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 2: SELECT TSILHQOT'IN VILLAGES, DWELLINGS AND BURIAL GROUNDS IN THE CLAIM AREA

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 27 Appendix 2 - Select Tsilhqot'in Villages, Dwellings and Burial Grounds in the Claim Area

Table of Contents

The Purpose ofthis Appendix 3 The Big Picture 3 Starting with what the early explorers saw: 5 Chilko River 6 Gwetsilh 6 ?Elhixidlin 8 Tl'egwated 8 Bidwell Creek or "Tachi" 11 Tsilangh 11 Tsi Lhizbed 12 Nusay Bighilin 12 Tsi Tis Gunlin 14 Henry's Crossing 16 Gwedeld'en T'ay 18 Biny Gwechugh (or Canoe Crossing) 18 Sui Gunlin 19 Around Chilko Lake 20 Gwedats'ish, Chilko Lake Lodge and the D.F.O. site 20 Tsilhqox Biny (Chilko Lake) 21 Ch'a Biny 22 Xeni - the Nemiah Valley 22 Ses Ghen Tach'i 24 Lhiz Bay 26 Xexti 28 Tl'ebayi 30 Et'an ghintil (and around Konni Lake) 32 Naghtaneqed 32 Ts'il?os 34 Tachelach'ed (The Brittany Triangle) 35 Tachelached: A late Fall hunting camp is a home 36 Nu Natasa?ax or Mountain House 39 Natasawed Biny (Brittany Lake) 40 Captain George Town and vicinity 41 Tsuni?ad 44 ?Elhghatish 46 Tsanlgen Biny (Chaunigan Lake) 47 The Western Trapline (except the portion in the Brittany) 48 Little Eagle Lake 48 Gwedzin 48 Chezqud, ?Edibiny, Naghatalhchoz, Tsi Tis Gunlin and Tsi gheh ne?eten 50 Chezqud 51 ?Edibiny 51 Naghatalhchoz 52 Historical note: Canada's attempt to purchase portions of Naghatalhchoz and Tsi T'is Gunlin for the Nemiah Valley Indian Band in 1950 57 Talhiqox Biny (Tatlayoko Lake) 58 Potato Mountain or Tsimo1 Ch'ed 59 Yohetta Valley, Yuhitah Biny, to Fishem Lake 61 The Eastern Trapline 62 Teztan (Teztaun) Fish Lake 62 Nabas 63 Rock blinds at Gwetex Natel?as (Red Mountain) 65 A further observation about physical evidence of human occupation 65

2

Appendix 2 Select Tsilhqot'in Villages, Dwellings and Burial Grounds in the Claim Area

The Tsilhqot'in occupied the Claim Area through the establishment ofpermanent or semi­ permanent sites, including villages and other settlements, burial sites, camp sites, fishing weirs, etc., as demonstrated by the archaeological record, the historical record, and the oral history evidence.

I. The Tsilhqot'in resided in the Claim Area. It was their home. They had houses there, including houses in villages, isolated houses, and campsites. They built fishing weirs. Their ancestors are buried and cremated there, near the places where they lived.

THE PURPOSE OF THIS ApPENDIX

2. Looking down from an airplane at night, the pattern of lights show where people live, and whether densely or sparsely on the land, but the lights tell you nothing about what they are doing to make a living on the land. Similarly, the discussion that follows tells you where the Tsilhqot'in lived in the Claim Area at all the relevant times, but it is not intended to tell you what they were doing on the land. In other words, the survey that follows is not an economic analysis ofTsilhqot'in use ofthe land. It is, again, more like flying over Saskatchewan at night. The widely spaced homesteads belie the fact that Saskatchewan is one ofthe most intensely occupied places in Canada, where every square foot of land is dedicated to growing wheat. Similarly, the point ofthe discussion that follows is to establish, based on the record, that the whole ofthe Claim Area is a place where Tsilhqot'in built houses and buried or cremated their dead. What they did in their back yards (the seasonal, repetitive harvest ofthe fruits ofthe landscape) is the subject ofother parts ofthis argument. This appendix is like a view ofthe homestead lights from the air, not a walk through the wheatfields themselves.

THE BIG PICTURE

3. The big picture that emerges is this: Chilko River runs like a spine through the Claim

3 Area, with the remains ofthe ancient Tsilhqot'in pit house villages thick on either side. To the east, west and south ofthe Chilko are other Tsilhqot'in winter villages, invisible to the early explorers and largely unknown to Canada until the 20th century. These outlying ancient village centres include, among others, Naghatalhchoz, Tatlayoko Lake, Yohetta, Teztan (Fish Lake), Natasawed, Tsuniah,?Elhaghtish, Captain Georgetown, and ofcourse, Xeni itself. Following is a sketch illustrating the geography ofthe points just made. Shown is the outline ofthe combined Claim Area, and the locations of about 30 key sites within the Claim Areal where physical remains ofpre-sovereignty Tsilhqot'in winter housing can be found: 2

Gwetsilh. ?Elhixidlin TI'egwalede Litt~leEagle Lake Bidwell Creek. TSi,ang;e/ lsi Lhizbede Nusay BiQhilin.' Henry'S ',. . Gwedzin } Crossing__TSITIS Gunlin Nagh~lalhChOZ~""''-eounta,n House Chez~Ud~y .Natasawed iny I Gwechugfi wedeld'en ( Sui Gunline T'ay e:aftain Georgetown TaItuqox • Gwedats'istiJ. '1 Tsuni?ad (North) • ~Elhghatish Tsanlgen Biny { TSUni?ade. Naghteneqed (West) TI'abay.... -".~Et' Ch'a. LhizBaYa'f!"!" an Biny • 'W Xextl ghin!il Sf~c~7en \

Yohettae Lake

1 Surrounding the Claim Area are similar sites, and the population ofTsilhqot'in people living in those surrounding sites would have used the Claim Area. For example, the Dzelh Yi Gwet'ins lived in the West Branch watershed southwest ofTatla Lake ~ these people were involved in the Tsilhqot'in War. ChiefKeogh's people lived in underground houses near Tatla Lake, and were often found up near the head of Chilko Lake. Kanim's community (the father ofSil Canim) lived between the eastern trapline and the western trapline at Gunn Valley, in a major village site, perhaps only exceeded in size by Tl'egwet'ed and Biny Gwechugh, All ofthese Tsilhqot'in communities, though they had winter housing outside the formal, rather arbitrary, limits ofthe Claim Area, would have used resources in the Claim Area as part oftheir seasonal round. But it is beyond the scope ofthis survey to review sites outside the Claim Area in detail. 2 Xexti is included on the map, even though it is not a winter housing site, because it is a significant site of Tsilhqot'in burials.

4 Fig. I: Sketch showing Tsilhqot'in winter housing sites (plus Xexti - Tsilhqot'in burial site)

4. The underground houses (or lodges) found at these sites were large, each holding several families and dozens ofpeople, and each site would often have several occupied lodges in the winter] In addition, in all directions from each ofthese sites, one finds (or would expect to find)" the remains ofrepetitive, seasonal use ofthe land by Tsilhqot'in people discussed elsewhere in this argument. In the discussion that follows, some ofthe actual place names, campsites, house sites, gravesites and gathering places are mentioned and described. But this appendix is not, and does not purport to be, a complete listing ofall such places ofphysical occupation. The idea is to provide some reinforcement for the central idea ofthis argument, namely, a stable pattern ofrepetitive use and occupation ofthe whole Claim Area over generations, centred on the places where people lived.

STARTING WITH WHAT THE EARLY EXPLORERS SAW:

5. In January of 1822 McDougall reports "going to the Chilkotins". He travelled to Chilko Lake, going up the Chilko River from its confluence with the Chilcotin River, and concluded that there were 29 Lodges containing 131 families "along the River", and 6 "Large Ground Lodges, about the lake" containing 53 families 5 We see that the river, the lake and the people all share a name, just as one might travel up the Rhine to the Rhinelands to meet Rhenish people, or up the Congo to the Congo to meet the Congolese. The Chilko River (which was incorrectly labelled the Chilcotin River, as explained by Dewhirst - see next paragraph) is the backbone of Chilcotin country, just as so many other great rivers give identity to the lands and peoples on their banks. This river is not a boundary, but a centre - running roughly north/south - from

] Exhibit 0443, Expert Report ofJohn Dewhirst, August 8, 2005, especially Table 4 on page 30. On December 17, 1825 Connolly noted one village with 8 lodges with 50 men and a large number ofwomen and children. Dewhirst estimates that this would be a village ofabout 212 people. In 1845 Nobili noted a village with three lodges containing about 130 people (all summarized in Dewhirst, above). Thus, the roughly 30 winter village sites noted above would provide winter housing for a large number or people. 4 One would expect to find a great many physical artefacts demonstrating Tsilhqot'in occupation ofthe landscape, but the archaeology just hasn't been done. See the long discussion to this effect by Morley Eldridge: Transcript, May 12,2006, Morley Eldridge Cross-Exam, at 00030, 19 to 00032, 28, and 00034, IOta 34, and especially 00068, 2, to 00073, 11. , Exhibit 0156-1822/01/18.001, at 5-6

5 which the Tsilhqot'in would move in both directions seasonally to exploit the resources ofthe surrounding lands.

Chilko River

6. The following review ofthe evidence ofTsilhqot'in residences within the Claim Area begins with a journey up the Chilko River - the same journey ofMcDougall, Connolly and Father Nobili. Ken Brealey said this about the Chilko River:

"Because it was the main salmon-bearing stream in the territory, occupancy ofthe banks proper was higher in later summer and fall, but there seems to have been year-round habitation at several selected sites; and in 1872, Smith remarked that the plateaux on either side were important Tsilhqot'in hunting grounds. Indeed, archaeological work in the 1970s revealed some 105 previously occupied or used sites (including 40 pithouses) in the first 30 kilometres downstream from the outlet ofthe lake, but there were larger encampments at the Keekwillie Holes, Siwash Flats and Bridge, Taseko Mouth, Brittany Creek and Lava Canyon.";" "The important point is that this ... squares with the 'good number ofIndians' that clearly did winter at specified sites along the Chilko River, ...,,7

Gwetsilh

7. On such a journey upriver, the traveller first passes the confluence ofthe Chilko and Chilcotin rivers. John Dewhirst described this confluence, and took a photo", and expresses the view that the Chilko is the main branch ofthe river, and the Chilcotin is the tributary, contrary to the way the rivers have been named9 A few miles up the Chilko River one comes to Gwetsilh.

6 Exhibit 0240, Expert Report of Kenneth Brealey, September 22, 2004, n. 81 (p. 82) 7 Exhibit 0240, Expert Report of Kenneth Brealey, September 22, 2004, at 56, also n. 81. 8 Exhibit 0447, Dewhirst Photo Binder, photo 16. 9 Transcript, October 13, 2005, John Dewhirst Direct-Exam, at 00049,34 to 00050, 12, as follows: 34 Q Could you turn in your use and occupancy report to 35 paragraph 72, please. Now, in paragraph 72 you 36 talk about the difference between the Chilko River 37 and the Chilcotin River. Do you see that? 38 A Yes. 39 Q This is in your use and occupancy report, 40 Exhibit #443, paragraph 72. And you make this 41 comment in the -- starting in the end of the 42 second line. You say: 43 44 Names on modern maps suggest that the Chilko

6 8. Dr. Ken Brealey said that Gwetsilh is "an area inside the confluence ofthe Chilko and Chilcotin Rivers, and at the north end of Siwash Bridge, and which supported a mosaic of seasonal encampments, fishing stations and meadows....,,10 The early explorers would not have seen the rock blinds for ambushing deer built by Tsilhqot'in ancestors along the deer trail just south east ofthe river, or the underground houses nearby.11

9. Christine Cooper said that both her grandmother Emily Bobby and also Madi told her 12 about the pit houses at Gwetsilh (placename #59,92,136 and 274 ). Both Emily and Madi, in fact, lived in a pit house at Gwetsilh when they were younger. 13 These were both Tsilhqot'in people. Indeed, all ofthe evidence shows that the residents ofthe Chilko River were Tsilhqot'in. Ubill Lulua said that only Tsilhqot'in lived in the Lhiz Qwen Yex (underground houses) around here. He had never heard otherwise. 14 The great grandson of ChiefAnaham, Patrick Alphonse, born in 1920, stated that Tsilhqot'ins lived in pit houses at Gwetsilh (Siwash), fished and

45 River is a tributary of the Chilcotin, when, 46 in fact, the main river consists of the 47 Chilko River and the Chilcotin River below 00050 1 the Chilko. 2 3 Now, you express an opinion about that, and can 4 you tell us, have you been to the confluence of 5 the Chilko and the Chilcotin River? 6 A Yes. 7 Q And did you take a photograph? 8 A Yes. I was there on my recent trip in September 9 and I took a photograph and a GPS reading. 10 Q And can you look at photograph number 16, please. 11 And did you take that photograph? 12 A Yes. 10 Tsilhqot'in Geographic Features: re Siwash Flats (Gwetsilh): Exhibit 0240, Expert Report ofKenneth Brealey, September 22, 2004, at 71. II Place name #224, Transcript, Oct. 22, 2004, Norman George Setah Direct-Exam, at 00024, 16 to 00036, 18. 12 Exhibit 0487, Tsilhqot'in Place Name - Alphabetic List - Revised February 28, 2006. Throughout this Appendix place name numbers are be given, referring to the place names found in exhibits 0486 (Tsilhqot'in Place Name ­ Numeric List - Revised February 23, 2006), 0487 (Tsilhqot'in Place Name - Alphabetic List - Revised February 28, 2006), and on the place name map, exhibit 0485D!G. 13 Transcript, May 2, 2005, Christine Cooper Direct-Exam, at 00011, 6 to 40. 14 Exhibit 0013, Affidavit #1 ofTheophile Lulua, November 20,2002, at paras. 43-44. See also: Transcript, June 1, 2005, Thomas Billyboy Direct-Exam, at 00047, 22 to 44.

7 gathered at Gwetsilh, built and crossed an ancestral bridge at Gwetsilh and used an ancestral lookout point above Gwetsilh to watch for intruders. 15

10. Norman George Setah confirmed that Tsilhqot'ins lived in pit houses and used a lookout point at Gwetsilh. Mr. Setah also testified that Tsilhqot'in ancestral cache pits, hunting artefacts and deer hunting blinds existed in the Gwetsilh area.l''

?Elhixidlin

11. Further up the river is the confluence ofthe Chilko and the Taseko (also called the Whitewater). This confluence is ?Elhixidlin, place name #48. John Dewhirst took a photo of 17 this place, which is in evidence • This place is also called "Taseko Mouth". Ken Brealey said ofTaseko Mouth: ~" ... the earliest firm reference appears to be in 1864, when Cox dispatches McLean to what Brown later called a 'great rendevous' ofthe Tsilhqot'in, and which seems to have been the confluence ofthe Taseko and Chilko Rivers. Ifthis is correct, then the confluence might well also account for one or more ofthe '25 Lodges' McDougall said lined the river between Chilko Lake and its confluence with the Chilcotin River in 1822.,,18

TI'egwated

12. Continuing up the Chilko, once comes to Tl'egwated, place name #100. There are at least 15 pit houses at TI'egwated, on both sides ofthe river!", and they were lived in by Tsilhqot'ins.i" There was an ancestral Tsilhqot'in village at Tl'egweted and a bridge for access

15 Exhibit 0437, Affidavit # I ofPatrick Alphonse, April] 5,2005, at paras. 2, ]3(a), 18,20 and 23. 16 Transcript, October 22, 2004, Norman George Setah Direct-Exam, at 00026, 16 to 00036, 18 and 00030, 25 to 00036, ]8; Transcript, December], 2004, Norman George Setah Direct Exam, at 00032, 40 to 00033, 43; Transcript, December 6, 2004, Norman George Setah Direct Exam, at 00012, 26 to 000]3,14; Transcript, December 7,2004, Norman George Setah Cross Exam, at 00024, 6 to 00025, ]9. 17 Exhibit 0447, Dewhirst Photo Binder, photo 15. Transcript, October ]3,2005, John Dewhirst Direct-Exam, at 00052, 35 to 00053, 33. IS Tsilhqot'in Geographic Features: re Taseko Mouth: Exhibit 0240, Expert Report of Kenneth Brealey, September 22,2004, at 73. 19 Transcript, March] 5,2005, Gilbert Solomon Direct-Exam, at 00040, 42 to 44. 20 Transcript, September] 2,2003, Chief Roger William Direct Exam, at 00055, 19 to 24: 19 Q Chief Roger, how many pit homes are there in that 20 place that you've just marked as D? 21 A It's another fairly large area. I would say at 22 least 15, maybe more.

8 to Tachalach'ed (the Brittany Triangle)?l Chief Ervin Charleyboy said ofTl'egwated, "the Tsilhqot'in had a community there, a community, there's a whole bunch of kigli holes in there,,22 It was an important Tsilhqot'in gathering place."

13. Morley Eldridge confirms John Dewhirst's opinion that Tl'egwated is "Tlo quot tock", referred to in the Chilcotin Post Journal and the 1838 Census. This is the largest known housepit site on the Chilko/Chilcotin Rivers, both in terms ofthe overall number of features and the size ofthe largest houses. The site is also known as "Kiggli Holes", and has been recorded in the British Columbia provincial registry ofarchaeological sites under Borden number EIRw_4 2 4 Eldridge says that Father Nobili may have visited this site. John Dewhirst visited the site and took pictures ofthe pit houses and a picture ofthe cross recently erected on a site believed to be the location of one ofFather Nobili's three crosses (Exhibit 447, photos II, 12, and 13)25

23 Q And who lived in those pit homes? 24 A Tsilhqot'ins. Ubill Lulua - LQY located at TI'egwated on Tsilhqox: Exhibit 0013, Affidavit #1 ofTheophile Lulua, November 20, 2002, at para. 55, sched. 2(L); has seen LQY himself at TI'egwated: Transcript, April 14,2004, Theophile Ubill Lulua Cross-Exam, at 00052, 45 to 00053, 35; Ubill Lulua also said that Eagle Lake Henry said that they had been lived in by Tsilhqot'ins: Transcript, April 15,2004, Theophile Ubill Lulua Cross-Exam, at 00007, 43 to 00008, 42; Transcript, March 15,2005, Gilbert Solomon Direct-Exam, at 00040, 14 to 19; Transcript, March 16,2005, Gilbert Solomon Direct-Exam, at 00010,38 to 47. 21 Transcript, AprilS, 2005, Gilbert Solomon Direct Exam, at 00022 to 00023; Transcript, November 1,2004, Norman George Setah Direct Exam, at 00026, 44 to 00029, 34 and at 00030, 5 to 37 and at 00033, 40 to 47 and at 00035,17 to 43; Transcript, November 1,2004, Norman George Setah Direct Exam, at 00027, 2 to 00028, 30; and at 00030, 44 to 00031, 41 and at 00032,27 to 37; and at 00033,15 to 00036, 40. 22 Transcript, April 19, 2005, Ervin Charleyboy Direct-Exam, at 00018, 7 to 8. 2J Tsilhqot'in Geographic Features: re Keekwillie Holes (TI'egwated)- Some 169 pit features - two of which were mapped by Lane in 1953 -suggest this was an important Tsilhqot'in gathering place. Ifso, it likely comprised two or more of the '25 Lodges' that McDougall stated lined the Chilko River in 1822: Exhibit 0240, Expert Report of Kenneth Brealey, September 22,2004, at 63. 24 Exhibit 0538, Expert Report ofMorley Eldridge, at 13-14. 25 Transcript, October 13, 2005, John Dewhirst Direct-Exam at 00045 as follows: 3 Q And could you turn back to photograph number 11, 4 please. And did you take that photograph? 5 A Yes, I did. 6 Q And what is that in the centre of the photograph? 7 A In the centre of the photograph is a large wooden 8 cross that was erected I believe in the early 9 19908. There is a little plaque on the cross that 10 gives information. This cross was erected 11 according to that information, also according to 12 oral history, at a location where Father Nobili 13 had earlier erected a cross, and that would refer 14 to his trip in 1845. And this location would 15 represent most likely the second cross that he had

9 14. Mabel William's Grandmother Hanlhdzany's family lived in a Ihiz gwen yex (an underground pit house) at Tl'egwated during winter when it was really cold when she was growing Up?6 Mabel William said that her family would camp at Tlcgwatcd in the late summer when she was growing Up.27 Tsilhqot'in people would camp on both sides ofthe river, both in ancestral times'", and in the 20th century.i" Mabel William described a footbridge that accessed Tachalach'ed and that there were Tsilhqot'in pit houses in Tachalach'ed3 0

15. As a site ofancient, 19th century and zo" century Tsilhqot'in occupation, there are, of course, gravesites ofthe Tsilhqot'in deceased at 'I'l'egwated".

16 erected. 17 Q The second of how many? 18 A Of three. 19 Q Yes. Now, can you tell us how photograph 11 20 relates to photographs 12 and 13, where they1re 21 located. 22 A Okay. If you look on photograph 11, and you'll 23 see on the right-hand side there's kind of a 24 wooded area, and you'll see the cross is up on 25 kind of like a little bench or a little kind of 26 knoll. And as you walk along that bench 27 northward, that is, to the right of the cross, you 28 come to this wooded area. And in that wooded 29 area -- this is where I photographed the 30 depression in photograph number 12. And on the 31 other side of the cross, you'll see our SUV there 32 in the -- to -- on the far left-hand side of the 33 picture, and just up behind that there's a tree, 34 and then it's a little bit difficult to make out 35 in the picture, but there's a little ridge to the 36 right of that very green tree and there's kind of 37 like a little dip or gully behind that ridge, and 38 that's where the cultural depression in photograph 39 number 13 was as well as some additional cultural 40 depressions beside it or close to it. 26 Exhibit 0173, Affidavit #1 Mabel William. July 23, 2004 at paras 39-42. 27 Exhibit 0173, Affidavit #1 Mabel William, July 23, 2004 at paras 19,40. 28 Transcript, November 1,2004, Norman George Setah Direct-Exam at 00027, 27 to 28. 29 Transcript, November 1,2004, Norman George Setah Direct-Exam at 00031, 3 to 4; Transcript, November I, 2004, Norman George Setah Direct-Exam at 00033,15 to 00036, 40. 30 Exhibit 0173, Affidavit #1 Mabel William, July 23, 2004 at paras. 44 to 46. 31 Norman George Setah - Grave Sites, including Tony Myers' grandmother at Tl'egwet'ed, (Bidwell Creek), Transcript, November 1,2004, Norman George Setah Direct-Exam at 00031, 10 to 21; Transcript, November 1, 2004, Norman George Setah Direct-Exam at 00032, 27 to 00033, 39.

10 16. In an event that binds the past to the present, Tsilhqot'in people erected (or re-erected Nobili's) crosses at Tlegwated, (and at Biny Gwechugh) to protect the area and the people, and to commemorate their Tsilhqot'in ancestors, some of whom used to live in the lhiz qwen yex at those sites".

17. Proceeding upstream from Tlegwated, there are house sites on both sides ofthe river all the way to Chilko Lake". Tsilhqot'ins had Ihiz qwen yex along both sides ofthe Tsilhqox from Tl'egwated to Gwedatsish from the time ofthe pre-contact Tsilhqot'in ancestors (?esggidam) to a time just after British sovereignty."

Bidwell Creek or "Tachi"

18. There are lhiz qwen yex located at "Tachi", a Tsilhqot'in word meaning mouth of a river or creek. 3; In this case, it refers to the mouth ofBidwell Creek where it flows into the Chilko River. There is a Tsilhqot'in burial site there.l''

Tsilangh

19. Morley Eldridge accepts John Dewhirst's opinion that Tsilangh is the "Tsu Luh" ofthe 1938 Census, and the "Tsa-law Village" ofthe Chilcotin Post Journal." There is no official

J2 Transcript, September 12,2003, Chief Roger William Direct-Exam, at 00051, 14 to 37; and at 00056, 4 to 8; Transcript, April 14,2004, Theophile Ubill Lulua Cross Exam, at 00053, 30 to 35; Transcript, April 15,2004, Theophile Ubill Lulua Cross Exam, at 00022, 24 to 35. JJ Elizabeth Jeff said that the underground lodges are along the Chilko River as salmon fishing places, such as Tsilangh. Exhibit 0432, Affidavit #2, Elizabeth Jeff, November 13,2004 at paras. 7-10,46. 34 Mabel William said that these pit houses were occupied by the Tsilhqot'in ancestors right up to her grandmother Hanlhdzany's time. Mabel William was born in 1923, so it is assumed that her grandmother was born 40 to 60 years earlier, or around the mid to late 191h century. She said that families would have lhiz gwen yex on their own, though extended families would group together when the resources were sufficient, Exhibit 0173, Affidavit #1 Mabel William, July 23, 2004, at para 50, 41. 35 Theophile Ubill Lulua - LQY located at Tachi and TI'egwated on Tsilhqox, Exhibit 0013, Affidavit # I, Theophile Ubill Lulua, November 20, 2002, at para. 55, sched. 2(L); Theophile Ubill Lulua - Cross by Canada re Exhibit 0013, para. 55 (ie. Ibid): heard of more than one at Tachi; seen LQY himself at TI'egwated, Transcript, April 14,2004, Theophile UbiII Lulua Cross Exam, at 00052, 45 to 00053, 35. Theophile Ubill Lulua - Cross by Canada re Exhibit 0013, para. 55 (ie. Ibid): LQY at Tachi is actually not right at Tachi but at where Bidwell Creek flows into the Tsilhqox, three are reportedly there, marked as U-I on Ex. I44DIG, Transcript, April 15,2004, Theophile Ubill Lulua at 00006, 34 to 00007, 42. 36 Exhibit 0416, Affidavit #I of Lloyd Myers, May 6, 2005, at para 21. Minnie Hink (nee Minnie Jack), the grandmother of Lloyd Myers is buried there. 37 Exhibit 0538, Expert Report of Morley Eldridge, at paras 43-44.

11 Borden number, because the site is not recorded in the provincial archaeological sites registry. John Dewhirst visited the site in 2005 and took photographs ofthe pit houses, which are in evidence as photos 9 and 10 ofExhibit 447 3 8 Ken Brealey was ofthe view that this is the Tse­ Lah ofMcBean: "arrive[ing] this day [back to the fort] having been 5 days absent, viz., first day reached Tse-lah about sundown. 2nd day, Long Lake rather later. At both these villages, there is a good number ofIndians.,,39

20. Many Tsilhqot'in people testified as to having seen underground lodges (lhiz qwen yex) at Tsilangh." Minnie Charleyboy testified that Tsilangh is a Tsilhqot'in Salmon fishing place."

Tsi Lhizbed

21. The next site up-river is Tsi Lhizbed, where there are lhiz qwen yex."

Nusay Bighilin

22. Next upstream is Nusay Bighilin, place names #52 and 137. This is a SOO-year-old site of Tsilhqot'in occupation, where an interesting archaeological find demonstrates the connection of the Tsilhqot'in people to a vocation of fishing.

"Two grooved stones which appear to be net sinkers were excavated from a partially eroded (Athapaskan) pit house site near Brittany Creek on thc Chilko River by the Eagle Lake Archaeological Project in August 1979. The site has subsequently been dated to 500 years B.P. (M. Magne personal communicationj.t'Y

23. The reference to Athapaskan means that these were Tsilhqot'in people. The reference to the pit house site near Brittany Creek on the Chilko River is a reference to Nusay Bighilin.

38 Transcript, October 13, 2005, John Dewhirst Direct-Exam, at 00063, to 00064, 15. 39 Exhibit 0240, Expert Report ofKenneth Brealey, September 22, 2004, at 63; Exhibit 0240, Expert Report of Kenneth Brealey, September 22, 2004, at 81-82 re n. 81. 40 Mabel William: Exhibit 0173, Affidavit # I, July 23, 2004, at para 500); Elizabeth Jeff: Exhibit 0432, Affidavit #2, November 13,2004, at paras. 7-10,46. 41 Transcript, March 25, 2004, Minnie Charleyboy Direct Exam, at 00032, 42 to 00035, 28. 42 Mabel William: Exhibit 0173, Affidavit # I, July 23, 2004, at para 500i). 43 Exhibit 0177, Draft Ph.D. Dissertation, Robert Tyhurst, July 1984, at 57-58.

12 Tsilhqot'in testimony and other expert testimony confirm the pit house at Nusay Bighilin4 4 Tsilhqot'in ancestors lived in that area." Use ofthe site by Tsilhqot'in people continues into the zo" century, within the Claim Area (on the Eastern side ofthe riverj" There is a cabin, and it is a place used for fishing when the salmon come up the river." Nusay Bighilin is an ancestral salmon fishing camp."

24. Norman George Setah testified that there is an ancestral crossing at Nusay Bighilin that was part ofthe ancestral trail network that connected Tatla Lake to Niba ?Elhenenalqelh

(Captain Georgetown). 49 Mr. Setah and his family also used this crossing to get from Tsi Tis Gunlin to Nusay Bighilin.l"

25. Just a few miles up-river from Nusay Bighilin is Ts'eman Tsezchi, or Ts'ernan Ts'ez Chid, place name #184. We know that Tsilhqot'ins were fishing at this place in the 19th century." In the zo" century and up to the present Tsilhqot'in people live in cabins at this place 5 2 Minnie Charleyboy was born at Tseman Ts'ezchi 5 3 Mrs. Charleyboy stated that

44 Mabel William: Exhibit 0173, Affidavit # I, July 23, 2004, at para 50(iii). Ken Brealey said that the location where Brittany Creek flows into the Chilko River has been the subject ofarchaeological study, and that there at lease three distinct camping or fishing sites, and at least one included an underground house. Exhibit 0240, Expert Report ofKenneth Brealey, September 22.2004, at 53. 45 Transcript, March 8, 2004, Minnie Charleyboy Direct-Exam. at 00026, 31 to 34. 46 Transcript, March 8, 2004, Minnie Charleyboy Direct-Exam, at 00024, 40 "on the Nemiah side", and generally about Nusay Bighilin, Transcript, March 8, 2004, Minnie Charleyboy Direct-Exam, at 00024, 39 to 00026, 37. 47 Mabel William and Eugene William had a house there and were living there at the time that they heard that Mabel William's grandmother Hanlhdzany died. Exhibit 0173, Affidavit #1 Mabel William, July 23, 2004 at paras II, 50(iii); Exhibit 0174, Affidavit #2 Mabel William, September 3, 2004 at para 6. Ubill Lulua stayed at a cabin there when the salmon came upthe river: Transcript, April 2, 2004, Theophile Ubill Lulua Direct-Exam, at 00031, I to 15. 48 Transcript. March 25, 2004, Minnie Charleyboy Direct Exam, at 00019,33 to 00025, 2 and 00026, 25 to 00032, 41. 49 Transcript, October 22, 2004, Norman George Setah Direct Exam, at 00039, 41 to 00041, 19. 50 Transcript, October 22, 2004, Norman George Setah Direct Exam, at 00039, 41 to 00041, 19. 51 Exhibit 0162, Affidavit #3 ofDoris Lulua, July 23, 2004, at para. 58. Her great-grandmother Annie camped at Ts'eman Ts'ezchi at salmon time. This would be in the 191h century. " Ubill Lulua said that Oggie and Elmer Lulua built a cabin at Ts'eman Ts'ez Chid, and that is where Casimir and Madeline Lulua live now, Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20, 2002, at para. 68. Ubill Lulua said that his family had cabin, along with his uncle Felix's cabin, at Ts'eman Ts'ez Ch'ed while being raised, Exhibit 0013, Affidavit #1 ofTheophile Ubi II Lulua, November 20,2002, at paras. 62, 66 - 67, 58 - 59. David Lulua lived in a cabin at Ts'ernan Ts'ezchi from when he was about 5 years old until he was 19. Transcript, September 7, 2004, David Lulua Direct-Exam, at 00033,5 to 29. Minnie Charleyboy testified that the ancestors lived andcamped at Ts'eman Ts'ezchi, that her grandfather Jack Lulua had a cabin there, Doris Lulua hada cabin there that was burned down, Emily Lulua had a cabin there that was burned down and Lily Lulua had a cabin there that Casimir and Madeline Lulua still use. Transcript, March 8, 2004, Minnie Charleyboy Direct Exam, at 00028, 9 to 00030, 19.

13 Ts'eman Ts'ezchi is a Tsilhgot'in ancestral placename", that Tsilhgot'in ancestors lived there in pit houses and that Nimayaz's (Nemiah's) daughter Julianna, is buried there 5 5

Tsi T'is Gunlin

26. Next upstream is Tsi T'is Gunlin, place names #67 and 171. (Chezgud, ?Edibiny, Naghatalhchoz, Tsi gheh ne?eten and Tsi T'is Gunlin are discussed together below, as they all form part ofthe large site of Tsilhgot'in occupation around Eagle Lake or Naghatalhchoz.)

27. There are lhiz gwen yex at Tsi T'is Gulin 56 Tsilhgot'in people continued to build houses 57, and live here well into the zo" century, including Jack Lulua, born 1870 and some houses remain standing. 58 In 1964 the provincial Lands Branch noted that Jack Lulua's son Tommy Lulua (1901 - 1978) was "still residing" on the north eastern portion ofDistrict Lot 350, Coast District, "and has possibly built a log fence around the bottom land which extends onto the SW corner of Lot 353.,,59 Two ofJohn Dewhirst's photos (Exhibit 447 - photos 7 and 8) show Tommy Lulua's old cabin and his son, Henry Lulua's cabin near Henry's crossing. The interesting thing about photo #8 is that it shows the pit house depression right next to Tommy Lulua's old cabin. As John Dewhirst described in evidence, the site shows physical remains of Tsilhgot'in use over several generations, at least back to Nunsulian, who was born before 1850, and was the father ofJack Lulua and ancestor ofmany present members ofthe Xeni Gwet'in6 0

53 Transcript, March 1,2004, Minnie Charleyboy Direct Exam, 00012, 23 to 35;. 54 Transcript, March 1,2004, Minnie Charleyboy Direct Exam, 00045, 42 to 00046, 5. 55 Transcript, March 8, 2004, Minnie Charleyboy Direct Exam, 00028, 9 to 00030, 19. 56 Exhibit 0173, Affidavit #1 ofMabel William, July 23, 2004 at para 50(iv). 57 Exhibit 0441, Expert Report ofJohn Dewhirst, September 2004 at 19, para. 3.3 and at 17, Chart I. 58 Francis William said that he used to visit Tommy Lulua and his wife Inez and their family, including Henry, Edmund, Jeanie, Lizzie, as well as Minnie Charleyboy, at their house in Tsi T'is Gunlin. Transcript, May 25, 2004, Francis William Direct-Exam, at 00025, I to 3; Transcript, May 26,2004, Francis William CrossExam, at 00026, 29 to 37. Jack Lulua's place is at Tsi T'is Gunlin. See also: Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004 at para 58, 59; Exhibit 0160, Affidavit #lofDoris Lulua, March 25, 2004 at para 25; Ubi II Lulua - Tommy Lulua (uncle) had own cabin (w four houses) at Tsitis Gulin, Exhibit 0013, Affidavit ofTheophile Ubill Lulua, November 20,2002 at para. 126, sched. I re Tsit'is Gulin. 59 Lands Branch memorandum ofApril 22, 1964, Ex. 594-C0346A-1964/04/22.00 1. Tommy Lulua's dates - see Exhibit 0441, Expert Report ofJohn Dewhirst, September 2004 at Vol 1, page 17 (chart 1). A good map showing the relationship between the Lots mentioned is at Ex. 594-C0346A-1950/08/09.00 1. Exhibit 0441, Expert Report of John Dewhirst, September 2004, at 19, para. 3.3 and at 17, Chart I. Tommy Lulua is the son ofJack Lulua 60 Transcript, October 13, 2005, John Dewhirst Direct-Exam, at 00062 and 00063 as follows: 9 Q Let me just orient you here. You wrote in your 10 use and occupancy report some words about the 11 Lulua family. Starting at page 70. This is in

14 12 Exhibit #443. You talked about the Lulua family 13 and their use and occupancy of the claim area for 14 several pages, from page 70 through page -- half 15 of page 75. Do you see that? 16 THE COURT: Paragraph numbers? 17 MR. WOODWARD: This would be paragraphs 284 -­ 18 THE COURT, Thank you. 19 MR. WOODWARD, -- through 303. 20 THE WITNESS, 303. 21 THE COURT, Thank you. 22 MR. WOODWARD, 23 Q Now -- and you wrote that before you went to the 24. sites that we've just discussed? 25 A Yes, that's correct. 26 Q Okay. To what extent were the words that you had 27 written about the Lulua family's use and occupancy 28 of the claim area either refuted or confirmed by 29 your visit to the sites? 30 A Well, visiting this site fully confirmed 31 information about their use of Henry'S Crossing 32 and especially their -- over many generations, and 33 itls especially evident when you're at the site 34 when you're at those sites that were visited, 35 sites 4 to 7. I was quite impressed. For 36 example, when I arrived there, I saw Henry's 37 cabin, the one that's still standing, and it's 38 still functioning. Nobody was living in it at the 39 time when I visited. And then it was pointed out 40 to me the other cabin, the decrepit cabin, that 41 was built before the present cabin and perhaps at 42 least 60 years ago. And then when I walked over 43 to the decrepit cabin, which was Henry Luluals old 44 cabin before he built the standing one, I saw the 45 pit house, you know, next to the decrepit cabin. 46 And so we have this use that's -- like, this sort 47 of physical ~- these physical remains of use, and 00063 1 then I looked down from the decrepit cabin -­ 2 because it's kind of on the edge of that bench. I 3 looked down -- or on the edge of the bank, and 4 looked down, and there on the bench below is this 5 burnt cabin that was built and used before the 6 decrepit cabin. And then I was shown that the 7 junction of the road -- it was explained to me 8 that just a short distance east of the junction is 9 where Nunsulian is buried. 10 So when you look at this, you have Nunsulian. 11 You have people who lived in the underground home 12 sometime possibly in the 19th century, old use 13 there. Then you have Tommy Lulua's cabin that 14 burnt down that was there. And then you have the 15 old decrepit cabin that's been abandoned. And

15 28. Minnie Charleyboy, Eliza William and Doris Lulua testified that their great grandfather Nentsul ?Eyen (Nunsulian) is buried at Tsi Tis Gulin. 6 1 In 1910 Mr. Taylor, the BvC. government's surveyor, sketched and attested to the location of"Indian Graves" on Lot 363 near the mouth ofLingfield Creek, just south ofTsi Tis Gunlin 6 2

29. Tsi Tis Gunlin is an ancestral salmon fishing camp.?'

Henry's Crossing

30. Henry's Crossing, place name #77, is a site where one can observe continuous physical evidence ofTsilhqot'in residence within the Claim Area from a time before 1846 to the present

16 then you have the new cabin that's been built, 17 that was built many years ago and is still 18 standing and is still used. So it's kind of like 19 seeing, you know -- like all the generations are 20 sort of there present, or at least there's 21 physical manifestations of them. I did not see 22 Nunsulian's grave, but after seeing the cabins I 23 see no reason why, you know, the cabins were 24 pointed out to me, that his grave would also not 25 be nearby. 26 So it's just kind of like a physical 27 confirmation of the genealogical chart in a sense. 28 It follows the genealogy with all of these 29 individuals and their cabins. 61 Transcript. March 2, 2004, Minnie Charleyboy Direct Exam. at 00023, 19 to 41 and 00025. 22 to 00026, 5; Exhibit 0105, Affidavit #1 of Eliza William, at para. 9; and Transcript. September 8, 2004, Doris Lulua Direct Exam, 0003 I: 11 Q When you say "Jack's father was living around 12 here," where are you referring to? 13 A Past Henry's house. I know he's buried at Chilko 14 [sic] Lake. His grandfather and his dad are 15 buried there. On the road beside -- between 16 Chilko [sic] River and Chilko [sic] Lake at a 17 place called Tsi T'is Gunlin. That's where 18 they're -- that's where he's buried. 19 Grandfather1s dad. 20 Q Ms. Lulua, who taught you about that? 21 A My grandmother Annie. 22 Q Thank you. 23 A She taught all her grandchildren. 62 Ex. 594-C0357-1910/07/00.001. The sworn declaration is at page 2113648. the affidavit is at page 2113682, and the map showing Indian Graves at the mouth of Lingfield Creek is at page 2113676. 63 Transcript, March 25. 2004, Minnie Charleyboy Direct Exam. at 00019, 33 to 00025, 2 and 00026, 25 to 00032, 41.

16 date." This is a place where the Tsilhqot'in ancestors stayed and fished6 5 Tsilhqot'in people came from many communities to camp and fish on both sides ofthe river; there were trails on both sides ofthe river."

31. Use of Henry's Crossing by Tsilhqot'in people continues to the present day." It is used for summer time salmon fishing." There are hunting campsites nearby.f" It is the venue for the annual "Brittany Gathering"."

32. Adjacent to Henry's Crossing is T'su Nintil, place name #183. It has been used as an ancestral salmon fishing camp7l and an early zo" century fishing camp" where many Tsilhqot'in people would gather. 73

33. Biny Gwetsel is another ancestral Tsilhqot'in camping site and fishing location, which continued and continues to be used." According to Minnie Charleyboy, Biny Gwetsel is a pre­ contact Tsilhqot'in cremation site and Tsilhqot'in grave site."

64 Morley Eldridge confirms the existence ofa number ofhouse pits at Henry's Crossing, Exhibit 538, para 33. Chief Roger William was told that there are pit houses there Transcript, September 15, 2003, at 00004, 18 to 00005, 18. Ken Brealey - Tsilhqot'in Geographic Features: re Henry's Crossing- May have comprised one or more of the '25 Lodges' that McDougall stated lined the Chilko River in 1822, Exhibit 0240, Expert Report of Kenneth Brealey, September 22,2004, at 62. 65 Exhibit 0367, Affidavit #2 of Gilbert Solomon, January 19,2005, at para. 57; and Transcript, March 25, 2004, Minnie Charleyboy Direct Exam, 00019,33 to 000025, 2 and 00026,25 to 00032, 41. 66 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 56. 67 Exhibit 0162, Affidavit #3 of Doris Lulua. July 23, 2004, at para. 69. es Ubill Lulua said that for his whole life there have been summertime salmon camps at Henry's Crossing, bothsides ofthe Tsilhqox, starting in the first week ofAugust. Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20,2002 at paras. 174, 177, 182, sched. I re Henry's Crossing; Transcript, April 2, 2004, Theophile Ubill Lulua Direct-Exam, at 00028, 37 to 00029, 23. David Setah and Harry Setah both said that there are campsites at Henry's crossing. Transcript, January 17,2005, David Setah Direct Exam at 00063, 12 to 30; Transcript, October 12,2004. Harry Setah Direct Exam, at 00049,5 to 00050,3. 69 Chief Roger William said thatthere are huntingcampsites along the road to Henry's Crossing from Nemiah Transcript, September 15, 2003 at 00041 to 00042. 70 Chief Roger William - Brittany Gathering location, Transcript, September 15,2003 at 00007 to 00008, Transcript, November 4, 2003 at 00002, 5 to 28. David Setah - Brittany Gathering site, Transcript, January 18, 2005 at 00003, 33 to 43. 71 Transcript, March 25, 2004, Minnie Charleyboy Direct Exam, at 00019, 33 to 00025, 2 and 00026, 25 to 00032, 41. 72 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, salmon camps at para 58, 62. Eagle Lake Henry lived from around 1886 to 1968 (Exhibit 0441, Expert Report ofJohn Dewhirst September 2004, Vol3, Tab G, Tab I.); and Transcript, March 8, 2004, Minnie Charleyboy Direct Exam, at 00039, 4 to 26. 73 Late Summer Gathering at Ts'u Nintil (Salmon Fishing): Transcript, November 4, 2004, Norman George Setah Direct Exam, at 00051, 39 to 00053, 4. 74 Transcript, March 8, 2004, Minnie Charleyboy Direct Exam, at 00039, 27 to 00042, 6.

17 Gwedeld'en T'ay

34. Next closest to Chilko Lake is Gwedeld'en T'ay. It is an ancient site where Tsilhqot'in people lived in underground houses." Tsilhqot'in people are buried there, and when Tsilhqot'in people go there, they can hear their ancestors drumming."

Biny Gwechugh (or Canoe Crossing)

35. Close to Chilko Lake is "Canoe Crossing" or Biny Gwechugh, place name #146, on both sides ofthe river. It is a site ofancient78 and continuing" Tsilhqot'in occupation. This was probably the large Tsilhqot'in village close to Chilko Lake seen by McDougall80, Connolly", and Nobili82 Morley Eldridge agrees with John Dewhirst that, next to the village site at Tatlayoko

75 Transcript. March 8. 2004. Minnie Charleyboy Direct Exam, at 00040. 37 to 00041. 34. 76 Ubill Lulua reports that Tsilhqot'ins lived in underground houses at Gwedelden T'ay. Indeed, he says that the Tsilhqot'in lived in underground houses from Biny Gwechugh down the Tsilhqox past Gwedelden T'ay, some places 2 or 3 Ihiz qwen yex together, Exhibit 0013. Affidavit #1 ofTheophile Ubill Lulua, November 20, 2002 at para. 33, sched. I 77 Ubi II Lulua - Exhibit 0013, Affidavit #1 of Theophile Ubi II Lulua, November 20,2002 at par. 33. Minnie Charleyboy said that ancestral drumming and singing competitions took place at Gwedeld'en T'ay -- Transcript, March 8, 2004, Minnie Charleyboy Direct Exam, at 00039, 27 to 45 and 00042, 7 to 00043, 16. 78 There are Ihiz qwen yex at Biny Gwechugh: Doris Lulua, Exhibit 0162, at para 88,89. Mabel William - Exhibit 0173, at para 50(v). Ubi II Lulua - there were Tsilhqot'ins living in about 40 underground houses at Biny Gwechugh (marked as W-l on Ex. 144DlG). Tsilhqot'in people were born there and lived there all their lives, and would have been around 100 years old when they died, which means that they were there since the early 19th century. Exhibit 0013, at paras. 31, 32, 35. Transcript, April 1,2004, Theophile Ubill Lulua Direct-Exam at 00048, 47 to 00049, 33. Transcript, April 13, 2004, Theophile Ubill Lulua Cross Exam, at 00039, 21 to 00040, 18. Transcript, April 15, 2004, Theophile Ubill Lulua Redirect-Exam, at 00046, 25 to 34. Also: Gilberl Solomon, Transcript. March 15, 2005 at 00038,37 to 45; Transcript, March 16,2005 at 00009, 38 to 46 and at 00010, 18 to 33. 79 Ubill Lulua - Springtime fish camp in a cabin and in tents at Biny Gwechugh, Exhibit 0013, at paras. 124 - 125, 131, sched. I re Biny Gwechugh. Chief Roger William - Xeni Gwet'ins go there to fish and camp, Transcript, October 23, 2003 at 00065, 33 to 34. Chief Roger William - Tsilhqot'in people continue to perform ceremonies at the graveyard at canoe crossing, Transcript, September 12,2003, at 00053,32 to 37. eo Eldridge, Exhibit 538, para 20. Also: Ken Brealey - Tsilhqot'in Geographic Features: re Canoe Crossing­ Housepits and fishing apparatus excavated here in 1979; this suggests the site is one ore more of McDougall's '25 Lodges' on the Chilko River or "6 Large Ground Lodges" on Chilko Lake in 1822; it is apparently where Nobili visited the 'great round lodge" in 1845, Exhibit 0240, Expert Report of Kenneth Brealey, September 22,2004, at 54, also n. 81. 81 Eldridge, Exhibit 538, para 22, 34 82 Exhibit 0443, Expert Report ofJohn Dewhirst, August 8. 2005 at para 81 to 83. Eldridge, Exhibit 538, para 24­ 27. Ken Brealey - it is apparently where Nobili visited the 'great round lodge" in 1845, Exhibit 0240, Expert Report of Kenneth Brealey, September 22, 2004, at 54, also n. 81. This is certainly one ofthe places where Father Nobili placed a cross in 1845. The replacement cross put up about five years ago is where "the priest did go there" "before Madiyan's time" (Minnie Charleboy). Since Madiyan was born around or just before the Chilcotin War, the fact that Biny Gwechugh is one ofthe places where Father Nobili placed a cross is independently verified by the oral history. See Minnie Charleyboy, Transcript, March 3, 2004, at 00002,27 to 46. For Madiyan's birthdate see

18 Lake, this location has the best correlation between historical records ofvillage sites and the archaeological records. The site is registered in Victoria under Borden numbers EjSa-5 and EjSa_1483 Based on the historical records, John Dewhirst places the "Taze Lay Indians" either here or at nearby Gwedats'ish (see below)84 Eldridge reports that there are other large villages a short distance downstream (perhaps referring to Gwedeld'en T'ay or others just mentioned above).

36. Qaqez (or Kahkul), the great-great grandfather of ChiefRoger William (and brother of Klatassin or Lha Ts'as'?in) was raised in an underground house at Biny Gwechugh." The father ofQaqez (or Kahkul) (the great great great grandfather of Chief Roger William), born c.a, 180686 is buried at Biny Gwechugh." Qaqez's father and grandfather used an ancestral fishing 88 89 trap at Biny Gwechugh, long before Nezulhtsin was born (c.a. 1834 ).

37. Minnie Charleyboy named other Tsilhqot'ins that lived in the Tsilhqot'in pit house village at Biny Gwechugh. For example, Nezulhtsin's parents and Nisewichish's parents all lived in the pit houses at Biny Gwechugh."

Sui Gunlin

38. A site ofancient'" and continuing'" Tsilhqot'in occupation is Sui Gunlin, very near the outlet of Chilko Lake. Nearby is Naghelilhchiny, the location ofMinnie Charleyboy's colourful

Transcript, March 3, 2004, at 00019,20 to 26; Transcript, March 1,2004, at 00027, 6 to 9, and Exhibit 0441, Expert Report ofJohn Dewhirst, September 2004, at 33, para. 7.2. 83 Eldridge, Exhibit 538, para 10. 84 Exhibit 0443, Expert Report ofJohn Dewhirst, August 8, 2005 at para 83. 85 Minnie Charleyboy, Transcript, March 2, 2004, at 00053, 17 to 00054, 45. For genealogy see Exhibit 0441, Expert Report ofJohn Dewhirst, September 2004, at Vo13, Tab G, Tab I. 86 Exhibit 0443, Expert Report ofJohn Dewhirst, August 8, 2005 at 78, paras 318-319 87 87 Minnie Charleyboy, Transcript, March 2, 2004, at 00054, 35 to 38. 88 Transcript, March 8, 2004, Minnie Charleyboy Direct Exam, at 00044, 17 to 00045, 26; and Transcript, March 9, 2004, Minnie Charleyboy Direct Exam, at 00004, 20 to 30. 89 Exhibit 0443, Expert Report ofJohn Dewhirst, August 8, 2005 at 71-71, paras 288-289. 90 Transcript, March 9, 2004, Minnie Charleyboy Direct Exam, at 00011, 21 to 00012, 35. 91 Doris Lulua was taught by her great grandmother Annie that there were Ihiz gwen yex in the entire area near Sui Gunlin that were occupied by the Tsilhqot'in ancestors: Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004 at paras 88 - 96. Ubill Lulua - there are a series of Ihis qwen yex located at Sui Gunlin, marked as N-I on Exhibit 0144DlG; Transcript, April 14,2004, at 00043, 33 to 43.

19 story about Johnny Setah (?Eweniwen) (1871-1955) ripping the hide door from a niyah qungh and it ending up in the fire causing everyone to cough."

Around Chilko Lake

39. In 1822 McDougall, "By dint ofenquiry & with the help of small sticks" concluded that there were "6 Large Ground Lodges, about the Lake, containing 53 Families". Eldridge concludes that this number excludes the lodges on the River, which were counted separately." 95 There has been no archaeological study ofChilko Lake , so we are reliant on lay evidence to show the pattern ofTsilhqot'in settlement around the lake. Eldridge is of the view that ifa survey was done, the six large ground lodges could be found'". A few such sites are on the following pages. Many additional sites at or near the shore ofthe lake are discussed in the 97 longer sections that follow concerning Xeni , the Brittany, and the Western Trapline.

Gwedats'ish, Chilko Lake Lodge and the D.F.O. site

40. At the outlet of Chilko Lake is Gwedats'ish, place name #154, a site ofancient human occupation." Also at the outlet ofthe lake, two lodges and a DFO site currently cover an ancient lhiz qwen yex village that was inhabited by Tsilhqot'ins9 9 The pit houses at this strategic and beautiful site, right where Chilko Lake begins to flow into Chilko River, may have comprised some ofthe 25 Lodges that McDougall said lined the Chilko River, or they may have been included in the "6 Large Ground Lodges" about the lake in 1822100 Wilson Duffs map has a

92 Doris Lulua recalls Tsilhqot'in people campingat Sui Gunlin in the fall time, hunting for deer and fishing for humpback salmon. Exhibit 0162. para. 87. Ubi II Lulua - ?Elegasi (Eagle Lake Henry) had a cabin at Sui Gunlin south ofBiny Gwechugh, Exhibit 0013, para. 124 - 125. 93 Minnie Charleyboy, March 4,2004, page 7, line 46 to page 8, line 13. Johnny Setah's dates are from Dewhirst, Exhibit 0441, Vol 2, Tab E, Tab 1. 94 Eldridge, Exhibit 538, para 21. 95 Eldridge, Exhibit 538, para 35. 96 Eldridge, Exhibit 538, para 35 (top ofpage 13). 97 There are Lhiz qwen yes at the "Movie Site" at Xeni: Ken Brealey - Tsilhqot'in Geographic Features: re Movie Site (Chilko Lake) - May have constituted one or more ofthe '6 Large Ground Lodges" McDougall said ringed the lake in 1822." [NB: in Xeni], Exhibit 0240, Expert Report of Kenneth Brealey, September 22, 2004, at 65 98 Mabel William has seen Ihiz qwen yex on the island below the entrance to Tsilhqox Biny at the narrows of Gwedats'ish, Exhibit 0173, Affidavit # I ofMabel William, July 23, 2004, at para 50(vi). 99 ChiefRoger William, Sept 12/03 p 48, lines 12-14, marked as "A" on Exhibit 15 DIG. Ubill Lulua, Exhibit 0013, para. 49. Gilbert Solomon, March 15, 2005, at page 38, lines 21-26 and page 51, lines 7 - 16. 100 Tsilhqot'in Geographic Features: Exhibit 0240, Expert Report of Kenneth Brealey, September 22, 2004, at 64, "Marsh Lake". In addition, Brealey is ofthe view that the annotation "Chin Coten L.: 40 families" on Arrowsmith's

20 "dot" at the north end of Chilko Lake, indicating 100 persons as of 1835. The legend reads: "Indians ofBritish Columbia, Population Distribution, 1835. One dot represents 100 persons."!"

41. This is also an ancient Tsilhqot'in cremation site. I02

Tsilhqox Biny (Chilko Lake)

42. There are Ihiz qwen yex, the remains ofancient Tsilhqot'in village sites, on both sides of Tsilhqox. 103 There are camping places and house sites all around the lake demonstrating that this th has been a Tsilhqot'in place through the 19 century I04 and the zo" century. lOS Tsilhqot'in occupation is from one end to the other: At the very south end ofthe lake is Tsilhqox Tu Tl'az, place name #3, where there is a trapping campsite. 106

1824 map is also a reference to Chilko Lake, Ex. 0265-1824/00/00.001; January 4, 2005, p. 67, line 46 to p. 68, line 10. 101 Ex. 0265-1965/00/00.00 I (Untitled map ofAboriginal population distribution, 1965, Wilson Duff, An Indian History of British Columbia, Map 3.) 102 Doris Lulua - Cremation site at current location ofChilko River lodge airstrip and buildings, where her great grandmother taught her never to walk on it, but to always walk all the way around. Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004 at para 94. 10) Exhibit 0013, Affidavit #1 ofTheophile Ubi II Lulua, November 20, 2002, at para. 50. 104 Captain George and his grandfather used a pine windbreaker house, (known as a ts'e?etsedilhyah) when hunting along the southeast shore ofChilko Lake. Per: Ubill Hunlin, March 14,2005, page 5 line 46 to page 6, line 42. 105 Francis William and his brother Eugene camped in the woods along the' shore of Franklyn Arm when they went trapping there. Exhibit 0158, Affidavit #2 of Francis William, April 30, 2004, at para 77. Joseph William, his parents, brothers and sisters, and Danny William, also camped along the shore ofChilko Lake near Franklyn Arm, Exhibit 0355, Affidavit # I ofJoseph William, December 17,2004, at, para. 40. Harry Setah indicated the location ofcabins along the shore of Chilko Lake, marked "Z" and "BT" on Exhibit 179 DIG, with additional cabins on the east side ofChilko Lake, across from Franklyn Arm (and apparently not marked on his map) see Oct. 14,2004, page 21, lines 22 to 33. Harry Setah - Deer and Moose hunting campsite on west side ofChilko Lake, where the tentframe remains up permanently, Oct 13/04 p 4 In 9ff. Harry Setah said that Sam Bulyan had a tent frame campsite in Franklin Arm - Oct 14/04 p 41n 14- p 5 In 24. Harry Setah - Another of Sam Bulyan's trapping campsites at south end ofChilko Lake, Oct 13/04 p 41 Ins 2-15, marked AS on Exhibit 179 DIG. Chief Roger William: The Xeni Gwet'in have traditionally camped and fished around the lake. The two best sites are now used by non-Indians, and are managed by BC Parks. Oct 20/03 p 37 In 36 - P 39 In 17. Francis William's father had a cabin at Tugex Jidilin where Francis William stayed as a boy. The time depth for this place is indicated by the Tsilhqot'in place names, including T'asbay Se'ian TI'ad, and also by the old trails all along the west side ofTsilqoz Biny all the way south to Franklyn Arm. Francis William, Exhibit 0158, Affidavit #2 of Francis William, April 30, 2004, at paragraphs 73­ 75. 106 three witnesses as to this: Harry Setah - Sam Bulyan's trapping campsites at Tu Tlaz, Oct 13/04 p 391ns 5-18; p 39 In 35 to p 40 In 2 Francis William - Trapping cabin at Tsilhqox Tu Tlaz, Aff#2 para 93 Joseph William - Cabin near Tsilhqox tu tlaz, Aff para 39 Feb 17/05 p 5 Ins 9-27 Joseph William - Summer camping - Tsilhqox Tu Tlaz and Franklyn Arm, Affpara 40.

21 43. ChiefRoger William said that Tsilhgox Biny (Chilko Lake), place name #1, is itself a place of spiritual importance, with healing powers'!".

Ch'a Biny

44. At Ch'a Biny (Big Lagoon), place name #13, there are remains oftwo kinds of Tsilhgot'in winter houses, the rectangular above ground niyah qungh, and the underground circular'l". Mabel William stayed at the niyah gungh built by her late husband's father Sammy

Bulyan at Ch'a Biny.lo9 Ubill Lulua said that there are at least 4 lhiz gwen yex Cha Bin/ 10

Ch'a Biny was a point for crossing Chilko Lake in modem and ancestral times. III

45. In addition, Francis William and ChiefRoger William said there is a campsite at Ch'a Biny, and ChiefRoger Williams said that there is a trapping cabin near Ch'a Biny.ll2 David Setah also said that there is a trapping cabin that he has used at Cha Biny.ll3

46. The ancient mysteries ofthe place are reflected in the story told by Francis William, that up behind Ch'a Biny is the grave of a deyen with Owl powers who died under a rockslide. 114

Xeni - the Nemiah Valley

47. The Nemiah Valley is a place of ancient and modern Tsilhqot'in occupation. I IS Xeni, which is place name #4, is a rough substitute for "Nerniah". Nemiah Creek is also called "Xeni

107 Oct 9/03 P 25 In 43 - P 27 In I; Oct 23/03 P 6 In 36 to p 7 In 17. 108 Tsilhgot'in Geographic Features: re Stikelan Point (Ch'a Biny) - This may have been the location ofthe 'large gabled house' excavated on the west side ofChilko Lake in the late 19705. Ifso, it may have also comprised at least one ofthe '6 Large Ground Lodges' McDougall stated ringed the lake in 1822.", Exhibit 0240, Expert Report of Kenneth Brealey, September 22, 2004, at 72, inc!. fn. 240. 109 Exhibit 0173, Affidavit #1 ofMabel William, July 23, 2004, at para 32. 110 Cross by Canada re Exhibit 0013, Affidavit #1 ofTheophile Ubi II Lulua, November 20,2002, at para. 50: Ihiz gwen yex marked as N-I on Exhibit 0144DlG, discussed variously including size (one largerthant TI'ebayi LQY, 3 smaller than TI'ebayi LQY), April 14/04, p. 42(21) - 46(37) III Gilbert Soloman, March 16,2005, page 4, line I to page 5, line 19. Norman George Setah, Nov. 18,2004, page 5, line 37 to page 6, line 2. 112 FW: Aff#2 para 63; 65 CRW: Sept 15/03 p 23-24 113 Jan 18/05 p42 In 15 - P 43 In 9 114 Exhibit 0158, Affidavit #2 of Francis William, April 30, 2004, at para. 70. 115 There are Ihiz gwen yex (underground houses) in the valley, and Ubi II Lulua insisted that they had been occupied by Tsilhqot'in people. Ubill Lulua, Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20, 2002, at para. 48; and under cross April 14, 2004, page 36 line 5, to page 37 line 6.

22 Yeqoz), and Nemiah Valley is often simply called Xeni. The former Nemiah Valley Indian Band is now called Xeni Gwet'in First Nations Government. In this section, the locations of physical occupation in the Nemiah Valley are organized from west to east, starting at Chilko Lake, and proceeding up to Elkin's Creek.

48. Ken Brealey noted what Vowell said about the two reserves established on the east shore ofChilko Lake, namely that one ofthem was located "where several families had built houses, and established winter quarters... "116 The surveyor, R.P. Bishop, noted in 1922 that "there are several old village sites in the valley" 117. The point is - at the time the reserves were created, the Tsilhqot'in people were there already, living in old established winter quarters in the Nemiah Valley. Wilson Duffs map has a "dot" at the Nemiah Valley, indicating lOa persons as of 1835. The legend reads: "Indians of British Columbia, Population Distribution, 1835. One dot represents 100 persons."us

49. Despite the presence ofreserves in the Nemiah Valley, and the fact that most band members reside on reserve, there are a number ofband members who live offreserve. Since the reserves are not in the Claim Area, this list indicates the location of some ofthe currently occupied houses in the portion ofthe Nemiah Valley that is within the Claim Area. Chief Roger William listed these people and their houses as follows:

Eileen William (S) Emma Pierce (T) Elsie Quilt (U) Alex Lulua (V) Ubill Hunlin (W) Eugene William (Y) Danny Sammy William (Z) William Lulua (AA)

116 Ken Brealey - Tsilhqot'in Ethnogeography: re A.G. Vowell (1899) - in 1899" Exhibit 0240, Expert Report of Kenneth Brealey, September 22, 2004, at 32, para. 3 117 Ex.156-1922/12/31.001, at page 2133391, under the heading "Indians". 118 Ex. 0265-1965/00/00.001 (Untitled map of Aboriginal population distribution, 1965, Wilson Duff, An Indian History of British Columbia, Map 3.)

23 50. The letters (S) through (AA) shown after their names are the letters by which the Chief identified the locations ofthese houses on the acetate overlay to the base map which was eventually entered into evidence as Exhibit #15DIG 1 19 Chief William's list of off-reserve houses may not be complete.

51. ChiefNemiah was born in the Nemiah Valley in around l827120 ChiefSil Canim was buried at Xeni. 121 Chief?Achig was buried at Xexti in Xeni 122. Current ChiefRoger William was born in the Nemiah Valley.

Ses Ghen Tach'i

52. Ses Ghen Tachi, place name #82, is a place where the Tsilhqot'in ancestors fished using "binlagh", a willow fish trap. 123 Ses Ghen Tach'i has Tsilhqot'in cabins and is a regularly used campsite. There was a warehouse there where dry fish were stored, as well as tools, clothes, and "stuffthat you're not going to use right away,,124 ChiefRoger William referred the Court to a photograph that shows the location of Ses Ghen Tach'i.125

53. The reference to the warehouse points to wider use ofthe land than simply the sites where buildings are located. A warehouse is only useful in the context ofthe resources that are

119 Oct 22/03 P 29 line 26 to pA2, line 2. 120 Ex. 156-1927107/31.001 121 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004 at para 64. 122 See section on Xexti below. 123 Exhibit 0367, Affidavit #2 ofGilbert Solomon, January 19, 2005, at para. 68(a). 124 Francis William -- May 25/04 p 36 In 39 - P 37 In 4 125 Chief Roger William Nov 4/03 p 12, Ins 28-40 28 Q Okay. Photograph 36, please. 29 A This is a picture of Tsilhqox Biny. And you 30 look -- we're on reserve here. You'll notice 31 the -- what we call ?Esdilangh, the point, and 32 Bes Ghen Tachi is just -- you'll see the boat. If 33 you look straight ahead from the end of the boat, 34 that's where Bes Ghen Tachi is. You canlt really 35 see it because the picture's dark. Bes Ghen Tachi 36 is number 82 on the map. And where the boat is is 37 also what we call the trappers cabin, off the 38 picture to the left, and we also have a member, 39 Councillor Robin Lulua, his home is to the left of 40 the picture as well.

24 harvested and stored there, in this case, dry fish. Just as a barn is useless to a farmer, except in the context ofthe whole farm on which agriculture takes place, the warehouse is part ofa pattern of land use that extends over the landscape.

54. In cross-examination Francis William said this about Ses Ghen Tach"i:

9 Q Am I correct that Ses Ghen Tachi is on a reserve 10 now? 11 A It's always been used by our people from way back. 12 Q Do you - - 13 A So it should be. 14 Q Do you know if it is part of the reserve? 15 A Plus there's been cabins there for a long time at 16 Ses Ghen Tachi. They've always lived there. i as

55. The answer given by the witness to these questions shows the authenticity ofthe Tsilhqot'in claim of ownership. He doesn't seem to know for sure if the land is part of a reserve. Indeed, it was evident at the trial that many Tsilhqot'in people used the Nemiah Valley with less regard for the official status ofthe land than we might have expected. Land that would conventionally be known as "Crown land" is treated by Tsilhqot'in people as their own land. As noted above, a number ofTsilhqot'in people live offreserve in the Nemiah Valley, on what is officially considered to be Crown land. But they pay no taxes and have no licences or leases for their use ofthis land. Francis William doesn't seem to know ifthe land is, in fact, a reserve, but says: "So it should be", meaning that the land should be considered to belong to Tsilhqot'in people. He pointed to the fact that "there's been cabins there for a long time at Ses Ghen Tachi." When he said, "They've always lived there", he obviously meant that Tsilhqot'in people always lived there. There is full proofofthe claim for aboriginal title in the simple statement: "It's always been used by our people from way back."

56. Tsilhqot'in people went to this place on a regular annual basis in the fall to gather ?aghez, make hay, and go fishing''". When he was about 12, Francis William's father built a cabin at

126 May 25/04 p 34 Ins 9-16 127 Exhibit 0157, Affidavit #1 of Francis Sammy William, para 24; 25

25 Ses Ghen Tachi. 128 Francis William recalls a tree falling on Nancy Setah's tent while they were camped there. 129

57. Tses Nanint'i, place name #161, is close to Ses Ghen Tach'i, and is where Ronnie Solomon's house is130 The transcript of Francis William's evidence about this follows:

29 Q And you also talked about a place called 30 Tses Nanint'i. 31 A Yes. 32 Q Can you tell me, where is Tses Nanint'i in 33 relation to Bes Ghen Tachi? 34 A It's not that Tses Nanint'i is where Ronnie's 35 house is. 36 Q Is it further up Nemiah Creek? 37 A It's close to each other. They have two names. 38 MS. CHRISTIE: Just for reference, it would appear that 39 Francis Setah also identified a place named 40 Tses Nanint'i -- 41 THE COURT, Yes. 42 MS. CHRISTIE, as number 161. And on Exhibit #6A 43 I think it's #6A. Anyway, it's the blow-up of the 44 Nemiah Valley -­ 45 THE COURT: It appears to be further up the creek, 46 doesn't it? 47 MS. CHRISTIE: -- you can see both 82 -- yes. 00035 1 THE COURT: As you've said.

58. Almost lost in this exchange is the fact that the witness said ofTses Nanint'i and Ses Ghen Tach']: "It's close to each other. They have two names." The density and time depth of Tsilhgot'in occupation is shown by the fact that there are different, distinct Tsilhgot'in names for two places ofresidence that are close to each other.

Lhiz Bay

59. Lhiz Bay, place name #10, has been occupied by Tsilhgot'in for generations. This is the location where Chief?Achig had his altercation with Elkins, in the 19th century incident ofthe

128 Exhibit 0157, Affidavit #1 ofFrancis Sammy William, para. 44. May 25, 04, P 41, lines 5 - II. 129 Exhibit 0157, Affidavit #1 of Francis Sammy William, para. 24-25. May 25, 2004, page 35, line 3 - 28: 130 Francis William - in cross examination, May 25/04 p 34 In 29 - P 35 In 1

26 bitten ear. ll l Lhis Bay is a likely candidate to be one ofthe "several old village sites in the valley,,132 noted by the surveyor, R.P. Bishop in 1922.

60. Norman George Setah had personal recollections ofhouses at Lhiz Bay that were occupied by people now deceased, that give some idea oftime depth in the last century. Norman George Setah remembers that when he was around 5 years old he burned the house ofJohnny Setah (?Eweniwen, b. circa 1871 or 1875, d. 06 Mar 1955)133 lt was a log house with a grass floor. "Little George" Setah (b. 1897 or 1899, d. 07 Oct 1971) also had a house in Lhiz Bayll4.

61. Sil Canem, the Chief ofthe Nemiah, built a house at Lhiz Bay. Francis William stayed in that house with Sil Canem and his wife Jeannie when he was three or four years 01d. ll5 Jimmy Sammy (Jimmy Bulyan) also lived in that house.l" Joseph William said that when he was very young his family stayed in Sil Canem's old house at Lhiz Bay.13?

62. ChiefRoger William's mother, Eileen William, lives in a house at Lhiz Bay.ll8 She tans hides there. This is the house ChiefRoger William grew up in. It is offreserve, and his mother does not pay any money to the Crown related to her occupation ofthis land. ll9

63. Harry Setah lived in a three-story log cabin at Lhiz Bay.140 It was from here that he would leave on his hunting trips with the late William Setah, on trails leading throughout the southern part ofthe Claim Area to places like Little Red Mountain, Long Meadow, Chilko Lake, Yohetta Pass, Yohetta Valley, Spectrum Pass, Dorothy Lake, Tsi tese?an, Tuzcha, Fishem and Lastman Lakes, Buck Basin and Ts'il?os.141

131 Ex. 156-1897/10/15.001 (see map at third page: 2204450). IJ2 Ex. 156-1922/12/31.001, at page 2133391, under the heading "Indians". IJJ N.G.S. evidence: Oct. 20, 2004, pages 21, 22 and 23. Birth and death dates for Johnny Setah from John Dewhirst, Exhibit 0441, Vo12, Tab E, Tab I. 134 N.G.S. evidence: Oct. 20, 2004, pages 21,22 and 23. Birth and death dates for Little George Setah from John Dewhirst, Exhibit 0441, Vo12, Tab E, Tab I. 135 Affidavit #1 of Francis Sammy William, para. 29. May 25/04 p 11 In 36 - P 12 In 7 136 N.G.S. evidence: Oct. 20, 2004, pages 21, 22 and 23 137 Exhibit 355, para. 15. 138 Oct 24/03 P 81 Ins 31-45 139 Nov 4/03 P 20 In 37 - P 22 In 5. Sept 9 03 page 11 Oct 22/03 P 14 Ins 3-36; p 29 In 28 - P 30 In 4 140 Oct 12/04 p 261n 26- p 30 In 16 141 Oct 14/04p 151n41 top 161n 16;p 191n23top471n5

27 64. Both oral and documentary evidence show that Lhiz Bay is one ofthe places where Tsilhqot'in people held gatherings in the Nemiah Valley prior to the creation ofreserves. 142

65. On March 5,1969 British Columbia sold Block A of lot 305 to Daniel William (then Chief ofthe Nemiah Valley Indian Band) for $845. 143 The Band requested that the land be made into a reserve, and it eventually became Lczbye I.R. #6. 144

66. ?Abalach'ez Biny, place name #11, is a lake south west oflhiz Bay. Grace Anne Lulua lives there l 45

Xexti

67. Xexti, place name #103, is a burial place in the Nemiah Valley. The graveyard is near Nemiah lake, known in Tsilhqot'in as Xex ti Biny, place name #9. This important graveyard is not on reserve. It is in the Claim Area on what is conventionally called Crown land. Ubill Lulua called it "Indian land,,146:

18 Q Whereabouts is your father buried? 19 A Beside Johnny. 20 Q Your father is buried at xexti beside your 21 grandfather Johnny Setah? 22 A Yes. 23 Q Are you able to say whether the Xexti graveyard is 24 on or off reserve land? 25 A I donlt think it's reserve land, but it is Indian 26 land.

142 Francis William - Gatherings at Lhiz Bay and Naghataneqed, May 25/04 p 21 In 42 - P 22 In 10; P 29 Ins 8 - 40; see also Exhibit 0240, page 32 quoting Vowell "where all the Indians assemble". 143 Ex. 594-C0305A-1969/03/05.00 I. 144 Ex. 594-C0305A-I 969/07/1 7.00 I. 145 Exhibit 0157, Affidavit #1 of Francis William, March 10,2004, at para 48 146 Apr. 1/04, p. 42( 18) - (26)

28 68. ChiefRoger William told the Court about the community's volunteer efforts to replace the fence. He also lists a number ofpeople who are buried there 147 William Setah, whose affidavit was filed as Exhibit 12 in these proceedings, is buried at Xexti 148

69. Francis William recalls the burial ofhis own father, Sammy William (Sam Bulyan) at Xexti in about 1979149, his mother, Annie's burial beside him in around 198015°,and also the burial ofJohnny Setah at Xexti (in March of 1955).151

70. Norman George Setah confirmed that his father, his father's father, and his father's father's father, (namely Willie George Setah, Little George Setah, and Johnnny Setah), are all buried at Xexti. 152 In addition, there is documentary proof that his father's father's father's father, namely Louis Setah, (or Old Setah or Sitax), was buried in the Nemiah Valley153 One cannot help but wonder how many Canadians (other than aboriginal people) still live in the same place that their parents, grandparents, great-grandparents, and great great grandparents are buried. The deep connection with place is unmistakeable.

71. Eliza William confirmed the following graves at Xexti - Jamadis (John Baptiste), Captain George's wife, Marie Madeline, Lizzie George's son, Jim Guichon's mother's sister Gazan, and notably, Captain George's father ?ach'ik (Chief?Achig).154

72. Ubill Hunlins late wife Amelia is buried at Xexti 155 Sammy and Sam Bulyan, Danny Sammy, Andy George, Adel George, Marshall Quilt, Christopher Haller, Lawrence William,

147 Oct. 22/03, p. 48, lines 3-8. 148 Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20, 2002, at para. 145(a); also Chief Roger William, Oct. 22/03, p. 48, line II. 149 Exhibit 0157, Affidavit #1 of Francis William, March \0,2004, at para 7. 150 Exhibit 0157, Affidavit #I of Francis William, March \0, 2004, at para 15. 151 Exhibit 0157, Affidavit #1 of Francis William, March \0, 2004, at para 27. Ex 441, Vol 2, Tab E, Tab 1. 152 As to Johnny Setah -- Oct. 20, 2004, p.14(27) - (34); as to Little George Setah -- Oct.20/04 - p.13(35) - (43); as to Willie George Setah -- Oct.20/04 - p.II(7) - (IS). Ubill Lulua confirms Johnny Setah's burial at Xexti, with Donald Setah beside him, Apr. \/04, p. 42(4) - (22) 153 Louis Setah's death certificate, 0156-1927/11/15.00 I 154 Exhibit 0105, paras 12, 16 and 17. 155 Mar. 7/05, p. 13(20) - 14(3)

29 Annie C. William's child were all mentioned by Chief Roger William as being buried at Xexti. 156

73. Just "above" Xexti Joseph William has seen rock piles used to catch ?elhtilh (vwild chickens") 157 Chief Roger William described these rock piles, and introduced photos of 158 them. These rock circles or rock piles are from the time ofthe ancestors. 159 This location is offreserve.

74. Eliza William and Francis William each recall camping near the graves at Xexti. 160 Ubill Hunlin described to the court a type ofpine shelter with a moose hide door that his family would use when camping at Xexti. 161

75. David Setah and his family camped along Nemiah Creek at Tsi Natats'ededlih, place name #263, near Xexti, while rounding up cattle to put them on summer range. 162 Chief Roger

William also camped along Nemiah Creek when fishing. 163

Tl'ebayi

76. Tl'ebayi, place name # 84, is at the west end ofKonni Lake (Xeni Biny). Much, but not all, ofTI' ebayi is in the Indian Reserve at the west end ofKonni Lake. When possible, the discussion below indicates whether a location is on reserve or off reserve, but often the evidence did not make this distinction. The Xeni Gwet'in First Nations Government band office is on reserve at Tl'ebayi.

77. There are at least two underground houses at Tl'ebayi. Joseph William described two lhiz gwen yex that he has seen at Tl'ebayi 164 and Ubill Lulua described one. Joseph William,

156 Oct. 22/03, page 48, lines 9 - 23. 157 Exhibit 355, para 55. 158 Oct. 8/03, pages 1-3. Photo is exhibit 43, photos #127 and 128. 159 Gilbert Solomon, Exhibit 0367, Affidavit #2 ofGilbert Solomon, January 19, 2005, at Affidavit #2, para 24(a). 160 Eliza William -- Exhibit 0105, para 12.; Francis William -- May 27104 p 30 In 47 - P 31 In 10 161 March 9, 2005, pages 26 to 30, esp. p. 26 lines 5 - 12, p. 28 line 46-7, and p. 30 line 26. 1'lJan 17/05 p 60 In II - P 61 In 39 163 Sept 19/03 p 45 164 Feb 17/05 p 131n 14-p 161n 10

30 Ubill Lulua, and ChiefRoger William all insisted that the former occupants ofthe lhiz qwen yex were Tsilhqot'in people. 165 Ubill Lulua described a Ihiz qwen yex in detail, and distinguished between a niyah qungh and a Ihiz qwen yex. 166

78. When Francis William was a boy his family camped in a small tent cabin with a stovepipe in the middle. When he was 18 he helped his father build a house for the family at Tl'ebayi.167

168 79. Joseph William and his wife Delia live in a house at Tl'ebayi. Ubill Lulua and his wife Julianna live in a house at TI'ebayi.169 Harry Setah lived in a two storey house there.l"

80. Francis William said there is a burial place at the east end of Tl'ebayi. He remembers when the grave was being dug for John Baptiste (also known as Jamadis or Lebusdcnj.i: While they were digging they found the bones ofanother person wrapped in an old red blanket. 172 Ubill Lulua said that there is an old gravesite below Catherine Haller's house at Tl'ebayi, that is the grave of an old Tsilhqot'in medicine woman. Some ofthe places at Tl'ebayi are on reserve, and some are offreserve. 17l

81. Mabel William stayed at Sammy and Annie Bulyan's cabin at TI'ebayil74

82. There is a camping place where Chief Roger William has camped near a small pond at the west end ofXeni Biny.175

165 Exhibit 0013, Affidavit #1 ofTheophile Ubi II Lulua, November 20,2002, at para. 48; and under cross April 14, 2004, page 36 line 5, to page 37 line 6. CRW: Sept 15/03 p 3, lines 4,5. 166 Apr. 14/04, p. 32(32) - 35(10), 37(39) - 38(2), 40(21) - 41(8) 167 Exhibit 0157, Affidavit #1 of Francis William, March 10,2004, at para. 44. 168 Exhibit 0355, Affidavit #I ofJoseph William, December 17,2004 at para II. 169 Exhibit 0013, Affidavit #1 ofTheophile UbiII Lulua, November 20, 2002, at para 13. 170 Oct 12/04 p 261n 26- p 30 In 16 171 Chief Roger William confirmed that tliis particular gravesite is on reserve. Oct 22/03 p 50 In 14-31 172 Exhibit 0157, Affidavit #1, Francis William, March 10,2004, para 10. 173 Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20,2002, at para 56, also Schedule I (at "Catherine Haller's cabin"), and map Ex. 13DlG "A". 174 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para 8 175 Sept 17/03 p 44-45

31 Et'an ghintil (and around Konni Lake)

83. Et'an ghintil, place name number 56, is an underground house site occupied by the Tsilhqot'in ancestors in the Nemiah Valley on the south shore ofKonni Lake. 176 In the zo" century Tsilhqot'in people would camp late in the Fall for fishing 177 and for mushroom pic. kimg.178

84. We know from the evidence ofMabel William that Sitax and Nancy had a cabin at Tats'ust'an, place name #196. 179

85. North of Konni Lake, roughly in the centre ofthe lake, is Tl'ets'inged, place name #71. This site is roughly half way between the reserves at the east and west end of Konni Lake, but Tlets'inged is not on reserve. Ubill Hunlin has lived there with his family for about 25 years l 80

Francis William has an old cabin there. 181 Members of Chief Roger William's family have a cabin for a fishing camp there and on and offthey live there. 182 Xeni Gwet'in people camp there for berry picking. IS]

86. Joseph William was taught by his grandmother Annie William that the ?esggidam would pile rocks and set up a snare to catch ?elhtilh ("wild chickens") at a place called Tsi Nadenisdzay, which is above Tl'ets'inged on the side ofXeni Dzelh. Joseph William has seen that place.l'"

Naghtaneqed

176 Exhibit 0367, Affidavit #2 of Gilbert Solomon, January 19,2005, at para. 63-65. 177 David Setah - Campsite at Et'an ghintil, Jan 18/05 p 22 In 42 - P 23 In 8. Harry Selah - Campsite at ?Et'an Ghintil for kokanee fishing, Oct 13/04 p 14 In 13-26. "especially in the fall time when the kokanee spawn" Gilbert Solomon, Exhibit 0367, Affidavit #2 ofGilbert Solomon, January 19,2005, at para. 65. Francis William - camping at Et'un Ghintil and hill SW of Konni Lake, May 25/04 p 41 In 26 - 34. 178 Norman George Setah, Nov. 2, 2004, page 36(40) to 37(26). Location marked as "FE" on Exhibit 212 DIG. 179 Exhibit 0174, Affidavit #2, of Mabel William, September 3, 2004, at para 56(vii). 180 Mar. 7/05, p. 20(46) - 21(47). 181 Exhibit 0013, Affidavit #1 ofTheophile Ubi II Lulua, November 20, 2002, at Schedule I (page 43), and Map Ex13dig "A", 181 Sept 903 P 25 line 14 to p. 26 line 37, plus photo #3. Sept 19 p 50 183 David Setah - Summertime berry picking campsite at Tetl'inged, Jan 17/05 p 55 In 28 - P 56 In 12 184 Exhibit 0355, Affidavit #1 ofJoseph William, December 17,2004, at para 55.

32 87. Naghtaneqed, place name #5, is at the east end of Konni Lake (Xeni Biny). There are several old pit houses in the vicinity185 Tsilhqot'in houses and a gravesite are located there. Much, but not all, ofNaghtaneqed is in the Indian Reserve at the east end of Konni Lake. Gatherings are held at Naghataneqed, and have been from a time before the church was built there l 86

88. There was an old village at Naghataneqed referred to by David Setah which is not on reserve, as hisIS evievidence rnak es c I ear. 187

89. The gravesite at Naghtaneqed is called Chel Letesgan, When the big fIu came in 1918 there were a number ofpeople living in cabins at Naghtanaqed, including Tse1akoy and wife, ?Estinlh and family, ?Amed's mother and ?Eskish (Captain George).188 32 people who died in the sickness of 1918 are buried there 189 (This would have been before the reserve was surveyed.) Captain George (1883 -1973) is buried at Chel Letesgan.!"

90. Tl'etates, place name #70, is off reserve at the west end of Konni Lake at Naghtaneqed. It is where the house where ChiefRoger William was born is located, and according to Tsilhqot'in law, that house now belongs to his mother, Eileen William. ChiefRoger William called this Tsilhqot'in land, even though it is officially considered to be Crown land. His mother pays no taxes or other fees for the use ofthis land, and has no paper or documentation from the Crown to allow her to use this land. 191

91. Francis William's dad built a cabin at Naghtaneqed out ofwood from a previous cabin located there. Captain George, his wife Lizzie and his son Andy had a cabin at Naghtaneqed, as did Nellie Lulua and Lebusden. Francis William's dad also built a warehouse at Naghtaneqed

185 Ubill Hunlin, Mar. 15/05, p. 17(47) - 19(44); Chief Roger William - Sept 12/03 P 62-63 186 Francis William, May 25/04 p 21 In 42 - P 22 In 10; May 25/04 p 29 Ins 8 - 40. 187 David Setah - Story about Sit'ax using medicine powers at a village on the north east end of Konni Lane, Jan 20105 p 5 In 12 - P 6 In 31. 188 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at paras 60, 65 189 Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20,2002, at para 40, also: Sched I, page 41, entry for "Naghtaneqed". 190 Exhibit 0013, Affidavit #I ofTheophile Ubill Lulua, November 20,2002, at para. 20. Ubill Hunlin - Wife's Grandfather Cptn George buried at Naghataneqed in Xeni, Mar. 7/05, p. 19(37) - (44). 191 Sept 9/03 p 19-20

33 that was used to store food, traps, harnesses for the horses, and other things like that. 192 Chief Roger William showed the Court a photograph showing the location ofthe house where he was born and the family's warehouse at Naghataneqed",

92. Joseph William was born in Sammy William's log house at Naghtaneqed. Joseph William also knew about John Baptiste's log cabin there 194

93. Mabel William stayed at Sammy and Annie Bulyan's cabin at Naghtaneqed, but then moved to her own house there 195.

94. Ubill Hunlin described to the court a type ofpine shelter with a moose hide door that his family would use when camping at Naghataneqed.l'"

Ts'i1?os

95. One ofthe Tsilhqot'in people who lives in the Nemiah Valley is Ts'il?os. Patrick Alphonse put it plainly when he said, ofTs'il?os and ?Eniyud and their family: "Those people all turned into mountains.l" .. Because Ts'il?os is an animated person/mountain, Tsilhqot'in people are not self-conscious or embarrassed to advise outsiders not to point at Ts'il?os198 It is just common sense not to offend him. As ChiefRoger William said:

11 So to me, Ts1il?os and ?Eniyud, they're, you 12 know, Tsilhqot'in people who, you know, takes care 13 of the land, takes care of its people, in many 14 different ways.199

192 Exhibit 0157, Affidavit #1 of Francis William, March 10,2004, at paras 42, 43. Ubill Lulua was born in Captain George's cabin at Naghtaneqed, Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20, 2002, at Sched 1, page 41, "Naghtaneqed", Also: Ubill Hunlin Mar. 7/05, p. 17(19) ff 193 Nov 4/03 P 9 In 11 - P lOin 47. The photographs are Exhibit # 43, photos 30 and 31. 194 Exhibit 0355, Affidavit #1 ofJoseph William, December 17,2004, at para 3, 35. 195 Exhibit 0174, Affidavit #2 ofMabel William, September 3, 2004, at para 8, 10 196 March 9, 2005, pages 26 to 30, esp. p. 26 lines 5 - 12, p. 28 line 46-7, and p. 30 line 26. 197 Affidavit #1 ofPatrick Alphonse, Exhibit 0437, para. 25. 198 September 9, 2003, page 48, line 47 to page 49, line 10. 199 September 9, 2003, page 49, line 11.

34 96. The way Tsilhqot'in people behave towards Ts'il?os is not very different from the way Christian people behave about God. When Christian people go to church they believe that they are in God's house, and they may avoid pointing at the altar or at images ofthe crucifixion out of respect or deference. Having Ts'il?os living in the Nemiah Valley, dominating the landscape of virtually the entire Claim Area, demonstrates Tsilhqot'in physical occupation ofthe land. One can tell that Tsilhqot'ins have occupied the Claim Area by the presence of Ts'il?os, one oftheir own, taking care ofthe lands and its people.

97. Ts'il?os, the mountain, is place name #38. There are campsites on and around Ts'il?os. ChiefRoger William has marked 6 campsites on Exhibit 16 (NI through N6) to show camping sites all around Ts'il?os. Francis William and many others confirmed that there are camping sites all around Ts'il?os2oO

Tachelach'ed (The Brittany Triangle)

98. The name Tachelach'ed, place name #50, applies to the whole area between the Chilko and Taseko rivers. It is the correct Tsilhqot'in name for the area known in English as the Brittany Triangle. And although the name Tachelach'ed would include areas even south ofthe Nemiah Valley, the places of occupation in this section are those areas in the Claim Area, north ofNemiah Creek, and not included in the eastern or western traplines.

99. When McDougall, Connolly and Nobili came up the Chilko River, prior to 1846, they would not have seen the Tsilhqot'in winter houses located in the Brittany, just inland from the river. The evidence outlined below shows that all the major lakes in the Brittany Triangle (Natasawed, Tsalngen, ?Elhgatish, Tsuni?ad) have underground houses that were occupied by the Tsilhqot'in ancestors prior to sovereignty.

100. Mabel William has seen a niyah qungh near Benchuny Biny in Tachelach'ed. Benchuny Biny is a long lake inland from Nusay Bighilin. She said that it had "rotted down" and all the

200 Francis William - Hunting and camping around Ts'{l'Zos, May 25/04 p 161n 24 - P 18 In 5. Harry Setah's cabins marked DK on Exhibit 179, CA and CN on Exhibit 180.

35 logs had fallen in2 01 Mabel William's affidavit Ex. #173, beginning at paragraph 23, gives a detailed description (with illustrations) ofhow a niyah qungh is made. She has even lived in one, so her ability to recognize one cannot be doubted. That fact that the niyah qungh seen by Mabel William was rotten and falling down indicates time depth back to the 19th century.202 She would have seen it in the 1940's so we assume that it was 50 years old or so when she saw it. Although Mabel William did not know whose niyah qungh it was, we do know from Matson, that it must have been Tsilhqot'in.

101. There are many Tsilhqot'in houses and cabins throughout the Brittany Triangle, and there are many sources in the record for this information. For example, David Setah identified the location of Sil Canem's house, Eddie Quilt's house and Eugene's log house, marked as CI, CJ and CK on Exhibit 259DIG.203

Tachelach'ed: A late Fall hunting camp is a home

102. The stand of lodge pole pine sought by the forest industry that triggered these proceedings is the level roadless forest at the north end ofthe Brittany Triangle. On most maps it is featureless, indicating that non-Indians know very little about it.

103. But the evidence is that Tsilhqot'in people have lived in hunting camps in this area, and that it is a place full of life and opportunity for the Tsilhqot'ins. A day's horse ride south from the confluence ofthe Taseko and Chilko rivers (or alternatively, a days horse ride north from Natasawed (Brittany Lake), is the place known ominously as "Kid Got Lost", ?Esqi Nintanisdzah. Ubill Lulua's fascinating account ofhis hunting trip in 1953 brings depth and 2 4 perspective on the place called Kid Got Lost 0 He has hunted in Tachelach'ed all his life. He had a winter hunting camp there from the beginning ofNovember to the end ofDecember. They stayed in tents with a campfire, illustrating the sheer hardiness ofthe Tsilhqot'in people, and their

201 Exhibit 0173, Affidavit # I ofMabel William, July 23, 2004, at para 36. 202 Morley Eldridge provided some insight into the length of time ancestral Tsilhqot'in housing would last in his testimony. He indicated that such dwellings would only remain standing "for a few decades", rather than for 200 years. Transcript, May 12, 2006, page 14, lines 6-13. 20J Jan 20/05 p 14 In 18 - P 17 In 25 204 Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20,2002, at paragraphs 150 through 160.

36 skill at surviving on a land that is cold, dry, remote, harsh and featureless. But for Ubill Lulua, the place is one ofhis homes, and it is rich:

"160. There are Wild horse trails all over the Brittany. About 200-300 wild horses live in there now. Lots of Moose and lots of Deer. That is why we do not want a road. It's never been logged, no mines. Lots of Indian medicines up there too." (Ex. 13)

104. Ubill Lulua testified that people from Xeni, Stone, Anaham, Redstone camped and hunted there.2°5 Here is an excerpt from the cross-examination ofUbill Lulua by Canada:

28 Q Okay. Nobody lived at ?Esqi? Nobody had a house 29 at ?Esqi or a niyah qungh? 30 A No one no one stayed there; just in the fall 31 time. 32 Q In tents?

33 A In t erits i i'"

105. With typical Tsilhqot'in understatement, Ubill said they stayed at ?Esqi Nintanisdzah "just" in the fall time (by which he meant November and December, as referenced above). There was similar evidence about a place in the Nemiah Valley, Gunez Gwenan, where Francis William recalls his family camping out one winter with just a tent, campfire and blankets to keep them warm (see reference to Gunez Gwenan above). Francis William and his family were not homeless when they did this. Neither was Ubill Lulua homeless when he camped in the winter at ?Esqi Nintanisdzah. Far from being homeless, this is how these hardy Tsilhqot'ins live when they are at home. Canada's question: "Nobody lived at ?Esqi? Nobody had a house" betrays a fundamental cultural misunderstanding that divides the parties in this litigation. The Plaintiff says that living in a tent, in the winter, is just as legitimate a way to be "at home" and occupy the land as is the mainstream Canadian way, which might be to build a monster house in the suburbs. The Tsilhqot'in accomplishment was that families would go into the heart ofthis roadless forest, known by the name ofone ofthe dangers it posed (getting lost), for winter hunting camps, in tents. The Tsilhqot'in ability (and preference) to live outdoors in winter has continued into the 20th century. Francis William recalls his family camping out one winter on a hill southwest of

205 Apr. 15/04, p. 22(36) - 23(36) 206 Apr. 15/04, p. 23, lines 28-31.

37 Xeni Biny, south ofthe reserve at TI'ebayi. They just used the tent, campfire and blankets to 207 keep warm .

106. The issue that divides the parties is this: Can the Plaintiff claim aboriginal title for an area where Tsilhqot'in occupation ofthe land did not involve building a permanent house, but where Tsilhqot'in people lived in tents, offthe land, hunting for meat and gathering Indian medicines, in the harshest possible conditions208? Or to express another dimension to the issue: Would it have been necessary for the Tsilhqot'in people to have built houses at ?Esqi Nintanisdzah to assert a valid claim for title, suggesting that living there in tents in the winter off the land is somehow not enough ofa commitment to the land to satisfy the law? The Plaintiffs answer to this question is clear - Tsilhqot'in ownership in not diminished on the basis that Tsilhqot'in people basically like to live outdoors, it is enhanced.

107. Ubill Lulua points out that to build a road might ruin the very values that made Tachelach'ed special. Building a road and a house might be the way European cultures dominate the land, but in the case ofthis land, Ubill Lulua fears that it would destroy the values that are most important to the Tsilhqot'ins. The paradox is clear. Building roads and clear-cutting will destroy the values held dear by the Tsilhqot'in people. But Canada seems to assert that just that degree of intervention over nature is necessary to establish aboriginal title.

108. The Plaintiff says that Canadian law does not require that to own the land one must destroy it. Indeed, the law is clearly the opposite. The limit ofaboriginal title is the "inherent limit" outlined by Lamer, J. in Delgamuukw. Canada's position seems to run contrary to the law stated in Delgamuukw. It is the appropriate connection to the land that is protected by the law of aboriginal title. In the case ofthe remote and roadless forest that is the very subject matter of this lawsuit, the appropriate connection to the land has been worked out over generations by the Tsilhqot'in people themselves. Their lifestyle and their words contain the simple message: Don't build a road; camp in the winter in tents. That is how the Tsilhqot'in people manage this land. To do otherwise is to destroy the values that make it special. It would be a very

207 Exhibit 0157, Affidavit #1 of Francis William, March 10,2004, at para 38. 208 Although plenty ofevidence in the record indicates that tent poles and other useful materials were left permanently at such camps, for repeated use year after year.

38 Eurocentric notion, again contrary to law, to suggest that a home built of canvas and poles is of less ofa home than the suburban bungalow. A man's home is his castle, no matter how modest that castle may appear to wealthy, modem, urban Canadians.

109. The occupation of northern Tachelach'ed in tents in the late fall was not limited to ?Esqi Nintanisdzah. Mabel William said this:

"20. ?Elegesi also taught me that Tsilhqot'ins from around Tl'etinqox would cross the Tsilqox (Chilco River) into Tachelach'ed at ?Elhixidlin in the late dan ch'iz (fall time) every year to hunt for nists'I (deer). They would make their camps up the Dasiqox all the way to the basin across the river from Tsintsans Xadalgwenlh. They would do their hunting through Tachelach'ed. They would stay until the snow came."Z09

110. Although travel up the Chilko was the favoured route ofthe early European explorers such as McDougall, Connolly and Nobili, and it is on the Chilko route that one would pass the great winter lodges ofthe Tsilhqot'in people, it is clear the Tsilhqot'in people themselves also travel up the Taseko, inside the Brittany Triangle, to late Fall hunting camps in Tachelach'ed. As Mabel William put it - they hunted "through" Tachelach'ed.

Nu Natasa?ax or Mountain House

Ill. A permanent Tsilhqot'in residence in the Brittany Triangle is Nu Natasa?ax, or Mountain House, place name #102 210 In around 1918 when the flu epidemic came, Tsilhqot'in people were living in houses at Nu Natasa?ax, one ofwhich was the house of?Elegesi (Eagle Lake 212 Henry)211. At that time, Nezulhtsin and his wife had a niyah qungh in Nu Natas?ax . Several

209 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para 20. ?Elhixidlin is the confluence ofthe Chilko and the Taseko rivers. Tsintsans Xadalgwenlh is not in the Claim Area - but evidently Mabel William used this place name to indicate the approximate southern limit ofthe late Fall hunting camps in the northern Brittany Triangle; it is at a latitude approximately halfway between the confluence ofthe Chilko and the Taseko rivers and the north end ofChilko Lake. See also Norman George Setah's evidence ofthree crossings ofthe Taseko for hunting in Tachelach'ed. 210 Mabel William stayed with ?Elegesi at Mountain house, Exhibit 0174, Affidavit #2 ofMabel William, September 3,2004, at para 5-7 211 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para 68(i). See also Exhibit 0157, Affidavit #1 ofFrancis William, March 10,2004, at para 20. Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20,2002, at para 19(a). One ofthe other people with a house there was Baptiste Dester, Exhibit 0158, Affidavit #2 ofFrancis William, April 30, 2004, at para 31. For an overlapping and slightly later period oftime see also the

39 people died ofthe flu and were buried at Nu Natasa?ax, including Agnes, the mother ofAnnie Bulyan and ?Elegesi, (and great-grandmother ofthe Plaintiffj'":'. The evidence records many burials in at least two graveyards at Nu Natasa?ax, or Mountain House 2 14

112. This evidence, taken as a whole, demonstrates occupation ofNu Natasa?ax, or Mountain House (and by extension, the whole ofTachelach'ed) by Tsilhqot'in people for the whole ofthe relevant period. As late as 1918 Tsilhqot'in people were living in their distinctive ancient style ofhouse, the niyah qungh, right at Mountain House. A respected leader in the community, Eagle Lake Henry, lived there through most ofthe zo" century, until he died at the age of 85 in 1971215 It is a place where Tsilhqot'in people buried their dead. There is no other credible inference from this evidence, except that it was in Tsilhqot'in occupation at the date ofBritish sovereignty.

Natasawed Biny (Brittany Lake)

113. Not far from Nu Natasa?ax, or Mountain House, near the heart ofthe Brittany Triangle, is Brittany Lake, known in Chilcotin as Natasawed Biny, (place name #42). This is a site ofrecent and ancient Tsilhqot'in occupation. In 2003 the Plaintiff testified that former ChiefMarvin Baptiste has a cabin at the south side ofNatasawed Binl16 Nezulhtsin (a.k.a. Jamadis, born ca. 1824 or 1827il7 fished in this lake218 Ubill Lulua said:

evidence of Chief Roger William as to people living at Mountain House, such as Felix Lulua (b. ca 1873), Tommy Lulua (190 I - 1978) and Lashway Lulua (ca. 1900 to 1969), Sept. 25/03, page 28, lines 36-44. 212 Exhibit 0173, Affidavit #1 of Mabel William, July 23, 2004, at para 34; 174, para 68(ii) 213 Exhibit 0174, Affidavit #2 ofMabel William, September 3, 2004, at para 67, 68. See also the genealogical chart created by John Dewhirsl, Exhibit 0441, Vol 3, Tab G, Tab I, to which could be added the approximate date of death ofAgnes, from the evidence ofMabel William cited here thai Agnes died in the flu in 1918 or 1919. Jeannie, the daughter ofNemiah, died ofthe flu and was buried at Mountain House, Exhibit 0160, Affidavit #1 of Doris Lulua, March 25, 2004, at para 22. 214 Chief Roger William - 2 Graveyards at Mountain House, Oct 22/03 p 44 In 13 to p 48 In 1. Ubill Lulua­ ?Elegasi (Eagle Lake Henry) buried at Nun Natasa?ax (Mtn House), Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20,2002, at para. 19(a), 57. Ubill Lulua - Son Roger Lulua and five ofMary Jane Baptiste's children are buried on Tsilhqot'in at a second graveyard al Nu Natase?ex; marked on Exhibit 0142, Apr. 2/04, p. 17(40) - 19(10). Eliza William - Jeannie Lulua is buried at the graveyard at Nu Natasa?ax (Mountain House), Affidavil #1 - para 7. ChiefRoger William: gravesites at Mountain House, Jan 15/04 p 68 Ins 18-38. 215 Exhibit 0013, Affidavit #I ofTheophile Ubill Lulua, November 20, 2002, at para. 19(a). 216 ChiefRoger William _Marvin Baptiste's cabin at Brittany Lake marked "N" on Exhibit 15DIG, see transcript Oct 22.03, page 20, lines 3-7. Marvin Baptiste has since passed away. 217 Exhibit 0443, Expert Report of John Dewhirst, August 8, 2005, ar paras. 288-289. 218 Exhibit 0 IOS, Affidavit #1 of Eliza William, June 3, 2003, at para. IS.

40 "53. There are lots of lhiz qwen yex at Natasawed (Brittany Lake); lots of old people used to live there. I've only seen about four holes there myself, but lots of Tsilhqot'in people have told me about the others....,,219

114. Thus, there is evidence in the record ofTsilhqot'in use and occupation ofthe lake from which the Brittany triangle gets its name at each relevant time - contemporary (Marvin Baptiste), ancient (lhiz qwen yex where "old people" used to stay), and at the time of Sovereignty (Jamadis fished there).

115. Living Tsilhqot'in people have wintered at Shorty Alex Meadow, just south ofBrittany Lake. 220

Captain George Town and vicinity

116. Captain George Town, (place name #96), and the nearby place Neba?elhnaxnenelh?elqelh, or Deni Belh Tenalqelh, (place name #65), is a place ofancestral 221 Tsilhqot'in occupation in the south central part ofthe Brittany Triangle . The Tsilhqot'in 222 ancestors, the ?Esggidam, lived in this place • Captain George himself(ca. 1883 - 1975) lived 223 here and built a "good" house here . ChiefRoger William stayed in Captain George's house at

219 Exhibit 0013, Affidavit #1 of Theophile Ubill Lulua, November 20,2002, at para 53. LQY at northern end of Natasawed, marked with dot and pit house symbol as S-I on Exhibit 0144DlG. 220 Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para 7, 8. 221 For the Chilcotin name Neba?elhnaxnenelh?elqelh, see Mabel William Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 8. Ubill Hunlin knows the same general location by the name Deni Belh Tenalqelh - March 14,2005, pages 2,3, and March 9, 2005, page 2, line 12. The approximate location is shown by Ubill Lulua, Exhibit 13, Schedule I, location 24, Exhibit 13DlG "A". 222 Ubill Hunlin, March 14,2005, page 3, lines 3-7. 3 Q Since when have Tsilhqot 'ins been living at Deni 4 Belh Tenalqelh? 5 A The ?Esggidam, the ancestors, lived in that area, 6 and Captain George 's grandfather also used that 7 area. And before that it was the ?Esggidam, the 8 ancestors. 223 Exhibit 0108, para 7. As to Captain George's dates, see Dewhirst, Exhibit 441, Vol 3, Tab H, Tab I. "He didn't even use a saw - just chopped with an axe." Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20, 2002, at para. 21

41 Captain George Town when he was 4 or 52 24 Many Tsilhqot'in people have stayed in this area in the zo" century.225

117. The time depth and cultural connection to this place at the heart ofthe Brittany Triangle is unmistakeable. There is evidence that the ?esggidam lived there, as well as the fact that there are two Chilcotin names for the place, and also, the strong cultural attachment to the place that caused Captain George to purchase acquire the land that had previously been Crown granted to a non-Tsilhqot'in person. Ubill Hunlin described what Captain George had to do in order to purchase the land:

18 A He gave up his status to buy that land. If you 19 were registered and were status you were ~- you 20 were not able to buy land, so he gave up his 21 status in order to buy that land. 226

118. Captain George Town, therefore, is a place ofancient Tsilhqot'in occupation, important enough to the Tsilhqot'in people that a parcel of land which had been alienated by the Crown was redeemed by Captain George, a former leader ofthe Xeni Gwet'in, and then re-occupied by him by building a house, lived in by him and Tsilhqot'in who are alive today and gave testimony in the case.

119. Upper Place, place name #123, is a place ofTsilhqot'in occupation in the west central part ofthe Brittany Triangle, not far from Captain George Town. Francis William's parents stayed the winter at Upper Place227 Eddie Quilt Senior lived at Upper Place.228

120. Far Meadow, place name #72, is a place ofTsilhqot'in occupation in the heart ofthe Brittany Triangle. Living Tsilhqot'in people, including current ChiefRoger William, have spent

224 Sept 17/03, page 17, line 21 through page 18, line 8. The house is marked as M-2 on Exhibit 16DlG. 225 Including Eddie Quilt Senior and his wife Eliza and their family. Exhibit 0157, Affidavit #1 ofFrancis William, March 10,2004, at para 27; Sept 17/03, page 17, lines 31-32. Norman George Setah gave a location for the tent structure used by "Old Eddie" and his family: See Nov. 2, 2004, page 40 line 14 to page 42, line 24, marked as FJ on Exhibit 212 DIG. Laura Quilt, Sept 17/03, page 17, lines 32 - 34. Ubill Hunlin and his wife Amelia - March 14,2005, page 2, line 46 to page 3, line 2. 226 March 14/05, page 3, lines 18 - 21. 227 Exhibit 0157, Affidavit #1 ofFrancis William, March 10,2004, at para 27. 228 Sept 17, page 23, lines 1-7.

42 the winter in a cabin at Far Meada~29 Eagle Lake Henry had a cabin there, built by fanner Chief Sil Canem 230

229 Some of the living people known to have wintered there are: Mabel William - Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para 8; Boise William and Rayfield William, Oct. 22/03, page 21, line 46 to page 22, line 2, Chief Roger William and his mother Eileen William - Oct. 22/03, page 21, I. 44 to page 22, line 4. See especially September 9/03, at pages 26-27 (and black polygon #72 ofaccompanying Exhibit 14D1G)as follows: 46 A I know around when I was five I lived in a place 47 called Far Meadow. That was in the winter. And 00027 1 my mother stayed there with her nephews to feed 2 cattle. 3 Q Can you show the court where Far Meadow is on the 4 map? 5 A That would be right here. 6 Q Would it be fair to describe that as near the 7 centre of the Brittany? 8 A Yes. 9 Q Is there a -- to use words, can you describe it in 10 relation to the Brittany Lake? It1s 11 A The -- Brittany Lake is just -- would be more 12 west, southwest of Far Meadow, and Far Meadow is 13 right along the -- what they call the Nuntsi 14 chain -- Nuntsi chain of lakes. 15 Q Thank you. What was there at Far Meadow? Was 16 there a house? 17 A There'S a -- there was a cabin there that was 18 built by one of our former chiefs, Sil Canem, and 19 that was a place by -- owned by my great-uncle 20 ?Elegesi, Eagle Lake Henry. 21 Q Okay. I wonder if you could put a mark there to 22 show Far Meadow. 23 A X? 24 Q Yeah. Is it a place that's just a point or is it 25 an area that you would -- be big enough to draw a 26 circle? 27 A WeIll this lake here, when I was there it was a 28 meadow. They used to cut hay on that meadow. And 29 now it's a -- it's a lake. 30 Q How come it's a lake? 31 A The beaver. 32 Q The beavers have dammed it? 33 A Tsa nanizel. 34 Q That's the word for beaver? 35 A Yes. 36 Q So could you draw a circle, then, around what used 37 to be Far Meadow and is now partly a lake and 38 could we give that -~ number 72. Could you write 39 number 72 beside that l please. 40 Now, you used a name for Eagle Lake HenrYi is 41 that ?Elegesi? 42 A Yes. The cabin is marked as M1 on Exhibit 16DlG - transcript Sept 17/03, page 17, line 17. 230 Sept 25/03, page 28, line 29-30. Ubill Lulua - ?Elegasi (Eagle Lake Henry) had a cabin at Far Meadow, Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20, 2002, at sched. I.

43 121. Captain George's family had a fishing site at Delgi Ch'osh (also known as Lhuy Tu Xadats'ebe?elhtalh or Big Lake), place name #35, where they constructed a pine windbraker as a shelter at their fishing siteD! A large number ofTsilhgot'in people have used it as a springtime fishing campsitev".

Tsuni?ad

122. Tsuni?ad Biny or Tsuniah Lake, place name #16, is the largest lake in the Brittany Triangle. It is a place ofancient Tsilhgot'in occupation and continuous Tsilhgot'in use and occupation since the time ofBritish sovereignty.Y'

123. There are lhiz gwen yex (underground houses) located at both ends ofthe lake234 that were occupied by Tsilhqot'ins':". There were two niyah gungh at the north end ofTsuniah Lake236 Nezulhtsin and his wife had a niyah gungh at Ts'u Talh?ad (place name #90 or #18)237, 238 at the north end ofthe lake . Tsilhgot'in people alive today have lived in houses around the lake.239

231 Ubill Hunlin -- Mar. 9/05, p. 30(8) - 31 (2). 232 Harry Setah _ Springtime fishing campsite at Delgi Chosh, Oct 13/04 P 64 Ins 34-46, marked as BP on Exhibit 179D1G. ChiefRoger William -long list ofpeople who have used the lake for fishing, cabin and fishing place at Delgi Chosh, Sept 22 p 5 line 26 through page 6, line 7, marked on Exhibit 19DIG as 1-1. m See generally specific reference that follow. See also Gilbert Solomon, Exhibit 0367, Affidavit #2 ofGilbert Solomon, January 19,2005, at para. 70. 234 West end: Ubill Lulua - LQY located by Tsuniah Lake Lodge (i.e. by west end ofTsuniah Lake), Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20,2002, at para. 51, sched, I rc Tsuniah Biny, item #58. "There were lots by Tsuniah Lake Lodge" (para. 51). Marked QI on Exhibit I44DIG (Apr 14/04, page 49, line 33). Gilbert Solomon, March 15,2005, page 36, line 39 to page 37, line 21. North End: Ubill Lulua - Two LQY located by Nazulhts'in Village, at north end ofTsuniah Lake. Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20,2002, at para. 52. See also sched. 1 re Tsuniah Biny, item #1. Marked RI on Exhibit 144DIG (Apr 14/04, page 49, line 47). 235 West End: Apr. 02/04, p.16 lines 20-21. Also see: "My grandfather Alec said that the ancestors stayed in underground houses in that area" - Norman George Setah, Nov 30/04, page 17, line 31. North End: Apr. 2/04, p. 16(36-40) 236 Ubill Lulua - Niyah qungh, one rotting and one collpased, seen at Ts'u Talh?ad; Nezulhtsin lived in one ofthem, Apr. 2/04, p. 4(47)- 5(7),10(41) - 11(10). 237 Ts'u Talh?ad or Ts'utalh?ad is also called Nazulhts'in Village. Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20,2002, at Schedule 1, Ts'uni?ad Biny, item 1. See discussion at April 2, 2004, page 6, lines 25­ 32. 238 Mabel William, Exhibit 0173, Affidavit #1 ofMabel William, July 23, 2004, at para. 33. 239 Ubill Lulua, Exhibit 13, Schedule I, Ts'uni?ad Biny, item I and 2. See Exhibit 13 DIG "A". Jamadis (Nezulthsin - see Dewhirst, Exhibit 441, volume I, page 16) lived there - Exhibit 0 I05, para 15. This is in addition

44 124. The Tsilhqot'in ancestors held a gathering called dishugh delmid nagwaghized every May 240 around Tsuniah • Doris Lulua's great grandmother Annie said that Tsilhqot'in people have been going to Tsuniah for spring fishing since before her time24I , (which would have been before 1846i42 The Cox map of 1864 contains an annotation southeast ofTsuniah Lake (called Sooneat. 1.): "Certain to find Indians at this point early in Spring.,,243 In the zo" century, people camped around the lake as an early spring fishing camp".

246 125. There are ancient Tsilhqot'in245cremations sites and historic era Tsilhqot'in burial sites at both ends ofthe lake. 247 Nezulhtsin, a warrior in the Chilcotin War, is buried at the north end ofTsuniah, and Tsilhqot'in ceremonies have been held at the site, and a structure was put up over the grave to mark the location.f'". Tsilhqot'in people respect those placesr'", and have been upset by the fact that the Tsuniah Lake Lodge was built on top ofthe gravesites, and, and the airport

to the cabin on the reserve. See: ChiefRoger William - cabin on the reserve at Tsuni?ad, Jan 7/04 p 3 In 35 - P 4 In 17. 240 Norman George Setah, Nov.30/04 - p.2I(45) - p.22(33) 241 Exhibit 0162, Affidavit #3 ofDoris Lulua, July 23, 2004, at para. 15. 242 Annie was born ca. 1849 and died in 1937 (Dewhirst, Exhibit 443, page 70, para. 285). Doris Lulua's reference to a time before Annie's time must, therefore, refer to a time prior to 1849. See also Dewhirst, Exhibit 441, volume I, pages 16, 17 (chart) and 18. 243 Ex. 0265-1864/00/00.002 [ formerly 1864/00/00.003] (Cox map ofTsilqhot'in War). Note that this map states it is "from a map originally drafted by Indians Alexis and ?Valos as interpreted by Mr. Ogilvy", 244 Doris Lulua, Exhibit 0162, para 8 - 10. Harry Setah, Oct 13/04 p 61 In 4-26. Ubill Lulua, Exhibit 0013, Affidavit #1 ofTheophile UbiII Lulua, November 20, 2002, at paras. 108, 131. 245 Norman George Setah, Nov 30/04, page 19, line 7: 5 Q Have you been taught what people were cremated or 6 buried at this gravesite and cremation site? 7 A They're Tsilhqot'in. 246 Jamadis is buried there. Eliza William, Exhibit 0 I 05, para. II. "lots ofgraves" -- Ubill Lulua, Exhibit 13, Schedule I, Ts'uni?ad Biny, item 58. Norman George Setah, Nov 30/04, page 17, line 32-34. The ancestors cremated - the practice ofburial is more recent - Norman George Setah, Dec. 8,2004, page 16, line 44 to page 17, line 10. Francis William: cremation was practiced by the ancestors, burial is more recent May 27/04 p 5 In 13 - P 6 In 2. 247 Chief Roger William -Ihiz qwen yex and cremation sites at Tsuni'ad, Sept 12/03 P 57-60. Sites G, F, and Ab on Exhibit 15 DIG. 248 Ubill Lulua, Apr. 14/04, p. 51, lines 3 tol2. Nezulhtsin's gravesite is at Tsuni?ad. Doris Lulua, Exhibit 0160, para 27. Mabel William Exhibit 0174, Affidavit #2 ofMabel William, September 3, 2004, at para 37(i). Chief Roger William Oct 22/03 p 42 In 18to p 44 In II. ChiefRoger William explains who Nezultsin is; his gravesite at Tsu Talh?ad, Jan 9/04 p 34 Ins 2-15. 249 Exhibit 0162, para 15: "The reason she taught me about the cremation site and the burial site was so that we would not camp on those places."

45 for the lodge was built on top of lhiz gwen yex and the cremation sites. 25o The Ihiz gwen yex at the north end were also built over by an airport (the Merritt airport)251

126. Between Tsuni?ad and Four Mile is the lady that turned into a rock - an important spiritual site for Tsilhgot'in people.252

127. Even Canada has admitted that the evidence shows that Tsilhgot'in people had a presence in this part ofClaim Area in the middle ofthe 19th ccntury.v'

?Elhghatish

128. ?Elhghatish, is a place ofancient and modern Tsilhgot'in occupation between the Twin Lakes, Elkin Lake and Vedan Lake. Lhiz gwen yex that were occupied by the ?essggidam ancestors are known to be there 254 Captain George's family had a fishing site at ?Elhxatish where they constructed a pine windbraker as a shelter at their fishing site. 255 Martin Quilt identified this location, given place name #36, and said that the name means "between the lakes".256 Martin Quilt's sister, Rosie Pierce257and her husband have a cabin at ?Elhxatish.258

250 Ubill Lulua, Apr. 15/04, p. 45(11) - (34). See also: Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20, 2002, at para. 51, "They were pretty upset that the lodge built right on top ofthe Ihiz qwen yex." 251 Apr. 14/04,p. 49(5) - 51(21). 252 ChiefRoger William, Oct 22/03 p 51 In II to p 53 In 2. 253 Canada's Submissions for June 28 and 29, 2004, (signed June 25,2004 by Mr. McLaughlin), para. 135: "At tab 1864 of exhibit 22 there is a map which was drawn in or around 1864 by one oftbe people who were sent to find the killers of the road crew. The map shows a Tsilhqot'in fishing site at the location of the present Xeni Gwet'in reserve known as Tsunnih Lake No.5. It refers to land which is at least in the general vicinity of the Claim Area as "hunting grounds". It appears to indicate that the mountains south of the Nemiah Valley were used as hiding places by the fugitives. By 1864, therefore, there was at least some sort of Tsilhqot'in presence in the claim Area." (The document referred to as part of Exhibit 22 is now Ex. 0265-1864/00100.002). 254 Chief Roger William - pit home at twin lakes, Sept 12/03 P 64; 68. lines 28-40. 255 Ubill Hunlin -- Mar. 9/05, p. 30(8) - 31(2). 256 Transcript ofdeposition of Martin Quilt, July 9, 2002, paragraphs 495 to 506. 257 Born March 22,1941, great granddaughter ofQuill, born 1846. see Exhibit 0441, Expert Report ofJohn Dewhirst, September 2004, Vol 2, Tab D, Tab I. Rosie Pierce's mother is Eliza William, the daughter ofAnnie Elkins and Sam William (Sam Bulyan), and her great great grandparents were Kahkul and Elizabeth. She and Chief Roger William are first cousins. See Exhibit 0441, Expert Report ofJohn Dewhirst, September 2004, Vol. I, page 28 (Chart 4). 258 Chief Roger William - Oct 22/03 P 20, line 16, marked as "R" on Exhibit 15DlG.

46 129. Rosie Pierce applied for a disposition of Crown land at ?Elhxatish for a house site.259 She was asked by the Crown Lands office to give reasons why she should receive this land.26o Her reply says (in part):

"1. I am a chilcotin indian who was born and raised in this area. 2. I am now married to a white man and can no longer claim Indian rites. 3. I would like to have this as a home site, garden and room to keep two or three horses for our own use. 4. Much of my family and friends live in this area and would like land of my own to call a home. 5. The land in question has been a garden ground for my family for many years. " 261

130. (The problem cited in paragraph 2 ofher letter was corrected with the 1985 amendments to the Indian Act, which brought the previously discriminatory status and membership provisions ofthe Indian Act into conformity with the Charter.) After she received her lease she attempted (unsuccessfully) to have it transferred to the Xeni Gwet'in band in 1989.262

131. Thus, for this site, as for so many others, the time depth is established. This is a place where there were pre-contact Tsilhqot'in pit houses. It is a place where seasonal use and occupation persists in the 20th century, and is currently occupied by a Tsilhqot'in person with a family connection to the area deep into the 19th century, who at one point expressed the wish to have title transferred to the Xeni Gwet'in band.

Tsanlgen Biny (Chaunigan Lake)

132. Between Tsuniah Lake and ?Elhghatish is Chaunigan Lake, (Tsanlgen Biny, place names 37,118). The Tsilhqot'in ancestors occupied Tsanlgen Biny pit houses. 263 Martin Quilt

259 Ex. 594-L4669-1974/03/08.00 I. 260 Ex. 594-L4669-l974/07117.001. 261 Ex. 594-L4669-1974/07/31.001. 262 Ex. 594-L4669-1989/03/28.00 I 263 Gilbert Solomon, March 17,2005, page 8, lines 18-22. The pit houses are shown on Exhibit 515, and on Exhibit 371DIG.

47 discussed those pit houses in his deposition evidence, mentioning that one ofthem was found to have human bones in it.

The Western Trapline (except the portion in the Brittany)

Little Eagle Lake

133. Little Eagle Lake, known in Tsilhqot'in as Lhuy Nachasgwengulin, is a Tsilhqot'in village site, cabin and camping site from a time prior to sovereignty to the present day. There are about 10 or 12 underground houses where the Tsilhqot'in ancestors (the ?Esggidam) used to live2 64 They are now caved in, but more than 50 years ago, when Norman George Setah first saw them, some ofthe structures were intact, complete with the notched pole used as a ladder to enter and exit the house2 65 Also at the west end ofLittle Eagle Lake Tsilhqot'in people maintained a cabin2 66 The same location was used as a camp site by Tsilhqot'in people in the early zo" century.i'"

Gwedzin

134. Gwedzin, place name #85, also known as Gwedzin Biny, place name #24, Quitzee Lake, or Cochin Lake, is a Tsilhqot'in village site and resource site from a time prior to sovereignty to the present day.

135. In 1875 Dawson noted that his map indicated a village site at the SE end of the lake, but he described it as an abandoned camp, with several fish traps cached in the bushes'".

136. Tsilhqot'in people have lived there since the time ofpit houses, and are understood to own the area269 Gwedzin is connected to Potato Mountain and Tatla Lake by ancient Tsilhqot'in

264 Norman George Setah, Oct. 22, 2004, page 18, line 34. 265 Norman George Setah, Oct. 22, 2004, page 17, line 41 through page 19, line 3. The location is marked as "CL" on Exhibit 209 DIG. 266 Norman George Setah, Oct. 22, 2004, page 14, lines 1 -19, marked as "CJ" on Exhibit 209 DIG. 267 Norman George Setah, Oct. 22, 2004, page 17, line 43-45 (and following). Also nearby: Exhibit 0013, Affidavit # I ofTheophile Ubill Lulua, November 20,2002, at paras. 161, 192. 268 Tsilhqot'in Geographic Features: re Cochin Lake, Exhibit 0240, Expert Report ofKenneth Brealey, September 22,2004, at 57

48 ancestral trials from the time ofthe ?esggidam270 It is a place where Tsilhqot'in people would live and catch fish:

46 People used to live at Gwedzin, put gill nets out 47 on the lake, catch the fish and dry the fish. 2 71

137. Many Tsilhqot'in people would go to Gwedzin for early summer fishing, camping all around the lake, often on their way to Potato Mountairr". It was a gathering ofmany Tsilhqot'in people273

138. The area around Gwedzin has been a late fall hunting camp, where Tsilhqot'in people would hunt for deer moving offthe mountains onto the flat lands for the winter 274

139. Some Tsilhqot'in people have lived at Gwedzin all year 10ng. 275 Tsilhqot'in people have cabins there.276 Tsilhqot'in people have planted gardens and made a root cellar there.277

269 Chief Roger William, speaking ofthe Lulua family cabin at Gwedzin, Oct. 22, 2003, page 18, line 34 through page 19, line 3. 34 Can you tell me who owns that place?

35 A When you mean "place, II you mean the cabin? 36 Q The cabin, yeah. 37 A Or the area, or ... 38 Q The -- the cabin. We'll start with the cabin. 39 A Being a trappers cabin and being that the family 40 that uses it is ~- that's the same -- the same 41 family I was mentioning, that they've been using 42 and occupying the land for a long time. Again, 43 based on my testimony -- earlier testimony saying 44 that families would go back to the same area every 45 year, they would be living in pit homes in the 46 winter, that I would say that the same family I 47 was mentioning, including Dave Lulua, would be the 00019 1 ones that ~- that everyone would understand and 2 know that it's their area. It's -- that they 3 occupy that area. (emphasis added) 270 Exhibit 0174, Affidavit #2 ofMabel William, September 3, 2004. at para 31. 271 Norman George Setah - Oct. 20, 2004, page 4, lines 46-7. 272 Exhibit 0174, Affidavit #2 ofMabel William, September 3, 2004, at para 31. Exhibit 0013, Affidavit #1 of Theophile UbiIILulua, November 20,2002, at para 122, 123. Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 22. 273 See Norman George Setah's long listing ofpeople who would come to Gwedzin, Oct. 21, 2004, p. 8, lines 4 through page 11, line 26. 274 Exhibit 0173, Affidavit # I ofMabel William, July 23, 2004, at para. 20.

49 140. Tsilhqot'in people are buried therem .

141. Further north in the Claim Area from Gwedzin is a hunting site where Tsilhqot'in people camped and hunted as late as November2 79

Chezqud, ?Edibiny, Naghatalhchoz, Tsi Tis Gunlin and Tsi gheh ne?eten

142. Following is a discussion ofthe Eagle Lake area, from Chezqud in the west to the Chilko River in the east. Tsi T'is Gunlin as already been discussed in some detail above. A discussion of the other three areas follows. Sometimes the word Naghatalhchoz is used to describe this entire area. Important admissions by Canada and British Columbia as to the existence of aboriginal title in this area are included in the text below.

275 Exhibit 0162, Affidavit #3 ofDoris Lulua, July 23, 2004, at para. 21 re: Tsilhqot'in person ?Ighelqez. and Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 23 re: late Emily Lulua (Emily Ekks). 276 Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20. 2002, at para 121, 122. "My brother Oggie has had a cabin there for the last 60 years." "My mom's cabin was on the east ofGwedzin. My cabin is there too." See the location ofthese cabins on Ex. 13D1G "A". David Lulua's cabin, Sept 7, 2004, page 28, lines 10-30. David Setah marked a trapper's cabin as BL on Exhibit 258D1G (transcript ref. Jan 18,2005, page 12, line 20). Chief Roger William marked the Lulua cabin as "M" on Exhibit 15 DIG. See Oct 22, 2003, page 16 line 36 to page 17, line 6: 36 Q Have you seen Dave Lulua1s house at Gwedzin? 37 AI believe the house that he would stay in would be 38 the ones that late Emily and Donald Ekks would 39 stay in and use, the ones that Xeni Gwet'in member 40 Ubill and Julianna Lulua and family would use 41 every year, and I believe that cabin there is also 42 a trappers cabin. 43 Q Who uses it as a trappers cabin, Chief Roger? 44 A That would be the -- the same family live 45 mentioned. 46 Q The same family? 47 A Yeah. 00017 1 Q And have you -- have you seen where that place is? 2 Would you be able to mark it on the map? 3 A Yes. live been there. 4 Q Could you mark the location of that cabin at 5 Gwedzin, please. And it will be letter M, as in 6 Michael. in Norman George Setah, Oct. 21,2004, page 8, line 3; page 10, line 44; page II, lines 32-34. 278 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 21-23 re: Tsilhqot'in person ?Ighelqez buried there. 279 UbiII Lulua - Fall time camp occasionally at Old Saw Mill (i.e. near Lhuy Nachasgwengulin or Little Eagle Lake), Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20,2002, at paras. 161, 192

50 Chezqud

143. Chezqud (place name #199) is a place where the Tsilhqot'in ancestors stayed. 280 Many TSI'1 hqot'in.peop I e use d to camp t h ere.281 Th ere IS .a bi ig cremation . andb'unaI Slit e th ere282 , indicating significant depth ofTsilhqot'in occupation. It may have other types ofancient sigru. .fi rcance, 283

?Edibiny

144. The small narrow lake southwest ofNaghatalhchoz Biny is ?Edibiny, also known as Edi Biny, or ?Ediny Biny, place name #139. The Tsilhqot'in ancestors lived in underground houses 284 285 there. Minnie Charleyboy lived in a niyah qungh there , which, as counsel for Canada admitted, is "determinative" ofthe title issue 2 86 In the zo" century there are cabins and places where people put up tents for seasonal resource use.287

145. John Dewhirst visited this location and gives us a good description ofthe camp and the more permanent structures and dwellings found at this location.i'" John Dewhirst's photograph

,"0 Minnie Charleyboy, March 3, 2004, page 12, line 30-39. 281 Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 71. 281 Exhibit 0162, Affidavit #3 ofDoris Lulua, July 23,2004, at para 73. 283 Tsilhqot'in Geographic Features: re Chezacut - various evidence re camps & lodges, including potentially one of McDougall's "25 Lodges' in 1822; "it is clearly also one ofthe 'shooting stations' Smith said belonged to Alexis's p,eople in 1872, Exhibit 0240, Expert Report of Kenneth Brealey, September 22, 2004, at 54. "Nonnan George Setah, Nov. 8,2004, page 37, lines 37-47. 285 March 3, 2004, page 53, lines 3 to 10. Minnie Charleyboy describes the niyah qungh on March 4, 2004, page 3, line 21 through page 10, line 2. Exhibits 13I and 132 were identified by her as photographs ofmodels ofa niyah qungh like the one she lived in. 286 March 4,2004, page 4, line 17-18. 287 Norman George Setah - his family and many others would camp at ?Edibiny for fishing in the spring time, Oct.21104 - p.22(38) - p.25(38). See solid red line marked "AW" on Exhibit 208 DIG. Patrick and Minnie Charleyboy have a cabin there, marked as "L" on Chief Roger William's Exhibit 15 DIG, se transcript Oct. 22, 2003, page 15 lines 5 - 32. Ubill Lulua, Exhibit 0013, Affidavit #1 ofTheophile UbiII Lulua, November 20, 2002, at para. 183. See Ex. 13 DIG "A", items 6, 7 for UbiIl Lulua's locations. Mabel William has camped there in the Fall for kokanee fishing and deer hunting - Exhibit 0174, Affidavit #2 ofMabel William, September 3, 2004, at para 31 (ii). 28S Dewhirst, October 13,2005, page 65 as follows: 00065 1 A On the first day of my trip I went to the Lulua 2 camp at ?Edibiny. This is another one of the 3 Lulua family camps. And ?Edibiny is this little 4 lake on the southwest side of Big Eagle Lake, and

51 #I of Exhibit 447 shows the contemporary camp ofMinnie Charleyboy at Edi Biny. Photos 2 through 6 are at the same place, and show the method ofpreparing salmon and deer for winter storage.

Naghatalhchoz

146. Naghatalhchoz, place name #22, is also known as Chelquoit Lake or Eagle Lake. David Dinwoodie said ofEagle Lake: "that was a really important area,,289 which probably understates the case290. Tsilhqot'in people have lived at Naghatalhchoz for generations, and there is a large amount ofphysical evidence oftheir houses. A glance at the "shape file" map, Exhibit 544, shows the large number ofarchaeological sites in the area, much ofit the work ofDr. Matson. The primary conclusion ofDr. Matson's work in this area was that these were Tsilhqot'in sites.

147. The time depth of continuous Tsilhqot'in occupation ofNaghatalhchoz Biny is demonstrated by the existence oflhiz qwen yex (from ancient times), niyah qungh (from the 19th century), and zo" century cabins. Lhiz qwen yex and niyah qungh are winter housing, indicating that this was home to the Tsilhqot'in people who lived in those houscsf".

5 you can see it here. And at the outlet from 6 ?Edibiny there's a little creek that flows out of 7 ?Edibiny into Big Eagle Lake. And at the outlet 8 of the lake, and in fact right at the end of this 9 road that's shown on the map, is where the Lulua 10 family camp is, where Minnie Charleyboy, her 11 husband, Patrick Charleyboy, and son Orrie 12 Charleyboy were staying at the time I visited 13 that -- them. And this photograph number 1 shows 14 Minnie Charleyboy's drying rack, which is at the 15 camp. At the camp there was a cabin, which is not 16 shown in the photograph. There was a corral with 17 about half a dozen horses. There was farm 18 machinery, a lot of farm machinery around the 19 camp, an outhouse, and a well-developed road that 20 went into the camp. 289 Transcript, Day 178, page 22, line 45-46. 290 Tsilhqot'in Geographic Features: re Choelquoit Lake - "This was an important encampment in its own right. .. Lane mapped pithouses on its south shore in 1953 and on at least one occasion seems to have suggested that the people constituted an independent band.", Exhibit 0240, Expert Report ofKenneth Brealey, September 22. 2004, at 57. 291 Apr. 2/04, p 14(28) - (33).

52 148. There are Ihiz gwen yex on the south side ofNaghatalhchoz Binl92 Sa nagwedijan is the Tsilhgot'in name for one ofthe ancient pit house sites293 The ancestors ofthe Plaintiff and other members ofthe Xeni Gwet'in occupied these pit houses'".

149. Eileen El1enLulua and her son Edward lived in a niyah gungh at Naghatalhchoz Biny in the mid_I920's295. Mabel Wil1iam has seen a niyah gungh at Naghatalhchoz Biny that was 296 rotten, and the logs had fal1en in She saw it around 50 or 60 years ago. For the logs to rot and fal1 in, this niyah gungh must have been built and in use in the early zo" or late 19th century.

ISO. Nezulthsin (also known as Jamadisr" lived around Naghatalhchoz, among other places.298 Here is what Doris Lulua said about Nezulhtsin:

"25 Jack's mother's name was Annie. I don't know what Jack's father's name was. But after Jack's father died, Annie's second husband was Nezulhtsin, He protected this area - when white people came here, he killed off the white people. I don't remember Nezulhtsin myself, but my cousin Henry Lulua would tell those stories about Nezulhtsin protecting this area. Annie lived around Naghatalhchoz all her life, and Jack's father was living around here too - not too far away. Annie's grave is over at Naghatalhchoz, at TSi Ch'ed Diz?an. Nezulhtsin's niyah qungh was near the gravesite at Tsi Ch'ed Diz?an.,,299 lSI. John Dewhirst and others help us fil1 in some ofthe blanks here. Jack's father was Nunsulian, who was born before 1850300 Annie's second husband, Nezulhtsin, was born around 301 303 1824 to 1827 Annie, a Tsilhgot'in, was "very 01d,,302 when she died in the 1930s ,

292 Two sites marked on Exhibit 144 DIG by Ubill Lulua - B2 and Tl , Ubill Lulua - Apr. 14/04, p. 52(8) - (44). 293 Ubill Lulua, Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20, 2002, at para. 54. Marked as #32 on Exhibit 13 DIG "A" and B2 on Ex. 144 DIG. 294 Chief Roger William, Sept 12,2004, page 70, lines 4 - 27. 295 Ubill Lulua - Niyah qungh at Sa Nagwedijan; Apr. 2/04, p. 12(44) - 14(33), and Dewhirst, Exhibit 0441, page 17 (chart) for dates - Edward was born 1922, and lived in the niyah qungh when he was 4 or 5 years old. 296 Exhibit 0173, Affidavit # I of Mabel William, July 23, 2004, at para 35. 297 Dewhirst, Exhibit 0441, Expert Report ofJohn Dewhirst, September 2004, Vol I, page 16. 298 Exhibit 0105, Affidavit #1 ofEliza William, June 3, 2003, at para. 15. 299 Exhibit 0160, Affidavit #1 of Doris Lulua, March 23, 2004, at para. 25. 300 Exhibit 0441, Expert Report ofJohn Dewhirst, September 2004, Vol I, page 16, 17 (chart), and 18. 301 Exhibit 0443, Expert Report ofJohn Dewhirst, August 8, 2005, at para 289. 302 Exhibit 0105, Affidavit #1 ofEliza William, June 3, 2003, at para. 8. 303 Exhibit 0441, Expert Report ofJohn Dewhirst, September 2004, Vol I, page 17 (chart).

53 suggesting that she may have been alive prior to the date of sovereignty. Nezulhtsin and Annie lived in a niyah qungh.

152. Hi Cli'ed Diz?an, place name #160, is a burial site near Naghatalhchoz where Tsilhqot'in people, particularly the Lulua family, are buried 3 04 Ubill Lulua's account is particularly poignant and, the Plaintiff says, determinative:

"Jack Lulua died about 1947, and he's buried at the graveyard at Naghatalhchoz. Jack Lulua was Tsilhqot'in - he was born about a mile west of the graveyard, where there used to be lhiz qwen yex (underhouses). That place is called Tsi Ch'ed Diz?an.,,30s

153. Taken together with the other evidence about Naghatalhchoz, the time depth and cultural connection rings clear. Jack Lulua, (whose Tsilhqot'in name was Hadediny), the son ofAnnie and Nunsuliarr'[", was born in 1870 - 1873307a mile from where he was buried in 1947, laid to rest on land widely acknowledged to be the ancestral Lulua family place, where he lived all his

J08 life , where the ancestors ofthe Lulua family lived in pithouses, where their more recent ancestors lived in niyah qungh, and where they still today have cabins and houses. There is no stronger argument for aboriginal title under the tests established by the Supreme Court of Canada, than such facts.

304 Marked "J" on Exhibit 15 DIG, see Sept 12,2004, page 70, lines 35 to 45. Annie, wife ofNunsulian and Nezulhtsin, who was "very old" when she died, was buried there - Exhibit 0105, Affidavit #1 ofEliza William, June 3,2003, para. 8. Annie and Nunsulian's son Jack Lulua, a.k.a. Hadediny, was buried there - Exhibit 0160, Affidavit #I of Doris Lulua, March 23, 2004, at para 18; Norman George Setah - Re: Hadediny, OCl.21/04 - p. I7(36); Ubill Lulua, April 1,2004, page 43 line 26 and following. Lashway Lulua, Tommy Lulua, Tommy Setah, Donald Ekks, Emily Ekks, Henry Lulua, Scotty Lulua and Edward Lulua are buried there. Exhibit 0173, Affidavit #1 ofMabel William, July 23, 2004, at para 35. Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20, 2002, at paras. 5, 6, 57,106. See site marked #72 on Ex. 13 DIG "A" by Ubill Lulua. Re: Emily Ekks and Donald Ekks, Ubill Lulua, Apr. 1/04, p. 45(14) - (29). Exhibit 0158, Affidavit #2 ofFrancis William, April 30, 2004, at para. 53, reo Tommy Setah (Tsiqun) buried there. Norman George Setah, Ocl.21104 - p.31(44) - p.32(12). 305 Exhibit 0013, Affidavit #1 ofTheophile Ubi II Lulua, November 20,2002, at para. 106 (part). See, similarly, Exhibit 0105, Affidavit #1 of Eliza William, June 3, 2003, at para 6 "My father was Jack Lulua, but he died over 50 years ago and is buried at Naghatalhchoz. He was Tsilhqot'in." 306 After Nunsulian died, Annie married Nezulhtsin, a warrior in the Chilcotin War. 307 Dewhirst, Exhibit 0441, Expert Report ofJohn Dewhirst, September 2004, Vol I, page 17 (chart). 308 Exhibit 0160, Affidavit #I of Doris Lulua, March 25, 2004, at para. 19.

54 154. Cabins, camps and fishing sites ring the lake. People alive today talked oftheir use ofthe lakeshore and the entire area surrounding the lake309 It is particularly significant that members ofthe Lulua family continue to use their ancestral homeland for fishing, hunting and a wide range ofother activities on the land.'!"

155. The homes ofDoris Lulua is Tsi gheh ne?eten, just a few miles south ofthe east end of Naghatalhchoz Biny. An airstrip has been built nearby. These elders are living on land occupied by their ancestors for many generations. The Chilko River/ Naghatalhchoz area is a major centre ofancestral Tsilhqot'in life (Matson, Lane and others). Tsi gheh ne?eten is at a main trail linking ancestral communities at Gwedats'ish (the mouth ofChilko River) and Biny Gwechugh (Canoe Crossing) with those downstream on the Tsilhqox (Chilko River), and at Naghatalhchoz (Choelquoit Lake), It connects to other trails, including to Chunoz Ch'ed (Potato Mountain), Gwedzin (Cochin Lake), Tsuni?ad(Tsuniah Lake), Xeni(Nemiah) and Telhiqox (Tatlayoko). This main trail is also part ofa network used to access areas seasonally for hunting, fishing, mountain potato, berry and medicine gathering as part ofTsilhqot'in survival on the land.311

156. Doris Lulua's house is offreserve within the Claim Area. The Xeni Gwet'in First Nations Government recently built her a new house close to her old house, and both houses are offreserve. Doris Lulua pays no rent to the Crown, and the band assists her in dealing with the Lands Branch in that regard. 312

309 See, for example, the extensive use documented by Norman George Setah, in Exhibits 208 DIG, 211 DIG, 213 DIG, for the lakeshore itself, and 207 DIG, 209 DIG, 210 DIG, and 212 DIG for use ofthe entire area surrounding the lake. This is just one witness ofmany. See Ubill Lulua - Camp next to Naghatalhchoz at Tetlatich'ed for hunting and fishing, Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20, 2002, at sched. I re Naghatlalhchoz, marked as #5 on Exhibit 13 DIG "A". Chief Roger William marked cabin "L" on Exhibit IS DIG, where he himself has stayed, and where Patrick and Minnie Charleyboy have stayed. JIO See especially, Ubill Lulua, Ex. 13 DIG "A", 13 DIG "B", 142 DIG, 144 DIG, and associated transcript evidence. 311 Exhibit 0160, Affidavit #I ofDoris Lulua, March 25, 2004 at para. II; Exhibit 0161, Affidavit #2 ofDoris Lulua, March 25, 2004, at para. 2. 312 ChiefRoger William, Oct. 22, 2003, page 3, lines 15 to 19 15 out. The Lulua properties, Doris, Casimir, 16 Madeline, they haven't made any payments and we've 17 instruct them and supported them and will assist 18 them in that situation. So we've wrote letters to 19 that account. Also, Chief Roger William, Oct. 22, 2003, page 13, line 27 27 AI think I know where this area is just by looking

55 313 157. Finally, Naghatalhchoz is the place where McLean was killed and buried . In light of what non-Tsilhqot'ins now know about the deep connection ofthe Tsilhqot'in people to this land, and the Tsilhqot'in history ofexcluding those who would usurp their interests, (see Doris Lulua's account of Nezulhtsin's role above), one can perhaps, with the hindsight ofa century and a half, understand the Tsilhqot'in perspective. McLean was not in an empty land. On all sides ofthe place he died are found the physical remains ofTsilhqot'in occupation ofthe land. He was about as welcome that deep in the heart ofTsilhqot'in territory as Napoleon at Moscow.

158. The British Columbia Crown surveyor declared that Indian cabins at Naghatalhchoz were "owned" by Indians. Mr. Taylor, the surveyor in 1910 ofDistrict Lot 357, which is adjacent to the south east end ofNaghatalhchoz Biny, swore a solemn declaration attesting to certain facts, including that Lot 357 had Indian cabins: "The Indian cabins below shown owned by a ... siwash .. , [balance barely legibleJ,,,314 In March, 2006, the Defendant B.C. admitted that the Plaintiff has identified some areas where the Plaintiff's ancestors' activities might be considered sufficiently regular and exclusive to comport with title at common law. 315 Ifthe Defendant B.C. was referring to any places in particular, given the overwhelming strength ofthe evidence just referred to, one could assume that British Columbia was intending to include Tsi T'is Gunlin, Naghatalhchoz, ?Edibiny, Chezqud and Tsi gheh ne?eten in the list ofplaces where "title at common law" has been proven.

28 at the maps. The only thing on this map, it 29 doesn't show if there'S that air -- airport or 30 that airstrip there. And I believe that's the 31 area that Doris Lulua still stays, and that's the 32 area that Xeni Gwetrin First Nations Government 33 built her a cabin in that area this past summer, 34 in that area, property. Madeline and Casimir now 35 stay at, I was showing you earlier in testimony, 36 northeast of Naghatalhchoz at letter I on what we 37 call the Chilko River Road. So no, they're not 38 staying there now, but their sister Doris Lulua 39 still stays there. 313 One ofthe accounts comes from Patricia Guichon: May 11/05 p 18 Ins 33-37. Minnie Charleyboy, March 3, 2004, page 13,lines31-43. 314 Ex. 594-C0357-191O/07/00.001. The sworn declaration is at page 2113648, the affidavit is at page 2113682, and the statement about ownership ofeabins by a "Siwash" is at page 2113645. 315 Opening Address ofthe Defendants, Her Majesty the Queen in Right ofthe Province ofBritish Columbia (etc.), March 20, 2006, paragraph 29.

56 Historical note: Canada's attempt to purchase portions of Naghatalhchoz and Tsi T'is Gunlin for the Nemiah Valley Indian Band in 1950

159. In 1950 the Defendant Canada attempted to purchase lands in Naghatalhchoz and Tsi T'is Gunlin from the Defendant B.C. for the benefit ofthe Nemiah Valley Indian Band.

160. (A note on the geography: The eastern end ofNaghatalhchoz Biny is just two miles from the Chilko River. District Lots 348 and 349, each approximately one mile square, are adjacent, with the western boundary ofLot 348 bordering the Lake and the eastern boundary ofLot 349 bordering the River about a mile south ofTsi T'is Gunlin. The relationship is shown in the map th attached to the August 9 , 1950 letter from W.S. Arneil, the Indian Commissioner for B.C. to the provincial Superintendent ofLands.r'!"

161. On January 25,1950 Canada wrote to B.c. asking the price offour Lots for the Nemaiah Valley Band ofIndians "to meet their requlrements'V'" The Province wrote back saying that most ofthe lands were held under lease by Mr. Duke Martin, but asking if Canada would like to purchase the available portions.i" On August 9, 1950 Canada wrote back saying that the lands held under Mr. Martin's lease were in fact the lands most desired, and asked that B.C. cancel Mr. Martin's lease so the transaction could go ahead 3 19 The map attached to Canada's letter shows the "main Trail to Chilco River" cutting through most of the lots. In a report dated February 16, 1956 the Province noted as follows:

"The local Indians ride through this area to camp at Tommy Lulu's place (see sketch) and near cabin on South boundary of Block A of Lot 349A. Usually they camp here during the Salmon run in the Chilco River."

"The Indian Affairs Department have made known their wish to purchase some of the River bottom land for purposes of hay growing and pasture. They hoped to winter stock there and later, during the summer, range them in the Nemaia Valley approximately 25 miles distant."

)]6 Ex. 594-C0346A-1950108/09.00 1. )]7 Ex. 594-C0346A-195010 1/25.00 1. ]18 Ex. 594-C0346A-1950102/10.001. ]19 Ex. 594-C0346A- J950108/09.00 1.

57 "The applicant [Duke Martin] does not wish to lose any part of his lease to the Indian Affairs Department. He points out that he has no objection to the Indians camping on his lease and no objection to Tommy Lulu's continued residence in the cabins noted on the attached sketch."J20

162. In a further memo dated February 20, 1956 Mr. Paulson notes as follows:

"In this case, by allowing the Indians a "toehold" within Duke Martin's leased land, the tendency for them to run cattle on Duke's open "leased" land would not be unlikely as they have run horses thereon previously."J21

163. No sale to Canada took place. The above events demonstrate the persistence of the Lulua family's occupation ofthis place. But the story also demonstrates the need for a Declaration by the Court. Although Canada has, on occasion, sought to protect some ofthe land interests ofthe Tsilhqot'in, without an Order from this Court, Canada will not stand up to the Province's objections to Indian title. As for the Province, the Duke Martin incident is but one example that the preferences ofnon-Indians have been given priority, and a Declaration is needed to force the Province to take the Indian interest seriously.

Talhiqox Biny (Tatlayoko Lake)

"Those potatoes come from ?Eniyud." Patrick Alphonse, Ex. 437, para. 25.

164. Talhiqox Biny, place name # 23, known in English as Tatlayoko Lake, is a place of J22 J23 ancient Tsilhqot'in legend , and an ancestral Tsilhqot'in living site. ?Eniyud, wife of Ts'il?os, overlooks Talhiqox from the west side ofthe lake, where she turned into a mountain. There is no doubt that this is a site ofancient Tsilhqot'in occupation. Morley Eldridge said that

320 Ex. 594-C0346A-1956/021l6.00 I. 321 Ex. 594-C0346A-1956/02/20.00I. 322 Patrick Alphonse, Exhibit 0437, para. 25. m Francis William, Exhibit 0158, Affidavit #2 of Francis William, April 30, 2004, at para 56. Ken Brealey - The Chilcotin War (I 864): "On Aug 8th, meanwhile, Brew's party departed for Tatlayoko Lake, and on the 12th made a camp some 2,000 feet up the west slopes ofthe Potato Range .... search parties were dispatched up the various gaps through the range, but few Tsilhqot'in sightings were made. From there Brew worked down the east side of Tatlayoko, coming across a recently abandoned Indian encampment." [NB: by mid-August, the Tsilhqot'in are no longer customarily at Potato Mtn; they're customarily on the Tsilhqox river, fishing.], Exhibit 0240, Expert Report ofKenneth Brealey, September 22, 2004, at 42, and see Brealey's fn. 32. This might be the same village site as referred to by Francis William, Exhibit 0158, Affidavit #2 ofFrancis William, April 30, 2004, at para 56, above.

58 the archaeological site ofa Tsilhqot'in village at Tatlayoko Lake showed the "clearest link of historical documentation to specific archaeological evidence,,324

165. In this area were Indian hunting grounds and "Klatsassiu's favourite hunting and fishing territory,,325 Tsilhqot'in people have continued to live in the area or use it for resources in the 19th century'i" and through the zo" centuri27to the present day328

166. Tsilhqot'in people have camped in the Stikelan Valley, offthe south-east end ofTalhiqox Biny, in the 20th centuri29, and probably in the 19th century as well. 330

Potato Mountain or Tsimol Ch'ed

167. On their annual summer trip up Potato Mountain, Tsilhqot'in people from several different communities camped at K'anlh Gunlin, place name #164. The time depth ofTsilhqot'in use ofthis place is illustrated by Doris Lulua's reference to an old gravesite ofa Tsilhqot'in person there.

324 May 12, 2006, page 81, line 23 to page 82, line I. sas Tsilhqot'in Geographic Features: re Tatlayoko Lake - "Information on Tsilhqot'in use ofthe lake itself in the pre- or early-contact period is limited. (fn. 275) However, Waddington mapped in 1863 a 'village and horses', and MacFie in 1865 a 'village', at the north end ofthe lake. Cox's 1864 maps showed the ranges to the east as the "Indian hunting grounds,' and to the west as "Klatsassin's favourite hunting and fishing territory,' ...", Exhibit 0240, Expert Report ofKenneth Brealey, September 22, 2004, at 75, inc!' fu. 275. 326 Exhibit 0105, Affidavit #1 ofEliza William, June 3, 2003, at para 15. Jamadis lived here (and other places). J27 Camps towards Tahliqox for drying potatoes. Exhibit 0162, Affidavit #3 ofDoris Lulua, July 23, 2004, at para. 32. Gudilinchi or Yudilinchi and Tsi Se?an were camps where Donl Lulua's mum would pick berries - Exhibit 0162, Affidavit #3 of Doris Lulua, July 23, 2004, at para. 47. Norman George Setah described a tent with four log walls called a Ben gha ?elhch'e?altsil that his dad would set up down near Tatlayoko -- Oct. 20, 2004, page 26, lines 24 to 42. Ubill Lulua worked at the Lignum sawmill for 13 years [see Exhibit OI42DIG, G-I]; and stayed in the old Tatlayoko Lake school building, Apr. 2/04, p. 32(34) - 34(4), 34(46) - 35(8) J28 Doris Lulua still goes to the berry picking and potato drying camps where she went with her mum. Exhibit 0162, para. 47: "Last year me and my sister went over to Tsi Se?as. We picked dig. You can still see where my mum's camp was." 329 Ubill Lulua "I've been hunting at Goat Camp on Nats'ilhiqox (Goat Mountain) and in the Stikelan Valley", Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20, 2002, at para. 205, also Sched. 1 re Stikelan Valley, camping place marked #51 on Exhibit 13 DIG "A". 330 Tsilhqot'in Geographic Features: re Stikelan Creek - "This is probably at, or at least very near to, the abandoned "Indian encampment' Brew visited when he passed down the east side ofTatlayoko Lake looking for Klatsassin's men in J864.", Exhibit 0240, Expert Report ofKenneth Brealey, September 22,2004, at 72, inc!. fn, 239.

59 "One Tsilhqot'in guy died on the Mountain and he was buried right there where he died. I forget that guy's name. He was sitting on the horse and his wife was leading it and he got hit with a branch. He broke his neck. This happened when Tsilhqot'in people in this area had not had horses for very long. My mum also taught me that lots ofTsilhqot'inj?eople camped there even before the Tsilhqot'ins in this area had horses.":'

168. We know that Tsilhqot'in people on horseback met Simon Fraser in 1808. We don't know precisely how long it was before or after 1808 that Tsilhqot'in people in the Claim Area had horses. But it is clear from this information that Tsilhqot'in people have been using K'anlh

Gunlin since before the time ofsovereignty.332

169. Potato Mountain, Tsimol Ch' ed, place name #19, is the ancient Tsilhqot'in place for the summer potato harvest. Tsilhqot'in people from the Claim Area and from far outside it would gather on Tsimol Ch'ed every summer for the potato harvest. There are at least 12 additional places with distinctive (and sometimes deliberately humorous!) Tsilhqot'in place names on Tsimol Ch'ed, in addition to K'anlh Gunlin referred to above, where Tsilhqot'in would make their annual camps.333 The annual potato harvest and camp at Tsimol Ch'ed took place in ancient times prior to sovereignty'". during the 19th century, during the zo" century':", and it still takes place today336 There was a "stampede" held every Saturday and Sunday on top ofthe mountain during these times, and you can still see the markings where the races were held337. Tsilhqot'in have found artefacts from their ancestors on Tsimol Ch'ed that have sacred or

331 Exhibit 0162, Affidavit #3 ofDoris Lulua, July 23,2004, at para 27(a)(ii). J32 See also Exhibit 0162, Affidavit #3 ofDoris Lulua, July 23, 2004, at para 27(b) and (c). 333 See Doris Lulua's long description of each place in paragraph 29 ofExhibit 162. Ubill Lulua also refers to the fact that there are many names. "There are lots ofnames for on top ofthat mountain - it's too hard to say all of them. There's a different name for almost every place up there." Exhibit 0013, Affidavit #1 ofTheophile UbiII Lulua, November 20,2002, at para. 131. 334 Mabel Williams tells the long story ofthe invaders that took place at a time "before there were tents". Exhibit 0174, Affidavit #2 ofMabel William, September 3, 2004, at para. 32. Mabel William learned this story from ?Elegasi, who had learned it from Agnes. According to Exhibit 0441, Expert Report ofJohn Dewhirst, September 2004, Vol I, page 32 (chart), Agnes was born in 1870, , which together with the fact that there were no tents indicates that the events in the story are certainly pre-zu" century, and probably pre-sovereignty. 335 Exhibit 0173, Affidavit #1 ofMabel William, July 23, 2004, at para 17, 18. "60 to 70 people" would be hunting up there: Exhibit 0013, Affidavit #1 ofTheophile UbiII Lulua, November 20,2002, at para. 134. 336 Chief Roger William's long description and list ofnames and places is found at Sept 23, 2003, page 12 and following. 337 UbiII Lulua, Exhibit 0013, Affidavit #1 ofTheophile Ubill Lulua, November 20,2002, at para. 135,137.

60 medicinal value. 338 There is an extensive and ancient network oftrails linking the rest ofthe Claim Area and Tsilhqot'in territory to Tsimol Ch'edJJ9

170. Noting that the Tsilhqot'in girls killed in the invasion had been cremated on top ofTsimol Ch'ed, Mabel William said:

"That's Tsilhqot'in land Tsimol Ch'ed. It's always been Tsilhqot'in land."J40

Yohetta Valley, Yuhitah Biny, to Fishem Lake

171. Yohetta, place name #114, is an important centre ofancient Tsilhqot'in occupation, including winter houses, which has been continuously used by Tsilhqot'in people from the time ofthe ancestors'?' to the present day. Archaeological evidence and Tsilhqot'in testimony shows the extensive occupation by Tsilhqot'in people from a time before contact342 This huge Tsilhqot'in occupation site was, as mentioned above, "invisible" to the early explorers, though it J43 is likely the base of ChiefKanim . It served as a base for Tsilhqot'in exploitation ofthe resources ofthe southern portions of both the eastern and western traplines in the Claim Area.

172. The archaeological evidence is reinforced by an interesting item oforal history, which places Tsilhqot'in people in the Yohetta Valley at a time when they used "a kind ofgun that you

J38 Norman George Setah - broken arrow found -- Ocl.22/04 - p.37(3) - p.38(39). 339 Mabel William, Exhibit 0174, Affidavit #2 of Mabel William, September 3, 2004, at para. 31. 340 Mabel William, Exhibit 0174, Affidavit #2 ofMabel William, September 3,2004, at para. 32(x) (on page 15). 341 Transcript, February 17. 2005, Joseph William Direct Exam, at 00016, 3 to 36. According to Joseph William, ChiefSil Canim's wife, Jeanie, taught him that Tsilhqot'in ancestors lived in underground houses at the end ofGunn Valley near Fishem Lake. ]42 Tsilhqot'in Geographic Features: re Yohetta Lake (Yuyetahbin) - "House and roasting pit depressions found here in 1979 suggest this was one ofthe more important encampments in the Yohetta Valley.", Exhibit 0240, Expert Report ofKenneth Brealey, September 22, 2004, at 77-78. Also: Ken Brealey - Tsilhqot'in Geographic Features: re Yohetta Valley (Yuyetah) - "Archaeological work in this valley in the 1980s has revealed at least 16 discrete heritage sites, and has been estimated as containing anywere from 150 to 2000 depressions. This suggests that it was an exceedingly important hunting, gathering and freshwater fishing area for the Stone Chilcotin."; fn. 298, "Overall, Magne (...) estimated 110 to 660 roasting pits, 52 to 1320 cache pits, and 113 to 1320 housepits.", Exhibit 0240, Expert Report ofKenneth Brealey, September 22,2004, at 78, incl. fn, 298. Gilbert Solomon identified the location of pit houses in the vicinity ofFishem Lake, marked as AU on Exhibit 371 DIG, Transcript March 17,2005, page 33, lines 19-25. He also saw the location where Magne found house pits in the east end ofYohetta Valley, marked as AT on Exhibit 371D1G, Transcript March 17,2005, page 29, lines 29 to 44.

]4] See Exhibit 0443, Expert Report ofJohn Dewhirst, August 8, 2005, at paras 382, 388, which link the Gunn Valley (where Fishem Lake is located) to Chief Kanim and his son ChiefSil Canim,

61 put gun powder into -- you only get one shot and then you have to put more powder in the gun.,,344 This type of gun even has a Tsilhqot'in name, reinforcing the authenticity and antiquity of the story. Obviously, this is a type ofgun predating the time ofBritish sovereignty.

173. 20th century and recent use ofcampsites is evidenced by the Tsilhqot'in witnesses.r"

The Eastern Trapline

Teztan (Teztaun) Fish Lake

174. Teztan, place name #93, (Fish Lake), is a site ofancient and continuing Tsilhqot'in occupation.r'" A dense cluster ofarchaeological site inventory forms filed in Victoria reflect the work done by Tyhurst around Fish Lake. 347

175. In the 20th century this has been an important fishing and hunting camp for the Tsilhqot'in 348 people, and there have been Xeni Gwet'in gatherings there in recent years

176. Francis William recounted that this area was an important fish camp for the Tsilhqot'in people349 Cecelia Quilt said that that Old Seymour had a cabin near Teztan, close to where Jimmy Bulyan stayed. She recalled that her husband Dick once stayed there all winter taking care ofJimmy's cattle, and an old Tsilhqot'in lady was buried there.350

344 Exhibit 0158, Affidavit #2 of Francis William, April 30, 2004, at para. 41. 345 Harry Setah, Oct 14/04, p 19 line 32; p 20, lines 27-39, "Sheep Camp", marked "CB" on Exhibit 180 DIG (not in Claim Area), p. 27, lines 26-27, camp at the south end ofDorothy Lake, marked "CC" on Exhibit 180 DIG, p. 27, line 47. 346 Tsilhqot' in Geographic Features: re Fish Lake - This was an important fishing camp. Archaeological excavations have exposed 18 roasting and/or pit depressions in this area, Exhibit 0240, Expert Report ofKenneth Brealey, September22,2004,at59 347 Eldridge, May 12,2006, page 62, line 43 ff. 348 Francis William - gathering, camping, hunting and fishing at Teztan, May 26/04 p 38 In 34 - P 39 In 2. David Setah - Elders' gathering at Teztan, Jan 20/05 p 24 Ins 19-27. 349 Exhibit 0158, Affidavit #2 of Francis William, April 30, 2004, at para 120. ChiefRoger William - Fish Lake elders gathering, Nov 4/03 p 6 In 19 -P 71n II. 350 Exhibit 0439, Affidavit #1 ofCecelia Quilt, May 6, 2005, at paras 46 and 47. ChiefRoger William - Milya William's grave is at Teztan, Oct 22/03 p 50 In 32-p511n 10.

62 Nabas

177. Naba§35!, place name #95, is a significant site ofcontinuous Tsilhqot'in occupation from the e timeti bef erore sovereignty.to t h e present era.Th ere are ca bi ms352 andcampsites . 353 atN a b as.354 There are cabins at Nabas where Tsilhqot'in people lived until recently.J55 Tsilhqot'in people are buried there. J56

178. Cecelia Quilt gives an interesting account: She deposed that she was born and raised around the Nabas area and that "there used to be lots ofTsilhqot'in people who stayed around the Nabas area, on the Fire Creek side toO".357 She identified by name numerous Tsilhqot'in families who lived on the west and east side ofNabas. She also stated that her parents taught her that there were Tsilhqot'ins living around Nabas before her parents time. Her parents taught her that "Tsilhqot'ins would stay up on Dzelth Ch'ed (the snowy mountains) all summer and fall hunting, gathering berrries, plants and medicines and drying meat for the winter. Then they would move back down around Nabas during the winter,,358 Their houses and barns were all burned down by white people.359

179. Just west ofNab as there are cabins at Jididzay (or Ch'ididzay), place name #32, where Tsilhqot'in people stay when fishing and hunting.i'" Tsilhqot'in people also camp there 36!

351 "The English name for Nabas is Anvil Mountain, but Nabas also refers to a large area around the mountain; it is the area on the east side ofTaseko River between Anvil Mountain and Teztan (Fish Lake)." Exhibit 0367, Affidavit #2 ofGilbert Solomon, January 19,2005, at para. 38. m Joseph William - re: cabins at Nabas, Exhibit 0355, paras 13(c), 16, 18,20,21,22, 30, 33, 57, 109. 353 Joseph William - camping at Nabas, Exhibit 0355, para 27,32,66. 354 David Setah - Houses and hayfields at Nabas, Jan 20105 p 20 Ins 14-38. J55 Christine Cooper - Madeline and Johnny Hance's cabin at Nabas, Exhibit 0398, para 16. ChiefRoger William identified a cabin within the circle designating area 95, Nabas, on Exhibit 14 DIG, Oct 22/03 P 25 In 38 to p 29 In 17. 356 Cecelia Quilt, Oct 6/05 p 9 Ins 32-33. Cecelia Quilt, Oct 6/05 p II Ins 20-34. 351 Ex 439, at para 27. See the entire section ofExhibit 439, "Tsilhqot'in s at Nabas", from paragraphs 23 through 42, for rich information about this large Tsilhqot'in community with significant time depth back into the 19th century around Nabas. 358 Ex 439, at para 30. 359 Cecilia Quilt - Oct 6/05 P 9 Ins 17 ~ 30. 360 Francis William's uncle Lebusden told him that he and Old Seymour used to camp there. Exhibit 0158, Affidavit #2 ofFrancis William, April 30, 2004, at para 123). Joseph William helped his father build a cabin near Jididzay, in the early 1950's -- Exhibit 0355, Affidavit #1 ofJoseph William, December 17, 2004, at, para 21,59. ChiefRoger William identified a cabinjust north of location 88, Ch'ididzay. Oct 22/03 p 251n 38 to p 291n 17. 36t Francis William - he has recently been camping and fishing at Jididzay, May 26/04 p 39 Ins 8-19.

63 There is a cabin just north ofJididzay where the late Jimmy Sammy lived,362 and it is presently used by Tsilhqot'in hunters.i'"

180. Henry Solomon had a cabin between Nabas and Fish Lake. 364

181. Northwest ofNabas, Francis William testified that his brother Jimmy Bulyan lived in a cabin with his family at Whitewater Meadow, east ofTaseko River. He also said that Lebusden also had a cabin near to Jimmy's place. He recalled staying with his brother at his cabin and at different campsites around the area that were established as a base for hunting and trapping. He said that Tsilhqot'in people would also camp at the north end ofthe Taseko Lakes, at Nadilin Vex, the mouth ofthe Taseko River3 65

182. Just south ofNabas is Yanah Biny. In an archaeological study commissioned by Taseko Mines Ltd. in the early 1990's, several cabins and burial grounds were found at Yanah Biny. The study states that the cabins "are physical representations ofpast life experiences on the land, and are symbols ofthe Tsilhqot'ins', and in this case, the Williams' family, cultural links to the land" (at p. 49). (Exhibit 450, vol 49, tab 42, aug 19, 1995). Ken Brealey told the court that this site was an important freshwater fishery and accordingly, has several log buildings that were built at various points in time3 66

183. Christine Ccoper'i", Francis William368 and Joseph WilliamJ69 all identified campsites at Nadilin Vex, (place name #31), on the east side ofthe Taseko River. Tsilhqot'in hunters would meet up there prior to going up into the mountains.J70

362 ChiefRoger William, Sept 1603 P 39, lines 25 to 35. 363 Chief Roger William, Sept 1603 P 39, line 35 through 40, line 47. 364 Harry Setah - Henry Solomon's cabin, which he took over from Jimmy Bulyan, Oct 15104 p 12 In 4 - P 13 In 42.. On Exhibit 181 DIG cabin is marked "DE" and Nabas is marked 95. Christine Cooper stayed there: May 2/05 p 24 Ins 3-22. 365 Francis William: Exhibit 0158, Affidavit #2 ofFrancis William, April 30, 2004, at paras 110, 113, 114, 117. Also, Chief Roger William - Jimmy Bulyan had 2 or 3 different cabins in the northern part ofthe Eastern trapline, Sept 25 p 21. 366 Exhibit 0240, Expert Report of Kenneth Brealey, September 22,2004, at 64. 367 Christine Cooper - Campsite for fishing on east side ofthe Taseko River at Dadilin Vex (Nadilin Vex), Exhibit 0398, Aff#l, para 19. 368 Francis William - Camp at Nadilin Vex, Ex 158, Aff#2 para 117. Francis William - Other people, including ChiefSil Carum, camping and fishing at Nadilin Vex, May 26/04 p 37 In 22 - P 38 In 30.

64 184. Tsilhqot'in hunters would meet or gather at Dediny Gunlin for picking plants, roots, 371 vegetables, hunting deer and marmots, on their way back from Lillooet .

Rock blinds at Gwetex Natel?as (Red Mountain)

185. Near the centre ofthe Eastern trapline, near Gwetex Natel?as, Tsilhqot'in hunters used rocks piled into hunting blinds for deer hunting. 372 Witnesses referred to these rock blinds.373 These are ancient structures, build by the Tsilhqot'in ancestors prior to contact, and still useful and used into the 20th century.V"

A further observation about physical evidence ofhuman occupation

186. Physical evidence ofhuman occupation abounds in the Claim Area. For example, there are a great many more pit houses than are discussed in the locations listed above. The Court will recall that Morley Eldridge was shown the contrast between the officially recorded 375 376 archaeological sites on the "shape file", exhibit 544 , and the sites marked on Exhibit 515 He agreed that around Twin Lakes there are a great many more pit house sites than have been recorded in the Provincial Government registry.377 Similarly, there are pit houses at Tsanlgen Biny that are noted on Exhibit 515, but that are not shown on Exhibit 544. And again, there are a

369 Joseph William - Camping at Nadilin Vex for fishing and hunting, Exhibit 355, paras 65, 82, 85. Paragraph 82: "The fish we caught in the gillnet at Nadilin Vex were big - they were almost as long as both my arms opened wide." 370 Norman George Setah, Nov.29/04 - p.14(43) - p.15(45). 371 Norman George Setah, Dec.8/04 - p.26(21) - p.28(23) - area marked EE on Exhibit 21 I. J72 Joseph William - Rock blinds at Gwetex Natel?as, Exhibit 0355, Affidavit #1 ofJoseph William, December 17, 2004, at , para 87. David Setah - Rock blinds at Red Mountain, Jan 18/05 p 58 In 39-p 60 In 41; P 61 In 42 - P 62 In 34. Marked as "CC" on Exhibit 259 DIG. 373 Cecelia Quilt - rock blinds, Exhibit 439, para 27(1) "where the rock blinds are". 374 Harry Setah - Rock Blind, Oct 14/04 p 47 In 33- p 48 In I I. David Setah - Rock blinds at Red Mountain, Jan 18/05 p 58 In 39-p 60 In 41; P 61 In 42 - P 62 In 34. m Exhibit 0544, entitled: Coloured topographical map entitled "William v. HMTQ Remote Access Archaeological Database (RAAD) - Shapcfiles," 91.5 x 121 em 376 Exhibit 0515, entitled: Photocopied black and white map 92 x 73.5 cm entitled "Brittany Lake Forest Management Plan Archaeological Heritage and Traditional Information Map" dated November, 1993. This map has information about"kikili holes" (sic), grave sites, trapping cabins, fishing areas, trapping trails,cremation and burial ~rounds, and obsidian flakes. 77 Morley Eldridge, Transcript, May 12,2006, page 77, line 3, through page 78, line 6. See also, for example, Gilbert Solomon, March 16,2005, page 54, lines 32-39, there is a pit house on the east side ofVedan Lake, marked as AN on Exhibit 371 DIG.

65 great number of sites identified in the Brittany Lake Forest Management Plan Inventory Project.378 With respect to this latter, most ofthe sites are clearly identified as Tsilhqot'in sites. Only those sites that have been identified as Tsilhqot'in sites have been referred to in the Appendix above. It is reasonable to assume that the rest ofthe sites, not directly referred to in this Appendix, are also Tsilhqot'in sites, even though there has not been positive evidence to that effect. As Morley Eldridge said on this question: "Ethnographic observations are critical ... ".379 So the question is: Should the additional sites ofhuman occupation be considered as Tsilhqot'in sites? It is worth noting that Exhibit 515 (and Exhibit 25, Tab 51) was created for use in preparing the Brittany Lake Forest Management Plan, and Chris Schmidt accepted it in creating Zone 5.380 No First Nations other than Tsilhqot'ins were consulted or concerned with the Brittany Triangle in connection with the BLFMP. There are no "overlaps" in the Brittany Triangle. So the Crown has already acted as ifthe additional sites are to be attributed to the Tsilhqot'in people. Further, these additional sites take the same form as the sites described in the Appendix above that have themselves consistently been described as Tsilhqot'in sites. In the absence ofany evidence ofoccupation by any other aboriginal group, one would expect, therefore, that these are Tsilhqot'in in origin. There is no reliable evidence ofoccupation by any other aboriginal group, at least within the last 500 years or so.381 Accordingly, the Court is asked to draw the inference that the huge number ofadditional sites, such as those shown on Exhibit 515 and elsewhere, are likely to be Tsilhqot'in in origin. The consequence ofthis conclusion is to fortify the Court's conclusion that the landscape ofthe Claim Area is comprehensively dominated by physical sites ofTsilhqot'in occupation prior to the date ofsovereignty.

378 Exhibit 25, Tab 51. 379 Transcript, May 25, 2006, page 30, line 37. 380 Transcript, April 25, 2006, page 48, line 14 through page 50, line 4. 381 The time depth of500 years is confirmed scientifically. See the discussion about Nusay Bighilin at paragraph 22 above. It is also the time depth assumed by the Defendant Province, see Exhibit 450, Vol. 42, PI.T-OO I000 and HMTQ-3002179, where Chris Schmidt and Karl Branch say: "The Brittany Lake Forest Management Plan area has a history ofuse by the Nemiah Indian Band dating back 500 years."

66