No. 90 0913 Victoria Registry
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
ROGER WILLIAM, on his own behalf and on behalf of all other members of the Xeni Gwet’in First Nations Government and on behalf of all other members of the Tsilhqot’in Nation PLAINTIFF
AND:
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, THE REGIONAL MANAGER OF THE CARIBOO FOREST REGION and THE ATTORNEY GENERAL OF CANADA
DEFENDANTS
ARGUMENT OF THE PLAINTIFF
APPENDIX 3: TSILHQOT’IN PATTERN OF CLAIM AREA OCCUPATION
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 Vancouver, 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 64 Appendix 3 Tsilhqot’in Pattern of Claim Area Occupation
1. Xi (Winter)...... 2 a. House Types...... 2 b. House Type and Site Selection ...... 8 c. Dwellings Constructed in and about the Claim Area...... 13 d. Bedding...... 17 e. Clothing...... 22 f. Transportation, Trapping and Hunting Technology ...... 26 g. Tsilhqot’in Schedule of Winter Land Use ...... 32 h. Winter Hunting and Trapping Grounds of the Claim Area ...... 33 (i) Tachelach’ed ...... 33 (a) Deer...... 33 (b) Mountain Sheep ...... 42 (c) Bear, Rabbits and Furbearers Generally...... 45 (ii) Northwest Trapline ...... 48 (iii) Eastern Trapline...... 51 (iv) Mountains of the Claim Area...... 52 i. Winter Fishing Grounds and Dried Foods...... 54 (i) Winter Fishing Grounds...... 55 (ii) Winter Food Storage and Dried Foods ...... 58 2. ?Eghulhts'en (Spring)...... 61 a. Spring Fishing Grounds ...... 61 (i) Fisheries Technology...... 66 b. Campgrounds ...... 70 c. Hunting Grounds...... 73 d. Gathering Grounds...... 76 e. Horse Grazing Grounds ...... 76 3. Early Dan (Summer)...... 78 a. Western Portion of Claim Area...... 81 b. Central Portion of Claim Area ...... 85 c. Eastern Portion of Claim Area...... 87 4. Late Dan (Summer) ...... 93 a. Late Summer Berry Harvesting ...... 94 b. Late Summer Plant Gathering...... 96 c. Late Summer Hunting...... 97 d. Late Summer Salmon Fishery...... 98 (i) Salmon Fishing Technology ...... 102 5. Dan ch’iz (Fall)...... 105 a. Western Portion of Claim Area...... 110 b. Central Portion of Claim Area ...... 114 c. Eastern Portion of Claim Area...... 119
1 1. XI (WINTER)
1. In Tsilhqot’in country, xi (winter) lasts November through March.1
a. House Types
2. As set out in the argument, the anthropological, archaeological, and lay witness evidence shows a long tradition of the construction of winter houses. The evidence of the types of dwellings and the siting of these dwellings offer more evidence of the pattern of Tsilhqot’in land use. Tsilhqot’ins constructed two main types of winter dwellings. The niyah qungh (or nenyexqungh) was a rectangular structure, slightly set into the ground, with a gabled roof. The lhiz qwen yex was a circular shaped structure dug well into the ground. Hence, the lhiz qwen yex is also known as a pithouse, underground house, subterranean house and kigli hole.2
3. Anthropologist Dr. Robert Lane described a basic Tsilhqot’in niyah qungh lodge in his doctoral thesis from the mid-twentieth century.3 Rectangular in shape, the size varied but was generally about 20 ft long by 15 ft wide. The floor was level but not excavated. Usually there were two log posts set into the ground, one at the front of the house and one at the back. A log ridge-pole was elevated and set across between the posts. On each side, at least two log poles were leaned inwards against this ridge-pole. Thus, the niyah qungh house frame was gabled.
4. According to Lane, whole or split logs were then laid horizontally up the sides of the house, almost to the top. This left an opening several feet wide the length of the house under the ridge-pole. The fire would be laid in the center of the house along the space under the ridge- pole. The ends were generally enclosed with vertical whole or split logs. At one end a space was left for a door, which was covered with an animal skin. The house was externally covered
1 Exhibit 0443, John Dewhirst Report, at 10, Table 1. 2 Exhibit 0177, Robert Tyhurst, The Chilcotin, An Ethnographic History, July 1984, Draft Ph.D. Dissertation, at 51; Transcript, May 25, 2006, Morley Eldridge Cross Exam, at 00039, 33 to 00040, 31. 3 Exhibit 0175, Robert Lane, Cultural Relations of the Chilcotin Indians of West Central British Columbia, 1953, Ph.D. Thesis, at 144 -146, 46.
2 with layers of grass, sod and bark. Lane also described a niyah qungh with cribbed lower walls, four end posts, dual ridge-poles and a deer hide door. 4
5. Archaeologist Dr. Richard Matson confirmed the niyah qungh as a type of Tsilhqot’in winter dwelling. A picture of such a Tsilhqot’in rectangular lodge, taken by Lane in 1951, was provided in Dr. Matson’s report.5 Archaeologically, key identifying features of niyah qungh sites include the rectangular form of its footprint, the associated projectile points and the elongated fire-pit pattern (the impression of which resembles the shell of a boat).6 Dr. Matson dated a Tsilhqot’in niyah qungh site in the Claim Area at Big Eagle Lake as of 1645-1660 A.D, at a minimum.7
6. The anthropological and archaeological evidence corroborate the evidence of Tsilhqot’in witnesses. Various Tsilhqot’in elders testified as to having seen or actually lived in niyah qungh (or nenyexqungh) variations during their younger days. Elizabeth Jeff discussed and gave graphic evidence of her great-grandmother’s niyah qungh (Ex. 0432, “A”).8 Francis Setah stayed in his uncle’s variation growing up (Ex. 0083).9 Minnie Charleyboy built a modern model niyah qungh (Exhibits 131 and 132).10
4 Exhibit 0175, Robert Lane, Cultural Relations of the Chilcotin Indians of West Central British Columbia, 1953, Ph.D. Thesis, at 145-146. 5 Exhibit 0145, Expert Report of Dr. R.G. Matson, December 2002, 3, para. 1, 8, Figure 2. 6 Transcript, May 10, 2004, Richard Matson Direct-Exam, at 00037, 31 to 00038, 39. 7 Exhibit 0145, Expert Report of Dr. R.G. Matson, December 2002, 3, para. 2 8 Exhibit 0432, Affidavit #2 of Elizabeth Jeff, para. 12. 9 Transcript, December 3, 2003, Francis Setah Direct Exam, 00036, 46 – 00040, 10; Exhibit 0083, Drawing of a Nenyexqungh dwelling 10 Transcript, March 3, 2004, Minnie Charleyboy Direct Exam at 00053, 3 to 00055, 20; and Transcript, March 4, 2004, Minnie Charleyboy Direct Exam, at 00011, 35 to 41.
3 niyah qungh
Exhibit 432, “A”
Exhibit 0083
4
7. Elder Mabel William watched her uncle build a niyah qungh and gave graphic evidence of its construction with chendi (lodgepole pine) logs, cribbed lower walls and insulation of @unlh (dry pine needles) and t@elexay (swampgrass), or alternately t’uz (bark), plugged with nent@e@ (moss).11 She lived in this niyah qungh with her uncle’s family while trapping, and later a niyah qungh in the Claim Area with her husband and in-laws when trapping and hunting. Ms. William gave evidence of the long fire pits within the niyah qungh that, after a while, came to look like a little boat in the ground.12 She further gave evidence of how Tsilhqot’ins historically felled trees with the tsi dek’ay (a sharp rock), split the logs with nelh (another form of sharp rock) and a hammer made from a section of tree, and secured the logs with ts’u ghed (spruce roots) or softened k’i (willow).13 Ms William, as did other Tsilhqot’in elders, provided oral history of the Tsilhqot’in living during winter in niyah qungh since the time of the ?esggidams (Tsilhqot’in ancestors).14
8. In his dissertation, anthropologist Dr. Lane also described the Tsilhqot’in pithouse, or lhiz qwen yex.15 The circular pit was four or five feet deep with a varying diameter. Four or six log centre posts, each about 14 to 16 ft tall, were set into the ground within the pit. Peeled logs were elevated and set across as the main rafters between the post tops, thus forming a square or hexagon. Many additional log rafters, with their butts placed at the edge of the pit, were then laid inwards onto the main rafters. The rafters were lashed to the central frame with spruce roots. The whole structure was covered with a layer of swamp grass or willow brush and,
11 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, paras. 3, 23-25. Transcript, March 3, 2004, Minnie Charleyboy Direct-Exam, at 00054, 2 – 00055, 20; Transcript, March 4, 2004, Minnie Charleyboy Direct-Exam, at 00004, 39 – 00007, 45. 12 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, paras. 24, 26, 31(i), 32; Transcript, March 4, 2004, Minnie Charleyboy Direct-Exam, at 00002, 12-23. 13 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, para. 27(i)-(iii); Transcript, March 4, 2004, Minnie Charleyboy Direct-Exam, at 00004, 39 - 00007, 45. 14 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, paras. 23, 27, 31; Exhibit 0432, Affidavit #2 of Elizabeth Jeff, November 13, 2004, para. 11; Transcript, March 3, 2004, Minnie Charleyboy Direct Exam, at 00053, 3 to 00055, 20; Transcript, March 4, 2004, Minnie Charleyboy Direct Exam, at 00003, 21 to 00011, 41 and 00045, 1 to 32; Transcript, March 5, 2004, Minnie Charleyboy Direct Exam, at 00036, 41 to 00037, 7; Transcript, March 9, 2004, Minnie Charleyboy Direct Exam, at 00024, 44 to 00026, 10; Transcript, March 29, 2004, Minnie Charleyboy Direct Exam, at 00031, 9 to 00034, 21. 15 Exhibit 0175, 1953, Cultural Relations of the Chilcotin Indians of West Central British Columbia, Ph.D. Thesis, Robert Lane, at 156-160, 46.
5 occasionally, a layer of bark. It was then covered in dirt. A central smoke hole remained above a fire pit and acted as an entrance. Lane also described variant forms of square pithouses.
9. Archaeologist Morley Eldridge, British Columbia’s witness, agreed with the view of anthropologist Robert Tyhurst that the Tsilhqot’in had a long tradition of building lhiz qwen yex, that is supported by the archaeological evidence and the statements of Tsilhqot’in elders. Mr. Eldridge agreed “that Tsilhqot’in people lived in circular pit houses at least as long ago as 1590 plus or minus 80 years AD.” 16 In adopting this opinion Mr. Eldridge, as did Mr. Tyhurst, relied upon the house pit identified with Tsilhqot’in artifacts - on the Chilko River on the edge of the Claim Area - as dating to approximately 1600 A.D.17 Mr. Eldridge’s opinion was also that the Tsilhqot’in built and used lhiz qwen yex well into the 1800s.18
10. This anthropological and archaeological evidence also corroborates the evidence of Tsilhqot’in witnesses. Various Tsilhqot’in elders gave oral history evidence regarding particular grandparents and other older relatives (from the late 1800s) as having lived in lhiz qwen yex.19 One of these elders, Mabel William, gave evidence of having being instructed by her grandmother Hanlhdzany, in situ on the Chilko River, as to how to construct a lhiz qwen yex.20 Ms. William gave graphic evidence in this regard, detailing: pit digging with deer antlers and flattened timber; a four post, square frame from chendi (pine) logs lashed with ts’u ghed (spruce roots); additional log rafters covered with t’uz (bark) and then dirt; a side door with a ladder made from poles lashed with ts’u ghed; and nists’i (deer) or @ebay (mountain goat) hides being
16 Transcript, May 25, 2006, Morley Eldridge Cross Exam, 00042, 19 to 22. 17 Transcript, May 25, 2006, Morley Eldridge Cross Exam, 00029, 46 to 21; 00039, 33 to 00042, 28 18 Transcript, May 25, 2006, Morley Eldridge Cross Exam, 00042, 29 to 44, “Tsilhqot’in did build pithouses prior to the middle of the 1800s.” 19 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, para. 42; Exhibit 0432, Affidavit #2 of Elizabeth Jeff, November 13, 2004, paras. 7-9; Transcript, March 2, 2004, Minnie Charleyboy Direct Exam, at 00053, 17 to 00054, 45; Transcript, March 4, 2004, Minnie Charleyboy Direct Exam, at 00011, 42 to 00014, 12 and 00015, 34 to 35 and 00043, 47 to 00046, 25; Transcript, March 1, 2004, Minnie Charleyboy Direct Exam, at 00011, 46 to 47 and 00026, 19 to 00027, 9; Transcript, March 3, 2004, Minnie Charleyboy Direct Exam, at 00019, 4 to 00020, 1; Mrs. Charleyboy explained that she was taught by the woman that raised her, Sayetsen, that Sayetsen’s father Qaqez born c.a. 1846 and her grandparents born c.a. 1806, lived in underground houses at Biny Gwechugh and Naghatalhchoz (Eagle Lake). Mrs. Charleyboy went on to explain that Sayetsen taught her that Nezulhtsin, born c.a. 1824, and his parents, Nisewhichish, born c.a. 1864, and his parents, and Elizabeth, born c.a. 1846, and her parents, all lived in the underground houses at Biny Gwechugh too. Exhibit 0441, Expert Report of John Dewhirst, at 31, para 7.0; Exhibit 0443, Expert Report of John Dewhirst, at 78, paras. 318-319; Exhibit 0443, Expert Report of John Dewhirst, at 71-71, paras 288-289; Exhibit 0441, Expert Report of John Dewhirst, at 33, para 7.2. 20 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, paras. 39-42, 47.
6 used to cover the doorway and, when the fire wasn’t burning, the central smoke hole.21 The oral history evidence of Tsilhqot’in witnesses was clear that lhiz qwen yex were used going back to the time of the ?esggidams (Tsilhqot’in ancestors).22 This is apparent, given that the Tsilhqot’in legends of Lhin Desch’osh and The Boy Who Was Kidnapped by the Owl involve lhiz qwen yex.23
11. In considering the niyah qungh and lhiz qwen yex as the two forms of Tsilhqot’in winter dwellings, it is clear that timber resources were of central importance to Tsilhqot’in life. Logs acted as posts, poles, rafters and walls in these houses. Logs were split with sections of trees used as hammers. Bark provided insulation. Spruce roots were used to lash the housing frame and roof together. Firewood was vital fuel needed to keep the houses warm. This point is well made in the work of anthropologist Robert Tyhurst, particularly in light of the prior discussion herein regarding the Tsilhqot’in transportation network as including wooden bridges and spruce bark canoes:
Plants supplying wood, bark, fiber, and fuel have always been important to the Chilcotin, …
Lodgepole pine, Douglas-fir, and spruce, the most common large coniferous trees, were the most important structural wood sources, being used as logs, in building both surface and subterranean houses, and in weirs and bridges, as well as in fish net and fishspear handles, drying racks, snowshoes, and skin drying frames. Spruce bark (as well as birch bark) was used to make light canoes and waterproof
21 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, para. 47 22 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, para. 49; Exhibit 0432, November 13, 2004, Affidavit #2 of Elizabeth Jeff, para. 7; Transcript, March 4, 2004, Minnie Charleyboy Direct-Exam, at 00012, 43 – 00013, 10. etc. 23 Exhibit 0167.009.002, Memoirs of the American Museum of Natural History, The Jessep North Pacific Expedition, Traditions of the Chilcotin Indians by Livingston Farrand, at 7; Exhibit 0432, November 13, 2004, Affidavit #2 of Elizabeth Jeff, paras 18, 96.
7 containers, the construction in both cases being somewhat similar in that spruce root was used to sew, and pine gum, to seal, the seams. The bark of all three coniferous species was probably used in construction bark shelters.
Lodgepole pine is an excellent source of logs for houses and other types of shelters; in pure stands, where it is sheltered from direct blasts of the wind it can groud relatively straight and tall.
12. On this point, it is noteworthy that in mid-1996 British Columbia’s Ministry of Forests acknowledged in writing that “the Tsilhqot’in Nation have traditionally used forest resources within their traditional territory”, “meaning that the people had used the forest for a variety of purposes prior to 1846.”24 Mark Hamm of the Forest Service testified that this short lived acknowledgement “could have included housing.”25 In fact, the Tsilhqot’in did use the forest for a variety of vital purposes, including timber for winter housing, prior to European contact and before, at and after Crown sovereignty. b. House Type and Site Selection
13. Tsilhqot’in house type and site selection when constructing a winter home was based on a number of factors, especially the availability of resources. Elder Mabel William stated in her affidavit about Tsilhqot’in winter housing:
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 onto her she said.26
Hanlhdzany taught me that her family would stay in lhiz qwen yex at Tl’egwated during the xi (winter) when it was really cold. She explained that here family
24 Exhibit 0536, Volume 1, Tab 16, April 26, 1996, Letter to Doug Gordon, Consultant for the Tsilhqot’in from Doug Caul, Manager, Negotiations, Aboriginal Affairs Branch, Ministry of Forests, HMTQ-2016277 at HMTQ- 2016280, under Traditional Use of Forest Resources, #1; Exhibit 0536, Volume 1, Tab 18, June 20, 1996, Ministry of Forests, Briefing Note approved by Mike Carlson, Regional Manager of the Cariboo Forest Region from Mark Hamm, Acting Aboriginal Affairs Manager, HMTQ-2016226, last para. 25 Transcript, May 9, 2006, Mark Hamm Cross Exam, 00018, 43 - 00022, 30. 26 Exhibit 0173, Affidavit #1 of Mabel Williams, July 23, 2004, para. 30(iv).
8 lived there because they had a lot of dried salmon stored there and could get the animals like nists’i (deer).27
14. Importantly, the fact is fishing, hunting and trapping grounds were critical considerations in winter house site selection. As touched on above, Tsilhqot’in oral history points to winter house siting based on the availability of lake fish through ice fishing28 or an abundance of dried salmon from the late summer river fisheries.29 Dewhirst confirms that after the fall seasons Tsilhqot’ins “move to wintering sites on lakes and rivers.”30 Further, Tsilhqot’in oral history is that Tsilhqot’ins since the ?esggidams (Tsilhqot’in ancestors) had survived at their winter houses by regularly procuring animals such as squirrel, rabbit, lynx, muskrat, beaver, bear and deer, largely with the snares, deadfall traps, bow and arrows, and snowshoes.31 Dewhirst supports this, stating that Tsilhqot’ins have “hunting ground[s], fishing ground[s] and other resource procurement areas, to which families move in a seasonal round throughout the year.”32 Dr. Lane (1954) also noted that house sites were selected with a view to convenient fishing and hunting grounds.”33 In terms of “hunting”, Lane noted that the most important animals included deer, black bears, beaver, muskrats and rabbits. The many “hunting techniques” of the Tsilhqot’in included “snares and traps [as] the most important means of obtaining both animals and birds”, including “traps… of the deadfall variety.”34 Thus, it is clear that Lane included trapping areas when stating that convenient “hunting grounds” were a house siting consideration.
15. Of like importance is the fact that proximity to others also influenced Tsilhqot’in winter house site choice. Dr. Lane confirms winter houses were built close to one another.35 Elder Mabel William’s oral history evidence is that Tsilhqot’ins had their lhiz qwen yex within running
27 Exhibit 0173, Affidavit #1 of Mabel Williams, July 23, 2004, para. 42. 28 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, para. 31(iii). 29 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, paras. 40, 42, 50; Exhibit 0432, Affidavit #2 of Elizabeth Jeff, November 13, 2004, paras. 7, 10, 13 30 Exhibit 0443, Expert Report of John Dewhirst, at 10, Table 1 re “Fall”. 31 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, paras. 30(iv), 42; Exhibit 0158, Affidavit #2 of Francis William, at para. 37; Transcript, November 1, 2004, Norman George Setah Direct-Exam, at 00021, 25-29 32 Exhibit 0443, Expert Report of John Dewhirst, at 11, para. 31. 33 Exhibit 0175, 1953, Cultural Relations of the Chilcotin Indians of West Central British Columbia, Ph.D. Thesis, Robert Lane, 47, para. 1. 34 Exhibit 0175, 1953, Cultural Relations of the Chilcotin Indians of West Central British Columbia, Ph.D. Thesis, Robert Lane, 44. 35 Exhibit 0176, 1981, Excerpt from Handbook of North American Indians, Vol. 7, The Subarctic, Chilcotin, by Robert Lane, 406, under ‘Annual Round’.
9 or walking distances, in case of needing help or wanting to socialize, with travel being conducted on ?ash (snowshoe).36 The historical record is likewise consistent. The Chilcotin Post census of 1838 identifies four villages along the Tsilhqox (Chilko River).37 In 1839, the Chilcotin Post Journal records that a Hudson’s Bay Company fur trader visited the Tsilhqot’in village of Tsilangh,38 only to become at odds with a Tsilhqot’in man who scampered off into the bush when the trader leveled his gun upon him. The trader records that: “At this moment, my Camp was surrounded by at least a hundred Indians, who seemed disposed to take the Yg. man’s part, and approved his conduct.”39
16. Elder Norman George Setah’s testified as to the security aspect of proximately positioning lhiz qwen yex, in a manner that assisted in defending Tsilhqot’in territory. Mr. Setah mapped numerous lhiz qwen yex villages between Gex Nats’enighilt’i (at Stone Reserve) and Nen Nalmelh (Bald Mountain) near the foot of “lookouts” or vantage points.40 He explained a system of defense wherein Tsilhqot’in villages along the Chilko River were close enough to communicate, through the use of smoke signals, hand signals across rivers, runners and scouts, in times of trouble. Mr. Setah further described war stories that resulted in the Tsilhqot’in villages between Gwetsilh (Siwash Flats) and Nen Nalmelh mustering a force sufficient to kill their attackers.41
36 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, para. 43. 37 Exhibit 0443, Expert Report of John Dewhirst, at 126, para. 88. 38 Exhibit 0443, Expert Report of John Dewhirst, at 19, paras. 59 to 63; Exhibit 0538, Expert Report of Morley Eldridge, at paras. 43-44; Transcript, May 12, 2006, Morley Eldridge Cross Examination, at 00085, 22 to 00086, 13. 39 Exhibit 0156-1839/05/03.001, Chilcotin Post Journal 1839-40, at p.2138089-90. 40 Transcript, October 22, 2004, Norman George Setah Direct Examination, at 00030, 24 to 00032, 26 and at 00035, 3 to 19; Transcript, December 1, 2004, Norman George Setah Direct Examination, at 00032, 40 to 00040,24; Transcript, December 6, 2004, Norman George Setah Direct Examination, at 00004, 2 to 00008, 17 and at 00012, 26 to 00017, 9 and at 00018, 15 to 00022, 25 and at 00023, 30 to 00029, 47; Transcript, December 7, 2004, Norman George Setah Direct Examination, at 00015, 34 to 00016, 31 and at 00025, 13 to 00026, 2; Exhibit 217DIG, Norman George Setah Digitized Evidence Map, at KF, KG, KH, KI, KJ, KK, KL, KM and KN; Exhibit 217LEG, Map Legend, at KF, KG, KH, KI, KJ, KK, KL, KM and KN. 41 Transcript, October 22, 2004, Norman George Setah Direct Examination, at 00030, 24 to 00032, 26; 00035, 3 to 19; Transcript, December 1, 2004, Norman George Setah Direct Examination, at 00032, 40 to 00040, 24; Transcript, December 6, 2004, Norman George Setah Direct Examination, at 00004, 2 to 00008, 17 and at 00012, 26 to 00017, 9 and at 00018, 15 to 00022, 25 and at 00023, 30 to 00029, 47; Transcript, December 7, 2004, Norman George Setah Direct Examination, at 00015, 34 to 00016, 31 and at 00025, 13 to 00026, 2; Exhibit 217DIG, Norman George Setah Digitized Evidence Map, at KF, KG, KH, KI, KJ, KK, KL, KM and KN; Exhibit 217LEG, Map Legend, at KF, KG, KH, KI, KJ, KK, KL, KM and KN.
10 17. Fresh water is always a consideration. According to Norman George Setah, Tsilhqot’in lhiz qwen yex were located near fresh water springs, where the water does not freeze in the winter, and along the Tsilhqox (Chilko River).42 Mabel William’s oral history is that Tsilhqot’in people would use baskets to pack their water back to their winter dwelling. Particularly in the qats’ay, a basket woven from ts’u ghed (spruce roots) that is watertight once soaked. 43 Tyhurst corroborates this, noting that “[o]f the plant fibres, spruce was the most important in basket- making”, and “spruce root baskets could be tightly and finely enough woven to hold water without the application of pitch.”44 Elder Francis Setah also testified as to the ongoing ancestral technology of this watertight basket, and through his evidence provided a sketch of his grandmother’s qats’ay (see Ex. 48).45 Minnie Charleyboy explained that as a child she carried water to her family niyah qungh at Naghatalhchoz (Eagle Lake) in a bucket; however the woman who raised her, Sayetsen, and the Tsilhqot’in ancestors, carried water or berries in spruce root baskets that were anchored to the forehead with a deer hide strap.46 Mrs.Charleyboy also explained that her family retrieved the water from Naghatalhchoz (Eagle Lake), ?Edibiny and a fresh water spring on the opposite shore of ?Edibiny.47 Dr. Nancy Turner, respected ethnobotanist, described such basketry as unique and very identifiable as Tsilhqot’in.48 Indeed, they are of legendary significance.49
18. Firewood and warmth were also factors to consider. Elder Mabel William gave evidence of Tsilhqot’ins historically packing firewood by tying a load with a leather strap. Another hide strap was then used to carry the load slung onto the back or around the forehead.50 Per Dr. Lane, niyah qungh were warm with a constant fire and thus required a location with a
42 Transcript, December 1, 2004, Norman George Setah Direct Examination, at 00002, 40 to 000032; Transcript, December 8, 2004, Norman George Setah Direct Examination, at 00016, 8 to 43. 43 Exhibit 0173, Affidavit #1 of Mabel William, July 23, para. 30(i). 44 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, p. 50, 116. 45 Exhibit 0048, Drawing of qats’ay. 46 Transcript, March 4, 2004, Minnie Charleyboy Direct Examination, at 00017, 29 to 00019, 43. 47 Transcript, March 4, 2004, Minnie Charleyboy Direct Examination, at 00017, 29 to 00018, 38. 48 Transcript, November 19, 2004, Dr. Nancy Turner, 00064, 27 to 32. (Mentions two types of baskets unique to Tsilhqo’tin). 49 Exhibit 0431, Affidavit #1 of Elizabeth Jeff, October 8, 2004, paras. 78-80; Exhibit 0167.009.002, Memoirs of the American Museum of Natural History, The Jessep North Pacific Expedition, “Traditions of the Chilcotin Indians” by Livingston Farrand, at 43, “then started to fetch water, but, leaving the water-basket at the stream”; see also Exhibit 0008, “Traditions of the Chilcotin Indians” by Livingston Farrand, at 43 (same document). 50 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, para. 30(iii).
11 greater supply of firewood than the lhiz qwen yex.51 Lhiz qwen yex were so warm as to allow times when fires could be dampened and the smoke holes covered to maintain heat. This is supported by Dr. Matson’s evidence that the above ground niyah qungh lodges were not as “thermodynamically efficient” as the underground lhiz qwen yex houses. 52 Per Ms. William, this also explains why niyah qungh were not sited waterside but rather set back in the adjacent forest. As Lane wrote with respect to house sites, “usually they were near lakes, but not actually on the shores.”53
19. Terrain was another dimension to house type and site selection for winter. Morley Eldridge, anthropologist and archaeologist, adopted the opinion of anthropologist Robert Tyhurst that the niyah qungh was probably used by those Tsilhqot’in “who wintered in areas where the ground was difficult to excavate because of compaction, or where excavation would have dipped below the level of the water table.”54 This point corroborates the oral history testimony of Chief Ervin Charleboy that lhiz qwen yex were built up along the Chilko River, but further than that the ability to build these underground houses as compared to the gabled niyah qungh depended on the terrain.55
20. Finally, sheer personal preference was apparently a factor determining choice of winter house type. In this doctoral thesis, Lane noted that although the niyah qungh required a greater amount of firewood labouring, it “was considered to be an excellent shelter [in part because] the opening extending the length of the ridge pole provided ample ventilation and allowed light to enter." The lhiz qwen yex, “was less comfortable…[as] ventilation was poor. They were smoky, and, in thaws, damp and uncomfortable.” 56 Moreover, unlike the niyah qungh, the lhiz qwen yex involved digging a pit and installing usually a greater number of posts. This was no light task, as the oral history from elder Mabel William’s grandmother makes clear57:
51 Exhibit 0175, 1953, Cultural Relations of the Chilcotin Indians of West Central British Columbia, Ph.D. Thesis, Robert Lane, 46. 52 Transcript, May 10, 2004, Dr. R.G. Matson, Direct-Exam, 00038, 4 to 24. 53 Exhibit 0175, 1953, Cultural Relations of the Chilcotin Indians of West Central British Columbia, Ph.D. Thesis, Robert Lane, 47. 54 Transcript, May 25, 2006, Morley Elderidge Cross Exam, 00041, 44 to 00042, 19. 55 Transcript, April 18, 2005. Chief Ervin Charleyboy Direct Exam, 00031, 29 to 47. 56 Exhibit 0175, 1953, Cultural Relations of the Chilcotin Indians of West Central British Columbia, Ph.D. Thesis, Robert Lane, 46. 57 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, para. 48.
12 Lhiz qwen yex and niyah qungh are hard to build. People wouldn’t just build one and let it go. They used it over and over, winter after winter. This was Hanlhdzany’s teaching.
c. Dwellings Constructed in and about the Claim Area
21. There is an abundance of Tsilhqot’in lhiz qwen yex (underground house) and niyah qungh (surface lodge) sites in and about the Claim Area lands. Many of these Tsilhqot’in homes are identified in the historical record, including at its outset with fur trade documents. Numerous more have been unearthed through the archaeological research of the last 30 years. All of this evidence corroborates that of Tsilhqot’in witnesses, who in turn have identified many more aged Tsilhqot’in lhiz qwen yex and niyah qungh, as well as a the succeeding network of Tsilhqot’in winter cabins.
22. The historical record of Tsilhqot’in winter house sites begins in 1822 with Hudson Bay Company trader George McDougall, the first non-aboriginal person to actually enter Tsilhqot’in territory. Dr. Brealey, human geographer and cartographer, gave evidence that in January of that year McDougall traveled from Fort Alexandria and fell upon the Chilcotin River at Alexis Creek. Thereafter, McDougall traveled upriver at least to the confluence of the Chilko and Chilcotin Rivers, and then up the Chilko to Siwash Flats.58 McDougall met Tsilhqot’in families in “ground Lodges” and records the following information about Chilko Lake and Chilko River59:
they say there are 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, …
23. With respect to McDougall’s “6 Large Ground Lodges about the Lake containing 53 Families”, the evidence establishes that these winter dwelling sites include those about Tsilhqox Biny (Chilko Lake)60 - in the north at the village of Gwedats’ish, in the west at Ch’a Biny61, at in the east at Xeni (Nemiah Valley). Moreover, Tsilhqot’in oral history with the anthropological
58 Exhibit 0240, Expert Report of Dr. Ken Brealey, at 240, 25-26. 59 Exhibit 0240, Expert Report of Dr. Ken Brealey, at 25. 60 See Appendix 2, paras. 39, 42 to 43. 61 See Appendix 2, paras. 44 to 46.
13 and ethnographic record establish centuries old Tsilhqot’in winter housing in Xeni62 on Xeni Biny (Konni Lake) 63, particularly at Tl’ebayi64, ?Etan Ghintil65, Naghataneqed66 and Tl’etsinged67. British Columbia’s first official anthropologist, Wilson Duff, plotted a Tsilhqot’in population of 100 near the west end of the Nemiah Valley in 1835.68
24. Dr. Brealey identified Alexis Creek as being where McDougall’s “25 Lodges” of the Tsilhqot’in were at the place where he “[f]ell upon the River”.69 The Tsilhqot’in name for Alexis Creek is Tsih Gulhdzinqox. In Tsilhqot’in the entrance to Chilko Lake is at the narrows of Gwedats’ish.70 Tsilhqot’in oral history, the historical record, and expert opinion all establish the fact that the Tsilhqot’in had lhiz qwen yex along the Tsilhqox71 from the village of Gwedats’ish down to Tish Gulhzinqox and beyond to at least Nen Nalmelh (Bald Mountain). These Tsilhqot’in villages and house sites are at Naghelilhchiny72, Sul Gunlin73, Biny Gwechugh74, Gwedelden T’ay75, Biny Gwetsel76, Tsi T’is Gunlin77, Tseman Ts’ezch’i78, Nusay
62 See Appendix 2, paras. 47 to 75 and 95 to 97. 63 See Appendix 2, paras. 83 to 86; Transcript, March 15, 2005, Gilbert Solomon Direct Exam, at 00037, 30 to 38. 64 See Appendix 2 paras. 76 to 82. 65 See Appendix 2 paras. 83 to 86; Transcript, March 15, 2005, Gilbert Solomon Direct Exam, at 00037, 30 to 38; Transcript, March 17, 2005, Gilbert Solomon Direct Exam, at 00043, 37 to 43. 66 See Appendix 2 paras. 87 to 94; Transcript, March 15, 2005, Gilbert Solomon Direct Exam, at 00042, 13 to 25; Transcript, March 17, 2005, Gilbert Solomon Direct Exam, at 00048, 9 to 28. 67 See Appendix 2 paras. 83 to 86. 68 Exhibit 0265-1965/00/00.001 (Untitled map of Aboriginal population distribution, 1965, Wilson Duff, An Indian History of British Columbia, Map 3. 69 Exhibit 0240, Expert Report of Dr. Ken Brealey, at 50 70 See Appendix 2, paras. 40 to 41; Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, para. 50(vi). See also Exhibit 0443, Expert Report of John Dewhirst, at 20, paras. 64 to 84; See also Transcript, March 4, 2004, Minnie Charleyboy Direct Exam, at 00016, 11 to 00017, 4; Transcript, March 9, 2004, Minnie Charleyboy Direct Exam, at 00024, 44 to 00026, 10; Transcript, March 15, 2005, Gilbert Solomon Direct Exam, at 00038, 21 to 26 and at 00051, 7 to 16 and 00054, 44 to 46. 71 Exhibit 0443, Expert Report of John Dewhirst, paras. 64 to 84 and 156 to 202. 72 Transcript, March 4, 2004, Minnie Charleyboy Direct Exam, at 00007, 46 to 00008, 13 and at 00016, 11 to 00017, 4. 73 See Appendix 2, paras. 38; Transcript, March 9, 2004, Minnie Charleyboy Direct Exam, at 00017, 33 to 00022, 34. 74See Appendix 2, paras. 35 to 37; See also Exhibit 0443, Expert Report of John Dewhirst, at 20, paras. 64 to 84; See also Transcript, March 2, 2004, Minnie Charleyboy Direct Exam, at 00053, 17 to 00054, 45; Transcript, March 4, 2004, Minnie Charleyboy Direct Exam, at 00016, 11 to 00017, 4; Transcript, March 11, 2004, Minnie Charleyboy Direct Exam, at 00008, 12 to 00009, 5; Transcript, March 15, 2005, Gilbert Solomon Direct Exam, at 00038, 37 to 45; Transcript, March 16, 2005, Gilbert Solomon Direct Exam, at 00009, 38 to 46 and at 00010, 18 to 13. 75 See Appendix 2, paras. 34. 76 See Appendix 2, paras. 33; Transcript, March 8, 2004, Minnie Charleyboy Direct Exam, at 00039, 27 to 00042, 6; Transcript, March 15, 2005, Gilbert Solomon Direct Exam, at 00039, 2 to 5; Transcript, March 16, 2005, Gilbert Solomon Direct Exam, at 00022, 35 to 43.
14 8 1 82 84 Bighinlin'", Tsi Lhizbed'", Tsilangh , (Dan Qi Yex) Tachi , Tl'egwatcd't', ?Elhixidlin , 85 87 Gwetsilh , Tish Gulhdzingox, Gex Nats'enighilt'i (Stone resever)"; Tsiqi Ch'osh , Dagish 89 Benen'", and Nen Nalmelh .
25. Various other aged Tsilhgot'in lhig gwen yex and niyah gungh sites within Tachelach'ed (the lands between the Tsilhgox and Dasigox rivers) are identified in the evidence at places with 9 1 92 Tsilhgot'in names and significance.I". These places are Ts'u Talh?ad , Ts'uni?ad , ?Elhghatish
77 See Appendix 2, paras. 26 to 33; Transcript, March 15,2005, Gilbert Solomon Direct Exam, at 00039, 7 to 13; Transcript, April 5, 2005, Gilbert Solomon Direct Exam, at 00026, 35 to 40. 78 See Appendix 2, paras. 25; Transcript, March 15,2005, Gilbert Solomon Direct Exam, at 00039, 16 to 38; Transcript, April 5, 2005, Gilbert Solomon Direct Exam, at 00028, 16 to 27. 79 See Appendix 2, paras. 22 to 25; Transcript, March 8, 2004, Minnie Charleyboy Direct Exam, at 00039, 27 to 00042,6. ao See Appendix 2, para. 21. 81 See Appendix 2, paras. 19 to 20; See also Exhibit 0443, Expert Report ofJohn Dewhirst, at 19, paras. 59 to 63 and Exhibit 0538, Expert Report ofMorley Eldridge, at paras. 43-44; Transcript, May 12, 2006, Morley Eldridge Cross Examination, at 00085, 22 to 00086, 13. 82 See Appendix 2, para. 18. "See Appendix 2, paras. 12 to 17; See also Exhibit 0443, Expert Report ofJohn Dewhirst, at 18, paras. 53 to 58; Transcript, March 15,2005, Gilbert Solomon Direct Exam, at 00040,14 to 44; Transcript, March 16,2005, Gilbert Solomon Direct Exam, at 00010, 38 to 47; Transcript, April 5, 2005, Gilbert Solomon Direct Exam, at 00019,5 to 10. 84 See Appendix 2, paras. II; Transcript, March 15,2005, Gilbert Solomon Direct Exam, at 00040, 6 to 13. 85 See Appendix 2, paras. 7 to 10; See also Exhibit 0443, Expert Report ofJohn Dewhirst, at 25, paras. 85 to 88; Transcript, April 5, 2005, Gilbert Solomon Direct Exam, at 00011,14 to 38. 86 Transcript, December 6, 2004, Norman George Setah Direct Exam, at 00004, 2 to 00006, 15 and 00008, 31 to 00011,23 and at 00012,13 to 00013,14 and at 00020,17 to 26. 87 Transcript, December 6,2004, Norman George Setah Direct Exam, at 00004, 2 to 00006, 15 and 00008, 31 to 000 II, 23 and at 00012, 13 to 00013, 14 and at 00020, 17 to 26; Transcript, December 8, 2004, Norman George Setah Direct Exam, at 00042, 28 to 00043, 10. sa Transcript, December 6, 2004, Norman George Setah Direct Exam, at 00028,8 to 00030, 12. 89 Transcript, December 1,2004, Norman George Setah Direct Exam, at 00037, 40 to 00039,12; Transcript, December 7, 2004, Norman George Setah Direct Exam, at 00012,3 to 00013,5 and at 00013, 26 to 44; Transcript, December 6, 2004, Norman George Setah Direct Exam, at 00004, 2 to 00006, 15 and 00008, 31 to 00011, 23 and at 00012,13 to 00013,14; Transcript, December 8, 2004, Norman George Setah Direct Exam, at 00042, 28 to 00043, 10. 90 See Appendix 2, paras. 98 to 132. 91 See Appendix 2, paras. 122 to 127; Transcript, March 4, 2004, Minnie Charleyboy Direct Exam, at 00010, 3 to 00011,34. Exhibit 0013, Affidavit #1 of UbiII Lulua, at para. 52 and Schedule I; Transcript, April 2, 2004, Ubill Lulua Direct Exam, at 00016, 25 to 00017, I; Transcript, April 14, 2004, Ubill Lulua Cross Exam, at 00049, 5 to 00051,21; Exhibit 0144k DIG, Ubill Lulua Digitized Evidence Map, R-I; Exhibit 0144k LEG, Map Legend, R-1. 92 See Appendix 2, paras. 122 to 127; Exhibit 0013, Affidavit #1 of UbiII Lulua, at para. 51 and Schedule I; Transcript, April 2, 2004, UbiII Lulua Direct Exam, at 00015, 45 to 00016, 24; Transcript, April 14, 2004, Ubill Lulua Cross Exam, at 00049, 5 to 00051, 21; Exhibit 0144k DIG, Ubill Lulua Digitized Evidence Map, Q-I; Exhibit 0144k LEG, Map Legend, Q-1; Transcript, April 15, 2004, Ubill Lulua Redirect Exam, at 00049, II to 34; Transcript, November 3, 2004, Norman George Setah Direct Exam, at 00017, 29 to 00019, 15; Exhibit 0367, Affidavit #2 ofGilbert Solomon, at para. 70; Transcript, March 15,2005, Gilbert Solomon Direct Exam, at 00036, 39 to 42; Transcript, March 16,2005, Gilbert Solomon Direct Exam, at 00044, 35 to 45.
15 Biny (Vedan Laker, ?Elhghatish94, Nebavelhnaxnenelhvelqelh'", Tsanlgen'", Natasawed Biny'", Nu Natasavax'", and Benchuny Biny'",
26. The Tsilhqot'in, documentary and expert evidence at trial also establish pre -1846 Tsilhqot'in winter residences at the lakes ofTatl'ah (Tatla) 100, Lhuy Nachaswengulin (Little Eagle) 101, Gwedzin (Cochin) 102 and Naghatalhchoz (Big Eagle or Choelquoit) 103 in the northwest Claim Area. 104 The Stone Tsilhqot'ins ofChiefKeogh, head quartered at Tatl'ah Biny, were stationed by these Iakes'". The record also establishes pre-I 846 winter dwellings on Talhiqox Biny (Tatlayoko Lake)106, both in the north and the east. 107 Ofcourse, Dr. Matson's archaeology dates a niyah qungh site at Naghatalchoz to 1645-1660 A.D. 108
93 Transcript, March 16,2005, Gilbert Solomon Direct Exam, at 00054, 32 to 00057, 13. 94 See Appendix 2, paras. 128 to 131; Transcript, November 18,2004, Norman George Setah Direct Exam, at 00036,27 to 00037, 9; Transcript, March 17,2005, Gilbert Solomon Direct Exam, at 00002, 2 to 5. 95 See Appendix 2, paras. 116 to 121. 96 See Appendix 2, para. 132. Transcript, March 15,2005, Gilbert Solomon Direct Exam, at 00041, 44 to 00042, 9; Transcript, March 17,2005, Gilbert Solomon Direct Exam, at 00007,6 to 10. 97 See Appendix 2, paras. 113 to 115. 98 See Appendix 2, paras. 111 to 112. 99 See Appendix 2, paras. 98 to 100. 100 Transcript, March 15,2005, Gilbert Solomon Direct Exam, at 00041,36 to 39; Transcript, April 5, 2005, Gilbert Solomon Direct Exam, at 00032, 3 to 6. 101 See Appendix 2, para. 133; Transcript, March 22, 2004, Minnie Charleyboy Direct Exam, at 00006, 27 to 00008,44. According to Minnie Charleyboy some ofthe first baptisms in Tsilhqot'in territory took place between Lhuy Nachesgwengulin and Talla Lake. Her great grandmother Annie was baptized there along with ?Elowa, a Tsilhiqot'in who lived at Lhuy Nachesgwengulin. 102 See Appendix 2, para. 134 to 141. 103 See Appendix 2, para. 142 to 163; 104 Exhibit 0443, Expert Report ofJohn Dewhirst, August 8, 2005, paras. 275-276 105 Exhibit 0156-1872/11129.001 at p. 2000321, Letter from Marcus Smith to Walkem Nov 29, 1872: "On the northwest side ofTatla lake - and near midway of its length - which is about 20 miles - are the headquarters of Keogh, the Chiefofthe Stone Indians residing on the margin ofthe 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 Talla to the headwaters ofthe Chilco river."; Exhibit 0443, Expert Report ofJohn Dewhirst, at 90·92, paras. 366 to 375; Transcript, March 15,2005, Gilbert Solomon Direct Exam, at 00041, 36 to 39; Transcript, April 5, 2005, Gilbert Solomon Direct Exam, at 00032, 3 to 6. 106 See Appendix 2, para. 164 to 166; Transcript, March 5, 2004, Minnie Charleyboy Direct Exam, at 00005, 26 to 00007, 35. According to Minnie Charleyboy birch bark canoes were used to transport animal hides from the south end ofTatlayoko Lake to where Tsilhqot'ins lived at the north end ofTallayoko Lake; Transcript, December 1, 2003, Francis Setah Direct Exam, 00032, 42 to 00035, 6; 00036,20 to 00038, 46; 00041,35 to 00042, I; Transcript, December 2,2003, Francis Setah Direct Exam, 00002, 4 to 00003, 22; 00004, 34 to 40. According to Francis Setah, Tsilhqot'in ancestors obtained deer, marmot and goat from the mountains south ofTatlayoko Lake and packed them back to the north end ofTallayoko both by foot and by spruce bark boat. 107 Exhibit 0443, Expert Report ofJohn Dewhirst, at 58-59, paras. 227 - 232. 108 Exhibit 0145, Expert Report ofDr. R.G. Matson, at 3, para. 2.
16 27. Further, the nascent archaeology in particular provides evidence of aged Tsilhqot’in winter homes at Teztaun Biny (Fish Lake) 109, Yuhitah (Yohetta Valley) 110 and Yuhitah Biny (Yohetta Lake)111. d. Bedding
28. The evidence of winter bedding and clothing demonstrates the Tsilhqot’in winter pattern of land use in the Claim Area. Tsilhqot’in bedding was well suited for winter, mountain and plateau life. Blankets included those made from the fur pelts of various animals such as gex (rabbit or snowshoe hare) and dediny (marmot, a.k.a. groundhog). Mattresses were from the furred hides of large game including @ebay (mountain goat), debi (mountain sheep), nists’i (deer) and, more recently, moose.
29. The Tsilhqot’in snared gex (rabbit, or snowshoe hare), particularly in winter when its fur was long and white. Numerous Tsilhqot’in elders testified as to their families having used woven rabbit blankets.112 Mabel William’s grandmother, Hanlhdzany, wove one for use the day her son was born.113 Elder Francis Setah recounted, with diagrams, the process used by his grandmother Daldod to weave a rabbit blanket when he was growing up. One blanket required about 40 skins. Making the blanket was an elaborate process that involved cutting the rabbit pelts into strips, twisting each strip so the fur was always on the outside, and then weaving the
109 See Appendix 2, para. 174 to 176; Transcript, March 15, 2005, Gilbert Solomon Direct Exam, at 00038, 10 to 11; and 00040, 41 to 00043, 10; Transcript, March 17, 2005, Gilbert Solomon Direct Exam, at 00017, 18 to 00020, 44; Exhibit 0240, Expert Report of Dr. Ken Brealey, p. 59, fn 115 and Map 5A. “This was an important fishing camp. Archaeological excavations have exposed 18 roasting and or pit depressions in this area.” 110 See Appendix 2, paras.171 to 174; Transcript, February 17, 2005, Joseph William Direct Exam, at 00016, 3 to 36. According to Joseph William, Chief Sil Canim’s wife, Jeanie, taught him that Tsilhqot’in ancestors lived in underground houses at the end of Gunn Valley near Fishem Lake: Transcript, February 17, 2005, Joseph William Direct Exam, 00015, 47 – 00016, 36; See also: Transcript, March 15, 2005, Gilbert Solomon Direct Exam, at 00043, 7 to 45; Transcript, March 17, 2005, Gilbert Solomon Direct Exam, at 00027, 29 to 00030, 17. According to Gilbert Solomon, underground houses exist in Gunn Valley near Lastman Lake, Tuzcha Lake and near Fishem Lake and that Tsilhqot’in ancestors stayed in those areas. See also Exhibit 0240, Expert Report of Dr. Ken Brealey, p. 59, fn 116, see 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”; p. 78, fn 298, “150 to 2000 depressions”; Map 5A. 111 See Appendix 2, paras.171 to 174. See also Exhibit 0240, Expert Report of Dr. Ken Brealey, p 77, 78, fn 297, “House and roasting pit depressions found here… suggest this was one of the more important encampments in the Yohetta Valley”; Map 5A. 112 Transcript, December 3, 2003, Francis Setah Direct-Exam, at 00010, 9-35; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 78. 113 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, para. 30(iv)
17 skin strips onto the bisinchen (a wooden frame for use with hides). 114 The result was a rabbit pelt blanket with fur on both sides.
Exhibit 0079
114 Transcript, December 3, 2003, Francis Setah Direct-Exam, at 00013, 17 – 00015, 35; Exhibit 0079, Drawing of rabbit fur stripping process, as described by Francis Setah; Exhibit 0080, Drawing of the twisting of rabbit fur strips, as described by Francis Setah; Exhibit 0081; Drawing of the weaving process on a bisinchen to make a rabbit fur blanket, as described by Francis Setah; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 78.
18 Exhibit 0080
bisinchen – Exhibit 0081
30. Tsilhqot’in oral history indicates that all Tsilhqot’in families have had rabbit blankets, for use as bedding and robes, through the generations going back to the sadanx.115 This is confirmed by the anthropology and historical record.116 Indeed, in November of 1845 when Father Nobili ventured to the Tsilhqot’in, this is exactly what he saw, stating “they only wore on their shoulders a sort of blanket made of many rabbit skins joined together, ….117
31. Tsilhqot’in use of dediny (marmot, a.k.a. groundhog) blankets is also well established in the evidence. Various Tsilhqot’in witness have used marmot blankets or seen them used by
115 Transcript, December 3, 2003, Francis Setah Direct-Exam, at 00009, 32 – 00010, 8; 00017, 38-45; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 76. 116 Transcript, December 6, 2004, Norman George Setah, Direct-Exam, at 00001, 27 – 00004, 1; Transcript, March 5, 2004, Minnie Charleyboy, Direct-Exam, at 00030, 9-16. Exhibit 0175, Dissertation of Robert Lane, p. 47, 50-51; Exhibit 0177, Draft Dissertation of Robert Tyhurst, p. 50; Ex 0156-1859/05/00.001 at p. 55, Dunlevy: From the Diaries of Alex P. McInnes by Edith Beeson 117Ex 0156-1845/11/30.001 at p. 2195801, Father Nobili’s Letters, 1845.
19 Tsilhqot’ins.118 Elder Ubill Hunlin used one when hunting in the mountains (in the fall at Ts’il?os) with ?Eskish, his wife’s grandfather.119 It took about 30 marmots skins to make a blanket. The pelts were cut into squares and sewn at the edges to make a blanket (e.g. 5 x 6 marmot pelts).120 Ancestrally, Tsilhqot’ins used sharps sticks, antlers or bones as awls and sewed hides together with ts’ax (deer back sinew).121
Dediny Blanket - Exhibit 0087
118 Transcript, December 4, 2003, Francis Setah Direct-Exam, at 00003, 18 – 00004, 45; Transcript, March 7, 2005, Ubill Hunlin, Direct-Exam, at 00042, 41 – 00043, 19; 00048, 16-29; Transcript, March 8, 2005, Ubill Hunlin, Direct-Exam, at 00003, 7-9; 00008, 20-25; Transcript, November 18, 2004, Norman George Setah, Direct- Exam, at 00030, 8-34; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at paras. 76, 78-80; Exhibit 0432, Affidavit #2 of Elizabth Jeff, November 13, 2004, at para. 26. 119 Transcript, March 7, 2005, Ubill Hunlin Direct Exam, 00042, 41 to 00043, 19. 120 Transcript, December 4, 2003, Francis Setah Direct-Exam, at 00003, 18 – 00004, 45. 121 Transcript, November 18, 2003, Francis Setah Direct-Exam, at 00026, 30 - 00027, 30. Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 80; Exhibit 0431, Affidavit #1 of Elizabeth Jeff, October 8, 2004, at para. 62. Also discussed in the legend of the woman who became a bear: Exhibit 0167.009.002, Memoirs of the American Museum of Natural History, The Jessep North Pacific Expedition, Traditions of the Chilcotin Indians by Livingston Farrand, at 21 (Exhibit 0431, Affidavit #1 of Elizabeth Jeff, October 8, 2004, para. 62); Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 80
20 32. The oral history dates Tsilhqot’in marmot blanket use, as bedding and cloaks, dating back to the time of the ?esggidams (Tsilhqot’in ancestors).122 Indeed, marmot blanket making is embedded in the Tsilhqot’in snow mountain legend of The Gambler Who Received Supernatural Aid,123 while such blankets are further referenced in The Man in the Moon.124 The anthropology and historical record confirm aged Tsilhqot’in possession of marmot blankets, including as robes.125
33. Tsilhqot’in elders also attested to the use of other animal skin blankets. The grandmother of elder Francis Setah used nists’i (deer) hide as a ground blanket for sitting on when she was raising him. The grandfather of elder Ubill Hunlin’s wife also used the deer hide in this manner. Both Mr. Setah and Mr. Hunlin testified as to the ancient Tsihqot’in use of deer hide ground blankets. Ancestral dlig (squirrel),126 ses (bear),127 sebay (mountain goat) and debi (mountain sheep)128 blankets were also identified in the oral history. Anthropologist Robert Tyhurst (1984) identified mountain “goat’s wool blankets” and “woven lynx skins” as products traded by the Tsilhqot’in to the Shuswap.129 Anthropologist Dr. Robert Lane (1954) listed “fur blankets” as one of the minimum household furnishings any Tsilhqot’in family would have.130
34. Certain hides did double duty as bedding. Numerous Tsilhqot’in elders testified that the Tsilhqot’in had used furred mountain goat, mountain sheep and deer hides as another domestic staple, the mattress, dating back to the ?esggidams.131 Elders learned this history through
122 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at paras. 76, 78-80; Transcript, March 7, 2005, Ubill Hunlin, Direct-Exam, at 00042, 41 – 00043, 19; 00048, 16-29; Transcript, March 8, 2005, Ubill Hunlin, Direct-Exam, at 00003, 7-9; 00008, 20-25. 123 Exhibit 0167.009.002, Memoirs of the American Museum of Natural History, The Jessep North Pacific Expedition, Traditions of the Chilcotin Indians by Livingston Farrand, at 38. 124 Exhibit 0431, Affidavit #1 of Elizabeth Jeff, October 8, 2004, para. 115. 125 Exhibit 0175, Dissertation of Robert Lane, p. 47, 50-51; Exhibit 0177, Draft Dissertation of Robert Tyhurst, p. 50; Transcript, December 6, 2004, Norman George Setah, Direct-Exam, at 00001, 27 – 00004, 1; Transcript, March 5, 2004, Minnie Charleyboy, Direct-Exam, at 00030, 9-16. Ex 0156-1831/00/00.001 at p. 3000010, Cox’s Adventures 1831 126 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 76 127 Transcript, November 18, 2004, Norman George Setah, Direct-Exam, at 00030, 8-34. 128 Transcript, December 1, 2003, Francis Setah Direct Exam, at 00031, 34 - 00032, 29. 129 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 145. 130 Exhibit 0175, Dissertation of Robert Lane, p. 50-51. 131 Transcript, November 18, 2004, Norman George Setah, Direct-Exam, at 00030, 8-34; Transcript, March 8, 2005 Ubill Hunlin, Direct-Exam, at 00015, 4-27; Exhibit 0432, Affidavit #2 of Elizabeth Jeff, November 13, 2004, at para. 26; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 76; Transcript, November 18, 2003, Francis Setah Direct-Exam, at 00024, 28 – 00026, 7.
21 practice: while being raised by Sa Yetsen, elder Minnie Charleyboy slept on a mountain goat mattress in a niyah qungh;132 when hunting as an adult with ?Eskish, elder Ubill Hunlin slept on mountain goat hide in the snow mountains;133 growing up with Daldod, elder Francis Setah was sleeping on deer and moose hides (moose having entered the country around the 1920s).134 Elder Norman George Setah in turn testified that the Tsilhqot’in had also used bear skin mattresses ancestrally.135
35. Finally, according to the oral history, hide mattresses in fact did triple duty functioning also as Tsilhqot’in xilh (packs) when traveling.136 This is corroborated by the anthropology’s awareness of skin pack use in transportation137, and that Tsilhqot’ins often slept without shelter when on winter ventures.138
e. Clothing
36. Tsilhqot’in clothing was essentially fur-based such that the Tsilhqot’in were well prepared for seasonal demands, including those of winter outdoors. In 1825, the British fur trader William Connolly noted his hopes with respect to the Tsilhqot’in, namely, that come spring “the weather will then be sufficiently moderate to induce them to part with their Furs (which Constitute the principal part of their Clothing)….”139 Come 1863, surveyor Henry Palmer wrote:
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
132 Transcript, March 4, 2004, Minnie Charleyboy, Direct-Exam, at 00022, 2 – 00023, 3. 133 Transcript, March 7, 2005, Ubill Hunlin, Direct-Exam, at 00042, 41 – 00043, 9. 134 Transcript, November 18, 2003, Francis Setah Direct-Exam, at 00024, 28 - 00026, 7. 135 Transcript, November 18, 2004, Norman George Setah, Direct-Exam, at 00030, 8-34. 136 Exhibit 0432, Affidavit #2 of Elizabeth Jeff, November 13, 2004, paras. 30-31; Transcript, December 1, 2003, Francis Setah Direct-Exam, at 00031, 34 – 00032, 5; Transcript, December 2, 2003, Francis Setah Direct-Exam, at 00002, 24 – 00003, 21. 137 Exhibit 0175, Dissertation of Robert Lane, p. 47, 50- 51. 138 Exhibit 0175, Dissertation of Robert Lane, 46. 139 Ex # 0156-1825/07/20.001 at p 117634 , Connolly’s Journal March 9, 1826)
22 which they are singularly expert, and devoid of all resources but those which the lakes, rivers, prairies and woods supply.140
37. Anthropologist Dr. Robert Lane described the basic Tsilhqot’in clothing as including a fur robe. He added that “the robe was often of ground hog or beaver skins sewn together, or of a woven rabbit blanket.”141 That the Tsilhqot’in wore sewn ground hog (i.e. marmot) and woven rabbit blankets as robes dating back centuries is clear from the preceding discussion regarding Tsilhqot’in bedding.
38. That the Tsilhqot’in wore other fur robes, including beaver robes, is also clear from the historical record. Dr. Dinwoodie made this very point, based on fur trade documents from January 1822, in his report.142 In 1831, Cox wrote of the Tsilhqot’in that “[b]eaver must be abundant, for men, women and children are clad in robes of the fur of that animal.”143 In the winter of 1832, a report from the Chilcotin Post noted that “most of their Beaver…had been converted into Winter Clothing….”144 Of his visit to a Tsilhqot’in community in November 1845, Nobili stated “the majority wore only a wolf-skin or bear-skin on their shoulders.”145 All of which corroborates the oral history evidence of Tsilhqot’in elder Norman George Setah that the Tsilhqot’in traditionally used the hides of tsa (beaver) and other animals to make a type of robe or coat in the generations back to the time before Europeans arrived.146
39. Numerous Tsilhqot’in elders also testified that the Tsilhqot’in since the sadanx had worn furred animal hide garments on their bodies, both as wraps and apron-like garments.147 Elder
140 Ex 0156-1863/00/00.001 at p. 115945, Palmer, Report of Survey via North Bentinck Arm, 1863. 141 Exhibit 0175, Dissertation of Robert Lane, 47. 142 Exhibit 0224, Expert Report of Dr. David Dinwoodie, p. 52-53. 143 Ex # 0156-1831/00/00.001 at p. 3000019-20, Cox’s Adventures 1831 144 Exhibit 0224, Expert Report of Dr. David Dinwoodie, p. 54 145 Ex 0156-1845/11/30.001 at p. 2195816, Father Nobili’s Letters, 184 146 Transcript, November 29, 2004, Norman George Setah Direct Exam, 00007, 6-14 147 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para.75; Transcript, March 8, 2005, Ubill Hunlin, Direct-Exam, at 00024, 25 – 00025, 15; Exhibit 0432, Affidavit #2 of Elizabeth Jeff, November 13, 2004, at para. 28; Transcript, November 19, 2003, Francis Setah Direct-Exam, at 00021, 47 - 00025, 4; Transcript, December 1, 2003, Francis Setah Direct-Exam, at 00031, 34 to 00032, 29; Transcript, December 2, 2003, Francis Setah Direct-Exam, at 00001, 37 to 00002, 3; Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00008, 23 to 47.
23 Francis Setah’s oral history evidence on this point was graphically presented (Ex. 79 to 81).148 Elders averred that nits’i (deer), sebay (mountain goat), debi (mountain sheep), ses (bear) and nundi (lynx) skins were worn in this manner.149 Elder Elizabeth Jeff added the legend of The Man in the Moon, recorded by Lane (between 1948 and 1951),150 in which a Tsilhqot’in hunter is wearing an apron-like hide along with hide leggings sewn with sinew and strapped over his shoulders.151
Traditional Hide Clothing - Exhibits 0058, 0059, 0060
40. Dr. Lane’s thesis confirms this body of oral history evidence.152 Lane stated that the basic Tsilhqot’in clothing included an apron, usually of buckskin, which was worn in the winter with leggings. He added that in winter, and sometimes in summer, Tsilhqot’in women wore a skirt rather than leggings. Moreover, this oral history evidence is corroborated by the historical record. In January 1822, McDougall wrote of his meeting with Tsilhqot’ins that “the men being generally well and warmly clad, … with good leggings of excellent leather; … we did not see a
148 Exhibit 0058, Drawing of traditional clothing (wrap), as described by Francis Setah; Exhibit 0059, Drawing of traditional clothing (apron), as described by Francis Setah; Exhibit 0060, Drawing of traditional clothing (wrap), as described by Francis Setah 149 Exhibit 0156-1900, James Teit, HMTQ-2037204 at 777, para. 2: “Woven lynx-skin robes were also common”. 150 Exhibit 0175, 1953, Cultural Relations of the Chilcotin Indians of West Central British Columbia, Ph.D. Thesis, Robert Lane, at Preface and 317-318, under number 24, “he disappeared while removing his leggings”. 151 Exhibit 0431, Affidavit #2 of Elizabeth Jeff, November 13, 2004, para. 115. 152 Exhibit 0175, Dissertation of Robert Lane, 47.
24 single man or woman bare legged, nor with any thing of a shabby covering on their backs.”153 Similarly, Father Nobili noted that on his November 1845 trip to the Tsilhqot’in “the women … also wore a short skirt [a kilt] as a wrap or protection, from the loins down to the knees.”154
41. Tsilhqot’in footwear was known as qi. Elder Francis Setah described them as furred, rising up the lower leg, sewn to size, secured with leather straps and like mukluks (see Ex. 57).155 Tsilhqot’in elders gave evidence of qi having been made, through the generations from the sadanx, with numerous types of hides including deer, mountain sheep, mountain goat, marmot, marten.156 In his thesis, Dr. Lane noted that the minimum possessions of any Tsilhqot’in family included “moccasins”.157
Qi – Exhibit 0057
42. Finally, elder Ubill Hunlin also testified as to the ?esggidams making gloves from dediny (marmot) and … (marten) pelts. Mr. Hunlin and Mr. Francis Setah also testified that their
153 Exhibit 0156-1822/01/18.001,transcription at HMTQ-0100920 at HMTQ-0100925, at 6. 154 Ex 0156-1845/11/30.001 at p. 2195801, Father Nobili’s Letters, 1845. 155 Transcript, November 18, 2003, Francis Setah Direct Exam, 00020, 21 – 00020, 8 156 Transcript, November 18, 2003, Francis Setah Direct Exam, 00019, 16 – 00021, 41; Exhibit 0432, Affidavit #2 of Elizabeth Jeff, November 13, 2004, para. 29; Transcript, March 8, 2005, Ubill Hunlin Direct Exam, 00003, 7- 22; 00008, 20-29; 00010, 12-37 157 Exhibit 0175, Dissertation of Robert Lane, p.50- 51.
25 Tsilhqot’in wives would make gloves from nists’i (deer hide). Relatedly, Dr. Lane’s work identifies fur caps as being worn as Tsilhqot’in winter clothing.158 Lane further stated:
In the winter, and particularly in March when the sun was bright and winds were biting, the body, face, and hair were greased for protection. Charcoal was painted around the eyes and leather eye shades were worn as a protection against snow blindness.159
43. In addition to the warm, fur-based Tsilhqot’in bedding and clothing, the schedule of Tsilhqot’in winter land use of the Claim Area is premised upon the customary Tsilhqot’in technology of snowshoes, traps, snares, bow and arrows, clubs and spears.
f. Transportation, Trapping and Hunting Technology
44. Dr. Lane wrote of, and the Crown's archaeology witness Morley Eldridge gave evidence of, the historical use of ?ash (snowshoes) in the wintertime.160 Teit wrote that the Shuswap traded with the Chilcotin specifically in order to obtain their high-quality snowshoes.161 Minnie Charleyboy described two types of snowshoes manufactured by Tsilhqot'in and reported that they were used by Tsilhqot’in ancestors;162 she also described how they were constructed from spruce and hide.163 Elder Francis Setah told a story related to him by his grandfather that tells of Tsilhqot'in on snowshoes dying in an avalanche near Nilhgwetizdih while hunting mountain sheep.164 Exhibit 0085 is a sketch based on Francis Setah experience and oral history as to how the Tsilhqot’in traditionally manufactured snowshoes:165
158 Exhibit 0175, Dissertation of Robert Lane, 47. 159 Exhibit 0175, 1953, Dissertation of Robert Lane, at 48; Transcript, March 5, 2004, Minnie Charleyboy Direct Exam, 00042, 4 to 46. 160 Exhibit 0175, Dissertation of Robert Lane, at 44; Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, paras. 42-43; Transcript, May 25, 2006, Morley Eldridge Cross-Exam, at 00038 to 00039; Exhibit 0205, Expert Report of Nancy Turner, at 7; Transcript, March 5, 2004, Minnie Charleyboy Direct Exam, at 00040, 27 – 00042, 32. 161 Exhibit 0167.006, Teit, “The Shuswap,” at 535 162 Transcript, March 5, 2004, Minnie Charleyboy Direct Exam, 00040, 27 to 00042, 46. 163 Transcript, March 8, 2004, Minnie Charleyboy Direct Exam, 00002, 26 to 00003, 46. 164 Transcript, December 2, 2004, Chief Francis Setah Direct Exam, 00023, 41 to 00026, 4. 165 Transcript, December 3, 2003, Chief Francis Setah Direct Exam, 00052, 46 to 00054, 24.
26
45. According to Dr. Lane (1953), “[s]nares and traps were the most important means of obtaining both animals and birds.”166 “Traps were of the deadfall variety, with the exception of pit fall traps which were used for deer.”167 According to Tsilhqot’in witnesses, the Tsilhqot’in have traditionally used the ?edzez (dead fall trap). Elder Francis Setah had seen his grandfather ?Eweniwen set them and he provided graphic evidence of how the ?edzez worked (Ex. 86). The ?edzez is generally created by setting a stick with bait meat at the base of a tree, enclosing the sides such that the bait stick can only be accessed from the front, then setting a log doorway to the bait that, when the bait is taken, falls heavily to crush the animals extended neck. Francis William also described a traditional Tsilhqot’in deadfall trap168 and hand drew one for this Honourable Court (Exhibit 0158 “B”).169 Minnie Charleyboy testified that she saw an ancestral Tsilhqot’in deadfall trap between Potato Mountain and her home at ?Edibiny.170
166 Exhibit 0175, Dissertation of Robert Lane, at 44. 167 Exhibit 0175, Dissertation of Robert Lane, at 44. 168 Exhibit 0158, Affidavit #2 of Francis William, April 30, 2004, at paras. 45-46, 77; Transcript, December 3, 2003, Francis Setah Direct Exam, 00054, 25 - 00057, 6. 169 Exhibit “B” to Exhibit 0158, Affidavit #2 of Francis William, April 30, 2004. 170 Transcript, March 5, 2004, Minnie Charleyboy Direct Exam, at 00020, 41 – 00022, 2.
27
?edzez (deadfall trap) – Exhibit 0086
46. Dr. Dinwoodie reported on Tsilhqot’in trapping (and snaring) technology for bear, marten, lynx, beaver, marmot and other small land animals. He commented, “even the sideward glances at the subject on the part of those who knew them best show that trapping was a vital economic pursuit and that is was valued beyond what it provided in material terms, and that was considerable.”171 Tyhurst (1984) summarized Teit (1909) as recording “the Chilcotin probably used some of the following: bear deadfall; …lnyx deadfall; marmot deadfall…” Tyhurst himself stated that deadfall traps were used for both bear species.172 Elder Ubill Hunlin, extensive trapper and hunter, gave oral history evidence that the ?edzez (deadfall trap) had been used dating back to the ?esggidams to trap bear, lynx and marten. The Tsilhqot’in legend of The Gambler Who Received Supernatural Aid has him going to the snow mountains and trapping for ‘ground hog’ – i.e. marmot.173 Norman George Setah described a type of ancestral trap for marmots.174
171 Exhibit 0224, Expert Report of Dr. David Dinwoodie, at 57-58. 172 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 49. 173 Exhibit 0167, Tab 9, 2nd document, Memoirs of the American Museum of Natural History, The Jessep North Pacific Expedition, “Traditions of the Chilcotin Indians” by Livingston Farrand, at 38, para. 1: “All that summer he
28
47. With respect to snares, Lane said that except for those set in game fences, snares were mostly of the topping pole type. There were also tether snares used mostly for birds, and some times spring pole snares. 175 Elder Francis Setah provided graphic evidence of his grandmother’s rabbit binlh (snare), apparently a topping pole snare made with thin encircled leather tied to a pole mechanism that elevated upon triggering (see Ex. 78)176. Tsilhqot’in oral history dates binlh (snare) as used by the Tsilhqot’in since the time of the?esggdiams (Tsilhqot’in ancestors). Tyhurst (1984) summarized Teit as concluding that that the Tsilhqot’in probably used some of the following: two types of bear and lnyx snares; a marmot snare; a rabbit snare; and snares for waterfowl.177 Elder Mabel William gave personal and oral history evidence of the ancestral binlh (snare) being used for getting nundi (lynx) gex (rabbit) and dlig (squirrel).178 Tsilhqot’ins used these for rabbits in the late fall and winter when the fur was thick and white.179 Norman George Setah explained ancestral snares, which were used in the Claim Area, for bigger game, such as deer and elk, and when they arrived, wild horses and moose.180
spent alone in the snow mountain, hunting ground-hogs, and making blankets of their skins, and he made a great many”; See also Exhibit 0008, “Traditions of the Chilcotin Indians” by Livingston Farrand, at 38 (same document). 174 Transcript, November 18, 2004, Norman George Setah Cross-Exam, at 00017,43 – 00019,1. 175 Exhibit 0175, Dissertation of Robert Lane, at 44, para. 3. 176 See also Exhibit 0367, Affidavit #1 of Gilbert Solomon, January 19, 2005, at para. 18. 177 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, at 102 to 103. 178 Exhibit 0173, Affidavit #1 of Mabel William, para. 30(iv); Transcripts, November 8, 2004, Norman George Setah Direct-Exam at 00023,41-47. 179 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, para. 79. 180 Transcript, October 22, 2004, Norman George Setah Direct Examination, at 00004, 4 to 00010, 14.
29
binlh (snare) - Exhibit 0078
48. Dr. Lane reported that deer were traditionally taken with bow and arrow.181 Mabel William reported that her grandmother, Hanlhdzany, taught her that the bow and arrow were used at the time of the ancestors182 and David Setah described the continuous use of blinds for taking deer with a bow.183 Minnie Charleyboy taught the Court about bow and arrow making in considerable detail, noting a preference for treated juniper wood for the bow and Saskatoon for the k'a (arrow) shaft.184 Norman George Setah explained that Tsilhqot’ins used ts’i bis (black rock) for arrowheads, and that Bisqox (Beece Creek) in the Claim Area on Nabas (Anvil Mountain) is named after that black rock.185 Elizabeth Jeff testified that arrowheads were made of obsidian from "this side of Bella Coola close to Ulkatcho".186 Minnie Charleyboy explained that obsidian was found past Anaham Lake at Anaham Peaks.187 Experts also traced the source
181 Exhibit 0175, Dissertation of Robert Lane, at 44 182 Exhibit 0173, Affidavit of Mabel William, July 23, 2004, at para. 30(iv). 183 Transcript, February 11, 2005, David Setah Cross Exam, 00002, 40 – 00003, 11. 184 Transcript, March 5, 2004, Minnie Charleyboy Direct Exam, 00008, 6 - 00014, 19. 185 Transcript, November 2, 2004, Norman George Setah Direct Exam, at 00009, 30 to 37. 186 Transcript, June 14, 2005, Elizabeth Jeff Cross-Exam, 00040, 30 – 00041, 1. 187 Transcript, March 5, 2004, Minnie Charleyboy Direct Exam, at 00009, 43 to 00010, 2 and 00012, 11 to 22; Transcript, March 29, 2004, Minnie Charleyboy Cross Exam, at 00036, 45 to 00037, 9.
30 of obsidian for arrowheads to the vicinity of Anahim Lake.188 Dr. Brealey wrote that George Dawson commented on the importance of the obsidian mines at Anahim’s Peak to the Tsilhqot'in in 1876189 and historical records demonstrate a clear use of bow and arrows by Tsilhqot'in in 1825.190 Magne and Matson's archeological investigations at Eagle Lake produced a considerable quantity of obsidian which they believed was principally from Anaham;191 these included identifiable Athapaskan arrow points.192 Exhibit 0052 is a sketch of this equipment based on descriptions by Francis Setah:193
Bow and Arrow – Exhibit 0052
49. The Tsilhquot'in also employed a number of other hunting tools such as spears and clubs. Tyhurst reported that bears would be clubbed and speared in their winter dens while Lane noted that bear would sometimes be lured from their winter dens in order to be ambushed with spears.194 Some spears were tipped with animal horns195, while others were tipped with stone.196
188 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation of Robert Tyhurst, at 115; Exhibit 0240, Expert Report of Ken Brealey, at 52, 65-66, Map 5 189 Exhibit 0240, Expert Report of Ken Brealey, at 32 190 Exhibit 0156-1825/07/20.00, Connolly’s Journal Dec 17, 1825 at 117612-3; Exhibit 0156-1839/05/03.001, Chilcotin Post Journal 1839-40, at 2138090 191 Exhibit 0149, Athapaskan and Earlier Archeology at Big Eagle Lake British Columbia, at 21, 150. 192 Exhibit 0149, Athapaskan and Earlier Archeology at Big Eagle Lake British Columbia, at 182, 184. 193 Transcript, November 18, 2003, Francis Setah Direct-Exam, at 00037, 1 – 00039, 46. 194 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation of Robert Tyhurst, at 49; Exhibit 0175, 1953, Cultural Relations of the Chilcotin Indians of West Central British Columbia, Ph.D. Thesis Dissertation of Robert Lane, at 44 195 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 25(iii). 196 Exhibit 0175, 1953, Cultural Relations of the Chilcotin Indians of West Central British Columbia, Ph.D. Thesis Dissertation of Robert Lane, at 50; Transcript, March 8, 2004, Minnie Charleyboy Direct-Exam, at 0004, 21 00005, 10 [similar to the instrument used to break ice, the Sughendzinlh].
31 Patricia Guichon testified to the use of a leather slingshot against bear.197 Smaller species might be hunted with dogs and dug out of their winter houses.198 g. Tsilhqot’in Schedule of Winter Land Use
50. In his composite table “on the yearly cycle of subsistence activities in the pre-settlement period,” Anthropologist Robert Tyhurst (1984) outlined Tsilhqot’in winter land uses. 199 The pattern begins in November when Tsilhqot’in people moved to their winter homes. 200
51. In November, the focus on higher elevation species such as mountain sheep winds down. Deer hunting renews, and continues after snowfall through winter on snowshoes. Bear and fur trapping ensue from the outset of November until dissipating in March. Similarly, snowshoe hares are procured from mid-November to late March. Ice-fishing takes place December through February.
52. Dr. Turkel in turn focused on the dynamics of interior Aboriginal land use, including that of the Tsilhqot’in. He outlined winter land use priorities during the early, mid and late winter moons, and in doing so wrote of exploiting of season variation:
Traditional native calendars in the interior started in the winter, in the moon named for ice. … For people across the interior plateau, this was a time to enter subterranean houses. Deer and other animals like sheep, elk, hare and grouse, were hunted as weather permitted, to supplement caches of stored food. …the following moon was a time to stay at home, a time of the first real cold. Occasionally it was possible to ice fish the lakes for whitefish, trout and suckers, but more frequently diets consisted of dried salmon and meat, roots and berries. The sun turned midwinter, the time of the big moon, and animals like mink, marten, weasel, fisher, rabbits, lynx, coyote and fox were trapped for their plush winter coats. It was a good time to sew buckskin and to visit. By the following moon, food stores were running low. …the snow crusted over and began to darken with wind-blown debris. This made travel easier, and it became possible
197 Transcript, May 10, 2005, Patricia Guichon Direct-Exam, 00018, 10-22 198 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation of Robert Tyhurst, at 49 199 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 52- 53. 200 Exhibit 0176, 1981, Excerpt from Handbook of North American Indians, Vol. 7, The Subarctic, Chilcotin, by Robert Lane, 406
32 to run down game on foot, as hooves broke through the crust when snowshoes did not. With the beginning of spring, bears came out of hibernation and by the end of the moon most of the people had emerged from their winter houses. 201
h. Winter Hunting and Trapping Grounds of the Claim Area
53. As set out above, Dr. Turkel describes Tsilhqot’in winter life as turning to their lower elevation winter houses on or about the Chilcotin plateau. Tyhurst (1984) points to the various associated hunting and trapping activities through winter.202
(i) Tachelach’ed
54. The Tsilhqot’in know their plateau dominated lands between the Tsilhqox (Chilko River) and Dasiqox (Taseko River) as Tachelach’ed. Tachelach’ed is largely the Claim Area’s Brittany Triangle.203 The Tsilhqot’in used Tachelach’ed, including in the south Xeni (Nemiah Valley), every winter as a critical winter hunting and trapping ground from pre-European contact until at least the mid-20th century.
(a) Deer
55. In the terms of Dr. Dinwoodie204, a critical seasonal variation that occurs every year in the Claim Area is the fall deer migration out of the snow mountains in the south and into the forests of Tachelach’ed. The deer return to these mountains in spring. Tachelach’ed is where deer winter annually.
56. Hunting grounds, as discussed already, were a major consideration in Tsilhqot’in decision-making on where to site their winter homes. The lands in and about Tachelach’ed are laden with centuries of Tsilhqot’in winter villages and houses. They line the Tsilhqox (Chilko River) of west Tachelach’ed, at Gwedats’ish, Naghelilhchiny, Sul Gulin, Biny Gwechugh,
201 Exhibit 0408, June 2004, The Archive of Place: Environment and the Contested Past of a North American Plateau, Ph.D. Dissertation, William Turkel, 156-157. 202 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, at 53. 203 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, paras. 54-55. 204 Exhibit 0224, Expert Report of Dr. David Dinwoodie, at 43, para. 2, at 45, para. 2.
33 Gwedelden T’ay, Tsi T’is Gunlin, Ts’eman Ts’ezchi, Nusay Bighinlin, Tsi Lhizbed, Tsilangh, (Dan Qi Yex) Tachi, Tl’egwated, ?Elhxidlin and on to Gwetsilh (Siwash Flats). Winter homes inhabit the lakes and creeks of and about south and central Tachelach’ed, at Ts’u Talh?ad, Ts’uni?ad Biny, Ses Ghen Tachi, Tl’ebayi, ?Etan Ghintil, Tl’etsinged, Naghatenaqed, ?Elghatish, Vedan Lake, Tsanlgen, (De)Neba?elhnaxnenelh?elqelh, Natasawed Biny, Nu Natasa?ax and Benchuny Biny.
57. Dr. Matson’s archaeological work regarding lhiz qwen yex on the Tsilhqox (Chilko River) identified Tsilhqot’in arrowheads at these sites and evidence of substantial deer consumption, including a specialized “marrow-processing” site.205 Dr. Brealey mapped “the basic patterns of Tsilhqot’in land use and occupancy” and, based on Dr. Matson’s work, depicted Tachelach’ed as a Tsilhqot’in hunting ground dating pre-European contact.206
58. In January of 1822 George McDougall, fur trader and the very first European to enter Tsilhqot’in territory, met Tsilhqot’ins on the Tsilhqox (Chilko River) and recorded “the East side… is their favourite hunting grounds for Large animals.” 207 In mapping Tsilhqot’in land use and occupancy Dr. Brealey located the heart of these hunting grounds as Tachelach’ed. 208
59. The 1838 census in the Chilcotin Post records identifies three Tsilhqot’in winter villages on the Tsilhqox of west Tachelach’ed. –“Taze Ley” in the southwest, Tsilangh in the mid-west and Tl’egwated in the northwest.209 Dewhirst concluded210:
In my opinion, during the period from 1822 to 1864, the Tsilhqot’in population in place before 1822 continued to use and occupy the Claim Area. The 1838 census of Chilcotin Post has reported three Tsilhqot’in winter villages that were located within or adjacent to the Claim Area. Those villages have a combined recorded total population of 329 people, who undoubedtly used and occupied the Claim Area.
205 Exhibit 0149, Matson et al, Athapaskan and Earlier Archaeology at Big Eagle Lake, British Columbia, August 1984, at 158, 275; Exhibit 0151, Matson et al, The Eagle Lake Project: Report on the 1979 Season, at 69, 209, 222 206 Exhibit 0240, Expert Report of Dr. Ken Brealey, at 93 to 95; Exhibit 0246, Map created by Dr. Ken Brealey. 207 Exhibit 0156-1822/01/18.001,transcription at HMTQ-0100920 at HMTQ-0100925, at 6. 208 Exhibit 0240, Expert Report of Dr. Ken Brealey, at 93; Exhibit 0246, Map created by Dr. Ken Brealey. 209 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, paras. 53 to 84. 210 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, para. 7.
34 60. Undoubtedly the Tsilhqot’in of these three villages used Tachelach’ed for winter hunting, particularly during early and late winter. Dewhirst says expressly that the three winter villages used the Claim Area east of the Chilko River and northeast of Chilko Lake, including for hunting deer.211 The 1838 census of these Tsilhqot’in winter villages listed families there as headed by male “hunters”. There were 75 “hunters” identified in the three winter villages as supporting a population of 329. There are also 54 “sons” and 56 “followers and strangers”, of which many are surely actual hunters. Moreover, the Tsilhqot’in had a series of Tsilhqox (Chilko River) crossing points into and out of west Tachelach’ed. These crossings accessed Tachelach’ed in the south, center and north, namely, at Biny Gwechugh212, Tsi Ti’s Gunlin213, Nusay Bighilin214, Tl’egwated215 and ?Elhxidlin.216
61. In addition, the Tsilhqot’in from the village of Gwetsilh (Siwash Bridge / Flats) arguably used Tachelach’ed for winter hunting, especially at winter’s onset and demise. The 1838 census records Gwetsilh with a population of 153, with 41 male “hunters” as family heads. Another 32 “sons” and 8 “followers or strangers” are recorded, many of whom are surely hunters too. The village is on both sides of the Tsilhqox (Chilko River), and prior to and at 1845 had a Tsilhqot’in bridge spanning the river.217 Gwetsilh is connected to Tachelached by the ancestral Tsilhqot’in trail network on the northwest of the Tsilhqox. It is also connected to Tachelach’ed by the ancient trail on the Tsilhqox’s southeast and the east side of the Dasiqox (Taseko River) that bounds Tachelach’ed. The Tsilhqot’in crossed into and out of eastern Tachelach’ed with Dasiqox crossings in the north, centre and south of Tachelached, namely at ?Elhixidlin, Chi’ih
211 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, paras. 58, 62, 169 and 171 - 173. 212 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at paras 10; 11, Transcript, November 20, 2003 Francis Setah Direct Exam, 00012, 14 to 00016, 14; Exhibit 0069, Drawing of raft as described by Francis Setah; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 22. 213 Transcript, March 8, 2005 Ubill Hunlin, p 26 ln 8 – p 27 ln 3; p 38 lns 16-40; Transcript, Nov 27, 2003 Francis Setah direct-exam, p 17 ln 4 to p 19 ln 16; p 5 ln 36 to p 6 ln 39; Transcript, October 21, 2004, Norman George Setah 00003, 16 to 00004, 13 214 Transcript, October 20, 2004, Norman George Setah, 00039, 41 to 00040, 44; 00041, 44 to 00042, 31. 215 Transcript, Nov 1, 2004, Norman George Setah Direct Exam, 00026, 44 – 00030, 37; 00033, 40 – 00035, 43; Exhibit 0432, Affidavit #2 of Elizabeth Jeff, November 13, 2004, paragraph 45; Exhibit 0174, Mabel William affidavit #2, September 3, 2004, at para 21 216 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at paras 15, 20 217 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, paras. 85-86. Exhibit 0437, Affidavit #1 of Patrick Alphonse, April 15, 2005, paras. 18 to 20.
35 Nadilin218, Dig Nigwenili219, Tsiqelh Ts’iselin220, Tisht’an Gunlin Xaghinlin221 and Dasiqox Nanatats’ededilh.222 Moreover, having considered the significance of the four winter village sites identified in the 1838 Chilcotin Post census, including Gwetsilh, Dewhirst concluded223:
Archival documents indicate a long, intensive Tsilhqot’in occupation of the Chilko River from before 1822 to the 1890s. Tsilhqot’in villages and trails were located on both sides of the Tsilhqox; families living on the west side undoubtedly used and occupied the east side of the Chilko River and the Claim Area. That use and occupation has obviously continued to modern times.
62. Furthermore, Tsilhqot’ins living outside of these four winter villages on the Tsilhqox most certainly used Tachalech’ed as a winter hunting ground, especially from November to early December and late February through March. As Dewhirst said, these four villages “do not represent all the Tsilhqot’ins who used the Claim Area because Tsilhqot’in populations known to exist and use and occupy the Claim Area in 1838 were not recorded in the 1838 census, therefore the Tsilhqot’in population of the Claim Area was significantly greater….”.224 This includes all the Tsilhqot’ins with winter dwellings, placed with a view to hunting and trapping grounds, in or about Tachelach’ed: at Xeni (Nemiah Valley) - Ses Ghen Tachi, Tl’ebayi, ?Etan Ghintil, Tl’etsinged, Naghatanqed; on the Tsilhqox (Chilko River) - Gwedats’ish or Biny Gwechugh, Gwedelden T’ay, Tsi T’is Gunlin, Tseman Tsezchi, Nusay Bighinlin, Tsi Lhizbed and (Dan Qi Yex) Tachi; and, elsewhere - Ts’u Talh?ad, Ts’uni?ad Biny, ?Elghatish, (De)Neba?elhnaxnenelh?elqelh, Natasawed Biny and Benchuny Biny. Regarding the
218 Transcript, November 29, 2004 Direct Examination, at 00008, 24 to 00009, 22; Exhibit 215DIG, Norman George Setah Digitized Map, Placename #239; Exhibit 215LEG, Norman George Setah Digitized Map Legend, Placename #239; Exhibit 0486, Numeric Placename List, Placename #239. 219 Transcript, November 29, 2004 Direct Examination, at 00009, 14 to 00010, 7; and at 00010, 26 to 00011, 26; Exhibit 215DIG, Norman George Setah Digitized Map, Placename #240; Exhibit 215LEG, Norman George Setah Digitized Map Legend, Placename #240; Exhibit 0486, Numeric Placename List, Placename #240. 220 Transcript, November 29, 2004 Direct Examination, at 00009, 14 to 00010, 7; and at 00010, 26 to 00011, 26; Exhibit 215DIG, Norman George Setah Digitized Map, Placename #240; Exhibit 215LEG, Norman George Setah Digitized Map Legend, Placename #240; Exhibit 0486, Numeric Placename List, Placename #240. 221 Transcript, November 29, 2004, Norman George Setah Direct Examination, at 00028, 14 to 00029, 19; Exhibit 215DIG, Norman George Setah Digitized Map, Placename #247; Exhibit 215LEG, Norman George Setah Digitized Map Legend, Placename #247; Exhibit 0486, Numeric Placename List, Placename #247. 222 Transcript, November 29, 2004, Norman George Setah Direct Examination, at 00024, 15 to 00026, 15; Exhibit 215DIG, Norman George Setah Digitized Map, Placename #80; Exhibit 0486, Numeric Placename List, Placename #80. 223 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, para. 189. 224 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, para. 7.
36 Tsilhqot’ins in Xeni, Wilson Duff numbered them as about 100 in 1835.225 With respect to Tsilhqot’ins on the Tsilhqox, Dewhirst states they assuredly used and occupied the Claim Area.226
63. Not surprisingly, come 1872 Marcus Smith, federal Crown representative, twice remarked that the plateau on either side of the Chilko River were important Tsilhqot’in hunting grounds.227
64. Further, in 1909 James Teit, an early ethnographer of the Tsilhqot’in, referenced the “Stonies wintering grounds”. Dr. Brealey’s map of Tsilhqot’in land use and occupancy depicts Teit as referring to the lands of Tachelach’ed.228
65. This set of evidence from the historical record and expert opinion itself establishes pre- contact and pre-Crown sovereignty Tsilhqot’in occupation of Tachelach’ed through regular use of this tract of land for winter deer and mountain sheep hunting. So does Tsilhqot’in oral history, which stands fully corroborated.229
66. Consistent with Dr. Turkel regarding hunting deer and other animals at the lunar onset of winter, on December 4, 2003 Tsilhqot’in elder Francis Setah provided the following oral history - from his grandmother Daldod (c. 1866 - 1950) - regarding Tachelach’ed as a Tsilhqot’in early winter deer hunting ground:
00028 32 Q Thank you, Francis. Francis, you've taught us 33 that the deer go into the mountains around 34 springtime, and in the fall time many of them move 35 into Tachelach'ed. 36 A Yes. 37 Q Can you tell us what your grandmother taught you 38 about deer in the wintertime and Tachelach'ed?
225 Exhibit 0265-1965/00/00.001 (Untitled map of Aboriginal population distribution, 1965, Wilson Duff, An Indian History of British Columbia, Map 3. 226 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, para. 189. 227 Exhibit 0240, Expert Report of Dr. Ken Brealey, at 56. 228 Exhibit 0246, Dr. Ken Brealey, Map - Land Use and Occupancy. 229 Transcript, November 9, 2004, Norman George Setah, 00039, 30-47; 00040, 1-36; Transcript, March 2, 2004, Minnie Charleyboy Direct Exam, 00002, 19 – 00004, 24; Transcript, November 26, 2003, Francis Setah Direct Exam, 00043, 21-33; Transcript, December 4, 2003, Francis Setah Direct Exam, 00028, 32 – 00030, 43
37 39 A She had taught me that the deers that were 40 migrating from the mountain would migrate to 41 Tachelach 1ed. 42 Q And what about hunting around this time of year? 43 A It's -- for generations people have been hunting. 44 Q For generations people have been hunting? Can you 45 explain that. 46 A My grandmother's father had hunted there. 47 Q Where are you talking about?
00029 1 A At Tachelach'ed. 2 Q M'mm-hmm. So your your grandmother's father 3 would hunt in Tachelach'ed around this time of 4 year? 5 A That's what she taught me, my grandmother. 6 Q M'mm-hmm. And did Daldod teach you about the 7 history before her father? 8 A Yes. She used to -- she had taught me that 9 generations before her had hunted in this area. 10 Q In Tachelach'ed? 11 A Yes. 12 Q In the early winter? 13 A Starting in the fall. 14 Q Late fall? 15 A About this time. 16 Q Now, how did -- in Daldod teaching you about the 17 generations before her, hunting in Tachelach'ed 18 around this time of year, did she teach you how 19 this knowledge came down to her? 20 A Her father had taught her.
00030 12 Q Okay. When she's teaching you about this, did she 13 teach you about where in Tachelach'ed? 14 A Yes. In that area there. Tachelach'ed is this 15 area here. 16 THE COURT, Indicating the top half of the Brittany 17 Triangle. 18 MR. ROBBINS, M'mm-hmm. 19 Q Francis, this lake here, Tsi Tex Biny? 20 THE INTERPRETER, Tsi Tex Biny? 21 MR. ROBBINS: Can you pronounce number 43, please, 22 Mr. Speller. 23 THE SPELLER, 43? 24 MR. ROBBINS, 25 Q what's the name of this lake in Tsilhqottin, 26 Francis? 27 MR. SETAH, Tsi Tex Biny. 28 MR. ROBBINS, 29 Q Is that lake in Tachelach'ed? 30 A Yes. It's here. 31 Q Is Natasewed Biny in Tachelach 1ed?
38 32 A Yes. 33 Q Is Tsanlgen Biny in Tachelach1ed? 34 MR. SETAH: M1mm-hmm. 35 THE INTERPRETER, Tsan1gen Biny? 36 MR. ROBBINS, Number 37 and number 118. 37 THE WITNESS, Yes. 38 MR. ROBBINS, Thank you. Thank you, Francis. 39 THE COURT: Mr. Setah, are you saying that your 40 grandmother and the older generation hunted in 41 that entire area of Tachelach'ed? 42 THE WITNESS: Yes. Before her time too, and her also. 43 THE COURT, Thank you.
67. Mr. Setah went on to identify a camp in north central Tachelached that his grandmother and other Tsilhqot'ins from Naghathalhchoz and Xeni would use when deer hunting. 230 He gave oral history evidence ofan incident during his grandmother's life when a child got lost at this hunting camp, the child's bones being found the following year upon Tsilhqot'ins returning to this area23 1
68. Elder Ubill Lulua provided oral history evidence that Elegesi (Eagle Lake Henry) would also use this hunting camp, as did Tsilhqot'ins from Xeni (Nemiah), Stone, Redstone, Anaham and Naghalachoz.P'' Mr. Lulua provided oral history from ?Elegesi that generations of Tsilhqotins had used this hunting camp dating back at least to the ?unididanx and yedanx time periods - i.e. pre-contact.Y' Further, ?Elegesi would use a Tsilhqot'in name for this Tachelached hunting camp, located where the only spring water is in north Tachelach'ed, but the Tsilhqot'in had started calling it ?Esqi Nintanisdzah (Child Got Lost), commemorating the tragic event 2 34
230 Transcript, December 4, 2003, Francis Setah Direct Exam, 00029, 21 to 32; 00039, 25 to 37; Transcript, November 26, 2003, Francis Setah Direct Exam, 00043,21 to 44; Exhibit 0093DIG, Francis Setah Digitized Evidence Map, #50; Exhibit 0093LEG, Map Legend, #50. 231 Transcript, December 4, 2003, Francis Setah Direct Exam, 00029, 33 to 00030, 6. 232 Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20,2002, para. 155; Transcript, April 2, 2004, Theophile Ubill Lulua, Direct Exam, 00028, 17 to 36. Elder Minnie Charleyboy similarly gave oral history that many Tsilhqot'ins trapped and hunted in Tachelach'ed, including Tommy Lulua, Eagle Lake Henry, Legani, Jack Lulua, Nezulhtsin, "Esqw'alyan, Nisewhichish and Alec Jack: Transcript, March 4, 2004, Minnie Charleyboy Direct Examination, at 00043, 32 to 00045, 38; Transcript, March 5, 2004, Minnie Charleyboy Direct Examination, at 00025, 40 to 00026, 37 2JJ Transcript, April 15,2004, Theophile Ubill Lulua, Cross Exam, 00022, 36to 00023, 36, 234 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20,2002, paras, 155, 151-152,
39 69. Elder Ubill Lulua also gave oral history evidence that after the events at ?Esqi Nintanisdzah (Child Got Lost), people were relunctant to stay there so moved their continuing annual deer hunting camp to Ts’iwel Gunchagh in northeastern Tachalech’ed. Mr. Lulua was taught by ?Elegesi (Eagle Lake Henry) that Tsilhqot’ins had annually hunted at Ts’iwel Gunchagh during the ?undidanx and yedanx times.235 Elder Mabel William gave oral history evidence that the Tsilhqot’in from Tl’etinqox (Anaham) would hunt for deer through Tachelach’ed in the late fall / early winter every year from camps along the Dasiqox in northeast Tachelach’ed.236
70. Elder Ubill Hunlin testified that his wife’s grandfather ?Eskish had taught about the late fall / early winter deer hunting grounds in southeast Tachelach’ed from the highlands of (De)Neba?elhnaxnenelh?elqelh (Captain Georgetown) in the north, through ?Elghatish to Tsi ?Ezish (Cardiff Mountain) in the south, and east to Delgi Ch’osh (Big Lake). Mr. Hunlin testified that Tsilhqot’ins since the ?esggidams had hunted deer here every year upon the deer migration into this area- including the five generations from his sons back to this wife’s great- grandfather.237
71. Councillor David Setah identified ongoing late fall and winter Tsilhqot’in deer hunting grounds in southwest Tachelach’ed, in Xeni (Nemiah Valley) at migration corridor from the southern mountains.238 Elder Francis Setah similarly testified as to annual late fall deer hunts in southwest Tachelach’ed, at Dalichiqox and Tsintsen Dinlhgwenlh in west Xeni.239 Councillor David Setah testified as to his continued winter deer hunting with others in the area of Ts’u Talh?ad in southwest Tachelach’ed, at Ts’uni?ad (Tsuniah Valley), that his father William Setah had so used and taught him about.240
235 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, para. 156; Transcript, April 15, 2004, Cross Exam of Theophile Ubill Lulua, 00023, 37 to 00025, 1. 236 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, paras. 20, 15. 237 Transcript, March 8, 2005, Ubill Hunlin Direct Exam, 00018, 45 to 00023, 25. 238 Transcript, January 19, 2005, David Setah Direct Exam, 00089, 39 to 00090, 29. 239 Transcript, December 2, 2003, Francis Setah Direct Exam, 00043, 39 to 00047, 24. 240 Transcript, January 20, 2005, David Setah Direct Exam, 00028, 15 to 00030, 2.
40 72. Tyhurst (1984) confirmed that the yearly cycle of aged Tsilhqot’in land use included deer hunting all through the winter, and emphasized that it happened after snowfall on snowshoes.241 The oral history confirms that the Tsilhqot’in hunted deer by snowshoe annually in Tachelach’ed.
73. Elder Mabel William was educated largely by her grandmother Hanlhndzany, the daughter of Chief Keogh, including in situ at Tl’egwated (Kigli Holes) on the Tsilhqox (Chilko River). Hanlhndzany taught Ms. William that Tsilhqot’ins had lived in lhiz qwen yex in or about west Tachelach’ed all along the Tsilhqox from the time of the ?esggidams (all of which is corroborated by the anthropological and archaeological evidence in this case.). In give this evidence, Elder Mabel William added:
Hanlhdzany taught me that her family would stay in lhiz qwen yex at Tl’egwated during the xi (winter) when it was really cold. She explained that here family lived there because they had a lot of dried salmon stored there and could get the animals like nists’i (deer). …
Grandmother Hanlhdzany taught me that the Tsilhqot’ins with lhiz qwen yex along the Tsilhqox (Chilko River) …would use their ?ash (snowshoes) to hunt in Tachelach’ed every year.242
74. The annual Tsilhqot’in deer hunts by snowshoe in Tachelach’ed were a particular priority in late winter. Dr. Turkel identified that by the fourth moon of winter in the interior, “the snow crusted over and began to darken with wind blown debris.” The significance of this late winter seasonal variation being that ”[t]his made travel easier, and it became possible to run down game on foot, as hooves broke through the crust when snowshoes did not.”
75. The Tsilhqot’in exploited this seasonal variation in snow quality. As Dr. Lane (1981) noted, “[i]n March, when periods of sunshine, cold winds, and crusted snow could be expected,
241 Exhibit 0177, Draft Dissertation of Robert Tyhurst, 53. 242 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, paras. 42, 51
41 hunters on snowshoes could run down game. People would leave their winter camps to travel in search of game.”243
76. Further, the evidence establishes that the Tsilhqot’in were well adapted to winter hunting in Tachelach’ed, critically in the late winter. Tsilhqot’in clothing and bedding was fur based and built for warmth and outdoor life. The bedding doubled as a xilh (pack) when traveling on foot. Snowshoes allowed long distances to be traveled in tracking game.244 Lane noted that Tsilhqot’ins often camped without shelter in winter.245 Further, the body, face and hair were greased for winter protection, particularly in March, while charcoal paint around the eyes and leather eye shades were worn as protection against snow blindness.246 In addition, at this time the snow was melting and could be used for drinking water, as the Tsilhqot’in name for the lunar month around March indicates.247
77. Thus, the evidence clearly establishes that for centuries, from pre-contact to at least the mid-20th Century the Tsilhqot’in schedule of land use for the Claim Area included Tachelach’ed as a critical late winter deer hunting grounds. This fact reflects the systematic Tsilhqot’in exploitation of two seasonal variations in Tachelach’ed, namely, the early winter arrival of deer and the late winter change in snow conditions.
(b) Mountain Sheep
78. Dr. Turkel wrote about interior Aboriginal peoples hunting animals other than deer, like sheep, for food supplementation at the onset of winter. Tyhurst also felt mountain sheep hunting continued into November.
243 Exhibit 0176, 1981, Excerpt from Handbook of North American Indians, Vol. 7, The Subarctic, Chilcotin, by Robert Lane, 1981, 406. 244 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, para. 42. 245 Exhibit 0175, Dissertation of Robert Lane, at 46. 246 Exhibit 0175, Dissertation of Robert Lane, at 48; Transcript, March 5, 2004, Minnie Charleyboy Direct Exam, 00042, 4 to 46. 247 Exhibit 0432, Affidavit #2 of Elizabeth Jeff, November 13, 2004, para. 6; Exhibit 0175, Dissertation of Robert Lane, at 219
42 79. Mountain sheep reside in the southern uplands of Tachelach’ed. Elder Francis Setah’s evidence, having traveled through west and central Xeni Dzelh (a.k.a. Gweqez Dzelh), was that debi (mountain sheep) are known to be and are throughout this area. Further, both mountain sheep and deer live in the mountain’s basin above Xex Ti, known in Tsilhqot’in as Shishan Tl’ad (Male Sheep Basin).248 Elder Ubill Hunlin gave evidence of mountain sheep residing above Xex Ti. Tl’etsinged and ?Elhtilh ?Elhtilh, in other words in central and east Xeni Dzelh, as well as at Captain George Mountain directly east of (De)Neba?elhnaxnenelh?elqelh (Captain Georgetown).249
80. As discussed above with respect to deer, the historical record from 1822 to 1909 and the expert evidence in this case clearly establish Tachelach’ed as, in McDougall’s words, “their favourite hunting ground for Large animals.” All this evidence applies to establish Tachelach’ed as Tsilhqot’in mountain sheep hunting grounds as well.
81. There is a network of pre-contact Tsilhqot’in trails to and through Xeni Dzelh and (De)Neba?elhnaxnenelh?elqelh (Captain Georgetown).250 Importantly, there is a trail between Shishan Tl’ad and the Tsilhqot’in winter village of “Taze Ley” (Gwedats’ish or Biny Gwechugh) identified in the 1838 Chilcotin Post records. Of course, the Tsilhqox (Chilko River) trails from “Taze Ley” run to the various other Tsilhqot’in winter house sites on the river, including the villages of Tsilangh, Tl’egwated and Gwetsilh. Back at Shishan Tl’ad, however, Tsilhqot’in ancestral trails run through west Xeni Dzelh and down to trails to Tsilhqot’in winter dwelling sites at Ts’uni?ad Biny (Tsuniah Lake) and Tsilhqox Biny (Chilko Lake) at Xeni (Nemiah Valley). Further, south from Shishan Tl’ad the trail network connects to the winter dwelling sites at Xeny Biny – Tl’ebayi, ?Etan Ghintil, Tletsinged and Naghataneqed. The pre-contact Tsilhqot’in trail network there continues from Naghataneqed to the winter house sites of Tsanlgen, ?Elghatish, Vedan Lake and (De)Neba?elhnaxnenelh?elqelh, and ultimately onto the village of Gwetsilh (Siwash Bridge / Flats).
248 Transcript, December 2, 2003, Francis Setah Direct Exam, 00026, 41 to 00027, 33; 00031, 27 to 41. 249 Transcript, March 8, 2005, Ubill Hunlin Direct Exam, 00012, 33 to 00013, 37. 250 As discussed in Section 5C5(D), “Tsilhqot’in Transportation Network of the Claim Area”
43 82. Xeni Dzelh and highlands above (De)Neba?elhnaxnenelh?elqelh (Captain Georgetown) have been a late fall / early winter Tsilhqot’in mountain sheep hunting ground since pre- European contact. Elder Francis Setah testified that he was taught by his paternal grandfather ?Eweniwen about hunting west and central Xeni Dzelh. Mr. Setah testified that he had hunted west and central Xeni Dzelh, that his grandfather ?Eweniwen had hunted here for (late) fall mountain sheep with other Tsilhqot’ins, and that ?Eweniwen had been taught by his father Sit’ax (b. 1827 and 1849, d. 1927) that Tsilhqot’ins since the ?esggidams (Tsilhqot’in ancestors) had hunted west Xeni Dzelh for mountain sheep in the (late) fall.251 Elder Ubill Hunlin testified he was taught by his wife’s grandfather ?Eskish (Captain George) about hunting mountain sheep hunting in central and east Xeni Dzelh above Xex Ti, Tl’etsinged and “Elhtilh ?Elhtilh, as well as at Captain George Mountain directly east of (De)Neba?elhnaxnenelh?elqelh (Captain Georgetown). Mr. Hunlin’s evidence was that Tsilhqot’ins had hunted mountain sheep in these areas down the generations since the ?esggidams (Tsilhqot’in) every (late) fall.252
83. The oral history of elders Francis Setah and Ubill Hunlin in this regard is fully corroborated by the particular historical record and expert opinion:
(a) In December 1825 fur trader William Connolly wrote about the Tsilhqot’in from the winter village of “Taze Ley” (Gwedats’ish or Biny Gwechugh):
They feasted us with the fat of a sheep they lately had killed… Salmon being in their quarter every year abundant. They derive part of their subsistence also from the Chase. The country being pretty well stocked with Red and Rein Deer and Sheep…253
(b) The opinion of John Dewhirst, anthropologist, is that Connolly’s “Deer and Sheep” were hunted around Chilko Lake in the Claim Area, as the “Taze Lay” village was located at the northern entrance to the lake254 – i.e. hunted exactly where west Xeni Dzelh is, northeast of Chilko Lake, at the margins of southern Tachelach’ed.
251 Transcript, December 2, 2003, Francis Setah Direct Exam, 00027, 28 to 00028, 44. 252 Transcript, March 8, 2005, Ubill Hunlin Direct Exam, 00015, 42 to 00016, 29. 253 Exhibit 0443, Expert Report of John Dewhrist, August 8, 2005, Report, p. 45, para. 169. 254 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, Report, p. 45, paras. 171-172.
44 (c) In July 1864 militia leader William Cox had a map prepared upon entering Tsilhqot’in territory that describes the mountain south of “Sooneat L.” (Ts’uni?ad Biny) – i.e. exactly where Xeni Dzelh is - as “Hunting Grounds”.255
(d) The opinion of John Dewhirst that these “Hunting Grounds” on Cox’s 1864 map help “indicate long term regular use and occupancy over many generations, which must pre- date 1846.256
(c) Bear, Rabbits and Furbearers Generally
84. Deer and mountain sheep aside, Tyhurst (1984) identified the yearly Tsilhqot’in practice of the procuring bears, rabbits and furbearers generally through the winter.257 Dr. Dinwoodie, likewise, stated “[a]s a group, the Tsilhqot’in trapped all the animals available in the area.” Further, the Tsilhqot’in “maintained a cultural emphasis upon hunting-trapping and as a plateau people it became their signature emphasis.”258 The variety of Tsilhqot’in trapping, snaring and hunting technology for these animals has already been discussed.
85. This anthropology accords with the Tsilhqot’in oral history, including that of elder Mabel William about Tsilhqot’in winter houses being placed where one can obtain fresh animal foods beyond deer to survive: Grandmother Hanlhdzany… taught me about the animals that 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 ?esggidams (our ancestors): Grandmother Hanlhdzany taught me this knowledge came from her mother.
…
(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 dlig, gex and nundi. They would use ?edzez (dead fall trap) also to get the nundi. As for the datsan k’a (bow) and ts’etsesish k’a (arrow), they’d use that for almost everything.
255 Ex. 0265-1864/00/00/001, Chilcotin War Map, 1864 256 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, Report, p. 65-66, paras. 266, 270, 271. 257 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 53 258 Exhibit 0224, Expert Report of Dr. David Dinwoodie, at 54, 59.
45
Hanlhdzany taught me that her family would stay in 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).259
86. Moreover, this evidence accords with the oral history of Tsilhqot’in elder Ubill Hunlin regarding regular winter land use, all of which is at or near places previously identified as aged Tsilhqot’in winter dwelling sites in or about south and southeast Tachelached:
(a) Tsilhqot’ins have hunted and trapped gex (rabbit or snowshoe hares) in the winter at Lhiz Bay, Xex Ti, Naghataneqed and (De)Neba?elhnaxnenelh?elqelh from the time of the ?esggidams until his life.260
(b) Tsilhqot’ins have trapped nundi (lynx) every winter in an area from around (De)Neba?elhnaxnenelh?elqelh, running south to ?Elghatish and east to the uplands, from Mr. Hunlin’s life back through the Tsilhqot’in generations to the ?esggidams.261
(c) Tsilhqot’ins have been trapping nabi (muskrat) every winter around the lakes Xex Ti Biny and Delgi Ch’osh from his lifetime back to ancestral Tsilhqot’in times.262
(d) Tsilhqot’ins have been trapping tsa (beaver) every winter at Lhiz Bay, Xex Ti, Tlebayi, Naghataneqed, Delgi Ch’osh, ?Elghatish and (De)Neba?elhnaxnenelh?elqelh since the time of the ?esggidams (Tsilhqot’in ancestors).263
(e) Tsilhqot’ins hunted bears in winter for meat during the time of the ?esggidams (Tsilhqot’in ancestors) and were still doing so when Mr. Hunlin’s grandfather was still alive.264
259 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, para. 30(iv), 42; Transcript, November 8, 2004, Norman George Setah Direct-Exam, at 00012, 3-46; Transcript, March 5, 2004, Minnie Charleyboy Direct-Exam, at 00007, 36-47; 00019, 5-21. 260 Transcript, March 9, 2005, Ubill Hunlin Direct Exam, 00005, 6 – 00008, 27 261 Transcript, March 9, 2005, Ubill Hunlin Direct Exam, 00001, 23 – 00003, 42 262 Transcript, March 9, 2005, Ubill Hunlin Direct Exam, 00013, 13 – 00015, 13 263 Transcript, March 9, 2005, Ubill Hunlin Direct Exam, 00009, 22 – 00013, 3
46
87. Mr. Hunlin’s evidence is corroborated by that of the late William Setah and his son Councillor David Setah. Councillor Setah identified trapping grounds of central and west Xeni (Nemiah Valley) that he knew were used by his father William Setah every year. William Setah trained his son as a trapper here, together trapping lynx, bobcat, beavers, muskrat, squirrels, fisher and wolverine.265 In his 1989 affidavit William Setah, a highly reputable Xeni Gwet’in trapper,266 stated:
I have been told by my father and other elders of my band, that our people have always trapped, since before the coming of the white man. Before there was a commercial market for furs, we trapped for meat and for furs for our own clothing. Without the meat and furs my ancestors obtained from trapping, they probably couldn’t have survived the winters in this part of the country. …
The Nemaiah Valley Band trap line is located within the traditional area where my ancestors trapped.
I trap on the Nemaiah Valley Band trap line. …
I trap in the same parts of the band trap line every year. …267
88. According to Dr. Turkel, such practices served the Tsilhqot’in particularly well in terms of supplementing their food supply in early winter. However, furbearers such as rabbit, lynx, muskrat, beaver and bear were not only key Tsilhqot’in food animals, they were key providers of fur for, as discussed, bedding and clothing (and trade). Per Dr. Turkel, procuring fur became a higher priority for interior Aboriginal peoples such as the Tsilhqot’in as the season varied post winter solstice:
The sun turned midwinter, the time of the big moon, and animals like mink, marten, weasel, fisher, rabbits, lynx, coyote and fox were trapped for the plush winter coats.268
264 Transcript, March 8, 2005, Ubill Hunlin Direct Exam, 00032, 20 – 00033, 8 265 Transcript, January 18, 2005, 00024, 32 to 00024, 30; 00037, 47 to 00041, 41; Exhibit 0259DIG. 266 Transcript, January 18, 2005, David Setah Direct Exam, 00026, 7 to 33. 267 Exhibit 0012, Affidavit of William Setah, September 27, 1989, paras. 4 to 7. 268 Exhibit 0408, June 2004, The Archive of Place: Environment and the Contested Past of a North American Plateau, Ph.D. Dissertation, William Turkel, 157.
47
89. The point here is with each traditional Tsilhqot’in winter dwelling in or about the Claim Area came a footprint of associated food and fur securing trapping that occurred on schedule every year in winter. Tachelach’ed is no exception. For centuries dating back prior to European contact Tachelach’ed has been an winter hunting and trapping ground for deer, mountain sheep, bear, beaver, lynx, muskrat, rabbit, squirrel and other present furbearers as Tsilhqot’ins kept their winter dwellings constructed for use year after year in and about Tachelached.
(ii) Northwest Trapline
90. The Claim Area’s northwest trapline is an annual Tsilhqot’in early winter hunting and trapping ground from pre-European contact days that continues to be so even today.
91. In and about the northwest trapline of the Claim Area are the lower elevation lakes of Tatl’ah (Tatla Lake), Lhuy Nachasgwengunlin (Little Eagle Lake), Gwedzin (Cochin Lake) and Naghatlhchoz (Big Eagle or Choelquoit Lake), Talhiqox Biny (Tatlayoko Lake) and Ch’a Biny (Big Lagoon). In 1872, Marcus Smith, noted that the branch of Stone Tsilhqot’ins under Chief Keogh at Tatl’ah Biny (Tatla Lake) resided along the margins of these lakes from Tatl’ah to the Tsilhqox (Chilko River) headwaters – e.g. the lakes of Lhuy Nachasgwengulin, Gwedzin and Naghatalhchoz.269 In 1863, Waddington noted a village at the head of Talhiqox Biny (Tatlayoko Lake).270 In 1863, John Brough traveled from Tatl’ah (Tatla Lake) to Talhiqox Biny and identified an old village site on the east shore thereof.271 At Ch’a Biny there are physical remains of aged Tsilhqot’in winter houses.272
92. These Tsilhqot’in winter dwelling sites, as with all such sites, were located based on regularly used winter hunting grounds, including those used for trapping. Dr. Brealey’s evidence supports this point. In mapping the basic patterns of Tsilhqot’in land use and occupancy, Dr.
269 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, Report, para. 275-276. 270 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, para. 228. 271 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, paras. 229, 231. 272 See Appendix 2, para. 44
48 Brealey depicted the northwest trapline as a pre-contact Tsilhqot’in hunting ground.273 Anthropologist John Dewhirst’s evidence also supports this fact:
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 and the headwaters of the Chilko River. …Their use and occupation of the area relied upon…village and resource sites, such as fisheries and hunting grounds.274
93. Dewhirst’s evidence is that the historical record “indicates a significant Tsilhqot’in population in the northwest part of the Claim Area before the smallpox of 1863.” Further, “[s]even or eight surviving families remained in the above areas and continued to use and occupy them.”275 These surviving Tsilhqot’in families include the current William family descendant from Chief Keogh, the current Guichon family descendant from Guichon, and the current Lulua family descendant from Nensulian and Annie. Dewhirst places the customary use areas of these families as encompassing the Claim Area’s northwest trapline and dating back to at least the early 1800s.276
94. Tsilhqot’in oral history from these families shows that the Claim Area’s lowlands in the northwest trapline are Tsilhqot’in late fall / early winter deer hunting grounds.277 This fact is attested to by elder Mabel William who, through her father’s lineage, is the great-granddaughter of Chief Keogh headquarted at Tatl’ah Biny (Talta Lake):278
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
273 Exhibit 0246, Land Use and Occupancy Map created by Dr. Ken Brealey. 274 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, para. 276. 275 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, paras. 254. 276 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, paras. 375, 365 and 301. 277 Transcript, March 5, 2004, Minnie Charleyboy Direct Examination, at 00019, 22 to 26; at 00020, 7 to 40; at 00023, 26 to 00025, 39; at 00026, 42 to 00029, 43; at 00030, 17 to 00031, 21; at 00034, 47 to 00036, 44; Transcript, March 8, 2004, Minnie Charleyboy Direct Examination, at 00008, 1 to 00016, 44: According to Minnie Charleyboy, ancestral through to modern hunting and trapping have taken place between Henry’s Crossing and Biny Gwechugh, between Naghatalhchoz (Big Eagle Lake) and Gwedzin (Cochin Lake), between Naghatalhchoz (Big Eagle Lake) and Chilko Lake, between Naghatalhchoz (Big Eagle Lake) and Tatlayoko Lake, between Tatlayoko Lake & Potato Mountain, between Naghatalhchoz (Big Eagle Lake) and Tseman Tsezchiz, between Tsi Tis Gulin and Chilko Lake, between Gwedzin (Cochin Lake) and Lhuy Nachesgwengulin (Little Eagle Lake) and also generally in the Tatlayoko area. 278 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, para. 371
49 where the nists’i would be moving off the mountains onto the flatlands for the xi (winter). …We’d stay quite a while there because we were drying the meat.
…
I stayed in the niyah qungh that my late husband’s father Sammy Bulyan built near Tsilhqox Biny (Chilko Lake) at Ch’a Biny. … I was there with my late husband Eugene, his parents Sammy and Annie Bulyan, and Eugene’s sister Eliza with her husband. We were there for trapping and getting nists’i (deer) for dry meat. We went in the dan ch’iz (fall) and stayed into the xi (winter), just before Christmas. …We moved into the niyah qungh when it started to get cold.279
95. Moreover, the oral history of elder Mabel William regarding niyah qungh house site selection based on hunting and trapping grounds is actually sourced to Chief Keogh’s wife Gadulin.280 Elder Doris Lulua, descendant of Nensulian and Annie, in turn averred that the entire area around Tatl’ah Biny, Lhuy Nachasgwengulin, Gwedzin, ?Elhdanx Banx, Naghatalchoz and over to Tsilhqox Biny and the Tsilhqox is a productive trapping area that has been used as such by the Lulua family since long before she was born (in 1930).281 This is confirmed by the oral history of Minnie Charleyboy (nee Lulua).282 Further, this is consistent with the historical record regarding Talhiqox Biny as, in 1864, John Brough identified a Tsilhqot’in house site by its east shore and noted seeing “places on the creeks where they [Indians] had been trapping long ago.”283
279 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, paras. 20, 32. 280 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, para. 30(iv); Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, paras. 368, 370. 281 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, para. 302; Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, paras. 100, 97-110. 282 Transcript, March 5, 2004, Minnie Charleyboy Direct Examination, at 00019, 22 to 26; at 00020, 7 to 40; at 00023, 26 to 00025, 39; at 00026, 42 to 00029, 43; at 00030, 17 to 00031, 21; at 00034, 47 to 00036, 44; Transcript, March 8, 2004, Minnie Charleyboy Direct Examination, at 00008, 1 to 00016, 44: According to Minnie Charleyboy, ancestral through to modern hunting and trapping have taken place between Henry’s Crossing and Biny Gwechugh, between Naghatalhchoz (Big Eagle Lake) and Gwedzin (Cochin Lake), between Naghatalhchoz (Big Eagle Lake) and Chilko Lake, between Naghatalhchoz (Big Eagle Lake) and Tatlayoko Lake, between Tatlayoko Lake & Potato Mountain, between Naghatalhchoz (Big Eagle Lake) and Tseman Tsezchiz, between Tsi Tis Gulin and Chilko Lake, between Gwedzin (Cochin Lake) and Lhuy Nachesgwengulin (Little Eagle Lake) and also generally in the Tatlayoko area; Transcript, September 20, 2004, Annie C. Williams Direct Examination, at 00050, 44 to 00052, 42. 283 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, paras. 229, 231.
50 96. Councillor David Setah, nephew of elder Mabel William, also identified the lands about Ch’a Biny as an ongoing winter hunting and trapping grounds.284
97. Provincial trapline records provide further evidence of a continuous history of Tsilhqot’ins trapping in the northwest trapline area.285 Registration records indicate that Tsilhqot’ins had been pursuing this wintertime activity in their trapline areas as part of their traditional lifestyles over long periods of time. Trapline applications for the individual traplines that were subsequently amalgamated into the Nemiah Trapline indicate that Tsilhqot’ins had been trapping in that area all their lives.286
(iii) Eastern Trapline
98. The Claim Area’s eastern trapline, in the north, is low elevation lands below the mountain of Nabas, within the Bisqox watershed and about the lakes of Teztaun (Fish Lake), Jidizay (Big Onion Lake) and Y’anah Biny. This area was also a Tsilhqot’in early winter hunting and trapping ground dating back to pre-European contact times.
99. The animals procured by Tsilhqot’ins in winter on and about the plateau are all here. Deer from the nearby “snow mountains” migrate into these lands through corridors such as those of T’ox T’ad, Nadilin Yex and Gwetex Natel?as.287 Rabbit, lynx, muskrat, beaver, squirrel and other furbearer animals present themselves as well near Teztaun, Jidizay and Nabas.288
100. The nascent archaeology has identified numerous Tsilhqot’in lhiz qwen yex both in the Claim Area at Teztaun (Fish Lake)289 and adjacent to the Claim Area at lower Yuhitah (Yohetta Valley).290 Dr. Brealey mapped the patterns of Tsilhqot’in land use and occupancy and depicted the eastern trapline, including in the north, as a hunting ground with pre-contact origins.291
284 Transcript, January 20, 2005, David Setah Direct Exam, 00030, 3 to 28; 285 See Appendix 1D, Summaries of Traplines 286 See for example Exhibit 0468-01-1937/02/09.002, Application for Registration of a Trapline, Tommy Lulua; Exhibit 0468-02-1929/10/25.002, Application for Registration of a Trapline, Lashway Lulua 287 See Appendix 2, paras. 177 to 185. 288 See Appendix 2, paras. 177 to 185; Joseph William, Affidavit #1, paras. 34, 110 to 115. 289 See Appendix 2, paras. 174 to 176. 290 See Appendix 2, paras. 171 to 173. 291 Exhibit 0246, Land Use and Occupancy Map created by Dr. Ken Brealey.
51 Tsilhqot’in oral history identifies late fall hunts of migrating deer in this area dating back to times of the ?esggidams (Tsilhqot’in ancestors).292 Tsilhqot’ins continued to winter in this area until after the mid-20th century in cabins, regularly trapping muskrat, beaver, squirrels, rabbits and lynx, including for food.293 The oral history indicates that the ?esggidams likewise trapped in this area of the eastern Trapline.294
101. Provincial trapline records provide further evidence of a continuous history of Tsilhqot’ins trapping in the eastern trapline part of the Claim Area.295 Registration records indicate that Tsilhqot’ins had been pursuing this wintertime activity in their trapline areas as part of their traditional lifestyles over long periods of time. 296
(iv) Mountains of the Claim Area
102. In addition to the Claim Area’s lower elevations, the Tsilhqot’in have used its mountainous regions during winter to trap and hunt for higher elevation and other species since pre-contact times.
103. British Columbia has admitted the Aboriginal right to trap and hunt in the Claim Area mountains of Ts’il?os Park, which is premised upon a continuity of pre-contact trapping and hunting therein.297 Tyhurst depicted the Tsilhqot’in winter practice of bear, snowshoe hare and fur trapping in pre-settlement times as continuing into late winter during February – March. Dewhirst, based on Lane, indicated that in late winter Tsilhqot’in families dispersed “to search for game.” Dr. Lane (1953) noted that “[i]n winter, snowshoes were used… on hunting trips in the mountains…”.298 According to Lane the many “hunting techniques” of the Tsilhqot’in included “snares and traps [as] the most important means of obtaining both animals and birds”,
292 See for example Transcript, December 2, 2003, Francis Setah Direct Exam, 00036, 42 to 00041, 32; 293 Exhibit 0355, Affidavit of Joseph William, December 17, 2004 at paras., 31, 34., 110-112, 115; Exhibit 0439, Affidavit #1 of Cecilia Quilt, para. 26, 30, 38; Transcript, November 5, 2004, Julie Quilt Direct Exam, 00022, 6 to 29; Exhibit 0417, Affidavit of Lloyd Myers, May 6, 2005, para. 60. 294 Exhibit 0439, Affidavit #1 of Cecilia Quilt, para. 30, 38; Transcript, November 5, 2004, Julie Quilt Direct Exam, 00022, 6 to 29. 295 See Appendix 1D, Summaries of Traplines 296 See for example Exhibit 0468-15-1931/05/16.006, Application for Registration of a Trapline, Andy George 297 Exhibit 0483.029, BC’s Reply to Notice to Admit (November 7, 2005), Response 1 298 Exhibit 0175, 1953, Cultural Relations of the Chilcotin Indians of West Central British Columbia, Ph.D. Thesis, Robert Lane, 44, 47.
52 including “traps… of the deadfall variety.”299 Thus, it is clear that Lane included trapping as a winter activity on “hunting trips in the mountains.” Dr. Dinwoodie stated “[a]s a group, the Tsilhqot’in trapped all the animals available in the area” and specifically noted Father Morice’s observation that the Tsilhqot’in trapped higher elevation animals such as marten, fisher, wolverine, marmots and mountain goats.300 This corroborates Tsilhqot’in oral history of trapping and hunting higher elevation animals such as marten, fisher, wolverine, marmots, mountain goats, and mountain sheep since ancestral times, as discussed in detail in Section 5I, Aboriginal Trapping Rights.
104. Winter ventures to the mountainous Claim Area continued in the 20th century. Tyhurst noted:
In the recent past (1900-1950), fur trapping parties from Stone and Nemiah have ranged as far south as Lord River, at the extreme southern end of Taseko Lake; and from Nemiah 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, … extends northwest from the Bridge River-Lillooet area, through Chilko Lake to the Dean River, …”301
105. According to Francis William, at Franklyn Arm (the south west side of Chilko Lake) and at Tsilhqox Tu Tl’az (the southern tip of Chilko Lake), he, his family and many other Tsilhqot’ins often trapped and hunted for marten, squirrels and mountain goat during winter.302 According to Norman George Setah, many Tsilhqot’ins have trapped in the mountains and watersheds leading up into the mountains, surrounding Tsilhqox Biny (Chilko Lake), including the ancestors. 303 Mr. Setah has made this same trip with his father Willy Setah and great-grand father ?Ewinewin (Johnny Setah), trapping for deer, cougar, squirrel, marten, fisher, wolverine,
299 Exhibit 0175, 1953, Cultural Relations of the Chilcotin Indians of West Central British Columbia, Ph.D. Thesis, Robert Lane, 44. 300 Exhibit 0224, Expert Report of Dr. David Dinwoodie, at 54, 59. 301 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 108. 302 Exhibit 0158, Affidavit #2 of Francis William, April 30, 2004, at paras. 77, 78 and 86 to 95. 303 Transcript, November 18, 2004, Norman George Setah Direct Examination, at 00002, 28 to 00020, 39 and at 00022, 12 to 00028, 25 and at 00032, 30 to 00033, 9. According to Mr. Setah, the following elders have trapped in the mountains and watersheds surrounding Chilko Lake: Sit’ax, ?Ewinewin (Johnny Setah), Little George Setah, Willy Setah, K’utan, Alec Jack, Andy George, ?Eskish (Captain George), Hadediny (Jack Lulua), Lashway Lulua, Lebusden, Sam Bulyan. Moreover, Mr. Setah explained that his great grandfather ?Ewinewin taught him that his own grandfather made this same trip to camp, hunt and trap around Chilko Lake.
53 fox, coyote, mink and weasel.304 Joseph William and his family trapped marten, otter, mink, wolverine and beaver in the southeastern mountains near Taseko Lake305. In earlier times, Chief Louie Quilt and his wife would winter east of Nabas, when he would “go up into the snow mountains in winter to hunt and trap.”306
106. Provincial trapline records provide further evidence of a continuous history of Tsilhqot’ins trapping in and around the mountains of the Claim Area.307 Registration records indicate that Tsilhqot’ins had been pursuing this wintertime activity in their trapline areas as part of their traditional lifestyles over long periods of time. Lashway Lulua's 1929 application for his trapline in and around the mountains between Talhiqox Biny (Tatlayoko Lake) and Tsilhqox Biny (Chilko Lake) indicates that he had trapped in that area all his life.308 William Setah’s application for a trapline at the south end of Tsilhqox Biny (Chilko Lake) indicates that it was his father’s trapping area before him.309
i. Winter Fishing Grounds and Dried Foods
107. In his table regarding the “yearly cycle” of Tsilhqot’in land use pre-settlement, anthropologist Robert Tyhurst (1984) depicts ice-fishing as beginning in late November and carrying through to the end of February.310 Tyhurst added that “the traditional Chilcotin yearly cycle of activities…was further influenced by the necessity of obtaining lake fish in an unusually severe winter, or in one which had been preceded by a poor salmon run.”311 Lane (1954) likewise wrote that when mid-winter weather was severe everyone fished.312 Dr. Turkel in turn characterized Tsilhqot’in life in early mid-winter as a time of the first real cold, when people
304 Transcript, November 18, 2004, Norman George Setah Direct Examination, at 00002, 28 to 00020, 39 and at 00022, 12 to 00028, 25 and at 00032, 30 to 00033, 9; Exhibit 0214DIG, Norman George Setah Digitized Map, Exhibit 0214LEG, Norman George Setah Map Legend; Exhibit 0213DIG, Norman George Setah Digitized Map, Exhibit 0213LEG, Norman George Setah Map Legend. 305 Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, at para. 112(d), (i) and 113. 306 Exhibit 0439, Affidavit #1 of Cecelia Quilt, May 6, 2005, para. 27(h) 307 See Appendix 1D, Summaries of Traplines 308 Exhibit 0468-02-1929/10/25.002, Application for Registration of a Trapline, Lashway Lulua 309 Exhibit 0468-08-1956/10/12.005, Application for Registration of a Trapline, William Setah 310 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 53. 311 Ex Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 51. 312 Exhibit 0175, 1953, Cultural Relations of the Chilcotin Indians of West Central British Columbia, Ph.D. Thesis, Robert Lane, p. 42.
54 stayed close to home, primarily ice fishing on the lakes for whitefish, trout and suckers, and frequently dieting on dried salmon, roots and berries.313
(i) Winter Fishing Grounds
108. The Tsilhqot’in have been fishing lakes of the Claim Area every winter since prior to Crown sovereignty.
109. Trout, including dolly varden, rainbow trout and kokanee, are found in all but the warmest and shallowest of the Claim Are lands on the Chilcotin plateau.314 Whitefish are found in the larger and colder lakes of the plateau.315 According to Tyhurst, in the winter when ice covered the lakes Tsilhqot’in people would set their lhughembinlh (gillnets) for trout. At times, they would also use these nets to catch whitefish by cutting holes through the ice near the shore, or near a stream outlet which kept a small patch of water clear of ice. 316 Like trout, whitefish were an important source of food.317
110. Councilor David Setah described his family’s method of ice-fishing annually on Xeni Biny (Konni Lake). They would make a series of holes in the ice, run a gill net down one hole and pull it out the next hole with a pole so as to fish under the ice.318 Dr. Lane also reported on this technique.319 Historically, the nets were made of silverberry or false dogbane bark twine320 and were built using wood gauges to maintain constant mesh size. When in use, the nets would be anchored along the bottom and at either end.321 Two grooved stones that appeared to be net
313 Exhibit 0408, June 2004, The Archive of Place: Environment and the Contested Past of a North American Plateau, Ph.D. Dissertation, William Turkel, 157. 314 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 57. 315 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 60. 316 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 58, 57. 317 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 60- 61. 318 Transcript, January 17, 2005, David Setah Direct Exam, at 00008, 26 - 00009, 21; January 18, 2005, David Setah Direct Exam, 00036, 19 to 39. 319 Exhibit 0175, Dissertation of Robert Lane, at 43, 50 320 Exhibit 0177, Dissertation of Robert Tyhurst, at 50; Transcript, November 19, 2004, Nancy Turner, at 00069, 22-28 321 Transcript, January 17, 2005, David Setah Direct Exam, at 00045, 43 – 00046, 9
55 sinkers were excavated from a partially eroded (Athapaskan) pit house site near Brittany Creek on the Chilko River by the Eagle Lake Archaeological Project in August 1979.322
111. In addition, Tyhurst states “[i]ce-fishing with a bone lure (jigged in the water below the ice to attract the fish) and fish spear (or gaff) was widely used to obtain whitefish during the winter months, but trout were apparently sometimes taken by this method as well.”323 Essentially describing this method, elder Mabel William relayed the oral history teaching of her paternal grandfather:
Grandfather Bendzi taught me that he had lived in niyah qungh too when he was younger. … 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:
(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.324
112. Both the anthropology and oral history establish that Tsilhqot’ins cooked their lake fish by roasting them on ?elhts’ilch’el (fish cooking sticks) inclined towards a fire. (see Exhibit 47).325 Likewise, both show that the Tsilhqot’in made boiled fish soup by adding hot stones to
322 Exhibit 0177, Dissertation of Robert Tyhurst, at 57-58 323 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 61. 324 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, para. 30(iv); Transcript, March 8, 2004, Minnie Charleyboy Direct-Exam, at 00005, 13-37. 325 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 60; Transcript, November 18, 2003, Francis Setah Direct Exam, 00014, 36 to 00016, 17.
56 soup mixtures in qats’ay (spruce root baskets) (see Ex. 48).326 Tyurst added that “[I]n winter, of course, below-freezing temperatures meant that any fish caught in excess of immediate need could be cached, and would be keep until spring.”327
113. As discussed already, Tsilhqot’in winter house sites “were selected with a view to… conveniently located fisheries…” Known Tsilhqot’in winter houses dating pre-Crown sovereignty are located in the Claim Area at the following lakes:
(a) Lhuy Nachasgwengunlin Biny (Little Eagle Lake); (b) Gwedzin Biny (Cochin Lake), (c) Talhiqox Biny (Tatlayoko Lake); (d) Naghatalhchoz Biny (Big Eagle or Choelquoit Lake); (e) Biny Gwechugh (Canoe Crossing); (f) Tsilhqox Biny (Chilko Lake) at Gwedats’ish; (g) Tsilhqox Biny at Ch’a Biny (… Lagoon) (h) Ts’uni?ad Biny (Tsuniah Lake) at Ts’utalh?ad (in the north); (i) Ts’uni?ad Biny (in the southwest); (j) Tsilhqox Biny at Sesghen Tachi in Xeni (Nemiah Valley); (k) Xeni Biny (Konni Lake) at Tl’ebayi (l) Xeni Biny at ?Etan Ghintil; (m) Xeni Biny at Tl’etsinged; (n) Xeni Biny at Naghataneqed; (o) ?Elhghatish Biny (Elkin Lake) at ?Elhghatish; (p) Nabi Tsi Biny (Vedan Lake) at ?Elhghatish; (q) Natasawed Biny (Brittany Lake); (r) Benchuny Biny; and (s) Teztaun Biny (Fish Lake).
326 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 60; Transcript, November 18, 2003, Francis Setah Direct Exam, 00016, 18 to 00018, 42; 00043, 3 to 00044, 4 327 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 59.
57 114. It is highly probable that the Tsilhqot’in had pre-Crown sovereignty winter fisheries at each one of these winter house sites in the Claim Area, as well as other lakes therein. The fact each of these lakes and others have a Tsilhqot’in name suggests as much. The oral history confirms that Tsilhqot’in people had winter fisheries dating back centuries in Xeni (Nemiah Valley), on east Tsilhqox Biny (Chilko Lake) and Xeni Biny (Konni Lake), and at Gwedzin Biny (Cochin Lake).328 The historical record from 1825 establishes that Tsilhqot’ins had a winter trout and whitefish fishery at the entrance to Tsilhqox Biny (i.e. at Gwedats’ish).329 Dr. Brealey’s mapping of Tsilhqot’in land use and occupancy depicts pre-contact Tsilhqot’in in the areas of Naghatalhchoz, Biny Gwechugh, Tsilhqox Biny, Ts’uni?ad Biny, Xeni Biny, ?Elhghatish Biny and Nabi Tsi Biny.330 Anthropologist John Dewhirst opined that the Tsilhqot’in use and occupation of the northwest trapline around Lhuy Nachasgwengulin Biny, Gwedzin Biny and Naghatalhchoz Biny included reliance on fisheries.331 Finally, Dr. Lane (1954) wrote:
At mid-winter all of a band might be concentrated in certain parts of the territory, hunting around and fishing at various lakes.332
(ii) Winter Food Storage and Dried Foods
115. The Tsilhqot’in dried and stored foods procured through their annual round of land use for eating at their winter dwellings. The anthropology is instructive on this point. Dr. Lane recorded that “food was stored in pits and hung in trees or suspended from poles raised off the ground.”333 Open platform caches were used, but they may have been recently introduced.” Tyhurst likewise wrote “[c]achepits near dwellings, tree caches, and small rectangular log
328 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 40; Transcript, November 9, 2004, Norman George Setah Direct-Exam, at 00036, 15 – 00038, 8; Transcript, November 18, 2004, Norman George Setah Direct Exam, 00001, 37 to 00002, 27; For continuity see Transcript, January 17, 2005, David Setah Direct Exam, at 00008, 26 - 00009, 21; January 18, 2005, David Setah Direct Exam, 00036, 19 to 00037, 9; Transcript, March 8, 2004, Minnie Charleyboy Direct Exam, 00004, 3 – 00007, 5; Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at paras. 20-21 329 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, paras. 169 to 172, 176; E Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, para. 50(vi). 330 Exhibit 0246, Land Use and Occupancy Map created by Dr. Ken Brealey. 331 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, para. 276. 332 Exhibit 0175, 1953, Cultural Relations of the Chilcotin Indians of West Central British Columbia, Ph.D. Thesis, Robert Lane, 171. 333 Exhibit 0175, 1953, Cultural Relations of the Chilcotin Indians of West Central British Columbia, Ph.D. Thesis, Robert Lane, 45.
58 structures were used to store articles such as dried salmon.”334 This is confirmed by Tsilhqot’in oral history. Growing up with his grandmother Daldod, elder Francis Setah’s family would hang their dried goods during the winter.335 Elder Elizabeth Jeff in turn provided:
Tsilhqot’ins used to store their dried food for winter underground. They would do that for the dry meat of the different animals, the dried fish like salmon, and the dried plants like soapberries, mountain potatoes, beartooth and silverweed. They used to dig a hole and put bark on the bottom, then the food, then more bark, then more food and do it like that all the way up. Then they’d put dirt on top. My grandmother Elaine taught me all this. She taught me that this had been going on from the ?esggidam (Tsilhqot’in ancestors) down the generations to her time. When my grandmother Elaine was growing up people had started storing their winter food above ground. They would make a box from logs stacked closed together on each side. That is what they would store their food in. They put a top on too and weigh it down so animals couldn’t get in. Grandmother Elaine taught me all this. Grandmother told me she used to wrap a hide around the dry meat, sew it up and put it inside the box.336
116. The oral history, historical record and academic opinion all show that the Tsilhqot’in dried and stored winter foods consisting of plants, fish and meats harvested through the year.337 Plants of primary importance included roots and berries harvested and preserved in the early summer, such as suntiny (i.e. mountain potato or spring beauty) and nuwish (soapberry).338 Dried fish included the jas (spring salmon), ts’eman (sockeye salmon) and nilhish (kokanee) of late summer and early fall fishing.339 The wide variety of dried meats included the nists’i (deer), sebay (mountain goat), dediny (marmot) and ses (bear) taken during the summer and fall.340 Of
334 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 50. 335 Transcript, November 27, 2003, Francis Setah Direct-Exam, 00014, 4 – 00016, 16 336 Exhibit 0431, Affidavit #1 of Elizabeth Jeff, October 8, 2004, paras. 13-14. 337Exhibit 0408, June 2004, The Archive of Place: Environment and the Contested Past of a North American Plateau, Ph.D. Dissertation, William Turkel, 157; Transcript, May 25, 2006, Morley Eldridge Cross Exam, 00049, 9 to 17; Ex 0156-1831/00/00.001 at p. 3000009, Cox’s Adventures 1831; Ex 0156-1872/08/20.001 at p. 1, Letter O-Reilly to Prov. Secretary; Ex 0156-1872/11/29.001 at p. 2000320, Letter from Marcus Smith to Walkem Nov 29, 1872; Ex # 0156-1825/07/20.001 at p. 117614, Connolly’s Journal Dec 18, 1825; Ex # 0156-1825/07/20.001 at p. 117617, Connolly’s Journal Dec 18, 1825; Ex 0156-1845/11/30.001 at p. 2195818, Father Nobili’s Letters, 1845; Ex 0156-1845/11/30.001 at p. 2195823, Father Nobili’s Letters, 1845; Ex # 0156-1826/05/02.001 at p. 117648, Connolly’s Report 1826; Ex 0156-1905/12/04.001 Letter from Phair to Williams, Provincial Game Warden, Dec 4, 1905; Ex 0156-1875/08/24.001 at p. 2036712, Dawson’s Journals 1875-8. 338 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 50. 339 Exhibit 0175, 1953, Cultural Relations of the Chilcotin Indians of West Central British Columbia, Ph.D. Thesis, Robert Lane, 45. 340 Exhibit 0177, July 1984, The Chilcotin, An Ethnographic History, Draft Ph.D. Dissertation, Robert Tyhurst, 101-102.
59 these meats, Tyhurst noted “strips of dry meat are tough and smoky-flavoured. They are invaluable to hunters or trappers who must travel lightly.”341
341Ex. 0177, Robert Tyhurst, 102.
60 2. ?EGHULHTS'EN (SPRING)
117. Come ?eghulhts’en (spring), rainbow trout of lakes on or about the Claim Area plateau lands move into the creeks to spawn.342 Similarly, steelhead spawn in the Chilko River.343 The Tsilhqot’in schedule of annual land use exploited this seasonal variation through a set of well- adapted and elaborate fish trap technologies. The evidence set out below shows that this did so in a sustainable manner and across the Claim area since before, at and after Crown sovereignty. The spring fishing grounds were also associated with nearby camping, hunting, gathering and horse grazing grounds.
a. Spring Fishing Grounds
118. A classic example of the Tsilhqot'in spring fishery are the aged grounds at Ts'uni?ad Yeqox (Tsuniah Creek). This fishery is located at the outlet of Ts’uni?ad Biny (Tsuniah Lake) in the central Claim Area, proximate to Tsilhqot’in lhiz qwen yex (winter pithouses).344 During the Chilcotin War of 1864, Cox prepared a rudimentary map of the western Claim Area lands based on information originally provided by Tsilhqot’in Chiefs Alexis and Eulas. The map shows this location as a Tsilhqot’in fishery, with the notation “Certain to Find Indians Here in Spring.”345 The map also depicts a Tsilhqot’in trail that runs through Ts’un?iad (Tsuniah Valley) and connects to this fishery. Anthropologist John Dewhirst identified this spring fishery as clearly dating prior to 1846,346 as does Tsilhqot’in oral history.347 Fishing on the site continued to be practiced on an annual basis in the mid-20th century when Tsilhqot’in Elder Francis Setah and
342 Exhibit 0160, Affidavit #1 of Doris Lulua, March 3, 2004, at para. 7; Exhibit 0166, Expert Report of Douglas Hudson, at 11; Exhibit 0177, Dissertation of Robert Tyhurst, at 53-54, 57, 248; Transcript, November 18, 2003, Francis William Direct-Exam, at 00003, 11-27; Transcript, November 4, 2004, Norman George Setah Direct- Exam, at 00051, 11-15. 343 Exhibit 0177, Robert Tyhurst Draft Dissertation, at 53-54. 344 Transcript, November 18, 2003, Francis Setah Direct-Exam, 00009, 5-17; Transcript, April 2, 2004, Ubill Lulua Cross-Exam, at 00016, 25 - 00017,1; Exhibit 0371-DIG, Map Evidence of Gilbert Solomon Showing lhiz qwen yex (pithouse) locations; Transcript, July 11, 2002, Martin Quilt Direct-Exam, at 299-301 345 Exhibit 0265-1864/00/00.001, Untitled Map [BC Department of Lands and Works] Sketch showing location of Bute Inlet Massacre C. 1864, BCA, CMA-366 SH.2 Map Collection Negative #363266 346 Exhibit 0442, Expert Report of John Dewhirst, at 51, 65 347 Exhibit 0160, Affidavit #1 of Doris Lulua, March 25, 2004, at paras. 4, 6-8; Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, paras. 7-17; Exhibit 0013, Affidavit #1 of Ubill Lulua, November 20, 2002, at paras. 58-59, 108-112, 114-119, 127, 130-131
61 others were being raised in the ongoing Tsilhqot’in pattern of ancient seasonal land use.348 The fishery area on Ts’uni?ad Yeqox was set aside as reserve land.
119. Another ancient and annual Tsilhqot’in spring fishery was at Tses Nanint’i on Xeni Yeqox (Nemiah Creek) in west Xeni (Nemiah Valley). It is located just east of the Tsilhqot’in lhiz qwen yex (winter pithouse) site at Ses Ghen Tachi on Tsilhqox Biny (Chilko Lake),349 at the junction of ancestral Tsilhqot’in trails from Ts’uni?ad in the north, Xeni in the east and Yuhitah in the south.350 Both elders Francis Setah and Mabel William gave oral history evidence of this spring fishery, popular with Tsilhqot’ins from Xeni, dating back centuries to the time of the ?esggidams (Tsilhqot’in ancestors).351 Elder Francis Setah remembers it being used by Tsilhqot’ins when he was young and traveling through the area.352 The fishery area is part of reserve land in west Xeni (Nemiah Valley).
120. In addition to the Tsilhqot’in fisheries on Ts’uni?ad Yeqox and west Xeni Yeqox, the historical record, Tsilhqot’in oral history and expert evidence identify several other spring fisheries within the Claim Area. With few exceptions, these Tsilhqot’in fisheries were carried on during the 19th century before the devastating smallpox of the early 1860s and before any pretense of Crown sovereignty. They are all located at places with Tsilhqot’in names, and along Tsilhqot’in trails dating prior-to European contact:
Gwedats'&sh Located an aged Tsilhqot’in village site, in 1827, McGillivary (at entrance to noted this fishery at the mouth of Chilko Lake as being abundant Chilko Lake)353 with trout, whitefish and suckers in spring.354 Dewhirst described this fishery as central to Tsilhqot’in occupation of the Chilko Lake area.355 In 1872, Marcus Smitt affirmed the spring fishery as ongoing.356 Elder Doris Lulua gave evidence that elders fished here for dolly varden, trout and whitefish when she was being raised.357
348 Transcript, November 18, 2003, Francis Setah Direct-Exam, at 00003, 28-32; Transcript, Norman George Setah Direct-Exam, at 00014, 32 - 00015, 36; Exhibit 0442, Expert Report of John Dewhirst, at 66 349 Exhibit 0093-DIG, Map Evidence of Francis Setah, at "82" 350 Appendix 6, Map "C" Transcript, Francis Setah Direct-Exam, December 19, 2003, at 00038, 26-35 351 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 40; Transcript, Francis Setah Direct- Exam, November 19, 2003, 00040, 1 - 00043, 20 352 Transcript, Francis Setah Direct-Exam, November 19, 2003, at 00040, 8-15 353 Exhibit 0093-DIG, Map Evidence of Francis Setah, at "151"
62 Tsilhqox Harry Setah gave evidence about fishin~ for dolly varden and (Chilko River) trout at Henry's Crossing in the spring.' 8 Fishing for steelhead also occurred nearby at Tsi T'is Gunlin.359 Fishing for steelhead has gone on there since the time ofthe ?esggidam36o Spring fishing occurred along many ofthe fall salmon running areas including: Nusay Bihinlin, Ts'eman Ts'ezchi, Nezulhtsin's fishing place, Nalch'enz, Tish'elax, Ts'u Nintil, Gwedeldon Dany, Nagwenajes, Biny Gwechu~h, SuI Gunlin, 3 Naghelilhchiny and Gwedats'ish I The river is lined on both Sl.des Wit . h t h e remains . 0f lhi 1Z gwen yex. 362
Lhuy Nachasgwengulin In 1863, Waddington located a fishery here at the southwest (Little Eagle Lake) outlet ofthe lake, with trails connecting it to Tatl'ah Biny (Tatla Lake) and Talhiqox Biny (Tatlayoko Lake). Dewhirst concluded that "the fishery and the connected trail network must have formed only as a result ofmany years ofcontinued use and occupancy that must pre-date 1846.,,363 This lake is one ofthe lakes resided on by the Tsilhqot'ins under ChiefKeogh headquartered at Tatl'ah Biny364
Gwedzin 30' This lake is another ofthe lakes resided on by the Tsilhqot'ins (Cochin Lake) under ChiefKeogh headquartered at Tatl'ah Biny.J66 In 1875, Dawson reported finding several fish traps cached in the bushes here at the southeast outlet ofthe lake. 36 Elder Patricia Guichon described her extended family fishing at Gwedzin in June. She noted that her ?etsu (grandmother) Kanlh's368 mother (the wife of ChiefKeogh) also fished there 369 John Dewhirst places Chief Keogh's birth-date at 1844 or earlier. 370 Ubill Lulua identified
354 Exhibit 0443, Expert Report ofJohn Dewhirst. at 46, paras. 82.173. 355 Exhibit 0443, Expert Report ofJohn Dewhirst, at 43, para. 161. 356 Exhibit 0156-1872/11/29.002, Letter from Marcus Smith to Walkem Nov 29,1872, at2; 357 Exhibit 0162, Affidavit #3 ofDoris Lulua, at para. 96. J58 Transcript, October 12,2004, Harry Setah Direct-Exam, at 00050, 31 ~ 00051,1 359 Transcript, October 21,2004, Norman George Setah Direct-Exam. at 000 12, 19-27 360 Transcript, October 21,2004, Norman George Setah Direct-Exam, at 00031, 15 - 00032, 13 361 Transcript, March 8, 2004, Minnie Charleyboy Direct-Exam, 00024, 7-42; 00027, 17 - 00028, 10; 00023, 44 00024,6 362 Exhibit 0371-DlG, Map Evidence ofGilbert Solomon Showing lhiz gwen yex (pithouse) Locations 363 Exhibit 0443, Expert Report ofJohn Dewhirst, at 64, para. 259-261. 364 Exhibit 0443, Expert Report ofJohn Dewhirst, at 64, para. 275-276. 365 Exhibit 0014-DIG, Map evidence of Chief Roger William, at "85"; Exhibit 0240, Expert Report of Ken Brealey, at 57; 366 Exhibit 0443, Expert Report ofJohn Dewhirst, at 64, para. 275-276. 367 Exbibit 0156-1875/08/24.001, Dawson's Journals 1875-8, at 2036706 368 Transcript. May 09, 2005, Patricia Guichon Direct Examination, 00013, 46 369 Transcript, May 11,2005, Patricia Guichon Direct Exam, 00004, 4-27; Transcript, May 12,2005, Patricia Guichon Cross-Exam, 00042m 21-33; Transcript, May 9, 2005, Patricia Guichon Direct-Exam, 00010. 17-19; Exhibit 0442, Expert Report ofJohn Dewhirst, at9. 370 Exhibit 0442, Expert Report ofJohn Dewhirst, at 9.
63 Gwedzin as a historic spring fishing spot used by himselfand others, and gave evidence that Gwedzin had been Tsilhqot'in territory from the sadanx, to yedanx, to ?undidanx.371 John Dewhirst traces Tsilhqot'in use and occupancy ofthis area, including by the Guichon and Lulua extended families, to pre 1846.372
Naghatalhchoz This lake is yet another ofthe lakes resided on by the (Big Eagle or Tsilhjot'ins under ChiefKeogh headquartered at Tatl'ah Choelquoit Lake) Biny. 73 Dewhirst's evidence is that Tsilhqot'in use and occupancy ofthis area, including by the Lulua extended family, dates to pre-I 846.J74 Elder Doris Lulua gave oral history evidence ofboth the western end ofthis lake, at a tributary, and the eastern end, at the outlet, as being fish trap places during spring since the time ofthe ?esggidams (Tsilhqot'in ancestorsj.l" The oral histor~ ofElder Norman George Setah also establishes this fishery] 6
/Edibiny'" This small lake is a tributary to Naghatalhchoz (Big Eagle Lake) located just to the northeast. For elder Norman George Setah, ?Edibiny was one ofhis family's first stops in their spring fishing rounds. From there, they would move on to Gwedzin.I"
Naghataneqed, At Naghataneqed, at the east end ofXeni Biny (Konni Lake), is at Tachi Gunstol the tributary Xeni Yeqox (Nemiah Creek) in its infancy. The (east Konni Lake) oral history indicates that this has been a Tsilhqot'in spring fishery down the generations since the ?esggidams (Tsilhqot'in ancestors. 379 Th"IS area IS now reserve Ian d .
TI'ebayi Xeni Yeqox drains Xeni Biny (Konni Lake) in the west. (west Konni Tsilhqot'in oral history identifies this area as a spring fish Lake.)?" trapping area since the times ofthe ?esggidams (Tsilhqot'in ancestorsj.J" This area is now also reserve land.
371 Exhibit 0417, Affidavit #1 of UbiII Lulua, at paras. 120-123; Transcript. April 2, 2004, Ubill Lulua Direct Exam, 00024, 34 to 00025, 6. J72 Exhibit 0443, Expert Report ofJohn Dewhirst, at 61, at para. 244. m Exhibit 0443, Expert Report ofJohn Dewhirst, at 64, para. 275-276. ]74 Exhibit 0443, Expert Report ofJohn Dewhirst, at 63, at para. 255. m Exhibit 0162, Affidavit #3 of Doris Lulua, at paras. 76-81. ]76 Exhibit 0443, Expert Report ofJohn Dewhirst, at 71, para. 288; Transcript, December 8, 2004, Norman George Setah Cross-Exam, 00022 - 00023, 10 377 Exhibit 0093-DIG, Map Evidence of Francis Setah, at "139" J78 Transcript, October 21, 2004, Norman George Setah, Direct-Exam, 00007, 45 - 00008, 7 379 Transcript, November, 30 2004, Norman George Setah, Direct-Exam, 00004, 9 - 00007, 38; Exbibit 0174, Affidavit #2 ofMabel William, at para. 40. 380 Exhibit 0093-DIG, Map Evidence ofFrancis Setah, at "84"
64 Xex Ti Biny At Xex Ti Biny (Nemiah Lake), Xeni Yeqox (Nemiah Creek) (Nemiah Lake) enters from the east and exits to the west. Tsilhqot’in oral history identifies ancestral and recent fish trapping here on the creek and gill netting on the lake.382
Tsanlgen Biny383 Near the outlet of Tsanglen Biny, as well as at nearby small (Chaunigan Lake), lakes of ?Esgany Biny and Chantl’ex Biny, was a mid-20th ?Esgany Biny384 and century spring camping, fishing and trapping area for the family Chantl'ex Biny of Norma George Setah and others. This area is accessible from the south, by horse trail from Tl’ebayi in Xeni, and from the west, from Ts’uni?ad. The oral history dates Tsilhqot’in use of the area back to the ?esggidams.385
/Elhghatish386 Tyhurst identified the creek here running between ?Elhghatish Biny (Vedan Lake) and Nabi Tsi Biny (Elkin Lake) as a fish trapping area.387 Elder Ubill Hunlin testified about fish trapping here in the spring with his wife and her grandfather ?Eskish (Captain George's). Mr. Hunlin’s oral history was that ?Eskish’s father, grandfather and Tsilhqot’ins back to the ?esggidams (Tsilhqot’in ancestors) had fished here during the springtime.388 John Dewhirst independently identified this valley as the customary use area of the George family dating back to before 1843.389 It was a popular fishing spot.390
Delgi Chosh391 In spring, fish spawn in the shallow creek that drains this lake in (Big Lake) southeast Tachelach’ed and runs to the Dasiqox (Taseko River). In the mid-1900s the creek and lake fishery here was used regularly on a short term basis, including en route to sell furs.392
381 Transcript, November, 30 2004, Norman George Setah, Direct-Exam, 00007, 39 – 00009, 33; Exhibit 0174, Affidavit #2 of Mabel William, at para. 40. 382 Transcript, November 30, 2004, Norman George Setah Direct Exam, 00011, 36 to 00014, 29. 383 Exhibit 0093-DIG, Map Evidence of Francis Setah, at "37", "118" 384 Exhibit 0215-DIG, Map Evidence of Norman George Setah, at "249" 385 Transcript, November 29, 2004, Norman George Setah Direct-Exam, at 00035, 10 – 00040, 9; Transcript, October 13, 2004, Harry Setah Direct-Exam, at 00054, 20-31 386 Exhibit 0093, Map Evidence of Francis Setah, at "36", "121" 387 Exhibit 0177, Dissertation of Robert Tyhurst, at 57, 83, 244; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at 54. 388 Transcript, March 9, 2005, Ubill Hunlin Direct-Exam, at 00030, 28 – 00032, 15 389 Exhibit 0443, Expert Report of John Dewhirst, at 86, para. 352. 390 Exhibit 0179-DIG, Map Evidence of Harry Setah, at "AZ"; Transcript, October 13, 2004, Harry Setah Direct- Exam, 00063, 40 – 00064, 2; Transcript, October 21, 2004, Norman George Setah Direct-Exam, 00001, 28 - 00002, 6. 391 Exhibit 0014-DIG, Map Evidence of Chief Roger William, at "89" 392 Transcript, November 29, 2004, Norman George Setah, Direct-Exam, 00040, 10 to 42, 40; Transcript, November 30, 2004, Norman George Setah, Direct-Exam, 00004, 3-8; Transcript, October 13, 2004, Harry Setah Direct-Exam, 00064, 3 – 00065, 41; Transcript, March 9, 2005, Ubill Hunlin Direct Exam, 00030, 18 to 33.
65 Teztaun (Fish Lake) and The nascent archaeology has identified numerous Tsilhqot’in Y’anah Biny (Little Fish lhiz qwen yex both in the Claim Area at Teztaun (Fish Lake)393 Lake) and adjacent to the Claim Area at lower Yuhitah (Yohetta Valley).394 Dr. Brealey identified Teztaun as “an important fish camp”, and Y’anah Biny as “an important freshwater fishery.” Given the pattern of scheduled Tsilhqot’in land use, it is reasonable to infer that one or both of these places are aged Tsilhqot’in spring fisheries.
121. Dr. Brealey reported important pre and early-contact Tsilhqot'in travel routes along Groundhog Creek and Big Creek. These routes connect a number of lakes that cluster in and around the Eastern Trapline. There is archaeological evidence of several Tsilhqot’in winter homes at Teztaun Biny (Fish Lake).395 Chief Roger William and Martin Quilt gave evidence of fish camps at Fish Lake.396 Ken Brealey reports that Yanah Biny (Little Fish Lake) was an important freshwater fishery and that the site has "several log buildings that were built at various points in time." 397 Joseph William talked about his family's use of the north end of Dasiqox Biny (Taseko Lake) near Nadilin Yex398 and Jidid^ay399 (Onion Lake) for springtime fishing and hunting, and the gathering of early sunt'iny.400
(i) Fisheries Technology
122. At Ts’uni?ad Yeqox, the traditional Tsilhqot’in fish trap used was a set of biniwed (cone fish trap) immersed side-by-side in the creek in between xestl’un (fencing) to otherwise generally bar the creek.401 Elder Francis Setah provided graphic evidence of this technology
393 See Appendix 2, paras. 174 to 176. 394 See Appendix 2, paras. 171 to 173. 395 See Appendix 2, para. 174 to 176; Transcript, March 15, 2005, Gilbert Solomon Direct Exam, at 00038, 10 to 11; and 00040, 41 to 00043, 10; Transcript, March 17, 2005, Gilbert Solomon Direct Exam, at 00017, 18 to 00020, 44; Exhibit 240, Expert Report of Dr. Ken Brealey, p. 59, fn 115 and Map 5A. “This was an important fishing camp. Archaeological excavations have exposed 18 roasting and or pit depressions in this area.” 396 Exhibit 0003-DIG, Map Evidence of Martin Quilt, at "F1"; Exhibit 0014, Map evidence of Chief Roger William, at "93" 397 398 Exhibit 0093-DIG, Map Evidence of Francis Setah, at "31" 399 Exhibit 0093-DIG, Map Evidence of Francis Setah, at "32", "88" 400 Exhibit 0355, Affidavit of Joseph William, December 17, 2004, at paras. 60-62; Exhibit 0355, Affidavit of Joseph William, December 17, 2004, at paras. 59-60 401 Transcript, November 18, 2003, Francis Setah Direct-Exam, at 00003, 11 - 00005, 45; 00009, 5-37; 00014, 36- 43; Transcript, November 19, 2003, Francis Setah Direct-Exam, at 00026, 10-40
66 manufactured from young pine and willow woven with spruce roots.402 It was well adapted to the 2 to 3 foot depth of a smaller creek.403 Twin logs ran above the trap and creek so that people could cross and remove a biniwed when desired.404 The biniwed were emptied on shore as needed and then replaced in the creek.405 The sticks comprising the biniwed and xestl’un were spaced so as to allow smaller fish to pass through, thus creating a sustainable, size-selective fishery.406 The biniwed was also used during the spring at ?Elhxatish, the creek between ?Elhghatish Biny (Vedan Lake) and Nabi Tsi Biny (Elkin Lake).407
Biniwed (Cone Fish Trap) with Xestl’un (Fencing) - Exhibit 0044
123. In the 20th century, Tsilhqot’in families at Ts’uni?ad would also set their lhughembinlh (gill nets) in the lake, including at Ts’u Talh?ad in the north, in order to supplement their take of fish caught in the creek.408 They would often lay gill nets from a xenes (log raft).409 Both the
402 Exhibit 0044, Sketch of Biniwed and Multiple Biniwed crossing a creek; Transcript, November 19, 2003, Francis Setah Direct-Exam, at 00006, 3 - 00007, 21; Transcript, June 14, 2005, Elizabeth Jeff Cross-Exam, 00038, 45 - 00039, 22 403 Transcript, November 18, 2003, Francis Setah Direct-Exam, at 00009, 43 - 00010, 2 404 Transcript, November 18, 2003, Francis Setah Direct-Exam, at 00005, 34-38 405 Transcript, November 18, 2003, Francis Setah Direct-Exam, at 00008, 33-43 406 Transcript, November 19, 2003, Francis Setah Direct-Exam, at 00026, 21-39 407 Transcript, March 9, 2005, Ubill Hunlin Direct-Exam, at 00030, 8-24 408 Exhibit 0177, Dissertation of Robert Tyhurst, at 57-58; Exhibit 0175, Dissertation of Robert Lane, at 43, 50; Transcript, November 19, 2003, Francis Setah Direct-Exam, 00026, 42 - 00029, 24 409 Exhibit 0162, Affidavit #3 of Doris Lulua, at para. 11; Exhibit 0060, Sketch of a Raft; Exhibit 00043.018, Image of a Raft
67 lhughembinlh and xenes are pre-contact Tsilhqot’in technology,410 and elder Norman George Setah identified such fishing at Ts’u Talh?ad as dating by to the time of the ?esggidams (Tsilhqot’in ancestors).411 It can be safely assumed that such practices were also carried on at other historic Tsilhqot’in spring fish trapping locations near lakes.412
124. The Tsilhqot’in fish trap used for the spring fishery at Tses Nanint’i was the binlagh (box fish trap).413 Elder Francis Setah gave graphic evidence of the binlagh as well. It was essentially a large pine basket placed on the creek bottom and with an open top rising up above the creek. The binlagh was placed between xestl’un (fencing) thus generally barring the creek. Within the box portion in the creek was a one-way cone entrance that trapped the fish inside the box. 414 Again, the trap and fence spacing allowed small fish to pass through.415 As with the biniwed, the fish trapped in the binlagh remained alive and fresh in the creek until retrieved. Retrieval was done from above, with Tsilhqot’ins accessing the trap from a twin log crossing of the creek, adjacent to the binlagh.416 A daden, a sort of three-pronged spear originally made of bone lashed to a longer stick, was used to retrieve fish from the binlagh as they were needed. 417
410 Re the lhughembinlh, see Appendix 3, “A”, Winter; re the xenes, see Argument re Traditional Transportation Technology. 411 Transcript, November 30, 2004, Norman George Setah Direct Exam, 00022, 39 – 00024, 5. 412 Exhibit 0177, Dissertation of Robert Tyhurst, at 57-58; Exhibit 0175, Dissertation of Robert Lane, at 43, 50 413 Transcript, Francis Setah Direct-Exam, November 19, 2003, 00040, 18 - 00041, 1 414 Transcript, November 19, 2003, Francis Setah Direct-Exam, 00040, 11-15; Transcript, March 9, 2004, Minnie Charleyboy Direct-Exam, at 00001, 26 – 00006, 27; Transcript, November 19, 2003, Francis Setah Direct-Exam, 00040, 45 - 00043, 19 415 Transcript, November 19, 2003, Francis Setah Direct-Exam, 00026, 10-40 416 Transcript, November 19, 2003, Francis Setah Direct-Exam, 00041, 6-18 417 Transcript, March 9, 2004, Minnie Charleyboy Direct-Exam, 00006, 37 – 00008, 15
68
Binlagh (Box Fish Trap) with Xestl’un (Fencing) - Exhibit 0061
125. Elder Francis Setah also described a method by which a platform would be set across a shallow creek with split logs on the bottom to provide a pale background, thereby allowing fish to be taken directly by hand from the platform.418
418 Transcript, November 18, 2003, Francis Setah Direct-Exam, 00014, 1-18; Exhibit 0177, Dissertation of Robert Tyhurst, at 57-58
69
Fishing Platform - Exhibit 0045 b. Campgrounds
126. Year after year after year at Ts’uni?ad, Tsilhqot’in families would camp at the same spots within the customary campgrounds.419 In the 20th century they used canvas tents slung over log frames.420 As with the t’ish or ?eniah (drying racks), upon breaking camp these log tent frames were stored to prevent rot and to enable re-use the following year.421 Prior to tent availability the customary Tsilhqot’in shelter for spring was the ts'ah ?ets'edilhyah (pine windbreaker).422 The Tsilhqo’tin used these types of structures wherever they went for their spring fisheries.423 Ts’ah ?etse’dilhyah were essentially pine branch walls leaning against an elevated log and used to block the wind. They varied in the number of sides they had, some were four-sided using a pine log frame akin to those used for lhiz qwen yex (Tsilhqot’in pithouses) (e.g. Exhibit 0432, “C”), while some having as few as one side (e.g. Exhibit 0051).424
Ts'ah ?ets'edilhyah
419 Transcript, November 18, 2003, Francis Setah Direct-Exam, at 00003, 11 - 00005, 45; 00009, 5-37; 00014, 36- 43; 00021, 38 - 00022, 41; 00032, 36 - 00033, 29; 00039, 47 - 00041, 4; Transcript, November 19, 2003, Francis Setah Direct-Exam, at 00026, 10 – 40; Exhibit 0160, Affidavit #1 of Doris Lulua, March 3, 2004, at paras. 7, 8; Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at paras. 7-17, 96; Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, at 11. 420 Exhibit 0050, Sketch of a tent with pole frame; Transcript, November 20, 2003, Francis Setah Direct-Exam, at 00002, 24-32; Transcript, November 19, 2003, Francis Setah Direct Exam, 00008, 10-26. 421 Transcript, March 24, 2004, Minnie Charleyboy Direct-Exam, at 00004, 24-37; Transcript, November 19, 2003, Francis Setah Direct Exam, 00007, 29 - 00009, 10; Transcript, December 4, 2003, Francis Setah Direct Exam, at 00039, 38 - 00040, 15. 422 Exhibit 0432, Affidavit #2 of Elisabeth Jeff, November 13, 2004, at para. 19; Transcript, November 18, 2003,Francis Setah Direct Exam, 00022, 42 - 00024, 27; Transcript, December 8, 2003, Francis Setah, 00002, 12 - 46. 423 Transcript, March 9, 2005, Ubill Hunlin Direct Exam,00026, 35 – 00030, 22; March 14, 2005, 00005, 46 - 00006, 42. 424 Transcript, June 14, 2005, Elizabeth Jeff Cross-Exam, at 00038, 45-00039, 22; Transcript, November 18, 2003,Francis Setah Direct Exam, 00022, 42 - 00024, 27.
70
Exhibit 0432, "C"
Exhibit 0051
127. The Tsilhqot’in ate their spring fish as they did their winter lake fish, roasting it by the campfire with the ?elhts'ilch'el? (fish roasting stick), or in a soup boiled in their qats’ay (spruce
71 baskets) with a series of hot rocks.425
?Elhts'ilch'el? (Fish Roasting Stick) Qats’ay (Spruce Root Basket) Exhibit 0072 Exhibit 0048
128. The Tsilhqot’in camped at their spring fisheries customarily for about a month or more; it took that long to obtain and dry the quantity of fish needed for later use.426 The drying was done with a t’ish or ?eni?ah (drying rack), made from pine logs lashed with spruce roots.
425 Transcript, November 27, 2003, Francis Setah Direct-Exam, 00011, 2 – 00013, 13; 00010, 5-45 426 Transcript, November 27, 2003, Francis Setah Direct-Exam, 00038, 16-26; Transcript, June 14, 2005, Elizabeth Jeff Cross-Exam, 00038, 45 - 00039, 22
72 Upon departing they would leave such drying racks stored upright for use the very next year. 42J Tsilhqot'ins would also store their fish trap and drying sticks on site for the following spring. 428
Tish - Exhibit 0049 c. Hunting Grounds
129. Tsilhqot'in spring fisheries dating pre-Crown sovereignty were embedded within Tsilhqot'in spring hunting grounds.V" As the land dried from the spring melt, Tsilhqot'ins hunters left camp to hunt deer, ducks and geese as needed.P" The deer were lean from winter and generally en route in their annual migration back to the mountainous southern Claim Area.431 The Tsilhqot'in were efficient, using near every part ofthe deer for food: meat, heart, lungs, kidney, stomach, intestines, hooves, and bladder.432 Meat would be flavored with wild onions
427 Transcript, March 24, 2004. Minnie Charleyboy Direct-Exam, 00004,29 - 00005, 3 428 Exhibit 0156-1875/08/24.001, Dawson's Journals 1875-8 at 2036706 429 Transcript, October 13, 2004, Harry Setah, at 00058, 44, - 00059, 4; Transcript, May 1J, 2005, Patricia Guichon, at 00005, 5-8; Exhibit 0013, Affidavit of Ubill Lulua, November 20, 2002, at paras. 127-131. 430 Exhibit 0443, Expert Report ofJohn Dewhirst, at 10; Exhibit 0177, Dissertation of Robert Tyhurst, at 53. 431 Transcript, October 21, Norman George Setah Direct-Exam, at 00032, 28-32; 00033, 33-45; Exhibit 0503, Expert Report ofLarry Davis, at 8 432 Transcript, November 18,2003, Francis Setah Direct-Exam, at 00042, 2-43; Transcript, November 25,2003, Francis Setah Direct-Exam, at 00039, 39-45, Exhibit 0054, Sketch ofDeer Bladder Filled with Fat
73 harvested from the forest near the fishing sites 433 The meat was a cut in a variety ofmanners and roasted by the campfire on the bisqwen (meat cooking stick);434
I I -j;I t(I
Exhibit 0053 - Bisqwen
130. Elder Francis Setah mapped his evidence regarding spring hunting at Ts'uni?ad.435 Evidence mapped in court by a number ofTsilhqot'in layout specific areas around spring fishing grounds that were used for hunting. David Setah's map evidence, Exhibit 0258, illustrates deer (AB) and moose hunting (AA) areas that surround the spring fisheries at Naghatalhchoz, Ti'ebayi and Ts'uni?ad Yeqox. 436 David Setah described taking moose from ?Abalach'ez Biny.437 He also testified that his family would also hunt east of ?Elhghatish Biny (Vedan Lake) and Nabi Tsi Biny (Elkin Lake) in the spring near the fishing site at ?Elhghatish. He described using deer migration routes in the late spring as deer move back towards the mountains and identified Red Mountain (east ofDasiqox) as a place where he could take advantage ofmigration patterns.438
433 Transcript, October 21,2004, Norman George Setah, 00034, 12 - 00035, 46; 00037,26 - 00039,7 434 Transcript, November 18, 2003, Francis Setah Direct-Exam, 00041,13 - 38 435 Exhibit 0094-DIG, Map Evidence ofFrancis Setah, at "C"; Transcript, November 18,2003, Francis Setay Direct-Exam, 00033, 30 - 00035, 25 436 Transcript, January 17,2005, David Setah Direct-Exam" at 00037, 38-40; 00041, 18 - 00042, 13 437 Exhibit 0258-DIG, Map Evidence ofDavid Setah, at "124" 438 Transcript, January 18,2005, David Setah Direct-Exam, 00047, 23-37; 00049, 41-47; Exhibit 0014-DIG, Map Evidence of Roger William, at "110"; Transcript, January 18,2005, David Setah Direct-Exam, 00055, 42 - 00061, 15
74 There are very old deer blinds in this area that were used to take deer with bow and arrow.439 Joseph William provided evidence that his family would fish at Jidid^ay each spring and hunt in the areas around Nadilin Yex on both sides of Dasiqox. At this time of the year they would also trap beaver and muskrat, eating the meat and selling the fur.440
131. Elder Patricia Guichon described hunting around Gwedzin during the spring fishery as a practice that has been going on for a very long time; her grandmother Kanlh told her that her own mother hunted there. 441 Elder Ubill Lulua described hunting for moose, deer, ducks and other game while spring fishing at Ts'uni?ad, Gwedzin and Biny Gwechugh; he stressed the need to hunt in a number of different areas in order to prevent over-hunting.442 Norman George Setah described taking muskrat around Gwedzin in the spring, and then moving east into Degli Chosh and the small lakes around Neba?elhnaxnenelh?elqelh (Captain George Town) where muskrat trapping was better.443 He also described trapping beaver in the spring on the small islands of the Tsilhqox (Chilko River) from Nusay Bighinlin to Tsi T'is Gunlin, as well as at Tl'ech'id Gunaz (Long Valley).444 Norman George Setah described people taking deer in the spring as they moved down from Gwedzin towards the northern short of Talhiqox Biny (Tatlayoko Lake); he noted that hunting near these fishing areas had been going on since the time of the ancestors according to stories told to him by Elders such as Tommy Lulua and Hadediny.445
132. David Setah gave evidence of taking geese and ducks in the springtime in the areas around Tsilhqox Biny (Chilko Lake), Lhiz Bay Tabanx, Xeni Yeqox (Nemiah Creek), Xexti and along the west and east ends of Xeni Biny (Konni Lake).446 He described returning to those fowl hunting areas annually.447 Spring is a good time for duck and geese hunting as they are usually
439 Transcript, January 18, 2005, David Setah Direct-Exam, at 00058, 39, - 00061, 19; Transcript, December 8, 20904, Norman George Setah Direct-Exam, at 00023, 32 – 00024, 40 440 Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, at paras. 59-62 441 Transcript, May 11, 2005, Patricia Guichon, at 00005, 5 - 00006, 17 442 Exhibit 0013, Affidavit of Ubill Lulua, November 20, 2002, at paras 127-129 443 Transcript, October 21, 2004, Norman George Setah, 00011, 35 – 00016, 21 444 Transcript, October 21, 2004, Norman George Setah, at 00016, 32 – 00017, 32; Transcript, November 4, 2004, Norman George Setah Direct-Exam, at 00059, 25 – 00061, 6 445 Transcript, October 21m 2004, Norman George Setah, at 00022, 5 – 00034, 11 446 Transcript, January 17, 2005, David Setah Direct-Exam, at 00042, 14 - 00043, 43 447 Transcript, January 17, 2005, David Setah Direct-Exam, at 00020, 39 – 00021,1
75 fat then.448 Norman George Setah spoke about taking ?elhtilh (prairie chicken) during the rut in April and May. Snares would be set along trails made for them. He said this was done by the ancestors using sinew tied to rock as a snare, and reported that this was done near Naghatalhchoz.449
d. Gathering Grounds
133. Tsilhqot’in spring fisheries also had associated gathering grounds.450 Robert Tyhurst describes the collection of pine cambium, balsam root, and sunflower at this time of year.451 For example, at Ts’uni?ad, Tsilhqot’ins would gather the cambium of pine trees from specific areas where it was "good."452 Cambium was collected by making a horizontal incision in the tree bark, peeling a lengthy section of bark of the tree, then shaving curled strips of cambium off the tree for eating.453
e. Horse Grazing Grounds
134. Finally, many Tsilhqot’in had horses well before Crown sovereignty in British Columbia.454 In 1872, Marcus Smith wrote:
… [O]n the northwest of Tatla Lake... and near midway of its length...are the headquarters of Keogh, the Chief of the Stone Indians residing on the margin of the string of lakes and swamps fromTat1a 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 [and] keep quite a number of horses.455
448 Transcript, March 8, 2005, Ubill Hunlin Direct-Exam, at 00028, 23-41 449 Transcript, October 21, 2004, Norman George Setah Direct-Exam, 00042, 21 – 00046, 11 450 Exhibit 0003-DIG, Map evidence of Martin Quilt, at "Z1" 451 Exhibit 0177, Expert Report of Robert Tyhurst, at 53 452 Transcript, November 18, 2003, Francis Setah Direct-Exam, at 00048, 14-34; Exhibit 94DIG, “D”, Map Evidence of Francis Setah; Exhibit 94LEG, “D”. 453 Exhibit 0149, Marten, Magne, Matson, Athapaskan and Early Archeology at Big Eagle Lake, at 40-41; Transcript, November 18, 2003, Francis Setah Direct Exam, 00048, 14 – 00051, 1 454 Exhibit 0156-1808/05/22.001, Simon Fraser’s Journal June 5, 1808 455 Exhibit 0240, Expert Report of Ken Brealey, at 37, n. 45; Exhibit 0156-1872/11/29.001, Letter from Marcus Smith to Walkem Nov 29, 187, at 2000321-2
76 All the Tsilhqot’in families at Ts’uni?ad in the early 20th century traveled there by horse for the spring fishing, hunting and gathering.456 They used their horses to hunt and maintained them on horse grazing grounds in the neighborhood.457
456 Transcript, September 18, 2003, Chief Roger William Direct-Exam, 00026, 4 – 20; Exhibit 0162, Affidavit #3 of Doris Lulua, at para. 10 457 Transcript, November 18, 2003, Francis Setah Direct-Exam, 00033, 30 - 00035, 25; Exhibit 0094-DIG, Map Evidence of Francis Setah, at "H"
77 3. EARLY DAN (SUMMER)
135. In early dan (summer), the Claim Area’s mountainous regions bloom. With the snow’s retreat various plants flourish, including the mountain potato (spring beauty) and beartooth (avalanche lilly) of the mountainsides.458 Deer arrive to join animals such as marmots, mountain goats, mountain sheep and bear in nourishing themselves post-winter and spring, only to be welcomed by the Tsilhqot’in, who have recently packed up their dried spring fish and headed up to their home away from home, the mountains.459
136. For centuries, the Tsilhqot’in schedule of land use has annually exploited this seasonal variation. From pre-European contact times, through and following Crown sovereignty, up to the present day, the Tsilhqot’in have regularly harvested the high elevation flora of the Claim Area lands beginning in the early summer; they have done so in a sustainable and ‘proto- agricultural’ manner,460 maintaining and increasing abundance by: disseminating plant stems;461 burning over areas from time to time;462 and, selectively harvesting the available roots according to size (large).463 The have also practiced selective and sustainable hunting at this time of year, taking available game according to sex (males) and distribution.464 Anthropologist Robert Tyhurst (1984) identified summer hunting of deer, mountain goat, mountain sheep and marmot as part of the traditional Tsilhqot’in yearly cycle of land usage.465 Tyhurst cogently noted:466
458 Exhibit 0177, Robert Tyhurst, The Chilcotin, An Ethnographic History, July 1984, Ph.D. Dissertation, at 110- 111. 459 Transcript, March 10, 2004, Minnie Charleyboy Direct Examination, at 00010, 3 – 12; Transcript, November 20, 2003, Francis Setah Direct-Exam, at 00017, 2-30; Transcript, October 22, 2004, Norman George Setah Direct- Exam, at 00012, 12-23. 460 Exhibit 0224, Expert Report of David Dinwoodie, at 41-45; Transcript, January 11, 2005, David Dinwoodie, at 00068, 15-34. 461 Exhibit 0205, Report of Dr. Nancy Turner, at 2, 5; Transcript, November 17, 2004, Dr. Nancy Turner Direct Exam, 00066, 23 to 00067, 29; 00070, 28 to 46; Exhibit 156-1922/12/31.001, at p. 2133387, 2133392 Letter from R.P. Bishop to J.E. Umbach, Surveyor General, Department of Lands, Dec 31, 1922. 462 Exhibit 0205, Report of Dr. Nancy Turner, at 4; Transcript, November 19, 2004, Dr. Nancy Turner Direct Exam, 00041, 44 to 00042, 13. 463 Exhibit 62, 63; Transcript, November 20, 2003, Francis Setah Direct Exam, 00034, 6 to 15; 00036, 5 to 41. 464 Transcript, December 1, 2003, Francis Setah Direct Exam, 00004, 43 to 00005, 14; Exhibit 0177, Robert Tyhurst, The Chilcotin, An Ethnographic History, July 1984, Ph.D. Dissertation, at 239-240. 465 Exhibit 0177, Robert Tyhurst, The Chilcotin, An Ethnographic History, July 1984, Ph.D. Dissertation, at 53. 466 Exhibit 0177, Robert Tyhurst, The Chilcotin, An Ethnographic History, July 1984, Ph.D. Dissertation, at 107.
78 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.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.)
137. British Columbia has admitted, at least with respect to the boundaries of Tsyl?os Park, that the Xeni Gwet’in have exercised their traditional practice of trapping and hunting within the mountainous zones of the Claim Area; in doing so, they have acknowledged the pre-contact use of those geographical zones.468 The evidence shows that the boundaries of the park did not delineate the whole of the mountainous area regularly used by the Tsilhqot’in for their seasonal hunting, trapping and gathering activities from the time of the ?esggidams (ancestors) to recent times.
138. Many Tsilhqot’in witnesses described this regular, early summer occupation of the mountainous and mountain-plateau areas of the Claim Area, for community gatherings, hunting game and gathering roots, plants and medicine; activities that have been continuing since the time of the ?esggidam (ancestors). 469
467 Tyhurst shows that in the “post-settlement period” of the 19th century, trapping for furs was extended into the early summer as a subsidiary activity: Exhibit 0177, Robert Tyhurst, The Chilcotin, An Ethnographic History, July 1984, Ph.D. Dissertation, at 55. 468 Exhibit 0438, Tab 29, HMTQ’s Reply to Notice to Admit, November 7, 2005. 469 Exhibit 0173, Affidavit #1 of Mabel William, at paras. 12. 17, 18, 50 and 51; Exhibit 0174, Affidavit #2 of Mabel William, at para. 29; Transcript, November 20, 2003, Francis Setah Direct-Exam, at 00017, 1-30; Exhibit 0437, Affidavit of Patrick Alphonse, at para. 24; Transcript, March 22, 2004, Minnie Charleyboy Direct Examination, at 00012, 1 – 00024, 7; 00032, 11 – 22; 00034, 33 – 00036, 38; Transcript, March 24, 2004, Minnie Charleyboy, at 00004, 3 – 46; 00008, 44 – 00009, 37; Transcript, March 25, 2004, Minnie Charleyboy Direct
79
139. Dr. Brealey mapped “the basic patterns of Chilcotin land use and occupancy" and concluded that "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 mountains slopes.”470 Dr. Brealey further stated that these traditional patterns endured well into the post-contact period, at least until the smallpox epidemic of 1862.471
140. Robert Tyhurst provided a list of some of the more important early summer species, noting that "plant foods supplied both easily preserved winter stores, and items of trade":
… Of primary importance were roots, corns, and tubers such as spring beauty [mountain potato], yellow avalanche lily [beartooth], balsamroot sunflower, tiger lily, wild onion and silverweed cinquefoil [chinsdad]. All of these species could be preserved by drying. All of the above plant species could be found in such concentrations and quantities that a large amount could be reliably and easily obtained.472
Dr. Lane recorded that the Tsilhqot’in harvested “mountain carrots” and “mountain potatoes” in considerable quantities in the mountains.473
Examination, at 00025, 3 – 42. Transcript, November, 20, 2003, Francis Setah Direct-Exam, at 00024, 2 – 00026, 12; Exhibit 0173, Affidavit #1 of Mabel William, September 3, 2004, at paras 12, 17, 18; Exhibit 0174, Affidavit #2 of Mabel William, July 23, 2004, at para 29; Transcript, March 22, 2004, Minnie Charleyboy Direct Examination, at 00040, 9 – 00044, 21; Transcript, March 24, 2004, Minnie Charleyboy Direct Examination, at 00002, 35 – 00034, 28; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, at para. 67 [is Anvil Mountain part of these mountains??]; Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, at paras.26, 130 – 145; Transcript, April 14, 2004, Ubill Lulua Cross-Exam, at 00015,9-14; 00015, 30-47 [cross about how the gatherings stopped for a while in the 1960’s due to cows grazing]; Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at paras. 25-42; Transcript, September 8, 2004, Doris Lulua Direct-Exam, at 00033, 14-32; Transcript, October 14. 2004, Harry Setah Direct-Exam, at 00006, 44 – 00008, 16; 00018, 16-35; Exhibit 0366, Affidavit #1 of Gilbert Solomon, January 19, 2005, at para. 32(a), (b); Transcript, September 23, 2003, Chief Roger William Direct-Exam, at 00004, 1 – 00005, 47; 00007, 1 – 00012, 47; Transcript, January 17, 2005, David Setah Direct-Exam, at 00047, 23 – 00049, 15; Transcript, May 25, 2004, Francis William Direct-Exam, at 00018, 13-27; Transcript, November 20, 2003, Francis Setah Direct-Exam, 00017, 1 to 30; 00024, 2 to 00026, 12; Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, at 00007, 45 – 00008, 17; Transcript, October 21, 2004, Norman George Setah Direct-Exam, at 00026, 23 – 32; Transcript, October 22, 2004, Norman George Setah Direct-Exam, at 00019, 10 – 00024, 2; 00024, 40 – 00025, 43; 00038, 40 – 00040, 38; Transcript, November 2, 2004, Norman George Setah Direct-Exam, at 00015, 22 – 43. 470 Exhibit 0240, Expert Report of Ken Brealey, at 93 and fn. 4; Exhibit 0246. 471 Exhibit 0240, Expert Report of Ken Brealey, 94. 472 Exhibit 0177, Robert Tyhurst, The Chilcotin, An Ethnographic History, July 1984, Ph.D. Dissertation, at 50. 473 Exhibit 0175, Robert Lane, Cultural Relations of the Chilcotin Indians of West Central British Columbia, 1953, Ph.D. Thesis, at 45.
80
141. The mountainous regions of the Claim Area can be roughly divided into three separate zones: the Western, the Central, and the Eastern. Each of these is discussed below.
a. Western Portion of Claim Area
142. 8. Dr. Nancy Turner, stated 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, bear tooth, Erythronium grandiflorum) and mountain potatoes (sunt’iny).” 474
143. Mabel William explained that, her grandmother Hanlhdzany (born c.a. 1852)475 taught her that the Tsilhqot’ins living in lhiz qwen yex (underground houses) along the Tsilhqox (Chilko River) would get their deer and mountain potatoes from Tsimol Ch’ed (Potato Mountain) every summer.476
144. Elder Minnie Charleyboy, was born and raised at Naghatalhchoz (Big Eagle Lake) near the foot of Tsimol Ch’ed477 just like many of her relatives478, some of whom date back to pre- contact.479 Mrs. Charleyboy described the regular and annual occupation of Tsimol Ch’ed in
474 Exhibit 0205, Expert Report of Nancy Turner, at 4-5. 475 Exhibit 0442, Expert Report of John Dewhirst, at paras. 3.0 – 4.1. 476 Exhibit 0173, Affidavit #1 of Mabel William, at paras. 12. 17, 18, 50 and 51; Exhibit 0174, Affidavit #2 of Mabel William, at para. 29; Transcript, November 20, 2003, Francis Setah Direct-Exam, at 00017, 1-30; 00030, 3 – 00031, 2; Exhibit 0437, Affidavit of Patrick Alphonse, at para. 24. 477 Transcript, March 1, 2004, Minnie Charleyboy Direct Examination, at 00011, 46 – 00012, 30. 478 Transcript, March 1, 2004, Minnie Charleyboy Direct Examination, at 00015, 6 – 00016, 9; 00017, 33 – 00018, 43; 00019, 41 – 45; 00020, 10 – 24; 00022, 47 – 00024, 13; 00032, 13 – 14; 00034, 25 – 28; 00034, 34 – 44; 00037, 28 – 29; Transcript, March 2, 2004, Minnie Charleyboy Direct Examination, at 00004, 25 – 47; 00004, 41 – 44; 00007, 41 – 00008, 22; 00009, 14 – 26; 00009, 47 – 00010, 9; 00011, 43 – 47; 00012, 36 – 00013, 1; 00016, 13 – 27; 00021, 9 – 00023, 9; 00026, 12 – 00028, 16; 00030, 17 – 19; Transcript, March 3, 2004, Minnie Charleyboy Direct Examination, at 00009, 26 – 00010, 21; 00021, 22 – 35; 00022, 22 – 25; 00032, 42 – 43; 00034, 42 – 00035, 16; 00046, 32 – 00047, 40; 00048, 40 – 00051, 44. 479 Qaqez, the father of Sayetsen, the woman who raised Minnie Charleyboy, was raised in an underground house at Biny Gwechugh near the head of Chilko Lake. Transcript, March 2, 2004, Minnie Charleyboy Direct Examination,
81 early summer by her family and many other Tsilhqot’in families, from the time of the ancestors through to recent times.480 Many other Tsilhqot’in witnesses conveyed the same information.481
145. Minnie Charleyboy identified over a dozen ancestrally named camping or harvesting grounds on Tsimol Ch’ed where Tsilhqot’ins from many different communities annually lived, gathered, hunted and harvested plants, roots and medicine in early summer.482 For example, Mrs. Charleyboy explained that at, Kanlh Gulin, a lower elevation camping and potato harvesting area on Tsimol Ch’ed, Tsilhqot’ins historically picked mountain potatoes and stored them in cache pits until their return down the mountain.483
at 00053, 17 – 00054, 45; Exhibit 0441, Expert Report of John Dewhirst, at 00031, paras. 7.0, 71, 7.9; at 00032, Chart 5; Exhibit 0441, Expert Report of John Dewhirst, Vol. 3, Tab G, Tab 1.; Qaqez was born c.a. 1846 and was the brother of War Chief Klatsassin or Lha Ts’as’?in: Exhibit 0441, Expert Report of John Dewhirst, at 00031, paras. 7.0, 71, 7.9; Transcript, March 3, 2004, Minnie Charleyboy Direct Examination, at 00008, 20 – 39; Qaqez’s mother and father were born c.a. 1806: Exhibit 0443, Expert Report of John Dewhirst, at 78, paras 318-319; Qaqez’s mother and father also lived in underground houses at Biny Gwechugh and in fact Qaqez’s father is buried at Biny Gwechugh: Transcript, March 2, 2004, Minnie Charleyboy, at 00053, 17 – 00054, 45; Transcript, March 8, 2004, Minnie Charleyboy Direct Exam, page 00044, 17 – 00045, 26; Transcript, March 9, 2004, Minnie Charleyboy Direct Exam, at 00011, 46 – 00012, 38; Qaqez’s father and grandfather used an ancestral fishing trap at Biny Gwechugh long before Nezulhtsin was born: Transcript, March 8, 2004, Minnie Charleyboy Direct Exam, page 00044, 17 to page 00045, 26; Transcript, March 9, 2004, Minnie Charleyboy Direct Exam, 00004, 20 – 30; Nezulhtsin was born c.a. 1834: Exhibit 0443, Expert Report of John Dewhirst, at 71-71, paras 288-289; Nezulhtsin used an ancestral fishing trap down river at Tsi Tis Gunlin: Transcript, March 9, 2004, Minnie Charleyboy Direct Exam, at 00011, 21 – 00012, 38; The parents of Nezulhtsin lived in underground houses at Biny Gwechugh: Transcript, March 9, 2004, Minnie Charleyboy Direct Exam, at 00011, 46 – 00012, 38; The parents of Nisewhishish also lived in underground houses at Biny Gwechugh: Transcript, March 9, 2004, Minnie Charleyboy Direct Exam, at 00011, 46 – 00012, 38; Nisewhichish was approximately the same age as Qaqez’s oldest daughter Madiyan, born c.a. 1864-1866: Transcript, March 4, 2004, Minnie Charleyboy Direct Examination, at 00043, 47 – 00046, 25; Transcript, March 1, 2004, Minnie Charleyboy, at 00011, 46 – 47; 00026, 19 – 00027, 9; Transcript, March 3, 2004, Minnie Charleyboy Direct Examination, at 00019, 4 – 00020, 1; Exhibit 0441, Expert Report of John Dewhirst, at 00033, para. 7.2. 480 Transcript, March 22, 2004, Minnie Charleyboy Direct Examination, at 00012, 1 – 00024, 7; 00032, 11 – 22; 00034, 33 – 00036, 38; Transcript, March 24, 2004, Minnie Charleyboy, at 00004, 3 – 46; 00008, 44 – 00009, 37; Transcript, March 25, 2004, Minnie Charleyboy Direct Examination, at 00025, 3 – 42. 481 Transcript, November, 20, 2003, Francis Setah Direct-Exam, at 00017, 1 – 30; 00024, 2 – 00028, 30; 00031, 3 – 00034, 5; 00041, 45 – 00043, 22; Transcript, November, 24, 2003, Francis Setah Direct-Exam, at 00003, 9 – 0004, 16; 00008, 35 – 00015, 28; 00018, 2 – 00021, 13; Exhibit 0173, Affidavit #1 of Mabel William, September 3, 2004, at paras 12, 17, 18; Exhibit 0174, Affidavit #2 of Mabel William, July 23, 2004, at para 29; Transcript, May 9, 2005, Patricia Guichon Direct Examination, at 00009, 5 – 25; Transcript, May 10, 2005, Patricia Guichon Direct Examination, at 00044, 44 – 00047, 6; Exhibit 0013, Affidavit of Ubill Lulua, at paras. 130-145, 182, 185, 191, sched. 2(A, V, Y), 26; Transcript, April, 2, 2004, Ubill Lulua Direct-Exam, at 00025, 7 – 25; Transcript, April, 13, 2004, Ubill Lulua Cross-Exam, at 00038, 14 – 45; Transcript, April, 14, 2004, Ubill Lulua Cross-Exam, at 00015, 9 – 47; Transcript, September 9, 2003, Chief Roger William Direct-Exam, at 00046 – 00052. 482 Transcript, March 22, 2004, Minnie Charleyboy Direct Examination, at 00040, 9 – 00044, 21; Transcript, March 24, 2004, Minnie Charleyboy Direct Examination, at 00002, 35 – 00034, 28. 483 Transcript, March 24, 2004, Minnie Charleyboy Direct Examination, at 00005, 12 – 00006, 2.
82 146. Mrs. Charleyboy also explained how the plants gathered in the mountain ranges were cooked. She reported that at a camping ground at ?Enes Biny, a small lake on top of Tsimol Ch’ed, and at Deghagwesdzan, near Tach’i Dilhgwenlh (Huckleberry Mountain), Tsilhqot’in ancestors cooked in underground roasting pits.484 According to Mrs. Charleyboy, she observed the woman who raised her, Sayetsen, copying the ancestors by cooking mountain potatoes, beartooth, silverweed, wild onions and sunflowers in an underground roasting pit at Chezqud, the small creek south of Naghatalhchoz, at the foot of Tsimol Ch’ed. Other Tsilhqot’in witnesses corroborate the ancestral and continued use of roasting pits at Tsimol Ch’ed.485
147. Morley Eldridge agreed on cross-examination that Tsilhqot’in root gathering and roasting, as well as hunting, were important pre-historic activities at Tsimol Ch’ed.486 Further, Mr. Eldridge agreed that the seasonal pattern of extensive Tsilhqot’in land use of the Potato Mountain Range had remained largely unchanged until the mid-20th century.487 The evidence of other experts and the Tsilhqot’in oral history, including that regarding the ancient Tsilhqot’in trail network through the area corroborate Mr. Eldridge's conclusion.488 The historical record, when combined with the oral history, shows that in mid-July of 1864, Tsilhqot’ins were indeed gathered on Tsimol Ch’ed when two Tsilhqot’in men came down the mountain and shot McLean, a militia man who had come searching for Tsilhqot’ins during the Chilcotin War, dead at its foot.489
484 Transcript, March 24, 2004, Minnie Charleyboy Direct Examination, at 00014, 41 – 00015, 1; 00032, 20 - 43. 485 Transcript, November 2, 2004, Norman George Setah Direct Examination, at 00017, 45 - 00018, 17. Exhibit 0355, Affidavit of Joseph William, at para. 51. 486 Transcript May 25, 2006, Morley Eldridge Cross-Exam, at 00050, 2 – 00051, 63. 487 Transcript, May 25, 2006, Morley Eldridge, 00046, 22-41; 00049, 25 - 00051, 1. 488 See Volume 3 of the Plaintiff’s submissions, paras. 920-28 (Transportation Network) and Appendix 6, Map C (the Traditional Tsilhqot’in Transportation Network). 489 Exhibit 0174, Affidavit #2 of Mabel William, at para. 35; Transcript, November, 24, 2003, Francis Setah Direct-Exam, at 00035, 3 – 00041, 37; Transcript, December 8, 2003, Francis Setah Cross-Exam, at 00022, 9 – 00022, 4; Exhibit 240, Expert Report of Ken Brealey, at 42 and fn. 29; at 57 and fn. 96; Exhibit 0265- 1864/00/00.001 (formerly Exhibit 0156-1864/00/00.002), Map.
83 148. In a letter to the Surveyor General, in 1922, 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…”490 [emphasis added].
149. Dr. Hudson stated: “In another summary of Chilcotin Plateau archaeology, Pokotylo and Mitchell (1998) indicate that the archaeological record of the Potato Mountains, on the west side of Chilko Lake, reflects a Tsilhqot’in Athapaskan model of land use in the summer by a population of 100-200 people extending back in time at least several hundred, if not thousands, of years.”491 This use has continued. After explaining that the ancestors occupied Tsimol Ch’ed every summer492 and after describing many Tsilhqot’in families and individuals that occupied Tsimol Ch’ed during summer,493 Mrs. Charleyboy explained that she remembers observing approximately 100 Tsilhqot’ins up on Tsimol Ch’ed every summer.494
150. Other shared histories regarding Tsilhqot’in scheduled occupation of Tsimol Ch’ed during summer appears in the history regarding a war between the Tsilhqot’in and Qaju (a coastal First Nation from the Bute Inlet area).495 The oral history records that Tsilhqot’ins were up on Tsimol Ch’ed harvesting mountain potatoes when the Qaju raiding party arrived and killed many Tsilhqot’in girls who were sleeping.496
151. Norman George Setah described Tsilhqot’in harvesting of mountain potatoes, beartooth and Indian Hellebore (medicine) near Talhjez (Franklin Arm) in the mountain ranges south of Potato Mountain, on the Westside of Chilko Lake.497
490 Exhibit 156-1922/12/31.001 at p. 2133387, 2133392 Letter from R.P. Bishop to J.E. Umbach, Surveyor General, Department of Lands, Dec. 31, 1922. 491 Exhibit 0166, Expert Report of Dr. Hudson, at 5, para. 1. 492 Transcript, March 22, 2004, Minnie Charleyboy Direct Examination, at 00012, 1 – 00024, 7; 00040, 9 – 00044, 21; Transcript, March 24, 2004, Minnie Charleyboy Direct Examination, at 00002, 35 – 00034, 28. 493 March 22, 2004, Minnie Charleyboy Direct Examination, at 00012, 1 – 00024, 7; 00040, 9 – 00044, 21; Transcript, March 24, 2004, Minnie Charleyboy Direct Examination, at 00002, 35 – 00034, 28. 494 Transcript, March 24, 2004, Minnie Charleyboy Direct Examination, at 00008, 8 – 40. 495 See Appendix 4, at v. 496 See Appendix 4, at v. 497 Transcript, November 18, 2004, Norman George Setah Direct Examination, at 00016, 31 – 00017, 42.
84
b. Central Portion of Claim Area
152. The evidence shows that the Tsilhqot'in also used the mountainous area east of Tsilhqox Biny (Chilko Lake), from around Xeni (Nemiah Valley) to Tsilhqox Tu Tl’az (the south tip of Chilko Lake). Tsilhqot’in oral history explains the legendary origins of the sunt’iny (mountain potato) in this area, as well as at Tsimol Ch’ed (Potato Mountain).498 It shows an elaborate and ancient Tsilhqot’in transportation network through the named mountains and valleys in this area, including named root gathering grounds;499 and details Tsilhqot’in resource use in this area. The evidence of elder Mabel William, born in 1918,500 is instructive:
Annie Bulyan taught me that Tsilhqot’ins have been living in Xeni (Nemiah Valley) through the seasons since the time of the ?esggidam (our ancestors). People would get their fish in spring and summer from Xeni Yeqox (Nemiah Creek). They got sunt’iny (mountain potatoes) from ?Esgany ?Anx, Gughay Ch’ech’ed and Tl’egwezben^. They would use the trails to hunt nists’i (deer) through Xeni in the summer. … Annie taught me this knowledge came down to her from her husband Sammy’s grandparents Nancy and Sit’ax.
…
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: …
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), @ebay (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 Tsilhqot’in nen
498 Refer back to prior section in argument. 499 Ibid. 500 Exhibit 0173, Affidavit #1 of Mabel William, at para. 5.
85 (land) for hunting and gathering. Sammy taught me that this knowledge had come down to him from his grandmother Nancy.i'"
153. Dr. Nancy Turner, corroborated Mrs. William's testimony and concluded that: "the Tsilhqot'in have repetitively used and occupied sites in the Claim Area such as ?Esgany?anx, Tsil?os, Chilco Lake and the Nemiah Valley for the purpose of gathering and managing plant resources critical to their survival."so2 [emphasis added] 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"503
154. Gilbert Solomon also spoke ofthe regular occupation ofthe central and southern portions ofthe Claim Area. He explained that his family has been harvesting mountain potatoes and beartooth in both Xeni (Nemiah Valley) and Tl'echid Gunaz (Long Meadow - the valley immediately south ofNemiah Valley) since as far back as he can remcmber.i'" Francis William, born 1925,505 explained that while he was growing up he and his family went to Xenadi?an (the mountain range southeast ofTs'il?os) every summer to harvest bcartooth.i'" Mabel William reported that Tsilhqot'ins harvest beartooth, mountain potato, deer, groundhog and mountain goat at Xenadi?an in the summertime and Qaqez (born c.a. 1846) 507 died up on Xenadi?an while he and his family were there carrying out these activities. 50S Many other witnesses described Tsilhqot'in occupation ofthe mountains surrounding Xeni (Nemiah Valley).509 Elder Francis
501 Exhibit 0173, Affidavit # I ofMabel William, July 23, 2004, at paras. 40, 70 - 71. 502 Exhibit 0205, Expert Report ofNancy Turner, at 4. 503 Exhibit 0205, Expert Report ofNancy Turner, at 5. 504 Exhibit 0366, Affidavit # 1 ofGilbert Solomon, at para. 50. 505 Exhibit 0157, Affidavit #1 ofFrancis William, at para. 6. 506 Transcript, May 25,2005, Francis William Direct Exam, 00018,13 - 27. 507 Exhibit 441, Expert Report ofJohn Dewhirst, at 31, para 7.0 508 Exhibit 0174, Affidavit #2 ofMabel William, September 3, 2004, at paras. 45-46. 509 Transcript, January 17,2005, David Setah Direct-Exam, at 00006, 47 - 00007, 11; 00047, 23 - 00049, 15; Transcript, November 1,2004, Norman George Setah Direct-Exam, at 00006,16 - 33; 00011,1 - 14; Transcript, October 14,2004, Harry Setah Direct-Exam, at 00006, 44 - 00008,16; 00018,16 - 35; Transcript, November 26, 2003, Francis Setah Direct-Exam, 00005, 18 - 000 I0,27;.00011,32 - 00013, 19; Transcript, November 19,2003, Francis Setah Direct-Exam, 00040, 1 - 00043, 20; Transcript, December 1, 2003, Francis Setah Direct-Exam, 00003, 15 - 00004, 3
86 Setah, in particular, identified ancestral root harvesting and fishing grounds in west Xeni,510 as well as summer deer hunting grounds dating back to ancestral times through Xeni,511 west Xeni Dzelh (a.k.a. Gweq'ez Dzelh),512 west Ts'il?os (Mount Tatlow),513 Tl'echid Gunaz (Long Valley)514 and Yuhitah (Yuhitahj.i"
c. Eastern Portion ofClaim Area
155. With respect to the south eastern portion ofthe Claim Area, Dr. Brealey stated that at Fishem Lake (located at the eastern end ofYohetta Valley) "several housepit depressions... confirm that this was a base camp where extended families would exploit floral, fish and big game resources and so [was] one ofthe more important Tsilhqot'in encampments in the Yohetta Valley.,,516 Dr. Brealey, citing Dr. Magne, also stated, "Archaeological work in [the east Yohetta Valley] in the 1980's has revealed at least 16 discrete heritage sites, and has been estimated as containing anywhere from 150 to 2000 depressions. This suggests it was an exceedingly important hunting, gathering and freshwater fishing area for the Stone Chilcotin. ,,51 J Dr. Brealey also concluded that Tsilhqot'in traditional land use patterns endured well into the post-contact period. 518
156. Joseph William, born 1933,519 and Gilbert Solomon also described ancestral Tsilhqot'in underground winter residences in the region at Fishem Lake, Tuzcha Lake, Lastman Lake,
510 Transcript, November 19,2003, Francis Setah Direct-Exam, 00040, I - 00043, 20; Transcript, December I, 2003, Francis Setah Direct-Exam, 00003, IS - 00004,3; Exhibit 0094-DlG, Map Evidence of Francis Setah; 511 Transcript, November 26, 2003, Francis Setah Direct-Exam, 00013,20 - 00015, 15; 00037, 38-47; Transcript, December 8, 2003, Francis Selah Direct-Exam, 00003, 42 - 00005, 23 512 Transcript, November 26, 2003, Francis Setah Direct-Exam, 00016, 31 - 00018,23; 00029, 5-39, 00037, 38-47 513 Transcript, November 26,2003, Francis Setah Direct-Exam, 00029, 40 - 00031, IS; 00033, 5 - 00036, II; 00037,38-47; Transcript, December 2, 2003, Francis Setah Direct-Exam, 00018, 29 -00019, 22 514 See also Transcript, November 30, 2004, Norman George Setah Direct Exam, 00025, 21 to 00027, 28; Transcript, November 26, 2003, Francis Setah Direct-Exam, 00037, 38 - 00039, 35 515 Transcript, November 26, 2003, Francis Setah Direct-Exam, 00039, 36 - 00041, 25 516 Exhibit 0240, Expert Report ofKen Brealey, at 59 and fn. 116; See also Appendix 2, at paras. 171-173 517 Exhibit 0240, Expert Report ofKen Brealey, at 59, fu 116,63, fu 150,64, fn 156, 76, fu 287, 77, fu 297,78, fu 298; See also Appendix 2, at paras. 171-173. 51. Exhibit 0240, Expert Report ofKen Brealey, 94. 519 Exhibit 0355, Affidavit ofJoseph William, para. 3.
87 Yuyetah (Yohetta Valley) and Teztaun (Fish Lake).520 Joseph William, reported how his family, and Tsilhqot’ins before their time, moved into the southern and eastern portion of the Claim Area during summer to hunt, gather and harvest plants, some of which would be roasted in dug out pits.521 Mr. William described how Tsilhqot’ins moved into the mountains, such as T’ox T’ad, Yuyetah (Yohetta Valley) and Nabas (Anvil Mountain), to hunt, dry meat, chase wild horses and harvest medicines, mountain potatoes and beartooth.522
157. Lloyd Myers explained that while he was growing up all Tsilhqot’in families continued the traditional practices of the ?esggidam and gathered food in the spring, summer and fall to make sure that they were ready for winter.523 Fish, game, berries, plants and medicines were gathered and dried because deep freezes did not exist, and even today many Tsilhqot’in people have deep freezes but they still dry their food. 524 Mr. Myers further explained that since the time of the ancestors, continuing through to recent times, Tsilhqot’ins have been moving into Yuyetah (Yohetta Valley) and Dzelh Ch’ed (the Snow Mountains), including Nabas (Anvil Mountain), Gwetex Natel?as (Red Mountain), the mountains east of Taseko Lakes and the Taylor Windfall area, during summer and fall, to fish, hunt, dry meat, gather berries, medicine, mountain potatoes, beartooth, wild onions, silverweed, sunflower roots and other plants.525 Mr. Myers continues to take his grandchildren and other Tsilhqot’in children to these places every year to teach them these Tsilhqot’in traditional practices.526
520 Exhibit Transcript, February 17, 2005, Joseph William Direct Exam, at 00013, 14 – 00016, 36; 00018, 42 - 00019 , 1; Transcript, February 17, 2005, Joseph William Cross-Exam, at 00033, 9 – 00034, 10; 00034, 27-40; Transcript, March 17, 2005, Gilbert Solomon, 00033, 19-25; Exhibit 371DIG, Gilbert Solomon Digitized Map, at AU; Exhibit 371LEG, Gilbert Solomon Map Legend, at AU; Transcript, March 17, 2005, Gilbert Solomon, at 00029, 29-44; Exhibit 371DIG, Gilbert Solomon Digitized Map, at AT; Exhibit 371LEG, Gilbert Solomon Map Legend, at AT; ; Reference Map 5; See also Appendix 2, at paras 171-173. 521 Exhibit 0355, Affidavit of Joseph William, paras. 48-53, 65-67; Mr. William explained that the ?esggidam stayed in one place during winter, in their lhiz qwen yex (underground houses), and then had to move around to get their game, fish and food in the spring, summer and fall. Mr. William explained that similarly, his family also went to different places during different seasons to get what was needed to survive and then went back to their home at Nabas (Anvil Mountain) to stay for the winter: Exhibit 0355, Affidavit of Joseph William, paras. 56 – 57. 522 Exhibit 0355, Affidavit of Joseph William, paras. 48 – 53, 65, 71, 72 and 73. 523 Exhibit 0417, Affidavit of Lloyd Myers, para. 34. 524 Exhibit 0417, Affidavit of Lloyd Myers, para. 35. 525 Exhibit 0417, Affidavit of Lloyd Myers, paras. 45-54; See also Appendix 2, at paras. 171-173. 526 Exhibit 0417, Affidavit of Lloyd Myers, paras. 45-54.
88 158. Cecelia Quilt, born 1924,527 stated that she is from Nabas (Anvil Mountain) and that many other Tsilhqot’in families lived around Nabas too.528 According to Mrs. Quilt, Tsilhqot'ins have been living at Nabas since before her parents time and they stayed “up in Dzelh Ch’ed (the Snow Mountains) all summer and fall hunting, gathering berries, plants and medicines and drying meat for the winter. Then they would move back down around Nabas during the winter.”529 Mrs. Quilt explained that Tsilhqot’in ancestors lived in underground houses and that her father lived in one at the foot of Nabas not too far from where he built his cabin.530 According to Mrs. Quilt, when she was a child she saw her husband’s great grandmother leading a horse into the Snow Mountains, behind Nabas, to trap groundhogs. She also reported that the ?esggidam lived, hunted and trapped all around in the Nabas area and the Snow Mountains towards Taseko Lakes and towards Lillooet.531
159. Norman George Setah echoed the other Tsilhqot’in witnesses and described deer and groundhog hunting and berry and mountain potato harvesting in the eastern Claim Area at Gwetex Natel?as (Red Mountain) and Nabas (Anvil Mountain) since the time of the ?esggidams.532 Julie Quilt described numerous Tsilhqot’in families moving up to Gwetex Natel?as (Red Mountain) during summer, during her lifetime, to hunt deer, groundhog and moose, and harvest pine nuts, medicine, mountain potatoes and berries.533
160. Francis William explained that Tsilhqot’ins on their way to Lillooet to trade would harvest beartooth and hunt groundhog and deer in the mountains east of Taseko Lake and the Taylor Windfall area.534 Mr. William also stated that his family hunted deer and harvested mountain potato in Tchaikazan Valley and Yohetta Valley while he was growing up.535
527 Exhibit 0439, Affidavit of Cecelia Quilt, para. 5. 528 Exhibit 0439, Affidavit of Cecelia Quilt, paras. 2, 4, 23-27. 529 Exhibit 0439, Affidavit of Cecelia Quilt, paras. 30, 41, and 42; See also Appendix 2, at paras. 177-185. 530 Exhibit 0439, Affidavit of Cecelia Quilt, para. 33. 531 Exhibit 0439, Affidavit of Cecelia Quilt, paras. 31-32; See also Appendix 2, at paras. 177-185. 532 Transcript, November 1, 2004, Norman George Setah, at 00009, 23 - 00014, 25. 533 Transcript, November 5, 2004, Julie Quilt, at 00016, 34 - 00019, 43. 534 Exhibit 0157, Affidavit #1 of Francis William, para. 53-60. 535 Exhibit 0158, Affidavit #2 of Francis William, para. 100-101; See also Appendix 2, at paras. 171-173.
89 161. In addition to showing regular, intense use of the mountainous portions of the Claim Area as set out above, the evidence set out in the legends and laws associated with the mountains illustrates the spiritual connection the Tsilhqot'in have with these areas. For example, in the Tsilhqot’in origin story of Lhin Desch’osh, while Lhin Desch’osh and his sons are on their journey creating and fixing Tsilhqot’in land and the animals, they also scatter mountain potatoes in the Snow Mountains before turning to stone.536 Similarly, the story of Tsyl?os and ?Eniyud describes a Tsilhqot’in man and wife living in the mountain-plateau area of Xeni (Nemiah Valley) with a family.537 Upon their breakup, Tsyl?os stays in the mountains south of Xeni to watch over the valley and ?Eniyud walks from Xeni, past Tsilhqot’in Biny (Chilko Lake), Tsimol Ch’ed (Potato Mountain), Talhiqox Biny (Tatlayoko Lake) and on to the northeast shore, where she is turned to stone and currently resides.538 Significantly, the legend not only illustrates a spiritual connection to the mountains throughout the Claim Area, it also describes how ?Eniyud seeded mountain potatoes in these ranges for Tsilhqot’ins to harvest.539 The Gambler Who
536 Exhibit 0167.009.002, Livingston Farrand, “Traditions of the Chilcotin Indians,” Chapter 1, The Jessup North Pacific Expedition, Edited by Franz Boas, New York, pp. 7-14, at 14; Transcript, May 9, 2005, Patricia Guichon Direct-Exam, at 00050, 1-19; Exhibit 0431, Affidavit #1 of Elizabeth Jeff, October 8, 2004, para. 27; Transcript, June 14, 2005, Elizabeth Jeff; 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; Transcript, October 4, 2004, Mabel William Direct-Exam, at 00025, 40 – 00026, 3; Transcript, November 26, 2003, Francis Setah Direct-Exam, at 00005, 17-31; Exhibit 0174, Mabel William Affidavit #2, para. 45. 537 Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00024, 43 – 00026, 18; Transcript, March 29, 2004, Minnie Charleyboy Cross-Exam, at 00050, 37-47; 00063, 43 – 00064, 29; Transcript, November 20, 2003, Francis Setah Direct Exam, at 00043, 23 to 00048, 16; Transcript, September 9, 2003, Chief Roger William Direct- Exam, at 00046, 41 – 00049, 47; Transcript, September 10, 2003, Chief Roger William Direct-Exam, at 00044, 17- 23; Exhibit 0437, Affidavit #1 of Patrick Alphonse, April 15, 2005, at para. 25; Transcript, January 17, 2005, David Setah Direct-Exam, at 00018, 27 – 00019, 11; 00019, 44 – 00021, 1; Exhibit 0431, Affidavit # 1 of Elizabeth Jeff, October 8, 2004, at paras. 117 –119; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at paras. 30, 36; Transcript, February 17, 2005, Joseph William Direct-Exam, at 00022, 29 – 00023, 21; Exhibit 0367, Affidavit #2 of Gilbert Solomon, January 19, 2005, at paras. 89-91; Transcript, November 5, 2004, Julie Quilt Cross-Exam, 00034, 35 – 00035, 22; 00049, 8 – 00051, 24; Transcript, April 19, 2005, Chief Ervin Charleyboy Direct-Exam, at 00008, 28 – 00012, 31. 538 Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00024, 43 – 00025, 18; Transcript, March 29, 2004, Minnie Charleyboy Cross-Exam, at 00050, 37-47; Transcript, November 20, 2003, Francis Setah Direct Exam, at 00043, 30 – 00044, 12; Transcript, September 9, 2003, Chief Roger William Direct-Exam, at 00046, 41- 47; Exhibit 0437, Affidavit #1 of Patrick Alphonse, April 15, 2005, at para. 25; Transcript, January 17, 2005, David Setah Direct-Exam, at 00018, 27 – 00019, 11; Exhibit 0431, Affidavit # 1 of Elizabeth Jeff, October 8, 2004, at paras. 117 –119; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 36(v); Transcript, February 17, 2005, Joseph William Direct-Exam, at 00022, 45-47; Exhibit 0367, Affidavit #2 of Gilbert Solomon, January 19, 2005, at para. 89(b); Transcript, April 19, 2005, Chief Ervin Charleyboy Direct-Exam, at 00008, 28-37. 539 Transcript, March 29, 2004, Minnie Charleyboy Cross-Exam, at 00063, 43 – 00064, 29; Transcript, November 20, 2003, Francis Setah Direct Exam, at 00043, 23-29; Transcript, September 9, 2003, Chief Roger William Direct- Exam, at 00046, 41- 47; Exhibit 0437, Affidavit #1 of Patrick Alphonse, April 15, 2005, at para. 25; Transcript, January 17, 2005, David Setah Direct-Exam, at 00018, 27 – 00019, 11; Exhibit 0174, Affidavit #2 of Mabel
90 Received Supernatural Aid spends summer in the Snow Mountains hunting marmots for blankets.540 The story of Salmon Boy explains that the salmon return to their home at Tsilhqot’in Biny (Chilko Lake) and that the salmon watch for the prominent peak Tizlin (Tulin Mountain) to signify when they are home.541
162. The Snow Mountains are integral to Tsilhqot’in culture. The Tsilhqot’in look to their mountains for laws. Ts’yl?os teaches respect542 and marital laws543, ?Eniyud teaches resource management, the necessity of replanting potatoes544 and marital laws545 and Tizlin teaches where and when the salmon will be ready for harvesting.546
163. Mrs. Charleyboy summed up the deep connection Tsilhqot’ins have to their land, including the mountains: “You cannot give up your birthplace, because you're born there. And also your grandfather and your mother and your ancestors are buried in those areas. So it's really important for us. We cannot let go of the land… It's, like -- it's really important and it's our
William, September 3, 2004, at para. 36(iii); Transcript, February 17, 2005, Joseph William Direct-Exam, at 00022, 29-40; Exhibit 0367, Affidavit #2 of Gilbert Solomon, January 19, 2005, at para. 89(b); Transcript, November 5, 2004, Julie Quilt Cross-Exam, 00034, 35 – 00035, 7. 540 See Argument re (ii) Foundations to the Claim Area’s Central Significance, (B) The Legendary Tsilhqot’in Landscape of the Claim Area, re The Gambler Who Received Supernatural Aid; Appendix 6, Tab A, Map of the Tsilhqot’in Legendary Landscape; Exhibit 0167.009.002, Livingston Farrand, “Traditions of the Chilcotin Indians,” Chapter 1, The Jessup North Pacific Expedition, Edited by Franz Boas, New York, p. 38. Robert Lane also notes this legend in his 1953 Thesis, see Exhibit 0175, 307. 541 Transcript, March 9, 2004, Minnie Charleyboy Direct-Exam, at 00044, 6 – 00048, 30; Transcript, March 10, 2004, Minnie Charleyboy Direct-Exam, at 00026, 30-45; Exhibit 0367, Affidavit #2 of Gilbert Solomon, January 19, 2005, at paras. 84-88; Exhibit 0431, Affidavit # 1 of Elizabeth Jeff, October 8, 2004, at paras. paras. 72-74. 542 Exhibit 0431, Affidavit # 1 of Elizabeth Jeff, October 8, 2004, at para. 118; Exhibit 0366, Affidavit #1 of Gilbert Solomon, January 19, 2005, at para. 23; Exhibit 0366, Affidavit #2 of Gilbert Solomon, January 19, 2005, at paras, 89 (c ); Transcripts, May 25, 2004, Francis William Cross-Exam, at 00028, 9-19; Transcripts, May 26, 2004, Francis William Re-Direct, at 00041, 8-30; Transcripts, January 17, 2005, David Setah Direct Examination, at 00018, 27 – 00021, 1; Transcripts, September 9, 2003, Chief Roger William Cross-Exam, at 00048, 22 - 00049, 14. 543 Transcript, March 29, 2004, Minnie Charleyboy Direct-Exam, at 00050,37–47; Exhibit 0367, Affidavit #2 of Gilbert Solomon, January 19, 2005, at paras, 89(c ); Transcripts, September 9, 2003, Chief Roger William Direct Examination, at 00048, 22-44. 544 Exhibit 0366, Affidavit #1 of Gilbert Solomon, at para. 17(c) and 32(b); Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00012, 44 – 00013, 14; 00024, 47 – 00025, 15; See also Appendix 2, at paras. 95, 96 and 97. 545 Transcript, March 29, 2004, Minnie Charleyboy Direct-Exam, at 00050,37–47; Exhibit 0367, Affidavit #2 of Gilbert Solomon, January 19, 2005, at paras, 89(c ); Transcripts, September 9, 2003, Chief Roger William Direct Examination, at 00048, 22-44. 546 Transcript, March 9, 2004, Minnie Charleyboy Direct-Exam, at 00046, 33 – 00047, 22; Exhibit 0367, Affidavit #2 of Gilbert Solomon, January 19, 2005, at paras. 84-88.
91 treasure… I cannot let it go… [my] kids gotta use these areas. Even when I, myself, die, they're gonna have to bury me at Tsi Ch'ed Diz?an [at the foot of Tsimol Ch’ed, just south of Naghatalhchoz].547 “Why do they say that that country don’t belong to the Tsilhqot’in when it’s always been our land there?”548
547 Transcript, March 26, 2004, Minnie Charleyboy Direct Examination, at 00023, 14 – 00024, 2. 548 Transcript, March 30, 2004, Minnie Charleyboy Direct Examination, at 00038, 16 – 21.
92 4. LATE DAN (SUMMER)
164. In late dan (summer), the lands of the Claim Area become flush with spawning salmon and ripening berries. Starting around late July, the spring, sockeye and pink salmon run in succession to their spawning grounds up the Tsilhqox (Chilko River) and Dasiqox (Taseko River).549 So important were the salmon runs that Robert Tyhurst described the following rough correspondence between calendar months and their Tsilhqot'in names: "July" is "jes za" or "Chinook salmon moon"; "August" is "ts'aman za" or "sockeye salmon moon"; and "September" is "dants'ex za" or "pink Salmon moon."550
165. The Tsilhqot’in have always taken advantage of this late summer seasonal variation in abundance.551 They would move down from the early summer harvesting areas, such as Tsimol Ch’ed,552 towards late summer berry harvesting areas that cluster around lakes.553 Near these berry-harvesting areas they would camp and dry their early summer plant harvest for winter while accessing the seasonal flora.554 Ripened by the summer sun, the soapberries, saskatoon berries, and blueberries of the Claim Area lands would be ready for harvest and preparation.555 This time would also be spent in the late summer hunt; while women picked berries, men would journey to favoured hunting grounds to take deer, moose, mountain sheep and goat and, traditionally, elk. Berry harvesting was generally followed by group movement towards the age- old salmon fishing grounds along the Tsilhqox (Chilko River). There, the Tsilhqot’ins would
549 Exhibit 0177, Tyhurst, July 1984 Report, at 51, 53 to 55, 62 to 66, 249; Exhibit 0240, Brealey, September 2004 Report, at 56; Exhibit 0443, Dewhirst, August 2005 Report, at 10; Transcript, September 12, 2003, Roger William Direct-Exam, 00019, at 22 to 28; Transcript, November 27, 2003, Francis Setah Direct-Exam, 00001, at 37 to 00002, at 15; 00024, at 35 to 00025, at 39; 00028, at 10 to 29, at 39; Transcript, November 4, 2004, Direct- Exam of Norman George Setah, 00056, at 2 to 7. 550 Exhibit 0177, Dissertation of Robert Tyhurst, at 79 551 Transcript, May 25, 2006, Morley Eldridge Cross-Exam, at 00036, 36-47; 00037, 1-47; 00038, 1-30; 00053, 21- 35 552 Transcript, March 22, 2004, Minnie Charleyboy Direct Examination, at 00012, 1 – 00024, 7; 00032, 11 – 22; 00034, 33 – 00036, 38; Transcript, March 24, 2004, Minnie Charleyboy, at 00004, 3 – 46; 00008, 44 – 00009, 37; Transcript, March 25, 2004, Minnie Charleyboy Direct Examination, at 00025, 3 – 42. 553 Transcript, May 25, 2006, Morley Eldridge Cross-Exam, at 00037, 21-33 554 Exhibit 0177, Dissertation of Robert Tyhurst, July 1984 Report, at 53, 55, 110 to 111; Transcript, September 12, 2003, Roger William Direct-Exam, 00021, at 17 to 29; Transcript, December 1, 2003, Francis William Direct- Exam, 00005, at 15 to 17; 00008, at 9 to 11; 00008, at 45 to 47; 00011, at 20 to 22; 00014, at 7 to 19; Transcript, November 27, 2003, Francis Setah Direct-Exam, 00038, at 42 to 00039, at 2; Exhibit 0203, Affidavit #1of Julie Quilt, September 29, 2004, at para. 22 555 Exhibit 0240, Expert Report of Ken Brealey, at 64; Exhibit 0175, Dissertation of Robert Lane, at 224; Exhibit 0177, Draft Ph. D. Dissertation of Robert Tyhurst, at 248
93 catch, eat, dry and store their salmon for the winter, while continuing to supplement their fishing with ongoing hunting and berry and plant collection. Referring to this time of year, Elder Julie Quilt evoked the phrase "xi gwa xenadesdank" – "I am getting ready for winter."556
a. Late Summer Berry Harvesting
166. Minnie Charleyboy described traveling to the northern and eastern shores of Talhiqox Biny (Tatlayoko Lake) for saskatoon and raspberries.557 Her family has returned to Gudilinchi on the northern shore of Talhiqox Biny every summer for at least four generations.558 Her family has also picked berries annually at Talhiqox Telhates on the eastern shore of Talhiqox Biny559 as well as at Nagwedist'an Yi. Nagwedist'an Yi was used by Madiyan and Madiyan's mother, and Q'asdenay used to winter there; it is still used for berry harvesting today.560 Minnie Charleyboy reported that Ses Chi, between Talhiqox Biny and Tsilhqox Biny (Chilko Lake), and Datsan Ts'i Setan, between Naghatalhchoz (Big Eagle Lake) and Talhiqox Biny were also popular berry picking areas.561 Datsan Ts'i Setan yielded nelghes (small blueberries). The eastern shores of Tatlayoko provided blueberries and raspberries. Ubill Lulua reported coming down from Tsimol Ch’ed (Potato Mountain) in the late summer to pick berries around Talhiqox Biny.562 John Dewhirst described the long-term use of this area by the Lulua family.563 He also concluded that, based on Waddington’s map of 1863, “Tsilhqot’in occupation of the Tatlayoko Lake area… must be prior to 1846.”564
167. Doris Lulua described how her family picked selhchuch (huckleberries) and blueberries at the foot of Selhchugh Nbet'insh (Huckleberry Mountain) in mid-August.565 The Setah family
556 Exhibit 0203, Affidavit #1 of Julie Quilt, September 29, 2004, at para. 22. 557 Exhibit 0093-DIG, Map Evidence of Francis Setah, at "163"; Transcript, March 24, 2004, Minnie Charleyboy Direct-Exam, 00034, 29 – 00035, 17; Exhibit 0013, Affidavit of Ubill Lulua, at para. 170 558 Transcript, March 24, 2004, Minnie Charleyboy Direct-Exam, 00035, 28-29 559 Transcript, March 24, 2004, Minnie Charleyboy Direct-Exam, 00037, 18-43 560 Transcript, March 25, 2004, Minnie Charleyboy Direct-Exam, 00003, 23 - 0004. 29 561 Transcript, March 25, 2004, Minnie Charleyboy Direct-Exam, 00002, 16; Transcript, March 25, 2004, Minnie Charleyboy Direct-Exam, 00007, 44 – 00008, 39 562 Affidavit of Ubill Lulua, at paras. 169-170 563 Exhibit 0443, Expert Report of John Dewhirst ,at 74 564 Exhibit 0443, Expert Report of John Dewhirst ,at 58, para. 227. 565 Exhibit 0162, Affidavit #3 of Doris Lulua, at para. 70
94 reported that they would camp at Tl'ets'inged annually while accessing harvest patches566 of dig (saskatoon) and melgun (chokeberry) along the hillside north of Xeni (Konni Lake) in the late dan.567 They also gathered strawberries further down the valley towards Chilko Lake.568 David Setah indicated that huckleberries were gathered in a pass to the west of Ts'il?os leading into Tl'ech'id Gunaz.569 Harry Setah described picking texaktsek (raspberries) on a little island south of Henry's Crossing,570 Indeed, Tsilhqot’in oral history identifies late summer berry and hunting camps around the Tsilhqox dating back to the time of the ?esggidams (Tsilhqot’in ancestors).571
168. Berries were picked and placed in a tenelh (a bark strip basket) or qats'ay (spruce-root basket).572 Raspberries and blueberries would be eaten immediately but Saskatoon berries would be dried for later use.573 Soopalallie (soapberries) were washed and boiled and pressed into solid cakes.574 Minnie Charleyboy provided visual representation of a berry wash basin made of bark folded at one end called a ?Elax ts'ay. The soapberries would be pressed in a drying rack with a quats’ay (basket) underneath to catch the juice. The juice was then whipped up to make nuwish ("Indian ice cream").575
Exhibit 0135 - ?Elax ts'ay Exhibit 0068 – Soapberry Drying rack
566 Exhibit 0014-DIG, Map Evidence of Chief Roger William, at "71" 567 Exhibit 0058-DIG, Map Evidence of David Setah, at "AO"; Transcript, January 17, 2005, David Setah Direct- Exam, 568 Exhibit 0058-DIG, Map Evidence of Davit Setah, at "AR" 569 Transcript, January 17, 2005, David Setah Direct Exam, at 00057, 29-43 570 Exhibit 0179-DIG, Map Evidence of Harries Setah, at "M" 571 Transcript, November 25, 2003, Francis Setah Direct-Exam, at 00006, 16-36; 00009, 10-19; Transcript, November 27, 2003, Francis Setah Direct-Exam, at 00008, 27-31; 00009, 2-40 572 Transcript, March 25, 2004, Minnie Charleyboy Direct Exam, 00012, 7-11 573 Transcript, March 25, 2004, Minnie Charleyboy Direct Exam, 00012, 14-20 574 Transcript, March 25, 2004, Minnie Charleyboy Direct Exam, 00012, 21 - 00014, 6 575 Exhibit 0043.82, Photo of Nuwish preparation; Transcript, November 4, 2003, Roger William Direct-Exam,
95
b. Late Summer Plant Gathering
169. In addition to berry gathering, a number of other plants were gathered by Tsilhqot’in people in late summer. The traditional berry picking grounds on the north and east shores of Talhiqox Biny (Tatlayoko Lake) also provided an opportunity to harvest willow wood that grew there. This was used in the production of a number of important implements, including ch'i (baskets for holding infants).576
170. Tsilhqot'in also harvested hay at meadows such as those at the west end of Eagle Lake, Chinsdad Gulin, Ch'ezqud and Nu Natase'ex.577 The hay was originally taken with something like a scythe, and later with a horse drawn thresher.578 In the more distant past, those same meadows were used to graze horses and, prior to that, to harvest chinsdad (silverweed), which would be boiled and mixed with groundhog fat.579 Norman George Setah testified that his family picked chinsdad at Biny Gughi?a near Elkins Creek,580 at Delgi Chosh.581 Chinsdad Gulin, in east Xeni, is a fall-time camp and chinsdad-harvesting ground dating back to the ?esggidams; it was used by elder Francis Setah and his family in the mid-20th Century.582 Morley Eldridge confirmed the Tsilhqot’in use of silverweed was a traditional practice.583
171. Norman George Setah described the harvesting of two types of wild rice: tl’edazulh and tl’ugh sulh.584 Tsilhqot’in people would take a raft out onto the lake and pull the plants out – later grinding the rice into a flour.585 Wild rice was gathered at Gwedzin, and at the east end of
576 Transcript, March 25, 2004, Minnie Charley boy Direct-Exam, at 00015, 23 – 00016, 21 577 Transcript, March 25, 2004, Minnie Charley boy Direct-Exam, at 00018, 6-28; Transcript, December 1, 2003, Francis Setah Direct-Exam, 00018, 41 – 00019, 2 578 Transcript, March 25, 2004, Minnie Charleyboy Direct-Exam, at 00018, 1-5; Transcript, September 9, 2003, Chief Roger William, Direct-Exam, 00068, 16-00069, 47; Transcript, September 17, 2003, Chief Roger William, Direct-Exam, 00018, 1-37; 00021, 1-00022, 15 579 Transcript, March 25, 2004, Minnie Charley boy Direct-Exam, at 00018, 29 – 00019,19; Transcript, March 11, 2004, 00010, 33 – 00011, 18 580 Transcript, November 2, 2004, Norman George Setah Direct-Exam, at 00021, 31- 00022, 46; Exhibit 211 DIG, at EO; Transcript, May 27, 2005, Francis William Cross-Exam, at 00027, 21-30. 581 Transcript, November 2, 2004, Norman George Setah Direct-Exam, at 00023, 05-20; Exhibit 211 DIG, at EP. 582 Transcript, December 1, 2003, Francis Setah Direct-Exam, 00018, 41 – 00023, 7 583 Transcript, May 25, 2006, Morley Eldridge Cross-Exam, at 00037, 43- 000038, 10. 584 Transcript, November 1, 2004, Norman George Setah Direct-Exam, at 00037, 21-37; 00040, 19-42. 585 Transcript, November 1, 2004, Norman George Setah Direct-Exam, at 00037, 18 to 00038, 5.
96 Tsuniah Lake.586 Morley Eldridge concluded that Tsilhqot’ins gather Indian rice as a traditional practice.587
172. A plant called ?est’anchis (wild celery) was harvested in swampy areas where hay grows, including Skinner Meadow, Nemiah and Captain Georgetown.588 The Setah family harvested ?est’anchis around Fire Creek and at Groundhog Creek near Anvil Mountain, and at Biny Gwechugh.589 Norman George Setah recalls harvesting ?est’anchis at hay cutting time.590
173. A hollow wild rhubarb called sulh was also harvested alongside creeks coming down from the mountains.591 Sulh was harvested on the east of Talhiqox Biny (Tatlayoko Lake)592, in the mountains south of Naghatalhchoz (Big Eagle Lake)593, in Xeni (Nemiah) where the creeks come into Xeni Biny (Konni Lake),594 and at Bisqox (Beece Creek) on the south side of Nabas (Anvil Mountain).595 Sulh is also harvested on the east side of Talhiqox Creek.596 According to Norman George Setah, sulh is a different plant from the wild rice known in Tsilhqot’in as tl’ugh sulh.597 c. Late Summer Hunting
174. Late summer was also an important hunting time. Nists'i (deer), ŝebay (mountain goat), debi (mountain sheep), and dediny (marmot) were the principle game species hunted at this time. David Setah described deer and moose hunting in the western part of the Brittany Triangle while
586 Transcript, November 1, 2004, Norman George Setah Direct-Exam, at 00038, 7 and 28-33; Exhibit 211, DIG at DU and DV; Exhibit 211 LEG, at DU and DV; see Transcript, November 2, 2004, at 00003, 5 to 00004, 5. 587 Transcript, May 25, 2006, Morley Eldridge Cross-Exam, at 00037, 43- 00038, 9. 588 Transcript, November 1, 2004, Norman George Setah Direct-Exam, at 00039, 21-42; Transcript, November 2, 2004, Norman George Setah Direct-Exam, 00004, 6- 00005, 9; Exhibit 211 DIG, at DW, DX and DY; Exhibit 211 LEG, at DW, DX and DY. 589 Transcript, November 2, 2004, Norman George Setah Direct-Exam, at 00005, 37-00006, 00007, 10. 590 Transcript, November 1, 2004, Norman George Setah Direct-Exam, at 00004, 45-46. 591 Transcript, November 1, 2004, Norman George Setah Direct-Exam, at 00040, 2-4 and 34-35; 00042, 1-3. 592 Transcript, November 2, 2004, Norman George Setah Direct-Exam, at 00007, 11-40; Exhibit 211 DIG, at DZ; Exhibit 211 LEG, at DZ. 593 Transcript, November 2, 2004, Norman George Setah Direct-Exam, at 00007, 45- 00008, 8; Exhibit 211 DIG, at EA; Exhibit 211 LEG, at EA. 594 Transcript, November 2, 2004, Norman George Setah Direct-Exam, at 00008, 9- 29; Exhibit 211 DIG, at EB; Exhibit 211 LEG, at EB. 595 Transcript, November 2, 2004, Norman George Setah Direct-Exam, at 00008, 30- 00009, 41; Exhibit 211 DIG, at EC and ED; Exhibit 211 LEG, at EC and ED. 596 Exhibit 0013, Affidavit of Theophile Ubill Lulua, November 20, 2002 at para 172. 597 Transcript, November 1, 2004, Norman George Setah Direct-Exam, at 00040, 19-35.
97 fishing at Henry's Crossing.598 While many important fishing spots had hunting grounds nearby, men often traveled considerable distances to favoured hunting areas while women were drying salmon. There were popular hunting grounds at Nabaŝ (Anvil Mountain) and Red Mountain for deer, groundhog, moose and wild-chicken.599 Several witnesses testified that they hunted both east of Dasiqox Biny (Taseko Lake) near Teztan (Fish Lake), Jididzay (Onion Lake), and Bisqox (Beece Creek), and to the west of Dasiqox Biny near T'ox T'ad, Lastman Lake, Fishem Lake as well as in the valleys south of Nemiah like the Tsi Tese?an (Tchaikazan) and Yuhetah (Yohetta).600 Closer to the Chilco fishing grounds, the Nilht'isiquz valley provided ŝebay, dediny, and nists'i. Mabel William testified that these areas were hunted every late dan and dan ch'iz from the time of the ancestors.601 d. Late Summer Salmon Fishery
175. Even as the berry picking and late-summer hunting were being carried out, the early fish were being taken from the salmon grounds. Minnie Charleyboy described evening trips during the haying season to Henry's Crossing in search of Spring Salmon. These salmon would be taken through the age-long practice of attracting fish with a light-source; the ?esggidam used a large fire for this purpose.602
176. There are numerous references in the historical documents to Tsilhqot’in fishing603. When the fur traders first investigated Tsilhqot'in territory, the fishing was described as follows:
598 Exhibit 0258-DIG, Map Evidence of David Setah at "BC", "BD", "BE", "BF", "BG", "BH", "BI", "BJ". "BK" 599 Exhibit 0203, Affidavit #1 of Julie Quilt, September 29, 2004, at para. 25; Exhibit 0355, Affidavit of Joseph William, December17, 2004, at para. 84 600 Exhibit 0355, Affidavit of Joseph William, December 17, 2004, paras. 84-99; Exhibit 0180-DIG, Map Evidence of William Setah, at "CF", "CP"; Transcript, October 14, 2004, Harry Setah Direct-Exam, 00029, 14-26; 00046, 20-38; 00031, 13 – 00032, 10; 00043, 39 – 00044, 1; 00045, 25 – 00046, 45; Exhibit 0174 601 Exhibit 0174, Affidavit #2 of Mabel William, at paras. 69-70, 74; Transcript, January 18, 2005, 00053, 39 – 00054, 47; 00055, 1-41 602 Transcript, March 25, 2004, Minnie Charley boy Direct-Exam, at 00020-00021, 13-37 603 Exhibit 0156-1822/01/18.001, at 100925, Letter McDougall to Stuart Jan 18, 1822; Exhibit 0156- 1825/07/20.001, at 117612-3, Connolly’s Journal Dec 17, 18; Exhibit 0156-1825/07/20.001, at 117616, Connolly’s Journal Dec 18, 1825; Exhibit 0156-1831/00/00.001, at 3000012-3, Cox’s Adventures 1831; Exhibit 0156- 1839/05/03.001, at 2138053, Chilcotin Post Journal 1839-40; Exhibit 0156-1839/05/03.001, at 2138114 Chilcotin Post Journal 1839-40. ; Exhibit 0156-1843/12/22.001, at 2139454, Fort Alexandria Journal, 1843-5; Exhibit 0156- 1858/01/01.001, at 2137613, Fort Alexandria Journal 1858-64; Exhibit 0156-1861/08/17.001, at 2, 3, Letter from Downie to Douglas Aug 17, 1861; Exhibit 0156-1861/08/20.001 “Major Downie’s Meeting”, Article Aug 20, 1861 in The British Colonist; Exhibit 0156-1862/05/16.001, at2196272, Tiedemann’s Journal 1862; Exhibit 0156-
98
… the result of our enquiries were [sic] briefly this, the West side of the River abounds with Lakes & Small Rivers where there is a quantity of . . . . . almost all Kinds of Fish in their proper Season… which River they say yields them abundance Salmon in its Season, In short if a person could believe them, their Lands abound with Milk & Honey. 604
177. The Tsilhqox (Chilko River) is the main salmon bearing stream of Tsilhqot’in territory and lies at the heart of the territory geographically, socially and spiritually.605 The river was specifically protected from invaders because of its importance.606 The Tsilhqox provides the salmon that was smoked and cached to ensure survival during the long, winters of the plateau.607 Witnesses testified about the salmon fishing grounds that run all along the Tsilhqox, as well as the numerous lhiz qwen yex (winter pit house) sites where salmon had been dried and cached for winter since the time of the ?esggidams.608 In mapping the fundamentals of Tsilhqot’in land use and occupancy, Dr. Brealey depicted the Tsilhqox as continuous and ongoing Tsilhqot’in fishing grounds dating to pre-contact times. 609
178. John Dewhirst concluded that, “archival documents indicate a long, intensive Tsilhqot’in occupation of the Chilko River from before 1822 to the 1890s.”610 Place names litter each bend in the river as it heads north from Tsilhqox Biny. Lay witnesses gave evidence of trails that run up both sides of the Tsilhqox that have been used to follow the salmon runs up the river since the time of the ancestors.611 If one starts at the top end of Tsilhqox Biny you can follow the place names down the river to the principle fishing lands of the Anahim Band:
1864/05/20.001 at para 11, Despatch No. 7 from Governor Seymour to Colonial Office; Exhibit 0156- 1864/07/25.001, at 1, Letter Waddington to Colonial Secretary July 25, 1864 ; Exhibit 0156-1864/07/28.001, at1, Letter Waddington to Colonial Secretary July 28, 1864; Exhibit 0156-1864/08/18.001, at 2151094, Letter Brew to Governor Seymour Aug 18, 1864; Exhibit 0156-1864/08/27.001, at 2148893,Birch and Cox Correspondence Aug 27, 1864; Exhibit 0156-1872/06/14.001, at 118, Marcus Smith Journey to Bute Inlet from Appendix E of CPR Report ; Exhibit 0156-1872/06/14.001, at 118, Marcus Smith Journey to Bute Inlet from Appendix E of CPR Report ; Exhibit 0156-1872/08/20.001, at 1, Letter O-Reilly to Prov. Secretary; Exhibit 0156-1872/11/29.001, at 2000320, Letter from Marcus Smith to Walkem Nov 29, 1872 604 Exhibit 0156-1822/01/18.001, Letter McDougall to Stuart Jan 18, 1822. at p. 100925 605 Exhibit 0240, Expert Report of Ken Brealey, at 56-60, 61 606 Exhibit 0174, Affidavit #2 of Mabel William, at para. 28 607 Exhibit 0156-1831/00/00.001, Cox’s Adventures 1831 at 3000012-3 608 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, at paras. 43, 45, 46, 50; Exhibit 0432, Affidavit #2 of Elizabeth Jeff, at paras 7, 10, 13. 609 Exhibit 0246, Dr. Ken Brealey, Map of Tsilhqot’in Use and Occupancy 610 Exhibit 00443, Expert Report of John Dewhirst, at 49, para. 189 611 Exhibit 0162, Affidavit #3 of Doris Lulua, at para. 56
99
Biny Gwechugh Francis William remembered fishing on the east side of the (Canoe Crossing) Chilco here.612
Ts'eman Tŝ'ezchi Doris Lulua reported that her mother and her mother's grandmother used to camp here during salmon season. 613
Henry's Crossing This was a popular meeting place for Tsilhquot'in and one of the largest camping areas. Several of the lay witnesses confirmed having fished there during their lifetime and that they continue to do so today.614
Ts'u Nintil Doris Lulua describes this as the location of ?Elegesi's (Eagle Lake Henry) fishing spot. 615 She reported that her mother camped on the opposite side of the river during her annual salmon fishing. Minnie Charleyboy noted the ancient nature of the name given to this place.616
Tŝi Tis Gunlin Doris Lulua reported camping here with her family as a child while her family fished at Henry's Crossing.617 Mabel William confirmed that this was also a Xeni Gwet'in fishing area and that there were lhiz qwen yex here.618 Francis Setah noted that his family would leave their tent-poles here for the following year.619
Nuŝay Bighilin Doris Lulua described members of her family camping all along the river on the Nachatalhchoz side between Henry's Crossing and Nuŝay Bighilin.620 Nuŝay Bighilin was where Eugene William fished. Mabel William described it as the place where the creek comes in from three small lakes. She lived and had a salmon fishing spot here and remembers lhiz qwen yex where the creek joined the river.621
612 Exhibit 00140-DIG, Map Evidence of Chief Roger William, at "146"; Transcript, May 25, 2005, 00026, 42 – 00027, 8 613 Exhibit 0162, Affidavit #3 of Doris Lulua, at para. 58 614 Exhibit 0162, Affidavit #3 of Doris Lulua, at para. 58; Transcript, January 18, 2005, David Setah Direct Exam, 00061, 40 – 00062, 12; Transcript, October 12, 2004, 00032, 43 – 00046, 20 615 Exhibit 0093-DIG, Map Evidence of Francis Setah, at "183", Exhibit 0162, Affidavit #3 of Doris Lulua, at para. 58, 62; Transcript, May 25, 2005, Francis William, Direct-Exam, 00024, 14-16 616 Transcript, March 25, 2004, Minnie Charleyboy Direct-Exam, 00030 6-12 617 Exhibit 0162, Affidavit #3 of Doris Lulua, at para. 58 618 Exhibit 0093-DIG, Map Evidence of Francis Setah, at "171"; Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004 at para. 50(iv) 619 Transcript, December 4, 2003, Francis Setah Direct-Exam, 00041, 35 – 00042, 5 620 Exhibit 0014-DIG, Map Evidence of Chief Roger William, at "137"; Exhibit 0162, Affidavit #3 of Doris Lulua, at para. 63 621 Exhibit 0093-DIG, Map Evidence of Francis Setah, at "137"; Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004 at para. 50(iii)
100 Nezulhtsin's Beqi Doris Lulua described Nezulhtsin's fishing place as across the flat Yex from Henry Lulua's cabin at Tsi T'is Gunlin.622
Xe?tah Nadi?ah About a mile down river from Nuŝay Bighilin on the other side of the river is this spot that was used annually.623
Tsilhibed (Tsi Doris Lulua described this fishing place near Lava Canyon.624 Lhizbed) Mabel William also identified this as an ancestral fishing spot with pithouses present and continued use.625
Biny Gwetsel A large creek named Shishan-qox enters the Chilko at this spot and it was a popular fishing area since the time of the ancestors.626
Tsilangh Mabel William identified this as a place people camped for salmon fishing when she was growing up; was largely used by Tsi Del Del Tsilhqot'in.627
Tl'egwated This spot is between the entrance of Bidwell Creek and the junction of the Chilco and the Taseko. Mabel William described camping and fishing here with her family in the late summer on both sides of the river, and the presence of lhiz gwen yex.628
Gwetsilh629 Largely a Redstone fishing site, Gwetsilh was used on an annual basis into the present.630
Tŝ'iqi Ch'osh Located downriver from the Chilko Bridge near Gex Nats'enaghilht'I, Julie Quilt described fishing here with her family for spring and sockeye salmon.631
Families returned to these favoured fishing encampments year after year.632 In some cases, they would leave their fishing and fish drying equipment behind for use the following year.633
622 Exhibit 0162, Affidavit #3 of Doris Lulua, at para. 60 623 Exhibit 0162, Affidavit #3 of Doris Lulua, at para. 65 624 Exhibit 0162, Affidavit #3 of Doris Lulua, at para. 66 625 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004 at para. 50(ii) 626 Transcript, March 25, 2004, Minnie Charleyboy Direct-Exam, at 00030, 17-47 627 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004 at para. 501 628 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, at para. 19 629 Exhibit 0437, Affidavit #1 of Patrick Alphonse, April 15, 2005, paras. 21-22 630 Transcript, March 7, 2005, Ubill Hunlin Direct Exam, 0007, 36 – 00010, 5 631 Exhibit 0203, Affidavit #1 of Julie Quilt, September 29, 2004, at para. 24 632 Transcript, November 27, 2003, Francis Setah Direct Exam, 00008, 27 - 00010, 2 633 Transcript, March 25, 2004, Minnie Charleyboy Direct-Exam, 00023, 16 – 00025, 2
101 179. Unlike the clear waters of the upper Tsilhqox (Chilko River) the Dasiqox (Taseko or Whitewater River) is murky. Nonetheless, aged Tsilhqot’in salmon fishing grounds are located in the Dasiqox headwaters at (De)Neba?elhnaxnenelh?elqelh and Nadilin Yex.634 Further, the Claim Area’s trapline is astride Ganin (Gunn) Valley in the lower elevations of the Dasiqox headwaters.635 Located here is an exceedingly dense set of Tsilhqot’in lhiz qwen yex (winter pit houses) and cache pits 636 at or near where the Tsilhqot’in know salmon to spawn.637
(i) Salmon Fishing Technology
180. In the past, salmon would be taken with a sex (gaff) made of bone.638 The more recent incarnation, still in use today, is made of iron or steel; improvisations have included the use of points from old rakes. The hook (sex) is inserted into a hole at the end of a long pole in a spot called the sex-tin. When the sex is hooked into a fish it detaches from the pole and is hauled to shore by a long line attached to the sex; the line was originally made of ts'ax (sinew) but is now made from rope. Minnie Charleyboy provided an impromptu sketch:639
Exhibit 0134 – sex The long pole used for the sex would sometimes be left behind in a fishing spot for re-use in the following year.640 A daden (three-pronged spear) that was used to retrieve fish from a binlagh (fishing trap) would also be used on salmon in the river.641
634 Transcript, November 27, 2003, Francis Setah Direct-Exam, at 00027, 33-47; 00028, 13-40; 00030, 28-46 635 Exhibit 0443, Expert Report of John Dewhirst, at paras. 382, 388 636 Exhibit 0240, Expert Report of Ken Brealey, at 78; Exhibit 0245, Geographic features map 637 Transcript, November 27, 2003, Francis Setah Direct-Exam, at 00025, 9-20 638 Transcript, March 10, 2004, Minnie Charleyboy Direct Examination, 00008, 19-24 639 Transcript, March 10, 2004, Minnie Charleyboy Direct-Exam, at 0006, 1 – 00008, 24 640 Transcript, March, 25, 2004, Minnie Charleyboy Direct-Exam, 00023, 16-30 641 Transcript, March, 25, 2004, Minnie Charleyboy Direct-Exam, 00021, 36 – 00023, 2
102 181. Traditionally, fishing was also done with a hook and line. The hook was made of bone carved into a hook. The line was made of sinew treated with pitch and coal to make it water resistant.642 Similar tools are used today. Another fishing instrument was a bitlegog, which would be more like a modern-day gaffe, used to spear a fish directly – with a spike protruding out the side of a pole to hold the fish on.643
182. Some salmon would be roasted over the campfire with the ?elhts'ilch'el? (fish roasting stick), or cooked in a soup boiled in their qats’ay (spruce baskets) with a series of hot rocks.644 The drying was done with a t’ish (drying rack), made from pine logs lashed with spruce roots.645 Chief Roger William explained how his mother would dry salmon in a ?eni?ah – a word that has come to mean "smokehouse" but which seems to have originally referred to just the rack that fish are smoked on. Chief William explained how his mother would open the salmon up and stretch it with sticks before smoking with aspen.646 The fish would need to be smoked for at least a week. In the past, it would then be placed in a cache pit, which operated as a deep freeze over the winter months.
Exhibit 0049 – Tish
642 Transcript, March 8, 2004, Minnie Charleyboy Direct-Exam, 00005, 11-37 643 Transcript, September 12, 2003, Chief Roger William Direct Exam, 00019, 30-43 644 Exhibits 0072, Sketch of ?elhts'ilch'el?; Exhibit 0048, Sketch of qats’ay 645 Transcript, November 18, 2003, Francis Setah Direct-Examination, 00019, 17 – 00021, 14 646 Transcript, September 19, 2003, Chief Roger William Direct Exam, 00037, 28 – 00038, 45, Exhibit 0043, Roger William Photographs, at 101, 102
103
183. Despite the great abundance that occurred through the late summer, where was, no doubt, a sense of urgency about producing and caching sufficient foods to last through the winter. The pithouses along the Chilko River adjoined cache pits used to store the fish, berries and other preserved meats and plants that were required for the Tsilhqotins' survival. The presence of those cache pits is a record of the use of resources to their maximum potential.
104 647 5. DAN CH’IZ (FALL)
184. This section illustrates the regularized pattern of Claim Area occupation , particularly in the mountainous areas of the Claim Area during dan ch’iz (fall).
185. In the dan ch’iz (fall), the character of the mountainous Claim Area lands changes again on cue. Landlocked salmon (i.e. kokanee) spawn in the shallows of certain lakes. White bark pine have seeded their cones. Plants such as kinnick kinnick bear fruit. Deer move down the mountains, ready themselves for winter and eventually migrate to lower elevations, especially onto the Chilcotin plateau.648 Bears prepare to hibernate. Higher elevation species, such as mountain goat, marmots, mountain sheep and marten, busy themselves in fortifying for winters’ early onset. There is an abundance of meat on their bones, fur on their hides and fat on their bodies.649 Days are sunny and dry, nights are cool.650 Snow and ice have receded to their minimums.651
186. The Tsilhqot’in regime of scheduled land use has exploited these seasonal variations in Claim Area resources since pre-contact times, the times of the ?esggidams (Tsilhqot’in ancestors). As during the summer period before salmon time, the Tsilhqot’in used the Claim Area’s mountainous land, long before and until well after Crown sovereignty, every single year starting in late summer / early fall for hunting a variety of species and engaging in subsidiary land use.
187. Anthropology regarding the Tsilhqot’in clearly identifies kokanee lake fishing in the early fall, along with berrying, as part of the pre-European annual cycle of land use.652 It also points to white bark pine nut collection and cooking.653 More importantly, the anthropology is also clear regarding the annual schedule of major autumn Tsilhqot’in hunts in the mountainous
647 Transcript, November 18, 2003, Francis Setah Direct-Exam, 00002, 46 – 00003, 1 648 Exhibit 0177, Tyhurst, July 1984 Dissertation, at 251. 649 Exhibit 0177, Tyhurst, July 1984 Dissertation, at 49 and at 251; Transcript, November 18, 2003, Francis Setah Direct-Exam, at 00025, 25-00026, 7. 650 Exhibit 0177, Tyhurst, July 1984 Dissertation, at 250. 651 Exhibit 0177, Tyhurst, July 1984 Dissertation, at 250. 652 Exhibit 0177, Tyhurst, July 1984 Dissertation, at 53, 57-58; Exhibit 0175, Lane, 1953 Thesis, at 43. 653 Transcript, May 25, 2006, Morley Eldridge Cross-Exam, at 00030, 26-00031, 15; at 00037, 38-00038, 32.
105 Claim Area. Dewhirst indicates that come fall Tsilhqot’in families moved to the mountains for marmots and hunting big game.654 Tyhurst (1984) stated, “[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.”655 Mountain sheep, mountain goat, and marmot, are all found mainly in the mountainous areas to the south and east656 – i.e. the Claim Area - as are deer in the summer and fall. Deer, mountain sheep and mountain goat were hunted extensively, particularly in late summer and fall,657 along with marmot.658 Bear were also taken, especially in the fall, and were favoured for their fat.659 Meats were eaten but also dried for winter in the conducive fall climate.660 Tsilhqot’in oral history identifies the tish (a.k.a. ?eniah) (drying rack) as used since the time of the ?esggidams to cure essential dried meat for winter.661
Tish or ?Eniah - Exhibit 0049
188. Critically warm hide bedding and clothing is discussed fully in Appendix 3, Tab A, regarding Xi (Winter). These products were taken from the Tsilhqot’in fall hunting grounds of
654 Exhibit 0443, Dewhirst, August 8, 2005 Report, at 10, para. 27. 655 Exhibit 0177, Tyhurst, July 1984 Dissertation, at 101-102. 656 Exhibit 0177, Tyhurst, July 1984 Dissertation, at 109-110. 657 Exhibit 0177, Tyhurst, July 1984 Dissertation, at 49. 658 Exhibit 0177, Tyhurst, July 1984 Dissertation, at 53. 659 Exhibit 0177, Tyhurst, July 1984 Dissertation, at 49. 660 Exhibit 0177, Tyhurst, July 1984 Dissertation, at 49, 250. 661 Transcript, November 24, 2003, Francis Setah Direct Exam, 00015, 29 – 00019, 1
106 the Claim Area every year. By way of overview here, numerous Tsilhqot’in elders testified that the Tsilhqot’in had used furred mountain goat, mountain sheep and deer hides as mattresses dating back to the ?esggidams.662 Ancestral bear,663 mountain goat, mountain sheep664 blankets were also identified in the oral history, as were deer ground blankets. Numerous Tsilhqot’in elders also testified that the Tsilhqot’in since the sadanx had worn furred animal hide garments on their bodies, both as wraps and apron-like garments.665 Elder Francis Setah’s oral history evidence on this point was graphically presented (Exhibits 0059-0060).666 Elders averred that deer, mountain goat, mountain sheep, bear and lynx skins were worn in this manner.667 Dr. Lane’s thesis confirms this body of oral history evidence.668 Lane stated that the basic Tsilhqot’in clothing included an apron, usually of buckskin, which was worn in the winter with leggings.
662 Transcript, November 18, 2004, Norman George Setah, Direct-Exam, at 00030, 8-34; Transcript, March 8, 2005 Ubill Hunlin, Direct-Exam, at 00015, 4-27; Exhibit 0432, Affidavit #2 of Elizabeth Jeff, November 13, 2004, at para. 26; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 76; Transcript, November 18, 2003, Francis Setah Direct-Exam, at 00024, 28 – 00026, 7. 663 Transcript, November 18, 2004, Norman George Setah, Direct-Exam, at 00030, 8-34. 664 Transcript, December 1, 2003, Francis Setah Direct Exam, at 00031, 34 - 00032, 29. 665 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para.75; Transcript, March 8, 2005, Ubill Hunlin, Direct-Exam, at 00024, 25 – 00025, 15; Exhibit 0432, Affidavit #2 of Elizabeth Jeff, November 13, 2004, at para. 28; Transcript, November 19, 2003, Francis Setah Direct-Exam, at 00021, 47 - 00025, 4; Transcript, December 1, 2003, Francis Setah Direct-Exam, at 00031, 34 to 00032, 29; Transcript, December 2, 2003, Francis Setah Direct-Exam, at 00001, 37 to 00002, 3; Transcript, March 22, 2004, Minnie Charleyboy Direct-Exam, at 00008, 23 to 47. 666 Exhibit 0058, Drawing of traditional clothing (wrap), as described by Francis Setah; Exhibit 0059, Drawing of traditional clothing (apron), as described by Francis Setah; Exhibit 0060, Drawing of traditional clothing (wrap), as described by Francis Setah 667 Exhibit 0156-1900, James Teit, HMTQ-2037204 at 777, para. 2: “Woven lynx-skin robes were also common”. 668 Exhibit 0175, Dissertation of Robert Lane, 47.
107
Exhibit 0059 Exhibit 0060
189. Transportation to and from Tsilhqot’in fall hunting grounds of the Claim Area “was by foot or by packhorse, with rafts and canoes used to cross bodies of water.”669 The resulting “trails themselves [being] formed as a result of repeated use over generations of occupancy.”670 Hides were traditionally used by Tsilhqot’ins to make packs to carry belongings and, like canoes, transport the dried meat to their winter residences, as pictured below:671
669 Exhibit 0177, Tyhurst, July 1984 Dissertation, at 107. 670 Exhibit 0443, Dewhirst, August 8, 2005 Report, at 42, para 158. For the Tsilhqot’in Transportation Network, see Appendix 6, Map C. 671 Exhibit 0432, Affidavit #2 of Elizabeth Jeff, November 13, 2004, paras. 30-31; Transcript, December 1, 2003, Francis Setah Direct-Exam, at 00031, 34 – 00032, 5; Transcript, December 2, 2003, Francis Setah Direct-Exam, at 00002, 24 – 00003, 21
108
Hide Packs - Exhibit 0056
?Etaslaz (Bark Canoe) - Exhibit 0073
190. In his evidence, Dr. Brealey, human geographer and cartographer, stated “[i]n early fall they would return to the high country to hunt big game and gather berries, and as winter approached, moved back to their wintering grounds….”672 Dr. Brealey mapped “the basic patterns of Tsilhqot’in land use and occupancy” pre-contact, and enduring well after Crown sovereignty, as hunting and gathering across the mountainous Claim Area lands.673
672 Exhibit 0240, Brealey, September 22, 2004 Map Series Report, at 95, footnote 4. 673 Exhibit 0240, Brealey, September 22, 2004 Map Series Report, at 93-94; Exhibit 0246, Brealey, Land Use and Occupancy Map, October 2003.
109 a. Western Portion of Claim Area
191. The mountainous region to the west of Tsilhqox Biny (Chilko Lake) is an important traditional fall hunting ground for the Tsilhqot’ins.
192. Tsilhqot’ins hunt mountain goat and groundhog around Nilht’isiquz and Tl’editsoysh and Nats’ilhiqox (Ta’sbay Se?an Tl’ad or the Goat Mountain area674).675 There is also a trail running from these hunting grounds north past Tsimol Ch’ed (Potato Mountain) to fall fishing spots around Naghatalhzhoz.676 Since the time of the ?esggidam, Tsilhqot’ins have been hunting groundhogs, deer and mountain goat in the mountains along this trail, mountains such as Tach’i Dilhgwenlh (Huckleberry Mountain) and Tsimol Ch’ed (Potato Mountain).677 Tsilhqot’ins also hunt deer along this route through the mountains at Deghagwesdzan, Tizlin, Biny Gwechugh, and over to ?Edibiny each fall since the time of the ?esggidam.678
193. Other Tsilhqot’in witnesses explained that Tsilhqot’ins traveled back and forth between the north and south ends of Talhiqox Biny (Tatlayoko Lake), transporting their dried meat from their fall hunting grounds in the south to their winter residences in the north.679 In addition to walking the trails on either side of Talhiqox Biny, the ?esggidam used spruce bark canoes to
674 Transcript, March 26, 2004, Minnie Charleyboy Direct-Exam, at 00009, 6-44. Transcript, March 4, 2004, Minnie Charleyboy Direct-Exam, at 00030,45 – 00034,46; 00040,38 – 00043,26. 675 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, paras. 148-149; Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, para. 82, 84, 85; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 74; Transcript, March 4, 2004, Minnie Charleyboy Direct-Exam, at 00033, 2 – 00034, 27; 00038, 43 – 00040, 37; Transcript, March 5, 2004, Minnie Charleyboy Direct-Exam, at 00002, 29 – 00003, 8; 00004, 9 – 00005, 25; Transcript, December 1, 2003, Francis Setah Direct-Exam, at 00032, 42 – 00035, 6 676 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, para. 86 677 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, paras. 142, 184, 188; Transcript, March 4, 2004, Minnie Charleyboy Direct-Exam, at 00028, 18 – 00030, 44; Transcript, November 4, 2004, Norman George Setah, at 00056, 8 00058, 28; Exhibit 0207DIG, Norman George Setah Digitized Map, at AY; Exhibit 0207LEG, Norman George Setah, Map Legend, at AY; Exhibit 0209DIG, Norman George Setah Digitized Map, at CQ; Exhibit 0209LEG, Norman George Setah, Map Legend, at CQ ; Transcript, November 20, 2003, Francis Setah Direct Exam, 00017, 1-30; Exhibit 0158, Affidavit #2 of Francis William, April 30, 2004, at para. 62. 678 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 74; Transcript, March 4, 2004, Minnie Charleyboy Direct-Exam, at 00034, 35-46; 00040, 38 – 00042, 26; Transcript, November 27, 2003, Francis Setah Direct-Exam, at 00040, at 37 – 00042, 12; Transcript, December 1, 2003, Francis Setah Direct-Exam, at 00032, 42 – 00035, 6; 00036, 20 – 00038, 9; Transcript, July 25, 2002, Martin Quilt Direct-Exam, at 00849, 9 – 00859, 13; Exhibit 0001DIG, Martin Quilt Digitized Map, at M1; Exhibit 0001LEG, Martin Quilt Map Legend, at M1. 679 Transcript, December 1, 2003, Francis Setah Direct-Exam, at 00037, 38 – 00038, 46; 00041, 35 – 00042, 2; Transcript, December 2, 2003, Francis Setah Direct-Exam, at 00002, 4 – 00003, 33; Transcript, March 5, 2004, Minnie Charleyboy, at 00005, 26 – 00007, 35.
110 travel Talhiqox Biny and transport the dried meat to their winter residences.680 Morley Eldridge for British Columbia stated that the archaeological site of a Tsilhqot’in village at Tatlayoko Lake showed the clearest link of historical documentation to specific archaeological evidence.681
194. Tsilhqot’ins have been staying at Taghinlin on the eastern shore of Talhiqox Biny (Tatlayoko Lake) to hunt deer in the fall since the time of the ?esggidam.682 While the fall hunt is taking place in the western portions of the Claim Area, so too is fall fishing. Norman George Setah explained that while his family was hunting deer, cougar and squirrel down at Tachidilin they would also be fishing for Dolly Varden and Trout.683 Mr. Setah also explained that these activities have been taking place at Tachidilin since the time of the ancestors.684
195. Since the time of the ?esggidam, they have camped around Ch’a Biny, Gwech’az Biny and Tachidilin during the fall to prepare for winter by hunting deer, trapping, hunting goat in the mountains, and drying meat.685 Tsilhqot’ins would hunt throughout this mountainous region all the way down to Talhjez (Franklin Arm).686 Lynx, marten, coyotes, and squirrels would be trapped at the same time.687 In recent times, moose were also hunted in this area.688 Tsilhqot’ins
680 Transcript, December 1, 2003, Francis Setah Direct-Exam, at 00037, 38 – 00038, 46; 00041, 35-47; Transcript, December 2, 2003, Francis Setah Direct-Exam, at 00002, 4 – 00003, 33; Transcript, March 5, 2004, Minnie Charleyboy, at 00005, 26 – 00007, 35. 681 Transcript, May 12, 2003, Morley Eldridge Direct Exam, 00081, 23 – 00082, 1. 682 Transcript, November 8, 2004, Norman George Setah Direct-Exam, at 00007, 41 – 00011, 13 683 Transcript, October 20, 2004, Norman George Setah Direct-Exam, at 00026, 17 – 00030, 44; Exhibit 0207DIG, Norman George Setah Digitized Maps, at AG, AH, AI, BR; Exhibit 0207LEG, Norman George Setah Map Legend, at AG, AH, AI, BR. 684 Transcript, October 20, 2004, Norman George Setah Direct-Exam, at 00026, 17 – 00030, 44. 685 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, para. 32; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 73; Exhibit 0179, digitized evidence map; Transcript, October 12, 2004, Harry Setah Direct-Exam, at 00061, 2-44; Transcript, December 2, 2003, Francis Setah Direct Exam, 00003, 24 – 00004, 47; Transcript, October 20, 2004, Norman George Setah Direct Exam, 00029, 25 – 00031, 24; Exhibit 0207DIG, Norman George Setah Digitized Evidence Map, #216; Exhibit 0207LEG, Map legend, #216 686 Transcript, October 12, 2004, Harry Setah Direct-Exam, at 00004, 1-28; 00005, 32 – 00008, 14; Transcript, January 18, 2005 David Setah Direct-Exam, at 00043, 34 – 00045, 12; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 40, 70; Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, at 00043, 20 – 00046, 23; Transcript, December 4, 2003, Francis Setah Direct-Exam, at 00001, 42 – 00002, 4; Exhibit 0158, Affidavit #2 of Francis William, April 30, 2004, at paras 86-98; Exhibit 0355, Affidavit of Joseph William, December 17, 2004, at paras. 84-102; Transcript, February, 17, 2005, Joseph William, 00009, 6-28. Exhibit 0416, Affidavit #1 of Lloyd Myers, May 6, 2005, at para. 54. 687 Transcript, October 12, 2004, Harry Setah Direct-Exam, at 00005, 17-34 688 Transcript, October 12, 2004, Harry Setah Direct-Exam, at 00005, 32 – 00008, 14
111 would also take this opportunity to gather Indian Tea and Saskatoon berries.689 Martin Quilt explained that the mountains to the west of Tsilhqox Biny (Chilko Lake) are traditional Tsilhqot’in trapping and hunting grounds for mountain goat, marten, squirrels and lynx, describing trips taken through the fall up to Christmas by his grandfather, Sammy Bulyan, his father-in-law, Little George Setah, his uncles, Eugene, Jimmy and Danny, Henry Solomon, William Setah and others.690
196. The historical record and oral history and confirm that the area to the southwest of Tsilhqox Biny (Chilko Lake) was a particularly important part of Tsilhqot’in territory during the fall. Cox’s 1864 map of the territory describes the area past Franklin Arm leading towards Bute Inlet as “Klatsassin’s Salmon Fishery”.691 This accords with Dr. Brealey’s research on Cox’s attempts to capture Klatsassin during the Chilcotin War, who travels “into Klatassine’s favourite hunting and fishing territory, the mountainous range… between Moseley Creek and Chilko Lake…” Elder Mabel William has explained that Tsilhqot’ins since the ?esggidams have been taking ?etaslaz (bark boats) across Tsilhqox Biny and up Talhjez (Franklin Arm) to go over the mountains to get fish from the river that runs into the ocean.692 Ms. William noted that this resource was of particular importance in years when there was a shortage of salmon in the Tsilhqox (Chilko River) or Dasiqox (Taseko River). With coastal salmon being available starting in October through the winter,693 Tsilhqot’ins would exploit “Klatsassin’s salmon fishery” around the same time as the traditional fall hunt to obtain sufficient dried meat and fish for the winter ahead.
197. ?Edibiny, the small lake just south of Naghatalhchoz (Big Eagle Lake) is a large
689 Transcript, October 13, 2004, Harry Setah Direct-Exam, at 00005, 30 – 00006, 6; 00007, 30-31; 00009, 32 – 00010, 30 690 Transcripts, August 12, 2002, Martin Quilt Deposition, 000911, 7 – 00924, 14, R1; Exhibit 0003DIG, Martin Quilt Digitized Map, at R1; Exhibit 0003LEG, Map Legend, at R1; Exhibit 0207DIG, Norman George Setah Digitized Map, at BR; Exhibit 0207LEG, Norman George Setah Map Legend, at BR. 691 Ex. 0265-1864/00/00/001, Chilcotin War Map, 1864; This accords with Dr. Brealey’s research on Cox’s attempts to capture Klatsassin during the Chilcotin War, who travels “into Klatassine’s favourite hunting and fishing territory, the mountainous range… between Moseley Creek and Chilko Lake…”: Exhibit 0240, Expert Report of Dr. Ken Brealey, at 42, citing Mel Rothenburger, The Chilcotin War (Langley: Mr.. Paperback, 1978) at 151; John Brough provides a similar account in his 1864 diary, in which he describes the localities of some Tsilhqot’in chiefs, stating Klatsassin “had the Bute Inlet mountain and surrounding district.”: Ex 0156-1864/06/29.001, Diary of John Brough, at p. 100622 692 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 72 693 Exhibit 0177, Draft Dissertation of Robert Tyhurst, at 53
112 camping and kokanee fishing place for many Tsilhqot’ins.694 Tsilhqot’ins have been fishing for Kokanee at ?Edibiny and Ch’ezqud every fall since the time of the ?esggidam.695 Traditionally, a xestl’un (fish trap) would be placed in Ch’ezqud, the creek that runs between ?Edibiny and Naghatalhchoz (Eagle or Choelquoit Lake), trapping the fish so they could be taken by hand.696 Tsilhqot’ins would also fish for kokanee at other places around Naghatalhchoz, including Sanagwedijan, Tsi Ch’ed Diz?an, ?Elhitich’ed.697 Tsilhqot’ins live around Naghatalhchoz.698 Gill nets would be used to catch fish.699 The fish would then be dried for the winter using tish (drying racks).700
198. Tsilhqot’ins since the time of the ?esggidam have also been harvesting kinnick kinnick while staying at these fall fishing camps.701 Pine nuts or seeds have also been harvested by Tsilhqot’ins since the time of the ?esggidam in the area between ?Edibiny and Tsimol Ch’ed (Potato Mountain).702 Minnie Charleyboy explained her family harvesting pine nuts at nearby Tizlin.703 Tsilhqot’ins would also hunt for deer, and moose in recent times, while they were camped and fishing for okanee around Naghatalhchoz, including Henry’s Crossing.704 South of Naghatalhchoz, at the northern end of Tsilqhox Biny (Chilko Lake), Tsilhqot’ins used to camp,
694 Transcript, March 25, 2004, Minnie Charleyboy Direct Examination, at 00043, 21 – 00045, 2; Transcript, March 26, 2004, Minnie Charleyboy Direct Examination, at 00001, 10 – 00003, 43; Transcript, November 1, 2004, Norman George Setah Direct-Exam, at 00021, 1 – 15; Transcript, November 8, 2004, Norman George Setah Direct-Exam, at 00038, 1 – 00040, 4; Transcript, November 9, 2004, Norman George Setah Direct-Exam, at 00021, 15 – 34. 695 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, paras. 71, 75; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 31(ii); Transcript, November 8, 2004, Norman George Setah Direct-Exam, at 00038, 1 – 00040, 4; Transcript, November 9, 2004, Norman George Setah Direct-Exam, at 00021, 24-34; Transcript, March 25, 2004, Minnie Charleyboy Direct-Exam, at 00043, 25 – 00044, 36; Transcript, March 26, 2004, Minnie Charleyboy Direct-Exam, at 00002, 10 – 00003, 43; Transcript, November 27, 2003, Francis Setah Direct-Exam, at 00033, 36 – 00034, 22; 00036, 4-33; 00044, 26-46 696 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, para. 74; Transcript, November 27, 2003, Francis Setah Direct-Exam, 00034, 18 – 00036, 3; 00036, 31-37 697 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, para. 75 698 Transcript, April 2, 2004, Theophile Ubill Lulua, at 00028, 35-36 699 Transcript, November 27, 2003, Francis Setah Direct-Exam, at 00034, 21-22; 00045, 2 – 00046, 14 700 Transcript, November 27, 2003, Francis Setah Direct-Exam, 00037, 46 – 00038, 41 701 Transcript, November 27, 2003, Francis Setah Direct-Exam, at 00038, 42 – 00040, 36 702 Transcript, November 27, 2003, Francis Setah Direct-Exam, at 00042, 13 – 00044, 25. 703 Transcript, March 25, 2004, Minnie Charleyboy Direct-Exam, at 00036, 42-46; 00038, 29-44. 704 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 31(ii); Transcript, September 25, 2003, Roger William Direct-Exam, at 00012, 44 – 00013, 4; Transcript, November 8, 2004, Norman George Setah Direct-Exam, at 00038, 15-31
113 fish, hunt deer and gather kinnick kinnick at Sul Gunlin but are no longer able to access the land because of the presence of a lodge.705 b. Central Portion of Claim Area
199. Martin Quilt outlined the Tsilhqot’in fall hunting grounds in the central Claim Area, which included all of the mountains between Tsilhqox Biny (Chilko Lake) in the west and Dasiqox Biny (Taseko Lakes) in the east, between Tachelach’ed in the north and Tsi Tese?an (Tchaikazan) in the east.706 Mr. Quilt explained that these hunting grounds have been used continually since the time of the ?esggidams.707
200. Tsilhqot’ins have hunted deer, mountain goat, mountain sheep, groundhog, beaver, and bear around Tsilhqox Tu Tl’az at the south end of Tsilhqox Biny (Chilko Lake) every fall since the time of the ?esggidam.708 Spruce bark canoes were used ancestrally to travel up Tsilhqox Biny (Chilko Lake) towards Tsilhqox Tu Tl’az.709 Tsilhqot’ins would stay in ts’e?etsedilhyah (pine windbreakers) while hunting in this area.710
201. At Tsi Tese?an (Tchaikazan Valley) on the east side of Tsilhqox Biny (Chilko Lake) Tsilhqot’ins have hunted deer, mountain goat, mountain sheep, marten, groundhog and bear711
705 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, para. 87; Transcript, March 26, 2004, Minnie Charleyboy Direct-Exam, at 00003, 44 – 00004, 46; 00008, 33-47 706 Transcript, July 25, 2002, Martin Quilt Deposition, 00790, 3 – 00793, 14; Transcript, July 26, 2002, Martin Quilt Deposition, 000829, 1 – 00830, 15; 00831, 22 – 00838, 5; Exhibit 0003DIG, Digitized map of Martin Quilt’s evidence, at J1, L1; Exhibit 0003LEG, Map legend, at J1, L1 707 Transcript, July 26, 2002, Martin Quilt Deposition, 00835, 14 – 00838, 5 708 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 40, 70; Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, at 00043, 20 – 00046, 23; Transcript, December 4, 2003, Francis Setah Direct-Exam, at 00001, 42 – 00002, 4; Transcript, November 18, 2004, Norman George Setah, 00002, 28 – 000020, 39; 00022, 12 - 00028, 25; Exhibit 0416, Affidavit #1 of Lloyd Myers, May 6, 2004, at paras. 42, 43, 54; Exhibit 0355, Affidavit of Joseph William, December 17, 2004, at paras. 84-102; Transcript, May 30, 2005, Lloyd Myers, at 00022, 46 – 00023, 42; Exhibit 0158, Affidavit #2 of Francis William, April 30, 2004, at paras. 86-98. 709 Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, at 00045, 1 – 00046, 23 710 Transcript, March 14, 2005, Ubill Hunlin Direct-Exam, at 00005, 40 – 00006, 42; Exhibit 432, Affidavit #2 of Elizabeth Jeff, at para. 19. 711 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 40, 69, 70; Transcript, January 18, 2005, David Setah Direct-Exam, at 00053, 39 – 00054, 47; 00063, 17 – 00064, 11; Transcript, September 25, 2003, Roger William Direct-Exam, at 00013, 32-41; Transcript, December 2, 2003, Francis Setah Direct-Exam, at 00005, 7 – 00007, 37.
114 since the time of the ?esggidam.712 Similarly, at Yuyetah (Yohetta Valley) Tsilhqot’ins, since the time of the ?esggidam, have hunted deer migrating out of the western end of Yuyetah713, and mountain goat, mountain sheep, groundhog and bear in the steep, rocky areas above Yuyetah and around Gex Gulin, every fall since the time of the ?esggidam, before traveling north towards Chinslad Gulin and their winter residences.714 At Tl’echid Gunaz (Long Meadow) Tsilhqot’ins have also hunted deer, mountain goat, mountain sheep, groundhog and bear since the time of the ?esggidam.715
202. Closer to the Nemiah Valley, Tsilhqot’ins have hunted mountain goats, groundhogs and marten in the mountain range including Ts’il?os (Mount Tatlow), Tsi Ch’ed Tl’ad, Naghagant’ax, and Nilhgwetizdih, every fall since the time of the ?esggidam.716 At the same time, deer are hunted all around Ts’il?os as they are migrating down through the valleys towards their winter range.717 In recent times, moose have also been hunted in this area.718 Tsilhqot’ins
712 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 40, 69, 70; Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, at 00046, 24 – 00047, 44; Transcript, December 2, 2003, Francis Setah Direct-Exam, at 00005, 7 – 00011, 45 713 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 40, 70; Transcript, January 18, 2005, David Setah Direct-Exam, at 00053, 39 – 00054, 47 714 Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, at 00046, 24 – 00047, 44; Transcript, September 25, 2003, Roger William Direct-Exam, at 00013, 32-41; Transcript, December 2, 2003, Francis Setah Direct-Exam, at 00005, 7 – 00007, 37; 00011, 12-45; Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 40, 69, 70; Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, paras. 47-49 715 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 40, 69, 70; Transcript, November 30, 2004, Norman George Setah Direct Exam, 00026, 8 – 00027, 28; Transcript, July 25, 2002, Martin Quilt Deposition, 00790, 3 – 00793, 14; Transcript, July 26, 2002, Martin Quilt Deposition, 000829, 1 – 00830, 15; 00831, 22 – 00838, 5; Exhibit 0003DIG, Digitized map of Martin Quilt’s evidence, at J1, L1; Exhibit 0003LEG, Map legend, at J1, L1 716 Transcript, March 7, 2005, Ubill Hunlin Direct-Exam, at 00031, 14 – 00032, 22; 00033, 7 – 00034, 18; 00039, 42-46; 00040, 15-34; 00042, 23-47; 00047, 45 – 00048, 15; Transcript, March 8, 2005, Ubill Hunlin Direct-Exam, at 00004, 17 – 00011, 15; Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, para. 188; Transcript, December 2, 2003, Francis Setah Direct-Exam, at 00003, 24 – 00004, 28; 00017, 39 – 00023, 41; 00025, 47 – 00026, 37; Transcript, July 25, 2002, Martin Quilt Deposition, 00790, 3 – 00793, 14; Exhibit 0003DIG, Digitized map of Martin Quilt’s evidence, at J1; Exhibit 0003LEG, Map legend, at J1 717 Transcript, October 12, 2004, Harry Setah Direct-Exam, at 00031, 22 – 00032, 30; 00042, 12 – 00045, 4; Transcript, June 14, 2005, Elizabeth Jeff Direct-Exam, at 00010, 25 to 29; Transcript, January 18, 2005, David Setah Direct-Exam, at 00048, 20 – 00049, 40; 00051, 16 – 00053, 1; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 99, 100. 718 Transcript, October 12, 2004, Harry Setah Direct-Exam, at 00031, 22 – 00032, 30; 00042, 12 – 00045, 4; Transcript, January 17, 2005, David Setah Direct-Exam, at 00050, 1-36; 00051, 16 – 00053, 1; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 98; Exhibit 0366, Affidavit #1 of Gilbert Solomon, at paras. 23, 37.
115 would camp in the area while hunting.719 Francis Setah, Norman George Setah, and Martin Quilt have mapped out some of the hunting areas around Ts’il?os that continue to be used.720
203. Tsilhqot’ins would also hunt mountain sheep and mountain goat at Nanats’ededilh (Four Mile Lake).721 Norman George Setah explained that while growing up he and his family harvested kinnick kinnick berries, in the central portion of the Claim Area at Nanats’ededilh and Et’an Ghintil (on south Konni Lake)722 and in the eastern portion of the Claim Area in the Nabas area east of Taseko Lakes.723 Francis Setah had similar evidence and stated that kinnick kinnick grows in many places in the Claim Area and has been harvested in the fall by Tsilhqot’ins as part of their traditional diet since the time of the ?esggidam.724 In the fall, Tsilhqot’ins camp around Nanats’ededilh to hunt for deer, cougar, and squirrels.725 Tsilhqot’ins have been hunting in this area since the time of the ?esggidam, with mountain goats also being hunted in the surrounding mountains.726
204. Tsilhqot’ins have hunted mountain sheep near Xeni Biny (Konni Lake) since the time of the ?esggidam, including areas such as Xeni Dzelh (Konni Mountain) and above ?Elhtilh
719 Transcript, October 18 2004, Harry Setah Redirect-Exam, at 00023, 6-47; Transcript, May 25, 2004, Francis William Direct Exam, 00016, 24 – 00018, 5 720 Transcript, December 2, 2003, Francis Setah Direct Exam, 00020, 36 – 00022, 9; 00022, 23 – 00023, 20; Exhibit 0095, Francis Setah Digitized Evidence Map, at CU, CV, CW; Exhibit 0095LEG, Map Legend, at CU, CV, CW; Transcript, November 4, 2004, Norman George Setah Direct Exam, 00057, 8-21; Exhibit 0212DIG, Norman George Setah Digitized Map, at FU; Exhibit 0212LEG, Norman George Setah Map Legend, at FU; Transcript, November 30, 2004, Norman George Setah Direct Exam, 00041, 43 – 00042, 36; Exhibit 0217DIG, Norman George Setah Digitized Map, at JR; Exhibit 02172LEG, Norman George Setah Map Legend, at JR. and add transcript references when they draw the polygons on the map. Transcript, July 25, 2002, Martin Quilt Deposition, 00790, 3 – 00793, 14; Transcript, July 26, 2002, Martin Quilt Deposition, 000829, 1 – 00830, 15; 00831, 22 – 00838, 5; Exhibit 0003DIG, Digitized map of Martin Quilt’s evidence, at J1, L1; Exhibit 0003LEG, Map legend, at J1, L1 721 Transcript, March 26, 2004, Minnie Charleyboy Direct-Exam, at 00009, 6-44; Transcript, November 8, 2004, Norman George Setah, at 00026, 26 – 00027, 7; 00028, 7-45. 722 Transcript, November 1, 2004, Norman George Setah Direct-Exam, at 00020, 15 - 43; See also Exhibit 210DIG, Norman George Setah Digitized Map, at DN, DO, and DP; See also Exhibit 211LEG, Norman George Setah Map Legend, at DN, DO, and DP. 723 Transcript, December 8, 2003, Norman George Setah Cross-Exam, at 00026, 21- 00027, 10. See also Exhibit 211DIG, Norman George Setah Digitized Map, at EE; See also Exhibit 211LEG, Norman George Setah Map Legend, at EE. 724 Transcript, December 1, 2003, Francis Setah Direct-Exam, at 00012, 41 – 00014, 6; Transcript, January 17, 2005, David Setah Direct Examination, at 00058, 27 – 38. 725 Transcript, November 8, 2004, Norman George Setah Direct-Exam, at 00026, 29-40 726 Transcript, November 8, 2004, Norman George Setah Direct-Exam, at 00027, 1-7; 00028, 7-45
116 ?Elhtilh.727 Mountain sheep have also been hunted by Tsilhqot’ins to the west in the steep, rocky areas around Xex Ti and Shishan Tl’ad since the time of the ?esggidam.728 Tsilhqot’ins have also been hunting deer and mountain goat around Xeni Dzelh since the time of the ?esggidam.729 They would camp to the west at Dediny Nendaltsi, while hunting goats and groundhogs and picking mountain potatoes in the mountains.730
205. In addition to hunting, Tsilhqot’ins have traditionally fished and harvested berries during fall, including in Xeni (the Nemiah Valley). Tsilhqot’ins have been fishing for Dolly Varden in Jidinlin, a creek in the northwest end of Xeni, since the time of the ?esggidam.731 They would fish while drying meat from the fall hunts. At the other end of the Xeni, there is an underground house village site at Xeni Biny (Konni Lake) at ?Etan Ghintil.732 Tsilhqot’ins have been living at?Etan Ghintil on Xeni Biny (Konni Lake) and fishing for kokanee every fall since the time of the ?esggidam.733 Lhuy binedilh, gill nets and dip nets are used to catch the fish.734 Martin Quilt explained that, ?Et'an Ghintil is also referred to as ‘Louie's Fish Trap’ after Louie Setah (Sit'ax - born c.a. 1827-1849735).736 Mr. Quilt further explained that Xeni Gwet’in stayed there in the
727 Transcript, March 8, 2005, Ubill Hunlin Direct-Exam, at 00012, 38 – 00016, 29; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 96, 100; Transcript, December 2, 2003, Francis Setah Direct Exam, at 00003, 24 – 00004, 33 728 Transcript, March 8, 2005, Ubill Hunlin Direct-Exam, at 00012, 38 – 00016, 29; Transcript, December 2, 2003, Francis Setah Direct-Exam, at 00026, 41 – 00029, 16 729 Transcript, November 30, 2004, Norman George Setah Direct-Exam, at 00036, 1 – 00039, 21; Transcript, August 13, 2002, Martin Quilt Deposition, at 00961, 18 – 00965, 1; 00968, 9 – 00971, 11; Exhibit 0003DIG, Martin Quilt Digitized Evidence Map, at V1; Exhibit 0003LEG, Map Legend, at V1 730 Transcript, November 30, 2004, Norman George Setah Direct-Exam, at 00038, 12 – 00039, 21 731 Transcript, November 8, 2004, Norman George Setah Direct-Exam, at 00028, 42 – 00030, 10; Exhibit 0213DIG, Norman George Setah Digitized Map, at GM; Exhibit 0213LEG, Norman George Setah Map Legend, at GM. 732 Exhibit 0367, Affidavit #2 of Gilbert Solomon, January 19, 2005, paras. 63-64; Transcript, March 15, 2005, Gilbert Solomon Direct Exam, 00037, 30 – 00038, 1; Transcript, March 17, 2005, Gilbert Solomon Direct Exam, 00043, 37 – 00044, 12; 00048, 9-36; Exhibit 0371DIG, Gilbert Solomon Digitized Evidence Map, at AV, AY; Exhibit 0371LEG, Map Legend, at AV, AY. 733 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 40; Transcript, October 13, 2004, Harry Setah Direct Exam, at 00012, 2 – 00014, 36; Transcript, January 17, 2005, David Setah Direct-Exam, at 00009, 22- 47; Transcript, January 18, 2005, David Setah Direct-Exam, at 00021, 30-46; 00024, 13-31; Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20, 2002, para. 198; Transcript, November 29, 2004, Norman George Setah Direct-Exam, at 00032, 30-37; 00034, 8-40; Transcript, December 1, 2003, Francis Setah Direct- Exam, at 00015, 4 – 00017, 15; 00018, 5-39 734 Transcript, October 13, 2004, Harry Setah Direct-Exam, at 00013, 30-45; Transcript, October 15, 2004, Harry Setah Cross-Exam, at 00049, 12-45; Transcript, November 29, 2004, Norman George Setah Direct-Exam, at 00034, 8-40 735 Exhibit 0441, Expert Report of John Dewhirst, at 24, paras. 5.0 – 5.1. 736 Transcript, July 10, 2002, Martin Quilt Direct-Exam, at 00005 – 00006; 00193 - 00195; Transcript, July 24, 2002, Martin Quilt Direct-Exam, at 00581 – 00584.
117 fall, right until Christmas, fishing for whitefish & kokanee, until white people moved there.737 Tsilhqot’ins also fish for trout just east of ?Etan Ghintil at Naghataneqed, at the eastern end of Xeni Biny.738
206. Dig (saskatoon berries) and melguns (chokecherries) are also gathered every year around Xeni Biny at the same time of year as kokanee fishing.739 Kinnick kinnick has also been gathered by Tsilhqot’ins at ?Etan Ghintil since the time of the ?esggidam.740 Silverweed has been harvested by Tsilhqot’ins since the time of the ?esggidam at Chinsdad Gulin to the east of Xeni Biny (Konni Lake).741 Selhchugh (huckleberries) are found up high in the mountains, such as the area around Little Red Mountain (at the south west end of Xeni – the Nemiah Valley).742
207. Tsilhqot’ins hunt ducks and geese during fall in Xeni (the Nemiah Valley).743 Tsilhqot’ins have also been hunting ducks and geese around Xex Ti in the fall since the time of the ?esggidam.744 Tsilhqot’ins have been hunting and trapping lynx, rabbits, mink and weasels throughout this area, from Xeni Biny (Konni Lake) to Tsilhqox Biny (Chilko Lake), since the time of the ?esggidam.745
208. Gilbert Solomon and Norman George Setah explained that the ?essigdams lived at ?Elhxatish and Niba ?Elhenenalqelh (Captain Georgetown).746 Tsilhqot’ins since the time of the ?esggidam have been camping at ?Elhxatish between the twin lakes (Elkins and Vedan Lake) to fish in the fall time.747
737 Transcript, July 10, 2002, Martin Quilt Direct-Exam, at 00005 – 00006; 00193 - 00195; Transcript, July 24, 2002, Martin Quilt Direct-Exam, at 00581 – 00584. 738 Transcript, January 18, 2005, David Setah Direct-Exam, at 00015, 41 – 00016, 22 739 Transcript, October 13, 2004, Harry Setah Direct-Exam, at 00014, 37 – 00015, 20; 00016, 1-33 740 Transcript, November 1, 2004, Norman George Setah Direct-Exam, at 00020, 44 – 00021, 11; 00021, 44 – 00022, 6 741 Transcript, December 1, 2003, Francis Setah Direct-Exam, at 00018, 41 – 00023, 7 742 Transcript, October 13, 2004, Harry Setah Direct-Exam, at 00018, 37-44; 00020, 2-16 743 Transcript, January 18, 2005, David Setah Direct-Exam, at 00016, 29 – 00017, 39; 00020, 1 – 00021, 26 744 Transcript, March 8, 2005, Ubill Hunlin Direct-Exam, at 00028, 23 – 00031, 34 745 Transcript, November 8, 2004, Norman George Setah Direct-Exam, at 00030, 11 – 00031, 1 746 November 18, 2004, Norman George Setah Direct-Exam, at 00034, 44 – 00036, 37; 00038, 38 – 00039, 36. quote; April 5, 2005, Gilbert Solomon Direct-Exam, at 00016, 4-39. 747 Transcript, November 18, 2004, Norman George Setah Direct-Exam, at 00035, 22 – 00037, 37; 00038, 38 – 00039, 15; Transcript, December 1, 2003, Francis Setah Direct-Exam, at 00023, 8 – 00025, 14
118 209. Dig (saskatoon berries), kinnick kinnick, and texaltsel (raspberries) were gathered around the northern end of Tsilhqox Biny (Chilko Lake) at Ts’uni?ad Biny (Tsuniah Lake) as well as the west side of Nabi Tsi Biny (Elkin Lake) at ?Elhxatish.748 Ts’uni?ad Dzelh (Tsuniad Mountain) is another traditional Tsilhqot’in hunting ground for mountain goats and mountain sheep.749 c. Eastern Portion of Claim Area
210. Tsilhqot’ins camp around Dasiqox Tu Tl’az and Ts’i Ts’elhts’ig, at the south end of Dasiqox Biny (Taseko Lake) in the fall to hunt deer, mountain goat, mountain sheep and marten in the mountains and dry the meat and hides for the winter.750 Tsilhqot’ins also hunt groundhog,751 deer,752 and, in recent times, moose,753 around Taylor Windfall at the south end of Dasiqox Biny (Taseko Lake). The Tsilhqot’in ?esggidam used to manufacture spruce bark canoes here to ferry the meat and hides up Dasiqox Biny on the way to their winter residences to the north.754
211. Tsilhqot’ins have been hunting throughout the mountainous area to the east of Dasiqox Biny (Taseko Lake) since the time of the ?esggidam.755 In fall, Tsilhqot’ins have hunted deer that migrate down from Gwetex Natel?as (Red Mountain), located in the middle of the Eastern Trapline, continuously since the time of the ?esggidam. 756 Many Tsilhqot’in witnesses explain
748 Transcript, October 13, 2004, Harry Setah Direct-Exam, at 00014, 37 – 00016, 2; 00017, 1-17 749 Transcript, December 2, 2003, Francis Setah Direct Exam, at 00003, 24 – 00004, 33 750 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 40, 71; Transcript, December 1, 2003, Francis Setah Direct-Exam, at 00044, 30 – 00047, 47; Transcript, December 2, 2003, Francis Setah Direct-Exam, at 00007, 38 - 751 Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, paras. 45 752 Transcript, October 14, 2004, Harry Setah Direct-Exam, at 00054, 38 – 00055, 4; 00058, 10-23; Transcript, January 18, 2005, David Setah Direct-Exam, at 00055, 42 – 00056, 23; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 92 753 Transcript, October 14, 2004, Harry Setah Direct-Exam, at 00054, 38 – 00055, 4; 00058, 10-23 754 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, para. 40, 71; Transcript, December 2, 2003, Francis Setah Direct-Exam, at 00002, 4 – 00003, 33 755 Exhibit 0416, Affidavit #1 of Lloyd Myers, May 6, 2005, paras. 45-47; Exhibit 0439, Affidavit of Cecilia Quit, May 6, 2005, at para. 42; Exhibit 0158, Affidavit #2 of Francis William, April 30, 2004, at paras. 111-116; 126; Transcript, May 26. 2004, Francis William Cross-Exam, at 00033, 14 – 00037, 20; Exhibit 0203, Affidavit of Julie Quilt, September 29, 2004, at para. 25; Exhibit 0355, Affidavit of Joseph William, September 29, 2004, at paras. 58-64. 756 Exhibit 0203, Affidavit #1 of Julie Quilt, September 29, 2004, para. 27; Transcript, November 5, 2004, Julie Quilt Direct-Exam, at 00016, 34 – 00018, 6; 00020, 40 – 00021, 2; Exhibit 0417, Affidavit #1 of Lloyd Myers, May
119 that the ?esggidam used rock blinds to hunt the migrating deer at this location and these blinds can still be seen and used today.757 Tsilhqot’ins have also hunted groundhog at Gwetex Natel?as (Red Mountain) continuously since the time of the ?esggidam.758 Some of the meat was eaten and some was dried for use during the winter.759 The hides were also dried and marmot hides were used to make blankets.760 Francis William, Norman George Setah, Thomas Billyboy and Gilbert Solomon all testified to the Tsilhqot’in traditional practice of trading marmot, deer and mountain goat hides with neighbouring First Nations761 Pine nuts are also picked in this area.762 In more recent times, moose has also been hunted at Gwetex Natel?as (Red Mountain).763
6, 2005, paras. 45-47; Transcript, October 14, 2004, Harry Setah Direct-Exam, at 00054, 38 – 00056, 28; Transcript, January 18, 2005, David Setah Direct-Exam, at 00055, 42 – 00063, 16; Transcript, September 25, 2003, Roger William Direct-Exam, at 00013, 32-41; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 87-88; Transcript, December 2, 2003, Francis Setah Direct-Exam, at 00036, 42 – 00040, 16; Transcript, November 1, 2004, Norman George Setah Direct Exam, 00009, 45 – 00010, 30; 00011, 18 – 00013, 26; Exhibit 0210DIG, Norman George Setah Digitized Map, at DH, DJ, DK; Exhibit 0210LEG, Norman George Setah Map Legend, at DH, DJ, DK. 757 Exhibit 0203, Affidavit #1 of Julie Quilt, September 29, 2004, para. 27; Transcript, November 5, 2004, Julie Quilt Direct-Exam, at 00016, 34 – 00018, 6; 00020, 40 – 00021, 2; Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, paras. 45-47; Transcript, October 14, 2004, Harry Setah Direct-Exam, at 00054, 38 – 00056, 28; Transcript, January 18, 2005, David Setah Direct-Exam, at 00055, 42 – 00063, 16; Transcript, September 25, 2003, Roger William Direct-Exam, at 00013, 32-41; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 87-88; Transcript, December 2, 2003, Francis Setah Direct-Exam, at 00036, 42 – 00040, 16; Transcript, November 1, 2004, Norman George Setah, at 00011, 6 – 00017, 17; Transcript, December 8, 2004, Norman George Setah, at 00024, 36 – 00026, 20; Transcript, November 29, 2004, Norman George Setah, at 00022, 36 – 00023,13; Exhibit 0210DIG, Norman George Setah Digitized Map, at DH, DJ, DK; Exhibit 0210LEG, Norman George Setah Map Legend, at DH, DJ, DK; See also Appendix 2, at para. 185. 758 Exhibit 0203, Affidavit #1 of Julie Quilt, September 29, 2004, para. 27; Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, paras. 45-47; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, paras. 90; Transcript, December 1, 2004, Norman George Setah Direct-Exam, at 00027,40 – 00029,32; Exhibit 0439, Affidavit of Cecilia Quilt, May 6, 2004, at para. 40. 759 Exhibit 0203, Affidavit #1 of Julie Quilt, September 29, 2004, para. 27; Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, paras. 45-47 760 Exhibit 0203, Affidavit #1 of Julie Quilt, September 29, 2004, para. 27 761 Transcript, December 1, 2004, Norman George Setah Direct-Exam, at 0001, 36 – 00002, 31; 00002, 32-36; Transcript, November 18, 2004, Norman George Setah Direct-Exam, at 00030, 8 – 00032, 28; Transcript December 1, 2004, Norman George Setah Direct-Exam, at 00009, 21-43; 00009, 44 - 00012, 17; Exhibit 0157, Affidavit #1 of Francis Sammy William, March 10, 2004, paras.56, 58; Transcript, May 25, 2004, Francis Sammy William Direct-Exam, 00011, 24-32; Transcript, June 2, 2005, Thomas Billyboy Direct-Exam, at 00012, 45 – 00013, 9; 00027, 33 – 00032, 12; Transcript, June 1, 2005, Thomas Billeyboy Direct-Exam, at 00028, 21-25; Transcript, April 5, 2005, Gilbert Solomon Direct-Exam, at 00038, 15 - 00039, 7; 00040, 20- 00041, 2; 00061, 31- 40. 762 Transcript, November 5, 2004, Julie Quilt Direct-Exam, at 00016, 34 – 00018, 17; Transcript, December 1, 2004, Norman George Setah Direct Exam, 00027, 41 – 00028, 40. 763 Transcript, November 5, 2004, Julie Quilt Direct-Exam, at 00016, 34 – 00018, 6; Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, paras. 45-46; Transcript, October 14, 2004, Harry Setah Direct-Exam, at 00054, 38 – 00056, 28
120 212. Tsilhqot’ins hunt the deer as they migrate down from Nabas (Anvil Mountain) in the northeast portion of the eastern trapline.764 Tsilhqot’ins also get groundhog around Nabas.765 Tsilhqot’ins have been hunting these animals here since the time of the ?esggidam.766 In recent times, Tsilhqot’ins also hunt moose in this area.767
213. Deer are hunted as they migrate down from the mountains and cross at Nadilin Yex at the north end of Dasiqox Biny (Taseko Lake).768 Tsilhqot’ins have hunted throughout the area, including the areas around Jididzay Biny (Onion Lake), Bisqox (Beece Creek), Chita Creek and Chita Meadow, since the time of the ?esggidams.769 Tsilhqot’ins also hunt for ducks and geese in the fall around Jididzay Biny (Onion Lake).770 The fall hunt also included squirrels, cougars, lynx and rabbits around Onion Flats in the fall.771 In the same vicinity, Tsilhqot’ins also hunt deer and more recently, moose, below Nabas772 where there is another underground house village site at Teztan Biny (Fish Lake)773.
764 Exhibit 0203, Affidavit #1 of Julie Quilt, September 29, 2004, para. 25; Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, paras. 45-46; Transcript, October 14, 2004, Harry Setah Direct-Exam, at 00054, 38 – 00055, 15; Transcript, September 25, 2003, Roger William Direct-Exam, at 00013, 32-41; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, paras. 86; Exhibit 0439, Affidavit #1 of Cecelia Quilt, May 6, 2005, paras. 27(h), 27(l), 27(m), 30, 31, 35, 42; Transcript, November 30, 2004, Norman George Setah Direct Exam, 00042, 39 – 00043, 5; Transcript, December 1, 2004, Norman George Setah Direct Exam, 00013, 36 – 00015, 41; Exhibit 0217DIG, Norman George Setah Digitized Map, at JX, JS; Exhibit 0217LEG, Norman George Setah Digitized Map, at JX, JS; Exhibit 0367, Affidavit #2 of Gilbert Solomon, at paras. 39, 43. 765 Exhibit 0203, Affidavit #1 of Julie Quilt, September 29, 2004, para. 25; Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, paras. 45-46; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 91 766 Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, para. 47;Transcript, December 1, 2004, Norman George Setah Direct Exam, 00025, 30 – 00026, 3; Exhibit 0439, Affidavit #1 of Cecelia Quilt, May 6, 2005, paras. 27(l), 30, 32, 35, 42. 767 Exhibit 0417, Affidavit #1 of Lloyd Myers, May 6, 2005, para. 45; Transcript, October 14, 2004, Harry Setah Direct-Exam, at 00054, 38 – 00055, 15 768 Exhibit 0158, Affidavit #2 of Francis William, April 30, 2004, para. 124; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, paras. 84-85; Transcript, January 18, 2005, David Setah Direct-Exam, at 00055, 42 – 00058, 27; Transcript, May 26, 2005, Francis William Cross-Exam, at 00039, 20-42 769 Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 92; Exhibit 0439, Affidavit #1 of Cecelia Quilt, May 6, 2005, paras. 38, 42; Transcript, November 29, 2004, Norman George Setah Direct Exam, 00015, 46, - 00016, 16; Exhibit 0158, Affidavit #2 of Francis William, April 30, 2004, paras. 120, 123; Transcript, May 26, 2004, Francis William Cross Exam, 00038, 31 – 00039, 2 770 Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 101. 771 Transcript, December 1, 2004, Norman George Setah Direct-Exam, at 00026, 4 – 00027, 16 772 Transcript, October 14, 2004, Harry Setah Direct-Exam, at 00056, 34 – 00057, 40; Exhibit 0355, Affidavit #1 of Joseph William, December 17, 2004, para. 92 773 Transcript, March 15, 2005, Gilbert Solomon Direct Exam, 00038, 2-22; 00042, 45 – 00043, 1; Transcript, March 17, 2005, 00016, 18 - 00021, 23; Exhibit 0371DIG, Gilbert Solomon Digitized Evidence Map, at AR, AS; Exhibit 0371LEG, Map Legend, at AR, AS; See also Appendix 2, at paras. 174-176.
121 214. In the fall Tsilhqot’ins camp in the area of Dediny Gunlin, which lies between Nabas (Anvil Mountain) and Gwetex Natel?as (Red Mountain), to hunt for deer and go into the mountains for marmots and mountain potatoes.774 Tsilhqot’ins also camp on the western shore of Dasiqox Biny and fish for steelhead and Dolly Varden at the narrows, called Nanats’eqish.775
215. While Tsilhqot’ins hunt in the fall other traditional practices are carried out. For example, kokanee fishing776 and berry harvesting777 take place in fall. Nuwish (soopalallie) grows all over.778 A variety of berries, including gooseberries, blueberries and strawberries were all gathered during the fall, some of which were dried and stored for use during the winter.779 Other plants harvested include Tsa Chen (Tiger Lily) and Chinsdad (silverweed), which are harvested in valleys and meadows during the fall.780
774 Transcript, December 8, 2004, Norman George Setah Cross-Exam, at 00026, 44 – 00028, 23; add Exhibit 0439, Affidavit of Cecilia Quilt, May 6, 2005, at para. 27(l); Exhibit 0416, Affidavit of Lloyd Myers, May 6, 2005, at paras. 45, 47; Transcript, May 30, 2005, Lloyd Myers, Direct-Exam, at 00010, 2 – 00012, 10; 00012, 20 – 00013, 45. 775 Exhibit 0158, Affidavit #2 of Francis William, April 30, 2004, para. 125 776 Transcript, November 1, 2004, Norman George Setah Direct-Exam, at 00021, 1 – 15. 777 Transcript, November 1, 2004, Norman George Setah Direct-Exam, at 00019, 27 - 00023, 19; See also Exhibit 210DIG, Norman George Setah Digitized Map, at DN, DO, and DP; See also Exhibit 211LEG, Norman George Setah Map Legend, at DN, DO, and DP. 778 Transcript, October 13, 2004, Harry Setah Direct-Exam, at 00018, 42 – 00019, 26 779 Transcript, October 13, 2004, Harry Setah Direct-Exam, at 00020, 28 - 00023, 35; Transcript, December 1, 2003, Francis Setah Direct-Exam, at 00014, 7-19; Transcript, December 8, 2004, Norman George Setah Direct- Exam, at 00026, 21 – 00028, 23; Transcript, March 4, 2004, Minnie Charleyboy Direct-Exam, at 00014,13 – 00015,35; Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 50. 780 Exhibit 0366, Affidavit #1 of Gilbert Solomon, January 19, 2005, para. 32(d)(e)
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