lake area in 1868 and earlier.”31

22. In 1893, Father Morice wrote of the Stone Tsilhqot’in living in the mountains in terms of their “favourite haunts, where they live… constantly shifting from their southern to their northern border…”32 [Emphasis added.] Dr. Brealey depicted Morice’s “favourite haunts” as including the mountainous Claim Area east of Chilko Lake, both in the north about Mount Tatlow and the south about Monmouth Mountain (Tsi Tese?an Lhud Dzelh).33 Moreover, Dr. Brealey depicted the ‘southern border’ of Tsilhqot’in territory as encompassing the lands surrounding Chilko Lake.34

23. In September of 1899, thirty years later, A.W.Vowell traveled up Chilko River to Nemiah Valley on Chilko Lake. Arriving in the valley roughly two years after the first attempted European settler did so, Vowell diarized:

28 Exhibit 0443, Expert Report of John Dewhirst, at paras. 272-273. 29 Exhibit 0265-1869/00/00.001. 30 Exhibit 0443, Expert Report of John Dewhirst, at para. 182. 31 Exhibit 0443, Expert Report of John Dewhirst, at para. 185. 32 Exhibit 0156-1983/11/04.00 at 2001027. 33 Exhibit 0246, Expert Report of Ken Brealey, October 2003, Land Use and Occupancy Map 34 Exhibit 0241, Brealey Map, Chilcotin Boundaries; Exhibit 0240, at 12.

9 … Reached Nemaiah valley at 1.30 pm, and camped near the foot of Connee lake [i.e. Konni Lake, a.k.a. Xeni Biny]. …

Accompanied by the Indians rode to Chilco lake, about 11 miles. distant, and defined a reserve of 200 acres on its shores where several families had built houses, and established their winter quarters, following hunting, fishing and trapping in the spring, summer and autumn. Also a reserve of 80 acres on which are some small gardens and the houses and stables of two families.

24. Importantly, in his October 18, 1899 reporting letter to the Secretary of the Department of Indian Affairs, Ottawa, A.W. Vowell wrote of his September visit to Nemiah Valley:

… the trails to Nemaiah Valley were of the roughest kind and being beyond the settled portions of the country they have never been improved by either Government or settlers; remaining in the very primitive condition of "Indian trails". The party fortunately got through all right but to my disappointment on my arrival I learned that the greater number of the Indians were absent in the mountains hunting and fishing and putting up their winter supply of dried meat, etc. I also learned that they are generally absent in the Spring and Fall, engaged in trapping, and that the only time when they are all at home is in the dead of winter. Upon close inquiry I learned that some 59 Indians, men, women and children, have for a long time lived in the valley as far as I could learn having been there located before the laying off of other reserves in the Chilcotin country, etc.35

25. With respect to the historical record spanning 1822 to 1899, including Vowell’s visit to the Nemiah Valley on Chilko Lake, Dewhirst concluded:

In my opinion, the Tsilhqot'in use and occupation of the Nemiah Valley predates 1846 and continues to the present day. I am of the opinion that a resident population in the early 19th century has continued to use and occupy the Chilko Lake area, including the Nemiah Valley, to the present day. In 1822 the Tsilhqot'in told McDougall that 53 families lived around Chilko Lake (McDougall 1822). In my opinion those families in 1822 represent an estimated population of 360 people (Par 139). The Nemiah Valley opens on Chilko Lake, and that population most likely used and occupied the valley. Genealogical research linked to customary use areas of selected modern extended Xeni Gwetin families shows that they were present in the Chilko Lake and Nemiah Valley area since at least the early 19th century and have continued to use and occupy those areas to the present day (Section 3.0). Chief Nemiah, reported to have been born

35 Exhibit 0156-1899/10/18.001, Letter from A. Vowell to Secretary, Dept. of Indian Affairs, pp. 2-3.

10 in the Nemiah Valley ca. 1827, is an ancestor of the modern Lulua extended family, and in my opinion Nemiah' s family was part of that resident population.36 [Emphasis added.]

26. Consistent with Vowell, in December 1905 Gold Commissioner Caspar Phair wrote from Lillooet to Provincial Game Warden A. Bryan Williams about the subject of Tsilhqot’in hunters in an area which may well include the lands under discussion around Chilko Lake:

[T]he Chilcotin Indians… traverse, in separate bands, the Mountains from to Chilcoten slaughtering all kinds of Big Game. They live on these mountains during the months of June, July, August and September, entirely on game and what roots they gather. They dry a great deal of the meat which they pack on horses to Chilcoten for winter use.37

27. Gold Commissioner Phair’s letter is also consistent with a Tsilhqot’in intention and capacity to control these lands, including those in question around Chilko Lake, through the creation of a barren territorial buffer zone. Per the evidence of Dr. Brealey, the Tsilhqot’in - Lillooet territorial boundary is substantially southeast of the Claim Area surrounding Chilko Lake,38 and essentially at the height of land between the Taseko Lake and Bridge River headwaters.39 Commissioner Phair recorded the Tsilhqot’in practice of crossing over this boundary into Lillooet territory to intentionally deplete the resources of the Bridge River headwaters:

For several years the Chilcotin Indians have come in large numbers, generally in the month of June, to the headwaters of the Bridge River for the purpose of killing big game – including does and fawn. …

The different bands of Indians in the neighbourhood of Lillooet are strongly opposed to these Indians being allowed to come on their hunting grounds, during the summer months, to kill so much game – especially does and fawns – when they do not require it for their immediate use.40

36 Exhibit 0443, Expert Report of John Dewhirst, at para. 208. 37 Exhibit 0156-1905/12/4/001. 38 Note that the Claim Area under discussion is not only well within Tsilhqot’in territory, per the evidence of Dr. Brealey, it is physically isolated or protected from the Tsilhqot’in – Lillooet boundary by glaciated mountains. 39 Exhibit 0241, Expert Report of Ken Brealey, Tsilhqot’in Boundaries, October 2003; Exhibit 0243, Tsilhqot’in Conflicts, October 2003. 40 Exhibit 0156-1905/12/4/001. Remarkably, Canada says Comissioner Phair’s letter suggests support for overlapping claims by other aboriginal groups (Canada’s Argument, at paras. 1469, 1471). However, there is no overlapping claim by the Lillooet people. Indeed there is no overlapping claim by any aboriginal group with respect

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28. In 1909, James Teit documented a protohistoric conflict between the Tsilhqot’in and the Secwepemc. Teit discussed this matter in terms of a single retaliatory act of the Fraser River Secwepemc into “the real hunting-ground of the Chilcotin near Chilco Lake.”41

29. Finally, in the 1990s Ts’il?os Park was created and it includes the lands in question.42 Prior to the formation of the park, the B.C. Ministry of Environment, Lands and Parks participated as a member of the Chilko Lake Study Team, which studied land use in the proposed park area.43 Within the resulting park planning documents, British Columbia has in fact explicitly recognized the long history of Tsilhqot’in use and occupation of the mountains surrounding Ts’il?os and their critical role in the Tsilhqot’in system of land use:

The Nemiah people (Xeni Gwet’in) have occupied and used the Park area since before the arrival of European settlers. The Park contains areas important to the Xeni Gwet’in for food gathering, hunting, trapping, archaeological and cultural sites. The Park is also very important to maintaining their lifestyle.44

b. Genealogical Record, Related Expert Opinion & Tsilhqot’in Evidence

30. Anthropologist John Dewhirst’s genealogical research linking modern extended families to the Chilko Lake area beyond Nemiah Valley identified the Tsilhqot’in Chief Nemiah as an ancestor of the modern Lulua family of the Xeni Gwet’in. Dewhirst also reviewed the historical record from the 1860s – 1890s with respect to the Chief Nemiah along with Nemiah’s death certificate.45 Dewhirst concluded:

Archival documents demonstrate that Nemiah spent his life in and around the Claim Area, particularly the Nemiah Valley and Chilko Lake (see below). … … [L]etters show Nemiah had an intimate knowledge of the Claim Area, especially of Chilco Lake and the surrounding mountains up to Stone.

to the Tsilhqot’in Claim Area surrounding Chilko Lake. Further, even if there was, Commissioner Phair’s letter actually supports the Tsilhqot’in claim to these lands when fairly interpreted or understood in context. 41 Exhibit 0240, Expert Report of Ken Brealey, at 18; Exhibit 0167.006 at 554-555. 42 Exhibit 0031, Acetate overlay showing Ts’il?os Park. 43 Exhibit 0037.005, Consensus Report of the Chilko Lake Study Team, Final Report, September 1993, at v, vii. 44 Plaintiff’s Argument, at paras. 1264-1265; Exhibit 0039.009, British Columbia Ministry of Environment, Land and Parks, Annual Park Management Plan Ts’il-os Provincial Park, 1995/1996, at 1. 45 Exhibit 0443, Expert Report of John Dewhirst, at paras. 290-296.

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In my opinion, archival maps and records demonstrate that Nemiah was born in Nemiah Valley ca. 1827. His parents obviously had lived there before him. Nemiah became a leader of prominence by the early 1860s, and likely earlier, and continued to occupy and use the Claim Area until his death in 1927.46 [Emphasis added.]

31. Dewhirst’s genealogical work, as discussed previously, also relates to the extended Setah family descendant from the Tsilhqot’in husband and wife Setah (a.k.a. Louis Setah and, in Tsilhqot’in, Sit’ax) and Nancy.47 The death certificates of Setah (ca. 1827/1849 – 1927) and Nancy (ca. 1845-1938), respectively, likewise state they were born in the Nemiah Valley.48 The Setah family flourished through two lines of descent, namely, through their son Johnny Setah and their daughter Sabatsakai (who begat Sammy William).49 Based on the historical record and affidavit evidence, Dewhirst concluded:

In my opinion, archival documents and oral history show that the Setah family’s customary use area is in the Claim Area, primarily around the Nemiah Valley. Ancestors Setah and Nancy, both born before 1846, lived most of their lives in the Claim Area. Setah’s mother, who was born in the early part of the 19th century, was also from Nemiah Valley (M.William 2004b: par. 39). This demonstrates that the Setah family has used the Claim Area since at least the early 19th century and probably earlier.50

32. Relatedly, Dewhirst’s genealogical evidence also relates to the extended William Setah family descendant from the Tsilhqot’in husband and wife Sammy (1892-1979) and Annie William (a.k.a. Bulyan) (1899-1912). Regarding this William family Dewhirst concluded:

The modern Xeni Gwet'in William family is descended from three lines: Setah and his wife Nancy (Dewhirst 2004:Sec. 5.1, Chart 3), Kawdeh and his unidentified wife (Dewhirst 2004:Sec. 6.0, Chart 4) and Kahkul and Elizabeth (Dewhirst 2004:Sec. 7.1, 7.6, Chart 5). The customary use area of the William family, primarily around the Nemiah Valley, is similar to the Setah family, which is not surprising as Setah and Nancy are common ancestors to both the Setah and William families. Another ancestor of the Xeni Gwet 'in William family, Long Jim, also lived in and used the Nemiah Valley for part of his life. The third line of

46 Exhibit 0443, Expert Report of John Dewhirst, at paras. 291, 295, 296. 47 Exhibit 0443, Expert Report of John Dewhirst, at paras.304-313. 48 Exhibit 0156-1927/11/15.001 (Louis Setah); Exhibit 156-1938/11/17.001 (Nancy Setah)Exhibit 0443, Dewhirst Report, at paras. 304-305. 49 Exhibit 0443, Expert Report of John Dewhirst, at paras. 311-312. 50 Exhibit 0443, Expert Report of John Dewhirst, at para. 313.

13 descent, from ancestors Kahkul and Elizabeth, also links the William family to the Naghatlhcho2 or the Big Eagle Lake area (F. William 2004b:par. 53, 54).

In my opinion, archival documents and oral history explained above, …, show that the William family's customary use area is in the Claim Area, primarily around the Nemiah Valley and Chilko Lake. Ancestors of the Xeni Gwet'in William Family used and occupied these customary use areas before 1827, and their descendants have continued to do so to the present.51 [Emphasis added.]

33. Tsilhqot’in elder Mabel William (b. 1918) is the widow of the late Eugene William (b. 1918), son of Sammy and Annie William (a.k.a. Bulyan) and the great-grandson of Sit’ax (Setah) and Nancy.52 Ms. William is Tsilhqot’in originally from the Tsi Del Del (Alexis Creek) community, though upon marriage to Eugene William (m. 1936) she became a member of the Xeni Gwet’in (Nemiah) community.53 Ms. William’s evidence in this case, including oral history sourced to Sit’ax and Nancy, related to Tsilhqot’in land use of the mountainous area south of Xeni (Nemiah Valley) and surrounding Tsilhqox Biny (Chilko Lake):54

(a) Ms. William averred as to Sit’ax and Nancy –

Nancy was the great-grandmother of my late husband Eugene. She was the grandmother of Eugene's father Sammy Bulyan. Nancy was also the wife of Sammy's grandfather Sit'ax. I remember Nancy. She was Tsilhqot'in. I never knew a Tsilhqot'in name for her though. She died about the time when Eugene and I had two children. Nancy is buried in Xeni (Nemiah Valley) at the Tsilhqot'in graveyard at Xexti Biny (Nemiah Lake). Annie Bulyan taught me that Nancy was born and raised around Xeni. She also taught me that Sit'ax's mother was Tsilhqot'in from Xeni and that Sit'ax was born in Xeni. Nancy and Sit'ax taught her this she said. I don't remember Sit'ax.55

(b) Ms. William gave evidence of an entrenched Tsilhqot’in trail network connecting with south Xeni (Nemiah Valley)56 through (i) west Ts’il?os (Mount Tatlow) above Tl’echid

51 Exhibit 0443, Expert Report of John Dewhirst, at paras. 341-342. 52 Exhibit 0441, Expert Report of John Dewhirst, 25, chart 3, 24, 29. 53 Exhibit 0173, Affidavit #1 of Mabel William, at paras. 5-7, 22. 54 Plaintiff’s Argument, Appendix 3, at para. 152. 55 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 39. 56 Exhibit 0265-1864/00/00.001, The Chilcotin War Map (1864), noted that with respect to Chilko Lake, unlike “Sooneat L.” [Tsuniah Lake] and “Ta-tlah-co L.” [] which are depicted thereon as encircled by a Tsilhqot’in trail network at lakeside, “[t]here is no trail on either side of the Lake.” Consistently, the Tsilhqot’in trail network established by the evidence of Tsilhqot’in witnesses such as Ms. William does not run along the rugged eastside of Chilko Lake, but rather off of it through the surrounding mountains.

14 Gunaz (Long Valley), (ii) west Tl’echid Gunaz and west Yuhetah (Yohetta Valley), and (iii) west Tsi Tese?an (Tchaikazan Valley) and Tsilhqox Tu Tl’az –57

My late husband's father, Sammy Bulyan, taught me that he was raised in the mountains around Xeni (Nemiah Valley) by his grandparents Nancy and Sit'ax. Sammy taught me that he had traveled Tsilhqot'in saddle and packhorse trails with his grandparents through the mountains:

(i) One trail left from Xeni (Nemiah Valley) around Lhizbay (Lezbye). It went up Tsilhqox Biny (Chilko Lake) and around Tsi Ch’ed Tl'ad. There it turned up into the mountains towards Ts'il?os (Mount Tatlow). It went up to Nighgwetizdi, then to a placed called Naghagat'ax. At Naghagat'ax it split in two. One trail went back to Xeni. The other went over the mountain to Tl'echid Gunaz where it connected to a trail up to Xenedi?an.

Note: I have traveled this trail up Nighgwetizdi when I was picking berries. My husband also once told me he got caught in the snow traveling this trail from Xenedi?an over to Naghagat'ax.

(ii) That same trail from Lhizbay (Lezbye) around Tsi Ch'ed Tl'ad also continued up Tsilhqox Biny (Chilko Lake) for a while. Then it turned up into Yuhetah (Yohetta Valley). It went right through Yuhetah and came out the other end around Gex Gulin.

Note: I've traveled that saddle and packhorse trail from Gex Gulin up to the first lake in Yuhetah. I've seen it going on along that lake. My late husband also talked about taking that trail through Yuhetah.

(iii) At Gex Gulin the trails goes down to Nadilin Yex. It also went the other way up through Tsi Tese?an (Tchaikazan Valley). At the top of Tsi Tese?an it went over the mountains and down to Tsilhqox Tu Tl'az.

Note: I've traveled the trail between Gex Gulin and Nadilin Yex. My late husband Eugene talked about traveling that trail through Tsi Tese?an to Tsilhqox Tu Tl'az with his parents when he was growing up.58

(c) Ms. William then described the regular Tsilhqot’in exploitation of the resources from these tracts of land, consistent with the emergent historical record (1822-1909) and expert opinion thereon regarding the Tsilhqot’in regularly exploiting large animal resources of

57 Plaintiff’s Argument, Volume 3, at pars. 924, 923, 1020. 58 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 69.

15 their mountainous hunting grounds about Chilko Lake, including for per Vowell “their winter supply of dried meat:”59

Sammy Bulyan taught me that he had used these trails all his life. He taught me that the mountains and valleys of Tl'echid Gunaz, Yuhetah, Tsi Tese?an and Tsilhqox Tu Tl'az are Tsilhqot'in summertime and fall time hunting grounds. He taught me this is where Tsilhqot'ins would get their meat, dry meat and hides from the nists'i (deer), sebay (mountain goat), debi (mountain sheep), dediny (mountain groundhog) and ses (bear). In the summer, people would pick the sunt'iny (mountain potatoes) and ?esghunsh (beartooth) in those areas too. Sammy taught me that this had been going on from generation to generation from the time of the ?esggidam (our ancestors) through his time. He taught me it was the ?esggidam who first made these trails when they were walking Tsilhqto'in nen (land) for hunting and gathering. Sammy taught me that this knowledge had come down to him from his grandmother Nancy.60

(d) Ms. William also averred as to the Tsilhqot’in at Gunn Valley –

My late husband's mother, Annie Bulyan, also taught me that ?Ena Tsel made some lhiz qwen yex (underground houses) at ?Ena Tsel Nadilin. That's why it's named that way. ?Ena Tsel Nadilin is over towards Dasiqox Biny (Taseko Lake). It's near Gex Gulin. I've been there with my late husband and family for hunting. My late husband's father, Sammy Bulyan, taught me that way back in the sadanx the ?esggidam (our ancestors) threatened the ?Ena Tsel there with war and forced them to leave ?Ena Tsel Nadlin. Sammy told me that his grandfather Sit'ax had passed this story down to him.61

34. Tsilhqot’in elder Francis Setah (b. 1929) is the grandson of ?Eweniwen (Johnny Setah) and Millie (Amelia) and the great-grandson of Sit’ax (Setah) and Nancy. Mr. Setah’s evidence, including oral history sourced to ?Eweniwen and in turn Sit’ax, also related to Tsilhqot’in land use of Ts’il?os (Mount Tatlow) and the mountains Claim Area of southeast Tsilhqox Biny (Chilko Lake):

(a) Mr. Setah identified the Tsilhqot’in trail he had traveled through west Ts’il?os (Mount Tatlow), starting in west Xeni (Nemiah Valley), south around Tsi Ch’ed Tl’ad were Ts’il?os come down to Tsilhqox Biny (Chilko Lake), east into the mountain through Nilhgwetizdi, up to the hunting base camp at Naghagantax, connecting north back to

59 Plaintiff’s Argument, Volume 3, at para. 1020. 60 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 70. 61 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 24.

16 Xeni. Mr. Setah testified that his grandfather ?Eweniwen (Johnny Setah) had used this trail and had taught him, based on oral history sourced to Sit’ax (Setah), the trail was one used by the ?esggdiams (Tsilhqot’in ancestors).62 Mr. Setah gave evidence as to his use of this area as a summertime deer hunting ground,63 that his grandfather ?Eweniwen had as well, and that such usage dates back to the time of the ?esggidams per the oral history of ?Eweniwen.64 Mr. Setah testified as to also hunting for mountain goat in the fall on west Ts’il?os around Tsi Ch’ed Tl’ad, Nilhqwetizdih and the hunting base camp at Naghagant’ax, Nilhgwetizdih, overlapping the summer deer hunting grounds noted above, and that west Ts’il?os had been a Tsilhqot’in mountain goat hunting ground since the time of the ?esggidams, per the oral history of his grandfather ?Eweniwen and sourced to his father Sit’ax.65 In addition, Mr. Setah testified as to a Tsilhqot’in trail on west Ts’il?os, running from essentially Naghagantax southeast down to Tl’echid Gunaz (Long Valley). Mr. Setah had traveled this trail, gave evidence that is grandfather ?Eweniwen had used this trail for deer hunting, and that this trail ran through a deer hunting ground used back since the time of the ?esggidams according to the oral history of ?Ewinewen sourced to Sit’ax.66

(b) Mr. Setah identified the Tsilhqot’in trail running from west Xeni (Nemiah Valley) and west Ts’il?os (Mount Tatlow) at Tsi Ch’ed Tlad south and up into west Tl’echid Gunaz (Long Valley) and then Yuhitah (Yohetta Valley) from Tsilhqox Biny (Chilko Lake).67 Mr. Setah gave evidence of his grandfather ?Eweniwen having taught him about this trail, his use of it and use of it by the ?esggidams.68 ?Eweniwen’s oral history was sourced to

62 Plaintiff’s Argument, Volume 3, at para. 924, Trail 39; Transcript, November 26, 2003, Francis Setah Direct- Exam, 00029, 40 – 00031, 15, 00033, 5 – 00036, 11; Transcript, December 2, 2003, Francis Setah Direct-Exam, 00018, 29 – 00019, 22; Exhibit 94DIG, ‘BD’. 63 Transcript, November 26, 2003, Francis Setah Direct-Exam, 00031, 15 – 00033, 4; Exhibit 93DIG, ‘BD 64 Plaintiff’s Argument, Appendix 3, para. 154; Transcript, November 26, 2003, Francis Setah Direct-Exam, 00029, 40 – 00030, 36, 00037, 38 – 47; Transcript, December 2, 2003, Francis Setah Direct-Exam, 00018, 29 – 00019, 22. 65 Transcript, December 2, 2003, Francis Setah Direct-Exam, 00017, 39 – 00026, 40; Exhibit 0095DIG, Francis Setah Digitized Map, polygons “CU”, “CV”, “CW”; Exhibit 0095LEG, Francis Setah Map Legend, polygons “CU”, “CV”, “CW”; Exhibit 0094DIG, Francis Setah Digitized Map, polygon “BE”; Exhibit 0094LEG, Francis Setah Digitized Map, polygon “BE”. 66 Transcript, November 26, 2003, Francis Setah Direct-Exam, 00037, 38 - 00039, 35; Exhibit 93DIG, ‘BG’. 67 Plaintiff’s Argument, Volume 3, at para. 924, Trail 45. 68 Transcript, November 25, 2003, Francis Setah Direct-Exam, 00032, 22 – 00033, 2;

17 his father Sit’ax, including the oral history that the trail was the basis for this area being used as Tsilhqot’in deer hunting grounds.69

(c) Mr. Setah also described hunting trips his grandfather ?Eweniwen (Johnny Setah) would take into Tsi Tese’an (Tchaikazan Valley) for hunting deer, mountain goat and mountain sheep, including for dried meat, and following an ancestral trail into the southern reaches of the valley for this purpose from a central base camp. Mr. Setah’s oral history evidence, sourced to his grandfather, was of ?Eweniwen, his father Sit’ax and the ?esggidams before them so using those upper elevations of Tsi Tese’an as hunting grounds.70 Mr. Setah has also traveled much of that route with ?Eskish (Captain George) while trapping marten and hunting mountain goat.71

(d) Further, Mr. Setah testified the Tsilhqot’in fall hunts for deer, goats and sheep in the mountains were during August through October.72 Mr. Setah explained that while hunting in the mountains during the fall Tsilhqot’ins would use drying racks called ?eniah (or tish) to dry meat for the winter, a technology that his grandmother Daldod taught him had been developed and handed down by the ?esggidam.73

(e) Mr. Setah testified about canoe trips he took from Xeni (Nemiah Valley) up Tsilhqox Biny (Chilko Lake) initially with his grandfather ?Eweniwen (Johnny Setah) out onto his trapline, explaining that ?Eweniwen would trap beaver at Tsilhqox Tu Tl’az during the spring and fall.74

69 Plaintiff’s Argument, Appendix 3, para. 154; Transcript, November 26, 2003, Francis Setah Direct-Exam, 00041, 27 – 00042, 26. 70 Plaintiff’s Argument, Appendix 3, para. 201; Transcript, December 2, 2003, Francis Setah Direct-Exam, 00005, 7 – 00007, 37 71 Transcript, December 2, 2003, Francis Setah Direct-Exam, 00007, 38 - 00011, 45. 72 Plaintiff’s Argument, Appendix 3, para. 202; Transcript, December 2, 2003, Francis Setah Direct-Exam, 00003, 24 – 00004, 10 73 Plaintiff’s Argument, Appendix 3, para. 187; Exhibit 0149, Sketch of ?Eniah (or Tish); Transcript, November 24, 2003, Francis Setah Direct-Exam, 00015, 29 – 00019, 1. 74 Plaintiff’s Argument, Appendix 3, para. 200; Transcript, December 4, 2003, Francis Setah Direct-Exam, 00001, 28 – 00002, 4; Exhibit 0096DIG, 0096LEG, Mapping Evidence of Francis Setah, ‘EE’, ‘FF’, ‘EH’.

18 (f) Mr. Setah gave substantial evidence on where and how Tsilhqot’ins exploit the resources they depend on within their territory, as taught to him by his grandparents, who in turn were taught by their parents and grandparents. This cultural knowledge has developed to the point that it includes teachings designed to ensure the long-term sustainability of Tsilhqot’in resource exploitation across generations: Mr. Setah has testified that they only hunt male deer in the summer because the females are pregnant at that time.75 Similarly, Tsilhqot’ins have learned to only harvest sunt’iny (mountain potatoes) after they reach a certain size.76 This demonstrates a long view held by a people that have developed an intimate knowledge of their environment and have learned to sustain it.

(g) Mr. Setah also testified as to oral history from his grandmother Daldod (Mary Ann), sourced to her father the Tsilhqot’in warrior Kahkul, that in the time of the ?esggidams (Tsilhqot’in ancestors) the Tsilhqot’in killed off the ?Ena Tsel staying at ?Ena Ch’ez Nadilin of Gunn Valley. Per the oral history of his grandfather ?Eweniwen, the ?esggidams stayed in camps at ?Ena Tsel Nadilin.77

35. Tsilhqot’in elder Martin Quilt (b. 1939) is the grandson of Sammy and Annie William (a.k.a. Bulyan) and the great-great-grandson of Sit’ax (Setah) and Nancy.78 Mr. Quilt’s evidence, including oral history sourced to his grandfather, Sammy William, also related to Tsilhqot’in land use of the mountainous Claim Area surrounding Tsilhqox Biny (Chilko Lake) south of Xeni (Nemiah Valley):

(a) Martin Quilt identified the mountainous lands south of Xeni, including west Ts’il?os (Mount Tatlow) and the higher elevations of the Tl’ech’id Gunaz (Long Valley), Yuhitah (Yohetta Valley), Ts’i Talhl?ad (Rainbow Creek) and Tsi Tese?an (Tchaikazan Valley) watersheds as Tsilhqot’in mountain goat hunting grounds, particularly for the Xeni

75 Plaintiff’s Argument, Volume 3, para. 1071; Transcript, December 1, 2003, Francis Setah Direct-Exam, 00004, 43 – 00005, 14. 76 Transcript, November 20, 2003, Francis Setah Direct-Exam, 00034, 6-15; 00036, 5-41. 77 Transcript, November 27, 2003, Francis Setah Direct-Exam, 00030, 28 to 00032, 8, 00028, 13 to 45. 78 Exhibit 0441, Dewhirst Report, September 2004, vol. 2, app. E(1)(9).

19 Gwet’in.79 He testified that these areas had been used by himself, his grandfather Sammy William as well as the Tsilhqot’ins Danny William, Eugene William, Andy George, Otto George, Little George Setah, Mariah William and Christine Lulua.80 Mr. Quilt explained that Tsilhqot’ins, including from the Stone and Toosey communities, had used these mountain goat hunting grounds through the centuries according to stories told to him by Tsilhqot’in elders, and included trails that had been made into horse trails.81 The Tsilhqot’in carried on these hunts in the fall as “[t]hat’s when the goats are in good shape. Nice and fat.”82

(b) Mr. Quilt also identified as Tsilhqot’in deer hunting grounds the lands south of Xeni (Nemiah Valley) on southeast Tsilhqox Biny (Chilko Lake), including west Ts’il?os (Mount Tatlow) and the relevant portions of the Tl’ech’id Gunaz (Long Valley), Yuhitah (Yohetta), Ts’i Talhl?ad (Rainbow Creek) and Tsi Tese?an (Tchaikazan Valley) watersheds. Male deer arrive in these mountains around July, and these hunting grounds were exploited from established base camps every summer and fall for meat, including dry meat for winter, dating back to when the Tsilhqot’in traveled on foot prior to obtaining horses, based on the oral history taught to him by his father.83

36. In addition, other Tsilhqot’in witnesses descendant of Sit’ax and Nancy, either through the lineage of their son ?Eweniwen (Johnny Setah) or daughter Sabatsakai (who begat Sammy William), testified as to the regular Tsilhqot’in use of the mountains around and to the south of Ts’il?os, including the ancestral Tsilhqot’in trails that connect the valleys of Tl’ech’id Gunaz (Long Meadow), Yuhitah (Yohetta Valley) and Tsi Tese?an (Tchaikazan Valley):

79 Plaintiff’s Argument, Volume 3, at para. 1032(c); Plaintiff’s Argument, Appendix 3, at paras. 199, 201, 202; Transcript, July 25, 2002, Martin Quilt Direct-Exam, 790, 3 – 793, 14; Exhibit 0003DIG, Martin Quilt Digitized Map, polygon “J1”; Exhibit 0003LEG, Martin Quilt Digitized Map Legend, polygon “J1”. 80 Transcript, July 25, 2002, Martin Quilt Direct-Exam, 794, 3 – 802, 2. 81 Transcript, July 25, 2002, Martin Quilt Direct-Exam, 802, 3 – 804, 1; 805,15 – 808, 13; Transcript, July 26, 2002, Martin Quilt Direct-Exam, 812, 12-25. 82 Transcript, July 25, 2002, Martin Quilt Direct-Exam, 812, 12 to 814, 12. 83 Transcript, July 26, 2002, Martin Quilt Direct-Exam, 829, 23 to 837, 21; Exhibit 0003DIG, Martin Quilt Digitized Map, polygon “L1”; Exhibit 0003LEG, Martin Quilt Digitized Map Legend, polygon “L1”.

20 (a) In his testimony, Mr. Harry Setah, Ts’il?os Park Ranger, described learning and traveling a trail network with William Setah from Xeni through Tl’ech’id Gunaz (Long Meadow), Yuhitah (Yohetta) and Ts’i Talhl?ad (Rainbow Creek) watersheds, connecting via Spectrum Pass to the trail through Tsi Tese?an (Tchaikazan) watershed. Mr. Setah’s evidence is that he was taught this trail network was developed and used by the ?esggidams according to oral history taught to him by William Setah and Sammy William (a.k.a. Bulyan).84 Elder Joseph William averred that he was taught of the trails through the mountains, e.g. through Yuhitah (Yohetta), Spectrum Pass and Tsi Tese?and (Tchaikazan), by his father, who also told him that his grandparents, Sammy and Annie William (a.k.a. Bulyan), Seymour, John Baptiste also used these trails.85

(c) Elder Francis William identified Ts’il?os as a Tsilhqot’in hunting ground since the sadanx and testified that he had hunted all around Ts’il?os for deer and mountain goat. Mr. William also identified other Tsilhqot’ins who hunted there, including Andy George, Captain George, Lebusden, Johnny Setah, and Mabel and Henry Solomon.86 Mr. Harry Setah testified that he and his family have often hunted deer around Ts’il?os.87 Elder Joseph William averred that he has been up hunting at Ts’il?os many times and has hunted deer in that area with his grandfather, Sam Bulyan.88 In his testimony, Councilor David Setah identified deer migration routes in the mountains around Ts’il?os and described hunting in this area with his father.89 Elder Norman George Setah testified that

84 Plaintiff’s Argument, Volume 3, para. 924, trails 46-49; Transcript, October 14, 2004, Harry Setah Direct-Exam, 00020, 15 to 00022, 11; 00026, 30 to 00028, 23; 00029, 27 to 00030, 27; 00041, 41 to 00042, 38; Exhibit 0180DIG, Harry Setah Digitized Map, trails “CD”, “CE”, “CG”; Exhibit 0180LEG, Harry Setah Map Legend, trails “CD”, “CE”, “CG”. 85 Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 53. 86 Transcript, May 25, 2004, Francis William Direct-Exam, 00016, 24 to 00018, 5. 87 Transcript, October 12, 2004, Harry Setah Direct-Exam, 00031, 22 to 00032, 30; Exhibit 0179DIG, Harry Setah Digitized Map, polygon “D”; Exhibit 0179LEG, Harry Setah Map Legend, polygon “D”. 88 Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, paras. 98-100. 89 Transcript, January 18, 2005, David Setah Direct-Exam, 00048, 20 to 00049, 40.

21 he had hunted mountain goat, groundhog and deer with ?Eweniwen around Ts’il?os.90 Mr. Setah also identified this area as sheep hunting grounds.91

(d) Elder Norman George Setah identified Tl’ech’id Gunaz (Long Meadow) as deer, sheep, goat and marmot hunting grounds that his great-grandfather ?Eweniwen (Johnny Setah) taught him have been regularly by Tsilhqot’ins dating back to the time of the ancestors, and including such use by ?Eweniwen, Lebusden, Sammy William (a.k.a. Bulyan) and his children (Eugene, Francis, Danny and Qitl’axan (Jimmy William)), ?Est’anchis, Beqi Ts’et’an, as well as Norman George Setah himself and his father, Willie Setah.92 Former Councilor Gilbert Solomon averred that his family has harvested sunt’iny (mountain potato) and beartooth in Tl’ech’id Gunaz (Long Meadow) almost every summer since as far back as he can remember.93

(e) Chief Roger William testified that his grandmother Annie William (a.k.a. Bulyan) had taught him that Sammy William (Bulyan) also hunted through Yuhitah (Yohetta).94 Councilor David Setah, grandson of Sammy and Annie William, testified that his family hunts in Yuhitah during the summer.95 Mr. Lloyd Myers averred that he hunts in Yuhitah each year and has always seen other Tsilhqot’ins there, including Rocky Quilt, Alex Lulua, Larry Quilt, Wilfred Williams, James Lulua and Denis Lulua.96 Mr. Myers further averred that he was taught by his parents, who also hunted there, that Tsilhqot’ins have been going into Yuhitah to camp, hunt, and gather roots and berries since the time of the

90 Transcript, November 4, 2004, Norman George Setah Direct-Exam, 00057, 8-21; Exhibit 0212DIG, Norman George Setah Digitized Map, polygon “FU”; Exhibit 0212LEG, Norman George Setah Digitized Map Legend, polygon “FU”. 91 Transcript, November 30, 2004, Norman George Setah Direct-Exam, 00041, 43 – 00042, 36; Exhibit 0217DIG, Norman George Setah Digitized Map, polygon “JR”; Exhibit 0217LEG, Norman George Setah Digitized Map Legend, polygon “JR”. 92 Plaintiff’s Argument, Appendix 3, para. 201; Transcript, November 30, 2004, Norman George Setah Digitized Map, 00026, 8 – 00027, 28. 93 Exhibit 0367, Affidavit #2 of Gilbert Solomon, January 19, 2005, para. 50. 94 Transcript, September 25, 2003, Roger William Direct-Exam, 00013, 32-41. 95 Plaintiff’s Argument, Appendix 3, para. 202; Transcript, January 18, 2005, David Setah Direct-Exam, 00053, 39 – 00054, 47. 96 Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, para. 49.

22 ?esggidams.97 Mr. Myers averred that the late Willie Setah had also told him that he went into Yuhitah to hunt a lot.98

(f) Councilor David Setah, son of the late William Setah and Madelaine Setah (nee William, Bulyan), identified Tsi Tese?an (Tchaikazan) as summer hunting grounds used by his family.99 This watershed has been used by generations of Tsilhqot’ins as Chief Roger William testified that his grandmother Annie William (Bulyan) had taught him that Sam William (Bulyan) hunted in Tsi Tese?an.100

(g) Elder Norman George Setah testified that his father Willie Setah, his great-grandfather ?Eweniwen (Johnny Setah) and Sam William (Bulyan) used the area of Tsilhqox Tu Tl’az repeatedly.101 Mr. Setah was taught by elders that have used that area, including ?Eweniwen, Sam William, his brother Lebusden, Chief Lashway Lulua and his father Hadediny (Jack Lulua), that Tsilhqot’ins have been camping and hunting deer, cougar and marten at Tsilhqox Tu Tl’az since the time of the ?esggidams (ancestors).102

37. Anthropologist John Dewhirst’s genealogical research linking modern extended families to the Claim Area lands also included the George family descendant of Chief ?Achig, the successor to Chief Nemiah, and his wife Tsoulout.103 According to Dewhirst:

Use and occupancy of the Claim Area continued after Chief ?Achig through his second son Captain George (ca. 1883-1974), and in turn through Captain George’s son, Andy George (1906-1990), who were both members of the Nemiah Valley Indian Band (…). … In my opinion, based on the evidence discussed …, archival documents and oral history show that the customary use area of the Xeni Gwet’in George family is in

97 Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, para. 47-48. 98 Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, para. 48. 99 Plaintiff’s Argument, Appendix 3, para. 202; Transcript, January 18, 2005, David Setah Direct-Exam, 00053, 39 – 00054, 47. 100 Transcript, September 25, 2003, Roger William Direct-Exam, 00013, 32-41. 101 Plaintiff’s Argument, Appendix 3, para. 200; Transcript, November 18, 2004, Norman George Setah Direct- Exam, 00005, 8 – 00007, 2. 102 Plaintiff’s Argument, Appendix 3, para. 200; Transcript, November 18, 2004, Norman George Setah Direct- Exam, 00009, 47 – 00010, 27; 00020, 18-33; 00023, 7-24; Exhibit 0214DIG, Norman George Setah Digitized Map, polygon “HF”, “HK”; Exhibit 0214LEG, Norman George Setah Digitized Map Legend, polygon “HF”, “HK”. 103 Exhibit 0443, Expert Report of John Dewhirst, at paras. 343, 344-352.

23 the Claim Area, specifically …., the Taseko Lakes area, as well as the Nemiah Valley. Considering ?Achig was born ca. 1863, his parents were born no later than ca. 1843, and possibly earlier. Considering that customary use areas are held by families from generation to generation, ?Achig parents and grandparents also likely occupied and used the customary use area and other parts of the Claim Area before and after 1843.104

38. The late Tsilhqot’in elder Ubill Hunlin (c. 1929-2005) was the widower of the late Amelia Hunlin (nee George) (c. 1925-2004), daughter of Tselxex (Andy George), granddaughter of ?Eskish (Captain George), and great-granddaughter of Chief ?Achig and Tsolouout. 105 Mr. Hunlin was Tsilhqot’in originally from the Tsi Del Del (Alexis Creek) community, though upon marriage to his wife Amelia (m. approx. 1959) he moved to Xeni where they started a family and lived with ?Eskish (Captain George). 106 Mr. Hunlin testified in this case just before he passed away and gave evidence, including oral history evidence from his wife’s grandfather ?Eskish (Captain George), relating to Tsilhqot’in land use of Ts’il?os (Mount Tatlow) and the mountainous lands to the south:

(a) Mr. Hunlin identified Ts’il?os (Mount Tatlow) as mountain goat hunting grounds he used every fall.107 Mr. Hunlin hunted in this area with his grandfather in law ?Eskish (Captain George), his father-in-law Tselxex (Andy George), his son Tory and William Setah, and also learned from ?Eskish that Tsilhqot’ins had been hunting mountain goats in this area regularly since the time of the ?esggidams.108 Mr. Hunlin also hunted marmot each fall around Ts’il?os with ?Eskish, Tselxex and his own son Tory, which Tsilhqot’ins have been doing since the ?esggidams according to oral history taught to him by ?Eskish.109

(b) Mr. Hunlin testified that ?Eskish (Captain George) hunted mountain goats and marmot in Yuhitah (Yohetta Valley) and Tsi Tese?an (Tchaikazan Valley), and who also taught him

104 Exhibit 0443, Expert Report of John Dewhirst, at paras. 347, 352. 105 Exhibit 0441, Expert Report of John Dewhirst, September 2004, at 37, chart 6; Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, 00012, 25-31; Transcript, April 5, 2005, Gilbert Solomon Direct-Exam, at 00017, 1-14. 106 Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, 00012, 25-34. 107 Plaintiff’s Argument, Appendix 3, at para. 202; Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, 00031, 14 – 00032, 22. 108 Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, 00033, 7 – 00034, 46; 00047, 45 – 00048, 15. 109 Transcript, March 8, 2005, Ubill Hunlin Direct-Exam, 00004, 16 – 00011, 15.

24 that Tsilhqot’ins have been so using these lands every fall since the time of the ?esggidams.110

(c) Mr. Hunlin testified that he had traveled up the eastern shore of Tsilhqox Biny (Chilko Lake) towards Tsilhqox Tu Tl’az – i.e. to the lakeside mountains about Ts’i Talhl?ad (Rainbow Creek) - with ?Eskish (Captain George), who was teaching him that the Tsilhqot’in, including ?Eskish during his life, had regularly hunted mountain goats through this area since the time of the ?esggidams.111 Mr. Hunlin was taught by ?Eskish that the ancestors would go on foot into the area and also travel up Tsilhqox Biny towards Tu Tl’az in spruce bark canoes, as ?Eskish himself had done with his grandfather before Mr. Hunlin’s time.112

(d) Mr. Hunlin described seeing ts’ah ?ets’edilhyah (pine windbreaker) while on the trip to Tsilhqox Tu Tl’az looking for mountain goats with ?Eskish (Captain George), who taught him that it was a traditional Tsilhqot’in shelter that he and his grandfather would use while on hunting trips.113

39. Notably, anthropologist John Dewhirst’s genealogical research linking Tsilhqot’in families to the Claim Area includes the family of Kanim,114 born ca. 1850 and a Chief, per Marcus Smith (1872), of the “Stone Indians” “[f]rom to the Coast and eastward to near Lillooet.” Kanim is the namesake of Gunn Valley between Chilko Lake and Taseko Lake, and the father of Chief Sil Kanim (ca. 1870/1876-1932) of the Xeni Gwet’in who kept a cabin there. Chief Sil Kanim and his ?Et’utsiny (Jeanie), daughter of the Tsilhqot’in warrior Joz from Biny Gwechugh (Canoe Crossing), had but one daughter. Regarding Kanim and his descendants, Dewhirst concluded:

110 Plaintiff’s Argument, Appendix 3, at para. 201; Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, 00046, 24 – 00047, 44. 111 Plaintiff’s Argument, Appendix, at para. 200; Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, 00043, 20 – 00044, 47. 112 Plaintiff’s Argument, Appendix, at para. 200; Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, 00045, 1 – 00046, 23. 113 Plaintiff’s Argument, Appendix, at paras, 126, 200; Transcript, March 14, 2005, Ubill Hunlin Direct-Exam, 00005, 40 – 00006, 42. 114 Exhibit 0443, Expert Report of John Dewhirst, at paras. 376-395.

25 Archival documents and oral history (par. 384-387) demonstrate that Kanim used and occupied the Claim Area in his lifetime. Seal Canim and his family continued to use and occupy the Claim Area. In my opinion, the customary use area of Kanim and his descendants was in the Nemiah Valley and in the mountains to the southeast to near Lillooet. Given the Tsilhqot'in cultural pattern of traditional family use areas, Kanim's parents, born ca. 1830, must have used the Claim Area before and after 1846. Kanim, as chief, and his parents must have had deep roots in the Stone Indian community and strong ties to the Claim Area.115

40. Anthropologist John Dewhirst’s genealogical research linking modern extended families to the Claim Area lands includes the family of Kanim, born ca. 1850 and a Chief, per Marcus Smith (1872), of the “Stone Indians” “[f]rom Tatla Lake to the Coast and eastward to near Lillooet.” 116 and father of Seal (Sil) Canim, Chief of the “Nemiah Valley Indians.” (born c. 1870 and 1876).117 c. Additional Expert Opinion and Ethnohistorical Work

41. Dr. Brealey’s opinion corroborates the oral history evidence:118

(a) His evidence confirms from the historical record that the Tsilhqot’in trail network through Tl’echid Gunaz (Long Valley) and Yuhitah (Yohetta Valley), is of pre-contact origin.119 In addition, Dr. Brealey noted that the Euro-Canadian record of Tsilhqot’in trails is far from exhaustive, and stated “there would have been countless subsidiary trials, routes, creeks or portages that would have been used by Tsilhqot’ins.”120

(b) Dr. Brealey noted the work of federally employed anthropologist and archaeologist Dr. Martin Magne (1984) as identifying a great density of roasting, cache and house pits at east Yohetta Valley, thus suggesting that the valley “was an exceedingly important hunting, gathering and freshwater fishing area for the Stone Chilcotin.”121 Based on Magne’s work, Dr. Ken Brealey mapped the lands surrounding southeast Chilko Lake, of

115 Exhibit 0443, Expert Report of John Dewhirst, at para. 395. 116 Exhibit 0443, Expert Report of John Dewhirst, at paras. 376-395. 117 Exhibit 443, Expert Report of John Dewhirst, para 384 118 Plaintiff’s Argument, Volume 3, at para. 1019. 119 Plaintiff’s Argument, Volume 3, at para. 923, Trail Sections 16, 18, 21. 120 Plaintiff’s Argument, Volume 3, at para. 914. 121 Exhibit 0240, Expert Report of Ken Brealey, at 78.

26 west Mount Tatlow and the watersheds of Long Valley, Yohetta Valley, Rainbow Creek, Edmonds Creek and Tchaikazan Valley, as Tsilhqot’in hunting and gathering grounds from pre-contact times through the smallpox onset in 1862. Dr. Brealey mapped these patterns of land use and occupancy as largely continuing through into the post reserve creation period of the 20th century.122

(c) Dr. Brealey depicted the southern border of Tsilhqot’in territory as encompassing the lands surrounding Chilko Lake.123 Dr. Brealey opined with respect to Tsilhqot’in territory that “[o]n the southern… frontier, where a greater physiographic relief created a stronger ‘sense of place’, and where groups on the other side of the watershed divide dealt with quite different resource bases and were from altogether different language families, there was much less” “’Tsilhqot’in tolerance’ to territorial encroachments…”124

(e) Further, Dr. Brealey described the Tsilhqot’in resource exploitation patterns thusly: “the Tsilhqot’in would follow the melting snowline into the higher country and by early summer would be hunting, and gathering blossoms and roots on mountain slopes”;125 “[i]n early fall they would return the high country to hunt big game and gather berries, and as winter approached, moved back to their wintering grounds…”126

42. The particular expert evidence regarding plant use is also corroborative. Dr. Turner concluded that “the Tsilhqot’in have repetitively used and occupied sites in the Claim Area such as … Chilco Lake and the Nemiah Valley for the purposes of gathering and managing plant resources critical to their survival.”127 Further, that they have done so in sustainable manner, maintaining and increasing abundance by disseminating plant stems and burning over areas from time to time.128 In the words of Dr. Dinwoodie, “they maintained an institutionalized schedule

122 Exhibit 0246, Expert Report of Ken Brealey, Land Use and Occupancy Map, October 2003. 123 Exhibit 0241, Brealey Map, Chilcotin Boundaries; Exhibit 0240, at 12. 124 Exhibit 0240, Expert Report of Ken Brealey, at 20. 125 Plaintiff’s Argument, Volume 3, at para. 1031. 126 Plaintiff’s Argument, Volume 3, at para. 1031. 127 Plaintiff’s Argument, Appendix 3, at para. 153; Exhibit 0205, Expert Report of Dr. Nancy Turner, at 4. 128 Plaintiff’s Argument, Volume 3, at para. 1017; Exhibit 0205, Expert Report of Dr. Nancy Turner, at 2, 5, 4; Transcript, November 17, 2004, Dr. Nancy Turner Direct-Exam, 0006, 23 to 00067, 29; 00070, 28 to 46; Transcript, November 19, 2004, Dr. Nancy Turner Direct-Exam, 00041, 44 to 00042, 13.

27 of use centred on (proto-agricultural) root-harvest.”129 In this regard, it is noteworthy that Dr. Lane (1953) recorded that the Tsilhqot’in harvested “mountain carrots” and “mountain potatoes” in considerable quantities in the mountains.130

43. The doctoral work of anthropologist Robert Tyhurst (1984) is corroborative. In particular, Tyhurst stated:

In the recent past (1900-1950), fur trapping parties from Stone and Nemaiah have ranged as far south as Lord River, at the extreme southern end of Taseko Lake; and from Nemaiah and , as far south as Franklyn Arm on Chilko Lake, and the mountains and river valleys to the immediate north of Bute Inlet. This mountainous territory, which extends northwest from the Bridge River- Lillooet area, through Chilko Lake to the Dean River, and which contains the highest mountains in the Ranges, was, at the time of contact, an important summer hunting range and food plant gathering area for the Chilcotin population.

Chilcotin hunters in earlier times (1800-1900) traversed the same territory, with trapping of beaver, fox, coyote, marten, fisher, and lynx, as an important subsidiary activity.467 The hunters were accompanied by women and children, who stayed at base camps, digging and drying edible roots and medicinal plants, fishing for trout, suckers and whitefish, trapping muskrat and rabbits, and drying fish and meat, while the trappers or hunters ranged further afield (Tyhurst, fieldnotes.)131 [Emphasis added.]

d. General Points

44. The entire body of evidence discussed above regarding Ts’il?os (Mount Tatlow) and the Tl’echid Gunaz (Long Valley), Yuhitah (Yohetta Valley), Ts’i Talhl?ad (Rainbow Creek), Tsi Tese?an (Tchaikazan Valley) and Tsilhqox Tu Tl’az (Edmond Creek) watersheds is consistent with the previously discussed Tsilhqot’in system of occupation through regular use of lands for resource exploitation:

129 Plaintiff’s Argument, Volume 3, at paras. 975, 1017. 130 Plaintiff’s Argument, Appendix 3, at para. 140. 131 Plaintiff’s Argument, Appendix 3, para. 136.

28 (a) The Tsilhqot’in yearly schedule of land use dating pre-1846 detailed by anthropologist Robert Tyhurst (1984), based in part on Lane (1953), identifies - mountain goat, mountain sheep and marmot hunting starting around June, intensifying for July through October, and dissipating in November; deer hunting intensely June through October; mountain root harvests of spring beauty (i.e. ‘mountain potato’) and lilies (e.g avalanche lily or ‘mountain carrots’ / ‘beartooth’) in June, July and early August; and bear procurement ongoing through the summer and fall.132 Indeed, Tyhurst expressly wrote, “[t]he traditional Chilcoten yearly cycle of activities was governed by two events; the late summer and fall hunts, and the later summer salmon runs.”133 [emphasis added]

(b) Consistent with the evidence of Dr. Dinwoodie,134 the land uses identified exploit seasonal variations in local resource abundance. In early summer, these mountains bloom with the snow’s retreat as plants such as the spring beauty and avalanche lily mature. Migratory deer arrive to join animals such as marmots, mountain goats, mountain sheep and bear in nourishing themselves post winter and spring.135 In fall, mountain goats, mountain sheep, marmots and marten busy themselves in fortifying for winters’ early onset. Migratory deer move down the mountains, ready themselves for winter and eventually migrate out to lower elevations. Bears prepare to hibernate. There is a seasonal abundance of meat on these bones, fur on these hides and fat on these bodies. Days are long and dry, nights are cool. Snow and ice have receded to their minimums.136

(c) In accordance with the evidence of anthropologist John Dewhirst, summer prior to salmon harvesting involves social movement into the mountains for root digging and hunting. Post salmon time, in fall, there is a social dispersal to the mountains for marmots and “hunting big game” until “[a]t seasons end, move to wintering sites on

132 Plaintiff’s Argument, Volume 3, at para. 974; Exhibit 0177, Tyhurst, July 1984 Report, at 52, 53. 133 Plaintiff’s Argument, Volume 3, at para. 1030. 134 Plaintiff’s Argument, Volume 3, at para. 987. 135 Plaintiff’s Argument, Volume 3, at para. 1016. 136 Plaintiff’s Argument, Volume 3, at para. 1027.

29 lakes and rivers.” Moreover, “a key aspect of each family’s seasonal round was its regular visits to the same main resource gathering areas year after year.”137

45. To appreciate the significance of this systematic Tsilhqot’in use of the lands at issue, it is important to remember the material resources taken therefrom were used for critical fur or hide based clothing, bedding, packs and trade products, as well as fresh meats and a winter supply of dried meats:138

(a) Furs obtained during fall hunting trips were used to make the clothing Tsilhqot’ins required to survive the winter. Dr. Lane described the basic Tsilhqot’in clothing as including fur robes and an apron, usually of buckskin, worn over top of leggings.139 This is corroborated by McDougall, who describes an encounter with Tsilhqot’ins clad in leggings in 1822,140 and Father Nobili, who described Tsilhqot’in women wearing wraps in 1845.141 Numerous Tsilhqot’in elders have also given evidence on this: Mabel William averred that her grandmother, Hanlhdzany, had taught her that since the time of the ?esggidams Tsilhqot’ins would hunt deer, mountain goat or mountain sheep in the fall when their fur was the longest and use their hides as clothing, wrapping them around their waste like a skirt or apron.142 Elizabeth Jeff had also learned from her grandmother that Tsilhqot’ins had been using hides as skirts and aprons since the time of the ?esggidams.143 Ubill Hunlin testified that Captain George had taught him that Tsilhqot’ins had been using hides of animals such as mountain sheep as wraps since the time of the ?esggidams.144 Francis Setah instructed an artist to draw examples of the types of wraps that his grandmother Daldod taught him Tsilhqot’ins had been making

137 Plaintiff’s Argument, Volume 3, at paras. 976. 138 Plaintiff’s Appendix 3, at pp. 17, 22, 26 and 58. 139 Plaintiff’s Argument, Appendix 3, at paras. 37, 188; Exhibit 0175, Lane Dissertation, 1953, at 47. 140 Plaintiff’s Argument, Appendix 3, at para. 40; Exhibit 0156-1822/01/18.001, letter from George McDougall, at 6. 141 Plaintiff’s Argument, Appendix 3, at para. 40; Exhibit 0156-1845/11/30.001, Father Nobili’s Letters, at 2195801. 142 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 75 143 Exhibit 0432, Affidavit #2 of Elizabeth Jeff, November 13, 2004, at para. 28. 144 Transcript, March 8, 2005, Ubill Hunlin Direct-Exam, 00024, 25 – 00025, 15.

30 with deer, goat and sheep hides since the time of the ?esggidams.145 Mr. Setah explained that Tsilhqot’ins would also make footwear from the hides of deer, sheep and goats.146

(b) Tsilhqot’in elders have also given evidence regarding the traditional use of hides including mountain goat, mountain sheep, deer and marmot to make bedding.147 Mabel William averred that her grandmother, Hanlhdzany, taught her that Tsilhqot’ins had been making blankets from the hides of the deer, mountain goat, mountain sheep and marmots that they hunted in the fall since the time of the ?esggidams.148 Francis Setah testified that his grandmother, Daldod, taught him that the Tsilhqot’ins also use the deer, sheep and goat hides as blankets and mattresses since the time of the ?esggidams.149 Ubill Hunlin testified that Captain George made blankets out of marmot skins and taught Mr. Hunlin that Tsilhqot’ins had been doing this since the time of the ?esggidams; he described using them while hunting with Captain George in the mountains in the fall.150 Mr. Hunlin also testified that his father-in-law, Andy George, also had a marmot blanket.151 Francis Setah gave instructions to an artist to draw a marmot blanket like the one used by Captain George.152 Norman George Setah testified that he was taught by ?Eweniwen that his ancestors had hunted in the mountains around Tsilhqox Biny (Chilko Lake) for marmot, bear, mountain goat and sheep and use the hides to make mattresses and blankets.153 Elizabeth Jeff averred that her grandmother Elaine taught her that Tsilhqot’ins had been making mattresses from the hides of animals including deer, mountain goat, mountain sheep and caribou since the time of the ?esggidams.154

145 Transcript, November 19, 2003, Francis Setah Direct-Exam, 00021, 47 – 00025, 4; Exhibits 0058 – 0060, drawings of traditional Tsilhqot’in clothing; Transcript, December 2, 2003, Francis Setah Direct-Exam, 00001, 37 – 00002, 2. 146 Transcript, December 1, 2003, Francis Setah Direct-Exam, 00032, 12-29; Exhibit 0057, drawing of traditional Tsilhqot’in footwear. 147 Plaintiff’s Argument, Appendix 3, at paras. 31, 34, 188; 148 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 76. 149 Transcript, December 1, 2003, Francis Setah Direct-Exam, 00031, 34 – 00032, 18. 150 Plaintiff’s Argument, Appendix 3, at para. 31; Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, 00042, 41 – 00043, 45; Transcript, March 8, 2005, Ubill Hunlin Direct-Exam, 00003, 7-9; 00008, 20-25. 151 Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, 00048, 16-29. 152 Transcript, December 4, 2003, Francis Setah Direct-Exam, 00003, 18 – 00004, 12; Exhibit 0087, drawing of traditional Tsilhqot’in blanket. 153 Transcript, November 18, 2004, Norman George Setah Direct-Exam, 00030, 8-34. 154 Exhibit 0432, Affidavit #2 of Elizabeth Jeff, November 13, 2004, at para. 26.

31 (c) Francis Setah testified that his grandmother Daldod taught him that his ancestors would roll up the deer, goat and sheep hide mattresses and also use them as packs to carry the dried meat from the animals.155 Mabel William averred that she had been taught by her grandmother Hanlhdzany that since the time of the ?esggidams the hide mattresses and blankets had also traditionally been used as packs to carry dried meat and belongings back to winter residences.156 Elizabeth Jeff averred that her grandmother Elaine had taught her that before they had horses Tsilhqot’ins would pack their belongings in rolled up animal hides.157

(d) The resources obtained by the Tsilhqot’in during their seasonal land use activities were also traded to obtain additional resources not naturally available within their territory. Robert Tyhurst described a pre-contact Tsilhqot’in economy in which trade in furs and clothing with the Bella Coola and Canyon Shuswap were a significant element.158 Dr. Nancy Turner opined that the Tsilhqot’in also likely traded plants with other First Nations prior to the 1800s.159 Norman George Setah testified that he had been taught by ?Eweniwen, ?Esk’ish, and Hadediny that Tsilhqot’ins had been trading animal hides, as well as the clothes and blankets made from them, with the coastal Bella Coola for fish oil.160 Mr. Setah also described trading with the Lillooet and shared oral history he had learned from ?Eweniwen, Lebusden, Louie Quilt, and his grandfather Alec, that Tsilhqot’ins since the time of the ?esggidams had been traveling to Lillooet, first on foot then later on horse, to trade hides and meat from mountain animals for salmon and other products.161 Elder Julie Quilt testified that her grandmother ?Est’ansh and her parents

155 Plaintiff’s Argument, Appendix 3, at para. 189; December 1, 2003, Francis Setah Direct-Exam, 00031, 34 – 00032, 29; Transcript, December 2, 2003, Francis Setah Direct-Exam, 00002, 24 – 00003, 21; Exhibit 0056, drawing of Tsilhqot’in animal hide pack. 156 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 77. 157 Exhibit 0432, Affidavit #2 of Elizabeth Jeff, November 13, 2004, at para. 30. 158 Exhibit 0177, Tyhurst Draft Dissertation, July 1984, at 25. 159 Plaintiff’s Argument, Volume 2, at para. 683, Table showing species and products traded with Aboriginal Groups and Europeans; Exhibit 0205, Turner Report, August 2004, at 8. 160 Plaintiff’s Argument, Volume 2, at para. 678, Table showing species and products traded with Aboriginal Groups and Europeans; Transcript, November 18, 2004, Norman George Setah Direct-Exam, 00030, 8 – 00032, 29. 161 Plaintiff’s Argument, Volume 2, at para. 679, Table showing species and products traded with Aboriginal Groups and Europeans; Transcript, December 1, 2004, Norman George Setah Direct-Exam, 00002, 1 – 00003, 21.

32 taught her that Tsilhqot’ins since the time of the ?esggidams have been going to Lillooet to trade the dry meat and hides they got from hunting in the mountains.162

(e) As well as fulfilling the critical end-uses described above, the meat obtained from fall hunting and fishing are an essential resource for winter survival. Anthropology on this topic describes dried food storage caches, as noted by Dr. Lane,163 Robert Tyhurst164 and Morley Eldridge.165 Tsilhqot’in elders have given evidence on how dried food was stored for the winter.166 Martin Quilt explained how Tsilhqot’ins traditionally dried meat obtained during the fall hunts to use during the winter.167 Elder Elizabeth Jeff averred that she was taught by her grandmother Elaine how Tsilhqot’ins used to store meat, fish and plants in pit caches between layers of bark for use during the winter.168 Elder Francis Setah outlined how the meat drying process on the ?eniah (or tish) in the mountains during fall hunts.169

46. Further, the lands in question are part of Ts’il?os Provincial Park. In terms of the significance that the lands in question have to Tsilhqot’in culture, broadly understood, British Columbia’s Ts’il?os Provincial Park signage speaks volumes:

Ts’il?os Park is part of the spiritual and economic homeland of the people of the Nemiah Valley – the Xeni gwet’in (pronounce honey-gwe-teen) – who are one of six Tsilhqot’in bands. …

…

… They are … part of the land that surrounds them and part of its destiny. Stories told by the elders keep their history, language and culture alive and the

162 Plaintiff’s Argument, Volume 2, at para. 677, Table showing species and products traded with Aboriginal Groups and Europeans; Transcript, November 5, 2004, Julie Quilt Direct-Exam, 00020, 15 – 00021, 34. 163 Exhibit 0175, Lane Dissertation, 1953, at 45. 164 Exhibit 0177, Robert Tyhurst Draft Ph.D Dissertation, July 1984, at 50. 165 Transcript, May 25, 2006, Morley Eldridge Cross Examination, 00049, 9-17. 166 Plaintiff’s Argument, Appendix 3, at para. 115. 167 Transcript, July 25, 2002, Martin Quilt Direct-Exam, 814, 1 – 816, 8. 168 Exhibit 0432, Affidavit #2 of Elizabeth Jeff, November 13, 2004, at paras. 13-15 169 Plaintiff’s Argument, Appendix 3, para. 187; Exhibit 0149, Sketch of ?Eniah (or Tish); Transcript, November 24, 2003, Francis Setah Direct-Exam, 00015, 29 – 00019, 1.

33 Tsihqot’in language is one of the best preserved native languages in British Columbia.170

47. Furthermore, the oral history, ethnographic record and expert evidence regarding ancient Tsilhqot’in creation narratives or legends, the oral history having been largely told by elders who speak only the Tsilhqot’in language, indicate that the Tsilhqot’in were and remain deeply connected to the mountainous lands of southeast Tsilhqox Biny (Chilko Lake):

(a) Farrand’s record of the Tsilhqot’in legend of Lhin Desch’osh and his sons closes noting that “[b]efore turning to stone, they made Indian potatoes, and scattered them all about on 171 the snow mountains.” The oral history evidence of Patricia Guichon and Elizabeth Jeff 172 confirms this legend as the genesis of mountain potatoes. “Snow mountains” identified by Tsilhqot’in witnesses as having “Indian potatoes” include those of above Tchaikazan Valley (Tsi Tese?an), Yohetta Valley (Yuhetah) and Long Valley (Tl’ech’id Gunaz), all located directly south of the Nemiah Valley (Xeni) and on or near Chilko Lake (Tsilhqox Biny).173 Notably, above Long Valley in the north is the “snow mountain”174 and “Indian potato”175 spot the Tsilhqot’in call Xenedi?an, located to the southeast of Mount Tatlow (Ts’ilos).176

(b) Various other recorded Tsilhqot’in legends relate to hunting in the ‘snow mountains’ during summer or fall for game, including marmots, deer, mountain sheep and mountain goat – The Gambler Who Received Supernatural Aid,177 The Man Who Married Eagle’s Daughters, The Boy Who Was Helped by the Wolves and The Men and the Monsters.178

170 Exhibit 0501, Ts’yl-os Park photographs, Tabs 6-7. 171 Exhibit 0167.009.002, Livingston Farrand, “Traditions of the Chilcotin Indians,” Chapter 1, The Jesup North Pacific Expedition, Edited by Franz Boas, New York, pp. 7-14, at 14. 172 Transcript, May 9, 2005, Patricia Guichon Direct-Exam, at 00050, 1-19; Exhibit 0431, Affidavit #1 of Elizabeth Jeff, October 8, 2004, para. 27. 173 These mountains as snow mountains, see, for example, Exhibit 0174, Affidavit # 2 of Mabel William, at para.70; Exhibit 0177, Tyhurst, at p 107; These areas as being Indian, or mountain, potato areas, see for example Exhibit 0174, Mabel William Affidavit #2, at para. 70. 174 Transcript, October 4, 2004, Mabel William Direct-Exam, at 00025, 40 – 00026, 3. 175 See Transcript, November 26, 2003, Francis Setah Direct-Exam, at 00005, 17-31; Exhibit 0174, Mabel William Affidavit #2, para. 45. 176 Plaintiff’s Argument, Volume 3, at para. 887(d). 177 Plaintiff’s Argument, Volume 3, at para. 889. 178 Plaintiff’s Argument, Volume 3, at para. 891.

34 (c) The core Tsilhqot’in legend of Ts’il?os and ?Eniyud records that in the times of the ?esggidams, Ts’il?os and ?Eniyud were Tsilhqot’in husband and wife living with their family in the mountainous area around Xeni (Nemiah Valley), where Mount Tatlow is 179 today. When the two decided to separate ?Eniyud left Ts’il?os and, consequently, Ts’ilos? and .Eniyud turned to stone. He now presides over the Claim Area as Ts’ilos (Mount Tatlow),180 and is charged with the responsibility of protecting and watching over Tsilhqot’in people forever.181182

(d) Dr. Dinwoodie’s evidence is that the nature of Tsilhqot’in occupation of land is best understood by also considering that their cultural relationship to lands went well beyond their utilitarian interests in it. In particular, Tsilhqot’in cultural relationship to land is empirically attested in their geographic place names and associated narratives.183

48. The evidence regarding Tsilhqot’in place names also supports the fact of Tsilhqot’in occupation of the southeast Tsilhqox Biny (Chilko Lake) lands for centuries. British Columbia’s archaeologist Morley Eldridge, on cross-examination based on the work of federal archaeologist Dr. Martin Magne, was of the opinion that aboriginal place names, by their nature, tend to be relatively stable over time. Furthermore, an abundance of different types of aboriginal place names justifies a presumption that the aboriginal group with which the names originate has occupied the named area most likely for centuries. This view is consistent with Dr. Dinwoodie’s “preliminary research suggests that Tsilhqot’in ethnogeographic terminology (place names, geographical nomenclature and associated narratives is abundant and the nature of that

179 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 36; Exhibit 0431, Affidavit #1 of Elizabeth Jeff, October 8, 2004, at para. 117; Transcript, March 14, 2005, Ubill Hunlin Direct-Exam, at 0005, 13-16. 180 For oral history accounts of this legend, please see, for example: Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 36; Transcript, January 17, 2005, David Setah Direct-Exam, at 00018, 27 – 00019, 11; Transcript, November 5, 2004, Julie Quilt Cross-Exam, atb 00034, 35 – 00035, 7; Exhibit 0431, Affidavit #1 of Elizabeth Jeff, October 8, 2004, paras. 116-118; Transcript, October 14, 2004, Harry Setah Direct-Exam, at 00009, 16 – 00010, 19; Transcript, April 19, 2005, Chief Ervin Charleyboy Direct-Exam, at 00008, 28 – 00009, 9; Transcript, March 14, 2005, Ubill Hunlin Direct-Exam, at 00004, 31 – 00005, 16; Transcript, September 9, 2003, Chief Roger William Direct-Exam, at 00048, 15 – 00049, 14; Transcript, February 17, 2005, Joseph William Direct- Exam, at 00022, 29 – 00023, 21; Exhibit 0437, Affidavit #1 of Patrick Alphonse, April 15, 2005, at para 25; Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00024, 47 – 00025, 27; Exhibit 0367, Affidavit #2 of Gilbert Solomon, January 19, 2005, at paras. 89-91. 181 Transcript, February 17, 2004, Chief Roger William Cross-Exam, at 00010, 10-34; Transcript, January 17, 2005, David Setah Direct-Exam, at 00019, 44 – 00020, 11. 182 Plaintiff’s Argument, Volume 3, at para. 888(a). 183 Plaintiff’s Argument, Volume 3, at para. 885.

35 terminology supports the inference that their occupation of the territory has been exclusive and long term.” Tsilhqot’in witnesses used a litany of Tsilhqot’in ethnogeographic terms with respect to the area in question:

Ts’il?os Ts’i Ch’ed Tl’ad Nilhgwetizdi Naghaghant’ax Tl’echid Gunaz Yuhitah Yuhitah Biny Tu Nelhtseh Biny Ts’i Talh?ad Biny Ts’i Talh?ad Yeqox K’azba Gunlin Tsi Tese?an Tsi Tese?an Yeqox Tsi Tese?an Lhud Dzelh Tsilhqox Tu Tl’az Tsilhqox Dzelh Tsilhqox Biny

3. SUMMARY AND CONCLUSION

49. Thus, a coherent body of evidence from the historical record, expert opinion and oral history establish that prior to, at and well after Crown sovereignty the Tsilhqot’in physically occupied the relevant lands of Ts’il?os (Mount Tatlow), and the Tl’echid Gunaz (Long Valley), Yuhitah (Yohetta Valley), Ts’i Talhl?ad (Rainbow Creek), Tsi Tese?an (Tchaikazan Valley) and Tsilhqox Tu Tl’az (Edmond Creek) watersheds that surround Tsilhqox Biny (Chilko Lake), as shown by their regular use of these lands for constructing enduring dwellings at base camps and as hunting and gathering grounds, as well as for trapping and fishing.184 The Tsilhqot’in have Aboriginal title to these lands.

B. NAGHATALHCHOZ, GWEDZIN, TALHIQOX AND LHUY NACHASGWENGULIN

184 Plaintiff’s Argument, Appendix 3, at paras. 136, 152, 186.

36 1. DEFINITE TRACTS OF LAND

50. The Big Eagle Lake (a.k.a. Choelqouit Lake) basin is situated just northwest of the Chilko Lake outlet and west of the Chilko River. The Little Eagle Lake and Cochin Lake basins, and the Tatlayoko Lake valley, are located adjacent thereto and directly south of Tatla Lake.

51. Physically, these definite tracts of land about Big Eagle, Little Eagle, Cochin and Tatlayoko Lakes are at an intersection of the mountain-plateau transition zone. Big Eagle Lake is a shallow plateau type lake that drains northeast to the Chilko River as it begins its run through the . Cochin Lake too is a shallow plateau lake though it drains south to feed Tatlayoko Lake, a significant valley-bottom lake with a southern outlet through the Coast or Cascade Mountains. Little Eagle Lake is also a shallow plateau lake, however, it drains north to Tatla Lake on the edge of the Chilcotin Plateau.185

52. Of course, the geographic features of this region are identified differently from the Tsilhqot’in point of view. For the Tsilhqot’in, Naghatalhchoz is the area about Naghatalhchoz Biny (Big Eagle or Choelqouit Lake). Gwedzin is the lands about Gwedzin Biny (Cochin Lake). Talhiqox is the valley about Talhiqox Biny (Tatayoko Lake). Lhuy Nachasgwengulin Biny denotes Little Eagle Lake.

53. The Trapline defines the Claim Area in these lower elevation lands northwest of Tsilhqox Biny (Chilko Lake) and south of Tatl’ah Biny (Tatla Lake). Thus, the lands about Naghatalhchoz Biny (Big Eagle or Choelquoit Lake), Talhiqox Biny (Tatlayoko Lake), Gwedzin Biny (Cochin Lake) and Lhuy Naschasgwengulin (Little Eagle Lake) that are of interest here are those in the northwest of the Xeni Gwet’in Trapline.

2. PHYSICALLY OCCUPIED BEFORE, AT AND AFTER CROWN SOVEREIGNTY

54. Prior to, at and well after Crown sovereignty Tsilhqotins constructed dwellings at Naghatalhchoz Biny (Big Eagle or Choelquoit Lake), Gwedzin Biny (Cochin Lake), Lhuy Nachasgwenguln Biny (Little Eagle Lake) and Talhiqox Biny (Tatlayoko Lake) and regularly

185 Plaintiff’s Argument, Volume 3, at paras. 937-938.

37 exploited the lands about these lakes as trapping, hunting, fishing and gathering grounds.186 This fact is established on a balance of probabilities by a coherent set of evidence from the historical record, expert opinion and oral history.

a. Historical Record and Related Expert Opinion

55. The emergent historical record as it relates to the lakes area in the northwest Trapline is that it largely divides into two time periods. Each period has its own ‘on the ground’ ‘lines of sight’ per Dr. Brealey.187 The first period, 1822-1845, is comprised of furtrader and missionary documents based on visits to the Tsilhqot’in population resident at or near the outlet of Chilko Lake. The second time period, 1845-1897, is constituted by records of a missionary, surveyors and Crown authorities as they visit and document this lakes area west of the Chilko River in the northwest Trapline, ultimately identifying the Tsilhqot’in population that kept winter residences here as part of the band of “Tatla Lake Indians” under Chief Keogh. The Euro-Canadian knowledge base that emerges from this archival record is consistent with and supports a finding of these two resident Tsilhqot’in populations regularly using the Big Eagle, Little Eagle and Cochin Lake basis as well as Tatlayoko Valley to construct dwellings and as trapping, hunting, gathering and fishing grounds prior to, at and after Crown sovereignty in 1846.

(i) 1822-1845

56. In January of 1822, furtrader George McDougall and his party visited Tsilhqot’ins on the Chilko River as the first Europeans to enter Tsilhqot’in territory. He records:

[T]hey are certainly a fine, brave looking set of Indian, whose lands are far from being poor either, as to beaver or Large Animals. … we got much information respecting their Country in general, which they seemed to part as freely & heartily as they appeared cheerful at our first arrival among them, the result of our enquiries were briefly this. The West side of the River abounds with Lakes and Small Rivers where there is a quantity of Beaver & of almost all kinds of Fish in the proper Season, … By dint of enquiry & with the help of small sticks we made out to get nearly their strength, they say there are 6 Large Ground Lodges, about the Lake, containing 53 Families…188 [Emphasis added.]

186 Plaintiff’s Argument, Appendix 3, at paras. 136, 152, 186. 187 Exhibit 0240, Brealey Report, at p. 33. 188 Exhibit 0156-1822/01/18.001 at 100924-25.

38 57. The lands in question are situated on the west side of Chilko River and abound with the Big Eagle, Cochin, Little Eagle and Tatlyayoko Lakes and their creeks. Further, anthropologist John Dewhirst estimated the “53 Families” about Chilko Lake as numbering 360 persons, a large portion of whom resided at the lake’s outlet.189

58. In December of 1825, William Connolly reached Tsilhqot’ins residing at their salmon caches on the Chilko River and at the entrance to Chilko Lake at its outlet. Connolly recorded that these Tsilhqot’ins informed his party of their subsistence partly based on deer, of which the country was pretty well stocked.190 The opinion of anthropologist John Dewhirst is that Connolly met with Tsilhqot’ins from the village of “Taze Ley” (i.e. Tachi Lhuy) at the Chilko Lake outlet. Further, “these animals were hunted around Chilko Lake in the Claim Area, as well as other places, because a Tsilhqot’in village [“Taze Ley”] was located at the entrance to the lake.”191 The lands in question, particularly those of the Big Eagle Lake basin, are lowlands directly to the northwest side of Chilko Lake at the entrance to the lake from Chilko River.

59. In 1827, McGillvary recorded that Tsilhqot’ins of Chilko River and Chilko Lake regularly exploited their large animal resources such as deer.192 Anthropologist John Dewhirst opined, “McGillvary shows that Chilko Lake and Chilko River fisheries together with big game resources in the surrounding area support the resident Tsilhqot’in population year round.”193 The lands at issue are home to migratory deer in fall and winter and are located in the surrounding area of the Chilko Lake outlet and the upper Chilko River, particularly those lands of the Big Eagle Lake area.

60. In 1831, furtrader Ross Cox recounted his years in west of the Rocky Mountains and provided a brief sketch of Chilcotin country that described Chilko River and Chilko Lake.194 Regarding Cox, Dr. Brealey stated, “while he does not specify the extent of ‘their hunting grounds’ would most certainly include the ‘many creeks issuing therefrom’ (and into the Chilko

189 Exhibit 0443, Dewhirst Report, at paras. 136-144, 203. 190 Plaintiff’s Argument, Appendix 3, at para. 83(a). 191 Plaintiff’s Argument, Appendix 3, at para. 83(b). 192 Exhibit 0156-1827/00/00.001 at 215. 193 Plaintiff’s Argument, Appendix 3, at fn. 211, para. 173-174. 194 Exhibit 0156-1831/00/00.01: Ross Cox, Adventures of the Columbia River…, at 3000018-20.

39 and Chilcotin Rivers and Lakes)… .”195 The creek issuing from Big Eagle or Choelqouit Lake drains into the Chilko River, this lake being the major lake to do so above the Chilko- confluence.

61. In 1838, the Chilcotin Post census identified the Tsilhqot’in winter village of “Taze Ley” on or near the outlet of Chilko Lake and lead by Chief “Quill Quall Yaw”.196 The reported population alone for “Taze Ley” (Tachi Lhuy) was 194 people, including 46 hunters, estimates that were assuredly too low.197 Dewhirst concluded these Tsilhqot’ins “undoubtedly used… hunting grounds and plant collecting places most likely in the Claim Area.”198

62. In November of 1845, Father Giovanni Nobili reportedly visited three areas where Tsilhqot’ins were residing at winter’s onset. According to Dr. Brealey, the first was at the former Fort Chilcotin (or Chilcotin Post) around the Chilko – Chilcotin River confluence, while the third was a village at or near the outlet of Chilko Lake containing an estimated 150 people lead by Chief “Konkwaglia”.199 In this regard, Dewhirst opined that in November 1845 Father Nobili visited the “Taze Lay” village recorded in the Chilcotin Post’s 1838 census.200 Per Brealey, Nobili thus confirmed that those whom Marcus Smith (1872) classified as Stone Tsilhqot’ins included a group headquartered at Chilko Lake.201

(ii) 1845 – 1897

63. As discussed above, in November of 1845 Father Giovanni Nobili reportedly visited three areas where Tsilhqot’ins were residing at winter’s onset. Dr. Brealey’s evidence is that while the first was at the former Fort Chilcotin (or Chilcotin Post) around the Chilko – Chilcotin River confluence, the second likely was a site at Tatla Lake for which Nobili noted “contained

195 Exhibit 0240, Brealey Report, at 9. 196 Plaintiff’s Argument, Appendix 3, at para. 59; Exhibit 0443, Dewhirst Report, at paras.64-66. 197 Plaintiff’s Argument, Appendix 3, at para. 60; Ex. 0443, Expert Report of John Dewhirst, August 8, 2005, at paras. 99, 397, 84; Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, at para. 50(vi). 198 Exhibit 0443, Dewhirst Report, at paras. 175-176, 397. 199 Exhibit 0240, Brealey Report, at 26-28 re Nobili, 60 re Fort Chilcotin, and 56 re Chilko Lake; Exhibit 0156- 1845/11/30.001 at 2195816-7. 200 Exhibit 0443, Dewhirst Report, at paras. 76-79. 201 Exhibit 0240, Brealey Report, at 28.

40 three big lodges, with approximately one hundred and thirty people in them.” 202 Per Brealey, in doing so Nobili confirmed that those whom Marcus Smith (1872) classified as Stone Tsilhqot’ins also included a group headquartered at Tatla Lake.203

64. In 1862-63, two epidemics of smallpox occurred amongst the Tsilhqot’in.204 According to Father Thomas, these epidemics “killed nearly all the Chilco Lake, Eagle Lake and Tatla Lake Indians. Seven or eight families remained at those places but the others joined [Chief] Anaham’s Camp.”205 In this regard, Dewhirst stated:206

In my opinion, this information came from oral history communicated to Father Thomas, probably in the early 20th century when he was active as a missionary among the Tsilhqot'in. I am also of the opinion, based on this information, that Tsilhqot'ins lived in the Chilco Lake, Eagle Lake and Tatla Lake areas prior to the smallpox epidemics of 1863 and that some families survived the epidemics and continued to live in those areas.

In my opinion, Father Thomas' information indicates that there was a significant Tsilhqot'in population in the northwestern part of the Claim Area before the smallpox epidemics of 1863. It also shows that more than seven or eight families survived the epidemics, because an unspecified number of surviving families joined Anaham's camp. Seven or eight surviving families remained in the above areas and continued to use and occupy them.207

65. In 1863, road builder Alfred Waddington produced an untitled sketch map of the and Tatla Lake area.208 Waddington’s map identifies a “Fishery” at the south end and outlet of the unnamed Little Eagle Lake,209 as well as a “Village and horses” at the north end and head of the unnamed Tatlayoko Lake. It also shows trails connecting: the village at north Tatlayoko Lake and the fishery at south Little Eagle Lake; south Little Eagle Lake and the southwest end of “Tacla Lake” [Tatla Lake], and; south Little Eagle Lake, running the southeast

202 Exhibit 0240, Brealey Report, at 26-28 re Nobili, 60 re Fort Chilcotin, and 74 re Tatla Lake; Exhibit 0156- 1845/11/30.001 at p. 2195814. 203 Exhibit 0240, Brealey Report, at 28. 204 Exhibit 0240, Expert Report of Ken Brealey, at 2,7,11,50,55,56,66,70,76. 205 Exhibit 0156-1948/00/00.001 at 38; Exhibit 0443, Dewhirst Report, at paras. 240, 252. 206 Plaintiff’s Argument, Appendix 3, at para. 93. 207 Exhibit 0443, Dewhirst Report, at para. 241 and 254. 208 Plaintiff’s Argument, Appendix 3, at para. 91; Exhibit 0265-1863/00/00.001. 209 Plaintiff’s Argument, Appendix 3, at para 120 re Lhuy Nachasgwengulin (Little Eagle Lake).

41 side of Little Eagle Lake, towards the northeast end of Tatla Lake and Puntzi Lake.210 Regarding Waddington’s Map, Dewhirst stated:

[I]n my opinion the aboriginal features shown on his map—trails, a village, and a fishery—indicate a Tsilhqot'in occupation of the Tatlayoko Lake area, including Little Eagle Lake, that must be prior to 1846, based on use of a village, fishery and connecting trails.211

In my opinion, …, the aboriginal trails, fishery and village reported by Waddington indicate a long-term use and occupation that most likely pre-date 1846. …

Waddington's map (1863) also shows several trails that can be only Tsilhqot'in, as there was no European road building or occupation of the area in 1863. The trails connect the "Fishery" at the south end of Little Eagle Lake westward to the south end of "Tacla" [Tatla] Lake.

In my opinion, these are all Tsilhqot'in trails that formed over generations of use and occupancy. They attest to resource use, such as fisheries, at strategic locations, and reflect an intimate knowledge and long occupation of the area that likely predates 1846.

In my opinion, the fishery shown at Little Eagle Lake and the trail network connecting that fishery to the head of Tatlayoko Lake, also in the Claim Area, and to Tsilhqot'in places beyond at (Tatla Lake, Puntzi Lake and the Chilcotin River) attest to long term Tsilhqot'in use and occupancy of this area. The presence of a fishery indicates repeated seasonal use and occupation of Little Eagle Lake over many years. The presence of the fishery and the connected trail network must have formed only as result over many years of continued use and occupancy that must pre-date 1846.212

66. In mid-July of 1864, as part of the Chicotin War effort the colonial expedition under magistrate William Cox advanced south from Tatla Lake, passed Cochin Lake, to the area of north Tatlayoko Lake, then east to Big Eagle or Choelquoit Lake.213 Cox described his party as entering “into Klatassine’s favourite hunting and fishing territory, the mountainous range

210 Exhibit 0443, Dewhirst Report, at para. 228, 238. 211 Plaintiff’s Argument, Appendix 3, at para. 166; Exhibit 0443, Dewhirst Report, at para. 227. 212 Plaintiff’s Argument, Appendix 3, at para. 120 re Lhuy Nachasgwenguln (Little Eagle Lake); Exhibit 0443, Dewhirst Report, at paras. 237-239, and 261. 213 Exhibit 0244, Brealey Map, ChilcotinWar.

42 between Moseley Creek…and Chilko Lake…[and where] scouting parties [scouted]…dozens of Indian trails criss-crossing the area…”214 Tatlayoko Valley is precisely in this area.

67. On July 22, 1864, Cox signed a map prepared based on information from Chief Alexis and Eulas, which is commonly known now as the Chilcotin War Map. This map quite clearly records Anglicized versions of Tsilhqot’in place names for key geographic features in and about the Claim Area, variations of which endure today:215

(a) T@ilhqox is recorded as the “Chilcho River” (now Chilko River);

(b) T@ilhqox Biny, “biny” being the Tsilhqot’in word for lake, is identified as “Chilco. Lke” (now Chilko Lake);

(c) Talhiqox Biny is recorded as “Ta-tlah-co. L.” (now Tatlayoko Lake);

(d) Gwedzin Biny is “Quitzee. L” (now Cochin Lake);

(e) Lhuy Nachasgwengulin Biny is set out in lengthy phonetics as “Clu-na-sis-coo- coonlin. Lke”;

(f) Naghatalhcho^ Biny, associated with the July 1864 killing of McLean and defined in part by the point named in Tsilhqot’in as Ch’e^qud, is identified as “McLean’s L or Chilcote” (now Choelquoit Lake);

(g) Tatl’ah Biny is noted as “Tat-lah. L” (now Tatla Lake); and 68. Importantly, the Chilcotin War Map (1864) also identifies a trail network connecting Tatla Lake with Little Eagle Lake, Cochin Lake, Tatlayoko Lake, Tatlayoko Valley, Big Eagle or Choelquoit Lake and the Chilko Lake outlet. In addition, it shows a trail running the west side of the Chilko River below the Chilko Lake outlet. Dewhirst described these trails as “an extensive trail network that connects the Tatlayoko-Tatla Valley to the Chilko Lake-Chilko River Valley,”216 and stated:

In my opinion the trail network, already established in 1864, was formed over many years of use and occupancy that undoubtedly pre-date 1846, only 18 years earlier. … …

214 Exhibit 0240, Brealey Report, at 42. 215 Plaintiff’s Argument, Volume 3, para. 909; Exhibit 0265-1864/00/00/001; 0265-1864/00/00/002. 216 Exhibit 0443, Dewhirst Report, at para. 244.

43 The network of trails depicted necessarily indicates use and occupancy of a wider area that includes a number of lakes and mountains in the northwest part of the claim area and beyond. … In my opinion, the presence of the trail system, together with Father Thomas’ information [on the smallpox epidemics], shows use and occupancy of the northwest part of the Claim Area before and after 1846.217 [Emphasis added.]

69. On August 8, 1864, colonial magistrate Chartres Brew and his party traveled down the east side of "Lake Tathalco [Tatlayoko],”218 about which he recorded:

In a very fine valley in the heart of the mountains we visited a camp ground only recently abandoned by the Indians. They had evidently been residing there for a good while as the Valley is a garden of Berry trees all of which had been well stripped of their fruit. They had several horses tied up in their camp which they sometimes picketed out to feed. Although we were almost without a morsel to eat we would have pressed on farther trusting to exist on berries but we were stopped by a broad deep rapid river at the far side of the valley which falls into the river flowing from Lake Tathalco.219 [Emphasis added.]

70. On August 19th, 1864, John Brough’s party, present in the area as part of the colonial expedition under Chartres Brew, poled their raft from the head of Tatlayoko Lake 11 miles south along its east shore and in the Claim Area. Brough noted, “Saw some old habitation by the way and places on the creeks where they had been trapping long ago.”220 On the return trip north days later “J. Berry and two Indians left by the trail as they did not like to risk the raft.” Dewhirst commented, “[t]he Brough account of 1864… records an old habitation site and trails on the east shore [of] Tatlayoko Lake that… likely pre-date 1846.”221

71. In 1865, consistent with Waddington (1863), MacFie mapped an “Indian Village” at the north end of Tatlayoko Lake.222

72. In August of 1872, federal railway surveyor and agent Marcus Smith reportedly camped “by the margin of [Tatla] Lake not far from the camp of Keogh [Cayough] the chief of a small

217 Exhibit 0443, Dewhirst Report, at paras. 246, 249, 251. 218 Exhibit 0240, Brealey Report, at p. 42b, 41t; Exhibit 0244, Breatley Map, Chilcotin War. 219 Exhibit 156-1864/08/18.001. 220 Plaintiff’s Argument, Appendix 3, at para. 95. 221 Exhibit 0443, Dewhirst Report, at para. 227. 222 Exhibit 0265-1865/00/00.001; Exhibit 0240, Brealey Report, at p. 75.

44 band of Indians who subsist by fishing on the lakes and hunting on the slopes of the Cascade mountains, from which they have the local name of ‘Stone Indians’….”223 In November of 1872, Smith further reported:224

On the northwest side of Tatla lake - and near midway of its length — which is about 20 miles - are the head quarters of Keogh, the Chief of the Stone Indians residing on the margin of the string of lakes and swamps from Tatla to Bluff and Middle lakes and down the Homathco river - They have also stations by the lakes in the mountains from Tatla to the headwaters of the Chilco river —

I do not think there is much, if any, land fit for tillage in Keogh's country the bottom lands on the margin of the lakes are about 2800 ft. above the level of the sea - There are very extensive marsh meadows in the bottoms - and abundance of bunch grass and vetches on the slopes and on these Keogh's people keep quite a number of horses.225 [Emphasis added.]

73. Regarding Smith’s later report Dewhirst concluded:226

I am of the opinion, based on Smith's description, that the Tatla Lake Indians also used the western part of the Claim Area in that their territory included stations along the mountain lakes between Tatla Lake and the headwaters of the Chilko River. In my opinion, those lakes would include Little Eagle Lake, Cochin Lake, and Big Eagle or Choelquoit Lake. It is noteworthy that the Chilcotin War map of 1864 shows a trail from Tatla Lake to the outlet of Chilco Lake (British Columbia 1864). As discussed above, this trail system undoubtedly formed over many years of use and, in my opinion, must pre-date 1846. My genealogical research linking modern extended families to intergenerational customary use areas in the Claim Area (Section 3.0) also confirms the use and occupation of the Claim Area by Tatla Lake Indians. Their use and occupation of the area relied upon the trail networks to provide access to village and resource sites, such as fisheries and hunting grounds.227

74. In 1872, Marcus Smith also reported with respect to the lands above the Chilko River mouth (i.e. above the Chilko-Chilcotin confluence), and did so somewhat prophetically considering the fate of Lewis Elkin in 1897:

Above the mouth of the Chilco river if any white settler were so sanguine enough to endeavour to make a living at so great a distance from any road - I do not think

223 Exhibit 0156-1872/06/14.001 at 118; Exhibit 040, Brealey Report, p. 30. 224 Plaintiff’s Argument, Appendix 3, at paras. 91, 134. 225 Exhibit 156-1872/11/29.002, at p. 2000321. 226 Plaintiff’s Argument, Appendix 3, at para. 92, and 120 re relevant lakes. 227 Exhibit 0443, Dewhirst Report, at paras. 276.

45 it would be safe for him to do so until the Indians are consulted and some lands are reserved for them- for the good lands above this point are so mixed up with hunting grounds that it would be scarcely possible to avoid a collision. (Smith 1872:5)228

75. In 1875, Marcus Smith also reported an “Indian rancherie” at the east end of Cochin Lake.229 He did so while surveying the western margins of the Claim Area, traveling mostly by Indian trails around Little Eagle Lake, Cochin Lake and Tatlyoko Lake.230 Dewhirst’s opined in this regard:

In my opinion, the presence of an Indian "rancherie" or village on Cochin Lake shows continued use and occupation of the Cochin Lake area since before 1846. My opinion is based on the antiquity of the trail system discussed above and because Cochin Lake is part of the customary use area of the Guichon and Lulua extended families whose ancestry predates 1846.231

76. In September of 1875, federal geological surveyor George Dawson also traveled through the area of Little Eagle Lake, Cochin Lake and Tatlayoko Lake.232 Dawson found “at the SE end of Cochin Lake…[an] abandoned Indian camp…and several fish traps cached in the bushes.”233 He also reported “many [Indian] graves along [the] N side Tatla Lake,” and “an Indian camp on the trail near the N end of Tallyoco Lake.”234

77. In 1890, surveyor A.L. Poudrier produced a map with a trail running the length of Tatlayoko Lake, connecting to Little Eagle Lake and, from there, to both ends of Tatla Lake.235 Dewhirst concluded the trail was “undoubtedly aboriginal. In my opinion, such trails formed over many years of use and occupation and pre- and postdate 1846. They show continued use of Tsilhqot’in trails long after 1846.”236

228 Exhibit 156-1872/11/29.002, at p. 2000322. 229 Exhibit 0156-1875/04/15.001 at 163; Exhibit 0443, Dewhirst Report, at para. 247; Exhibit 0240, Brealey Report, at p. 31. 230 Exhibit 0156-1875/04/15.001 at 163; Exhibit 0443, Dewhirst Report, at para. 233; Exhibit 0240, Brealey Report, at p. 31; Exhibit 0243, Brealey Map, Chilcotin Ethnography. 231 Exhibit 0443, Dewhirst Report, at para. 248. 232 Exhibit 0243, Brealey Map, Chilcotin Ethnography. 233 Plaintiff’s Argument, Appendix 2, at para. 135; Plaintiff’s Argument, Appendix 3, at para. 120 re Gwedzin (Cochin Lake). 234 Exhibit 0240, Brealey Report, at p. 31-32. 235 Exhibit 0265-1890/00/00.001. 236 Exhibit 0443, Dewhirst Report, at paras. 235-236.

46 78. In the early 1890s, the pioneer Ben Franklin pre-empted land in the area of west Tatla Lake for a roadhouse.237 He did so, however, apparently only after he paid the Tsilhqot’in man Old Guichon a caddy of tobacco, having failed to persuade Guichon that the Queen’s law regarding pre-emptions governed.238

79. In 1896, Lewis Elkin became the first land pre-emptor in the Claim Area, pre-empting 320 acres in the vicinity of Cochin Lake for a ranch and store.239 In 1897, a Tsilhqot’in man shot and killed Mr. Elkin at his store.240

80. In 1897, Ben Franklin pre-empted 320 acres in the Claim Area along the northwest shore of Little Eagle Lake. The preemption was cancelled shortly thereafter. 241

(iii) 20th Century

81. In 1910, the British Columbia Crown Surveyor declared that cabins at Big Eagle or Choelquoit Lake were “owned” by Indians.242

82. In October 1929, the Tsilhqot’in men Tommy Lulua (c. 1901-1978) and Lashaway Lulua (c. 1897) applied for provincially registered traplines. Both applications state “no. of years applicant has trapped line…Life.” Mr. Tommy Lulua’s trapline was registered as a triangular area south of Tatla Lake essentially encompassing Little Eagle Lake and tending south to northwest Cochin Lake. Mr. Lashaway Lulua’s trapline was a block touching Cochin Lake in the northwest, Big Ealge Lake in the east, and extending south along east Tatlayoko Lake. Both traplines endured until 1980 when they became part of the Xeni Gwet’in Trapline.243

237 Exhibit 0240, Brealey Report, at p. 61, fn. 127 re Franklin. 238 Exhibit 0240, Brealey Report, at p. 74 re Tatla Creek; Exhibit 0245, Brealey Map, Geographic Features. 239 Exhibit 0240, Brealey Report, at p. 63 re Lewis Elkin Ranch II; Exhibit 0245, Brealey Map, Geographic Features. 240 Exhibit 0156-1877/02/13.001, Letter from McKinlay to Premier Elliott, at 2. 241 Exhibit 0240, Brealey Report, at p. 61 re Frankiln Ranch; Exhibit 0245, Brealey Map, Geographic Features. 242 Plaintiff’s Argument, Appendix 2, at para. 158. 243 Plaintiff’s Argument, Appendix 3, at para. 97; Plaintiff’s Argument, Appendix 1D, at 3-4; Exhibit 0468-01- 1937/02/09.002, Application for Registration of a Trapline, amending original application October 10, 1929, Tommy Lulua; Exhibit 0468-02-1929/10/25.002, Application for Registration of a Trapline, Lashway Lulua.

47 83. In 1950, in recognition of the ongoing occupation and use of lands by the Lulua family, Canada attempted to purchase lands around Naghatalhchoz from British Columbia. British Columbia refused, on the basis that the lands had already been leased and the leaseholder did not acquiesce. 244

b. Genealogical Record, Related Expert Opinion & Tsilhqot’in Evidence

84. With respect to “the use and occupation of the Claim Area by Tatla Lake Indians,” stationed “by the lakes in the mountains from Tatla to the headwaters of the Chilco river”, anthropologist John Dewhirst’s “genealogical research linking modern extended families to intergenerational customary use areas in the Claim Area” included the descendent family of Chief Keogh, whom Marcus Smith identified in 1872.245 Chief Keogh (alt. Kreor) and his wife Kadoulie (Gadulin) had seven children, including their eldest child Annie (Hanlhdzany) and their daughter Kanlh (Josephine).246 Annie married William Bonzing (Bendzi) and they begat the William family of the Tsilhqot’in community at Tsi Del Del.247 In this regard, its was Dewhirst’s opinion:248

Archival documents, confirmed by oral history, show that the customary use area of the Tsi Del Del William family is in the northwest part of the Claim Area, specifically areas south of Tatla Lake including… Gwedzin [Cochin Lake Area], … . In my opinion, archival documents and oral history demonstrate that ancestors of the Tsi Del Del William family, Kréor and Kadoulie, used the Claim Area Ca. 1844 and after. Given the Tsilhqot'in practice of traditional or customary family use areas (Par. 29-41), and the fact that Kréor was chief of the Tatla Lake Indians, the parents of Kréor and Kadoulie, who were probably born ca. 1824, likely occupied and used the same areas before and after 1844.249 [Parentheses in text.]

85. Tsilhqot’in elder Mabel William (b. 1918) is the great-granddaughter of Chief Keogh (Kreor) and his wife Kadoulie (Gadulin).250 Ms. William is the eldest child of the late Jimmy and Nelly William,251 Jimmy William being the son of Hanlhdzany (Annie) and Bendzi (William

244 Plaintiff’s Argument, Appendix 2, at paras. 159-163. 245 Exhibit 0443, Dewhirst Report, at paras. 276, 284. 246 Exhibit 0443, Dewhirst Report, at paras. 366-367, 370. 247 Exhibit 0443, Dewhirst Report, at para. 367. 248 Plaintiff’s Argument, Appendix 3, at para. 93. 249 Exhibit 0443, Dewhirst Report, at para. 375. 250 Plaintiff’s Argument, Appendix 3, at para. 94. 251 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, at para. 7.

48 Bonzing),252 Hanlhdzany in turn being the eldest child of Chief Keogh and Kadoulie.253 Growing up, Ms. William was imbued with oral history directly from her grandmother Hanlhdzany.254 Ms. William was a source or genealogical information for Mr. Dewhirst, but also a witness in this case with evidence regarding the Tsilhqot’in winter land usage:

(a) Ms. William gave evidence as to the local Tsilhqot’in trail network, based on her personal experience and the oral history from her grandmother Hanlhdzany taught in situ at Gwedziny Biny (Cochin Lake). Ms. William averred, “[g]randmother taught me that [the different trails] were all made in the time of the ?esggidam (our ancestors) before there were horses, when Tsilhqot’ins had to walk our nen (land).”255 Corroborated by the historical record, including Cox’s Chilcotin War Map (1864), this Tsilhqot’in trail network ran between - Gwedzin Biny and Talhiqox Biny (Tatlayoko Lake); Gwedzin Biny and west Tatl’ah Biny (Tatla Lake); Gwedzin Biny, Lhuy Nachasgwengulin (Little Eagle Lake) and east Tatl’ah Biny; Gwedzin Biny, Naghatalhchoz Biny (Big Eagle or Choelquoit Lake) and ?Edibiny; Naghatalhchoz Biny and the Tsilhqox (Chilko River).256

(b) Ms. William’s evidence spoke to land usage about the niyah qungh (above ground lodges) used by Tsilhqot’ins stationed at lakes during winter257 -

My grandmother Hanlhdzany taught me that you have to build your niyah qungh near a lake or creek where you can get water. She taught me that you have to build your niyah qungh in the trees though, where there is easy access to firewood and where it's warmer because the forest breaks the wind. She also taught me that you had to consider what fish and animals were available when you decided where to put your niyah qungh. Hanlhdzany taught me that you had to put your niyah qungh where you knew how to survive. This is the knowledge that her mother had passed on to her she said.

252 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, at para. 9. 253 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, at para. 12; Exhibit 0442, Dewhirst Report, at 6-9, Chart 1. 254 E.g. Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, at paras. 39-42, 44, 47, 27, 29-30; Expert Report of John Dewhirst, April 2005, at 6-9, Chart 1. 255 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 31. 256 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at paras. 30, 31, 31(i)-(ii). 257 Plaintiff’s Argument, Appendix 3, at para. 95.

49 Grandmother Hanlhdzany taught me about how Tsilhqot'ins packed their water and firewood to their niyah qungh. She also taught me about the animals people would get when living at the niyah qungh. This was knowledge about how to survive and about how Tsilhqot'ins had lived since the time of the ?esggidam (our ancestors). Grandmother taught me this knowledge came from her mother:

(i) Tsilhqot'in people would use baskets to pack their water back to the niyah qungh. We used two types of baskets to do this. One is called qats'ay. That's a basket made from weaved ts'u ghed (spruce roots). After you soak the basket you can use it to carry water. If you don't have time to soak it you can use pitch so it will not leak.

Note: My grandmother Hanlhdzany had a qats'ay. My mother had two. …

(ii) The other type of basket for carrying water is called tenelh. That one's made from ch'i t'uz (birch bark). They're mostly used when picking berries though.

Note: My mother made these. I made one too. …

(iii) Tsilhqot'ins would tie packs of firewood on their back. Sometimes they had a long way to pack firewood to the niyah qungh. They would take hide straps from the nists'i (deer), sebay (mountain goat), debi (mountain sheep) or bedzish (caribou) and use that to tie a load of firewood together. Sometimes they would braid the hide straps into a cord or rope to do that. Then they would tie a hide strap to the load and carry the pack with the strap over their shoulders or around their forehead. They had to use a strap instead of cords because the cords would cut into their shoulders.

Note: I remember the elders at Bendzi Biny (Puntzi Lake) packing their firewood like this when I was growing up. Moose was available then so they'd mostly use nists'i or moose hide.

(iv) Tsilhqot'in people would get the dlig (squirrel), gex (rabbit), nundi (lynx), nabi (muskrat), tsa (beaver) and nists'i (deer). That is what they ate. They'd use the binlh (snare) made with hide strips to get the dug, gex and nundi. They would use ?edzez (dead fall trap) also to get the nundi. As for the datsan k'a (bow) and ts'etetsish k'a (arrow), they'd use that for almost everything. Tsithqot'ins also used the gex and dug furs to make blankets.

Note: I've made binlh for dlig and gex myself. I also remember Hanlhdzany had a gex blanket. She made my child Benny a gex blanket too for when he was born.

50 Grandfather Bendzi taught me that he had lived in niyah qungh too when he was younger. Grandfather taught me about the fires they would keep inside the niyah qungh. Grandfather also taught me one way that Tsilhqot'ins would do their ice-fishing on the lakes near their niyah qungh. This was knowledge about how to survive. He taught me this was how Tsilhqot'ins had lived since the ?esggidam. Grandfather said this knowledge was passed down to him by his mother:

(i) Tsilhqot'ins kept long fires in their niyah qungh, not round ones. It was easier to make longer firewood than shorter. There was less chopping to do. It was also important to make the fire under the smoke hole as much as possible. Otherwise it would get really smoky in the niyah qungh.

(ii) Tsilhqot'ins fished through the ice to get their winter fish at the lakes near their niyah qungh. They would make a hole in the ice where the water is not too deep. Then they'd put something white on the bottom of the lake so they could see the fish going by. They used split chendi (pine) with the inside of the wood facing up. Or they would use rocks to hold down pieces of t'uz (bark) dried from the dan (summer), with the smooth side facing up. Then they would sprinkle fish eggs into the water to attract the fish. Tsilhqot'ins had two different types of spears to get the fish. One was called a danden. That was a pole with a sharp animal bone or horn that faced upwards when you used it. People would put it in the water and pull it up fast when they saw a fish in the right spot. The other type of spear is called dadzagh. It was made with a bone or horn hook too.

I've seen a niyah qungh site at Naghatalhchoz Biny [Big Eagle or Choelquoit Lake]. It was on the same side of the lake as the Tsilhqot'in graveyard at Tsi Ch'ed Diz?an. It was near there, between Tsi Ch'ed Diz?an and ?Edibiny. I don't know whose it was. I'm not from Naghatalhchoz. I found it when I was looking for my horses. It was around the time after I had my fourth child with my late husband Eugene. The niyah qungh was pretty rotten. The logs had fallen in. It looked like the same style as my uncle's. Same size too. It was also in the trees back from the lake, like the others I've seen. [Parentheses added.]

My grandmother Hanlhdzany taught me that she also used to live in niyah qungh when she was being raised. She said she lived in one at Tatl'ah Biny (Tatla Lake), near where the water runs out of the lake.258

(c) Ms. William testified as to the impact of the smallpox:

258 Exhibit 0173, Affidaivit #1 of Mabel William, July 23, 2004, at paras. 29-31, 35, 37.

51 My grandfather Bendzi (b. 1851 or 1869, d. 1929) taught me about when the smallpox came to Tsilhqot'ins. Grandfather said he was a young boy when it happened. He told me he learned about it from his grandfather. That was ch'elets'eggan. Ch'elets'eggan means when a lot of people perish. This is what grandfather Bendzi taught me:

(i) Smallpox turns your body heat up really high and pops out of your skin. When it doesn't come out of your skin it kills you.

(ii) Bendzi's family and his grandfather were staying at Tatl'ah Biny (Tatla Lake) when the smallpox came. They were able to look after themselves a little bit better than others. They survived, but quite a few Tsilhqot'ins died from the disease at Tatl'ah Biny.

(iii) …

(iv) All over Tsilhqot'in country a lot of people died from the smallpox. 259

(d) Ms. William also gave evidence as to continuing fall hunting grounds in preparation for winter260 –

When I was being raised my family would camp near Gwedzin in the dan ch'iz (fall time). We'd go there to get the nists'i (deer). My father had been taught where the nists'i would be moving off the mountains onto the flatlands for the xi (winter). My family used deer hides for mattresses, moccasins and mitts then. Around Gwedzin we'd also hunt for moose. We'd stay quite a while there because we were drying the meat. The first time the moose came into that country they were only eating k'i (willow). That's when I was young. They tasted like tsa (beaver) then. When you boiled it you could really smell the k'i. Later the moose started eating tl'ugh (grass). That's when they tasted a little better.261

86. Tsilhqot’in elder Patricia Guichon is the granddaughter of Kanlh (Josephine) and Lexi (Old Billyboy), and through Kanlh the great-granddaughter of Chief Keogh (alt. Kreor) and his wife Kadoulie (Gadulin).262 Ms. Guichon’s evidence includied oral history sourced to her grandmother Kanlh, as well as Jack Lulua, that related to Tsilhqot’in use and occupation of Gwedzin. Ms. Guichon testified that she used to go to Gwedzin many years in June to fish and hunt deer with all her relatives, including her grandmother Kanlh (Josephine), Kanlh’s mother

259 Exhibit 0174, Affidaivit #2 of Mabel William, September 3, 2004, at para. 33. 260 Plaintiff’s Argument, Appendix 3, at para. 94. 261 Exhibit 0173, Affidaivit #1 of Mabel William , July 23, 2004, at para. 20. 262 Transcript, May 9, 2005, Patricia Guichon Direct-Exam, 00010, 29-37.

52 and here own grandfather Lexi (Old Billyboy).263 Her grandmother Kanlh and Hadediny (Jack Lulua) taught her that Tsilhqot’ins had been doing this all the way back to the ?esggidams. Although Ms. Guichon stopped going after she planted a vegetable garden at Anaham, other Tsilhqot’in elders continue to go to Gwedzin.264

87. Anthropologist John Dewhirst’s “genealogical research linking modern extended families to intergenerational customary use areas in the Claim Area” also included the modern Lulua family.265 Dewhirst identified the Lulua family ancestors Nunsulian (born ca. pre-1849) and his wife Annie (born ca. pre-1849), the parents of Jack Lulua (ca. 1870 – 1949). Dewhirst also identified Nemiah (ca. 1827-1927) and his wife Akous, the parents of Jeannie Nemiah. The children of Jack Lulua and Jeannie Nemiah were Tommy Lulua, Chief Lashway Lulua, Emily Ekks (nee Lulua), Eileen Lulua, and Eliza William (nee Lulua) who each in turn raised children of their own, some of whom are Tsilhqot’in elders who testified in this case.266 With respect to the Lulua family Dewhirst concluded:267

In my opinion, based on paragraphs 284-300 above, the ancestors of the Lulua family occupied and used the Claim Area before ca. 1827, and their descendants continue this occupation and use today. Oral history and archival documents show that the Lulua family’s customary use area is around Naghatalhchoz at Big Eagle or Choelquoit Lake extending to Chilko Lake.268 … Cochin Lake is part of the customary use area of the… Lulua extended famil[y] whose ancestry predates 1846.269

88. Tsilhqot’in elder Norman George Setah (b. 1940) is the paternal great-great-grandson of Sit’ax (Setah).270 Mr. Setah gave evidence, however, as to his family’s cabin at Skinner Meadow

263 Plaintiff’s Argument, Appendix 3, at para. 120; Transcript, May 11, 2005, Patricia Guichon Direct- Exam, 00004, 4 – 00006, 17; Transcript, May 9, 2005, Patricia Guichon Direct-Exam, 00013, 45-46; 00010, 17-19. 264 Transcript, May 12, 2005, Patricia Guichon Cross-Exam, 00042, 21-33. 265 Exhibit 0443, Dewhirst Report, at paras. 276, 284. 266 Exhibit 0441, Expert Report of John Dewhirst, at 19. 267 Plaintiff’s Argument, Appendix 3, at paras. 93, and 120 re Gwedzin. 268 Exhibit 0443, Dewhirst Report, at para. 301. 269 Exhibit 0443, Dewhirst Report, at para. 248. 270 Exhibit 0441, Dewhirst Report, chart 3 and appendix E(7).

53 northwest of Naghatalhchoz (Big Eagle or Choelquoit Lake)271 and oral history evidence that was sourced members of the extended Lulua family:

(a) Mr. Setah testified that he had been shown a site of southwest Naghatalhchoz at ?Edibiny by Tommy Lulua where the ?esggidams lived in lhiz qwen yex (underground houses).272

(b) Mr. Setah testified that he has hunted rabbits, minks, weasels and coyotes to the south of Naghatalhchoz.273 He also reported hunting all to the northwest of Naghatalhchoz through Skinner Meadow and around Gwedzin. According to oral history taught to Mr. Setah by Tommy Lulua, Elaine Lulua and Meltsan, Tsilhqot’ins have been doing this since the time of the ?esggidams.274

(c) Mr. Setah described snaring prairie chicken, ptarmigan and blue grouse along trails at the east end of Naghatalhchoz in the springtime and testified that Tommy Lulua had taught him that Tsilhqot’ins had been doing this since the time of the ?esggidams.275

(d) Mr. Setah testified that his family would move to ?Edibiny of southwest Naghatalhchoz in the spring to fish.276 Mr. Setah explained that they would also

271 Transcript, November 8, 2004, Norman George Setah Direct-Exam, 00009, 7 – 00010, 11; Exhibit 0213 DIG, Norman George Setah Digitized Map, sites “GE”, “GF”; Exhibit 0213LEG, Norman George Setah Digitized Map Legend, sites “GE”, “GF”. 272 Plaintiff’s Argument, Appendix 2, at para. 144; Transcript, November 8, 2004, Norman George Setah Direct- Exam, 00037, 37-47. 273 Transcript, November 8, 2004, Norman George Setah Direct-Exam, 00031, 2-20; 00033, 1-43; Exhibit 0213DIG, Norman George Setah Digitized Map, polygon “GO”; Exhibit 0213LEG, Norman George Setah Digitized Map Legend, polygon “GO”. 274 Transcript, November 8, 2004, Norman George Setah Direct-Exam, 00031, 21 – 00032, 29; Exhibit 0213DIG, Norman George Setah Digitized Map, polygon “GH”; Exhibit 0213LEG, Norman George Setah Digitized Map Legend, polygon “GH”. 275 Plaintiff’s Argument, Appendix 3, at para. 132; Transcript, October 21, 2004, Norman George Setah Direct- Exam, 00042, 21 – 00046, 11; Exhibit 0209DIG, Norman George Setah Digitized Map, sites “BS”, “BT”; Exhibit 0209LEG, Norman George Setah Digitized Map Legend, sites “BS”, “BT”. 276 Plaintiff’s Argument, Appendix 2, at para.144; Plaintiff’s Argument, Appendix 3, at para. 120; Transcript, October 21, 2004, Norman George Setah Direct-Exam, 00007, 45 – 00008, 7

54 hunt deer in the mountains while at these fish camps.277 Mr. Setah reported that a lot of Tsilhqot’ins would gather at ?Edibiny to fish in the spring with gillnets.278

(e) Mr. Setah testified that he has seen lots of Tsilhqot’ins, including William Lulua, Henry Lulua and Eugene William using binlagh fish traps at Naghatalhchoz Biny (Big Eagle or Choelquoit Lake).279

(f) Mr. Setah testified that Tsilhqot’ins would also camp at ?Edibiny southwest of Naghatalhchoz Biny (Big Eagle Lake) in the fall to fish for kokanee. He had been taught by Tommy Lulua, his own grandfather ?Eweniwen (Johnny Setah) and Hadediny (Jack Lulua) that his father, grandfather and other Tsilhqot’ins all the way back to the ?esggidams had been doing this.280 Mr. Setah reported that while fishing at ?Edibiny in the fall they would also hunt for deer and moose.281

(g) Mr. Setah explained that sulh (wild rhubarb) can be harvested by the creeks coming down from the mountains, and testified that people such as his parents, Eugene Lulua and Tommy Lulua used to harvest it to the south of ?Edibiny off of Naghatalhchoz and along the east side of Talhoqox Biny.282

(h) Mr. Setah testified that his family would harvest ?est’anchis (wild celery) at Skinner Meadow.283 The plant grows in swampy areas and was harvested by the

277 Transcript, October 21, 2004, Norman George Setah Direct-Exam, 00025, 40 – 00026, 32. 278 Transcript, October 21, 2004, Norman George Setah Direct-Exam, 00022, 38 – 00025, 39; Exhibit 0207DIG, Norman George Setah Digitized Map, polygons “AY”, “AX”; Exhibit 0207LEG, Norman George Setah Digitized Map Legend, polygons “AW”; Exhibit 0208DIG, Norman George Setah Digitized Map, polygons “AY”, “AX”; Exhibit 0208LEG, Norman George Setah Digitized Map Legend, site “AW”. 279 Plaintiff’s Argument, Appendix 3, at para. 120; Transcript, December 8, 2004, Norman George Setah Cross- Exam, 00022, 39 – 00023, 21. 280 Plaintiff’s Argument, Appendix 3, at para. 197; Transcript, November 8, 2004, Norman George Setah Direct- Exam, 00038, 1 – 00040, 4; Exhibit 0213DIG, Norman George Setah Digitized Map, polygon “GT”; Exhibit 0213LEG, Norman George Setah Digitized Map Legend, polygon “GT”. 281 Plaintiff’s Argument, Appendix 3, at para. 198; Transcript, November 8, 2004, Norman George Setah Direct- Exam, 00038, 15-31. 282 Plaintiff’s Argument, Appendix 3, at para. 173; Transcript, November 2, 2004, Norman George Setah Direct- Exam, 00007, 11 – 00008, 12; Exhibit 0211DIG, Norman George Setah Digitized Map, polygons “DZ”, “EA”; Exhibit 0211LEG, Norman George Setah Digitized Map Legend, polygons “DZ”, “EA”. 283 Plaintiff’s Argument, Appendix 3, at para. 172; Transcript, November 1, 2004, Norman George Setah Direct- Exam, 00039, 21 – 00040, 4.

55 Setah family around hay cutting time. Mr. Setah described harvesting tl’edazulh (wild rice) with his family on Gwedzin Biny in the springtime.284

(i) Mr. Setah described staying at Gwedzin with his family during the summer, where they fished, planted a garden and hunted muskrats and deer.285 Mr. Setah reported that lots of Tsilhqot’ins would gather there. Mr. Setah testified that Tommy Lulua and Hadediny (Jack Lulua) had taught him that the deer hunting grounds, which reached from north of Gwedzin down to south Talhiqox Biny (Tatlayoko Lake) had been used by Tsilhqot’ins since the time of the ?esggidams.286 He explained that they would take some muskrats around Gwedzin.287

(j) Mr. Setah identified fall deer hunting grounds on the east side of Talhiqox Biny. He testified that his family would stay at Taghinlin, hunting, drying meat and sharing it with all the Tsilhqot’in families in the area.288 According to oral history taught to him by Tommy Lulua, Tsilhqot’ins have been hunting deer in this area during the fall since the time of the ?esggidams.289 Mr. Setah testified that while hunting around Talhiqox in the fall, his family would also fish for Dolly Varden and trout at Tachidilin where the creek enters Talhiqox Biny (Tatlayoko Lake), which Tsilhqot’ins have been doing since the time of the ?esggidams according to

284 Plaintiff’s Argument, Appendix 3, at para. 171; Transcript, November 1, 2004, Norman George Setah Direct- Exam, 00037, 17 – 00038, 7; Transcript, November 2, 2004, Norman George Setah Direct-Exam, 00003, 5-30; Exhibit 0211DIG, Norman George Setah Digitized Map, polygon “DU”; Exhibit 0211LEG, Norman George Setah Digitized Map Legend, polygon “DU”. 285 Plaintiff’s Argument, Appendix 2, at para. 137; Transcript, October 21, 2004, Norman George Setah Direct- Exam, 00007, 45 – 00015, 11; Exhibit 0208DIG, Norman George Setah Digitized Map, polygons “AL”, “AM”; Exhibit 0208LEG, Norman George Setah Digitized Map Legend, polygons “AL”, “AM”. 286 Plaintiff’s Argument, Appendix 3, at para 131; Transcript, October 21, 2004, Norman George Setah Direct- Exam, 00022, 6-37; 00033, 42, - 00034, 6; Exhibit 0208DIG, Norman George Setah Digitized Map, polygons “AV”; Exhibit 0208LEG, Norman George Setah Digitized Map Legend, polygons “AV”. 287 Plaintiff’s Argument, Appendix 3, at para. 131. 288 Plaintiff’s Argument, Appendix 3, at paras. 194-195; Transcript, November 8, 2004, Norman George Setah Direct-Exam, 00007, 41 – 00010, 30; Exhibit 0213DIG, Norman George Setah Digitized Map, site “GD”; Exhibit 0213LEG, Norman George Setah Digitized Map Legend, site “GD”. 289 Transcript, November 8, 2004, Norman George Setah Direct-Exam, 00010, 31 – 00011, 12.

56 oral history taught to him by Tommy Lulua, Eliza William (nee Lulua), Elaine Lulua, Meltsan and Nik’ehum (Felix Lulua).290

(k) Mr. Setah described how he, his father and his grandfather would set up a ben gha ?elhch'e?altsil (tent structure with log walls) at Talhiqox Biny (Tatlayoko Lake) to use on squirrel hunting trips through the fall and winter.291

(l) Mr. Setah testified that he had seen approximately 10-12 lhiz qwen yex (underground houses) at the northwest corner of Lhuy Nachasgwengulin (Little Eagle Lake), which were lived in by the ?esggidams, according to oral history taught to him by ?Ilisa (Eliza) William (nee Lulua).292

(m) Mr. Setah testified that his family would move to a cabin at Lhuy Nachasgwengulin in the fall to hunt deer, squirrels, cougar, lynx, bobcat and fox.293 Mr. Setah was taught by Big Peter from Tsi Del Del that Tsilhqot’ins had been using this area since the time of the ?esggidams.

89. Tsilhqot’in elder Doris Lulua (b. 1930) is the daughter of Eileen Lulua (ca. 1905-1948) and the granddaughter of Jack Lulua (ca. 1870/1873-1949) and Jeannie Nemiah (ca. 1875- 1917).294 She is the paternal great-granddaughter of Nunsulian (born ca. pre-1849) and Annie (born ca. pre-1849) and the maternal great-granddaughter of Nemiah (ca. 1830-1927) and his wife Akous.295 Doris Lulua’s evidence, including oral history sourced to her mother Eileen and her great-grandmother Annie, related to the use and occupation of the areas around Naghatalhchoz (Big Eagle Lake), Lhuy Nachasgwengulin (Little Eagle Lake), Gwedzin Biny (Cochin Lake), and Talhiqox Biny (Tatlayoko Lake):

290 Transcript, October 20, 2004, Norman George Setah Direct-Exam, 00029, 25 – 00031, 34. 291 Plaintiff’s Argument, Appendix 2, at para. 165; Transcript, October 20, 2004, Norman George Setah Direct- Exam, 00026, 3 – 00027, 35; Exhibit 0207DIG, Norman George Setah Digitized Map, site “AE”; Exhibit 0207LEG, Norman George Setah Digitized Map Legend, site “AE”. 292 Plaintiff’s Argument, Appendix 2, at para. 133; Transcript, October 22, 2004, Norman George Setah Direct- Exam, 00016, 47 – 00019, 3. 293 Transcript, November 8, 2004, Norman George Setah Direct-Exam, 00012, 6 – 00013, 45. 294 Exhibit 0441, Dewhirst Report, September 2004, at 17, chart 1. 295 Exhibit 0441, Dewhirst Report, September 2004, at 17, chart 1.

57 (a) Ms. Lulua averred that her great-grandmother Annie’s second husband Nezulhtsin had a niyah qungh (above ground lodge) at the east end of Naghatalhchoz (Big Eagle Lake) at Tsi Ch’ed Diz?an.296 Ms. Lulua averred that Annie and her first husband Nunsulian (Ms. Lulua’s great-grandfather) also lived around Naghatalhchoz their whole lives.297

(b) Ms. Lulua still today lives near a place called Tsi gheh ne?eten, which is just a few miles south of the east end of Naghatalhchoz (Big Eagle Lake).298 She was taught by her great-grandmother Annie that Tsi gheh ne?eten is part of a foot trail used by the ?esggidams as a shortcut to the fishery at Gwedats’ish (the Narrows at the Chilko Lake outlet).299 More recently, Tsilhqot’ins such as Annie, Ms. Lulua’s mother Eileen, her uncleTommy Lulua and Madi?an (Daldo), the daughter of Kahkul (Qaqez and Elizabeth), have used it as a horse trail.300 Ms. Lulua averred that she had been taught by Annie, her grandfather Jack Lulua, and other elders that Tsilhqot’ins have been living in and using the area where she lives since long before her.301 Although her cabin is off-reserve, she doesn’t pay any taxes or money to the Crown.302

(c) Ms. Lulua’s family trapped during the winter to survive.303 Ms. Lulua averred that her mother Eileen had taught her that the Lulua family had been trapping all over Lhuy Nachasgwengulin (Little Eagle Lake), Gwedzin (Cochin), ?Elhdan Banx and Naghatalhchoz (Big Eagle Lake) since long before Doris was born.304 Ms. Lulua used to see a lot of people trapping in these areas.305 She trapped every year since she was a child on the traplines of her uncles Tommy and Lashway for

296 Plaintiff’s Argument, Appendix 2, at para. 150; Exhibit 0160, Affidavit #1 of Doris Lulua, March 23, 2004, at para. 25. 297 Exhibit 0160, Affidavit #1 of Doris Lulua, March 23, 2004, at para. 25. 298 Plaintiff’s Argument, Appendix 2, at para. 155. 299 Exhibit 0160, Affidavit #1 of Doris Lulua, March 23, 2004, at para.11. 300 Exhibit 0160, Affidavit #1 of Doris Lulua, March 23, 2004, at para. 11. 301 Exhibit 0160, Affidavit #1 of Doris Lulua, March 23, 2004, at para. 12. 302 Exhibit 0160, Affidavit #1 of Doris Lulua, March 23, 2004, at para. 12. 303 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at paras. 97-98. 304 Plaintiff’s Argument, Appendix 3, at para. 95; Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 100. 305 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 100.

58 animals including nabi (muskrat), tsa (beaver), nundi (lynx), chel?ig (coyote), tilhjus (mink), nulh ?etighis (wolverine), dlig (squirrels), nembay (weasels), sesugh (fisher), and nenjez (fox).306

(d) Ms. Lulua averred that many Tsilhqot’ins including her great-grandmother Annie, her aunts Emily Ekks (n. Lulua) and Eliza William (n. Lulua), her uncles Felix Lulua, Tommy Lulua and Lashway Lulua, Madi?an and others have taught her that Tsilhqot’ins have been fishing year round at Naghatalhchoz Biny since before her great-grandparents’ time.307 Ms. Lulua has seen the remains of a biniwed at the west end of the lake at Nanudenilah, which she was taught by Madi?an and others belonged to Madi?an’s father Kahkul (Qaqez).308 Ms. Lulua was also taught by her grandfather Jack and her great-grandmother Annie that Nezulhtsin had a fish trap at the east end of the lake at Tsi Ch’ed Di?an, and that Tsilhqot’ins before Nezulhtsin fished there all the way back to the ?esggidams.309 Ms. Lulua was taught by her grandfather Jack that several kinds of fish can be caught year round at Naghatalhchoz including: lhusisch’el (whitefish), deljiyaz (suckers), daltsi (a fish with red lips), ch’ijiyaz (Ms. Lulua learned this in English as a “squawfish”), and dats’ish (like a sucker but bigger).310

(e) Ms. Lulua averred that many Tsilhqot’ins used to camp at Ch’ezqud each year in September to fish for nilhish (kokanee) in the creek that runs between Naghatalhchoz and ?Edibiny, a lake to the southwest.311 Ms. Lulua’s evidence was that her mother Eileen had taught her that there is also an old Tsilhqot’in cremation site and burial ground at Chezqud.312

306 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para 101. 307 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 76. 308 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at paras. 78-79. 309 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 81. 310 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 80. 311 Plaintiff’s Argument, Appendix 3, at para. 197; Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at paras. 71-72. 312 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 73.

59 (f) Ms. Lulua learned from Eagle Lake Henry that ?Ighelqez lived at Gwedzin and fished on the creek with biniwed (fish traps) and on the lake throughout the year.313 Ms. Lulua averred that ?Ighelqez was buried at Gwedzin close to her Aunt Emily Lulua’s cabin, who also lived at Gwedzin until she died (d. 2000).314

(g) Ms. Lulua reported that her mother Eileen had a berry-picking camp for dig (Saskatoon berries) and nuwish (soapberries) at Tsi Se?an near the trail she used to get to Talhiqox from Tommy Lulua’s meadow at Naghatalhchoz.315

(h) Corroborated by Brew (1864), Ms Lulua averred that she had learned from her mother Eileen, who had learned from Doris’s great-grandmother Annie, that they would pick berries all the way down to Ses Chi along a trail that ran down the east side of Talhiqox. Ms. Lulua was taught by her great-grandmother that Tsilhqot’ins had been using the trail to get to campsites and harvest berries since the time of the ?esggidams.316

90. Elder Theophile Ubill Lulua (b. 1937) is the son of Emily Lulua (b. 1914) and the grandson of Jack Lulua (ca. 1870/1873-1949) and Jeannie Nemiah (ca. 1875-1917).317 He is the paternal great-grandson of Nunsulian (born ca. pre-1849) and Annie (born ca. pre-1849) and the maternal great-grandson of Nemiah (ca. 1827-1927) and his wife Akous.318 Mr. Lulua’s evidence related to the use and occupation of the areas around Naghatalhchoz Biny and Gwedzin Biny:

(a) Mr. Lulua averred that he has seen lhiz qwen yex (underground houses) on the south side of Naghatalhchoz Biny (Big Eagle Lake) at Sa Nagwedijan.319 Mr.

313 Plaintiff’s Argument, Appendix 3, at para. 139; Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 21. 314 Plaintiff’s Argument, Appendix 3, at para. 140; Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at paras. 21, 23. 315 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at paras. 45, 47 316 316 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 48-49. 317 Exhibit 0441, Dewhirst Report, September 2004, at 17, chart 1. 318 Exhibit 0441, Dewhirst Report, September 2004, at 17, chart 1. 319 Plaintiff’s Argument, Appendix 2, at para. 148; Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at para. 54, appendix A, site 32; Exhibit 0013A-DIG, Theophile Ubill Lulua Affidavit Map, site 32.

60 Lulua testified that he had also seen another lhiz qwen yex at Tsi Ch’ed Diz?an at the east end of the lake and had learned from Madi?an that there are more lhiz qwen yex nearby.320

(b) Mr. Lulua testified as to his aunt ?Elin (Eileen) having lived in a nenyexqungh (above ground lodge) with her son Edward when he was around 4-5 years old.321 The nenyexqungh was at Sa Nagwedijan on the south side of Naghatalhchoz Biny.

(c) Mr. Lulua has confirmed that Tsilhqot’ins live around Naghatalhchoz.322 Mr. Lulua averred that his mother, Emily Ekks (nee Lulua) was born and raised around Naghatalhchoz and was also buried there after passing away in 2000.323 Mr. Lulua’s grandfather Jack Lulua is also buried at the graveyard at Naghatalhchoz, about a mile from where he was born.324

(d) Mr. Lulua averred that he has fished all around Naghatalhchoz Biny and ?Ediny Biny.325 Along with Mr. Lulua and his family, Tommy Lulua, Henry Lulua and Edward Sill would all stay in cabins or tents at ?Ediny Biny and fish for kokanee in September and October.326 Mr. Lulua began capturing and chasing wild horses around Naghatalhchoz with Henry Lulua in 1952.327

320 Transcript, April 14, 2004, Theophile Ubill Lulua Cross-Exam, 00052, 8-44; Transcript, April 15, 2004, Theophile Ubill Lulua Redirect-Exam, 00045, 35 – 00046, 17; Exhibit 0144DIG, Theophile Ubill Lulua Digitized Map, sites “T1”, “B2”; Exhibit 0144LEG, Theophile Ubill Lulua Digitized Map Legend, sites “T1”, “B2”. 321 Plaintiff’s Argument, Appendix 2, at para. 149; Transcript, April 2, 2004, Theophile Ubill Lulua Direct-Exam, 00012, 44 – 00013, 44. 322 Plaintiff’s Argument, Appendix 3, at para. 197; Transcript, April 2, 2004, Theophile Ubill Lulua Direct-Exam, 00028, 35-36. 323 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at para. 5. 324 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at para.106; Transcript, April 1, 2004, Theophile Ubill Lulua Direct-Exam, 00043, 25 – 00044, 9; Exhibit 0142DIG, Theophile Ubill Lulua Digitized Map, site 160; Exhibit 0142LEG, Theophile Ubill Lulua Digitized Map Legend, site 160. 325 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at appendix B, polygon “H”; Exhibit 0013B-DIG, Theophile Ubill Lulua Affidavit Map, polygon “H”. 326 Plaintiff’s Argument, Appendix 2, at para. 144; Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at paras. 182-183. 327 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at para. 197.

61 (e) Mr. Lulua identified a Tsilhqot’in route out to Bella Coola traveled by generations of Tsilhqot’ins, including Eagle Lake Henry and Captain George, which went past Naghatalhchoz and Gwedzin.328 Eugene William told Mr. Lulua about taking horses to Bella Coola along that route with Mr. Lulua’s grandfather Johnny Setah, Captain George and Sammy William (Sam Bulyan)329 Eagle Lake Henry also told Mr. Lulua about using that route to take horses to Bella Coola in the early 1900s.330

(f) Mr. Lulua testified that he had been taught by Eagle Lake Henry, who was taught by Chaghani, that Gwedzin has been Tsilhqot’in territory through the sadanx, yedanx and ?undidanx time periods – i.e. for centuries.331 Several members of his family have had cabins there, including his mother, his brothers Oggie and David, and Mr. Lulua himself.332 Mr. Lulua continues to fish for Dolly Varden, trout and sucker fish and hunting deer at Gwedzin in the spring.333 Mr. Lulua averred that many other Tsilhqot’ins would stay at Gwedzin to fish in the spring and summer, with sometimes more than 100 people being there.334

(g) During the fall, Mr. Lulua hunted deer and squirrel with family members to the west of Gwedzin and also to the north in the vicinity of Lhuy Nachasgwengulin all around a place call Old Saw Mill.335 Mr. Lulua has hunted deer, squirrel and coyote all through the flat country around the road from Gwedzin up to Lhuy Nachasgwengulin.336

328 Transcript, April 2, 2004, Theophile Ubill Lulua Direct-Exam, 00001, 40 – 00002, 15. 329 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at para. 37. 330 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at para. 38. 331 Plaintiff’s Argument, Appendix 3, at para. 120; Transcript, April 2, 2004, Theophile Ubill Lulua Direct-Exam, 00024, 34 – 00025, 6. 332 Plaintiff’s Argument, Appendix 2, at para. 139; Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at para. 121, appendix A, site 16; Exhibit 0013A-DIG, Theophile Ubill Lulua Affidavit Map, site 16. 333 Plaintiff’s Argument, Appendix 2, at para. 137; Plaintiff’s Argument, Appendix 3, at para. 120; Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at paras. 120, 127-128, 200. 334 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at paras. 122-123. 335 Plaintiff’s Argument, Appendix 2, at para. 141; Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at paras. 161, 163, 192. 336 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at para. 202.

62 (h) In his affidavit, Mr. Lulua described coming down from Tsimol Ch’ed (Potato Mountain) in the late summer to pick Saskatoon berries with his mother and sister along the east side of Talhiqox Biny (Tatlayoko Lake).337 They would use some of the berries for winter supplies.

(i) Mr. Lulua averred that he has hunted deer around Talhiqox Biny (Tatlayoko Lake) lots of times and described a trail that led from the lake up to the top of Tsimol Ch’ed.338 Mr. Lulua also used to fish at the north end of Talhiqox Biny for Dolly Varden while living in the area between 1960 and 1973.339 Mr. Lulua also picked wild rhubarb along the east side of Talhiqox Biny.340

91. In addition, other Tsilhqot’in witnesses have given evidence as to the long history of Lulua family use of Naghatalhchoz Biny (Big Eagle Lake), Gwedzin Biny (Cochin Lake) and Talhiqox Biny (Tatlayoko Lake):

(a) Tsilhqot’in elder Eliza William, daughter of Jack Lulua,341 averred that she had learned from her grandmother Annie that Jamadis (Nezulhtsin)342 lived at Naghatalhchoz Biny (Big Eagle Lake) and Talhiqox Biny (Tatlayoko Lake).343

(b) Former Chief Annie Williams, granddaughter of Emily Lulua and great- granddaughter of Jack Lulua,344 averred that Gwedzin and the Talhiqox Valley have been the Lulua’s trapping area for as far back as anyone can remember.345

337 Plaintiff’s Argument, Appendix 3, at para. 166; Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at paras. 169-170. 338 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at paras. 203, 206-207. 339 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, schedule 2, site “U”; Exhibit 0013B- DIG, Theophile Ubill Lulua Affidavit Map, site “U”. 340 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, schedule 2, sites “Z”, “B1”; Exhibit 0013B-DIG, Theophile Ubill Lulua Affidavit Map, sites “Z”, “B1”. 341 Exhibit 0441, Dewhirst Report, September 2004, vol. 2, appendix C(9); Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para. 6. 342 Exhibit 0441, Expert Report of John Dewhirst, at 16.

343 Plaintiff’s Argument, Appendix 2, at paras. 150, 165; Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at paras. 15, 8. 344 Exhibit 0441, Dewhirst Report, September 2004, vol. 2, appendix C(9); Exhibit 0114, Affidavit #3 of Annie Williams, December 10, 1990, at para. 3. 345 Exhibit 0114, Affidavit #3 of Annie Williams, December 10, 1990, at para. 8

63 Ms. Williams learned that the Luluas have trapped in this area for generations from Lashway Lulua and Tommy Lulua, who both inherited their traplines from their father, Jack Lulua.346 Ms. Williams was raised at the northern end of Talhiqox Biny until she was 13 years old.347

(c) Chief Roger William explained that the Lulua family has occupied and used the area around Gwedzin for a long time, which has led to general recognition that this is their area that they will continue to use year after year.348

92. The presence of a Tsilhqot’in burial ground at the east end of Naghatalhchoz at Tsi Ched Tese?an gives further indication of the exclusivity, stability and time depth of Tsilhqot’in occupation of this area. Elder Eliza William (n. Lulua) averred that Annie (c. 1849-1937), wife of Nunsulian and Nezulhtsin, is buried at this graveyard.349 As discussed above, Hadediny (Jack Lulua) was buried at Tsi Ched Tese?an, about a mile from where he was born.350 Numerous other Tsilhqot’ns are buried there, including Emily Ekks,351 Donald Ekks352 and Tsiqun (Tommy Setah).353

93. Anthropologist John Dewhirst’s “genealogical research linking modern extended families to intergenerational customary use areas in the Claim Area” also included the descendants of Kahkul (or Qaqez) and Elizabeth.354 Kahkul and Elizabeth were born no later than 1846, were from around Big Eagle Lake or Choelquoit Lake (Naghatalhchoz) and lived in the Claim Area ca. 1846 and later.355 They had seven children including their youngest daughter Susan English (Sa Yetsen) (c. 1887-February 19, 1965), who married Tommy Lulua (August 10, 1901-

346 Transcript, September 20, 2004, Annie Williams Direct-Exam, 00050, 44 – 00051, 20. 347 Transcript, September 20, 2004, Annie Williams Cross-Exam, 00029, 2-6. 348 Plaintiff’s Argument, Appendix 2, at paras. 136,139; Transcript, October 22, 2003, Roger William Direct-Exam, 00016, 36 – 00017, 6; 00018, 34 – 00019, 3; Exhibit 0015DIG, Roger William Digitized Map, site “M”; Exhibit 0015LEG, Roger William Digitized Map Legend, site “M” 349 Plaintiff’s Argument, Appendix 2, at paras. 152-153; Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para. 8. 350 Plaintiff’s Argument, Appendix 2, at para. 152; Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at para. 106. 351 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at para. 5. 352 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at para. 6. 353 Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, at para. 53. 354 Exhibit 0443, Dewhirst Report, at para. 314, 320, 330. 355 Exhibit 0443, Dewhirst Report, at para. 318.

64 November 21, 1978), their oldest daughter Mary Ann (Daldod; Madiyan) (c. 1866-July 10, 1950), who’s daughter “Sebanie” (c. 1896-March 15, 1932) married Little George Setah (c. 1897 or June 1899- October 7, 1971), and their second daughter Agnes (c. December 1870), who begat Eagle Lake Henry (?Elegesi) (born ca. 1886/1891- April 1968)356 Kahkul was the younger brother of the Lhats’as?in, born ca. 1826, the famous leader of the Chilcotin War of 1864 in which Kahkul himself was a Tsilhqot’in warrior. 357 Relatedly, Dewhirst concluded:

In my opinion, given that Lhats 'as?in was born ca. 1826, the parents of Lhats 'as?in and Kahkul were born no later than ca. 1806. Also in my opinion, given that Kahkul came from Naghatalhchoz or the Big Eagle Lake area and had a fish trap there and considering that the Tsilhqot'in practice of traditional or customary family use areas continue for generations (Par. 29-41), the parents of Lhats 'as?in and Kahkul most likely used and occupied the Naghatalhchoz or the Big Eagle Lake area before and after 1826.358

94. Tsilhqot’in elder Minnie Charleyboy (nee Lulua) (b. 1934) is the daughter of Emily Lulua (b. 1914), but was raised by Susan English (Sa Yets’en) (ca. 1887-1965) and Tommy Lulua (ca. 1901-1978).359 Ms. Charleyboy’s evidence, including oral history sourced to Sa Yets’en and Tommy Lulua, related to Tsilhqot’in use and occupation of the areas around Lhuy Nachasgwengulin, Gwedzin, Naghatalhchoz, Talhiqox Biny and the north end of Tsilhqox Biny:

(a) Mrs. Charleyboy testified that while she was living with Sa Yets’en and Tommy Lulua in their cabin at ?Edibiny, just southwest of Naghatalhchoz Biny (Big Eagle Lake), Mr. Lulua would hunt deer in the wintertime at Talhiqox (Tatlayoko Valley).360 Ms. Charleyboy reported that Tommy Lulua also hunted coyote around Talhiqox as well as between Gwedzin and Naghatalhchoz.361 She testified that Tommy Lulua also hunted squirrels, lynx, weasels and mink from around Lhuy Nachasgwengulin, down past Gwedzin to Talhiqox Biny and also to the east end of Naghatalhchoz around Tsi T’is Gulin and further south towards

356 Exhibit 0443, Dewhirst Report, at para. 329, 332. 357 Exhibit 0443, Dewhirst Report, at para. 318, 321. 358 Exhibit 0443, Dewhirst Report, at para. 319. 359 Exhibit 0441, Dewhirst Report, September 2004, 17, chart 1; Transcript, March 1, 2004, Minnie Charleyboy Direct-Exam, 00011, 16-17. 360 Transcript, March 5, 2004, Minnie Charleyboy Direct-Exam, 00019, 22-26. 361 Transcript, March 5, 2004, Minnie Charleyboy Direct-Exam, 00022, 35 – 00024, 7.

65 Naghelilhchiny at the north end of Tsilhqox Biny.362 Mr. Lulua taught Ms. Charleyboy that Tsilhqot’ins had been doing this since the time of the ?esggidams. Ms. Charleyboy was also told stories by Sa Yets’en that her father had also trapped and Tsilhqot’ins had been trapping in these areas since the time of the ?esggidams.363

(b) Mrs. Charleyboy testified as to numerous Tsilhqot’in lhiz qwen yex (pit houses) in the Naghatalhchoz area, at Ch’ezqud, from the time of the ?esiggdams (Tsilhqot’in ancestors), per the oral history taught to her in situ by Sa Yetsen and her mother Elizabeth.364

(c) While living at ?Edibiny, Minnie Charleyboy also spent the winter in a niyah qungh (above ground lodge).365

(d) Mrs. Charleyboy testified that she used to camp at Ch’ezqud to fish for kokanee in the fall with her family.366 Ms. Charleyboy reported that quite a few Tsilhqot’ins would go there, including her mother, Sa Yets’en, Elaine Lulua, Willie George, Alec Jack, Kanlh, Maggie Baptiste and Sebay (Baptiste, a.k.a. Demedi or Timothy Stillas). They would go every year, as Sa Yets’en taught her Tsilhqot’ins have done since the time of the ?esggidams.367

(e) Mrs. Charleyboy described gathering white bark pine cone seeds at Tizlin, explaining that her grandmother Sa Yets’en had taught her that this had been done by Tsilhqot’ins since the time of the ?esggidams.368

362 Transcript, March 5, 2004, Minnie Charleyboy Direct-Exam, 00024, 39 – 00025, 39; 00026, 42 – 000027, 2; 00027, 3 – 00029, 30; 00030, 17 – 00031, 21. 363 Transcript, March 8, 2004, Minnie Charleyboy Direct-Exam, 00008, 1 – 00016, 44. 364 Transcript, March 4, 2004, Minnie Charleyboy Direct-Exam, 00011, 42 – 00015, 46. 365 Plaintiff’s Argument, Appendix 2, at para. 144; Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, 00053, 3-10. 366 Plaintiff’s Argument, Appendix 3, at para. 197; Transcript, March 25, 2004, Minnie Charleyboy Direct-Exam, 00043, 21 – 00045, 2; 367 Transcript, March 26, 2004, Minnie Charleyboy Direct-Exam, 00002, 10 – 00003, 43. 368 Plaintiff’s Argument, Appendix 3, at para. 198; Transcript, March 25, 2004, Minnie Charleyboy Direct-Exam, 00038, 29-47.

66

(f) Mrs. Charleboy testified that Ch’ezqud is where most of her ancestors lived and indeed are buried as there are also Tsilhqot’in graves there.369

(g) Ms. Charleyboy still stays at ?Edibiny. John Dewhirst has visited and photographed Minnie Charleyboy’s current camp, where she was staying with her husband Patrick Charleyboy and her son Orrie.370 The camp includes a cabin, a corral with a half a dozen horses, a traditional drying rack and farm machinery.

(h) Mrs. Charlebyoy identified meadows around Ch’ezqud, between Naghatalhchoz Biny and ?Edibiny, as the area where her grandfather Jack Lulua and Tommy Lulua used to harvest hay in the summer.371

(i) Mrs. Charleyboy testified that she learned from her grandmother that Q’asdeny (Jim Guichon) used to spend the winters at Nagwedist’an Yi of east Talhiqox Biny (Tatlayoko Lake) towards the north end.372

(j) Mrs. Charleyboy testified that she used to go to Gudilinchi at the north end of Talhiqox Biny with her family every summer to pick Saskatoons and raspberries. 373 According to oral history passed down to Ms. Charleyboy from her grandmotherAnnie Nezulhtsin, Tsilhqot’ins have been doing this since the time of the ?esggidams. Ms. Charleyboy explained the traditional Tsilhqot’in berry- picking methods:374 The berries were put in tenelh (bark-strip baskets) or qats’ay (spruce-rot baskets). Raspberries were eaten right away but Saskatoon berries

369 Plaintiff’s Argument, Appendix 2, at para. 143; Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, 00012, 30-39; Transcript, March 26, 2004, Minnie Charleyboy Direct-Exam, 00002, 10 – 00003, 43. 370 Plaintiff’s Argument, Appendix 2, at para. 145; Transcript, October 13, 2005, Dewhirst Direct-Exam, 00065, 1- 20. 371 Plaintiff’s Argument, Appendix 3, at para. 170; Transcript, March 25, 2004, Minnie Charleyboy Direct-Exam, 00018, 1-25. 372 Plaintiff’s Argument, Appendix 3, at para. 166; Transcript, March 25, 2004, Minnie Charleyboy Direct-Exam, 00003, 23 – 00004, 29. 373 Plaintiff’s Argument, Appendix 3, at para. 166; Transcript, March 24, 2004, Minnie Charleyboy Direct-Exam, 00034, 25 – 00036, 17. 374 Plaintiff’s Argument, Appendix 3, at para. 168; Transcript, March 25, Minnie Charleyboy Direct-Exam, 00012, 7 – 00014, 6.

67 were dried for later us. Soopalallie (soapberries) would be washed, boiled and pressed into solid cakes. Ms. Charleyboy explained that most of the berry bushes there have now been eaten away by cattle kept by non-Tsilhqot’ins.375

(k) Ms. Charleyboy testified that willows used to be gathered around where the berries were picked at Talhiqox Biny to make traditional Tsilhqot’in baby baskets.376 Sa Yets’en and her sisters and the ancestors before her all gathered willows here, but Ms. Charleyboy explained that she must now go to different locations to get willows because the cattle have destroyed the ones at Talhiqox Biny.

(l) Mrs. Charleyboy testified that after fishing for kokanee her family used to move to Sul Gunlin near the outlet of Chilko Lake to fish, hunt deer, gather kinnick kinnick and white bark pinecones.377 They would live in a tent with an ?el bid qungh (windbreaker), and Eagle Lake Henry used to have a cabin there but that was burned down by a white man who put in a lodge where they used to stay.378

95. Tsilhqot’in elder Francis Setah (b. 1929) was raised by his grandmother Mary Ann (Daldod).379 Mr. Setah gave evidence, including oral history sourced to his grandmother Daldod regarding the use and occupation of Naghatalhchoz and Talhiqox Biny:

(a) Mr. Setah described taking a trail between Naghatalhchoz and Gudilinchi, which his grandmother Daldod taught him was a Tsilhqot’in trail from the time of the ?esggidams.380 Mr. Setah testified that they would gather Soopallalie (soapberries) and raspberries while camped at both these locations prior to late summer salmon time and explained the ancestral Tsilhqot’in method of

375 Transcript, March 24, 2004, Minnie Charleyboy Direct-Exam, 00036, 18-28. 376 Plaintiff’s Argument, Appendix 3, at para. 169; Transcript, March 25, 2004, Minnie Charleyboy Direct-Exam, 00015, 20 – 00017, 39. 377 Plaintiff’s Argument, Appendix 3, at para. 198; Transcript, March 26, 2004, Minnie Charleyboy Direct-Exam, 00008, 33-47. 378 Transcript, March 26, 2004, Minnie Charleyboy Direct-Exam, 00003, 44 – 00004, 46. 379 Transcript, November 17, 2003, Francis Setah Direct-Exam, 00015, 19-24. 380 Plaintiff’s Argument, Appendix 3, at para. 167; Transcript, November 25, 2003, Francis Setah Direct-Exam, 00006, 16-20; 00009, 10-14.

68 processing of these berries, as taught to him by his grandmother Daldod, who had been taught by her father.381 In addition to picking berries, they would hunt for deer while camped at these locations.382 (b) Mr. Setah testified that Tsilhqot’ins, including Qawa, Tommy Lulua, Felix Lulua, Edward Lulua and Binal Lulua would camp at ?Edibiny at southwest Naghatalhchoz in September to fish for kokanee, hunt deer and gather kinnick kinnick and white pine cones.383 Mr. Setah was taught by his grandmother Daldod, who had learned from her father, that Tsilhqot’ins had been doing this since the time of the ?esggidams.

96. Anthropologist John Dewhirst’s “genealogical research linking modern extended families to intergenerational customary use areas in the Claim Area” also included the modern the Guichon family.384 Dewhirst identified the oldest recorded family ancestor as the Tsilhqot’in man Guichon, born ca. 1831/1841.385 Archival records identify Guichon as a member of Tsilhqot’ins headquartered under Chief Keogh at Tatla Lake.386 Further, Guichon (Cushen) was a warrior during the Chilcotin War of 1864 during which he killed Donald McLean, member of a colonial expedition made in this context, on the south shore of Naghalatalhchoz Biny (Big Eagle or Choelquoit Lake).387 “Old Guichon” had six children with various women, including sons who, per Dewhirst, “continued to occupy and use the traditional territory of the Indians about Tatla Lake, which included parts of the Claim Area.”388 Regarding the extended Guichon family Dewhirst concluded:389

381 Transcript, November 24, 2003, Francis Setah Direct-Exam, 00045, 46 – 00052, 13; Exhibit 0094DIG, Francis Setah Digitized Map, polygons “AE”, “AF”; Exhibit 0094LEG, Francis Setah Digitized Map Legend, polygons “AE”, “AF”. 382 Transcript, November 25, 2003, Francis Setah Direct-Exam, 00003, 41 – 00005, 14; Exhibit 0094DIG, Francis Setah Digitized Map, polygons “AH”, “AI”; Exhibit 0094LEG, Francis Setah Digitized Map Legend, polygons “AH”, “AI”. 383 Plaintiff’s Argument, Appendix 3, at paras. 165, 192, 197, 198; Transcript, November 27, 2003, Francis Setah Direct-Exam, 00033, 36 – 00044, 25; Exhibit 0095DIG, Francis Setah Digitized Map, polygons “BM”, “BN”, “BP”; Exhibit 0095LEG, Francis Setah Digitized Map Legend, polygons “BM”, “BN”, “BP”. 384 Exhibit 0443, Dewhirst Report, at paras. 353-365. 385 Exhibit 0443, Dewhirst Report, at para. 353. 386 Exhibit 0443, Dewhirst Report, at paras. 359, 363. 387 Exhibit 0443, Dewhirst Report, at paras. 355-356. 388 Exhibit 0443, Dewhirst Report, at para. 354, 360-363. 389 Plaintiff’s Argument, Appendix 3, at para. 93.

69 In my opinion, based on evidence discussed in paragraphs 356-362, archival documents and oral history show that the customary use area of the Guichon family was in the Tatla Lake area, and extended southward into the northwest portion of the Claim Area. This area includes Cochin Lake, which oral history has associated specifically with the Guichon Family (M. William 2004b:par. 56v). …

Considering the Tsilhqot' in cultural pattern of family customary use areas, the Guichon family area was in the western portion of the Claim Area including Tatlayoko Lake, Cochin Lake and Naghatlhchoz~, the area around Big Eagle or Choelquoit Lake. Because of these customary use areas, I am of the opinion that Guichon's parents likely occupied and. used the Claim Area before and after ca. 1841.390

97. Tsilhqot’in elder Mabel William also gave oral history evidence, sourced to Guichon’s son Gwetsen (Teddy Guichon), regarding the killing of Lewis Elkin at Gwedzin Biny (Cochin Lake):391

Tsilhqot'ins called Ed Elkin's brother Midugh Ch'edatiz (White Man's Image). I can't remember his white name other than Elkin. I learned about when Sumayu killed him from the late Tsilhqot'in man Gwetsen. His other name was Teddy Guichon. I was there when Gwetsen told my father about it. This is the story I learned:

(i) Sumayu was Tsilhqot'in. He was the brother of ?Aleqem.

(ii) Elkin had settled on a piece of land near Gwedzin Biny (Cochin Lake) and set up a store there. It was xi (winter). Sumayu delivered supplies and mail with his sleigh to Elkin at his store. Elkin did not offer Sumayu any food or pay him.

(iii) Sumayu slept near Elkin's store. In the morning, he went to Elkin's store and started looking at the guns. One-by-one Sumayu looked at the guns. He was pretending he was interested in buying one. Sumayu was looking for one with a gun shell in it.

(iv) Elkin was eating and washing dishes. Sumayu shot him.

(v) Sumayu went over and told Gwetsen and his brother Sulin what had happened. They were living at Gwedzin Biny (Cochin Lake). Their family was from there. Then Sumayu took the horse that he was taming for Elkin and went on his way. He went to Xeni (Nemiah Valley).

390 Exhibit 0443, Dewhirst Report, at paras. 364-365. 391 Exhibit 0156-1877/02/13.001, Letter from McKinlay to Premier Elliott, at 2.

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(vi) The police came to Gwedzin Biny (Cochin Lake). They were looking for Sumayu because he had killed a white man. Sulin guided the police over to Xeni (Nemiah Valley).

(vii)Sumayu was at Sit'ax and Nancy's cabin at Tats'ust'an in Xeni (Nemiah Valley) when he got caught by the police. He had a gun when they found him. Sulin had the police stay hidden. He talked Sumayu into target shooting so he would use up his gun shells. Sulin then signaled to the police and they came and caught him.

(viii)The police took Sumayu back to Gwedzin Biny (Cochin Lake) by horse. Then they took him to jail by sleigh.

(ix) Sumayu was put in jail for his lifetime. He was a really young man at the time.392

c. Additional Expert Opinion

98. Dr. Matson’s archaeological evidence is corroborative. His opinion is clear that the Tsilhqot’in occupied the western Claim Area that includes the lands about Big Eagle or Choelquoit Lake, Gwedzin Lake, Little Eagle Lake and Tatlayoko Lake as of prior to the end of the 17th century.393 His conclusions were based on archaeological evidence, which provided time depth on Athapaskan occupation of the area combined with the ethnographic record and the fact that, as he put it, “Big Eagle Lake is famous for being part of the heartland of the Tsilhqot’in.”394 Indeed, the historic phase was termed the “Lulua phase”, demonstrating recognition of their extensive presence in the area.395 Similarly, Dr. Dinwoodie concluded that the archaeological record indicated that Big Eagle Lake was a “really important area” for the Tsilhqot’in.396

99. Dr. Brealey’s opinion is corroborative: His evidence confirms that the Tsilhqot’in trail network connecting Tatla Lake, Little Eagle Lake, Cochin Lake, Tatlayoko Lake, Choelquoit

392 Exhibit 0174, Affidavit #2 of Mabel William, para. 56. 393 Plaintiff’s Argument, at paras. 234, 870-872; Plaintiff’s Argument, Appendix 3, at para. 9. 394 Transcript, May 10, 2004, Dr. Richard Matson Direct-Exam, 00040, 1-44. 395 Transcript, May 10, 2004, Dr. Richard Matson Direct-Exam, 00040, 46-47. 396 Plaintiff’s Argument, Appendix 2, at para. 146; Transcript, January 12, 2005, Dr. David Dinwoodie Cross-Exam, 00022, 42-46.

71 Lake, Chilko Lake and the Chilko River valley is of pre-contact Tsilhqot’in origin.397 Based on the record of Marcus Smith (1872) and James Teit (1909), and Dr. Robert Lane’s dissertation (1953),398 Dr. Ken Brealey mapped the northwest Trapline as fishing, hunting (including trapping) and gathering grounds from pre-contact times until at least the smallpox of 1862.399 Further to Smith (1872), Dr. Brealey mapped these lands as continuing fishing grounds through to the post-reserve creation period.400 Premised on the work of Sage Birchwater (1995), Dr. Brealey mapped the essential patterns of Tsilhqot’in land use and occupancy as encompassing hunting, fishing and gathering the north west Trapline through into the post-reserve creation period of the 20th century.401

100. The evidence British Columbia’s witness Morley Elridge, archaeologist, is helpful. Regarding the Tsilhqot’in village that anthropologist John Dewhirst identified at Tatlayoko Lake, Mr. Eldridge concluded that there was a clear link between the available historical documentation considered by Dewhirst and sites EjSc-1 and EjSc-9 listed in the British Columbia registry of archaeological sites.402 Mr. Eldridge also noted that a wide variety of berries and plants were gathered by Tsilhqot’ins during the summer, including soapberries, blueberries, raspberries, strawberries, kinnick kinnick, and white pine cones, some of which were eaten fresh and some of which were dried for winter use.403

d. General Points

101. In terms of the significance of the lakes areas in question to Tsilhqot’in culture, broadly understood, the oral history and expert evidence regarding ancient Tsilhqot’in creation narratives or legends indicate that the Tsilhqot’in were and remain centrally connected to them, particularly as the dominant geographic features all around them have legendary significance:

397 Plaintiff’s Argument, Volume 3, at para. 914; Exhibit 0240, Brealey Report, at 48, 49 (fn 9); Exhibit 0245, Brealey Map, Geographic Features. 398 Exhibit 0156-1900/00/00.001, Teit, “Notes of the Chilcotin Indians”, 1909; Exhibit 0175, Robert Lane, Cultural Relations of the Chilcotin Indians of West Central British Columbia, March 1953. 399 Exhibit 0246, Brealey, Land Use and Occupancy Map, October 2003. 400 Exhibit 0246, Brealey, Land Use and Occupancy Map, October 2003. 401 Exhibit 0146, Brealey, Land Use and Occupancy Map, October 2003 402 Plaintiff’s Argument, Appendix 3, at para. 193; Plaintiff’s Argument, Appendix 2, at 164; Transcript, May 12, 2006, Morley Eldridge Cross-Exam, 00081, 23 – 00082, 2. 403 Plaintiff’s Argument, Appendix 3, at para. 165; Transcript, May 25, 2006, Morley Eldridge Cross-Exam, 00030, 26 – 00031, 15; 00037, 38 – 00038, 35.

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(a) The Ts’il?os and ?Eniyud creation narrative identifies Tsilhqot’ins living at Naghatalhchoz (Big Eagle Lake). Tsilhqot’in oral history404 explains in the times of the ?esggidams (Tsilhqot’in ancestors) Ts’il?os and ?Eniyud were Tsilhqot’in husband and wife living with their family in the mountains south of Xeni (Nemiah Valley). When the two decided to separate ?Eniyud left Ts’il?os and returned northwest to the area around Naghatalhchoz (Choelquoit Lake).

(b) Having left Ts’il?os in the southern mountains where sunt’iny (mountain potato) grow ?Eniyud seeded various other areas with sunt’iny, the last of which was the bountiful Tsimol Ch’ed (Potato Mountain) to the south.405

(c) Having broken their marriage bond by separating, Ts’il?os and ?Eniyud consequently turned into mountains (an example of ba ts’egudah – having negatively affected one’s future). Thus, ?Eniyud (Niut Mountain) bounds the lands in question in the southwest. As a person, he must be respected, as must the land. Further, she and is charged with the responsibility of protecting and watching over the Tsilhqot’in, including those before her in the Talhiqox Biny (Tatlayoko Lake), Naghatalhchoz Biny (Big Eagle or Choelqouit Lake) and Gwedzin (Cochin Lake) areas.406

(d) In the narrative of Salmon Boy,407 a Tsilhqot’in boy playing with friends along the bank of the Tsilhqox (Chilko River) jumps onto a piece of ice in the river and floats out to sea. The Tsilhqot’in boy transforms into a salmon, accompanying the others on their long journey. It is Tizlin Dzelh (Tullin Mountain) that eventually guides them back to their spawning grounds near the mouth of Tsilhqox Biny. Salmon Boy is then caught by a Tsilhqot’in family at the river and transforms back to reveal himself as their lost son. Notably, this narrative teaches

404 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 36. 405 Plaintiff’s Argument, Volume 3, at para. 888, 896-897. 406 Plaintiff’s Argument, Volume 3, at para. 898. 407 Plaintiff’s Argument, Volume 3, at para. 890.

73 Tsilhqot’ins to use Tizlin Dzelh (Tullin Mountain), to the southeast of Naghatalhchoz, to orient themselves and find their way home. This legend demonstrates that this mountain is an important feature of the Tsilhqot’in homeland both symbolically and geographically.

(e) In the Tsilhqot’in legend of The Man And The Three Wolves408 a man who is ice fishing on Tatl’ah Biny during the winter meets Three Wolves transformed into men, who give him bear fat and teach him how to hunt bears in their dens during the winter. Of course, Marcus Smith (1872) reported encountering a group of Tsilhqot’ins headquartered at Tatla Lake, whom he classified as “Stone Indians” with stations on the lakes from Tatla Lake to the Chilko River.409

(f) Dr. Dinwoodie’s evidence is that the nature of Tsilhqot’in occu pation of land is best understood by also considering that their cultural relationship to lands went well beyond their utilitarian interests in it. In particular, Tsilhqot’in cultural relationship to land is empirically attested in their geographic place names and associated narratives.410

102. The evidence regarding Tsilhqot’in place names also supports the fact of Tsilhqot’in occupation of the Naghatalhchoz, Talhiqox, Gwedzin and Lhuy Nachasgwengulin areas centuries. British Columbia’s archaeologist Morley Eldridge was of the opinion that aboriginal place names, by their nature, tend to be relatively stable over time. Furthermore, an abundance of different types of aboriginal place names justifies a presumption that the aboriginal group with which the names originate has occupied the named area most likely for centuries. This view is consistent with Dr. Dinwoodie’s “preliminary research suggests that Tsilhqot’in ethnogeographic terminology (place names, geographical nomenclature and associated narratives is abundant and the nature of that terminology supports the inference that their occupation of the territory has been exclusive and long term.” Tsilhqot’in witnesses used a litany of Tsilhqot’in ethnogeographic terms with respect to the lands in question:

408 Plaintiff’s Argument, Volume 3, at para. 892. 409 Exhibit 0240, Brealey Report, September 2004, at 30. 410 Plaintiff’s Argument, Volume 3, at para. 885.

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Naghatalhchoz Tsi T’is Gulin Tsi Ch’ed Diz?an Sa Nagwedijan ?Edibiny Ch’ezqud Naghelilhchiny Gwedats’ish Talhiqox Ses Chi Tachidilin Taghinlin Telhiqox Telhates Gudilinchi Datasan Ts’i Setan Nanudenilah ?Elhdan Banx Gwedzin Lhuy Nachasgwengulin

103. The expert and lay evidence also support the fact that from the Tsilhqot’in perspective Tsimol Ch’ed is Tsilhqot’in nen (land):

(a) In the words of human geographer, Dr. Brealey:

In oral societies, boundaries are recognized, understood and validated not by maps and plans, but from ‘inside the collective’ – i.e. by where creation narratives fade, where genealogical linkages can no longer be traced, where place names are not recognizable, and where languages become unintelligible.411

As discussed above, creation narratives relating to Tsilhqot’ins of the lands in question are alive and well, genealogical linkages for various modern Tsilhqot’in families are traceable to the lands as customary use areas, Tsilhqot’in place names identify the district, and the language of its aboriginal inhabitants is clearly Tsilhqot’in.

(b) From the evidence of Tsilhqot’in elder Minnie Charleyboy it is clear that Tsilhqot’ins see these lands as theirs by birthright, handed down from the ?esggidams:

411 Exhibit 0240, Brealey Report, September 2004, at 6.

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You cannot give up your birthplace, because you are born there. And also your grandfather and your mother and your ancestors are buried in those area. So it’s really important for us. We cannot let go of the land.412

(c)This perspective is echoed in the statements of elder Doris Lulua:

It's Tsilhqot'in land. … Chilko Lake, Bud McLean, where he has his lodge, that's where the Tsilhqot'ins would live. That's Tsilhqot'in land. Chelquoit Lake, all over there, that's Tsilhqot'in land. Tsilhqot'ins lived in that area. Gwedzin Lake also. That's considered Tsilhqot'in land all over. Tatla Lake area, all over there. … And Telhiqox also. … Ever since earth began they've lived -- they have lived here.413

(d) Elder Theophile Ubill Lulua was unequivocal in his description of the land around Gwedzin and Talhiqox Biny, stating: “That’s Indian Country up there… [T]hat’s always been Tsilhqot’in territory… [T]hat’s been Tsilhqot’in territory up by Gwedzin and over to Talhiqox Biny for a long, long time.”414

3. SUMMARY AND CONCLUSION

104. Prior to, at and well after Crown sovereignty Tsilhqotins constructed dwellings at Naghatalhchoz Biny (Big Eagle or Choelquoit Lake), Gwedzin Biny (Cochin Lake), Talhiqox Biny (Tatlayoko Lake) and Lhuy Nachasgwenguln Biny (Little Eagle Lake) and and regularly exploited the lands about these lakes as trapping, hunting, fishing and gathering grounds.415 This fact is established on a balance of probabilities by a coherent set of evidence from the historical record, expert opinion and oral history. The Tsilhqot’in have aboriginal title to the Big Eagle Lake (a.k.a. Choelqouit Lake) basin, the Cochin Lake basin, Tatlayoko Valley and Little Eagle Lake basin as circumscribed by the Trapline Claim Area.

412 Plaintiff’s Argument, Volume 3, at para. 934; Transcript, March 26, 2004, Minnie Charleyboy Direct-Exam, 00023, 16-20. 413 Plaintiff’s Argument, Volume 3, at para. 934; Transcript, September 9, 2004, Doris Lulua Cross-Exam, 00012, 18 – 00013, 46. 414 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at para. 121. 415 Plaintiff’s Argument, Appendix 3, at paras. 136, 152, 186.

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C. TSIMOL CH’ED (POTATO MOUNTAINS)416

1. DEFINITE TRACT OF LAND

105. In terms of physical terrain, the Potato Range is a definite tract of mountainous land in the western Claim Area. Tatlayoko Valley bounds it in the west along its major peaks. The Big Eagle or Choelquoit Lake basin sits at the Range’s northern perimeter. Chilko Lake defines the Potato Range, including Tullin Mountain, in the northeast. The Cheshi Creek pass bounds the southeastern frontier. Lingfield Creek constitutes its major waterway, its sources including small high elevation lakes, and drains northeast to the Chilko River. These names delineate this tract of land from a non-Tsilhqot’in point of view.

106. The Tsilhqot’in know this definite tract of land as Tsimol Ch’ed (Potato Mountain). Tsilhqot’in names identify its bounds and features. Talhiqox (Tatlayoko Valley) bounds Tsimol Ch’ed in the west. Naghatalhchoz (Big Eagle or Choelquoit Lake area) is located on the northern front. Tsilhqox Biny defines Tsimol Ch’ed, and its peak Tizlin Dzelh (Tullin Mountain), in the northeast. The Ses Chi (Cheshi Creek) pass bound Tsimol Ch’ed in the southeast. Sheshanqox (Lingfield Creek) is its primary watercourse, sourced to the small lakes ?Edaz Biny and ?Enes Biny, and runs northeast to the Tsilhqox (Chilko River).

2. PHYSICALLY OCCUPIED BEFORE, AT & AFTER CROWN SOVEREIGNTY

107. The plaintiff submits that prior to, at, and well after sovereignty, the Tsilhqot’in physically occupied the Potato Mountains through regular use for the construction of dwellings, cultivation of roots and exploitation of resources through hunting, gathering and fishing.417 The Potato Range was were intensively and systematically harvested through the early summer months by large numbers of Tsilhqot’ins who gathered at there for this purpose. A cogent body

416 Additional information on occupation of the Potato Range can be found within the Plaintiff’s Argument, including Appendix 3 paras 142 to 151; and Appendix 2 paras 167 through 170. 417 Plaintiff’s Final Argument, Appendix 3, paras. 142 -151.

77 of evidence from the historical record, expert opinion, and oral history establishes these facts on a balance of probabilities.

a. Historical Record and Related Expert Opinion

108. The nature of the emergent historical record as it relates to the Potato Range is that it largely divides into two time periods, each with its own ‘on the ground’ ‘lines of sight’ per Dr. Brealey.418 The first period of 1822-1845 is comprised of furtrader and missionary documents based on visits to the Tsilhqot’in population with winter villages and residences northeast of the Potato Mountains at the outlet of Chilko Lake and on the Chilko River. The second time period of 1845-1875 is constituted by documents of a missionary, a surveyor and Crown authorities as they visit the area of lakes north and northwest of the Potato Range, as well as the Range itself, ultimately identifying the Tsilhqot’in population that kept winter residences in the lakes area as part of the band of “Tatla Lake Indians” under Chief Keogh. The Euro-Canadian knowledge base that emerges from this archival record is consistent with and supports a finding of these two resident Tsilhqot’in populations regularly using the Potato Mountains for hunting and root gathering prior to, at and after Crown sovereignty in 1846. Indeed, combined with the related expert opinion this fact is well established.

109. In January of 1822, furtrader George McDougall and his party visited Tsilhqot’ins on the Chilko River as the first Europeans to enter Tsilhqot’in territory. He records the Tsilhqot’in as “a fine, brave looking set of Indians, whose lands are far from being poor either, as to beaver or Large Animals.” Regarding the river and “this Lake of theirs” [i.e. Chilko Lake], McDougall reports being advised of “6 Large Ground Lodges, about the Lake, containing 53 Families from the place where we fall upon the River to the entrance of the Lake 25 & below that 4 others, in all along the River 29 Lodges containing 131 Families.”419 Anthropologist John Dewhirst estimated the population on the Chilko River as 890 people, including some below the Chilko- Chilcotin confluence, with another 360 persons about Chilko Lake, a portion of whom resided at the lake’s outlet.420

418 Exhibit 0240, Expert Report of Kenneth Brealey, at 33. 419 Exhibit 0156-1822/01/18.001 at 5, 6. 420 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at paras. 136-144, 203.

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110. In December of 1825, William Connolly reached Tsilhqot’ins residing at their salmon caches on the Chilko River and at the entrance to Chilko Lake at its outlet. Connolly recorded that these Tsilhqot’ins informed his party of their subsistence partly based on deer and sheep, of which the country was pretty well stocked.421 The opinion of anthropologist John Dewhirst is that Connolly met with Tsilhqot’ins from the village of “Taze Ley” (i.e. Tachi Lhuy) at the Chilko Lake outlet. Further, “these animals were hunted around Chilko Lake in the Claim Area, as well as other places, because a Tsilhqot’in village [“Taze Ley”] was located at the entrance to the lake.”422 The Potato Range wraps around northwest Chilko Lake, directly above this village at the entrance to Chilko lake from Chilko River.

111. In 1827, McGillvary recorded that Tsilhqot’ins of Chilko River and Chilko Lake regularly exploited their large animal resources such as deer.423 Anthropologist John Dewhirst opined, “McGillvary shows that Chilko Lake and Chilko River fisheries together with big game resources in the surrounding area support the resident Tsilhqot’in population year round.”424 The Potato Range is home to big game resources and is in the surrounding area of Chilko Lake.

112. Importantly, in October 1829, McDougall arrived to build the Chilcotin Post site near the Chilko River and recorded that Tsilhqot’in families who winter on the river and on Chilko Lake were at their root harvesting grounds in the mountains:425

I have seen but few Indians yet and those are mostly young Lads with two old men the principal men are all off to the interior with their families, some to hunt Beaver, but the most of them to their root Grounds, and before the latter are back the season will be too far advanced to send them to hunt with any prospect of success those here have a few parchment Beaver, with three Beaver robes one of them new but unless I give a dressed skin for each it will be difficult to get them, the Indians of the lake are off to the mountains but are expected back in the fall, as the most of their families have remained to gather roots.426 [Emphasis added.]

421 Plaintiff’s Argument, Appendix 3, at para. 83(a). 422 Plaintiff’s Argument, Appendix 3, at para. 83(b). 423 Exhibit 0156-1827/00/00.001 at 215. 424 Plaintiff’s Argument, Appendix 3, at fn. 211, para. 173-174. 425 This is not to say that the Tsilhqot’ins were conducting their root harvests then. Rather, McDougall’s comments are consistent with the Tsilhqot’ins in the fall, post-late summer salmon time, having returned to their early summer root harvesting grounds in the mountains to continue hunting. 426 Exhibit 0156-1829/10/18.001.

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113. Anthropologist John Dewhirst stated with respect to McDougall’s comments in 1829: Archival documents relating to the Cascade Mountains on the west… side of the Claim Area, including the Potato Mountains on the west side of Chilko Lake, show evidence of use and occupation in 1829… The context… reported indicate[s] that use and occupancy took place seasonally as part of an annual round, which indicates long term, regular seasonal use over many generations.

…

In my opinion, the "Indians of the lake" refers to the Tsilhqot'in living at the entrance to Chilko Lake, and the mountains to which McDougall refers are most likely the Potato Mountains on the west side of Chilko Lake, known from other accounts to have been used by the Tsilhqot'ins. The fact that this area is associated with the seasonal round indicates use and occupancy of the area undoubtedly took place before 1829.427

114. In 1831, furtrader Ross Cox recounted his years in west of the Rocky Mountains and provided a brief sketch of Chilcotin country that described Chilko River and Chilko Lake.428 Regarding Cox, Dr. Brealey stated, “while he does not specify the extent of ‘their hunting grounds’ would most certainly include the ‘many creeks issuing therefrom’ (and into the Chilko and Chilcotin Rivers and Lakes)… .”429 Lingfield Creek issues from the Potato Mountains and into the Chilko River just downriver from the Chilko Lake outlet.

115. In 1838, the Chilcotin Post census identified a Tsilhqot’in winter village on or near the outlet of Chilko Lake (i.e. the village of “Taze Ley”, or Tachi Lhuy), as well as three others down the Chilko River at “Tsu Luh” (Tsilangh), “Tlo quot tock”(Tl’egwat’ed) and “Koo Tsil” (Gwetsilh).430 The reported population alone for “Taze Ley” was 194 people, including 46 hunters, estimates that were assuredly too low.431 Dewhirst concluded these Tsilhqot’ins

427 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, paras. 209, 211 and 176. 428 Exhibit 0156-1831/00/00.01: Ross Cox, Adventures of the Columbia River…, at 3000018-20. 429 Exhibit 0240, Expert Report of Kenneth Brealey, at 9. 430 Plaintiff’s Argument, Appendix 3, at para. 59; Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at 50-88. 431 Plaintiff’s Argument, Appendix 3, at para. 60; Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at 99, 397, 84; Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, at para. 50(vi).

80 “undoubtedly used… hunting grounds… most likely in the Claim Area.”432 The Potato Mountains are situated to the immediate southwest of the Chilko Lake outlet to Chilko River.433

116. In November of 1845, Father Giovanni Nobili reportedly visited three areas where Tsilhqot’ins were resident at winter’s onset. According to Dr. Brealey, the first was at the former Fort Chilcotin (or Chilcotin Post) around the Chilko – Chilcotin River confluence, the second likely was at Tatla Lake where Nobili noted “three big lodges, with approximately one hundred and thirty people in them,” while the third was at or near the outlet of Chilko Lake with an estimated 150 people lead by Chief “Konkwaglia”.434 Further, in doing so Nobili confirmed that those whom Smith (1872) classified as Stone included groups headquartered at Chilko Lake and Tatla Lake.435

117. In the summer of 1862, Lt. Palmer traveled north of the Claim Area from Bella Coola to Fort Alexandria. Palmer noted that “[the Chiloctens] dwell in the mountains [and] occupy the country traversed by the fifth and sixth sections of our journey, are seen in a purely savage state of existence, clothed in furs, armed with bows and arrows, in the use of which they are singularly expert… .”436 Dewhirst ascertained the “fifth and sixth sections of our journey” and concluded, “[i]n my opinion, the Tsilhqot'in territory described by Palmer and his reference to the Tsilhqot'in dwelling in the mountains includes the Claim Area,437 of which the Potato Range is a part.

118. In 1862-63, smallpox epidemics occurred amongst the Tsilhqot’in.438 According to Father Thomas, these epidemics “killed nearly all the Chilco Lake, Eagle Lake and Tatla Lake Indians. Seve[n] or eight families remained at those places but the others joined [Chief] Anaham’s Camp.”439 In this regard, Dewhirst stated:440

432 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at paras. 175-176, 397. 433 Plaintiff’s Argument, Appendix 3, at para. 59; Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at para. 189. 434 Exhibit 0240, Expert Report of Ken Brealey, at 26-28 re Nobili, 60 re Fort Chilcotin, 74 re Tatla Lake and 56 re Chilko Lake; Exhibit 0156-1845/11/30.001 at 2195814, 2195816-7. 435 Exhibit 0240, Expert Report of Ken Brealey, at 28. 436 Exhibit 0156-1863/00/00.001. 437 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at para. 214. 438 Exhibit 0240, Expert Report of Ken Brealey, at 7. 439 Exhibit 0156-1948/00/00.001 at 38; Exhibit 0443, Dewhirst Report, at paras. 240, 252.

81

In my opinion, this information came from oral history communicated to Father Thomas, probably in the early 20th century when he was active as a missionary among the Tsilhqot'in. I am also of the opinion, based on this information, that Tsilhqot'ins lived in the Chilco Lake, Eagle Lake and Tatla Lake areas prior to the smallpox epidemics of 1863 and that some families survived the epidemics and continued to live in those areas.

In my opinion, Father Thomas' information indicates that there was a significant Tsilhqot'in population in the northwestern part of the Claim Area before the smallpox epidemics of 1863. It also shows that more than seven or eight families survived the epidemics, because an unspecified number of surviving families joined Anaham's camp. Seven or eight surviving families remained in the above areas and continued to use and occupy them.441

119. In mid-July, 1864, the colonial expedition of armed militia under magistrate William Cox advanced south from Tatla Lake “into Klatassine’s favourite hunting and fishing territory, the mountainous range between Moseley Creek…and Chilko Lake…[and where] scouting parties [scouted]…dozens of Indian trails criss-crossing the area…”442 [Emphasis added.] The Potato Range is situated exactly between Moseley Creek and Chilko Lake. Indeed, Dr. Brealey’s evidence is that Cox’s party traveled south from Tatla Lake to the northwest foot of the Potato Range.443

120. On July 16, 1864, William Cox’s party camped by “a stream running into Choelqouit Lake” (i.e. Big Eagle Lake, or Naghatalhchoz Biny) located at the northern foot of the Potato Mountains. There, per Dr. Brealey, the next day they suffered the casualty of Donald McLean’s killing.444 On July 22, 1864, Cox signed a map prepared based on information from Chiefs Alexis and Eulas and which has become known as the Chilcotin War Map. The map identifies Big Eagle or Choelquoit Lake as “McLean’s L or Chilcote”.445

440 Plaintiff’s Argument, Appendix 3, at para. 93. 441 Exhibit 0443, Dewhirst Report, at para. 241 and 254. 442 Exhibit 0240, Expert Report of Ken Brealey, at 42. 443 Exhibit 0244, Chilcotin War Map prepared by Ken Brealey. 444 Exhibit 0240, Expert Report of Ken Brealey, at pp. 42m, 41t, 39m; Exhibit 0244, Chilcotin War Map prepared by Ken Brealey. 445 Plaintiff’s Argument, Volume 3, at para. 909(g); Exhibit 0265-1864/00.00.002.

82 121. The Chilcotin War Map also identifies a trail network connecting Tatla Lake with the lakes about the northern front of Potato Mountain, namely, Little Eagle Lake, Cochin Lake, Tatlayoko Lake, Big Eagle or Choelquoit Lake and the Chilko Lake outlet. It also shows a trail along below the Chilko Lake outlet running the west side of the Chilko River. Dewhirst discussed these trails as “an extensive trail network that connects the Tatlayoko-Tatla Valley to the Chilko Lake-Chilko River Valley… In my opinion the trail network, already established in 1864, was formed over many years of use and occupancy that undoubtedly pre-date 1846, only 18 years earlier.”446

122. On August 8, 1864, the colonial expedition under Chartres Brew departed for Tatlayoko Lake and, on the 12th, per Dr. Brealey, “made camp some 2,000 feet up the west slopes of the Potato Range. …[S]earch parties were dispatched up the various gaps through the range….”447 Based thereon, Chartres Brew reported “in a hollow on a high Mountain near a small lake, he [Mr. Elwyn] discovered the large camp in which the Indians were when Mr. McClean [sic] was killed.”448 [Emphasis added.]

123. On August 28, 1864, John Brough’s party under Chartres Brew crossed from Tatlyoko Lake east into the Potato Range: “Mr. Elwyn with nine men, including myself, 2 Indians and a horse with 14 days provisions started to examine the country to the East of the mountains on Teethalico Lake. Went through the pass we went on a former occasion[.]”449 The next day, traveling southwest Brough reported, apparently regarding the camp previously described by Chartres Brew:450

Fine open hilly country, crossed several patches of eternal snow. Scenery magnificent. At 10 a.m. arrived at a small creek where several trails branched off. Camped to follow these trails, all ran out a mile or two save one. Lots of things lying about and places where the horses have been picketed. This was a large encampment lately abandoned. Considerable shooting at trees had been carried

446 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at paras. 244-246. 447 Exhibit 0240, Expert Report of Dr. Ken Brealey, September 22, 2004, at 42; Exhibit 0244, Brealey Map, Chilcotin War. 448 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at para. 223. 449 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at paras. 219-221. 450 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at paras. 222- 223; Exhibit 0156-1864/06/29.001 at 100611.

83 on. Great number of old huts451 are around this quarter. It has evidently been a hunting ground of some note in the days of other years. [Emphasis added.]

124. On September 9, 1864, Governor Seymour reported on the Chilcotin War to the Colonial Office of Great Britain. In his dispatch, Seymour referenced the probable extent of “the Territory occupied by the Chilcotens” and, in the south, “the sweep of the Cascade mountains it was believed many of the Chilcotens their hunting and fishing grounds… .”452 Dewhirst located this reference to “their hunting and fishing grounds” as including the mountainous Claim Area around Chilko Lake – e.g. the Potato Range. Moreover, Dewhirst opined that Seymour’s report is based on a “recognition of long use and occupancy of Tsilhqot’in territory that pre-dates 1846 in those areas, unless otherwise stated.”453 He did not state otherwise.

125. In August of 1872, Marcus Smith reportedly camped “by the margin of Tatla Lake not far from the camp of Keogh, the chief of a small band of Indians who subsist by fishing on the lakes and hunting on the slopes of the Cascade mountains, from which they have the local name of ‘Stone Indians’ [Emphasis added].454 The slopes of the Potato Range are in the Cascade Mountains directly southeast of Tatla Lake.

126. In November of 1872, Smith further reported, “[o]n the northwest side of Tatla Lake… are the head quarters of Keogh, the Chief of the Stone Indians… They have also stations by the lakes in the mountains from Tatla to the headwaters of the Chilco River - ….”455 The Potato Range is at the proximate southern boundary of this area of lakes. Regarding Smith’s report Dewhirst concluded:

451 Exhibit 0432, Affidavit # of Elizabeth Jeff, November 13, 2004 at 16-18 and Exhibit B to affidavit 0432. 452 Exhibit 0156-1864/09/09.001. 453 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at paras. 272-273. 454 Exhibit 0156-1872/06/14.001 at p. 118, Marcus Smith Journey to Bute Inlet from Appendix E of CPR Report; Exhibit 0240, Expert Report of Ken Brealey, at 30. In footnote, pinpoint cite to 1st Smith primary document identified in Brealey, Exhibit 0240, at p. 30, fn. 45. Document is presumably in Ex. 156. Having cited the primary document, also cite Exhibit 0240, Expert Report of Ken Brealey, p. 30. Check text for exact accuracy per primary document. 455 Exhibit 0156-1872/11/29.001 at p. 2000321, Letter from Marcus Smith to Walkem Nov 29, 1872; Exhibit 0240, Expert Report of Ken Brealey, at 30. In footnote, pinpoint cite to 2nd Smith primary document identified in Brealey, Ex. 240, at p. 30, fn. 45, same as the one cited in Ex. 443, para. 275. Document is presumably in Ex. 156. Having cited the primary document, also cite Exhibit 0240, Brealey Report, p. 30, fn. 45.

84 I am of the opinion, based on Smith's description, that the Tatla Lake Indians also used the western part of the Claim Area in that their territory included stations along the mountain lakes between Tatla Lake and the headwaters of the Chilko River. In my opinion, those lakes would include Little Eagle Lake, Cochin Lake, and Big Eagle or Choelquoit Lake. It is noteworthy that the Chilcotin War map of 1864 shows a trail from Tatla Lake to the outlet of Chilco Lake (British Columbia 1864). As discussed above, this trail system undoubtedly formed over many years of use and, in my opinion, must pre-date 1846. My genealogical research linking modern extended families to intergenerational customary use areas in the Claim Area (Section 3.0) also confirms the use and occupation of the Claim Area by Tatla Lake Indians.456 Their use and occupation of the area relied upon the trail networks to provide access to village and resource sites, such as fisheries and hunting grounds.457 [Emphasis added.]

127. In 1890, surveyor A.L Poudrier was instructed to undertake an exploratory survey of “the Chilcotin country proper.” In his lengthy report Poudrier closed noting that “the Chilcotins…have villages on Risk Creek - … - on Puntzee – Chilco and Cluscus lakes.”458 [Emphasis added.] On his map Poudrier also depicted a trail running from the outlet of Chilko Lake down the west side of the Chilko River to the Chilko-Chilcotin confluence.459 With respect to this trail, Dewhirst reiterated his conclusion regarding the Chilcotin War Map of 1864, namely, that “[i]n my opinion such aboriginal trails formed from regular use over many generations, and were present before 1846.”460

128. In a letter to the Surveyor General in 1922, surveyor R.P. Bishop reported that, “on the potato mountains’ the Indians spend some time every year laying in a supply of wild potato… in the early summer.”461 [Emphasis added.]

b. Genealogical Record, Related Expert Opinion & Tsilhqot’in Evidence

129. With respect to “the use and occupation of the Claim Area by Tatla Lake Indians”, supra re Marcus Smith (1872), anthropologist John Dewhirst’s “genealogical research linking modern

456 As will be discussed, this research includes the Potato Mountains as a customary use area of the extended family descendant from Chief Keogh which includes Tsilhqot’in elder Mabel William. 457 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at paras. 276. 458 Exhibit 0156-1890/12/19.001: Report from A.L.Poudrier, 19, December 1890, at 2000880, 2000891. 459 Exhibit 0265-1890/00/00.001. 460 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at paras. 202, 200. 461 Plaintiff’s Argument, Appendix 3, at 148.

85 extended families to intergenerational customary use areas in the Claim Area” included the descendent family of Chief Keogh himself.462 Chief Keogh (alt. Kreor) and his wife Kadoulie (Gadulin) had seven children, including their eldest child Annie (Hanlhdzany).463 Annie married William Bonzing (Bendzi) and they begat the William family of the Tsilhqot’in community at Tsi Del Del.464 In this regard, its was Dewhirst’s opinion:

Archival documents, confirmed by oral history, show that the customary use area of the Tsi Del Del William family is in the northwest part of the Claim Area, specifically areas south of Tatla Lake including Tsimol Ch'ed [Potato Mountain], … . In my opinion, archival documents and oral history demonstrate that ancestors of the Tsi Del Del William family, Kréor and Kadoulie, used the Claim Area Ca. 1844 and after. Given the Tsilhqot'in practice of traditional or customary family use areas (Par. 29-41), and the fact that Kréor was chief of the Tatla Lake Indians75, the parents of Kréor and Kadoulie, who were probably born ca. 1824, likely occupied and used the same areas before and after 1844.465

130. Tsilhqot’in elder Mabel William (b. 1918) is the great-granddaughter of Chief Keogh (Kreor) and his wife Kadoulie (Gadulin). Ms. William is eldest child of the late Jimmy and Nelly William,466 Jimmy William being the son of Hanlhdzany (Annie) and Bendzi (William Bonzing),467 Hanlhdzany in turn being the eldest child of Chief Keogh and Kadoulie.468 Growing up, Ms. William was imbued with oral history directly from her grandmother Hanlhdzany.469 Ms. William was a source of genealogical information for Mr. Dewhirst, a witness in this case with evidence regarding the Tsilhqot’in usage of Tsimol Ch’ed (Potato Mountain):

(a) Fully corroborated by the historical record 1822-1845 regarding the Tsilhqot’in resident on Chilko River and the Chilko Lake outlet as well as McDougall (1829) regarding their root grounds’ in the mountains, Ms. William averred as to regular

462 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at paras. 276, 284. 463 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at paras. 366-367, 370. 464 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at para. 367. 465 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at para. 375. 466 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, at para. 7. 467 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, at para. 9. 468 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, at para. 12. 469 E.g. Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, at paras. 39-42, 44, 47, 27, 29-30; Exhibit 0442, Expert Report of John Dewhirst, April 2005, at 6-9, Chart 1.

86 usage of Tsimol Ch’ed (Potato Mountain) by the Tsilhqot’ins wintering on the Tsilhqox (Chilko River), from Tl’egwated upriver to the entrance of Tsilhqox Biny (Chilko Lake) at Gwedatsish –

Hanlhdzany taught me that her family would stay in a lhiz qwen yex at Tl'egwated during the xi (winter) when it was really cold. She explained that her family lived there because they had a lot of dried salmon stored there and could get the animals like nists'i (deer). She said they would use ?ash (snowshoes) to get the nists'i because naihiny (horses) were scarce then. My grandmother told me they could go a long ways on the ?ash. … Hanlhdzany taught me that along the Tsilhqox (Chilko River) from T1'egwated to Gwedats'ish has been a Tsilhqot'in salmon fishing area since the time of the ?esggidam (our ancestors). She also taught me that Tsilhqot'ins have had lhiz qwen yex in this area on both sides of the river from the time of the ?esggidam until her time. Grandmother said this knowledge had come down to her from her mother. … Grandmother Hanlhdzany taught me that the Tsilhqot'ins with lhiz qwen yex along the Tsilhqox (Chilko River) would get the nists'i (deer) and sunt'iny (mountain potato) from Tsimol Ch'ed (Potato Mountain) every dan (summer time). She also taught me that these Tsilhqot'ins would use their ?ash (snowshoes) to hunt in Tachelach'ed every year. Grandmother taught that Tsilhqot'ins had been living like this from generation to generation since the ?esggidams. Hanlhdzany said this knowledge had been passed down to her from her mother, who had learned it from Hanlhdzany's grandmother.470 [Emphasis added.]

(b) Corroborated by maps of Cox (1864) and Poudrier (1890), Ms. William gave evidence as to the Tsilhqot’in trail network used in part to access Tsimol Ch’ed (Potato Mountain-) from the northeast at Gwedatsish at the Tsilhqox Biny (Chilko Lake) outlet, but also the northwest at Talhiqox Biny (Tatlayoko Lake), the north at Naghatalhchoz Biny (Eagle or Choelquoit Lake), and the south at Ses Chi –

As I said, the Tsilhqot'in had a trail running up the Tsilhqox (Chilko River) from below Gwetsilh to Tl'egwated. From Tl'egwated it ran up the Tsilhqox, across from Tachelach'ed, to the narrows of Gwedats'ish. This trail connected to a Tsilhqot'in saddle and packhorse trail going up Tsimol Ch'ed (Potato Mountain). The trail ran from near Gwedats'ish, around Tizlin Dzelh (Tullin Mountain) and up onto Tsimol Ch'ed. I traveled this trail with my

470 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, at paras. 42, 50 and 51.

87 family when I was growing up and we were moving to Tsimol Ch'ed in the dan (summer). I also traveled the trail with my late husband and our young children for summer harvesting too.

When I was growing up with my family and my grandparents I traveled the trails from Tatl'ah Biny (Tatla Lake) to Gwedzin Biny (Cochin Lake), and from Gwedzin Biny up Tsimol Ch'ed (Potato Mountain). When we were camped at Gwedzin Biny on our way to Tsimol Ch'ed, my grandmother Hanlhdzany taught me about the different trails she had traveled up the mountain. Grandmother taught me that they were all made in the time of the ?esggidam (our ancestors) before there were horses, when Tsilhqot'ins had to walk our nen (land). Hanlhdzany told me she was teaching me what her mother had taught her:

(i) One trail up Tsimol Ch'ed was the route we were traveling from Tatl'ah Biny (Tatla Lake), over to Gwedzin Biny (Cochin Lake), down to Taihiqox Biny (Tatlayoko Lake), up to K'anlh Gunlin, then up onto Tsimol Ch'ed (Potato Mountain).

(ii) Another way was the trail going up Tsimol Ch'ed (Potato Mountain) from ?Edibiny and Naghatalhchoz Biny (Eagle or Choelquoit Lake). That one went up to K'anlh Gunlin too. That's where it joined the trail there going up Tsimol Ch'ed from Talhiqox Biny (Tatlayoko Lake).

At ?Edibiny and Naghatalhchoz Biny the trail connected to two Tsiihqot'in trails. One went to Gwedzin Biny (Cochin Lake). The other went to the Tsilhqox (Chilko River) around Tsi T'is Gunlin. The trails also went right around Naghatalhchoz Biny.

Note: I've traveled the trails that run from Gwedzin Biny to ?Edibiny and Naghtalchoz Biny, around Naghtalchoz Biny and over to Tsi T'is Gunlin. I've camped at ?Edibiny in the fall time too for nilhish (kokanee) and nists'i (deer). I've seen the trail leaving there up Tsimol Ch'ed. My husband would use it when hunting.

(iii) There was also a trail coming from near Gwedats'ish. It goes around Tiz1in Dzelh (Tullin Mountain) and then up onto Tsimol Ch'ed (Potato Mountain).

Note: This is the trail up Tsimol Ch'ed I talked about first.

(iv) Another trail ran up Tsimol Ch'ed (Potato Mountain) from the other end of Talhiqox Biny (Tatlayoko Lake) around Ses-Chi. Ses-Chi is a creek that runs into Talhiqox Biny. It's on the Tsimol Ch'ed side of the lake.

88 From around Ses-Chi the trail ran towards Tach'i Dilhgwenlh, then up onto the end of Tsimol Ch'ed.

Around Ses-Chi the trail connected to a trail running up Taihiqox Biny all along the Tsimol Ch'ed side of the lake. At the top of the lake, across from ?Eniyud (Niut Mountain), this trail connected to the trail going up to K'anlh Gunlin.

Note: Tach'i Dilhgwenlh is a mountain that stands alone. You can see it from Xeni when you are down at Tsilhqox Biny (Chilko Lake) and looking across the lake. I have not traveled this trail from Ses-Chi towards Tach'i Dilhgwenlh and up Tsimol Ch'ed. My father also taught me about it though. He said he had traveled it with his parents when he was growing up.471

(c) Ms. William recounted the central creation narrative of ?Eniyud and Ts’ilos as it explains the original Tsilhqot’in seeding of Tsimol Ch’ed (Potato Mountain) as, per McDougall (1829), one of “their root grounds” in the mountains –

My grandmother Hanlhdzany taught me the story of how the sunt'iny (mountain potatoes) got to Tsimol Ch'ed (Potato Mountain). She taught me the story of ?Eniyud and Ts'il?os. Hanlhdzany taught me that her mother Gadulin had passed the story down to her. My late husband's father, Sammy Bulyan, also taught me the story of Ts'il?os and ?Eniyud. Sammy taught me that his grandmother Nancy had passed the story on to him. This is the story Hanlhdzany and Sammy taught me:

(i) Ts'il?os and ?Eniyud were Tsilhqot'in man and wife way back in the time of the ?esggidam (our ancestors). They were living with their children in the mountains around Xeni (Nemiah Valley) where Ts'il?os (Mount Tatlow) is now.

(ii) ?Eniyud decided to leave Ts'il?os and go back to the land where she was raised. She took half of their children and left. ?Eniyud left the other children with Ts'il?os.

(iii) As ?Eniyud started walking she seeded sunt'iny (mountain potatoes) along the way. That's why sunt'iny grow in Xeni (Nemiah Valley) at ?Esgany ?Anx, Gughay Ch'ech'ed and Tl'egwezbenz, even ?Esqi Szul Tese?an.

(iv) ?Eniyud kept walking until she reached Tsimol Ch'ed (Potato Mountain). She seeded all the sunt'iny there too.

471 Exhibit 0174, Affidavit #2 of Mabel Williams, September 3, 2004, at paras. 29 and 31.

89

(v) When ?Eniyud was done she turned into a big mountain. ?Eniyud (Niut Mountain) still sits there right across Talhiqox Biny (Tatlayoko Lake) from Tsimol Ch'ed (Potato Mountain).

(vi) Ts'il?os turned into a big mountain then too. Ts'il?os (Mount Tatlow) is still there right above Xeni (Nemiah Valley).472

(d) Ms. William also relayed oral history from her grandfather Bendzi (William Bonzing), the husband of Chief Keogh’s eldest daughter, regarding events during the Chilcotin War of 1864, and corroborated by the historical record of that summer from Cox, Brew and Brough –

My grandfather Bendzi taught me about Tsilhqot' ins ?elhts'ultax (going to war) down Tsimol Ch'ed (Potato Mountain) at Naghatalchoz Biny (Choelquoit or Eagle Lake). We were at Tl'egwated and my grandfather taught me what his grandmother had taught him. This is what grandfather Bendzi taught me:

(i) It was dan (summertime) and the sunt'iny (mountain potatoes) were ready for harvesting on Tsimol Ch'ed (Potato Mountain). Tsilhqot'ins had gathered up on the mountain for the nists'i (deer), sunt'iny (mountain potatoes) and ?esghunsh (beartooth).

(ii) Two Tsilhqot'in deni jutalhtax (warriors) were down on the trail coming from ?Edibiny and Naghatalhchoz Biny (Choelquoit Lake). They were checking the land to make sure nothing strange was happening. The two Tsilhqot'in men stopped along the trail. They were carving something. That's when they heard voices from the trail below. They hid.

(iii) They saw two people coming up. It was Samadlin and another man. They were checking the Tsilhqot'in trail leaving from ?Edibiny and Naghatalhchoz (Choelquoit Lake) up Tsimol Ch'ed (Potato Mountain). Samandlin checked how fresh the carvings were on the trail. He put a piece in his mouth. He had gunshells in his belt and over his shoulder. Samadlin also had metal around his chest. He was dressed in armour so he wouldn't get killed.

(iv) One Tsilhqot'in warrior tried to shoot at Samandlin. Something happened to his gun. It was a gun that you had to load by stuffing something down inside it. That gun didn't work. It just smoked. So the other Tsilhqot'in warrior took his gun and shot Samadlin. He shot him in

472 Exhibit 0174, Affidavit #2 of Mabel Williams, September 3, 2004, at para. 36.

90 the chest, at the top where Samandlin had made a little opening because the armour made him sweaty.

(v) The two Tsilhqot'in men then went back up towards Tsimol Ch'ed (Potato Mountain) to get more warriors. The Tsilhqot'in deni jutalhtax (warriors) gathered up. Two left ahead of the others. One of these warriors was Nezulhtsin.

(vi) Nezulhtsin and the other Tsilhqot'in warrior went down towards ?Edibiny and Naghatalhchoz Biny (Choelquoit Lake). They found a camp Samadlin and the other white men had been using at Ch'ezqud. At Ch'ezqud the creek comes down from ?Edibiny and goes into Naghatalhchoz Biny (Choelquoit Lake). There is a little point of land extending into the lake there. The white men's camp was on that point.473

131. Tsilhqot’in elder Patricia Guichon is also the direct descendent of Chief Keogh. One of Ms Guichon’s main teachers was her grandmother Kanlh (a.k.a. Josephine),474 who is Keogh’s (Qi ?Ungh’s) daughter, and Hanlhdzany’s sister.475 Patricia Guichon testified that Kanlh was raised “close to the mountains around Tatla Lake, and also spent a lot of time around Gwedzin, Cochin Lake.”476 Her oral history from Kanlh, that Kanlh’s parents Qi ?Ungh (Keogh) and Gadulin lived around the Tatla and Cochin Lake areas,477 corroborates Dewhirst.478 Patricia Guichon’s evidence was that Kanlh and other Tsilhqot’ins including ?Esqw'alyan and his wife harvested mountain potatoes at Tsimol Ch’ed. She also told a story, passed on to her from her father and Kanlh, about ?Esqw'alyan’s father Nisewhichish’s mother, who came across a bear while harvesting suntiny on Potato Mountain.479 This story likely took place in the mid-1860s.480

132. Anthropologist John Dewhirst’s “genealogical research linking modern extended families to intergenerational customary use areas in the Claim Area” also included the

473 Exhibit 0174, Affidavit #2 of Mabel Williams, September 3, 2004, at para. 35. 474 Transcript, May 9, 2005, Patricia Guichon Direct-Exam, at 00010, 9-19. 475 Transcript, May 9, 2005, Patricia Guichon Direct-Exam, at 00013, 45 to 00014, 10; Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, para 367. 476 Transcript, May 9, 2005, Patricia Guichon Direct-Exam, 00022, 38-41. 477 Transcript, May 10, 2005, Patricia Guichon Direct-Exam, 00005, 30-44. 478 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, paras 368-371. 479Transcript, May 10, 2005, Patricia Guichon Direct-Exam, 00044, 44 to 00046, 47. 480 Note that Nisewhichish was, according to Minnie Charleyboy, the same age as Madiyan (Daldod), who was born c. 1864 (per Dewhirst Exhibit 441, at 33) or 1866: see Minnie Charleyboy Direct-exam, Mar.4/04 – p.43(47) – p.46(25); andMar.1/04 – p.11(46) – (47); p.26(19) – p.27(9); and Mar.3/04 – p.19(4) – p.20(1).

91 descendants of Kahkul (or Qaqez) and Elizabeth.481 Kahkul and Elizabeth were born no later than 1846, were from around Big Eagle Lake or Choelquoit Lake (Naghatalhchoz) and lived in the Claim Area ca. 1846 and later.482 They had seven children including their youngest daughter Susan English (Sa Yetsen) (c. 1887- 1965), who married Tommy Lulua (1901- 1978), their oldest daughter Mary Ann (Daldod; Madiyan) (c. 1866-1950), who’s daughter “Sebanie” (c. 1896-1932) married Little George Setah (c. 1897/1899- 1971), and their second daughter Agnes (born c. 1870), who begat Eagle Lake Henry (?Elegesi) (born ca. 1886/1891- 1968).483 Kahkul was the younger brother of the Lhats’as?in, born ca. 1826, the famous leader of the Chilcotin War of 1864 in which Kahkul himself was a Tsilhqot’in warrior and the co-killer of McLean.484 Relatedly, Dewhirst concluded:

In my opinion, given that Lhats 'as?in was born ca. 1826, the parents of Lhats 'asYin and Kahkul were born no later than ca. 1806. Also in my opinion, given that Kahkul came from Naghatlhchoz or the Big Eagle Lake area and had a fish trap there and considering that the Tsilhqot'in practice of traditional or customary family use areas continue for generations (Par. 29-41), the parents of Lhats 'as?in and Kahkul most likely used and occupied the Naghatlhchoz or the Big Eagle Lake area before and after 1826.485

133. Tsilhqot’in elder Minnie Charleyboy is the daughter of Emily Lulua and was raised by Qaqez and Elizabeth’s daughter Susan English (SaYetsen) and her husband Tommy Lulua.486 Mrs. Charleyboy testified that Qaqez was raised in an underground house at Biny Gwechugh near the head of Chilko Lake, just east of the Potato Range.487 Mrs. Charleyboy was born and raised at Naghatalhchoz (Big Eagle Lake) near the northern foot of Tsimol Ch’ed.488

134. Mrs. Charleyboy’s oral history evidence, passed on to her from Sa Yets’en and her sister Madiyan was that Tsilhqot’ins have regularly used Potato Mountain since ancestor time:

Q How long have Tsilhqot'in people been going to

481 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at para. 314, 320, 330. 482 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at para. 318. 483 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at para. 329, 332. 484 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at para. 318, 321. 485 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at para. 319. 486 Exhibit 0441, Expert Report of John Dewhirst, September 2004, at 4. 487 Plaintiff’s Argument, Appendix 3, footnote 479. 488 Plaintiff’s Argument, Appendix 3, paragraph 144.

92 Potato Mountain for potatoes?

A Our ancestors used to go up there for the potatoes. We did the same today; some of us do the same. I still go up the mountains yet.

Q Who taught you that the ancestors used to go to Potato Mountain?

A Sa Yets'en and Madiyan, they're the ones that told me the stories about it.

Q How did Sa Yets'en and Madiyan know that?

A It was their mother and father that told them the story and that's how they passed the story on to me.

Q Were you taught how often the ancestors went to Potato Mountain?

A Every time that same season comes up, that's the time they go up there.

Q How often did you and your family go up to Potato Mountain?

A Ever since I was five year old I would go up the mountains and I still go up there -- up the mountains yet.489 [Emphasis added]

135. Minnie Charleyboy gives a detailed account of camps on Potato Mountain where groups of Tsilhqot’in people went to camp, harvest plants and hunt on an annual basis “after priest time,” including Kanlh Gulin, ?Enes Biny, Ses Tsi Niz?an, Natsinilh?ad, ?Eziwel-Yi, ?Edaz Biny, ?Elagi Seqan, ?Elhts’ichen Nanadishtl’uy, Deni Ch’elets’elht’i, Gwelangh, Deghagwesdzan, Chitl’ats’elh?ah, and Lhuy Nentsul Gunlin. Mrs. Charleyboy testified that “All these places that I name we did not name it ourself. It's our ancestors that name those places… It was Sa Yets'en that taught me that.” 490

489 Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00019, 11-32. 490 Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00043, 11-18.

93 136. From Minnie Charleyboy’s evidence, it is clear that both ancestrally and up to and including the 20th century mountain potatoes were not found and harvested only in one location in the Potato Range. The first potatoes were harvested in May on the west side of Potato Mountain facing Tatlayoko Lake, where the snow melts first,491 and later on, after priest time, were harvested all the way from Kanlh Gunlin in the north492 to Gwelangh (the southern “point” of the range)493 in the south, to Deghagwesdzan and Lhuy Nentsul Gunlin in the east.494 Potatoes harvested at Kanlh Gunlin were stored in cache pits to be picked up on their return down the mountain.495

137. Minnie Charleyboy testified that her family harvested approximately 250 lbs of mountain potatoes,496 and that she personally observed approximately 100 Tsilhqot’ins on Tsimol Ch’ed every summer.497 Drying racks and tent poles on Potato Mountain were stored away for use year after year.498

138. Parents of twins were charged with the responsibility of re-planting potatoes so that there would be a good crop for the next year. SaYetsen taught Mrs. Charleyboy that this was a practice carried on since the time of the ancestors.499

139. Minnie Charleyboy also testified as to being taught by SaYetsen that Tsilhqot’in women were once killed on Potato Mountain while harvesting mountain potatoes by people who came up from the coast and who paid dearly as a consequence. 500 Mrs. Charleyboy further testified about a planned ambush on the Europeans at ?Eziwel-yi during the Chilcotin War, and Samadlin

491 Transcript, March 10, 2004, Minnie Charleyboy Direct-Exam, at 00009, 47 to 00017, 23. 492 Transcript, March 24, 2004, Minnie Charleyboy Direct-Exam, at 00005, 38 to 00006, 2 493 See Transcript March 24, 2004, Minnie Charleyboy Direct-Exam, at 00028, 5 to 00030, 6. 494 Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00042, 41-45; Transcript, March 24, 2004, Minnie Charleyboy Direct-Exam, at 00031, 24 to 00032, 43. 495 Plaintiff’s Argument, Appendix 3 para 145. 496 Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00012, 8-42. 497 Plaintiff’s Argument, Appendix 3, para 149. 498 Transcript, March 24, 2004, Minnie Charleyboy Direct-Exam, at 00004, 3-46. 499 Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00012, 44 to 00013, 14. 500 Transcript, March 24, 2004, Minnie Charleyboy Direct-Exam, at 00017, 30 to 00019(3); 00021(4) to 00023(7); 00025(10) – (19).

94 being killed by Tsilhqot’ins near ?Edibiny at the time when Tsilhqot’ins were up in the Potato Mountains.501

140. In addition to mountain potatoes, Mrs. Charleyboy gave oral history evidence of Tsilhqot’in ancestral harvesting of other plant resources including pine bark and beartooth, and further testified that the practice endured well into the 20th century, such that Mrs Charleyboy herself also remembers her family harvesting these resources when at Potato Mountain.502

141. Mrs. Charleyboy’s evidence was that both ancestrally and during her time, Tsilhqot’ins hunted deer on Potato Mountain in the summertime,503 and fished at ?Edaz Biny for dolly varden and .504

142. Mrs. Charleyboy’s testimony about ancestral trails leading up to Potato Mountain from Naghatalhchoz / ?Edibiny via Kanlh Gulin, from the north end of Talhiqox Biny(Tatlayoko Lake), and from Sul Gunlin (near Biny Gwechugh)505 corroborates the evidence of other witnesses.506

143. Minnie Charleyboy also recounted for the court a number of stories attesting to the enduring relationship between Tsilhqot’ins and the Potato Range over the course of generations, including:

(a) The legend of Ts’il?os and ?Eniyud and the origin of mountain potatoes and beartooth on Potato Mountain;507

501 Transcript, March 1, 2004, Minnie Charleyboy Direct-Exam, at 00013, 12 to 00016, 3 502 Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00020, 1 to 00021, 36; 00023, 10 to 00024, 7. 503 Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00034, 33 to 00035, 25. 504 Transcript, March 24, 2004, Minnie Charleyboy Direct-Exam, at 00008, 44 to 00009, 37. 505 Plaintiff’s Argument, Volume 3, para. 922, footnotes 663, 664 and 666; Transcript, March 10, 2004, Minnie Charleyboy Direct-Exam, at 00010(23)-(31) and 00011(15) to 00017(26). 506 Plaintiff’s Argument, Volume 3, para. 922, Trails 2, 3, and 4; Plaintiff’s Argument, Appendix 6, Map C, Traditional Tsilhqot’in Trail Network. 507 Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00024, 44 to 00026, 18; Plaintiff’s Argument, Volume 3, para 888.

95 (b) Teachings from Sa Yetsen about the ancestral use of roasting pits at camps on Potato Mountain including ?Enes Biny and Deghagwesdzan; 508 the practice of roasting roots underground being carried on well into the 20th century;509 (c) The story told to her by Sa Yetsen about the gravesite at Kanlh Gunlin, dating back to when Tsilhqot’ins first had horses, about the blind man who died after knocked off his horse when his young wife failed to warn him of a branch.510

144. Tsilhqot’in elder Francis Setah (b.1829) is the grandson of Qaqez’s daughter Mary Ann (Daldod), and was raised by her. 511

145. Mr. Setah, like other elders including Mabel William, Doris Lulua and Minnie Charleyboy, described ancestral trails up to and through the Potato Range from the north end of Tatlayoko, from ?Edibiny, and from the Chilko River around Biny Gwechugh.512

146. The Talhiqox Biny trail was used by Tsi Del Del people to travel to Tsimol Ch’ed.513 Mr. Setah was taught that by Daldod this was an ancestral trail, who learned this from her father Qaqez. 514

147. Tsilhqot’in people living around Naghatalhchoz, including the Luluas, used the trail from Naghatalhchoz to get to Tsimol Ch’ed.515 Francis Setah also learned that from his grandmother Daldod that this was an ancestor trail.516

148. Tsilhqot’ins also used the trail from Biny Gwechugh to get to Tsimol Ch’ed. Daldod learned from her father that this was a trail of the ancestors, and passed this information on to her grandson Francis Setah.517

508 Plaintiff’s Argument, Appendix 3 para 146, footnote 484. 509 Plaintiff’s Argument, Appendix 3 para 146. 510 Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00043, 24 to 00044, 9. 511 Transcript, November 17, 2003, Francis Setah Direct-Exam, 00015(18) to (29), Source to Francis Setah testimony, final argument, or Dewhirst 512 Plaintiff’s Argument, Volume 3, para. 922, trails 2, 3 and 4; Plaintiff’s Argument, Appendix 6, Map C. 513 Transcript, November 20, 2003, Francis Setah Direct-Exam, at 00024, 2 to 00026, 12. 514 Transcript, November 20, 2003, Francis Setah Direct-Exam, at 00023, 9-32, Re: Telhiqox Trail. 515 Transcript, November 20, 2003, Francis Setah Direct-Exam, at 00026, 13 to 00028, 23. 516 Transcript, November 20, 2003, Francis Setah Direct-Exam, at 00028, ____ to 00028, 15-30.

96

149. Francis Setah provided a detailed account of his yearly trips in early summer to Potato Mountain with his grandmother and other members of his family when growing up. During their 3-4 week stay, his family of three harvested 3 gunnysacks full of mountain potatoes. While camped at Tsimol Ch’ed, his family as well as the other families camped in tents, leaving the poles (as well as drying racks) on the mountain for re-use year after year. Suntiny (mountain potatoes) were harvested using a digging tool (gwezinsh), the ancestral version of which of two wooden parts, consisting of pine or mountain hemlock, and the harvested potatoes put in a bark basket.518 Further, Tsilhqot’ins practiced the sustainable method of only harvesting the sunt’iny after they reach a size of maturity.519

150. Mr. Setah gave substantial evidence on where and how Tsilhqot’ins exploit the resources they depend on within their territory, as taught to him by his grandparents, who in turn were taught by their parents and grandparents. This cultural knowledge has developed to the point that it includes teachings designed to ensure the long-term sustainability of Tsilhqot’in resource exploitation across generations: Mr. Setah has testified that they only hunt male deer in the summer because the females are pregnant at that time.520 Similarly, Tsilhqot’ins have learned to only harvest sunt’iny (mountain potatoes) after they reach a certain size.521 This demonstrates a long view held by a people that have developed an intimate knowledge of their environment and have learned to sustain it.

151. Mr. Setah’s family dried the majority of sunt’iny at Naghatalhchoz after packing them off the mountain using gunnysacks and horses, while some were cooked fresh on the mountain.522

517 Transcript, November 20, 2003, Francis Setah Direct-Exam, at 00030, 3 to 00031, 2. 518 Transcript, November 20, 2003, Francis Setah Direct-Exam, at 00032, 6 to 00036, 41; 00037, 22 to 00038, 2; 00038, 37 to 00040, 46; Transcript, November 24, 2003 Francis Setah Direct-Exam, at 00010, 34 to 00011; Transcript, December 4, 2003 Francis Setah Direct-Exam, at 00040, 16 to 00041, 19; Exhibits 49; 50; 62; 63; 93 DIG 165; Exh 94 DIG Z; Exh 94 DIG W. 519 Plaintiff’s Appendix 3, at para. 136; Transcript, November 20, 2003, Francis Setah Direct-Exam, 00034, 6-15; 00036, 5-41. 520 Plaintiff’s Argument, Volume 3, para. 1071; Transcript, December 1, 2003, Francis Setah Direct-Exam, 00004, 43 – 00005, 14. 521 Transcript, November 20, 2003, Francis Setah Direct-Exam, 00034, 6-15; 00036, 5-41. 522 Transcript, November 20, 2003, Francis Setah Direct-Exam, at 00041, 45 to 00043, 22.

97 According to Francis Setah’s grandmother Daldod, mountain potatoes were cooked ancestrally underground.523

152. Mr. Setah’s evidence was that in addition to mountain potatoes, Tsilhqot’in families who made summertime trips to Ts’mol Ch’ed also harvested beartooth,524 deer,525 and fish,526 of which were eaten fresh, while some deer meat was also dried.527 It is clear from Mr. Setah’s mapped evidence, regarding his participation in the summer deer hunts as a boy, that the Tsilhqot’in hunting ground extended throughout Tsimol Ch’ed (Potato Mountain) and over to Tach’i Dilhgwenlh Dzelh (Huckleberry Mountain).528 Rafts used for fishing at Tsimol Ch’ed Biny were left under a tree for use the following year.529

153. Mr. Setah recounted the story of the women clubbed to death by Qaju invaders as told to him by Daldod. In that story, the Tsilhqot’in women that were killed had traveled further than the main camp, and were harvesting sunt’iny. This occurred at a time period when Tsilhqot’ins traveled on foot, with packs on their backs. The Tsilhqot’in warrior response was swift and lethal.530

154. Similarly, the oral history of the Chilcotin War also confirms Tsilhqot’in physical occupation of Potato Mountain through regular use in the early summer. Mr. Setah learned from Daldod, who had learned it from her father, that at the time Samadlin (McLean) arrived at Naghatalhchoz (in mid-July) the Tsilhqot’in people living there had moved up to Tsimol Ch’ed, using the trail previously described between Naghatalhchoz and Tsimol Ch’ed. Two

523 Transcript, November 20, 2003, Francis Setah Direct-Exam, at 00041, 45 to 00043, 22. 524 Transcript, November 24, 2003, Francis Setah Direct-Exam, at 00008, 35 to 00010, 33; Exhibit 0063, One page copy of a black and white drawing said to depict a Tsilhqot'in mountain potato harvesting tool; Exhibit 0064, One page copy of a black and white drawing said to depict a Tsilhqot'in mountain potato picking basket; Exhibit 0094DIG Y. 525 Transcript, November 24, 2003, Francis Setah Direct-Exam, at 00011, 12 to 00015, 28; 00018, 2 to 00021, 13; Exhibit 0094 DIG AA. 526 Transcript, November 24, 2003, Francis Setah Direct-Exam, at 00003, 3 to 00034, 13. 527 Transcript, November 24, 2003, Francis Setah Direct-Exam, at 00015, 29 to 00019, 1; Exhibit 0065, One page copy of a black and white drawing said to depict a Tsilhqot'in deer drying rack. 528 Transcript, November 24, 2003, Francis Setah Direct-Exam, 00011, 12 to 00015, 28; 00018, 2 to 00021, 13; Exhibit 94 DIG AA. 529 Transcript, November 24, 2003, Francis Setah Direct-Exam, 00033, 3 to 00034, 13; Exhibit 0095DIG AC. 530 Transcript, November 24, 2003, Francis Setah Direct-Exam, at 00021, 20 to 00024, 29.

98 Tsilhqot’ins descended on the trail and shot Samadlin while he was looking at the shavings from a gwezinsh (digging stick).531

155. Of note, Tsilhqot’in elder Mabel William similarly recounted the story of the Tsilhqot’in girls killed by coastal invaders while harvesting suntiny on Tsimol Ch’ed and away from the main camp. This history was taught to her by Eagle Lake Henry, who learned it from his mother Agnes, another of Qaqez’s daughters. Again, the response of Tsilhqot’in warriors was deadly.532

156. Anthropologist John Dewhirst’s “genealogical research linking modern extended families to intergenerational customary use areas in the Claim Area” also included the modern Lulua family.533 Dewhirst identified the Lulua family ancestors Nunsulian (born ca. pre-1849) and his wife Annie (born ca. pre-1849), the parents of Jack Lulua (ca. 1870 – 1949). Dewhirst also identified Nemiah (ca. 1827-1927) and his wife Akous, the parents of Jeannie Nemiah. The children of Jack Lulua and Jeannie Nemiah were Tommy Lulua, Chief Lashaway Lulua, Emily Ekks (nee Lulua) and Eileen Lulua, who each in turn raised children of their own, some of whom are Tsilhqot’in elders who testified in this case.534 With respect to the Lulua family, the Big Eagle or Choelqouit Lake area directly north of Potato Mountain, and the Potato Mountain area itself, Dewhirst concluded:

In my opinion, based on paragraphs 284-300 above, the ancestors of the Lulua family occupied and used the Claim Area before ca. 1827, and their descendants continue this occupation and use today. Oral history and archival documents show that the Lulua family’s customary use area is around Naghatalhchoz at Big Eagle or Choelquoit Lake extending to Chilko Lake.535

The genealogical study of modern extended families linked to customary use areas indicates that the Lulua family has used and occupied the Potato Mountain area since before 1846.536

531 Transcript, November 24, 2003, Francis Setah Direct-Exam, at 00035, 3 to 00041, 37. 532 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 32. 533 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at paras. 276, 284. 534 Exhibit 0441, Expert Report of John Dewhirst, September 2004, at 19. 535 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at para. 301. 536 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at para. 209.

99 157. Doris Lulua is the daughter of ?Ileen (Elaine Lulua) and grew up in the Naghatalhchoz area.537 In her first and third affidavits,538 and consistent with Dewhirst’s characterization of the Lulua family use area, Ms. Lulua gives details of the seasonal round that she has practiced and practices throughout her life, centred mainly around the central and northwestern claim area, and cites as main sources of oral history about these areas her great grandmother Annie (Jack Lulua’s mother) and Madiyan (Daldod).

158. Doris Lulua learned from her great-grandmother Annie that the ?Esggidam harvested suntiny at at least 13 ancestrally named places on Tsimol Ched, which are connected by an ancestral trail network:

There are many different Tsilhqot’in people’s sunt’iny harvesting places on Tŝinuz Ch’ed. Some of these places are: K’anlh Gunlin, Ses Tŝi Teniz.an, Natŝinilh.ad, Hejish, .Edaz Biny, .Eneŝ Biny, Chitl’ats’elh.ah, .Elagi Seqan, Nentil Tŝen Didan, and .Ests’i Chen Nanaditl’uy. When you get onto the mountain on the Tizlin side there is Lhuy Nentsul Gunlin, Deghagwesdzan, and Sheŝ T'ad. My mother and great grandmother taught me that the .Asggidam Deni harvested sunt’iny at these places and named them. I have been to all these places, and I will try to describe each of them.

(a) When you leave on the trail from K’anlh Gunlin to go further along the mountain, Ses Tŝi Teniz.an is the next place you come to, and then it’s Natŝinilh.ad. These are both places where Tsilhqot’in people camped and dug sunt’iny.

(b) Next is Hejish. My mum harvested sunt’iny all around there.

(c) .Edaz Biny is a small lake – that is where Lingfield Creek comes from. I remember there being really big camps at .Edaz Biny years ago. There was a rodeo near .Edaz Biny where lots of Tsilhqot’in people stayed. There were mountain races and lahal games. There are sunt’iny there too. When I was a kid, there were little fish at .Edaz Biny. Sabay (dolly varden) and dek’any (trout) used to go up Lingfield Creek to .Edaz Biny. We don’t eat meat on Fridays, so we’d get fish there. My uncle Tommy and my mum fished there with nets.

(d) There’s high land on both sides of .Eneŝ Biny.

537 Exhibit 0160, Affidavit #1 of Doris Lulua, March 25, 2004, at para. 3. 538 Exhibit 0160, Affidavit #1 of Doris Lulua, March 25, 2004; Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, respectively.

100

(e) My great grandma Annie, Madi.an and Tommy Setah, my mum and my aunties, they all told me stories about the place called Chitl’ats’elh.ah. They told this story:

Chitl’ats’elh.ah was named after a man who was bothering all the women who were digging sunt’iny by showing off his bum, sticking it out. The women told him he had a big bum. He pushed his loincloth aside and everyone could see his testicles hanging out. That’s why the old people named that place where he did that Chitl’ats’elh.ah. From the stories that were taught to me, this happened in sadanx, the time of .Asggidam.

Chitl’ats’elh.ah is up on top of the hill from .Eneŝ Biny, there is an open flat area there. My mum and lots of other Tsilhqot’in people dug sunt’iny there. People camped there too. They also gathered .Esghunsh – there is lots of it below Chitl’ats’elh.ah, amongst the ts’ex trees. My mum, great grandma Annie and others taught me that Tsilhqot’ins have been camping and harvesting .Esghunsh and sunt’iny at Chitl’ats’elh.ah since the time of .Asggidam.

(f) .Elagi Seqan is near .Edaz Biny. When I was growing up, lots of Tsilhqot’ins went to .Elagi Seqan every year. From Annie’s stories, and from the other stories of Tsilhqot’in people while they were camped at .Elagi Seqan and all over around .Edaz Biny lots of women camped there, even before there were horses, when Tsilhqot’in people travelled on foot. .Elagi Seqan was my mum’s favourite sunt’iny harvesting place.

(g) Nentil Tsen Didan is on the way from .Enes Biny to .Elagi Seqan.

(h) .Ests’i Chen Nanaditl’uy is named after the cones of the ts’ex tree. It is near .Elagi Seqan.

(i) One suntiny harvesting place you get to if you go up the Tizlin trail is Lhuy Nentsul Gunlin. There is a lake there.

(j) If you keep going along the trail, up the hill is Deghagwesdzan. This is a favourite sunt’iny digging place for my sister Madeline and I. This is also our campsite when we go up the Tizlin trail. I remember Tsilhqot’ins harvesting sunt’iny at both Deghagwesdzan and Lhuy Nentsul Gunlin when I was a young person. Lots of them were from Xeni.

(k) Further along the trail from Deghagwesdzan is Sheŝ T’ad. My mum really liked to harvest sunt’iny at Shes T’ad. When .Elagi Seqan was too crowded, my mum and her sisters went to Shes T’ad. I know this because I went with

101 them as a child. At Shes T’ad there is a lot of wind, and it takes a long time for the snow to melt there. That’s the last place where the sunt’iny bloom.539

159. Ms Lulua’s evidence regarding trails themselves is corroborative of the evidence of Mabel William, Minnie Charleyboy, Francis Setah and others: she describes three main trails ascending Potato Mountain roughly from the north - from Talhiqox, from ?Edibiny, and from Biny Gwechugh and past Tizlin Dzelh,540 and another trail from the south which connects Potato Mountain with the groundhog harvesting areas of Nilht’isiquz.541 As set out in the Plaintiff’s Final Argument, these are all ancestral trails.542

160. As with Francis Setah, Ms. Lulua also describes Tsi Del Del people traveling to Potato Mountain along the trail from Talhiqox; the Luluas and others staying around the Naghatalhchoz area using the trail from Naghatalhchoz, and others, including those traveling from Xeni, using the trail from Biny Gwechugh.

161. Doris Lulua describes going to Potato Mountain every year as a child with her family in mid- to late June, and recalls that her whole extended family went as well, as well as numerous other Tsilhqot’ins from Xeni, Tsi Del Del and Naghatalhchoz. Resources harvested included deer, suntiny, and ?Esghunsh (beartooth).543

162. Ms. Lulua describes her own experience of large camps at Kanlh Gunlin, and the area surrounding ?Edaz Biny and ?Enes Biny. According to Doris Lulua, camping did not occur in only one place; rather, “Tsilhqot’in people would camp all over the mountain at ?Edaz Biny and ?Elagi Seqan.” With respect to the camps at Kanlh Gunlin and around ?Elagi Seqan and ?Edaz Biny, Ms Lulua says that she learned from her mother and great grandmother (Annie) that the

539 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 29. 540 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 27; Plaintiff’s Argument, Volume 3, para. 922, Trails 2, 3, and 4. 541 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 86; Plaintiff’s Argument, Volume 3, para. 922, Trail 11. 542 Plaintiff’s Argument, Volume 3, para. 922, Trails 2, 3, 4, and 11. 543 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 25.

102 ancestors camped and harvested suntiny in these areas, and named them.544 Ms Lulua describes leaving tent poles on Potato Mountain for use year after year.545

163. Doris Lulua testified as to her own (and other Tsilhqot’ins’) use of additional specific campsites and suntiny digging areas at Ses Tsi Teniz?an, Natsinilh?ad, Hejish, Chitl’ats’elh?ah, Nentil Tsen Didan, ?Ests’i Chen Nanaditl’uy, Lhuy Nentsul Gunlin, Deghagwesdzan, and Shes T’ad. She testified that all of these places as well as those mentioned in the paragraph above were ancestrally named, and used for suntiny (and in some cases, ?Esghunsh) harvesting by the ?Esggidam. This knowledge came from her mother and great grandmother Annie, among others.546

164. Doris Lulua confirms the evidence of Ubill Lulua and others that there was a rodeo near ?Edaz Biny, with mountain races and lahal, and that Tsilhqot’ins exploited a fisheries resource in ?Edaz Biny, consisting of dolly varden and trout.547

165. Ms Lulua testified that deer were plentiful all over Potato Mountain, and that her brothers hunted deer there during years when she was growing up.548

166. Ms. Lulua’s family would stay approximately one month on Potato Mountain (between mid-June and mid-July) for the annual potato and deer harvest, and would harvest four hundred pounds of sunt’iny. Her family took their suntiny down on horseback towards Telhiqox to dry them.549 From Annie she learned that before Tsilhqot’in people had horses, they packed sunt’iny down from Tsimol Ch’ed on their backs.550

167. Doris Lulua’s evidence speaks as well to the intensity of Tsilhqot’in use of Potato Mountain when she went there as a young person: there were “really big camps” at Kanlh

544 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 27(a); 29, esp. 29(c) and 29(f). 545 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 28. 546 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 27(c); 29; 36. 547 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 29(c). 548 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 30. 549 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 32. 550 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 33.

103 Gunlin.551 Tsilhqot’in people would camp “all over the mountain” at ?Edaz Biny and ?Elagi Seqan.552 “Lots of Tsilhqot’ins went to ?Elagi Seqan every year. From Annie’s stories…lots of women camped there, even before there were horses, when Tsilhqot’in people traveled on foot.”553 When ?Elagi Seqan was too crowded, her mum went to Shes T’ad.554 At the same time, “[p]eople had a tendency to only pick what they needed. They never picked more than that.”555

168. Ms. Lulua personally harvested mountain potato and deer on Potato Mountain each year throughout her adult life, up to two years prior to her giving evidence in 2004.556 Ms Lulua further testified that her hunting grounds on Tsimol Ch’ed were “all over…not just in one area.”557

169. Ms. Lulua’s evidence also alludes to the enduring cultural significance of Potato Mountain in the historical memories passed on to her:

(a) From her mother Ms Lulua learned the story of the man killed at Kanlh Gunlin in the time period shortly after Tsilhqot’ins got horses, when a branch hit him and broke his neck as he was being led on a horse;558 (b) From Annie, Madiyan, her mother and others she learned a story about the place called Chitl’ats’elh?ah, which was named after a man in ancestor time who was bothering all the women who were harvesting sunt’iny by sticking out his bum and pushing his loincloth aside.

170. Ms. Lulua, sourcing her evidence to her great grandmother Annie as well as Madiyan and Tommy, confirms Mabel William’s evidence that Tsilhqot’in ancestors living in Lhiz Qwen Yex along the Tsilhqox river went to Potato Mountain to harvest deer and mountain potatoes.559

551 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 27(a)(i). 552 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 27(a). 553 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 29(f). 554 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 29(k). 555 Transcript, September 9, 2004, Doris Lulua Cross-Exam, at 00008, 29-30. 556 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at paras. 36 and 38. 557 Transcript, September 8, 2004, Doris Lulua Direct-Exam, at 00033, 14-32. 558 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 27(a)(ii); see also a similar account, per Minnie Charleyboy, above. 559 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 93.

104

171. Tsilhqot’in elder (Theophile) Ubill Lulua, in turn, is the son of Emily Lulua.560

172. According to Mr. Lulua’s teachings from Madiyan, Eagle Lake Henry, and Captain George, Tsilhqot’in people have been going to Tsimol Ch’ed since the sadanx time period, and through to the yedanx and undidanx time periods, and even the previous summer, as well.561 According to his affidavit, “Ever since that mountain [Tsimol Ch’ed] has been there people have been going there.”562

173. Mr. Lulua also makes reference to the legendary connection with ?Eniyud, and the origin of mountain potatoes on Tsimol Ch’ed.563

174. Theophile Ubill Lulua also testified as to regular and intensive use of Potato Mountain in the mid-20th century. He said that his family moved from Tsuni?ad or one of the other spring fishing areas up to Tsimol Ch’ed in the early summer. He testified that after going to see the priest in June, Tsilhqot’in people from all over went to Tsimol Ch’ed.564

175. Tsilhqot’ins held stampedes every Sunday, along with Lahal tournaments, at which mountain potatoes were gambled.565 Mr. Lulua learned from Eagle Lake Henry that Tsilhqot’ins held gatherings on Potato Mountain in the yedanx and undidanx time periods566 - i.e. dating back to pre-European contact times - and continued to do so until approximately 1950.567

176. Mr. Lulua testified that 60 to 70 people regularly hunted on Tsimol Ch’ed in mid-June. Mr. Lulua hunted deer and marmot, and included the entirety of Tsimol Ch’ed in his mapped hunting grounds. While the men were hunting, mainly women were digging suntiny (mountain

560 Exhibit 0441, Expert Report of John Dewhirst, September 2004, at 19. 561 Transcript, April 2, 2004, Theophile Ubill Lulua, Direct-Exam, at 00025, 7-25; Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua , November 20, 2002, at para. 139. For a definition of these time periods, see Plaintiff’s Argument, Volume 3 at paras. 879 to 883. 562 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua , November 20, 2002, at para. 139. 563 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua , November 20, 2002, at paras. 30 and 139. 564 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at 130 - 145, 182, 185, sched. 2(A, V & Y), 26. 565 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua , November 20, 2002, at para. 135. 566 Transcript, April 13, 2004, Theophile Ubill Lulua Direct-Exam, 00038, 14-45; For a definition of the yedanx and undidanx time periods see Plaintiff’s argument Volume 3 paras 880 and 881. 567 Transcript, April 14, 2004, Theophile Ubill Lulua Cross-Exam, at 00015, 9-47; Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00012, 1 – 00024, 7.

105 potatoes). A day’s yield could be as much as 20 to 25 lbs. Indian tea was also picked. People would camp “in all different places” on the mountain,568 gathering on Saturday and Sunday for stampede time.569

177. Tsilhqot’in elder Norman George Setah also described and mapped hunting deer and digging mountain potatoes with his father in the Potato Mountains when he was young and when his family was camped at ?Edibiny. They would go into the mountains at the time of year when the potatoes were ready for harvest. According to his evidence, “[t]here would be a lot of deer up in this area.”570

178. Mr. Setah also described how in his youth, after “bishop time”, his family left their wagons at ?Edibiny to move up into the Potato Mountains for the purpose of hunting deer and marmots, blue grouse and ptarmigan (CQ); harvesting mountain potatoes, pinenuts and beartooth which were “all over” the area shown as polygon CP, fishing (CN and CO), drying meat and mountain potatoes, and harvesting medicine including xilhdilh (hellebore) and balsam pitch (CM). Mr Setah described “a lot of people” and named a number of them including the Luluas, people from Tsi Del Del, and Eagle Lake Henry ,who he personally observed as being at potato mountain for these activities, and testified that Tsilhqot’ins camped “all over the place.” Mr Setah confirms that the Tsilhqot’ins who gathered on Potato Mountain engaged in horse races and other games. Mr. Setah learned from Tommy Lulua that Tommy’s grandfather had gone to Potato Mountain to harvest the resources described, and that Tommy and others talked about the ancestors doing the same.571

568 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua , November 20, 2002, at paras. 130-145, 185; Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua , November 20, 2002, Exhibits A, B to Affidavit; Exhibit 0013DIG’A’, ‘B’. Note that Ubill Lulua marked the location of his family’s campsite and the racetrack as black dot #25 on Exhibit A to his affidavit (Exhibit 13). This location corresponds to the place name(lake) # 20 (?Edaz Biny) as shown on Exhibit 0485. On Exhibit B to his affidavit (Exhibit 0013), Ubill Lulua marked a blue polygon “V” to indicate fishing near the place his family camped on Tsimol Ch’ed. As previously noted, others have identified this lake as ?Edaz Biny. Mr. Lulua also marked on Exhibit B a green polygon “Y” indicating suntiny gathering areas, encompassing an area roughly south, east and west of ?Edaz Biny, and extending beyond (south) of ?Elagi Seqan (# 76(CRW) on Exh 485). 569 At place #25*, Exhibit 0485. See ibid, one note above. 570 Transcript, Octobert 21, 2004, Norman George Setah Direct-Exam, at 00025, 40 to 00026, 32; Exhibit 0207DIG, AY. 571 Transcript, Octobert 22, 2004, Norman George Setah Direct-Exam, at 00019, 5 to 00025, 43; Exhibit 0209DIG, CM, CN, CO, CP/CQ, CS, CT.

106 179. Mr Setah also describes members of the Lulua family harvesting crowberries, and also describes a falltime huckleberry gathering area on the northern slopes of Potato Mountain towards Naghatalhchoz.572

180. According to anthropologist John Dewhirst, “Guichon [born pre-1841573] is known to have lived in and used areas at Tatla Lake, Choelquoit or Big Eagle Lake, Chilco Lake, Tatlayoko Lake and Anahim Lake.” 574 Tsilhqot’in elder Patricia Guichon, a direct descendant of Guichon himself, give corroborating evidence that points to Guichon’s occupation of the Potato Range specifically. From her father Teddy Guichon she learned that Guichon and his wife used areas including ?Eziwel-yi, described to be near ?Edibiny, and “up in the mountains in and around Tatlayoko,”575 i.e., at the north end of the Potato Range.

(a) According to her evidence, which is corroborated by Dewhirst’s opinion based on the historical record, Patricia Guichon’s grandfather, along with his father, were involved in the Chilcotin War of 1864. 576 Ms. Guichon’s account of McLean’s death at ?Edibiny, passed down to her by her father, recounts that

They -- the Tsilhqot'in people were around ?Edibiny, and the Tsilhqot'in people left the women up in the mountains and waited at ?Edibiny. They -- the Tsilhqot'in people had planned on setting up an ambush for the white people at a place called ?Eziwel-yi. They wanted to lure the soldiers up into this area to ambush them. At this place called ?Eziwel-yi it's -- it's a place between two hills, and it's a narrow place where you go through. This is where they set up the ambush.577

572 Transcript, November 1, 2004, Norman George Setah Direct-Exam, at 00004, 8 to 00005, 41; 00018, 45 to 00019, 26; Exhibit 0210DIG, DE and DM. 573 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at 86. 574 Exhibit 0442, Expert Report of John Dewhirst, April 2005, at 3 and 11. 575 Transcript, May 10, 2005, Patricia Guichon Direct-Exam, at 00028, 7-37. 576 Transcript, May 9, 2005, Patricia Guichon Direct-Exam, at 00030, 43 to 00031, 25; Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at 87, paras. 355-356. 577 Transcript, May 11, 2005, Patricia Guichon Direct-Exam, at 00017, 13-23.

107 (b) Further, it was Ms. Guichon’s evidence that Samadlin (McLean) was killed as he picked up a stick that was partway fashioned into a gwezinsh, a tool used for digging mountain potatoes.578

181. Patricia Guichon’s evidence on this point is corroborative of other witnesses cited above. The mountains referred to, and where the Tsilhqot’in women were said to be when McLean was killed near ?Edibiny, are undoubtedly the Potato Range.

182. Patrick Alphonse recounts information from his great grandmother Tudud, who was Chief Anaham’s 3rd wife, that many people gathered at Potato Mountain to harvest mountain potatoes which were dried for the wintertime, and that Tudud herself did this. According to Patrick Alphonse, Tudud was over 100 years old when she died in 1930.579 In telling him the story about Tsilhqot’ins going to war with Coastal people on Potato Mountain, Tudud “said that Potato Mountain is Tsilhqot’in Territory.”580

183. Additional Tsilhqot’in witnesses testified that the Potato Range is within their personal deer, blue grouse, and/or groundhog hunting area.581

184. Francis William, corroborating the evidence of other witnesses cited above, recounted the story, learned from his father about the Qaju attack on the women harvesting suntiny on Potato Mountain, along with the incisive Tsilhqot’in response. He also testified that his father and mother Sam and Annie Bulyan hunted and harvested “all around Tsimol Ch’ed…”582

c. Interference with Continuity

185. There is substantial evidence that any discontinuity in Tsilhqot’in Land Use in the Potato Range is entirely reasonable in the circumstances.

578 Transcript, May 11, 2005, Patricia Guichon Direct-Exam, at 00021, 22-42. 579 Exhibit 0437, Affidavit #1 of Patrick Alphonse, April 15, 2005, at para. 9, 13(a) and 24. 580 Exhibit 0437, Affidavit #1 of Patrick Alphonse, April 15, 2005, at para. 26. 581 See, e.g., Harry Setah, October 15, 2005 at p 4 ln 18 to p 6 ln 26; p 10 ln 44 to p 11 ln 33; p 15 lns 4-21; p 71 ln 33 to p 73 ln 5; Chief Roger William, Transcript, September 16, 2003 p 10 ln 27 to p 18 ln 41; Exhibit 16 polygons H and H-1 582 Exhibit 0158, Affidavit #2 of Francis William, Affidavit #2, at paras. 60 and 62.

108 (a) The evidence of Ubill Lulua, Minnie Charleyboy, and others is that extensive cattle grazing by European ranchers from approximately the 1950s onwards wrecked the sunt’iny (mountain potatoes).583 Ubill Lulua’s evidence was that the cattle were on Tsimol Ch’ed from June 1st through to August,584 i.e., corresponding exactly to the sunt’iny harvesting season.

(b) Furthermore, there is evidence that Tsilhqot’ins have continued to use the Potato Range as a hunting and gathering area in spite of the diminished suntiny resources.585 d. Additional Expert Opinion

186. Dr. Ken Brealey’s opinion is corroborative.586 His evidence confirms essentially that the Tsilhqot’in trail network through Potato Mountain is of pre-contact origin.587 Based on Cox (1864), Smith (1872), Dr. Lane (1953) 588 and the admissions made by BC Parks (1996),589 Dr. Brealey mapped the Potato Range as hunting and gathering grounds from pre-contact times until at least the smallpox of 1862.590 Further to Cox, Lane and anthropologist Robert Tyhurst (1994),591 Dr. Brealey mapped these land use and occupancy patterns as including hunting and gathering the Potato Range through to the post-reserve creation period.592 Premised on the BC Parks recognition, Dr. Brealey mapped the essential patterns of Tsilhqot’in land use and

583 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at para. 146; Transcript, March 24, 2004, Minnie Charleyboy Direct-Exam, at 00011, 47 – 00013, 40; Transcript, March 30, 2004, Minnie Charleyboy Cross-Exam, at 00026, 21 to 00027, 20; 00028, 5-13. 584 Transcript, April 2, 2004, Theophile Ubill Lulua, Direct-Exam, at 00040, 46 to 00041, 38. 585 See, e.g., Transcript, October 15, 2004, Harry Setah Direct-Exam, at 00004, 18 – 00006, 26; 00010, 44 - 000 11, 33; 000015, 4-21; 000 71, 33 - 00073, 5; Transcript, September 9, 2004, Doris Lulua Cross-Exam, at 00007, 42 – 00008, 17; Transcript, March 30, 2004, Minnie Charleyboy Cross-Exam, at 00016, 3 – 00027, 20; Transcript, September 23, 2003, Roger William Direct-Exam, at 00007, 32-47. 586 Plaintiff’s Argument, at 1017; Plaintiff’s Appendix 3, at 136; 140. 587 Plaintiff’s Argument, Volume 3, at para. 922. 588 R. Lane, Cultural Relations of the Chilcotin Indians of West Central British Columbia, March 1953 (Exhibit 0175) cited in Exhibit 0240, Brealey report. 589 Exhibit 0240, Expert Report of Ken Brealey, at 65- can not find BC Parks recognition of ’96 in exhibits, HM suggested sourcing to Brealey report “draft master plan”… it is only mentioned in footnotes. Leah, try Exhibit 0501: David. 590 Exhibit 0246, Brealey, Land Use and Occupancy Map, October 2003. 591 R. Tyhurst, “Shuswap and Chilcotin use of Chum Creek: a review of written sources”, Environment Canada, Calgary, 1994 cited in Exhibit 0240, Brealey report. 592 Exhibit 0246, Brealey, Land Use and Occupancy Map, October 2003.

109 occupancy as encompassing hunting and gathering the Potato Mountain area into the post- reserve creation period of the 20th century.593

187. The expert evidence regarding plant cultivation and use is corroborative. Dr.Turner concluded that “The Tsilhqot’in culture is based on their use of and access to their traditional lands in their entirety and over the full course of the year. For example, people have a long history of traveling up to the Potato Mountains to gather important plant resources such as glacier lily bulbs (esghunsh, beartooth Erythronium grandiflorum) and mountain potatoes (sunt’iny).”594 Dr. Turner also concluded that Tsilhqot'ins traditionally go to Potato Mountain just after the snow melts to stay, "gather and process mountain potatoes, berries and other plant resources from a day or two to almost all of the summer. .. they would also gather bear tooth (glacier lily bulbs) in the summer months ...there and on Mount Tallow [Ts'il?osj."595 Further, that they have done so in sustainable manner, maintaining and increasing abundance by disseminating plant stems and burning over areas from time to time.596 In the words of Dr. Dinwoodie, “they maintained an institutionalized schedule of use centred on (proto-agricultural) root-harvest.”597

188. Dr. Turner expresses the opinion that “the Tsilhqot’in and Xeni Gwet’in people have been resident for at least 250-300 years in their claim area,” and likely much longer.598 Further, “it would not have been possible for the Xeni Gwet’in and other Tsilhqot’in to have acquired their knowledge and developed names and terminology for the connection to the plant resources in their territory within the shorter time frame of the last 150 years.”599

189. Specifically with respect to Potato Mountain, Dr. Turner reviews the archeological literature, the oral evidence of root harvesting and roasting, combined with the fact that the

593 Exhibit 0246, Brealey, Land Use and Occupancy Map, October 2003. 594 Exhibit 0205, Expert Report of Dr. Nancy Turner, at 4-5; Plaintiff’s Final Argument, Appendix 3, para 142. 595 Plaintiff’s Argument, Appendix 3, at para. 153; Exhibit 0205, Expert Report of Dr. Nancy Turner, at 4. 596 Plaintiff’s Argument, at para. 1017; Exhibit 0205, Expert Report of Dr. Nancy Turner, at 2, 5, 4; Transcript, November 17, 2004, Dr. Nancy Turner Direct-Exam, 00066, 23 to 00067, 29; 00070, 28 to 46; Transcript, November 19, 2004, Dr. Nancy Turner Direct-Exam, 00041, 44 to 00042, 13. 597 Plaintiff’s Argument, Volume 3, at paras. 975, 1017. 598 Exhibit 0205, Expert Report of Dr. Nancy Turner, at 2; 6. 599 Exhibit 0205, Expert Report of Dr. Nancy Turner, at 2.

110 Tsilhqot’in have unique names for the plants, and concludes that “it was the Tsilhqot’in people who were there for a long period of time in that area.”600 Several Tsilhqot’in witnesses also gave evidence of ancestral and continuing use of roasting pits at and about Tsimol Ch’ed.601

190. The evidence of archeaologist Morley Eldridge, British Columbia’s witness, is also corroborative. Eldridge accepts the conclusion of Alexander, Tyhurst, Matson and Burnard (1985) that there is a “remarkable similarity” between the contemporary, historic, and [late] prehistoric settlement patterns in the Potato Mountain area.602 He further accepted that findings including 456 recorded roasting pits and cache pits (and many more not recorded), as well as points and point fragments, indicate that root gathering and roasting, as well as hunting, were important Tsilhqot’in Athabaskan pre-historic activities in the Potato Mountains.603 Further, he accepted that the Tsilhqot’in use of the land followed a seasonal round pattern that remained largely unchanged from prehistoric to modern times.604

191. Dr. Matson’s own opinion is that the Tsilhqot’in occupied the western Claim Area that includes Potato Mountain as of prior to the end of the 17th century,605 and is corroborative of the body of evidence from the historical record, oral history and other expert evidence establishing that the Tsilhqot'in used and occupied Potato Mountain pre-historically.

192. Dr. Hudson refers to a study by Pokotylo and Mitchell (1998) which “indicate(s) that the archeological record of the Potato Mountains…reflects a Tsilhqot’in Athabaskan model of land us in the summer by a population of 100 to 200 people extending back in time at least several hundred, if not thousands, of years.”606

600 Exhibit 0205, Expert Report of Dr. Nancy Turner, at 6; Transcript, December 9, 2004, Dr. Nancy Turner Cross- Exam, at 00032, 30-31. 601 Plaintiff’s Argument, Appendix 3, para 146. 602 Transcript, May 25, 2006, Morley Eldridge Cross-Exam, at 00049, 21 to 00050, 1; Plaintiff’s Argument. para. 1018. 603 Transcript, May 25, 2006, Morley Eldridge Cross-Exam, at 00050, 2 to 00051, 1; Plaintiff’s Argument, para. 1018; Transcript, May 25, 2006, Morley Eldridge Re-Exam, at 00059, 16-21; 39-45. 604 Transcript, May 25, 2006, Morley Eldridge Cross-Exam, at 00049, 21 to 00050, 1; 00053, 21 to 00054, 33; Plaintiff’s Argument, para. 1018. 605 Plaintiff’s Argument, Volume 3, at paras. 870-872; Plaintiff’s Argument, Appendix 3, at para. 9. 606 Plaintiff’s Argument, Appendix 3, para 149.

111 e. General Points

193. The entire body of evidence discussed above regarding Ts’imol Ch’ed (Potato Mountain) is consistent with the previously discussed Tsilhqot’in system of occupation through regular use of lands for resource exploitation:607

(a) The Tsilhqot’in yearly schedule of land use dating pre-1846 detailed by anthropologist Robert Tyhurst (1984), based in part on Lane (1953), identifies deer hunting intensely June through October; mountain root harvests of spring beauty (i.e. ‘mountain potato’) and lilies (e.g, avalanche lily or ‘mountain carrots’ / ‘beartooth’) in June, July and early August.608

(b) Consistent with the evidence of Dr. Dinwoodie,609 the land uses identified exploit seasonal variations in local resource abundance. In early summer, these mountains bloom with the snow’s retreat as plants such as the spring beauty and avalanche lily mature. Migratory deer arrive to nourish themselves post winter and spring on lower elevation lands.610

(d) In accordance with the evidence of anthropologist John Dewhirst, summer prior to salmon harvesting involves social movement into the mountains for root digging and hunting. Further, “a key aspect of each family’s seasonal round was its regular visits to the same main resource gathering areas year after year.”611

(d) Finally, the “dense, lived mesh of trails” in the Potato mountains, which speak to the Chilcotin “memory…anchored in the landscape,”612 indicate, per Dewhirst, long-term occupancy beyond the trails themselves.613

607 The Plaintiff notes that many of the use polygons in Appendix 6 maps J through EE with respect to Potato Mountain were incorrectly drawn and do not represent the full geographic extent of the evidence. 608 Plaintiff’s Argument, Volume 3, at para. 974; Exhibit 0177, Tyhurst Thesis, at p 52; 53. 609 Plaintiff’s Argument, Volume 3, at para. 987. 610 Plaintiff’s Argument, Volume 3, at para. 1016. 611 Plaintiff’s Argument, Volume 3, at paras. 976. 612 Exhibit 0408, William Turkel Thesis, at 156; Plaintiff’s Argument, para 913. 613 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at 43, paras. 158-159; Plaintiff’s Argument, at para. 995.

112

194. In terms of Tsimol Ch’ed’s (Potato Mountain’s significance to Tsilhqot’in culture, broadly understood, the oral history and expert evidence regarding ancient Tsilhqot’in creation narratives or legends indicate that the Tsilhqot’in were and remain centrally connected to Tsimol Ch’ed:

(a) The Ts’il?os and ?Eniyud creation narrative identifies and explains the origins of the mountain potato harvesting grounds of Tsimol Ch’ed. Tsilhqot’in oral history614 explains in the times of the ?esggidams (Tsilhqot’in ancestors) Ts’il?os and ?Eniyud were Tsilhqot’in husband and wife living with their family in the mountains south of Xeni (Nemiah Valley). When the two decided to separate ?Eniyud left Ts’il?os and returned northwest to the area around Naghatalhchoz (Choelquoit Lake). Having left Ts’il?os in the southern mountains where sunt’iny (mountain potato) grow ?Eniyud seeded various other areas with sunt’iny, the last of which was the bountiful Tsimol Ch’ed.615

(b) The legend of Ts’il?os and ?Eniyud also relates to Tsimol Ch’e d (Potato Mountain) in this sense. Having broken their marriage bond by separating, both consequently turned into mountains (an example of ba ts’egudah – having negatively affected one’s future). ?Eniyud (Niut Mountain) thus bounds Tsimol Ch’ed in the west. As a person, he must be respected, as must the land Further, she and is charged with the responsibility of protecting and watching over the Tsilhqot’in, including those before her at Tsimol Ch’ed.616

(c) The Tsilhqot’in legend of Salmon Boy instructs the listener where the critical resource salmon come from. After chronicling their journey up the Tsilhqox, the

614 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 36. 615 Plaintiff’s Argument, Volume 3, at para. 888, 896-897. 616 Plaintiff’s Argument, Volume 3, at para. 898.

113 legend tells that Tizlin Dzelh acts as a beacon that guides the salmon to their spawning beds near the mouth of Tsilhqox Biny.617

(d) Dr. Dinwoodie’s evidence is that the nature of Tsilhqot’in occupation of land is best understood by also considering that their cultural relationship to lands went well beyond their utilitarian interests in it. 618 Tsilhqot’in legends referencing the Potato Range attest to its enduring cultural significance.

195. The evidence regarding Tsilhqot’in place names also supports the fact of Tsilhqot’in occupation of Tsimol Ch’ed for centuries. British Columbia’s archaeologist Morley Eldridge was of the opinion that aboriginal place names, by their nature, tend to be relatively stable over time. Furthermore, an abundance of different types of aboriginal place names justifies a presumption that the aboriginal group with which the names originate has occupied the named area most likely for centuries. This view is consistent with Dr. Dinwoodie’s “preliminary research suggests that Tsilhqot’in ethnogeographic terminology (place names, geographical nomenclature and associated narratives is abundant and the nature of that terminology supports the inference that their occupation of the territory has been exclusive and long term.” Tsilhqot’in witnesses used a litany of Tsilhqot’in ethnogeographic terms with respect to Tsimol Ch’ed:

(a) Tsimol Ch’ed itself, Tizlin Dzelh (Tullin Mountain), the water bodies of ?Enes Biny, ?Edaz Biny, Chunoz Ch’ed Biny, and the creek Seshanqox (Lingfield Creek), which drains into the Tsilhqox (Chilko River). Specific named resource gathering areas and campsites include: Kanlh Gunlin,619 ?Eziwel-yi, Natsinild?ad, Nagwadisdt’an Yi, Gwejish, Elhts’ichen Nanadish tl’uy, ?Elagi Seqan,620 Deni Ch’elets’elhti, Chitl’ats’elh?ah, Deghagwesdzan, Lhuy Nentsel, Gwelangh,621 Ses Tsi Teniz?an,622 Nentil Tsen Didan,623 and Shes T’ad.624

617 Plaintiff’s Argument, Volume 3, at para 890; Transcript, March 9, 2004, Minnie Charleyboy Direct-Exam, at 00045, 31-41; 00046, 33 - 00047, 8. 618 Plaintiff’s Argument, Volume 3, at para. 885. 619 (164, Exh 485), 620 (#76, Exh 485) 621 Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00042, 14-20. 622 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para 29. 623 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para 29.

114

(b) As these place names inscribe the landscape with meaning, their utterance calls to mind historical memories embedded in the Tsilhqot’in oral history, which themselves recall Tsilhqot’in occupation of Potato Mountain throughout the generations, for example:

(a) Chitl’ats’elh?ah recalls a cheeky ancestor who was bothering women harvesting sunt’iny;625 (b) ?Eziwel yi was the site of a planned ambush on the Europeans during the Tsilhqot’in war;626 (c) Kanlh Gunlin is the location of the grave of a man who was tragically killed around the time that Tsilhqot’ins first had horses.627

196. The expert and lay evidence also support the fact that from the Tsilhqot’in perspective Tsimol Ch’ed is Tsilhqot’in nen (land):

(a) In the words of human geographer, Dr. Brealey: In oral societies, boundaries are recognized, understood and validated not by maps and plans, but from ‘inside the collective’ – i.e. by where creation narratives fade, where genealogical linkages can no longer be traced, where place names are not recognizable, and where languages become unintelligible.628

As discussed above, creation narratives relating to Tsimol Ch’ed are alive and well, genealogical linkages for various modern Tsilhqot’in families are traceable to Tsimol Ch’ed as a customary use area, Tsilhqot’in place names carpet Tsimol Ch’ed, and the language of its aboriginal inhabitants is clearly Tsilhqot’in.

624 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para 29; Note that the last five of these place names do not appear on the Plaintiff’s Argument Appendix 6 map B. 625 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at 29e; 626 Transcript, March 11, 2004, Minnie Charleyboy Direct-Exam, at 00013, 12 – 00014, 1; 00015, 19 – 00016, 3; Transcript, May 11, 2005, Patricia Guichon Direct-Exam, at 00017, 13-23. 627 Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00043, 9 – 00044, 9; Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at 27(a)(ii). 628 Exhibit 0240, Expert Report of Ken Brealey, September 22, 2004, at 6.

115 (b) From the evidence of Tsilhqot’in elder Minnie Charleyboy, born and raised in the Big Eagle Lake area and practicing a seasonal round in which Potato Mountain figured importantly, “you cannot give up your birthplace, because you are born there. And also your grandfather and your mother and your ancestors are buried in those area. So its really important for us. We cannot let go of the land.629

(c) In the words of elder Mabel William, “That’s Tsilhqot’in land, Tsimol Ch’ed. It’s always been Tsilhqot’in land.”630

(d) In the words of Tudud, Chief Anaham’s 3rd wife, as relayed to her great grandson Patrick Alphonse, “Potato Mountain is Tsilhqot’in Territory.”

3. SUMMARY AND CONCLUSION

197. The plaintiff submits that prior to, at, and well after sovereignty, the Tsilhqot’in physically occupied the Potato Mountains through regular use for the construction of dwellings, cultivation of roots and exploitation of resources through hunting, gathering and fishing.631 The Potato Range was intensively and systematically harvested through the early summer months by large numbers of Tsilhqot’ins who gathered at there for this purpose. A cogent body of evidence from the historical record, expert opinion, and oral history establishes these facts on a balance of probabilities. Tsilhqot’in aboriginal title extends to Tsimol Ch’ed (Potato Range).

629 Plaintiff’s Argument, Volume 3, at para. 934. 630 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at 32(x). 631 Plaintiff’s Final Argument, Appendix 3, paras. 142 -151.

116 D. T’ASBAY SE?AN TL’AD (A.K.A. GOAT MOUNTAIN), NILHT’ISIQUZ (STIKELAN CREEK VALLEY), WEST TSILHQOX BINY (CHILKO LAKE), TACH’I DILHGWENLH DZELH (HUCKLEBERRY MOUNTAIN) AND THE TSILHQOX BINY VALLEY FROM CH’A BINY (BIG LAGOON) TO GWEDATS’ISH (CHIKO LAKE OUTLET)

1. DEFINITE TRACTS OF LAND

198. The Claim Area of west of Chilko Lake, and southeast of Tatlayoko Lake, is a mountainous region with distinct tracts of land. Dominating the area, and surrounding the Stikelan Creek Valley, is the Liberated Group of mountains and Mount Moore. To the northeast, and essentially on Chilko Lake is Huckleberry Mountain. Between the two is the Chilko Lake valley, surrounding the small lake named Big Lagoon, and running a narrow course north around Huckleberry Mountain to the Chilko Lake outlet. The Potato Range bounds the Chilko Valley here in the northwest.

199. The Tsilhqot’in identify these tracts in their own terms. Nilht’isiquz (Stikelan Creek Valley) is surrounded by T’asbay Se?an Tl’ad (Liberated Group, Mount Moore, etc.), also known as Goat Mountain. Tach’i Dilhgwenlh Dzelh (Huckleberry Mountain) lies to the northeast largely at Tsilhqox Biny (Chilko Lake). The Tsilhqox Biny (Chilko Lake) valley, surrounding Ch’a Biny (Big Lagoon), narrows and runs north around Tach’I Dilhgqwenlh Dzelh to Gwedats’ish (Chilko Lake outlet). Tsimol Ch’ed (Potato Range) bounds the Tsilhqox Biny valley to the northwest of here.

200. This area sharply varies in terrain and elevation, and provides habitat for a number of species:632 Mountain goats are found in the rocky, alpine environment. Groundhogs or marmots live at the foot of the alpine. Migratory deer are found through the valley seasonally, with the snow’s retreat in late spring moving up into the mountains to feed and stay until the snow’s onset in late fall when they migrate back down to wintering grounds on the forested plateau.

632 Plaintiff’s Argument, Volume 3, at para.940-942.

117 2. PHYSICALLY OCCUPIED BEFORE, AT AND AFTER CROWN SOVEREIGNTY

201. Prior to, at and well after Crown sovereignty the Tsilhqot’in physically occupied the lands of T’asbay Se?an Tl’ad (a.k.a. Goat Mountain) including Nilht’isiquz (Stikelan Creek Valley), Tach’i Dilhgwenlh Dzelh (Huckleberry Mountain) and the Tsilhqox Biny valley from Ch’a Biny (Big Lagoon) to Gwedats’ish (Chiko Lake outlet) as shown by their regular use of these lands, on central west Tsilhqox Biny (Chilko Lake) and southeast of Talhiqox Biny (Tatlayoko Lake), as crucial hunting grounds from base camps.633 This fact is established by a coherent set of evidence from the historical record, expert opinion and oral history on a civil standard of proof. a. Historical Record and Related Expert Opinion

202. This historical record and related expert opinion regarding the lands in question largely overlaps with that set out in the Plaintiff’s reply submissions regard Tsimol Ch’ed (Potato Range). In particular, the Plaintiff adopts his submissions regarding the historical record from 1822 – 1862/63 and 1865-1890 with respect to Tsimol Ch’ed as equally applicable to the lands of T’asbay Se?an Tl’ad (a.k.a. Goat Mountain), Tach’i Dilhgwenlh Dzelh (Huckleberry Mountain) and the Tsilhqox Biny valley from Ch’a Biny (Big Lagoon) to Gwedats’ish (Chiko Lake outlet. Certain historical documents and related expert opinion, however, speak especially to the relevant lands here. Indeed, they set out the Crown’s express recognition of these lands, or at the very least T’asbay Se?an Tl’ad (a.k.a. Goat Mountain) including Nilht’isiquz (Stikelan Creek Valley), as Tsilhqot’in hunting grounds before, at and after Crown sovereignty.

203. To begin, in 1863, road builder Alfred Waddington produced an untitled sketch map of the Homathko River and Tatla Lake area.634 Waddington’s map identifies a “Village and horses” at the north end and head of the unnamed Tatlayoko Lake. It also shows trails connecting “Tacla Lake” [Tatla Lake], from both ends to the head of Tatlayoko Lake and down the east side to the southern foot of Tatlayoko Lake, at the northwest margins of Nilht’isiquz

633 Plaintiff’s Appendix 3, at paras. 186, 192-195. 634 Plaintiff’s Appendix 3, at para. 91; Exhibit 0265-1863/00/00.001.

118 (Stikelan Creek Valley) in T’asbay Se?an Tl’ad (a.k.a. Goat Mountain).635 Regarding Waddington’s Map, Dewhirst stated:

In my opinion, …, the aboriginal trails… and village reported by Waddington indicate a long-term use and occupation that most likely pre-date 1846. …

In my opinion, these are all Tsilhqot'in trails that formed over generations of use and occupancy. They attest to resource use, such as fisheries, at strategic locations, and reflect an intimate knowledge and long occupation of the area that likely predates 1846.636

[I]n my opinion the aboriginal features shown on his map—trails, a village, and a fishery—indicate a Tsilhqot'in occupation of the Tatlayoko Lake area, …, that must be prior to 1846, based on use of a village, fishery and connecting trails.637

204. In the second week of July of 1864, as part of the Chicotin War effort the colonial expedition under magistrate William Cox advanced south from Tatla Lake to the area of north Tatlayoko Lake.638 Cox described his party as entering “into Klatassine’s favourite hunting and fishing territory, the mountainous range between Moseley Creek…and Chilko Lake…” [Emphasis added.] The lands in question are mountainous and precisely in this area.

205. On July 22, 1864 William Cox signed a map prepared based on information from Chief’s Alexis and Eulas.639 The map, commonly known now as the Chilcotin War Map, expressly identifies the mountainous lands of central west Chilko Lake and south east Tatlayoko Lake as “Indian hunting grounds Deer and Ground Hog in abundance.”640

206. Furthermore, the Chilcotin War Map of 1864 identifies a trail to southeast Tatlayoko Lake in the mountains, running through the Tatlayoko Valley on the east side of the lake.641 From north Tatlayoko Lake this trail links to a trail network connecting in the north to Cochin

635 Exhibit 0443, Dewhirst Report, at para. 228, 238. 636 Plaintiff’s Appendix 3, at para. 120 re Lhuy Nachasgwenguln (Little Eagle Lake); Exhibit 0443, Dewhirst Report, at paras. 239-239 and paras. 237 and 261. 637 Plaintiff’s Appendix 3, at para. 166; Exhibit 0443, Dewhirst Report, at para. 227. 638 Exhibit 0244, Brealey Map, ChilcotinWar. 639 Exhibit 0265-1864/00/00/002. Re Cox’s signature, the map’s cover page reads “Features and Cross Ref: Pencil detail on original: note in faint pencil in bottom right-hand corner reads ‘from map originally drafted by Indians Alexis and (?) Valos as interpreted by Mr. Ogilvy’: (signed) T.W. Cox, Benshee Lake, 22 July 1864. 640 See also Exhibit 0246, Brealey Map, Land Use and Occupancy. 641 Exhibit 0265-1864/00/00/002.

119 Lake, Little Eagle Lake and Tatla Lake, and in the east to Big Eagle Lake, the Chilko Lake outlet and the Chilko River. Dewhirst discussed these trails as “an extensive trail network that connects the Tatlayoko-Tatla Valley to the Chilko Lake-Chilko River Valley,”642 and stated:

In my opinion the trail network, already established in 1864, was formed over many years of use and occupancy that undoubtedly pre-date 1846, only 18 years earlier.” … … The network of trails depicted necessarily indicates use and occupancy of a wider area that includes a number of lakes and mountains in the northwest part of the claim area and beyond.643

207. On August 19th, 1864, John Brough’s party, present in the area as part of the colonial expedition under Chartres Brew, poled their raft from the head of Tatlayoko Lake 11 miles south along its east shore and in the Claim Area.644 Brough noted, “Saw some old habitation by the way…”.645 On the return trip north days later “J. Berry and two Indians left by the trail as they did not like to risk the raft.”646 [Emphasis added.] Dewhirst commented, “[t]he Brough account of 1864… records an old habitation site and trails on the east shore [of] Tatlayoko Lake that… likely pre-date 1846.”647 This trail is consistent with that identified on the Chilcotin War Map of 1864.

208. On September 9, 1864, Governor Seymour reported on the Chilcotin War to the Colonial Office of Great Britain. In his dispatch, Seymour referenced the probable extent of “the Territory occupied by the Chilcotens”, the mountainous region that “their hunting and fishing grounds” were believed to be in, as well as the limited knowledge the Crown had of the area so many years after Crown sovereignty:

The Territory occupied by the Chilcotens extends probably… [f]rom 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,….. the Indian trails which traverse the country concentre at Benshee Lake...

642 Exhibit 0443, Expert Report of John Dewhirst, at para. 244. 643 Exhibit 0443, Expert Report of John Dewhirst, at paras. 246, 249, 251. 644 Plaintiff’s Argument, Appendix 3, at para. 95. 645 Plaintiff’s Argument, Appendix 3, at para. 95. 646 Exhibit 0156-1864/06/29.001, Diary of John Brough, at 100610. 647 Exhibit 0443, Expert Report of John Dewhirst, at para. 227.

120

… We had vaguely heard that a large force under a subordinate officer to Alexis occupied the lodges on the Benshee Lake & that a detachment of Anaheim’s men was in possession of a palisaded fort at Sutleth. All these places lay on the mule trail where the pack trains passed. 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...648

209. Dewhirst located this reference to “their hunting and fishing grounds” in the Cascade Mountains as including the Claim Area around Chilko Lake, situated as it is inside “the summits of the Bute Inlet mounts” and south of “Benshee Lake” - i.e. Puntzi Lake. Moreover, Dewhirst opined that Seymour’s report is based on a “recognition of long use and occupancy of Tsilhqot’in territory that pre-dates 1846 in those areas, unless otherwise stated.”649 He did not state otherwise.

210. In August of 1872, Marcus Smith reportedly camped “by the margin of Tatla Lake not far from the camp of Keogh, the chief of a small band of Indians who subsist by fishing on the lakes and hunting on the slopes of the Cascade mountains, from which they have the local name of ‘Stone Indians’ [Emphasis added].650 In November of 1872, federal surveyor and agent Marcus Smith reported, “[o]n the northwest side of Tatla Lake… are the head quarters of Keogh, the Chief of the Stone Indians… They have also stations by the lakes in the mountains from Tatla to the headwaters of the Chilco River - ….”651 [Emphasis added.] Regarding Smith’s report Dewhirst concluded:

I am of the opinion, based on Smith's description, that the Tatla Lake Indians also used the western part of the Claim Area in that their territory included stations along the mountain lakes between Tatla Lake and the headwaters of the Chilko

648 Exhibit 0156-1864/09/09.001, Governor Seymour Dispatch No. 37, 1864, Transcription at 1-2. 649 Exhibit 0443, Expert Report of John Dewhirst, at paras. 272-273. 650 Exhibit 0156-1872/06/14.001 at p. 118, Marcus Smith Journey to Bute Inlet from Appendix E of CPR Report; Exhibit 0240, Expert Report of Kenneth Brealey, at 30. In footnote, pinpoint cite to 1st Smith primary document identified in Brealey, Ex. 240, at p. 30, fn. 45. Document is presumably in Ex. 156. Having cited the primary document, also cite Exhibit 040, Brealey Report, p. 30. Check text for exact accuracy per primary document. 651 Exhibit 0156-1872/11/29.001 at p. 2000321, Letter from Marcus Smith to Walkem Nov 29, 1872; Exhibit 0240, Expert Report of Kenneth Brealey, at 30. In footnote, pinpoint cite to 2nd Smith primary document identified in Brealey, Ex. 240, at p. 30, fn. 45, same as the one cited in Ex. 443, para. 275. Document is presumably in Ex. 156. Having cited the primary document, also cite Exhibit 040, Brealey Report, p. 30, fn. 45.

121 River. In my opinion, those lakes would include Little Eagle Lake, Cochin Lake, and Big Eagle or Choelquoit Lake. It is noteworthy that the Chilcotin War map of 1864 shows a trail from Tatla Lake to the outlet of Chilco Lake (British Columbia 1864). As discussed above, this trail system undoubtedly formed over many years of use and, in my opinion, must pre-date 1846. My genealogical research linking modern extended families to intergenerational customary use areas in the Claim Area (Section 3.0) also confirms the use and occupation of the Claim Area by Tatla Lake Indians.652 Their use and occupation of the area relied upon the trail networks to provide access to village and resource sites, such as fisheries and hunting grounds.653 [Emphasis added.]

211. In 1893, Father Morice wrote of the Stone Tsilhqot’in living in the mountains in terms of their “favourite haunts, where they live… constantly shifting from their southern to their northern border…”654 [Emphasis added.] Dr. Brealey depicted Morice’s “favourite haunts” as including T’asbay Se?an Tl’ad (a.k.a. Goat Mountain) west of Chilko Lake.655 Moreover, Dr. Brealey depicted the ‘southern border’ of Tsilhqot’in territory as clear encompassing the lands at issue.656

212. Finally, in the 1990s Ts’il?os Park was created and it includes largely the lands in question.657 Prior to the formation of the park, the B.C. Ministry of Environment, Lands and Parks participated as a member of the Chilko Lake Study Team, which studied land use in the proposed park area.658 Within the resulting park planning documents, British Columbia has in fact explicitly recognized the long history of Tsilhqot’in use and occupation of the mountains surrounding Ts’il?os and their critical role in the Tsilhqot’in system of land use:

The Nemiah people (Xeni Gwet’in) have occupied and used the Park area since before the arrival of European settlers. The Park contains areas important to the Xeni Gwet’in for food gathering, hunting, trapping, archaeological and cultural sites. The Park is also very important to maintaining their lifestyle.659

652 As will be discussed, this research includes the Potato Mountains as a customary use area of the extended family descendant from Chief Keogh which includes Tsilhqot’in elder Mabel William. 653 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at paras. 276. 654 Exhibit 0156-1983/11/04.00 at 2001027. 655 Exhibit 0246, Expert Report of Ken Brealey, October 2003, Land Use and Occupancy Map 656 Exhibit 0241, Brealey Map, Chilcotin Boundaries; Exhibit 0240, at 12. 657 Exhibit 0031, Acetate overlay showing Ts’il?os Park. 658 Exhibit 0037.005, Consensus Report of the Chilko Lake Study Team, Final Report, September 1993, at v, vii. 659 Plaintiff’s Argument, at paras. 1264-1265; Exhibit 0039.009, British Columbia Ministry of Environment, Land and Parks, Annual Park Management Plan Ts’il-os Provincial Park, 1995/1996, at 1.

122

b. Genealogical Record, Related Expert Opinion & Tsilhqot’in Evidence

213. Anthropologist John Dewhirst’s “genealogical research linking modern extended families to intergenerational customary use areas in the Claim Area” included the descendants of Kahkul (or Qaqez) and Elizabeth.660 Kahkul was the younger brother of the Lhats’as?in, born ca. 1826, the famous leader of the Chilcotin War of 1864 in which Kahkul himself was a Tsilhqot’in warrior. 661 Kahkul and Elizabeth were born no later than 1846, were from around Big Eagle Lake or Choelquoit Lake (Naghatalhchoz) and lived in the Claim Area ca. 1846 and later.662 They had seven children including their youngest daughter Susan English (Sa Yetsen) (ca. 1887 – 1965), who married Tommy Lulua (ca. 1901 – 1978), their oldest daughter Mary Ann (Daldod) (ca. 1866 – 1950), who’s daughter “Sebanie” (ca. 1896 – 1932) married Little George Setah (ca. 1899 – 1971), and their second daughter Agnes (b. 1870), who begat Eagle Lake Henry (?Elegesi) (ca. 1886/1891 - 1968).663 Relatedly, Dewhirst concluded:

In my opinion, given that Lhats 'as?in was born ca. 1826, the parents of Lhats 'as?in and Kahkul were born no later than ca. 1806. Also in my opinion, given that Kahkul came from Naghatalhchoz or the Big Eagle Lake area and had a fish trap there and considering that the Tsilhqot'in practice of traditional or customary family use areas continue for generations (Par. 29-41), the parents of Lhats'as?in and Kahkul most likely used and occupied the Naghatalhchoz or the Big Eagle Lake area before and after 1826.664

214. Elder Francis Setah (b. 1929) was raised by his grandmother Mary Ann (Daldod).665 Mr. Setah gave evidence, including oral history sourced to his grandmother Mary Ann and her father, Qinaqi,666 regarding the use and occupation of the area around Talhiqox Biny (Tatlayoko Lake), Ch’a Biny and Nilht’isiquz:

660 Exhibit 0443, Expert Report of John Dewhirst, at para. 314, 320, 330. 661 Exhibit 0443, Expert Report of John Dewhirst, at para. 318, 321. 662 Exhibit 0443, Expert Report of John Dewhirst, at para. 318. 663 Exhibit 0443, Expert Report of John Dewhirst, at para. 329, 332. 664 Exhibit 0443, Expert Report of John Dewhirst, at para. 319. 665 Transcript, November 17, 2003, Francis Setah Direct Examination, 00015, 19-24. 666 Transcript, November 17, 2003, Francis Setah Direct Examination, 00018, 1-11.

123 (a) Francis Setah identified fall hunting grounds for mountain goat, sheep, deer and groundhog around a valley called Nilht’isiquz.667 Mr. Setah reported that his grandmother, her father, Sam Bulyan and ?Eweniwen have all hunted in this area. He testified that he had learned from his grandmother Daldod, who had learned from her father, that this area has been used by Tsilhqot’ins since the time of the ?esggidams.

(b) Mr. Setah testified that Nilht’isiquz could be accessed from Talhiqox Biny along a route that went down the east side of the lake and up into the mountains.668 In addition, Mr. Setah identified a trail from Nilht’isiquz going northeast to Ch’a Biny and then Biny Gwechugh, part of which he had traveled.669 Mr. Setah learned from his grandmother Daldod, who was taught by her father, that these routes have been used by Tsilhqot’ins since the time of the ?esggidams.

(c) Mr. Setah reported that there are also deer and mountain goat around Ch’a Biny and along the entire west side of Tsilhqox Biny (Chilko Lake).670

(d) Mr. Setah testified that the fall hunts for mountain goat, sheep and deer usually take place between August and October.671 Mr. Setah’s grandmother Daldod taught him, as she had learned from her father, that after hunting through these mountains, the ancestors would then ferry the dried meat and hides up Talhiqox

667 Plaintiff’s Appendix 3, at para. 192; Transcript, December 1, 2003, Francis Setah Direct Examination, 00032, 31 – 00035, 6; Exhibit 0093DIG, Francis Setah Digitized Map, site 189; Exhibit 0093LEG, Francis Setah Digitized Map Legend, site 189. 668 Plaintiff’s Argument, at para. 922, trail 7; Transcript, December 1, 2003, Francis Setah Direct Examination, 00032, 31 – 00035, 6. 669 Plaintiff’s Argument, at para. 922, trail 12; Transcript, December 1, 2003, Francis Setah Direct Examination, 00032, 31 – 00035, 6; 00036, 20 – 00037, 18; Exhibit 0093DIG, Francis Setah Digitized Map, trail “CK”; Exhibit 0093LEG, Francis Setah Digitized Map Legend, trail “CK”. 670 Plaintiff’s Appendix 3, at para. 195; Transcript, December 2, 2003, Francis Setah Direct Examination, 00003, 32 – 00004, 47; Transcript, December 1, 2003, Francis Setah Direct Examination, 00036, 4-19; Exhibit 0095DIG, Francis Setah Digitized Map, polygon “CJ”; Exhibit 0095LEG, Francis Setah Digitized Map Legend, polygon “CJ”. 671 Transcript, December 2, 2003, Francis Setah Direct Examination, 00003, 24-33.

124 Biny in spruce bark boats as they traveled to their winter residences north of the lake.672

215. Minnie Charleyboy (nee Lulua) (b. 1934) is the daughter of Emily Lulua (b. 1914) and was raised by Susan English (Sa Yets’en) and Tommy Lulua.673 Ms. Charleyboy’s evidence, including oral history sourced to Sa Yets’en and Tommy Lulua, related to Tsilhqot’in use and occupation of the area around Tach’i Dilhgwenlh (Huckleberry Mountain), T’asbay Se?an Tl’ad (Goat Mountain), Nilht’isiquz and Talhiqox Biny (Tatlayoko Lake):

(a) Ms. Charleyboy reported that Tommy Lulua taught her that he and Henry Lulua used to travel up Nilht’isiquz to hunt for mountain goats, groundhogs and deer around T’asbay Se?an Tl’ad (Goat Mountain), where there were ancestral camps.674 She testified that her grandmother Sa Yets’en taught her that Tsilhqot’ins used to live in the camps in this area. She also learned this from Eagle Lake Henry who hunted with Legani in the same area every fall. Ms. Charleyboy testified that Tommy and Henry Lulua also hunted for mountain goat further north at Tach’i Dilhgwenlh (Huckleberry Mountain) and Tsimol Ch’ed (Potato Mountain).

(b) Minnie Charleyboy testified that ?Ilin (Elaine) Lulua and her children, Binal Lulua, Doris Lulua, ?Idiwed (Edward) Lulua used to trap groundhogs at Nilht’isiquz every year.675

(c) Minnie Charleboy shared oral history that she had learned from Sa Yets’en about some Tsilhqot’ins who drowned when their boat hit some ice while they were

672 Plaintiff’s Appendix 3, at para. 193; Transcript, December 1, 2003, Francis Setah Direct Examination, 00037, 38 – 00038, 46; 00041, 35 – 00042, 1; December 2, 2003, Francis Setah Direct Examination, 00002, 4 – 00003, 33. 673 Exhibit 0441, Dewhirst Report, September 2004, 17, chart 1; Transcript, March 1, 2004, Minnie Charleyboy Direct Examination, 00011, 16-17. 674 Plaintiff’s Appendix 3, at para. 192; Transcript, March 4, 2004, Minnie Charleyboy Direct Examination, 00030, 45 – 00034, 46; 00040, 38 – 00041, 18. 675 Transcript, March 5, 2004, Minnie Charleyboy Direct Examination, 00002, 29 – 00003, 8; 00004, 9 – 00005, 25.

125 ferrying dried meat from the mountains around Tsilhqox Biny (Chilko Lake) up Talhiqox Biny (Tatlayoko Lake).676

216. Tsilhqot’in elder Mabel William (b. 1918) is the great-granddaughter of Chief Keogh (Kreor) and his wife Kadoulie (Gadulin).677 Ms. William is the eldest child of the late Jimmy and Nelly William,678 Jimmy William being the son of Hanlhdzany (Annie) and Bendzi (William Bonzing),679 Hanlhdzany in turn being the eldest child of Chief Keogh and Kadoulie.680 Ms. William gave evidence, including oral history sourced to Eagle Lake Henry, grandson of Kahkul,681 on Tsilhqot’in use of Nilht’isiquz:

(a) Elder Mabel William averred that she had been taught by ?Elegesi (Eagle Lake Henry) that Tsilhqot’ins would use a steep trail to get into Nilht’isiquz to hunt mountain goats, groundhogs and deer.682

217. Anthropologist John Dewhirst’s “genealogical research linking modern extended families to intergenerational customary use areas in the Claim Area” also included the modern Lulua family.683 Dewhirst identified the Lulua family ancestors Nunsulian (born ca. pre-1849) and his wife Annie (born ca. pre-1949), the parents of Jack Lulua (ca. 1870 – 1949). Dewhirst also identified Nemiah (ca. 1827-1927) and his wife Akous, the parents of Jeannie Nemiah. The children of Jack Lulua and Jeannie Nemiah were Tommy Lulua, Chief Lashaway Lulua, Emily Ekks (nee Lulua) and Eileen Lulua, Sophie Lulua, Frank Lulua, Eliza Lulua, Lizzie Lulua and Felix Lulua, most of whom in turn raised children of their own, some of whom are Tsilhqot’in elders who testified in this case.684 With respect to the Lulua family Dewhirst concluded:685

676 Plaintiff’s Argument, Appendix 3, at para. 193; Transcript, March 5, 2004, 00005, 26 – 00007, 35. 677 Plaintiff’s Argument, Appendix 3, at para. 94. 678 Exhibit 0173, Affidavit #1 of Mabel William, at para. 7. 679 Exhibit 0173, Affidavit #1 of Mabel William, at para. 9. 680 Exhibit 0173, Affidavit #1 of Mabel William, at para. 12; Exhibit 0443, Dewhirst Report, August 2005, at paras. 366-367. 681 Exhibit 0441, Dewhirst Report, at 32, chart 5. 682 Plaintiff’s Argument, at para. 922, trail 7; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 74. 683 Exhibit 0443, Dewhirst Report, at paras. 276, 284. 684 Exhibit 0441, Dewhirst Report, at 17, chart 1. 685 Plaintiff’s Appendix 3, at paras. 93, and 120 re Gwedzin.

126 In my opinion, based on paragraphs 284-300 above, the ancestors of the Lulua family occupied and used the Claim Area before ca. 1827, and their descendants continue this occupation and use today. Oral history and archival documents show that the Lulua family’s customary use area is around Naghatalhchoz at Big Eagle or Choelquoit Lake extending to Chilko Lake.686

218. Elder Doris Lulua (b. 1930) is the daughter of Eileen Lulua (ca. 1905-1948) and the granddaughter of Jack Lulua (ca. 1870/1873-1949) and Jeannie Nemiah (ca. 1875-1917).687 She is the paternal great-granddaughter of Nunsulian (born ca. pre-1849) and Annie (born ca. pre- 1849) and the maternal great-granddaughter of Nemiah (ca. 1830-1927) and his wife Akous.688 Doris Lulua’s evidence, including oral history sourced to her mother Eileen and her great- grandmother Annie, related to Tsilhqot’in use and occupation of the area around Talhiqox Biny (Tatlayoko Lake) and Nilht’isiquz:

(a) Ms. Lulua also reported that she would accompany her mom past Ses Chi up into Nilht’isiquz to trap groundhog each year around September or October.689 Ms. Lulua averred that other Tsilhqot’ins would go up into the mountains around Nilht’isiquz to hunt mountain goat, including her brothers Edward and Binal, her uncles Tommy, Lashway and Felix, and her Aunt Emily.690 They would then return north either by taking a trail over Potato Mountain or up to Ch’a Biny and along Tsilhqox Biny.

219. Elder Theophile Ubill Lulua (b. 1937) is the son of Emily Lulua (b. 1914) and the grandson of Jack Lulua (ca. 1870/1873-1949) and Jeannie Nemiah (ca. 1875-1917).691 He is the paternal great-grandson of Nunsulian (born ca. pre-1849) and Annie (born ca. pre-1849) and the maternal great-grandson of Nemiah (ca. 1830-1927) and his wife Akous.692 Mr. Lulua’s evidence related to the use and occupation of Tach’i Nadilhgwelh (Huckleberry Mountain) and T’asbay Se?an Tl’ad (a.k.a. Nats’ilhiqox or Goat Mountain):

686 Exhibit 0443, Dewhirst Report, at para. 301. 687 Exhibit 0441, Dewhirst Report, September 2004, at 17, chart 1. 688 Exhibit 0441, Dewhirst Report, September 2004, at 17, chart 1. 689 Plaintiff’s Argument, Appendix 3, at para. 192; Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 82. 690 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at paras. 84-86. 691 Exhibit 0441, Expert Report of John Dewhirst, at 17, chart 1. 692 Exhibit 0441, Expert Report of John Dewhirst, at 17, chart 1.

127

(a) Mr. Lulua averred that Tommy Lulua and Eagle Lake Henry hunted for mountain goat on the west side of Tsilhqox Biny (Chilko Lake) around Nats’ilhiqox (Goat Mountain).693 Mr. Lulua also hunted groundhog with Eagle Lake Henry at Tach’i Nadilhgwelh (Huckleberry Mountain).694 He explained that they hunted all year but most intensively during the later summer, fall and winter.695 Mr. Lulua mapped his hunting grounds as including the Tsilhqox Biny (Chilko Lake) valley from Gwedsts’ish (Chilko Lake outlet) through Ch’a Biny (Big Lagoon), as well as Tach’i Nadilhgwelh (Huckleberry Mountain) and much of T’asbay Se?an Tl’ad (a.k.a. Nats’ilhiqox or Goat Mountain).696

220. Dewhirst’s genealogical evidence also relates to the extended Setah family descendant from the Tsilhqot’in husband and wife Setah (a.k.a. Louis Setah and, in Tsilhqot’in, Sit’ax) and Nancy.697 The death certificates of Setah (ca. 1827/1849 – 1927) and Nancy (ca. 1845-1938) respectively state they were born in the Nemiah Valley, directly across Chilko Lake from the lands in question.698 The Setah family flourished through two lines of descent, namely, through their son Johnny Setah and their daughter Sabatsakai (who begat Sammy William).699 Based on the historical record and affidavit evidence, Dewhirst concluded:

In my opinion, archival documents and oral history show that the Setah family’s customary use area is in the Claim Area, primarily around the Nemiah Valley. Ancestors Setah and Nancy, both born before 1846, lived most of their lives in the Claim Area. Setah’s mother, who was born in the early part of the 19th century, was also from Nemiah Valley (M.William 2004b: par. 39). This demonstrates that the Setah family has used the Claim Area since at least the early 19th century and probably earlier.700

693 Plaintiff’s Argument, Appendix 3, at para. 192; Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at para. 148. 694 Plaintiff’s Argument, Appendix 3, at para. 192; Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at para. 188. 695 Plaintiff’s Argument, Appendix 3, at para. 192; Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at para. 148. 696 Exhibit 0013DIG”B”, Exhibit 13LEG”B”, Mapping Evidence of Theophile Ubill Lulua. 697 Exhibit 0443, Expert Report of John Dewhirst, at paras.304-313. 698 Exhibit 0156-1927/11/15.001, Return of Death of an Indian, Louis Setah, 1927; Exhibit 0156-1938/11/17.001, Return of Death of an Indian, Nancy Setah, 1938; Exhibit 0443, Expert Report of John Dewhirst, at paras. 304-305. 699 Exhibit 0443, Expert Report of John Dewhirst, at paras. 311-312. 700 Exhibit 0443, Expert Report of John Dewhirst, at para. 313.

128

221. Tsilhqot’in elder Norman George Setah (b. 1940) is the son of Willie Setah, the paternal grandson of Little George Setah, the paternal great-grandson of ?Eweniwen (Johnny Setah) and the paternal great-great-grandson of Sit’ax (Setah).701 Norman George Setah’s evidence, including oral history sourced to ?Eweniwen and in turn Sit’ax, also related to Tsilhqot’in land use of Xeni (Nemiah Valley):

(a) Mr. Setah testified that his father and grandfather ?Eweniwen used to go across to camp on the west side of Tsilhqox Biny (Chilko Lake) at Dzelh ?Idinlin and further south at Tl’ady Biny Jidinlin on the southern shore of Franklin Arm. Mr. Setah was taught by his grandfather ?Eweniwen that Tsilhqot’in ancestors such as Yaltses also went here to hunt groundhogs and pick medicines, mountain potatoes, beartooth and Indian hellebore.702

222. Tsilhqot’in elder Mabel William (b. 1918) is the widow of the late Eugene William (b. November 6, 1918), son of Sammy and Annie William (a.k.a. Bulyan) and the great-grandson of Sit’ax (Setah) and Nancy.703 Ms. William is Tsilhqot’in originally from the Tsi Del Del (Alexis Creek) community, though upon marriage to Eugene William (m. 1936) she became a member of the Xeni Gwet’in (Nemiah) community.704 Ms. William’s evidence in this case, including oral history sourced to Sammy William (Sam Bulyan) and Eagle Lake Henry, related to Tsilhqot’in use of Ch’a Biny and Nilht’isiquz:

(a) Ms. William averred that she had stayed in a niyah qungh that her father-in-law Sammy William (Sam Bulyan) had built at Ch’a Biny. She was there with her late husband Eugene, his parents Sam and Annie Bulyan and Eugene’s sister Eliza and her husband. They stayed through the fall up until Christmas trapping and getting

701 Exhibit 0441, Expert Report of John Dewhirst, chart 3 and appendix E(7). 702 Plaintiff’s Argument, Appendix 3, at para. 151; Transcript, November 18, 2004, Norman George Setah Direct Examination, 00013, 44 – 00014, 11; 00016, 22 – 00017, 42; Exhibit 0214DIG, Norman George Setah Digitized Map, sites “HH”, “HI”; Exhibit 0214LEG, Norman George Setah Digitized Map Legend, sites “HH”, “HI”. 703 Exhibit 0441, Expert Report of John Dewhirst, 25, chart 3. 704 Exhibit 0173, Affidavit #1 of Mabel William, at paras. 5-7, 22.

129 deer.705 Sammy William taught her that the trail they used to go to Ch’a Biny, which runs along Tsilhqox Biny all the way to Gwedats’ish, has been used by generations of Tsilhqot’ins ever since the ?esggidams.706

(b) Ms. William averred that she had learned from ?Elegesi (Eagle Lake Henry) that Tsilhqot’ins, including him, would go up into Nilht’isiquz in the late summer and fall to hunt mountain goat, groundhog and deer.707

(c) Ms. William averred that Sammy William also taught her that when salmon didn’t make it up the Tsilhqox (Chilko River) or Dasiqox () Tsilhqot’ins would go down Talhjez (Franklin Arm) and take a trail over the mountains to catch fish at the river that goes out to the sea.708 Sammy William taught her that Tsilhqot’ins had been doing this since the time of the ?esggidams.

223. Other Tsilhqot’in witnesses, descendant from Sit’ax and Nancy, through the lineage of Sammy William (Sam Bulyan), who was also son-in-law of Kahkul and Elizabeth through his marriage to Sa Yets’en (Susan English), gave evidence on Tsilhqot’in use of Tach’i Nadilhgwenlh (Huckleberry Mountain), Ch’a Biny, and the area around Talhjez (Franklin Arm):

(a) Elder Martin Quilt, grandson of Sammy William (Sam Bulyan), identified fall deer hunting grounds around Ch’a Biny and up onto Tsimol Ch’ed that have been used by a lot of Tsilhqot’ins including Mr. Quilt, Francis Setah, Marvin Baptiste, Billy Baptiste, Jim Lulua, William Setah, Simon Setah and Sonny Lulua.709 He explained that they would cross Tsilhqox Biny by boat during the fall or go across

705 Plaintiff’s Argument, Appendix 3, at para. 195; Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, at para. 32. 706 Plaintiff’s Argument, Appendix 3, at para. 195, Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 73. 707 Plaintiff’s Argument, Appendix 3, at para. 192; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 74. 708 Plaintiff’s Argument, Appendix 3, at para. 196, Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 70. 709 Plaintiff’s Argument, Appendix 3, at para. 192; Transcript, July 26, 2002, Martin Quilt Direct Examination, 00849, 9 – 00859, 13; Exhibit 0003DIG, Martin Quilt Digitized Map, polygon “M1”; Exhibit 0003LEG, Martin Quilt Digitized Map Legend, polygon “M1”.

130 the ice in the winter. Mr. Quilt also testified that since long before he was born, Tsilhqot’ins had been hunting mountain goats and groundhogs in the fall in the mountains to the south of Ch’a Biny, including all around Nilht’isiquz all the way down past the bottom of Tsilhqox Biny.710 Mr. Quilt testified that Henry Solomon and Little George Setah taught him about hunting trips, which included Sammy William (Bulyan), Eugene, Jimmy and Danny William, William Setah, Andy George and Vincent Setah.

(b) Francis Sammy William averred that his father Sammy William (Bulyan) taught him that many Tsilhqot’ins hunted all around Tach’i Nadilhgwenlh, including Sammy William and his wife Annie.711 Mr. William was also taught by his father that Tsilhqot’ins went hunting and trapping in the mountains all the way down to around Franklin Arm, including Long Jim, Andy George, Captain George, and Johnny Setah, who told Mr. William that he also hunted with Little George Setah in that area.712 Mr. William has also hunted and trapped with his brother Eugene William in this area.

(c) Harry Setah, who was raised by Sammy and Annie William (Bulyan),713 testified that he went with them to the west side of Tsilhqox Biny (Chilko Lake) in the fall to camp using a tent frame made by Sammy William.714 They went to hunt deer and moose, trap animals including lynx, marten, coyotes and squirrels, fish in

710 Plaintiff’s Argument, Appendix 3, at para. 196; Transcript, August 12, 2002, Martin Quilt Direct Examination, 00911, 7 – 00924, 14; Exhibit 0003DIG, Martin Quilt Digitized Map, polygon “R1”; Exhibit 0003LEG, Martin Quilt Digitized Map Legend, polygon “R1”. 711 Plaintiff’s Argument, Volume 1, at para. 192; Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, at para. 62. 712 Plaintiff’s Argument, Volume 1, at para. 195; Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, at paras. 86-88, 91-92. 713 Transcript, October 12, 2004, Harry Setah Direct Examination, 00015, 22-23. 714 Plaintiff’s Argument, Appendix 3, at para. 195; Transcript, October 13, 2004, Harry Setah Direct Examination, 00004, 1-28; 00009, 32 – 00010, 30; Exhibit 0179DIG, Harry Setah Digitized Map, site “Z”; Exhibit 0179LEG, Harry Setah Digitized Map Legend, site “Z”.

131 Tsilhqox Biny and pick Indian tea in areas between Ch’a Biny and Franklin Arm.715 c. Additional Expert Opinion

224. Dr. Brealey’s opinion corroborates the oral history evidence:716

(a) His evidence confirms from the historical record that the Tsilhqot’in trail network connecting Tatla Lake, the Chilko Lake outlet, the lake basins in between and north Tatlayoko Lake to southeast Tatlayoko Lake in the mountains is of pre- contact Tsilhqot’in origin.717 In addition, Dr. Brealey noted that the Euro- Canadian record of Tsilhqot’in trails is far from exhaustive, and stated “there would have been countless subsidiary trials, routes, creeks or portages that would have been used by Tsilhqot’ins.”718

(b) In 1864, colonial magistrate William Cox’s map, forwarded by Governor Seymour to the Colonial Secretary, identified the lands in question as “Indian hunting grounds”. In 1872, Marcus Smith indicated that the Stone Tsilhqot’ins under Chief Keiogh and with stations along the lakes in the northwest trapline and traditionally practiced “hunting on the slopes of the Cascade mountains.” Similarly, in 1993 British Columbia Parks identified the lands in question that are within Ts’il?os Park – i.e. those in the Chilko Lake catchment - as ancestral Tsilhqot’in hunting and gathering grounds.719 Based on these two admissions by British Columbia, Dr. Brealey mapped Tsilhqot’in the lands in question as

715 Plaintiff’s Argument, Appendix 3, at para. 195; Transcript, October 13, 2004, Harry Setah Direct Examination, 00005, 12 – 00008, 14; Exhibit 0179DIG, Harry Setah Digitized Map, polygons “S”, “T”, “U”, “V”; Exhibit 0179LEG, Harry Setah Digitized Map Legend, polygons “S”, “T”, “U”, “V”. 716 Plaintiff’s Argument, Volume 3, at para. 1019. 717 Plaintiff’s Argument, Volume 3, at paras. 914 and 923, Trail Sections 1, 5-7; Exhibit 0245, Brealey Map, Geographic Features. 718 Plaintiff’s Argument, Volume 3, at para. 914. 719 Exhibit 0037.005, Consensus Report of the Chilko Lake Study Team – Final Report, September 1993, at 26; see also Exhibit 0037.011, Ts’il?os Provincial Park Master Plan, December 1996, at 20.

132 Tsilhqot’in hunting and gathering grounds enduring from pre-European contact until at least the smallpox epidemics of the 1860s.720

(c) Further, Dr. Brealey described the Tsilhqot’in resource exploitation patterns thusly, “[i]n early fall they would return the high country to hunt big game and gather berries, and as winter approached, moved back to their wintering grounds…”721 d. General Points

225. The entire body of evidence discussed above regarding Tach’i Dilhgwenlh Dzelh (Huckleberry Mountain), the northwest Tsilhqox Biny (Chilko Lake) valley encompassing Ch’a Biny (Big Lagoon), and T’asbay Se?an Tl’ad (Goat Mountain) including Nilht’isiquz (Stikelan Creek Valley) is consistent with the previously discussed Tsilhqot’in system of occupation through regular use of lands for resource exploitation:

(a) The Tsilhqot’in yearly schedule of “pre-settlement” land use detailed by anthropologist Robert Tyhurst (1984), based in part on Lane (1953), identifies - mountain goat, mountain sheep and marmot hunting starting around June, intensifying for July through October, and dissipating in November; deer hunting intensely June through October.722 Indeed, Tyhurst expressly wrote, “[t]he traditional Chilcoten yearly cycle of activities was governed by two events; the late summer and fall hunts, and the later summer salmon runs.”723 [Emphasis added.]

(b) Consistent with the evidence of Dr. Dinwoodie,724 the land uses identified exploit seasonal variations in local resource abundance. In early summer, migratory deer arrive to join animals such as marmots, mountain goats, mountain sheep and bear

720 Exhibit 0246, Brealey Map, Land Use and Occupancy. 721 Plaintiff’s Argument, Volume 3, at para. 1031. 722 Plaintiff’s Argument, Volume 3, at para. 974; Exhibit 0177, Tyhurst, July 1984 Report, at 52, 53. 723 Plaintiff’s Argument, Volume 3, at para. 1030. 724 Plaintiff’s Argument, Volume 3, at para. 987.

133 in nourishing themselves post winter and spring.725 In fall, mountain goats, mountain sheep, marmots and marten busy themselves in fortifying for winters’ early onset. Migratory deer move down the mountains, ready themselves for winter and eventually migrate out to lower elevations. Bears prepare to hibernate. There is a seasonal abundance of meat on these bones, fur on these hides and fat on these bodies. Days are long and dry, nights are cool. Snow and ice have receded to their minimums.726

(c) In accordance with the evidence of anthropologist John Dewhirst, in fall, there is a social dispersal to the mountains for marmots and “hunting big game” until “[a]t seasons end, move to wintering sites on lakes and rivers.” Moreover, “a key aspect of each family’s seasonal round was its regular visits to the same main resource gathering areas year after year.”727

226. Furthermore, the ethnographic record and expert evidence regarding ancient Tsilhqot’in creation narratives reveal the substantial cultural connection of the Tsilhqot’in to the mountainous lands of central west Tsilhqox Biny (Chilko Lake) and southeast Talhiqox Biny (Tatlayoko Lake):

(a) The mountains on the west side of Tsilhqox Biny, including the mountains around Nilht’isiquz, were identified in evidence as what the Tsilhqot’in refer to as, in translation, ‘snow mountains.’728 Various recorded Tsilhqot’in legends relate to hunting in the ‘snow mountains’ during summer or fall for game, including marmots, deer, mountain sheep and mountain goat – The Gambler Who Received Supernatural Aid,729 The Man Who Married Eagle’s Daughters, The Boy Who Was Helped by the Wolves and The Men and the Monsters.730

725 Plaintiff’s Argument, Volume 3, at para. 1016. 726 Plaintiff’s Argument, Volume 3, at para. 1027. 727 Plaintiff’s Argument, Volume 3, at paras. 976. 728 Plaintiff’s Argument, Volume 3, at para. 889; Transcript, October 4, 2004, Mabel William Direct Examination, 00025, 24 – 00027, 1. 729 Plaintiff’s Argument, Volume 3, at para. 889. 730 Plaintiff’s Argument, Volume 3, at para. 891.

134 (b) Dr. Dinwoodie’s evidence is that the nature of Tsilhqot’in occupation of land is best understood by also considering that their cultural relationship to lands went well beyond their utilitarian interests in it. In particular, Tsilhqot’in cultural relationship to land is empirically attested in their geographic place names and associated narratives.731

227. The evidence regarding Tsilhqot’in place names also supports the fact of Tsilhqot’in occupation of the lands of central west Tsilhqox Biny (Chilko Lake) and southeast Talhiqox Biny (Tatlayoko Lake) for centuries. British Columbia’s archaeologist Morley Eldridge, on cross-examination based on the work of federal archaeologist Dr. Martin Magne, was of the opinion that aboriginal place names, by their nature, tend to be relatively stable over time. Furthermore, an abundance of different types of aboriginal place names justifies a presumption that the aboriginal group with which the names originate has occupied the named area most likely for centuries. This view is consistent with Dr. Dinwoodie’s “preliminary research suggests that Tsilhqot’in ethnogeographic terminology (place names, geographical nomenclature and associated narratives is abundant and the nature of that terminology supports the inference that their occupation of the territory has been exclusive and long term.” Tsilhqot’in witnesses used a litany of Tsilhqot’in ethnogeographic terms with respect to the area in question:

Ses Chi Tach’i Dilhgwenlh Talhiqox Biny Ch’a Biny Nilht’isiquz Dzelh ?Idinlin T’asbay Se?andtl’ad Nats’ilhiqox Jitadi?ah Talhjez

731 Plaintiff’s Argument, Volume 3, at para. 885.

135 228. The expert and lay evidence also support the fact that from the Tsilhqot’in perspective Tsimol Ch’ed is Tsilhqot’in nen (land):

(a) In the words of human geographer, Dr. Brealey: In oral societies, boundaries are recognized, understood and validated not by maps and plans, but from ‘inside the collective’ – i.e. by where creation narratives fade, where genealogical linkages can no longer be traced, where place names are not recognizable, and where languages become unintelligible.732

As discussed above, creation narratives relate to mountains on the west side of Tsilhqox Biny, including the mountains around Nilht’isiquz, as hunting grounds in the ‘snow mountains’, genealogical evidence links the lands in question to use by the extended family of Lhats’as?in himself. Tsilhqot’in place names delineate the area, and the language of its aboriginal inhabitants is clearly Tsilhqot’in.

(b) In the words of elder Minnie Charleyboy, speaking through an interpreter and raised by Lhat’as?in’s niece:

You cannot give up your birthplace, because you are born there. And also your grandfather and your mother and your ancestors are buried in those area. So it’s really important for us. We cannot let go of the land.733

3. SUMMARY AND CONCLUSION

229. Prior to, at and well after Crown sovereignty the Tsilhqot’in physically occupied the lands of T’asbay Se?an Tl’ad (a.k.a. Goat Mountain), Tach’i Dilhgwenlh Dzelh (Huckleberry Mountain) and the Tsilhqox Biny valley from Ch’a Biny (Big Lagoon) to Gwedats’ish (Chiko Lake outlet) as shown by their regular use of these lands, on central west Tsilhqox Biny (Chilko Lake) and southeast of Talhiqox Biny (Tatlayoko Lake), as crucial hunting grounds from base camps.734 This fact is established by a coherent set of evidence from the historical record, expert opinion and oral history on a civil standard of proof.

732 Exhibit 0240, Expert Report of Ken Brealey, September 22, 2004, at 6. 733 Plaintiff’s Argument, Volume 3, at para. 934; Transcript, March 26, 2004, Minnie Charleyboy Direct Examination, 00023, 16-20. 734 Plaintiff’s Appendix 3, at paras. 186, 192-195.

136

E. SOUTHWEST TSILQOX BINY (CHILKO LAKE): TALHJEZ (FRANKLYN ARM), NACHENT’AZ DZELH (BOATSWAIN MOUNTAIN), YANATS’IDLUSH (IMPASSE RIDGE), TSI NENTSEN TSISH DZELH (GOOD HOPE MOUNTAIN) AND TSILHQOX DZELH (CHILKO MOUNTAIN)

1. DEFINITE TRACTS OF LAND

230. Physically, Chilko Lake is a large valley bottom with its headwaters in the Coast or Cascade Mountains in the southern Claim Area.735 At the southwest extremity of Chilko Lake is the tangential Talhjez (Franklyn Arm) that tends southwest towards Bute Inlet. Definite lofty mountains abound the arm. Boatswain Mountain sits to the north. Impasse Ridge rests in the west. Good Hope Mountain bounds it in the south. Chilko Mountain, in turn, presides at the southwestern terminus of Chilko Lake. These names obviously delineate these mountain tracts of land in English terms.

231. The Tsilhqot’in identify these geographic features in their own terms. Of course, Tsilhqox Biny (Chilko Lake) is the dominant body of water, whereas Talhjez (Frankly Arm) is an offshoot. Nachent’az Dzelh (Boatswain Mountain) is to the north of Talhjez. Yanats’idlush (Impasse Ridge) sits to the west. Tsi Nentsen Tsish Dzelh (Good Hope Mountain) and Sebay Talgog are to the south. Tsilhqox Dzelh (Chilko Mountain) circumscribes the southwestern end of Tsilhqox Biny.

232. Talhjez (Franklyn Arm) is surrounded by steep mountainous terrain.736 Mountain goats and marten are found in the rocky, alpine environment rising up on all sides of the water.

2. PHYSICALLY OCCUPIED BEFORE, AT & AFTER CROWN SOVEREIGNTY

233. Prior to, at and well after Crown sovereignty the Tsilhqot’in regularly used the lands surrounding Talhjez (Franklyn Arm), including Nachent’az Dzelh (Boatswain Mountain),

735 Plaintiff’s Argument, Volume 3, para. 937-938. 736 Plaintiff’s Argument, Volume 3, at para.940-942.

137 Tsi Nentsen Tsinsh Dzelh (Mount Good Hope) and Sebay Talgog on southwest Tsilhqox Biny (Chilko Lake) as important hunting and trapping grounds.737 This fact is established by a coherent set of evidence from the historical record, expert opinion and oral history.

a. Historical Record and Related Expert Opinion

234. The historical record regarding the Tsilhqot’in is limited by its ‘on the ground’ ‘sight lines.’738 The archival record 1822-1845 from the Hudson Bay Company and the Jesuit missionary Father Nobili identifies relatively early on the resident Tsilhqot’in population on Chilko River and at the northern outlet of Chilko Lake, as well as the fact that Tsilhqot’ins are traveling the length of Chilko Lake by canoe. The historical record regarding the remote Nemiah Valley, located on the rugged northeast side of Chilko Lake, is relatively late in developing. Nonetheless, it belatedly points to a residential Tsilhqot’in population using and occupying the Nemiah Valley and its mountainous setting as resource exploitation grounds since prior to Euroepean contact. The general historical record, however, did not penetrate into or survey the mountains extending from southeast Chilko Lake until after the turn of the 20th century. Per Dr. Brealey, the historical record thus has an obvious blind spot in this area with respect to the early geography of the Tsilhqot’in.739 As will be seen, however, the genealogical record, expert opinion and oral history substantiate early Tsilhqot’in use and occupation of the lands surrounding southeast Chilko Lake, including by a Tsilhqot’in population resident at the intersection of Gunn and Yohetta Valleys located just to the east.

235. That said, the historical record in Tsilhqot’in territory begins in January of 1822 with furtrader George McDougall’s record of his party’s visit to Tsilhqot’ins on the Chilko River. McDougall reported gathering “much information respecting their Country in general,” including something of the Tsilhqot’in perspective on and familiarity with the Chilko Lake area:

… I have every reason to think [the trip] will be attended with many salutary advantages at a future period, they are certainly a fine, brave looking set of Indians, whose lands are far from being poor either, as to beaver or Large

737 Plaintiff’s Appendix 3, at paras. 186, 192-195. 738 Exhibit 0240, Expert Report of Ken Brealey, at p. 33. 739 Exhibit 0240, Expert Report of Ken Brealey, at 2, f.n. 3.

138 Animals, if we can judge from what was told us & that part of their lands which fell under our immediate Eye corroborated a part, which their Dress was still a farther proof of what they told us, … … the River, …, taking its water from a Large Lake which they say is about a half a mile broad and takes them two days En Canot to go from entrance to extremity, extending in the same direction as the River… … [o]ne of them had a Gun, it was one of Barnetts 1808, he says he and several others have had Guns from Indians who came from the Sea, at the extremity of this Lake of theirs, they cross over a Mountain, which portage takes them from 5 to 6 days light. By dint of enquiry & with the help of small sticks we made out to get nearly their strength, they say there are 6 Large Ground Lodges, about the Lake, containing 53 Families…740 [Emphasis added.]

236. As discussed already,741 Dewhirst estimated this Chilko Lake population as numbering 360 Tsilhqot’ins, part of which was a winter resident population in the Nemiah Valley situated at the northern boundary of the lands in question.742 Further, per Dewhirst “these people used canoes on the lake...”743

237. In 1827, Joseph McGillvary of the Hudson’s Bay Company provided a written overview of “Chilkotin Country” and described Chilko Lake as “surround by lofty Mountains, from which many small Rivers issue therefrom.” McGillvary noted that the Tsilhqot’in regularly exploited their Chilko Lake fish produce and large animal resources, including in especially critical circumstances:

In the Spring they have abundance of Suckers, Trout and White Fish, it abounds in large Animals—such as Rein Deer—Red Deer and Moose Deer—and in the Autunm and Spring Chevreuil are numerous—Salmon however is their principal food, but as this fish does not come up regularly the Chilkotin River their resource is the produce of the Lake, and large Animals. [emphasis added]

238. In this regard, Dewhirst stated:

740 Exhibit 0156-1822/01/18.001 at 100924-25. 741 Plaintiff’s Reply Appendix, Physical Occupation of Definite Tracts of Land, re Xeni (Nemiah Valley). 742 Exhibit 0443, Expert Report of John Dewhirst, at paras. 136-137, 203, 208. 743 Exhibit 0443, Expert Report of John Dewhirst, at para. 163.

139 In my opinion, McGillivray shows that Chilko Lake and Chilko River fisheries together with big game resources in the surrounding area support the resident Tsilhqot'in population year round.744 [emphasis added]

239. In 1831, furtrader Ross Cox recounted his years in west of the Rocky Mountains and provided a brief sketch of Chilcotin country that described Chilko River and Chilko Lake.745 Regarding Cox, Dr. Brealey stated, “while he does not specify the extent of ‘their hunting grounds’ would most certainly include the ‘many creeks issuing therefrom’ (and into the Chilko and Chilcotin Rivers and Lakes)… .”746 The waters issuing from Mount Tatlow and Long Valley, as well as those of Rainbow Creek and Edmonds River drain into Chilko Lake.

240. For the year 1835, esteemed provincial anthropologist Wilson Duff, writing in The Indian History of British Columbia (1964), analyzed the historical distribution of Indian populations and estimated the population of Nemiah Valley as 100 persons.747

241. In 1838, the Chilcotin Post census identified the Tsilhqot’in winter village of “Taze Ley” on or near the outlet of Chilko Lake and lead by Chief “Quill Quall Yaw”.748 The reported population alone for “Taze Ley” (Tachi Lhuy) was 194 people, including 46 hunters, estimates that were assuredly too low.749 Dewhirst concluded these Tsilhqot’ins “undoubtedly used… hunting grounds most likely in the Claim Area.”750

242. In November of 1845, Father Giovanni Nobili reportedly visited three areas where Tsilhqot’ins were residing at winter’s onset. According to Dr. Brealey, the third was a village at or near the outlet of Chilko Lake containing an estimated 150 people lead by Chief “Konkwaglia”.751 In this regard, Dewhirst opined that in November 1845 Father Nobili visited

744 Exhibit 0443, Expert Report of John Dewhirst, at para. 174. 745 Exhibit 0156-1831/00/00.01: Ross Cox, Adventures of the Columbia River…, at 3000018-20. 746 Exhibit 0240, Expert Report of Ken Brealey, at 9. 747 Exhibit 0265-1964/00/00.001; Exhibit 0443, Expert Report of John Dewhirst, at para. 204. 748 Plaintiff’s Argument, Appendix 3, at para. 59; Exhibit 0443, Expert Report of John Dewhirst, at paras.64-66. 749 Plaintiff’s Argument, Appendix 3, at para. 60; Ex. 0443, Expert Report of John Dewhirst, at paras. 99, 397, 84; Exhibit 0173, Affidavit #1 of Mabel William, at para. 50(vi). 750 Exhibit 0443, Expert Report of John Dewhirst, at paras. 175-176, 397. 751 Exhibit 0240, Expert Report of Ken Brealey, at 26-28 re Nobili, 60 re Fort Chilcotin, and 56 re Chilko Lake; Exhibit 0156-1845/11/30.001 at p. 2195816-7.

140 the “Taze Lay” village of recorded in the Chilcotin Post’s 1838 census.752 Per Brealey, Nobili thus confirmed that those whom Marcus Smith (1872) classified as Stone Tsilhqot’ins included a group headquartered at Chilko Lake.753 [emphasis added]

243. In the summer of 1862, Lt. Palmer traveled north of the Claim Area from Bella Coola to Fort Alexandria. Palmer noted:

The Carriers are seen in various stages of life, those round the forts speaking Canadian French fluently, and being well versed in the customs of the whites; others who dwell in the mountains, such as the Chilcotins who occupy the country traversed by the fifth and sixth sections of our journey, are seen in a purely savage state of existence, clothed in furs, armed with bows and arrows, in the use of which they are singularly expert, … .754

244. Dewhirst ascertained the “fifth and sixth sections of our journey” and concluded:

In my opinion, the Tsilhqot'in territory described by Palmer and his reference to the Tsilhqot'in dwelling in the mountains includes the Claim Area.755

245. On July 22, 1864, colonial magistrate William Cox signed a map prepared based on information from Chiefs Alexis and Eulas and which has become known as the Chilcotin War Map.756 On this map, the lands under discussion were inscribed with “Favourite resort of Indians in time of danger.” With reference to Chilko Lake, and consistent with McDougall (1822), the map noted, “The Indians take 3 days to pass down the Lake in bark Canoes. There is no trail on either side of the Lake.” With respect to these mapped features Dewhirst opined that they “indicate Tsilhqot’in use and occupancy of the Claim Area for many years prior to 1864.”757

246. On September 9, 1864, Governor Seymour reported on the Chilcotin War to the Colonial Office of Great Britain. In his dispatch, Seymour referenced the probable extent of “the Territory occupied by the Chilcotens”, the mountainous region that “their hunting and fishing

752 Exhibit 0443, Expert Report of John Dewhirst, at paras. 76-79. 753 Exhibit 0240, Expert Report of Ken Brealey, at 28. 754 Exhibit 0156-1863/00/00.001. 755 Exhibit 0443, Expert Report of John Dewhirst, at para. 214. 756 Exhibit 0265-1864/00/00.001. 757 Exhibit 0443, Expert Report of John Dewhirst, at para. 181.

141 grounds” were believed to be in, as well as the limited knowledge the Crown had of the area so many years after Crown sovereignty:

The Territory occupied by the Chilcotens extends probably… [f]rom 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,….. the Indian trails which traverse the country concentre at Benshee Lake...

… We had vaguely heard that a large force under a subordinate officer to Alexis occupied the lodges on the Benshee Lake & that a detachment of Anaheim’s men was in possession of a palisaded fort at Sutleth. All these places lay on the mule trail where the pack trains passed. 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...758 [emphasis added]

247. Dewhirst located this reference to “their hunting and fishing grounds” in the Cascade Mountains as including the Claim Area around Chilko Lake, situated as it is inside “the summits of the Bute Inlet mounts” and south of “Benshee Lake” (Puntzi Lake). Moreover, Dewhirst opined that Seymour’s report is based on a “recognition of long use and occupancy of Tsilhqot’in territory that pre-dates 1846 in those areas, unless otherwise stated.”759 He did not state otherwise.

248. In the period of 1868 - 1869, three other maps were made that included the mountainous Chilko Lake area. Waddington’s two maps of 1868 identify Chilko Lake as “Memeia” Lake. Likewise, the 1869 map of Milton and Cheadle labels Chilko Lake as “Mimeio L[ake]”.760 Dewhirst noted, “these are likely renderings of “Nemiah” and the choice of his name for Chilko Lake suggests that Nemiah was established as a chief or leader in the Chilko Lake area by the late 1860s and probably earlier.”761 In addition, these maps suggest “that Chief Nemiah occupied the Chilko Lake area in 1868 and earlier.”762

758 Exhibit 156-1864/09/09.001 at para. 4. 759 Exhibit 0443, Expert Report of John Dewhirst, at paras. 272-273. 760 Exhibit 0265-1869/00/00.001. 761 Exhibit 0443, Expert Report of John Dewhirst, at para. 182. 762 Exhibit 0443, Expert Report of John Dewhirst, at para. 185.

142

249. In 1893, Father Morice wrote of the Stone Tsilhqot’in living in the mountains in terms of their “favourite haunts, where they live… constantly shifting from their southern to their northern border…”763 [Emphasis added.] Dr. Brealey depicted Morice’s “favourite haunts” as including the mountainous Claim Area west of Chilko Lake.764 Moreover, Dr. Brealey depicted the ‘southern border’ of Tsilhqot’in territory as encompassing the lands surrounding Chilko Lake.765

250. Finally, in the 1990s Ts’il?os Park was created and it includes the lands in question.766 Prior to the formation of the park, the B.C. Ministry of Environment, Lands and Parks participated as a member of the Chilko Lake Study Team, which studied land use in the proposed park area.767 Within the resulting park planning documents, British Columbia has in fact explicitly recognized the long history of Tsilhqot’in use and occupation of the mountains surrounding Ts’il?os and their critical role in the Tsilhqot’in system of land use:

The Nemiah people (Xeni Gwet’in) have occupied and used the Park area since before the arrival of European settlers. The Park contains areas important to the Xeni Gwet’in for food gathering, hunting, trapping, archaeological and cultural sites. The Park is also very important to maintaining their lifestyle.768 b. Genealogical Record, Related Expert Opinion & Tsilhqot’in Evidence

251. Anthropologist John Dewhirst’s genealogical research linking modern extended families to the Chilko Lake area beyond Nemiah Valley identified the Tsilhqot’in Chief Nemiah as an ancestor of the modern Lulua family of the Xeni Gwet’in. Dewhirst also reviewed the historical record from the 1860s – 1890s with respect to the Chief Nemiah along with Nemiah’s death certificate.769 Dewhirst concluded:

763 Exhibit 0156-1983/11/04.00 at 2001027. 764 Exhibit 0246, Expert Report of Ken Brealey, October 2003, Land Use and Occupancy Map 765 Exhibit 0241, Brealey Map, Chilcotin Boundaries; Exhibit 0240, at 12. 766 Exhibit 0031, Acetate overlay showing Ts’il?os Park. 767 Exhibit 0037.005, Consensus Report of the Chilko Lake Study Team, Final Report, September 1993, at v, vii. 768 Plaintiff’s Argument, at paras. 1264-1265; Exhibit 0039.009, British Columbia Ministry of Environment, Land and Parks, Annual Park Management Plan Ts’il-os Provincial Park, 1995/1996, at 1. 769 Exhibit 0443, Expert Report of John Dewhirst, at paras. 290-296.

143 Archival documents demonstrate that Nemiah spent his life in and around the Claim Area, particularly the Nemiah Valley and Chilko Lake (see below). … … [L]etters show Nemiah had an intimate knowledge of the Claim Area, especially of Chilco Lake and the surrounding mountains up to Stone.

In my opinion, archival maps and records demonstrate that Nemiah was born in Nemiah Valley ca. 1827. His parents obviously had lived there before him. Nemiah became a leader of prominence by the early 1860s, and likely earlier, and continued to occupy and use the Claim Area until his death in 1927.770 [Emphasis added.]

252. Dewhirst’s genealogical work, as discussed previously, also relates to the extended Setah family descendant from the Tsilhqot’in husband and wife Setah (a.k.a. Louis Setah and, in Tsilhqot’in, Sit’ax) and Nancy.771 The death certificates of Setah (ca. 1827/1849 – 1927) and Nancy (ca. 1845-1938), respectively, likewise state they were born in the Nemiah Valley.772 The Setah family flourished through two lines of descent, namely, through their son Johnny Setah and their daughter Sabatsakai (who begat Sammy William).773 Based on the historical record and affidavit evidence, Dewhirst concluded:

In my opinion, archival documents and oral history show that the Setah family’s customary use area is in the Claim Area, primarily around the Nemiah Valley. Ancestors Setah and Nancy, both born before 1846, lived most of their lives in the Claim Area. Setah’s mother, who was born in the early part of the 19th century, was also from Nemiah Valley (M.William 2004b: par. 39). This demonstrates that the Setah family has used the Claim Area since at least the early 19th century and probably earlier.774

253. Relatedly, Dewhirst’s genealogical evidence also relates to the extended William Setah family descendant from the Tsilhqot’in husband and wife Sammy (1892-1979) and Annie William (a.k.a. Bulyan) (1899-1912). Regarding this William family Dewhirst concluded:

The modern Xeni Gwet'in William family is descended from three lines: Setah and his wife Nancy (Dewhirst 2004:Sec. 5.1, Chart 3), Kawdeh and his unidentified wife (Dewhirst 2004:Sec. 6.0, Chart 4) and Kahkul and Elizabeth

770 Exhibit 0443, Expert Report of John Dewhirst, at paras. 291, 295, 296. 771 Exhibit 0443, Expert Report of John Dewhirst, at paras.304-313. 772 Exhibit 0156-1927/11/15.001 (Louis Setah); Exhibit 156-1938/11/17.001 (Nancy Setah)Exhibit 0443, Dewhirst Report, at paras. 304-305. 773 Exhibit 0443, Expert Report of John Dewhirst, at paras. 311-312. 774 Exhibit 0443, Expert Report of John Dewhirst, at para. 313.

144 (Dewhirst 2004:Sec. 7.1, 7.6, Chart 5). The customary use area of the William family, primarily around the Nemiah Valley, is similar to the Setah family, which is not surprising as Setah and Nancy are common ancestors to both the Setah and William families. Another ancestor of the Xeni Gwet 'in William family, Long Jim, also lived in and used the Nemiah Valley for part of his life. The third line of descent, from ancestors Kahkul and Elizabeth, also links the William family to the Naghatlhcho2 or the Big Eagle Lake area (F. William 2004b:par. 53, 54).

In my opinion, archival documents and oral history explained above, …, show that the William family's customary use area is in the Claim Area, primarily around the Nemiah Valley and Chilko Lake. Ancestors of the Xeni Gwet'in William Family used and occupied these customary use areas before 1827, and their descendants have continued to do so to the present.775 [Emphasis added.]

254. Tsilhqot’in elder Mabel William (b. 1918) is the widow of the late Eugene William (b. 1918), daughter-in-law of Sammy and Annie William (a.k.a. Bulyan) and the great- granddaughter in-law of Sit’ax (Setah) and Nancy.776 Ms. William averred that she learned from Sammy William that when salmon didn’t make it up the Tsilhqox (Chilko River) or Dasiqox (Taseko River) Tsilhqot’ins would go down Talhjez (Franklin Arm) and take a trail over the mountains to catch fish at the river that goes out to the sea.777 Sammy William taught her that Tsilhqot’ins had been doing this since the time of the ?esggidams.

255. Elder Francis Sammy William (b. 1925 ) is the son of Sammy and Annie William (a.k.a. Bulyan) and the great-grandson of Sit’ax (Setah) and Nancy.778 Mr. William’s evidence, including oral history sourced to Sammy William, relates to Tsilhqot’in occupation and use of Talhjez (Franklyn Arm) and Tsi Nentsen Tsinsh Dzelh (Mount Good Hope):

a. Mr. William averred that he was taught by his father, Sammy William, about a time back in the sadanx when a group of Tsilhqot’ins who froze while traveling past Tsi Nentsen Tsinsh Yeqox (Mount Good Hope) to the southwest of Talhjez.779 He was taught that Tsilhqot’ins used to hunt mountain goat and bear around Yanats’idlush to

775 Exhibit 0443, Expert Report of John Dewhirst, at paras. 341-342. 776 Exhibit 0441, Expert Report of John Dewhirst, 25, chart 3, 24, 29. 777 Plaintiff’s Appendix 3, at para. 196, Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 70. 778 Exhibit 0441, Expert Report of John Dewhirst, 25, chart 3, 24, 29. 779 Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, at para. 83

145 the west of Tsi Nentsen Tsinsh Yeqox during the summertime. Mr. William was taught that a cold wind will blow down from Tsi Nentsen Tsinsh Yeqox if people aren’t quiet while they are near the mountain. Some of these Tsilhqot’ins from the sadanx didn’t respect this and made noise so the wind blew and caught the older people in the group and froze them. b. Mr. William’s father had a trapline on the north side of Talhjez and has hunted all around that area and Tsi Nentsen Tsinsh Yeqox for marten and mountain goat. Mr. William has also hunted and trapped with his father and brothers around Franklyn Arm. Mr. William averred that his father told him about hunting and trapping with Sit’ax, Long Jim, Andy George, Captain George.780 c. Mr. William averred that Johnny Setah told him that he hunted with Little George Setah in that area.781 William Setah told Mr. William that he went further west to a place called Nentsen Netsinlh just past Tsi Nentsen Tsinsh Yeqox (Mount Good Hope) to hunt for marten with Little George Setah and Johnny Setah.782

256. Joseph William (b. 1933) was the eldest child of Jimmy and Amelia William and grandson of Sammy and Annie Bulyan.783 Mr. William averred that he has hunted around Talhjez with William Setah, Francis Setah and Otto George.784

257. Tsilhqot’in elder Martin Quilt (b. 1939) is the grandson of Sammy and Annie William (a.k.a. Bulyan) and the great-great-grandson of Sit’ax (Setah) and Nancy.785 Mr. Quilt’s evidence, including oral history sourced to his grandfather, Sammy William, also related to Tsilhqot’in land use of the mountainous Claim Area surrounding Tsilhqox Biny (Chilko Lake) south of Xeni (Nemiah Valley):

780 Plaintiff’s Appendix 3, at para. 195; Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, at para. 73-92 781 Plaintiff’s Appendix 3, at para. 195; Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, at para. 92 782 Plaintiff’s Appendix 3, at para. 195; Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, at para. 84 783 Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, at paras. 5 and 8. 784 Plaintiff’s Appendix 3, at para. 195; Exhibit 0355, Affidavit of Joseph William, December 17, 2004, at para. 93. 785 Exhibit 0441, Dewhirst Report, September 2004, vol. 2, app. E(1)(9).

146 d. Mr. Quilt testified that his grandfather Sammy William had a kigli hole at the end of Talhjez that he would stay in when he was trapping around that area on his way west to Bute Inlet.786 e. Elder Martin Quilt, grandson of Sammy William (Sam Bulyan), testified that Tsilhqot’ins had been hunting mountain goats and groundhogs in the fall in the mountains to the southwest of Tsilhqox Biny (Chilko Lake) including to the north and south of Talhjez (Franklyn Arm).787 Mr. Quilt testified that Henry Solomon and Little George Setah taught him about hunting trips, which included Sammy William (Bulyan), Eugene, Jimmy and Danny William, William Setah, Andy George and Vincent Setah.

258. Tsilhqot’in elder Francis Setah (b. 1929) is the grandson of ?Eweniwen (Johnny Setah) and Millie (Amelia) and the great-grandson of Sit’ax (Setah) and Nancy. Mr. Setah identified Sebay Talgog on the south side of Talhjez as mountain goat hunting grounds.788 Mr. Setah explained that the eastern face of this mountain is so steep that he and his grandfather ?Eweniwen would hunt the mountain goat by boat, shooting them so they would roll down to the lake.

259. Tsilhqot’in elder Norman George Setah (b. 1940) is the son of Willie Setah, the paternal grandson of Little George Setah, the paternal great-grandson of ?Eweniwen (Johnny Setah) and the paternal great-great-grandson of Sit’ax (Setah).789 Mr. Setah testified that he has camped on the southern shore of Talhjez (Franklyn Arm) and hunted for deer, cougar, marten, squirrels, and badger with his father and great-grandfather ?Eweniwen. As a child, Mr. Setah also went with

786 Plaintiff’s Argument, Appendix 3, at para. 196; Transcript, August 12, 2002, Martin Quilt Direct Examination, 00102, 19 – 00106, 6; Exhibit 0001DIG, Martin Quilt Digitized Map, site #51; Exhibit 0001LEG, Martin Quilt Digitized Map Legend, site #51. 787 Plaintiff’s Argument, Appendix 3, at para. 195; Transcript, August 12, 2002, Martin Quilt Direct Examination, 00911, 7 – 00924, 14; Exhibit 0003DIG, Martin Quilt Digitized Map, polygon “R1”; Exhibit 0003LEG, Martin Quilt Digitized Map Legend, polygon “R1”. 788 Plaintiff’s Appendix 3, at para. 196; Transcript, December 3, 2003, Francis Setah Direct Exam, 00057, 10 to 00058, 11; Exhibit 0093DIG, Francis Setah Digitized Map, place #197; Exhibit 0093LEG, Francis Setah Digitized Map Legend, place #197; Exhibit 0096DIG, Francis Setah Digitized Map, polygon “EG”; Exhibit 0096LEG, Francis Setah Digitized Map Legend, polygon “EG”. 789 Exhibit 0441, Expert Report of John Dewhirst, chart 3 and appendix E(7).

147 his with ?Eweniwen who taught him that Tsilhqot’in ancestors such as Yaltses also went here to hunt groundhogs and pick medicines, mountain potatoes, beartooth and Indian hellebore.790

260. Harry Setah, who was raised by Sammy and Annie William (Bulyan),791 testified that he went with them into Talhjez (Franklyn Arm) in the fall to camp, hunt deer and moose, and trap animals including lynx, marten, coyotes and squirrels, fish in Tsilhqox Biny and pick Indian tea.792

c. General Points

261. The evidence regarding Tsilhqot’in place names also supports the fact of Tsilhqot’in occupation of the lands of central west Tsilhqox Biny (Chilko Lake) and southeast Talhiqox Biny (Tatlayoko Lake) for centuries. British Columbia’s archaeologist Morley Eldridge, on cross-examination based on the work of federal archaeologist Dr. Martin Magne, was of the opinion that aboriginal place names, by their nature, tend to be relatively stable over time. Furthermore, an abundance of different types of aboriginal place names justifies a presumption that the aboriginal group with which the names originate has occupied the named area most likely for centuries. This view is consistent with Dr. Dinwoodie’s “preliminary research suggests that Tsilhqot’in ethnogeographic terminology (place names, geographical nomenclature and associated narratives is abundant and the nature of that terminology supports the inference that their occupation of the territory has been exclusive and long term.” Tsilhqot’in witnesses used a litany of Tsilhqot’in ethnogeographic terms with respect to the area in question:

Talhjez Nachent’az Dzelh Jitad?ah

790 Plaintiff’s Argument, Appendix 3, at para. 151; Transcript, November 18, 2004, Norman George Setah Direct Examination, 00008, 40 – 00009, 13; 00009, 47 – 00012, 7; 00013, 44 – 00014, 11; 00016, 22 – 00017, 42; Exhibit 0214DIG, Norman George Setah Digitized Map, sites “HF”, “HI”; Exhibit 0214LEG, Norman George Setah Digitized Map Legend, sites “HF”, “HI”. 791 Transcript, October 12, 2004, Harry Setah Direct Examination, 00015, 22-23. 792 Plaintiff’s Argument, Appendix 3, at para. 195; Transcript, October 13, 2004, Harry Setah Direct Examination, 00005, 12 – 00008, 14; Exhibit 0179DIG, Harry Setah Digitized Map, polygon “V”; Exhibit 0179LEG, Harry Setah Digitized Map Legend, polygon “V”.

148 Yanats’idlush Tsi Nentsen Tsinsh Dzelh Tsilhqox Dzelh Sebay Talgog Tsilhqox Biny

3. SUMMARY AND CONCLUSION

262. It is clear that the Tsilhqot’in regularly used the lands surrounding Talhjez (Franklyn Arm), including Nachent’az Dzelh (Boatswain Mountain), Tsi Nentsen Tsinsh Dzelh (Mount Good Hope) and Sebay Talgog down around the southern end of Tsilhqox Biny (Chilko Lake) as hunting and trapping grounds, prior to, at and well after Crown sovereignty. This fact is established on a civil standard of proof by a coherent set of evidence from the historical record, expert opinion and oral history.

F. THE CLAIM AREA LANDS OF THE TASEKO LAKES AND EAST OF THE TASEKO LAKES (TASEKO LAKES FISH LAKE, LITTLE FISH LAKE (WASP LAKE), AND ONION LAKE, BEECE CREEK; “SNOW MOUNTAINS” TO THE EAST AND SOUTH OF TASEKO LAKES)

1. DEFINITE TRACTS OF LAND…

263. Physiographically, the Taseko Lakes and the Claim Area lands east of them are situated at the intersection of the mountain–plateau transition zone. In the south they are defined by rugged mountains, from which a number of creeks and rivers, including the Lord River, Chita Creek, and the Taseko River drain from their headwaters into the opaque glacial water of the Taseko Lakes. Moving northward, the Beece Creek watershed separates Anvil Mountain from its rugged southern counterpart “snow mountains.” Northward still lie the gentler terrain characterized by forests and meadows straddling the basins of the Wasp(Little Fish) and Fish Lake system, and the Onion Lake watershed, which themselves ultimately drain into the Taseko River.

149 264. Together these lands are defined by what is today known as the Xeni Gwet’in First Nations Government’s Eastern Trapline, and within it regions can be identified as follows:

(a) the and the upper headwaters of creeks and rivers issuing into the Taseko Lakes,

(b) The Taseko Lakes and its outlet,

(c) the Beece Creek watershed,

(d) the “Nabas” area, encompassing as it does the Fish Lake and Little Fish (Wasp) lake system, and

(e) the Onion Lake watershed.

265. The Tsilhqot’in identify these tracts of land in their own terms.793 In the mountainous south, the Dzelh Ch’ed (Snow Mountains) dominate the landscape. Rivers including ?Enach’ez Nadilin and the headwaters of the Dasiqox flow into Dasiqox Biny at its southernmost extremity, at Ts’i Ts’elhts’ig.794 Dasiqox Biny is defined itself by its southern reaches of Dasiqox Tu Tlaz, its Narrows, Nanats’eqish, and its outlet, Nadilin Yex. From Dasiqox Biny, the Dasiqox flows northward from Nadilin Yex to meet the Tsilhqox. Eastward from Nanats’eqish (the Narrows), the mountainous Gwetex Natel?as provides a final hurdle for migrating deer as they make their way to the plateau country. In the northern portion of these lands, Nabas Dzelh towers over the Bisqox watershed, the meadows of Nabas, and the fish-bearing lakes of Yanah Biny795 and Teztaun Biny, and Jididzay Biny,

2. PHYSICALLY OCCUPIED BEFORE, AT & AFTER CROWN SOVEREIGNTY

793 Unless otherwise indicated, the place names in this paragraph can be found on the Plaintiff’s Appendix 6, Map B. 794 Exhibit 485, #29 795 Exhibit 0240, Expert Report of Ken Brealey , at 64 – “Little Fish Lake” (citing C. English’s ethnography). See also Exhibit 0450, Volume 49, Tab 42.

150 266. Prior to, at and well after Crown sovereignty the Tsilhqot’in regularly used the claim area lands east of the Taseko Lakes as hunting and gathering grounds, as well as for trapping and fishing. Further, the northern lowlands of the eastern trapline were winter homelands for the Tsilhqot’in dating back centuries. These facts are established by a coherent set of evidence derived largely from expert opinion and oral history.

267. The scheduled pattern of land use in the Eastern Trapline that has carried on for many generations since a time before sovereignty echoes that of other parts of the claim area: winter homes are situated in the northern lowlands around the base of Nabas Dzelh and in around Bisqox (Beece Creek), as well as the meadows adjacent to the lakes of Teztaun (Fish Lake), Jididzay (Onion Lake), and Yanah Biny (Wasp Lake),796 and serve as bases for winter trapping.797 In the summer and fall, while Tsilhqot’ins continued to use the northern region to fish in Jididzay Biny798 and Teztaun Biny799 for rainbow trout, whitefish, and dolly varden, to and to hunt,800 others moved into the mountainous areas of Nabas Dzelh (Anvil Mountain), Gwetex Natel?as, the mountains around Ts’i Ts’elhts’ig801 and Taylor Windfall to take advantage of the deer migration,802 as well as to harvest other resources of the mountains, including groundhog,803 medicines,804 berries,805 mountain sheep,806 mountain goat,807 pine nuts,808 mountain potatoes809 and Indian hellebore.810 Mountain Potatoes are to be found on the

796 Plaintiff’s Argument, Appendix 2, paras. 178, 179 and 180; 182. 797 Plaintiff’s Argument, Appendix 2, para. 178; Plaintiff’s Argument, Appendix 3, para. 158; Exhibit 0439, Affidavit #1 of Cecelia Quilt, May 6, 2005, paras. 23-37; Transcript, October 6, 2005, Cecilia Quilt Direct-Exam, 00009, 17-30. 798 Plaintiff’s Argument, Appendix 3, paras. 121, 211; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 60; Plaintiff’s Argument, Appendix 2, para. 179; Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, para. 123. 799 Plaintiff’s Argument, Appendix 2, para. 176. 800 Plaintiff’s Argument, Appendix 3, para. 213. 801 Plaintiff’s Argument, Appendix 3, para. 210; Plaintiff’s Argument, Volume 3, para. 1032(d), footnote 1140; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, paras. 39, 71; Plaintiff’s Argument, Appendix 3, para. 210; Transcript, December 1, 2003, Francis Setah Direct-Exam, 00044, 30 to 00047, 47; Exhibit 0095DIG, Francis Setah Digitized Map, polygons “CL”, “CM”, “CN”; Exhibit 0095LEG, Francis Setah Digitized Map Legend, polygons “CL”, “CM”, “CN”. 802 Plaintiff’s Argument, Volume 3, para. 998, footnote 1011. 803 Exhibit 0203. Affidavit #1 of Julie Quilt, September 29, 2004, at 25. 804 Plaintiff’s Argument, Appendix 3, para. 157. 805 Plaintiff’s Argument, Appendix 2, para 184, and Appendix 3 paras 157 & 214 806 Plaintiff’s Argument, Appendix 3, paras 210, 212 807 Plaintiff’s Argument, Appendix 3, para. 210. 808 Plaintiff’s Argument, Appendix 3, paras. 159 and 211. 809 Plaintiff’s Argument, Appendix 3, paras. 159 and 211.

151 south side of Nabas Dzelh, and wild Rhubarb (sulh) along the east side of Dasiqox Biny.811 Also in late summer, Tsilhqot’ins move down to the head of Dasiqox (Taseko River) at Nadilin Yex to meet the spawning spring salmon.812 In falltime steelhead and dolly varden are caught at Nanat’seqish (the Taseko Narrows).813

a. Historical Record and Related Expert Opinion

268. After reviewing the routes into Tsilhqot’in Territory used by explorers, traders, missionaries and surveyors in the 19th century, Dr. Brealey opines 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 [sic] 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’…”814

269. As Dr Brealey’s Map 3 indicates, the Taseko Lakes area was outside the “lines of sight” of the Europeans traveling in Tsilhqot’in country in the 19th century. Hence it is not surprising that claim area lands east of the Taseko Lakes, and the Taseko Lakes themselves, are notably absent from the early historical record.815

270. The Taseko Lakes area, including the Eastern Trapline, was not fully surveyed and mapped until well after the turn of the 20th Century.816 Indeed, in his report to the Chief Commissioner of Lands and Works dated December 19, 1890, surveyor A.L. Poudrier’s displays only the sketchiest knowledge of the “Tazeko” river;817 his accompanying map showing the “Tazeko river” and a tributary, possibly Beece Creek, vanishing obscurely with nary a reference to the Taseko Lakes or other prominent geographic features in the area.818

810 Plaintiff’s Argument, Appendix 3, paras. 159 and 211. 811 Plaintiff’s Argument, Appendix 3, para. 173. 812 Plaintiff’s Argument, Appendix 2, para. 183. 813 Plaintiff’s Argument, Appendix 2, para. 214. 814 Exhibit 0240, Expert Report of Ken Brealey, at 33; Exhibit 0243, Brealey Map entitled “Chilcotin Ethnography”. 815 Exhibit 0240, Expert Report of Ken Brealey, at 33; Exhibit 0243 Brealey Map entitled “Chilcotin Ethnography”. 816 Plaintiff’s Argument, Volume 3, at para. 911; Exhibit 0240, Brealey Report, footnote 254. 817 Exhibit 0156-1890/12/19.001 at p. 286. 818 Exhibit 0265-1890/00/00.001.

152 271. Nevertheless, per Brealey, the Taseko Lake clearly lay within “Tsilhqot’in country” as of the time of early contact. Following a rigorous review of the available historical record, Dr. Brealey concluded that pre-contact (as well as post-contact) Tsilhqot’in Territory included the Taseko Lakes and the surrounding Claim Area.819 Dr. Dinwoodie arrived at a similar conclusion.820 BC’s witness Morley Eldridge also agreed on cross-examination that Map no. 12 of British Columbia’s 1956 atlas of resources, “Native Indians, Distribution of Ethnic Groups – 1850” correctly depicts the approximate location of the Tsilhqot’in as of 1850. Map 12 shows the Eastern Trapline and Taseko Lakes area as within the area inhabited by the Chilcotin.821

272. Similarly, after scrutinizing the historical record with respect to conflicts, Dr. Brealey concluded that “the important point, again, is that both Tsilhqot’in and non-Tsilhqot’in recognized the claim area as lying firmly within Tsilhqot’in territory.”822 Dr. Hudson arrived at a similar opinion.823

273. Hostilities with neighbouring First Nations along the boundaries of Tsilhqot’in territory in the south and east confirm that the Eastern trapline lands were well within the territory over which the Tsilhqot’in asserted control, which assertions of control were, per Hamar Foster, “backed by force.”824 For example, Dr. Brealey mapped out a Chilcotin Post Journal reference to a Lillooet incursion into Tsilhqot’in territory on his map 2. 825 Mr. Dewhirst cited this conflict as one of “several examples of multi-band solidarity” when “Tsilhqot’in bands mobilized together to repel trespassers and raiders.”826 This evidence, especially when elucidated by the oral history evidence of Norman George Setah, as will be discussed further below, provides evidence of Tsilhqot’in defence of the Eastern Trapline region as Tsilhqot’in territory.827

819 Plaintiff’s Argument, Volume 3, para. 864. 820 Plaintiff’s Argument, Volume 3, para. 865. 821 Plaintiff’s Argument, Volume 3, para. 866. 822 Plaintiff’s Argument, Volume 3, para. 864. 823 Plaintiff’s Argument, Volume 3, para. 866. 824 Plaintiff’s Argument, Volume 3, para. 1094. Plaintiff’s Argument, Volume 3, paras. 864, 1061, 1080, 1089, 1094, 1095, paras. (d), (f), (h), and (l); paras. 1125 to 1130; Exhibit 0240 Expert Report of Ken Brealey, at 19; Exhibit 0242, Dr. Brealey’s Intertribal Conflict map. 825 Exhibit 0242, Dr. Brealey’s Intertribal Conflict map. 826 Plaintiff’s Argument, Volume 3, para 1130. 827 Plaintiff’s Argument, Volume 3, para 1125 to 1130.

153 274. Dr. Brealey opined with respect to Tsilhqot’in territory that “[o]n the southern… frontier, where a greater physiographic relief created a stronger ‘sense of place’, and where groups on the other side of the watershed divide dealt with quite different resource bases and were from altogether different language families, there was much less” “’Tsilhqot’in tolerance’ to territorial encroachments…”828

275. In the summer of 1862, Lt. Palmer traveled north of the Claim Area from Bella Coola to Fort Alexandria. Palmer noted:

The Carriers are seen in various stages of life, those round the forts speaking Canadian French fluently, and being well versed in the customs of the whites; others who dwell in the mountains, such as the Chilcotins who occupy the country traversed by the fifth and sixth sections of our journey, are seen in a purely savage state of existence, clothed in furs, armed with bows and arrows, in the use of which they are singularly expert, … .829

276. Dewhirst ascertained the “fifth and sixth sections of our journey” and concluded: “In my opinion, the Tsilhqot'in territory described by Palmer and his reference to the Tsilhqot'in dwelling in the mountains includes the Claim Area.”830

277. On September 9, 1864, Governor Seymour reported on the Chilcotin War to the Colonial Office of Great Britain. In his dispatch, Seymour referenced the probable extent of “the Territory occupied by the Chilcotens”, the mountainous region that “their hunting and fishing grounds” were believed to be in, as well as the limited knowledge the Crown had of the area so many years after Crown sovereignty:

Within the great barrier of the Cascade range lies the Chilcoten county…

The Territory occupied by the Chilcotens extends probably… [f]rom 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,….. the Indian trails which traverse the country concentre at Benshee Lake...

828 Exhibit 0240, Expert Report of Ken Brealey, at 20. 829 Exhibit 0156-1863/00/00.001. 830 Exhibit 0443, Expert Report of John Dewhirst, at para. 214.

154 … We had vaguely heard that a large force under a subordinate officer to Alexis occupied the lodges on the Benshee Lake & that a detachment of Anaheim’s men was in possession of a palisaded fort at Sutleth. All these places lay on the mule trail where the pack trains passed. 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...831 [emphasis added]

278. Dewhirst located this reference to “their hunting and fishing grounds” in the Cascade Mountains as including the Claim Area and opined that Seymour’s report is based on a “recognition of long use and occupancy of Tsilhqot’in territory that pre-dates 1846 in those areas, unless otherwise stated.”832 He did not state otherwise.

279. Brealey also notes that the area’s importance was inferred by Morice, who noted that the “Stone Chilcotin often hunted in the Lillooet Mountains.”833 The Mountains to the east and south of Taseko Lakes are included within Morice’s 1893 description of the Tsilhqot’in’s “Favourite Haunts,” and are depicted as such on Dr. Brealey’s Map 6.834 Further, Dr. Brealey, in mapping Tsilhqot’in patterns of land use and occupancy showed this area as a hunting ground with pre-contact origins.835 Brealey’s Map 6 shows “a system of Tsilhqot’in travel, trade, residency, resource exploitation and territoriality at and between the sites, and along the trails and streams of Map 5.” Brealey’s opinion is that the traditional patterns of land use and occupancy shown on map 6, including those of the area east of Taseko Lakes, were maintained into the post-contact period (at least until the 1862 smallpox epidemic).836

280. In December 1905 Gold Commissioner Caspar Phair wrote from Lillooet to Provincial Game Warden A. Bryan Williams about the subject of Tsilhqot’in hunters in an area which may well include the lands under discussion:

831 Exhibit 156-1864/09/09.001 at para. 4. 832 Exhibit 0443, Expert Report of John Dewhirst, at paras. 272-273. 833 Exhibit 0240, Expert Report of Ken Brealey, at 73. 834 Exhibit 0246, Map 6; Plaintiff’s Argument, Volume 3, para. 1032(d). 835 Exhibit 0245, Map 6; Plaintiff’s Argument, Volume 3, para. 1007. 836 Plaintiff’s Argument, Volume 3, para. 971.

155 [T]he Chilcotin Indians… traverse, in separate bands, the Mountains from Bridge River to Chilcoten slaughtering all kinds of Big Game. They live on these mountains during the months of June, July, August and September, entirely on game and what roots they gather. They dry a great deal of the meat which they pack on horses to Chilcoten for winter use.837

281. Gold Commissioner Phair’s letter is also consistent with a Tsilhqot’in intention and capacity to control these lands, through the creation of a barren territorial buffer zone. Per the evidence of Dr. Brealey, the Tsilhqot’in - Lillooet territorial boundary is substantially southeast of the Claim Area,838 and essentially at the height of land between the Taseko Lake and Bridge River headwaters.839 Commissioner Phair recorded the Tsilhqot’in practice of crossing over this boundary to intentionally deplete the resources of the Bridge River headwaters:

For several years the Chilcotin Indians have come in large numbers, generally in the month of June, to the headwaters of the Bridge River for the purpose of killing big game – including does and fawn. …

The different bands of Indians in the neighbourhood of Lillooet are strongly opposed to these Indians being allowed to come on their hunting grounds, during the summer months, to kill so much game – especially does and fawns – when they do not require it for their immediate use.840

b. Genealogical Record, Related Expert Opinion & Tsilhqot’in Evidence

282. Expert and oral history evidence establish that ancestral resident Tsilhqot’in populations existed in winter villages of underground houses in the West Taseko region at Taseko, Lastman, Tuzcha and Fishem Lakes and Yohetta Valley and in the East Taseko region at the foot of Anvil Mountain and at Fish Lake (the “Southeastern Resident Population”)841. It is from these bases,

837 Exhibit 0156-1905/12/4/001. 838 Note that the Claim Area under discussion is not only well within Tsilhqot’in territory, per the evidence of Dr. Brealey, it is physically isolated or protected from the Tsilhqot’in – Lillooet by glaciated mountains. 839 Exhibit 0241, Expert Report of Ken Brealey, Tsilhqot’in Boundaries, October 2003; Exhibit 0243, Tsilhqot’in Conflicts, October 2003. 840 Exhibit 0156-1905/12/4/001. Remarkably, Canada says Comissioner Phair’s letter suggests support for overlapping claims by other aboriginal groups (Canada’s Argument, at paras. 1469, 1471). However, there is no overlapping claim by the Lillooet people. Indeed there is no overlapping claim by any aboriginal group with respect to the Tsilhqot’in Claim Area surrounding Chilko Lake. Further, even if there was, Commissioner Phair’s letter actually supports the Tsilhqot’in claim to these lands when fairly interpreted or understood in context. 841 Plaintiff’s Argument, Appendix 3, paras 155-160 & 210-215; Transcript, March 15, 2005, Gilbert Solomon Direct Exam, 00043, 5 to 00044, 10; Transcript, March 17, 2005, Gilbert Solomon Direct Examination, 00016, 18 –

156 and using Tsilhqot’in ancestral trail and crossing network842 that the Southeastern Resident Population physically occupied and used the lands surrounding the Taseko Lakes, as circumscribed by the Claim area to their east. This occupation and use continues to modern day.843

283. Anthropologist John Dewhirst’s genealogical research linking modern extended families to the Claim Area lands includes the family of Kanim, born ca. 1850 and a Chief, per Marcus Smith (1872), of the “Stone Indians” “[f]rom Tatla Lake to the Coast and eastward to near Lillooet.” 844 and father of Seal (Sil) Canim, Chief of the “Nemiah Valley Indians.” (born c. 1870 and 1876).845

284. Dewhirst further notes that Indian Reserve Commissioner Peter O’Reilly wrote in 1887 that while Kanim spent all of his time in the mountains, he was Chief of the Stone Indians who were “resident on the south bank of the Chilcotin River, about 40 miles from its mouth.”846 This description roughly describes the present-day Stone reserve.

285. Dewhirst opines that Tsilhqot’in place name “ganin”, recorded by Magne as being named after a Nemiah Valley resident and located in the Gunn Valley (which in turn contains Fishem, Tuzcha and Lastman Lake and their associated archeological features) is likely named after Chief Kanim.847 His parents likely used and occupied the claim area before ca. 1850.848 Having reviewed the historical and genealogical records, and oral history, Dewhirst’s opinion is that “the

00017, 12; 00020, 31 – 00022, 3; Exhibit 0371DIG, Gilbert Solomon Digitized Map, sites “AR”, “AS”; Exhibit 0371LEG, Gilbert Solomon Digitized Map, sites “AR”, “AS”. 842 Plaintiff’s Argument, Volume 3, para. 922, Dasiqox Crossings, Crossings 33 – 38; Transportation Network Southeast of Biny Gwechugh, Trail 39 - 59. 843 Plaintiff’s Argument, Appendix 3, paras 155-160 & 210-215; Transcript, November 1, 2004, Norman George Setah Direct Exam, 00006, 34 to 00017, 17; Transcript, November 29, 2004, Norman George Setah Direct Exam, 00022, 24 to 00026, 15; Transcript, December 1, 2004, Norman George Setah Direct Exam, 00002, 32 to 00004, 15; 00007, 18 to 00009, 20; 00012, 19 to 00013, 3; 00013, 36 to 00014, 30; 00019, 45 to 00027, 16; Transcript, December 8, 2004, Norman George Setah Direct Exam, 00024, 36 to 00028, 23; 00029, 47 to 00030, 23; Transcript, March 15, 2005, Gilbert Solomon Direct Exam, 00043, 5 to 00044, 10; Transcript, March 17, 2005, Gilbert Solomon Direct Examination, 00016, 18 – 00017, 12; 00020, 31 – 00022, 3; Exhibit 0371DIG, Gilbert Solomon Digitized Map, sites “AR”, “AS”; Exhibit 0371LEG, Gilbert Solomon Digitized Map, sites “AR”, “AS”. 844 Exhibit 0443, Expert Report of John Dewhirst, at paras. 376-395. 845 Exhibit 443, Expert Report of John Dewhirst, para 384 846 Exhibit 443, Expert Report of John Dewhirst, para 381 847 Exhibit 443, Expert Report of John Dewhirst, para 382 848 Exhibit 443, Expert Report of John Dewhirst, para 380

157 customary use area of Kanim and his descendants was in the Nemiah Valley and in the mountains to the southeast to near Lillooet.849 This area includes the Eastern Trapline mountains.

286. Gilbert Solomon gave evidence that his father Henry Solomon and uncle Eugene William taught him the Tsilhqot’in ?esggidam lived in underground houses at Fishem Lake,850 and went on to explain that they also taught him that the ?Esggidam crossed the Taseko Lakes at the narrows and camped on the east side of the Taseko Lakes near a place “where the water jumps down.”851

287. Joseph William, born in 1933, the eldest child of Jimmy and Amelia William and grandson of Sammy and Annie Bulyan852, gave oral history evidence from elders including Jeanie, the wife of Sil Canim and the daughter-in-law of Ganin (Chief Kanim) that the Tsilhqot’in have been living in the Tuzcha, Fishem and Lastman Lake area (i.e., the Gunn Valley) in wintertime from the time of the ancestors.853 Having testified as to seeing the remains of underground homes at the south end of Fishem Lake (Gwenad Ch’ez Nadilin), Mr. William said that Jeanie taught him that Tsilhqot’in people lived in these underground houses, and that Tsilhqot’ins have used the surrounding area from the ?Esggidams’ time.854

288. Mr. William further testified that Jeanie taught his parents who taught him that she and Sil Canim also had a cabin in this area.855 His own relatives, including his mother and great- great-grandmother Yelesi had also stayed along the lakes in this area in a pine shelter in

849 Exhibit 0443, Expert Report of John Dewhirst, para 395. 850 Transcript, March 17, 2005, Gilbert Solomon Direct-Exam, 00035, 46 to 00036, 20 851 Transcript, March 17, 2005, Gilbert Solomon Direct-Exam, 00035, 46 to 00037, 13 852 Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, at paras. 5 and 8. 853 Plaintiff’s Argument, Appendix 3, para. 156; Transcript, February 17, 2005, Joseph William Direct-Exam, at 00012, 24 to 00013, 13; 00010, 14 to 00026. 854 Plaintiff’s Argument, Appendix 3, para. 156; Transcript, February 17, 2005, Joseph William Direct- Exam, 00015, 45 – 00016, 36; Transcript, February 17, 2005, Joseph William Cross-Exam, 00033, 9 – 00034, 10; 00034, 27-40. Note that Gilbert Solomon also testified as to seeing house pits at Fishem Lake. [App 3, para. 156; Transcript, March 17, 2005, Gilbert Solomon Direct-Exam, 00033, 19-25] 855 Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, at para. 23; Transcript, February 17, 2005, Joseph William Direct- Exam, 00009, 16 to 00010, 26.

158 wintertime while ice fishing.856 Yelesi and her Tsilhqot’in mother were born at Stone, that is, Chief Kanim’s community.857

289. On the other side of Taseko Lakes from Gunn Valley, and connected to it by the ancestral trail network including an ancestral crossing at Nanats’eqish (the Narrows),858 is Red Mountain (Gwetex Natel?as).859 Joseph William learned from his father and John Baptiste, as well as Seymour’s wife Elizabeth, who is from Stone, that Sil Canem, as well as Tsilhqot’ins from Yunesit’in (i.e., Chief Kanim’s community of Stone) hunted deer from behind rock piles at Gwetex Natel?as (Red Mountain in the Eastern Trapline) during their migration from the mountains.860 His father and John Baptiste also hunted at Gwetex Natel?as, as did Joseph himself.861

290. Elder Francis William remembered seeing Sil Canem and his wife Jeanie fishing at the north end of Dasiqox Biny at Nadilin Yex.862

291. Tsilhqot’in witnesses who gave evidence before this Honourable Court also pointed to a strong ancestral and continuing connection between The present day Tsilhqot’in community of Yunesit’in (Stone) and the Taseko Lakes area:

(a) Christine Cooper and her father Johnny Hance were born in the Taseko Lakes area around Nabas. Johnny Hance was the son of “Malyan”, and was raised in the Taseko Lakes area by his aunt Lezebid,who was Yunesit’in Tsilhqot’in.863 One of the people Mrs. Cooper describes living in the Dasiqox area and passing on knowledge about ancestral hunting at Red Mountain (Gwetex Natel?as) is

856 Transcript, February 17, 2005, Joseph William Direct- Exam, 00010, 27 to 00012, 23. 857 Transcript, February 17, 2005, Joseph William Cross-Exam, 00032, 14 to 00033, 8. 858 Transcript, February 17, 2005, Joseph William Direct-Exam, 00016, 37 to 00017, 21; Plaintiff’s Argument, Appendix 6, Map C, Trail 52, 59; crossing 53; Plaintiff’s Argument, Appendix 3, para. 922. 859 Exhibit 0485; Plaintiff’s Argument, Appendix 6, Map B, Traditional Tsilhqot’in Place Names. 860 Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, paras. 84, 87, 88. 861 Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, paras. 87 and 92. 862 Plaintiff’s Argument, Appendix 2, para. 183; Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, para. 117-118. 863 Exhibit 0398, Affidavit #1 of Christine Cooper, August 27, 2004, para. 10, 11, 12, 16.

159 ?Etsinlh. Mrs. Cooper says that ?Estsinlh was from Stone, and estimates he was in his mid-seventies when he died in approximately 1936.864

(b) Lloyd Myers is a councilor and former chief of the Stone Band, and was born in 1939.865 Mr Myers testified as to learning from his parents and others about ancestral Tsilhqot’in use of the Taseko Area and the “Dzelh Ch’ed” (Snow Mountains), including the areas of Taylor Windfall, Nabas (Anvil Mountain), Red Mountain, and other mountains east of the Taseko Lakes for camping, hunting, fishing, berry and medicine gathering, and groundhogs.866 Stone elders including his father and George Myers, and Nemiah elder William Setah taught him about the “older generations” from Xeni and Stone traveling to the he “Dzelh Ch’ed” (Snow Mountains) east of the Taseko Lakes each summer and fall to gather winter supplies.867 Mr. Myers himself continues to go to the mountains east of the Taseko Lakes including Red Mountain each year with his family for hunting and medicines, meeting up with and seeing other Tsilhqot’in families.868

(c) Francis William’s father named a number of Yunesitin Tsilhqot’ins that “all used to stay and trap in the area all around Nabas and the Taseko Lakes,” and told him that there is a Tsilhqot’in trail that runs through Nabas up Big Creek to Yunesit’in.869 Dr. Brealey confirms this as a pre-contact trail, and Tsilhqot’in witnesses, especially those with ties to Stone and living in the Nabas area, testified that they traveled it in the 20th century.870

864 Exhibit 0398, Affidavit #1 of Christine Cooper, August 27, 2004, at paras. 2, 20, 24; Transcript, May 2, 2005, Christine Cooper, 00014, 44 to 00015, 20. 865 Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, paras. 3 and 12. 866 Plaintiff’s Argument, Appendix 3, para. 157; para. 210-212; Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, at paras. 45-47; 50-53. 867 Transcript, May 30, 2005, Lloyd Myers Direct-Exam, 00012, 20 to 00013, 13; 00015, 32-47; Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, at para. 52. 868 Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, at 46, 50, 51, 52; Transcript, May 30, 2005, Lloyd Myers, 00011, 1-16; 00013, 28-33. 869 Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, at para. 114; Plaintiff’s Argument, Volume 3, para. 922, Trail 58; Plaintiff’s Argument, Appendix 6, Map C, Trail 58. 870 Plaintiff’s Argument, Volume 3, para. 922, Trail 58; Plaintiff’s Argument, Appendix 6, Map C, Trail 58.

160 (d) Francis William’s also testified that Yunesitin Tsilhqot’ins fished at Nadilin Yex during salmon time.871

(e) Like Christine Cooper’s father, Julie Quilt’s father ?Esbu (Philip Myers) was also raised by Lezebid and Seymour, who lived around Nabas.872 As previously noted, Lezebid was Stone Chilcotin. She described her father going with ?Atazl from Stone to Nabas and Red Mountain:

After the haying was done, my dad went with .@s`]k over to Naba? and Red Mountain- These places are not too far from Dasiqox Biny (Taseko Lake). Many other Yunesit’in Tsilhqot’ins did this as well because the nistsi (deer) were coming out of the mountains. They would also get dediny (groundhog).873

(f) In addition to describing a large community living around Nabas, Cecelia Quilt also explained that various Yunesit’in Tsilhqot’ins would stop and stay at Nabas on their way to the snow mountains in summer. These people included Bigad and Yellicy, and George Myers.874

(g) Julie Quilt testified that numerous people, from the community of Stone going to Red Mountain to prepare for winter, harvesting such resources as marmots, moose, deer, pine nuts, and xilhdilh (hellebore), mountain potatoes, and soapberries. Including: “Frank Whitey, Dick Quilt, Cecilia Quilt. My brother, the one that died, Tony Myers. Johnny Quilt, Lazysa, Willie Quilt, Jimmy Myers and his wife, Annie. Atwell Haller and his wife, Grace Haller. Wife and kids. Migad and his boy Yellicy [phonetic]. Felix Quilt and his wife. And Andrew Quilt Jr. and his wife. Francis Quilt, his wife and his kids. Louie Quilt, his kids and his wife. ?Atazl, his wife and his kids. And also my dad. And also my husband.” 875

871 Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, at para. 119. 872 Exhibit 0203, Affidavit #1 of Julie Quilt, paras 12; 14 873 Exhibit 0203. Affidavit #1 of Julie Quilt, September 29, 2004, at 25. 874 Exhibit 0439, Affidavit #1 of Cecelia Quilt, para 27(j) and (l). 875 Transcript, Cecelia Quilt Direct-exam, Nov 5, 2004 p 15 ln 29- p 19 ln 43; p 21 ln 41 – p 22 ln 5

161 292. Anthropologist John Dewhirst’s genealogical research linking modern extended families to the Claim Area lands also includes the George Family including Xeni Gwet’in Chief ?Achig (born c. 1863), the customary use area of whom “is in the Claim Area, specifically the Twin Lakes-Elkin Creek Valley, the Taseko Lakes area, as well as the Nemiah Valley….?Achig[‘s] parents and grandparents also likely occupied the customary use area…before and after 1843.”876 [Emphasis added]

293. Consistent with Dewhirst’s characterization of the Taseko Lakes area as within the customary use area of the George family, Andy George (b. 1906)877 applied for, and received a trapline in 1931 in the area of the Lord River, and south of the upper headwaters of the Taseko River, an area that became the extreme southeastern portion of the Nemiah band trapline when it was eventually amalgamated in the 1970s. The trapline registration documents suggest that Andy George also trapped around Beece Creek, in what became Jimmy Sam William’s trapline.878

294. Francis Setah testified that he camped at Ts’i Ts’elhts’ig in the fall with both Andy George and Captain George to hunt mountain goat and marten.879

295. Elder Francis William testified that his father Sammy Bulyan taught him that [?Achig’s son] Captain George was among the Tsilhqot’ins who hunted and trapped in the Nabas area.880 Further, he learned from Captain George himself that his hunting area included the area around the Taseko Narrows, and that he had used the crossing at the Narrows.881 He learned from his

876 Exhibit 0443, Expert Report of John Dewhirst, para 352. 877 Plaintiff’s Argument, Appendix 1, Tab C, p. 24, footnote 295. 878 Plaintiff’s argument, Appendix 1, Tab D, p. 16, Trapline 15, Andy George. 879 Plaintiff’s Argument, Appendix 3, para. 210; Transcript, December 1, 2003, Francis Setah Direct-Exam, 00044, 30 to 00047, 47; Exhibit 0095DIG, Francis Setah Digitized Map, polygons “CL”, “CM”, “CN”; Exhibit 0095LEG, Francis Setah Digitized Map Legend, polygons “CL”, “CM”, “CN”. 880 Plaintiff’s Argument, Appendix 2, para. 181; Plaintiff’s Argument, Appendix 3, para. 211; Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, paras. 112-114; Transcript, May 26, 2004, Francis William Cross-Exam, 00033, 14 to 00037, 20. 881 Plaintiff’s Argument, Appendix 3, para. 160; Exhibit 0157, Affidavit #1 of Francis Sammy William, March 10, 2004, para. 53.

162 brother Eugene that Captain George and Andy George were among the Tsilhqot’ins who trapped and hunted at the south end of the Taseko Lakes.882

296. Joseph William gave evidence related to Tsilhqot’in use of the northern plateau section of the Eastern Trapline, including Teztan Biny (Fish Lake), Dasiqox and Dasiqox Biny (Taseko River and Taseko Lakes), Jididzay (Onion Lake) and Bisqox (Beece Creek), as well as the mountainous southern section including Nabas Dzelh, Gwetex Natel?as (Red Mountain), Chita Creek, Chita Meadow and down through Taylor Windfall:

(a) Joseph William gave evidence that the northern part of the Eastern trapline is habitat for winter food and fur animals.883 He further gave evidence that Tsilhqot’ins continued to winter in this area until the mid-20th century, regularly trapping.884

(b) As an adult, Joseph William hunted all around Teztaun (Fish Lake), Jididzay (Onion Lake), Nabas Dzelh (Anvil Mountain), Bisqox (Beece Creek), Gwetex Natel?as (Red Mountain), Chita Creek, Chita Meadow and down through Taylor Windfall.885

(c) Mr. William reported that his family, including his great-uncle John Baptiste, and other Tsilhqot’ins from before his time, like ?Etsinlh, Basdig, Seymour and his wife Elizabeth, Johnny Hance (Buffalo Hance) and his family, stayed in cabins around Nabas during the winters.886 Other Tsilhqot’ins came to stay at Nabas, including Vincent Setah, Zaloway Setah, Douglas Lulua, Sonny Lulua and his

882 Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, at para. 115. 883 Plaintiff’s Argument, Volume 3, para. 1007, footnote 1043. 884 Plaintiff’s Argument, Volume 3, para. 1007, footnote 1045. 885 Plaintiff’s Argument, Appendix 3, paras. 174, 210; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, paras. 90-92. 886 Plaintiff’s Argument, Appendix 2, para. 177; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, paras. 16, 18, 21, 22, 33, 57, 109.

163 mother Nellie, Sonny’s sister Mariah, and Mr. William’s uncles Francis and Danny William.887

(d) Mr. William trapped and hunted around Nabas during the winter:888 He averred that most of his trapping was around Teztaun Biny (Fish Lake) but that he also trapped around Dasiqox and Dasiqox Biny (Taseko River and Taseko Lakes), Jididzay (Onion Lake) and Bisqox (Beece Creek). He took muskrat, beaver, squirrel, rabbit, weasel, marten, lynx, coyote, cougar and wolverine. Many members of his family trapped including his father Jimmy William and his brothers and sisters Norman, Adam, Billy, Otis, Marvin and Mary Jane. Wilfred William also trapped with his brother Billy in this area. Mr. William averred that his great-uncle John Baptiste told him that he spent winters at Nabas trapping coyotes and lynx.889

(e) Mr. William averred that his family would sometimes camp in the meadows at Nabas during the summer as well, where they would hunt deer and moose up onto Nabas Dzelh (Anvil Mountain).890 He recalled Sonny, Nellie and Mariah Lulua coming to camp at their place in the summertime as well. After getting married, Mr. William continued to go to Nabas to camp and hunt until his health deteriorated.

(f) Mr. William described building a cabin at Jididzay Biny with his father and William Setah.891 His family used to move to the cabin in the spring so they could trap beaver and muskrat and put cattle out to range but then the cabin burned

887 Plaintiff’s Argument, Appendix 2, para. 177; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 27. 888 Plaintiff’s Argument, Appendix 3, para. 99; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, paras. 110-115. 889 Plaintiff’s Argument, Appendix 3, para. 99; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 34. 890 Plaintiff’s Argument, Appendix 2, para. 177; Plaintiff’s Argument, Appendix 3, para. 156; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 27, 66-67. 891 Plaintiff’s Argument, Appendix 2, para. 179; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 21.

164 down 25-30 years ago.892 While staying there, his family would also fish for rainbow trout, whitefish and Dolly Varden in Jididzay Biny, Dasiqox Biny and some of the surrounding small lakes.893 His mother would pick sunt’iny (mountain potatoes) and his father would hunt deer and moose between Jididzay and Dasiqox (Taseko River).894

(g) Mr. William averred that he has hunted geese and ducks around Jididzay (Onion Lake) and the smaller lakes of Nabas during the fall.895

(h) Joseph William averred that his family would camp along the Dasiqox at Nadilin Yex during the summer.896 They would fish for spring salmon with gill nets in September and his mother would dry them at camp.897 He would hunt with his father and brothers for deer around Nadilin Yex and also up onto T’ox T’ad (Vick’s Mountain) for deer and groundhog.898

(i) Mr. William described rock blinds used for hunting at Gwetex Natel?as (Red Mountain), in the falltime when deer cross through when migrating between the mountains and the plateau.899 He averred that his great-uncle John Baptiste and his grandfather Sam Bulyan told him stories about them and other Tsilhqot’ins including Sil Canem hunting from these blinds. Mr. William was also taught about Tsilhqot’ins hunting at this location by his mother Amelia William and

892 Plaintiff’s Argument, Appendix 2, para. 179; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 21, 59. 893 Plaintiff’s Argument, Appendix 3, paras. 121, 211; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 60. 894 Plaintiff’s Argument, Appendix 3, paras. 130, 211; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, paras. 59, 62. 895 Plaintiff’s Argument, Appendix 3, para. 213; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 101. 896 Plaintiff’s Argument, Appendix 2, para. 183; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 65. 897 Plaintiff’s Argument, Appendix 2, para. 183; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, paras. 80, 82. 898 Plaintiff’s Argument, Appendix 2, para. 183; Plaintiff’s Argument, Appendix 3, para. 174; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, paras. 84-85. 899 Plaintiff’s Argument, Appendix 2, para. 185; Plaintiff’s Argument, Appendix 3, para. 211; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, paras. 87-88.

165 Seymour’s wife Elizabeth. Mr. William’s father also taught him that deer bunch up on Nabas and Tsilhqot’ins hunt them there as well.900

(j) Joseph William’s father Jimmy William acquired a trapline in 1954 in the area encompassing areas including Nadilin Yex, Teztaun (Fish Lake), Jididzay (Onion Lake), Y’anah Biny (Wasp Lake), Gwetex Natel?as, Beece Creek, Anvil Mountain, and the eastern shore of Dasiqox Biny and part of Dasiqox River. This trapline now forms part of the Nemiah Band Trapline.901

297. Francis William is Sammy and Annie Bulyan’s son, and Joseph William’s uncle.

(a) Mr. William identified Teztaun (Fish Lake) as Tsilhqot’in hunting and fishing grounds and reported that there have been Xeni Gwet’in gatherings at this location in recent years.902 Mr. William averred that he has hunted in this area, and Jimmy William (Joseph William’s father, and Francis William’s brother) and his family also camped there to hunt and fish.903

(b) Francis William averred that his late brother Jimmy William and his family lived from the time he was thirty (c. 1943) until his death at age approximately 59 (c. 1972)904 in a cabin he had built in Whitewater Meadow to the northwest of Nabas and east of the Dasiqox (Taseko River).905 Mr. William’s brother told him that he had hunted and trapped all around Nabas, Gwetex Natel?as (Red Mountain) and Dasiqox Biny (Taseko Lakes). This is reportedly excellent habitat for the animals hunted and trapped by the William family.906

900 Plaintiff’s Argument, Appendix 3, para. 212; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 86. 901 Plaintiff’s Argument, Appendix 1D, p. 15, Trapline 14, Jimmy Sam William. 902 Plaintiff’s Argument, Appendix 2, para. 175-176; Transcript, May 26, 2004, Francis William Direct- Exam, 00038, 31 to 00039, 6. 903 Plaintiff’s Argument, Appendix 2, para. 175-176, Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, para. 120. 904 Exhibit 0441, Dewhirst Report, Chart 4. Jimmy William’s birthdate is 1913. 905 Plaintiff’s Argument, Appendix 2, para. 181; Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, paras. 110-111. 906 Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, at para. 111.

166

(c) Mr. William averred that his father, Sammy William (Bulyan), who also hunted and trapped around Nabas with Mr. William’s brothers Eugene and Jimmy, taught him that Lebusden (Johnny Baptiste), Captain George, Tsiqun (Tommy Setah) and numerous other Tsilhqot’ins hunted and trapped in this area.907 Francis William has also hunted around Nabas and Gwetex Natel?as (Red Mountain).908

(d) Mr. William averred that his uncle Johnny Baptiste (Lebusden) taught him that he used to camp at Jididzay Biny (Onion Lake) with Old Seymour and fish and hunt.909

(e) Mr. William last camped and fished at Jididzay (Onion Lake) approximately five years ago with Christine Lulua and his grandson Dylan; he saw other Tsilhqot’ins there and also a lot of white fishermen.910

(f) Mr. William camped at Nadilin Yex at the north end of Dasiqox Biny with his brother Jimmy during the summer to fish, and also remembered Chief Sil Canem and his wife Jeannie fishing there.911 Mr. William was taught by his uncle Lebusden (Johnny Baptiste) that Tsilhqot’ins have been fishing there for a long time.912 Mr. William also hunted deer there and was taught by his father Sammy William that Tsilhqot’ins have been hunting deer at that crossing for a long

907 Plaintiff’s Argument, Appendix 2, para. 181; Plaintiff’s Argument, Appendix 3, para. 211; Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, paras. 112-114; Transcript, May 26, 2004, Francis William Cross-Exam, 00033, 14 to 00037, 20. 908 Plaintiff’s Argument, Appendix 2, para. 181; Plaintiff’s Argument, Appendix 3, para. 211; Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, para. 116, 126. 909 Plaintiff’s Argument, Appendix 2, para. 179; Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, para. 123. 910 Plaintiff’s Argument, Appendix 2, para. 179; Transcript, May 26, 2004, Minnie Charleyboy Direct-Exam, 00039, 8-19. 911 Plaintiff’s Argument, Appendix 2, para. 183; Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, para. 117-118. 912 Plaintiff’s Argument, Appendix 2, para. 183; Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, para. 119.

167 time.913 Mr. William confirmed that Tsilhqot’ins continue to fish at Nadilin Yex, including Denis Lulua, Norman William and Adam William.914

(g) Francis William described crossing the narrows at Dasiqox Biny east of Gex Gulin with his family when he was young. He explained that deer also cross the lake at this location and averred that Johnny Baptiste (Lebusden), Captain George and Tsiqun told him they hunted around there and also crossed at the narrows.915 Mr. William also fished for Dolly Varden and steelhead at the narrows, called Nanats’equish, during the fall.916

(h) Mr. William averred that he camped with his family by Taylor Windfall at a place called ?Esghunshugh Gulin, which means “big beartooth place”, and picked beartooth, hunted mountain goat and groundhog.917

(i) Mr. William gave evidence about Tsilhqot’ins hunting and trapping at the south end of Taseko Lakes, and confirms that members of the Xeni Gwet’in William family (Lebusten), the George family (Captain George and Andy George), as well as Tommy Setah and Mabel William’s grandfather “Will-yum” from Tsi Del Del hunted and trapped in the south end of the Taseko Lakes.918

298. Tsilhqot’in elder Norman George Setah (b. 1940) is the son of Willie Setah, the paternal grandson of Little George Setah, the paternal great-grandson of ?Eweniwen (Johnny Setah) and the paternal great-great-grandson of Sit’ax (Setah).919

913 Plaintiff’s Argument, Appendix 2, para. 183; Plaintiff’s Argument, Appendix 3, para. 213; Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, para. 118-119, 124. 914 Plaintiff’s Argument, Appendix 2, para. 183; Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, para. 119. 915 Plaintiff’s Argument, Appendix 3, para. 160; Exhibit 0157, Affidavit #1 of Francis Sammy William, March 10, 2004, para. 53. 916 Plaintiff’s Argument, Appendix 3, para. 214; Exhibit 0157, Affidavit #1 of Francis Sammy William, March 10, 2004, para. 125. 917 Plaintiff’s Argument, Appendix 3, para. 160; Exhibit 0157, Affidavit #1 of Francis Sammy William, March 10, 2004, para. 54-55; Exhibit 0485DIG, Placename Map, place 111. 918 Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, para 115. 919 Exhibit 0441, Dewhirst Report, Chart 3 and Appendix E(7).

168 (a) Mr. Setah described Nadilin Yex, at the north end of Dasiqox Biny (Taseko Lake) as a place that Tsilhqot’ins would meet before going hunting up into the mountains. He remembers various people from Nemiah and Stone meeting there.920

(b) Norman George Setah testified that there is a cabin on Onion Flats that quite a few Tsilhqot’ins would use in the spring to hunt beaver, muskrats and deer, as well as in the fall to hunt squirrels, cougar, lynx and rabbits.921 He recalled staying there with Johnny Baptiste and hunting during the fall.

(c) Mr. Setah identified the entire Nabas region right up to Dasiqox Biny as Tsilhqot’in hunting grounds that he has used for deer, squirrels, muskrats, otters, rabbits, fisher, wolverine and moose.922 Mr. Setah’s grandfather Alec, as well as Bigad, ?Andeliyan, Mac, Charlie, Cowboy Foot all taught Mr. Setah that Tsilhqot’ins have hunted in this area since the time of the ?esggidams.923 Many of these elders are from the Tsilhqot’in community of Stone.

(d) Mr. Setah identified Dediny Gunlin as a place on the trail to Lillooet where Tsilhqot’ins would gather in the fall to pick berries and roots and also hunt deer and marmot, staying at that location to dry the meat.924 Mr. Setah also reported hunting sheep on Gwetex Natel?as (Red Mountain) around Dediny Gunlin.925

920 Plaintiff’s Argument, Appendix 2, para. 183; Transcript, November 29, 2004, Norman George Setah Direct- Exam, 00014, 45 to 00015, 45. 921 Plaintiff’s Argument, Appendix 3, para. 213; Transcript, December 1, 2004, Norman George Setah Direct-Exam, 00026, 4 to 00027, 16. 922 Plaintiff’s Argument, Appendix 3, para. 212; Transcript, December 1, 2004, Norman George Setah Direct-Exam, 00013, 36 to 00015, 41; Exhibit 0217DIG, Norman George Setah Digitized Map, polygon “JX”; Exhibit 0217LEG, Norman George Setah Digitized Map Legend, polygon “JX”. 923 Plaintiff’s Argument, Appendix 3, para. 212; Transcript, December 1, 2004, Norman George Setah Direct-Exam, 00025, 30 to 00026, 3. 924 Plaintiff’s Argument, Appendix 2, paras. 184, 214; Transcript, December 8, 2004, Norman George Setah Cross- Exam, 00026, 21 to 00028, 23; Exhibit 0211DIG, Norman George Setah Digitized Map, polygon “EE”; Exhibit 0211LEG, Norman George Setah Digitized Map, polygon “EE”. 925 Plaintiff’s Argument, Appendix 3, para. 212; Transcript, November 30, 2004, Norman George Setah Direct- Exam, 00042, 39 to 00043, 5; Exhibit 0217DIG, Norman George Setah Digitized Map, polygon “JS”; Exhibit 0217LEG, Norman George Setah Digitized Map Legend, polygon “JS”.

169 (e) Norman George Setah identified deer and groundhog hunting grounds at Nabas Dzelh (Anvil Mountain) and Gwetex Natel?as, as well as berry picking patches, all of which he learned from his father Willie Setah, Andy George’s wife Lizzie926 and Cowboy Foot had been used by Tsilhqot’ins since the time of the ?esggidams.927 Mr. Setah testified that he had seen rock blinds around Nabas Dzelh (Anvil Mountain), which they taught him were made and used by the ?esggidams.928

(f) Mr. Setah testified that he and his family, Lizzie and Cowboy Foot have harvested wild rhubarb (sulh) on the east side of Dasiqox Biny (Taseko Lakes) and mountain potatoes (sunt’iny) on the south side of Nabas Dzelh along Bisqox (Swift Creek).929

(g) Norman George Setah gave oral history evidence from Louis Quilt, Hadediny, ?Eweniwen and Alec Jack about a battle at Beece Creek taking place at the time of his teachers’ grandfathers in which the Tsilhqot’in warriors “wiped out and buried” the Lillooet under rocks at Beece Creek.930 As set out in the Plaintiff’s argument at paragraph 1129, “In all likelihood, the 1839 references in the Chilcotin Post Journal to a Lillooet incursion into Tsilhqot’in territory, which initiated a concerted effort by the Tsilhqot’in, is the first half of the same event Mr. Setah describes at Beece Creek.”

926 Transcript, November 1, 2004, Norman George Setah Direct-Exam, 00009, 9-10. 927 Plaintiff’s Argument, Appendix 3, paras. 159, 211; Transcript, November 1, 2004, Norman George Setah Direct- Exam, 00009, 20 to 00014, 31; Exhibit 0210DIG, Norman George Setah Digitized Map, polygons “DH”, “DI”, “DJ”, “DK”; Exhibit 0210LEG, Norman George Setah Digitized Map Legend, polygons “DH”, “DI”, “DJ”, “DK”. 928 Plaintiff’s Argument, Appendix 3, paras. 130, 211; Transcript, December 8, 2004, Norman George Setah, 00024, 36 to 00026, 20. 929 Plaintiff’s Argument, Appendix 3, para. 173; Transcript, November 2, 2004, Norman George Setah Direct-Exam, 00008, 30 to 00010, 17; Exhibit 0211DIG, Norman George Setah Digitized Map, polygons “EC”, “EE”; Exhibit 0211LEG, Norman George Setah Digitized Map Legend, polygons “EC”, “EE”. 930 Plaintiff’s argument, Volume 3, para 1126 to 1128.

170 299. Lloyd Myers, born in 1939, is a member of the Yunesit’in (Stone) band, and a resident of the Stone Reserve, and a band councilor of that community.931

(a) Lloyd Myers averred that he hunts deer, wild chickens, groundhogs, moose and gathers medicine in the snow mountains, including Nabas Dzelh (Anvil Mountain) and Gwetex Natel?as (Red Mountain) and was taught by his parents that Tsilhqot’ins have been camping, hunting, drying meat, fishing, gathering berries and medicines in this area since the time of the ?esggidams.932 Mr. Myers has taken his grandchildren with him and taught them about medicines as his parents taught him.

(b) Mr. Myers hunts around Nabas, and camps and fishes at Bisqox with his family as Tsilhqot’ins have done since the time of the ?esggidams.933 Mr Myers travels from his home on the Stone reserve to the Bisqox and Nabas Dzelh/Anvil Mountain area once or twice every year in the summertime,934 and also goes to Red Mountain once or twice a year.935

(c) Lloyd Myers’ father also went to Taylor Windfall when he was young as well, and Lloyd Myers himself hunts groundhog at Taylor Windfall. 936

(d) Mr. Myers averred that Stone elders like George Myers and his father, and Nemiah elders such as William Setah, talked about the “old generations” from Nemiah and Stone got their winter supplies in the Dzeh Ch’ed mountains east of the Taseko Lakes in summer and fall, going there about twice a year.937

931 Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, para 3. 932 Plaintiff’s Argument, Appendix 3, para. 157; Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, paras. 50- 53. 933 Plaintiff’s Argument, Appendix 3, para. 210-212; Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, paras. 45-47. 934 Transcript, May 30, 2005, Lloyd Myers Direct-Exam, 00011, 5 to 00012, 10. 935 Transcript, May 30, 2005, Lloyd Myers Cross-Exam, 00068, 11-28; 34-38. 936 Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, para. 45. 937 Transcript, May 30, 2005, Lloyd Myers Direct-Exam, 00012, 20 to 00013, 13; 00015, 32-47; Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, at para. 52.

171 300. Francis Setah gave evidence of ancestral and continuing salmon fishing at Nadilin Yex,938 testifying that he himself fished for spring salmon there during their spawning time in August, and named numerous others who also did so, including his grandfather ?Eweniwen, Lebusden, and Andy George (Tselxex).939 He further testified that sockeye salmon are known to spawn in the Gunn Valley,940 where Francis Setah’s grandfather taught him that the Tsilhqot’in ancestors used to camp.941

301. Francis Setah also recounted oral history teachings from his grandfather ?Eweniwen and grandmother Daldod about ancestral Tsilhqot’ins exploiting the falltime deer migration as the deer move from the mountains and out onto the plateau in September and October. He was taught that the ancestors hunted at Gwetex Natel?as from behind rock piles using arrows, and that falltime hunting in this area has continued through the generations.942 Mr. Setah testified that lots of Tsilhqot’ins, including his grandfather ?Eweniwen and Johnny Baptiste (Lebusden) hunted in this area.943

302. Francis Setah and Mabel William both recount the use of canoes on Dasiqox Biny to ferry to their northern winter houses the dried meat and hides taken from the mountainous area around the south end of Dasiqox Biny each fall while hunting.

(a) Francis Setah testified that he gone in and camped at Ts’i Ts’elhts’ig in the fall with both Andy George and Captain George to hunt mountain goat and marten.944 Mr. Setah testified that he had learned from his grandparents Daldod and

938 Plaintiff’s Argument, Volume 3, para. 1026, footnote 1104; Plaintiff’s Argument, Appendix 3, para. 179; Transcript, November 27, 2003, Francis Setah Direct-Exam, 00027, 33 to 00028, 12. 939 Plaintiff’s Argument, Volume 3, para. 1023, para. 1090; Transcript, November 17, 2003, Francis Setah Direct- Exam, 00027, 33 to 00028, 12. 940 Plaintiff’s Argument, Volume 3, para. 1026, footnote 1107; Transcript, November 27, 2003, Francis Setah Direct-Exam, 00028, 13-45. 941 Plaintiff’s Argument, Volume 3, para. 1026, footnote 1107; Transcript, November 27, 2003, Francis Setah Direct-Exam, 00030, 34-46. 942 Plaintiff’s Argument, Volume 3, para. 998, footnote 1011; Transcript, December 2, 2003, Francis Setah Direct- Exam, 00036, 42 to 00040, 16. 943 Plaintiff’s Argument, Appendix 3, para. 211; Transcript, December 2, 2003, Francis Setah Direct-Exam, 00036, 42 to 00040, 11; Exhibit 0095DIG, Francis Setah Digitized Map, site “DB”; Exhibit 0095LEG, Francis Setah Digitized Map Legend, site “DB”. 944 Plaintiff’s Argument, Appendix 3, para. 210; Transcript, December 1, 2003, Francis Setah Direct-Exam, 00044, 30 to 00047, 47; Exhibit 0095DIG, Francis Setah Digitized Map, polygons “CL”, “CM”, “CN”; Exhibit 0095LEG, Francis Setah Digitized Map Legend, polygons “CL”, “CM”, “CN”.

172 ?Eweniwen that after hunting in the fall for mountain goat, deer and mountain sheep the ?esggidams would ferry dried meat and hides from the south end of Dasiqox Biny to the north end of the lake in spruce bark boats.945

(b) Elder Mabel William averred that Sam Bulyan had taught her oral history he had learned from his grandmother Nancy Setah (ca. 1845-1938).946 about Tsilhqot’ins hunting in the fall at the bottom of Dasiqox Biny around Ts’i Ts’elhts’ig, drying the meat and hides and then ferrying them back up the lake in spruce bark boats to their winter residences.947

303. Julie Quilt is a Yunesit’in elder, and the sister of Lloyd Myers. Like Christine Cooper’s father Johnny Hance, Julie Quilt’s father ?Esbu (Philip Myers) was also raised by Lezebid and Seymour, who lived around Nabas,948 and had a cabin there.949

(a) Julie Quilt gave evidence from her father of the Tsilhqot’in ?esggidams trapping in the northern part of the Eastern trapline around Nabas, and that her father, with Seymour and Lezebid, did the same thing in the wintertime.950

(b) Ms. Quilt testified that she would go to Gwetex Natel?as (Red Mountain) with her husband Pascal and his parents in the fall to prepare for winter by hunting deer, groundhog and moose and also gathering pine nuts, mountain potatoes, berries and Indian hellebore. Ms. Quilt testified that a lot of other Tsilhqot’ins who would

945 Plaintiff’s Argument, Appendix 3, para. 210; Plaintiff’s Argument, Volume 3, para. 1032(d), footnote 1140; Transcript, December 2, 2003, Francis Setah Direct-Exam, 00002, 4 to 00003, 33. Transcript, December 1, 2003, Francis Setah Direct-Exam, at 00042, 2-37. 946 Exhibit 0441, Dewhirst Report, at 24. 947 Plaintiff’s Argument, Appendix 3, para. 210; Plaintiff’s Argument, Volume 3, para. 1032(d), footnote 1140; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, paras. 39, 71. 948 Exhibit 0203, Affidavit #1 of Julie Quilt, paras 12; 14 949 Transcript, November 5, 2004, Julie Quilt Direct-Exam, 00022, 6 to 29 950 Plaintiff’s Argument, Volume 3, para 1007 footnote 1046; Transcript, November 5, 2004, Julie Quilt Direct- Exam, 00022, 6 to 29

173 be there at the same time and Pascal’s parents ?Andeliyan and Eliza taught her that Tsilhqot’ins had been using this area since the time of the ?esggidams.951

304. Cecelia Quilt was born and raised at Nabas and averred to long history of Tsilhqot’in occupation and use of Nabas.952 In her affidavit, she listed many of the Tsilhqot’ins who have stayed around Nabas, but also explained that a lot of Tsilhqot’in cabins have been burned down, including the one belonging to her family. Ms. Quilt’s mother Louisa Quilt953 taught her that her father Petal Quilt (?Atazl)954 and ?Akow had lived in an underground house close to where their cabins were on the east side of Nabas Dzelh. Ms. Quilt explained that Tsilhqot’ins would hunt and trap around Nabas and up into the snow mountains, and described learning from her father how to hunt and trap deer, squirrel, rabbit, muskrat, beaver, groundhog, lynx, fisher, bobcat, coyote, moose and cougar. Her parents taught her that Tsilhqot’ins had been staying at Nabas since before their time. Her husband’s grandmother Yellicy taught her that the ?esggidams lived, hunted and trapped at Nabas.

(a) Ms. Quilt averred that the Tsilhqot’ins who lived around Nabas would hunt deer and groundhog in the snow mountains, including at Nabas Dzelh and Gwetex Natel?as, where deer hunting rock blinds are.955 Both she and her father hunted on Nabas Dzelh every summer and fall; her father, Bigad and Yellicy all taught her that Tsilhqot’ins had hunted on Nabas since the time of the ?esggidams.956

951 Plaintiff’s Appendix 3, paras. 159, 211; Transcript, November 5, 2004, Julie Quilt Direct Examination, 00016, 34 – 00019, 43; Exhibit 0203, Affidavit #1 of Julie Quilt, September 29, 2004, para. 27; 18. 952 Plaintiff’s Argument, Appendix 2, para. 178; Plaintiff’s Argument, Appendix 3, para. 158; Exhibit 0439, Affidavit #1 of Cecelia Quilt, May 6, 2005, paras. 23-37; Transcript, October 6, 2005, Cecilia Quilt Direct-Exam, 00009, 17-30. 953 Exhibit 0439, Affidavit #1 of Cecelia Quilt, May 6, 2005, para. 11. 954 Exhibit 0439, Affidavit #1 of Cecelia Quilt, May 6, 2005, para. 7. 955 Plaintiff’s Argument, Appendix 2, paras. 185, 212; Plaintiff’s Argument, Appendix 3, para. 211; Exhibit 0439, Affidavit #1 of Cecelia Quilt, May 6, 2005, para. 27(h)(l)(m), 30, 31, 35. 956 Plaintiff’s Argument, Appendix 3, para. 211; Exhibit 0439, Affidavit #1 of Cecelia Quilt, May 6, 2005, paras. 40, 42.

174 (b) Ms. Quilt averred that Tsilhqot’ins including Jimmy Bulyan and her father camped and hunted at Bisqox (Beece Creek) and her father taught her Tsilhqot’ins had been using that area since the time of the ?esggidams.957

(c) Cecelia Quilt gave evidence that the northern part of the Eastern trapline, including the area around Nabas, was an ancestral trapping ground.958

(d) Cecelia Quilt averred that her family fished at Teztaun (Fish Lake) and her parents and Yellicy taught her that Tsilhqot’ins had been doing that since the time of the ?esggidams. Her aunt Madeline Hance taught her that an old Tsilhqot’in lady who used to fish at the lake is now buried there. She also reported that Old Seymour had a cabin near Teztaun, close to where Jimmy Bulyan stayed.959

305. Christine Cooper was born and spent the first years of her life living year-round in the area around Dasiqox Biny and Dasiqox. Her father was also born and raised in the Dasiqox area. Her parents had a cabin in the meadow around Nabas where Jimmy Bulyan’s family and Henry Solomon’s family later stayed.960

(a) Ms. Cooper described camping on the east side of the Taseko River and fishing for spring salmon with gill nets at Nadilin Yex each summer with her parents.961 She testified crossing the Dasiqox at Dadilin Yex (Nadilin Yex).962

(b) Ms Cooper also explained that her mother told her that each fall when her mother was living in the Dasiqox area, many Tsilhqot’in people traveled to Gwetes

957 Plaintiff’s Argument, Appendix 3, para. 213; Exhibit 0439, Affidavit #1 of Cecelia Quilt, May 6, 2005, para. 38. 958 Plaintiff’s Argument, Volume 3, para. 1007, footnote 1046. 959 Plaintiff’s Argument, Appendix 2, para. 176; Exhibit 0439, Affidavit #1 of Cecelia Quilt, May 6, 2005, paras. 46- 47. 960 Plaintiff’s Argument, Appendix 2, para. 176; Exhibit 0398, Affidavit #1 of Christine Cooper, August 27, 2004, paras. 10; 16. 961 Plaintiff’s Argument, Appendix 2, para. 183; Exhibit 0398, Affidavit #1 of Christine Cooper, August 27, 2004, para. 19. 962 Exhibit 0398, Affidavit #1 of Christine Cooper, August 27, 2004, para. 18.

175 Natel?as (Gwetex Natel?as) to take advantage of the deer migration out of the mountains, and that this had been occurring since sadanx (ancestor time.)963

(c) Her mother fished for dek’any (trout) at Teztan (Fish Lake),964 and trapped all winter when living around Nabas.965

(d) Mrs. Cooper names Tsilhqot’in people living around Nabas when she was a child, including Seymour and Lezebid, Jamadis (John Baptiste) and his wife Midi, and ?Etsinlh. Cecelia Quilt’s parents ?Atazl (Petal Quilt) and Lewiza lived in a different area, but also around Nabas.966

306. Gilbert Solomon testified that he had seen house pits at Teztaun Biny (Fish Lake) and had been taught by his father Henry Solomon, William Setah, Jimmy Bulyan’s wife Amelia, Eugene William and other elders that the ?esggidams lived, hunted and fished at Teztaun Biny.967

(a) Gilbert Solomon averred that while his family was living in the meadow at Nabas, he hunted with his family in Nabas for deer and moose.968

(b) Mr. Solomon defined Nabas as follows: “The English name for Nabas is Anvil Mountain, but Nabas also refers to a large area around the mountain; it is the area on the east side of the Taseko River between Anvil Mountain and Teztan (Fish Lake).969

963 Exhibit 0398, Affidavit #1 of Christine Cooper, August 27, 2004, para. 20. 964 Exhibit 0398, Affidavit #1 of Christine Cooper, August 27, 2004, para. 22. 965 Exhibit 0398, Affidavit #1 of Christine Cooper, August 27, 2004, para. 23. 966 Exhibit 0398, Affidavit #1 of Christine Cooper, August 27, 2004, para. 24. 967 Plaintiff’s Argument, Appendix 3, para. 156; Plaintiff’s Argument, Appendix 3, para. 213; Transcript, March 17, 2005, Gilbert Solomon Direct-Exam, 00016, 18 – 22, 34; Exhibit 0371DIG, Gilbert Solomon Digitized Map, sites “AR”, “AS”; Exhibit 0371LEG, Gilbert Solomon Digitized Map, sites “AR”, “AS”. 968 Plaintiff’s Argument, Appendix 3, para. 212; Exhibit 0367, Affidavit #2 of Gilbert Solomon, January 19, 2005, paras. 39, 43. 969 Exhibit 0367, Gilbert Solomon Affidavit #2, January 19, 2005, at para. 38.

176 307. Chief Roger William testified that Tsilhqot’ins were living in the Eastern Trapline full- time until the 1980s and explained that the Solomon family still goes into the area each year.970 He identified two cabins they use, one of which being near Jididzay Biny (Onion Lake), and explained that a third cabin was burned down.

(a) Chief William testified that his late uncle Jimmy Sammy William also used to live in a cabin just north of Jididzay. He explained that his uncle and numerous other Tsilhqot’ins hunted and trapped in that area. Chief William had learned from his grandmother Annie William, Danny William, Eugene William and Henry Solomon that it was a good hunting area.971 Chief William was also taught by his grandmother that Sam Bulyan hunted around Nabas.972

308. Harry Setah testified that William Setah taught him that the whole area from Teztaun (Fish Lake), Nabas, Nabas Dzelh (Anvil Mountain), Gwetex Natel?as (Red Mountain) right down through Taylor Windfall were Tsilhqot’in summer and fall hunting grounds for deer and moose.973

(a) Harry Setah testified that Henry Solomon had a cabin in the Nabas area between Nabas (Anvil) Mountain and Teztaun (Fish Lake), which was used by Jimmy William (Bulyan) before him. Harry Setah indicated that the whole area between Fish Lake and Anvil Mountain is known as Nabas. 974

(b) Fish Lake was the site of a recent Xeni Gwet’in elders’ gathering975

970 Plaintiff’s Argument, Appendix 2, para. 179; Transcript, October 22, 2003, Roger William Direct-Exam, 00025, 38 to 00029, 17. 971 Plaintiff’s Argument, Appendix 2, para. 179; Transcript, September 16, 2003, Roger William Direct-Exam, 00039, 25 to 00042, 11; Exhibit 0016DIG, Roger William Digitized Map, polygon “K”; Exhibit 0016LEG, Roger William Digitized Map Legend, polygon “K”. 972 Plaintiff’s Argument, Appendix 3, paras. 211, 212; Transcript, September 25, 2003, Roger William Direct-Exam, 00013, 32-41. 973 Plaintiff’s Argument, Appendix 3, paras. 210-212; Transcript, October 14, 2004, Harry Setah Direct-Exam, 00053, 36 to 00059, 22. 974 Plaintiff’s Argument, Appendix 2 para. 180; Transcript, October 15, 2004, Harry Setah Direct-Exam, 00012, 4 to 00013, 40. 975 Transcript, October 15, 2004, Harry Setah Cross-Exam, 00069, 40 to 00070, 9.

177 (c) Harry Setah testified that William Setah taught him that Tsilhqot’ins hunted at “Red Mountain…, and Anvil Mountain. You pretty well hunt all the way down to Fish Lake. They hunt this whole area, William Setah was telling me, all the way down into Taylor Windfall.”976

(d) Harry Setah explained Taylor Windfall as encompassing the whole valley containing the headwaters of upper Taseko River as it makes its way towards Taseko Lakes.977

(e) Harry Setah included Fish Lake through to Anvil Mountain, Red Mountain and down into Taylor Windfall as part of his extensive adult summertime deer and moose hunting area, which he used as recently as 2 years prior to testifying.978 In spite of his busy summer schedule (he is a park ranger), Mr. Setah tries to go to the Red Mountain area every year.979

(f) On his frequent fishing trips to Teztan (Fish Lake) and Jididzay (Onion Lake) Mr. Setah and his family also hunt for deer and moose, blue grouse and rabbits.980

309. Councillor David Setah also identified the rock blinds at both Gwetex Natel?as (Red Mountain) and T’ox T’ad, both being places that deer have to cross through when migrating out of the mountains in the fall. Mr. Setah has hunted at Gwetex Natel?as and testified that he learned from his father William Setah that the rock blinds date back to the ?esggidams who hunted with bows and arrows.981

976 Plaintiff’s Argument, Appendix 3, paras. 210-212; Transcript, October 14, 2004, Harry Setah Direct-Exam, 00054, 38 to 00055, 4. 977 Transcript, October 14, 2004, Harry Setah Direct-Exam, 00058, 5-23; Exhibit 0180DIG, 111. 978 Transcript, October 15, 2004, Harry Setah Direct-Exam, 00004, 18 to 00006, 26; 00006, 46 to 0008, 2. 979 Transcript, October 15, 2004, Harry Setah Direct-Exam, 00070, 34-40. 980 Transcript, October 15, 2004, Harry Setah Direct-Exam, 00008, 3 to 00011, 9; 00016, 39-45; 00070, 34-36. 981 Plaintiff’s Argument, Appendix 2, para. 185; Plaintiff’s Argument, Appendix 3, para. 210; Transcript, January 18, 2005, David Setah Direct-Exam, 00058, 39 to 00061, 2; 00061, 42 to 00062, 34; Exhibit 0259DIG, David Setah Digitized Map, polygons “CC”, “CD”; Exhibit 0259LEG, David Setah Digitized Map, polygons “CC”, “CD”.

178 (a) Councillor Setah also described hunting deer in the fall at Nadilin Yex to take advantage of this crossing along the migration route.982 c. Additional Expert Evidence

310. The doctoral work of anthropologist Robert Tyhurst (1984) corroborates the body of evidence establishing the annual schedule of major autumn hunts in the mountains of the claim area.983 In particular, Tyhurst stated:

In the recent past (1900-1950), fur trapping parties from Stone and Nemaiah have ranged as far south as Lord River, at the extreme southern end of Taseko Lake; and from Nemaiah and Choelquoit lake, as far south as Franklyn Arm on Chilko Lake, and the mountains and river valleys to the immediate north of Bute Inlet. This mountainous territory, which extends northwest from the Bridge River- Lillooet area, through Chilko Lake to the Dean River, and which contains the highest mountains in the British Columbia Coast Ranges, was, at the time of contact, an important summer hunting range and food plant gathering area for the Chilcotin population.

Chilcotin hunters in earlier times (1800-1900) traversed the same territory, with trapping of beaver, fox, coyote, marten, fisher, and lynx, as an important subsidiary activity. The hunters were accompanied by women and children, who stayed at base camps, digging and drying edible roots and medicinal plants, fishing for trout, suckers and whitefish, trapping muskrat and rabbits, and drying fish and meat, while the trappers or hunters ranged further afield (Tyhurst, fieldnotes.)984 [Emphasis added.]

311. Tyhurst’s thesis,985 upon which Brealey relies,986 shows, at map 5, foot and horse trails as at the mid-19th century crossing the Taseko River just north of the Taseko Lakes, and running down the east side of Taseko Lakes, on branch turning off at Beece Creek, and then veering north towards Yunesit’in (Stone), and another branch extending south towards the Bridge River.987 Tyhurst’s thesis further corroborates the Mabel William’s evidence that the Taseko

982 Plaintiff’s Argument, Appendix 3, para. 130; Transcript, January 18, 2005, David Setah Direct-Exam, 00055, 42 to 00056, 17; 00057, 36 to 00058, 27; Exhibit 0259DIG, David Setah Digitized Map, polygon “CB”; Exhibit 0259LEG, David Setah Digitized Map Legend, polygon “CB”. 983 Plaintiff’s Argument, Volume 3, para. 1030. 984 Plaintiff’s Argument, Appendix 3, para. 136; Plaintiff’s Argument, Volume 3, para. 1017. 985 Exhibit 0177, Robert Tyhurst Dissertation, p. 2009351. 986 Exhibit 0245. 987 Exhibit 0177 Robert Tyhurst Dissertation, page 2009351; Plaintiff’s Argument, Volume 3, para. 922, Trails 54, 55, and 57.

179 Lakes were used as a water route used for ferrying meat: at his Map 4, he indicates that the Taseko Lakes are “reliably navigable in open canoe or raft,”988 and confirms the use of rafts as well as spruce and birch bark canoes as part of expeditions into the mountainous region of the claim area.989

312. After observing that “[t]he traditional Chilcotin yearly cycle of activities was governed by two events: the late summer and fall hunts, and the later summer salmon runs,”990 Tyhurst observes that the major rivers of the Plateau, including the Taseko, were a source of salmon and steelhead for Tsilhqot’ins from a time before contact.991

313. The archeological evidence is similarly corroborative.

a. Tyhurst also recorded a dense cluster of archeological sites around Fish Lake (Teztaun).992

b. Dr. Brealey, citing the work of Martin Magne and Tyhurst, notes the existence of numerous roasting and pit house depressions at smaller lakes surrounding the Taseko Lakes, including Fish Lake, Tuzcha Lake, Fishem Lake, Lastman Lake, and Yohetta Lake.993 Corroborative of the lay witness accounts, Dr. Brealey notes with respect to Fishem Lake: “several housepit depressions at this place confirm that this was ‘a base camp [where] extended families would exploit floral, fish, and big game resources’ and so one of the more important Tsilhqot’in encampments in the Yohetta Valley.”994

c. Magne’s Taseko Lakes Prehistory Project was put to Morley Eldridge on cross examination: while archeological evidence of pit houses in the Gunn Valley area were

988 Exhibit 0177 Robert Tyhurst Dissertation, page 2009323; Plaintiff’s Argument, Volume 3, para. 922, Water route 56. 989 Exhibit 0177 Robert Tyhurst Dissertation, pages 2009266; 2009272; 2009275; Plaintiff’s Argument, Volume 3, para. 1032(d). 990 Exhibit 0177, Tyhurst Dissertation, p. 51. 991 Exhibit 0177, Tyhurst Dissertation, p. 54. 992 Plaintiff’s Argument, Appendix 2, para. 174, footnote 347; Transcript, May 12, 2006, Morley Eldridge Cross- Exam, 00060, 46 to 00065, 27. 993 Exhibit 0240, Brealey Report, at 59, 63, 76, and 78. 994 Exhibit 0240, Brealey Report, at 59, including footnote 116.

180 likely Salish, Lillooet or Shuswap and dating to 2000 and 1200 years ago, the large roasting pit sites in the same area were not part of the same settlement-subsistence pattern, and may have been made by Athabaskan Chilcotin.995 Further, Eldridge expresses the opinion that Tsilhqot’ins may re-build and re-occupy sites built by earlier occupants.996

314. Dr Brealey’s evidence confirms from the historical record that the Tsilhqot’in trail network through the claim area lands east of the Taseko Lakes is of pre-contact origin.997 In addition, Dr. Brealey noted that the Euro-Canadian record of Tsilhqot’in trails is far from exhaustive, and stated “there would have been countless subsidiary trials, routes, creeks or portages that would have been used by Tsilhqot’ins.”998

315. Further, Dr. Brealey described the Tsilhqot’in resource exploitation patterns thusly: “the Tsilhqot’in would follow the melting snowline into the higher country and by early summer would be hunting, and gathering blossoms and roots on mountain slopes”;999 “[i]n early fall they would return the high country to hunt big game and gather berries, and as winter approached, moved back to their wintering grounds…”1000

316. Eldridge expresses the opinion that “place names, by their nature, tend to be relatively stable.” Again referring to Martin Magne’s Taseko Lakes Prehistory Project, Eldridge agrees that based on the abundance of place names in the area, Tsilhqot’in would have been in this area for “certainly probably several centuries.”1001

317. Dr. Matson, a leading expert in the area of Athabaskan Chilcotin archeology testified that the Trapline Territory was occupied by Tsilhqot’ins well before the date of sovereignty. “My opinion is that the Tsilhqot’in have been in the Brittany Triangle since at least A.D. 1645-1660.

995 Transcript, May 12, 2006, Morley Eldridge Cross-Exam, 00016, 39 to 00018, 6. 996 Exhibit 0538, Morley Eldridge Expert Report, pages 2 and 17. 997 Plaintiff’s Argument, Volume 3, at para. 922, Trail Sections 57, 58, 54, 55. 998 Plaintiff’s Argument, Volume 3, at para. 914. 999 Plaintiff’s Argument, Volume 3, at para. 1031. 1000 Plaintiff’s Argument, Volume 3, at para. 1031. 1001 Transcript, May 12, 2006, Morley Eldridge Cross-Exam, 00040, 6-46.

181 The Trapline Territory would probably have been occupied by the Tsilhqot’in at the same time or slightly later….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.”1002

318. Similarly, Dr. Dinwoodie concluded that “[f]or a period of time extending back from the present 200 years or more, the Tsilhqot’in were in exclusive occupation of a territory…” which includes the Claim Area.1003

319. In his report on Tsilhqot’in use and occupation of the Clain Area, anthropologist John Dewhirst stated: “In my opinion, the Tsilhqot’in population had used and occupied the Claim Area from before 1822 to the present day.”1004

d. General Points

320. The entire body of evidence discussed above regarding the Taseko Lakes and the Claim Area lands to their east is consistent with the previously discussed Tsilhqot’in system of occupation through regular use of lands for resource exploitation,1005 and demonstrates regular, intensive use.

321. As Dewhirst notes, “[t]rails … show that the Tsilhqot’in are connected to each other socially and to habitation sites and resource harvesting areas throughout their territory….The resulting trails themselves formed as a result of repeated use over generations of occupancy.”1006 The Claim Area east of the Taseko Lakes is no exception. Oral history and expert evidence alike points to a rich network of trails, a water route and two crossings over Dasiqox Biny that has

1002 Exhibit 0145, Expert Report of R.G. Matson, p. 5; Plaintiff’s Argument, Volume 3, para. 872. 1003 Plaintiff’s Argument, Volume 3, at para. 874. 1004 Plaintiff’s Argument, Volume 3, at para. 875, footnote 485. 1005 Plaintiff’s Argument, Volume 3, at para. 974; 987; 1016; 1027; 1030; Exhibit 0177, Tyhurst Dissertation, at 52, 53. 1006 Plaintiff’s Argument, Volume 3, at para. 915; Exhibit 0443, Expert Report of Dewhirst, at para. 158

182 linked the resource and habitation areas east of Dasiqox Biny to other parts of Tsilhqot’in territory (including Stone and Yohetta and Gunn Valleys) since a time long before contact.1007

322. There is considerable evidence that the lower elevation lands of the northern part of the Eastern trapline including Nabas (defined as including the area at the foot of Nabas Dzelh (Anvil Mountain and up to Teztaun (Fish Lake) 1008 was used as a Tsilhqot’in winter residence site extending back in time well prior to 1846, and continuing well into the 20th century.

(a) Numerous archeological sites have been identified at Fish Lake (Teztaun Biny),1009 and Gilbert Solomon testified that he had been taught by his father Henry Solomon, William Setah, Jimmy Bulyan’s wife Amelia, Eugene William and other elders that the ?esggidams lived, hunted and fished at Teztaun Biny.1010

(b) Cecelia Quilt, born in 19241011 in the Nabas area to the east of Anvil Mountain, Cecelia Quilt gave oral history evidence from her mother Louisa Quilt1012 that her father Petal Quilt (?Atazl)1013 and ?Akow had lived in an underground house close to where their cabins were on the east side of Nabas Dzelh, and oral history from Yellicy that the ?esggidams lived, hunted and trapped at Nabas. Mrs. Quilt named many families living at Nabas on both the east and west sides of Nabas Dzelh (Anvil Mountain) as she was growing up.1014

1007 Plaintiff’s Argument, Volume 3, para. 922; Plaintiff’s Argument, Appendix 6, Map C, Trails 52, 55, 51, 54, 59, 58, 57; Exhibit 0240, Brealey Report, at p. 48, footnote 9; Exhibit 0245; Exhibit 0177, Tyhurst Dissertation, at p. 2009351. 1008 Plaintiff’s Argument, Appendix 2 para. 180; Transcript, October 15, 2004, Harry Setah Direct-Exam, 00012, 4 to 00013, 40; Exhibit 0367, Gilbert Solomon Affidavit #2, January 19, 2005, at para. 38. See also Exhibit 0439, Cecelia Quilt Affidavit, para 23. 1009 Plaintiff’s Argument, Volume 3, para. 1007; Plaintiff’s Argument, Appendix 2, at para. 174. 1010 Plaintiff’s Argument, Appendix 3, para. 156; Plaintiff’s Argument, Appendix 3, para. 213; Transcript, March 17, 2005, Gilbert Solomon Direct-Exam, 00016, 18 – 22, 34; Exhibit 0371DIG, Gilbert Solomon Digitized Map, sites “AR”, “AS”; Exhibit 0371LEG, Gilbert Solomon Digitized Map, sites “AR”, “AS”. 1011 Exhibit 0439, Affidavit #1 of Cecelia Quilt, para5 1012 Exhibit 0439, Affidavit #1 of Cecelia Quilt, May 6, 2005, para. 11. 1013 Exhibit 0439, Affidavit #1 of Cecelia Quilt, May 6, 2005, para. 7. 1014 Exhibit 0439, Affidavit #1 of Cecelia Quilt, May 6, 2005, para. 26 and 27.

183 (c) Christine Cooper’s father Johnny Hance was born in the Dasiqox area, and was raised there by Seymour and Lezebid,1015 presumably in the early 20th century, since Christine Cooper was herself born in 1930.1016 Mrs. Cooper testified as to a sizeable Tsilhqot’in population living in the Nabas area in the 1930s, including such figures as Seymour and Lezebid, Jamadis (John Baptiste) and his wife Midi, and ?Etsinlh, as well as Cecelia Quilt’s parents ?Atazl (Petal Quilt) and Lewiza.1017

(d) Cecelia Quilt testified that Old Seymour’s a cabin was near Teztaun (Fish Lake), close to where Jimmy Bulyan [later] stayed.1018 Julie Quilt, whose father ?Esbu (Philip Myers) was also raised by Lezebid and Seymour, testified that Seymour and Lezebid lived in the Nabas1019 area, and had a cabin there.1020 As noted above, Nabas is a large area extending to include the foot of Anvil mountain, and north to Fish Lake.

(e) Joseph William’s great uncle John Baptiste’s cabin was also in the Nabas area.1021

(f) Francis William averred that his late brother Jimmy William and his family lived from the time he was thirty (c. 1943) until his death at age approximately 59 (c. 1972)1022 in a cabin he had built in Whitewater Meadow to the northwest of Nabas and east of the Dasiqox (Taseko River).1023

1015 Exhibit 0398, Affidavit #1 of Christine Cooper, August 27, 2004, para. 10-11. 1016 Exhibit 0398, Affidavit #1 of Christine Cooper, August 27, 2004, para. 2 1017 Exhibit 0398, Affidavit #1 of Christine Cooper, August 27, 2004, para. 24. 1018 Plaintiff’s Argument, Appendix 2, para. 176; Exhibit 0439, Affidavit #1 of Cecelia Quilt, May 6, 2005, paras. 46-47. 1019 Exhibit 0203, Affidavit #1 of Julie Quilt, paras 12; 14 1020 Transcript, November 5, 2004, Julie Quilt Direct-Exam, 00022, 6 to 29 1021 Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 13(c). 1022 Exhibit 0441, Dewhirst Report, Chart 4. Jimmy William’s birthdate is 1913. 1023 Plaintiff’s Argument, Appendix 2, para. 181; Exhibit 0158, Affidavit #2 of Francis Sammy William, April 30, 2004, paras. 110-111.

184 (g) After Jimmy William died, the Xeni Gwet’in Solomon family maintained a year- round residence and in the Nabas area,1024 where there are houses and hayfields.1025

(h) The Solomon Family lived year-round in the Eastern Trapline area through the 1980s and until the early 1990s, using three cabins, at Nabas and Jididzay.1026 While they live in the Nemiah Valley today, the Solomon family still goes into the area each year.1027

323. The oral history, ethnographic record and expert evidence regarding ancient Tsilhqot’in creation narratives or legends, the oral history having been largely told by elders who speak only the Tsilhqot’in language, indicate that the Tsilhqot’in were and remain deeply connected to the Claim area lands including the Taseko Lakes and lands to the east:

(a) As part of the legend of Lhin Desch’osh, Farrand records that the boys search for their father Lhin Desch’osh us the Whitewater [i.e., the Taseko or Dasiqox] river “to its head” [at Nadilin Yex], where they eventually find him. Patricia Guichon’s oral history account confirms this.1028

(b) Farrand’s account of Lhin Desch’osh closes noting that “[b]efore turning to stone, they made Indian potatoes, and scattered them all about on the snow mountains”. The oral history evidence of Patricia Guichon and Elizabeth Jeff confirms this legend as the genesis of mountain potatoes.1029 Witnesses including Mabel William, Lloyd Myers, and Elizabeth Jeff testified that the snow mountains include the mountains of the Eastern Trapline including Nabas Dzelh and Gwetex

1024 Plaintiff’s Argument, Appendix 2, para. 180; Transcript, October 15, 2004, Harry Setah Direct-Exam, 00012, 4 to 00013, 40; Exhibit 0181DIG, DE. 1025 Transcript, January 20, 2005, David Setah Direct-Exam, 00020, 14-38. 1026 Plaintiff’s Argument, Appendix 2, para. 179; Transcript, October 22, 2003, Roger William Direct-Exam, 00025, 38 to 00029, 17. 1027 Plaintiff’s Argument, Appendix 2, para. 179; Transcript, October 22, 2003, Roger William Direct-Exam, 00025, 38 to 00029, 17. 1028 Plaintiff’s Argument, Volume 3, para. 887(b). 1029 Plaintiff’s Argument, Volume 3, para. 887(d).

185 Natel?as.1030 Norman George Setah and Joseph William located mountain potatoes in the eastern trapline mountains.1031

(c) Various other recorded Tsilhqot’in legends relate to hunting in the ‘snow mountains’ during summer or fall for game, including, marmots, deer, mountain sheep and mountain goat – The Gambler Who Received Supernatural Aid,1032 The Man Who Married Eagle’s Daughters, The Boy Who Was Helped by the Wolves and The Men and the Monsters.1033

(d) Dr. Dinwoodie’s evidence is that the nature of Tsilhqot’in occupation of land is best understood by also considering that their cultural relationship to lands went well beyond their utilitarian interests in it. In particular, Tsilhqot’in cultural relationship to land is empirically attested in their geographic place names and associated narratives.1034

324. The evidence regarding Tsilhqot’in place names also supports the fact of Tsilhqot’in occupation of the Taseko Lakes and the claim area to the east of it for centuries. British Columbia’s archaeologist Morley Eldridge, on cross-examination based on the work of federal archaeologist Dr. Martin Magne, was of the opinion that aboriginal place names, by their nature, tend to be relatively stable over time. Furthermore, an abundance of different types of aboriginal place names justifies a presumption that the aboriginal group with which the names originate has occupied the named area most likely for centuries.

325. Morley Eldridge gives this opinion in the specific context of the area of Dr. Magne’s Taseko Lakes Prehistory Project, in which Magne notes that “With the aid of an elderly

1030 Plaintiff’s Argument, Volume 3, para. 889, footnotes 538 and 539; Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, para. 45; Exhibit 439 Cecilia Quilt, May 6, 2005 at 27(l). 1031 Plaintiff’s Argument, Appendix 3, paras. 130, 211; Transcript, December 8, 2004, Norman George Setah Cross- Exam, 00024, 36 to 00026, 20; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, paras. 59, 62; Exhibit 0203, Affidavit #1 of Julie Quilt, at 27; Transcript, November 5, 2004, Julie Quilt, at 00015, 29 - 00019, 43; 00021, 41 - 00022, 5. 1032 Plaintiff’s Argument, Volume 3, at para. 889. 1033 Plaintiff’s Argument, Volume 3, at para. 891. 1034 Plaintiff’s Argument, Volume 3, at para. 885.

186 informant, Robert Tyhurst was able to map some 30 Chilcotin place names in the area. These include prominent peaks, prime resource areas, archeological sites, named ancestors’ dwelling areas, rock pile hunting blinds, and other localities.”1035

326. This view is consistent with Dr. Dinwoodie’s “preliminary research suggests that Tsilhqot’in ethnogeographic terminology (place names, geographical nomenclature and associated narratives is abundant and the nature of that terminology supports the inference that their occupation of the territory has been exclusive and long term.”1036

327. Tsilhqot’in people use a litany of Tsilhqot’in ethnogeographic terms with respect to the area in question:

(a) Dasiqox Biny, Dasiqox, Nadilin Yex, Jididzay Biny, Teztaun Biny, Bilugh Chugh Nanizwed, Nabas, Bisqox, Tsa ?Anats’elish, Nabas Dzelh, Gwetex Natel?as, Tsish T’ad, Ts’i Ts’elhts’ig, Nanats’eqish, ?Enach’ez Nadilin, Dzelh Ch’ed.1037

(b) Yanah Biny1038

(c) Dasiqox Tu Tl’az (29*), Ts’iselin (53*), Dasiqox ?Elghatish (173), Nabas Nists’I gha Te’eyidelts’ish (225), Dselh Tes Nentel?as (226), Dzelh Ghatish (242), Dediny Gunlin (245), Bilugh Chugh Nanizwed (257)1039

328. From the Tsilhqot’in perspective, this is Tsilhqot’in land:

(a) In the words of Lloyd Myers, “[t]hat is what I like about Red Mountain and Taylor Windfall; out there I can survive, the water is pure. It makes you feel good

1035 Plaintiff’s Argument, Volume 3, at para. 901; Transcript, May 12, 2006, Morley Eldridge Cross-Exam, 00040, 6-46. 1036 Plaintiff’s Argument, Volume 3, para. 902. 1037 Plaintiff’s Argument, Appendix 6, Map B; Plaintiff’s Argument, Volume 3, para. 904; Exhibit 0485, 0486 and 0487. 1038 Exhibit 0240, Brealey Report at 64 – “Little Fish Lake” (citing C. English’s ethnography); see also Exhibit 0450, Volume 49, Tab 42. 1039 Exhibit 485; Exhibit 486.

187 when you get back home from being out there. It revives you out there.”1040 Still speaking about Red Mountain and Taylor Windfall, “[i]t's nice country. You can't stay away from it. It's too good a country out there.”1041

(b) In the words of Christine Cooper: “I was born and spent the first years of my life in the area around Dasiqox Biny (Taseko Lake) and Dasiqox (Taseko River). My parents and also my mother’s sister Lewiza Quilt taught me that this is Tsilhqot’in land.”1042

3. SUMMARY AND CONCLUSION

329. Prior to, at, and well after sovereignty, the lands to the east of the Taseko Lakes supported both a resident population of Tsilhqot’in people centred in the lowlands of Nabas and about Beece Creek, Fish Lake, Onion Lake and Little Fish Lake. As well, as other Tsilhqot’ins including those centred in the Gunn Valley, Nemiah Valley and members of the “Stone Indians” moved into the mountainous areas to the south and east of the Taseko Lakes each year in the summer and fall to prepare for the winter by harvesting the abundant resources of this area. They did so via the ancestral trail network, which is still used today.

330. Thus, a coherent body of evidence from the historical record, expert opinion and oral history establishes that prior to, at and well after Crown sovereignty the Tsilhqot’in occupied the Taseko Lakes and the Claim Area lands to their east through regular use of these lands as hunting and gathering grounds, as well as for trapping and fishing.

1040 Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, para. 71. 1041 Transcript, May 30, 2005, Lloyd Myers Direct-Exam, 00013, 31-33. 1042 Exhibit 0398, Affidavit #1 of Christine Cooper, August 27, 2004, para. 16.

188