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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-07-21] British Columbia. Supreme Court Jul 21, 1989

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 19133  Proceedings  Discussion  1 Vancouver, B.C.  2 July 21, 1989  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia.  This  7 21st day of July, 1989.  In the matter of Delgamuukw  8 versus Her Majesty the Queen, at bar, my lord.  9 THE COURT:  Can I impose on counsel to take the morning break at  10 11 this morning instead of 11:15.  Judge Prowse is  11 being sworn in in a private ceremony that I wish to  12 attend.  It will only take about 15 minutes, I should  13 think, or less.  14 All right.  Are counsel able to make a prediction  15 about January?  It seems a long way off, but it isn't  16 that far away, I suspect.  17 MR. GOLDIE:  I predict that January will follow December.  18 THE COURT:  Yes.  19 MR. GOLDIE:  But I don't wish to be held to anything beyond  20 that.  The schedule which the Province is  21 contemplating would certainly appear to make it  22 possible to conclude the evidence in this case by  23 December.  Would your lordship like me to outline the  24 schedule of the Province's case?  25 THE COURT:  Yes.  I'm sure we all would.  26 MR. GOLDIE:  In the month of August we propose to provide for  27 cross-examination out of court of two deponents who  28 live in the Smithers area.  Their affidavits have been  2 9 given to my friends.  And I'll come back to that in a  30 minute, but it's obvious from the standpoint of  31 scheduling that that is an assumption that we are  32 making that those two witnesses can be dealt with out  33 of court.  We would also like to see the  34 cross-examination on the balance of the custodial  35 affidavits which were served in 1987.  And there are  36 four of those remaining.  There were five originally  37 and one has been examined on.  We would like to see  38 the cross-examination on the balance of those  39 affidavits concluded in the summer break.  I'm  40 referring, my lord, to the alienation series of maps  41 and documents tendered by the defendant Province, and  42 which have been marked for identification.  And when  43 we came to look at the schedule it appeared to be  44 appropriate to try and do that in the summer break.  45 There are other custodial affidavits in relation to  46 the alienation series which will be served on my  47 friends during August.  And as to those, we would have 19134  Proceedings  Discussion  1 to leave it until September to determine when --  2 whether those could be examined on out of court.  3 When the case resumes on September 5th we intend  4 to call two government employees to prove the trapline  5 files which were marked as exhibits for identification  6 during the cross-examination of Mr. Brody, and it  7 would appear convenient at the same time to lead  8 through them any additional evidence which is required  9 to prove the trapline alienation exhibits which are  10 the series beginning with 24A.  Then we would propose  11 that those of the custodial affidavits which could not  12 be examined on out of court be completed in court.  We  13 would then propose to call a witness to prove the  14 fishing permits as business records.  Those fishing  15 permits, your lordship may recall, were originally the  16 subject matter of a notice to admit which my friends  17 were unable to agree to.  They were marked for  18 identification at Mr. Morrell's cross-examination.  19 And the witness to whom I have referred, and it may  20 have to be more than one, would be called at that  21 point to prove the fishing permits.  22 THE COURT:  Do your friends know who that witness is?  23 MR. GOLDIE:  I don't know who it is.  24 THE COURT:  You don't know who it is.  25 MR. GOLDIE:  I've asked for some information from the Federal  26 defendant, and that is in hand, but I'm just giving  27 the scheduling which we would propose.  28 The next witness would be Dr. Farley, who's a  29 cartographer, and his evidence introduces the Royal  30 Proclamation evidence.  And just to give your lordship  31 and my friends some sense of when that would be I have  32 tentatively scheduled him for the 18th of September.  33 He would be followed by Dr. Greenwood, and I've  34 tentatively scheduled him for the 2nd of October.  35 Then he would be followed by Mr. David Williams, and  36 I've tentatively scheduled him for the 5th of October.  37 Then we propose calling a witness to whom we have not  38 referred so far, a Mr. Magwood, who has undertaken to  39 transfer on to one map the evidence given by a number  40 of the plaintiffs' witnesses in examination in chief  41 and in cross-examination relating to the boundaries of  42 other claims.  By that I mean claims by other native  43 groups.  Essentially he offers only the opinion that  44 he has been able to take that evidence and put it on a  4 5 map.  46 THE COURT:  These are overlapping claims?  47 MR. GOLDIE:  Yes, that's correct, my lord.  I do not 19135  Proceedings  Discussion  1 anticipate -- and he's been tentatively scheduled for  2 the 11th of October.  The balance of the week -- and I  3 don't think he would take a week in his evidence.  In  4 fact I'm sure of it -- would be taken up with filing  5 documents.  October the 16th I have reserved for any  6 further lay witnesses.  And there is another question  7 mark, and that is our decision with respect to Dr.  8 Robinson.  And if all of these things fall into place,  9 and your lordship will bear in mind the tentative  10 nature of a number of the assumptions I'm making, it  11 would seem possible that the defendant could close its  12 case in the week of October 20th.  I'm not sure  13 whether that's a week or whether that's --  14 THE REGISTRAR:  October 20th is a Friday.  15 MR. GOLDIE:  A Friday.  Well, it would be probably the  16 succeeding Monday.  Although, I'm not sure whether  17 that -- I don't have my calendar there.  That may be  18 the end of a third week.  19 My lord, may I return to the first observation I  20 made, and that is with respect to the  21 cross-examination on the territorial affidavits of Mr.  22 Fletcher and Mr. Hobenshield.  I have corresponded  23 with my friends on this, and I understand that in  24 principle they are in -- agree that the  25 cross-examination of these two witnesses on their  26 affidavits may take place in Smithers.  Originally the  27 date of August 21st had been suggested, but it turns  28 out that that is not impossible -- that is not  29 possible.  And my friends were advised yesterday that  30 we would propose that the cross-examinations take  31 place on August the 14th and 15th.  One concern that  32 has been raised is that Mr. Fletcher's affidavit  33 contains evidence of a kind that was characterized as  34 hearsay by my friends in relation to Mr. Shelford's  35 evidence.  It's the sort of thing my people came into  36 this valley in such and such a time, and my father  37 told me this and told me that, and for that reason I  38 understood my friends to take the position that Mr.  39 Fletcher should be examined in court.  I would propose  40 that the -- the cross-examination take place as we  41 have scheduled, and I am quite prepared to assure my  42 friends that if the same objection is taken to the  43 same kind of evidence -- when I say same objection I'm  44 referring to the same objection as was taken in Mr.  45 Shelford's case, then, of course, your lordship's  46 ruling would be taken as applicable.  But at this time  47 I tender as exhibits, following the practice of my 19136  Proceedings  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  THE  friends with respect to such witnesses, I tender as  exhibits, firstly, the affidavit of Mr. Fletcher, and,  secondly, the affidavit of Mr. Hobenshield and ask  they be allotted numbers.  COURT:  Where did we hear Mr. Hobenshield's name before?  Is  he a logger or lumber operator?  GOLDIE:  He is a logger.  It may well be that his name has  turned up.  He's more than a logger, he's in the  forestry business.  COURT:  Yes, that's where we heard it.  All right.  GOLDIE:  He has a mill in Kitwanga.  COURT:  Yes, I think that's where I heard it.  All right.  Mr. Rush.  MR. RUSH:  We object to this procedure, and we object to the  affidavits and the contents of which is not in the  slightest of the same kind of where were you from,  when were you born type of evidence that we heard from  Mr. Shelford.  It is of a much more grave form of  hearsay evidence.  Especially in the case of Mr.  Fletcher.  We take strong objection to it, and we've  advised our friends of that objection in respect of  Mr. Fletcher.  MR. GOLDIE:  Well, my lord, I didn't understand that any  objection was taken to Mr. Hobenshield.  In fact my  friend Mr. Grant was quite explicit.  He said Mr.  Hobenshield we're quite prepared to cross-examine him  out of court.  Mr. Fletcher the statement was he  was -- there was too much hearsay in his affidavit,  and my proposal is as I have stated.  Now, if there is  difficulty with Mr. Fletcher's affidavit I am -- my  friends are not prepared to accept my statement that I  would accept as applicable your lordship's ruling if  an objection was taken then I propose we deal with the  objection right now so that when Mr. Fletcher is  cross-examined he will be cross-examined on an  affidavit which has been tendered, objected to, and in  my submission if there is hearsay which is to be  struck out it can be dealt with right here, but I do  emphasize, my lord, that it is desireable to have what  I call the same kind of affidavits, territorial  affidavits, dealt with as we have dealt with all of  them by examination out of court, especially in the  case of residence and the area.  THE COURT:  Are you able to indicate, Mr. Rush, the specific  parts of the Fletcher affidavit to which objection is  taken?  MR. RUSH:  Well, my lord, this all comes as a result of a letter 19137  Proceedings  Discussion  1 that our friend sent to us yesterday, so it's all  2 convenient for him to raise it this morning.  And if  3 this -- if we had known we were going to be embarking  4 on this type of issue in this type of detail we would  5 have prepared ourselves for and delivered to him from  6 our analysis of the affidavit what specifics we take  7 objection to.  But it's self-evident on the face of  8 the affidavit, my lord.  I heard from so and so, and  9 so and so told me this.  It's riddled with hearsay.  10 The point of our concern about particularity of Mr.  11 Fletcher's affidavit as being an appropriate affidavit  12 for cross-examination out of court is that it is of a  13 contentious nature.  It's not -- we are not dealing  14 with the same degree of contentiousness with regard to  15 Mr. Hobenshield.  And there is a considerable -- and  16 we have agreed -- I should remind my learned friend  17 that we have agreed that, yes, Mr. Hobenshield's  18 evidence may be tendered by way of affidavit, and  19 we'll cross-examine on the affidavit, and that can be  20 conveniently done by the plaintiffs outside of court  21 and in Smithers, but the date of August 14th and 15th,  22 it's news to us.  We have received no letter to that  23 effect as yet.  24 MR. GOLDIE:  I'm sorry.  You received it yesterday.  25 MR. RUSH:  Well, I did not receive it yesterday.  It may have  26 been sent yesterday, but this is the first I have  27 heard that August 14th and 15th is a date that it  28 would be convenient to my friends.  I don't know if  29 it's yet convenient to our counsel, but the point that  30 I'm making is, I think, the question of scheduling is  31 secondary or a collateral one to the issue that I'm  32 really speaking to, and that is is it appropriate for  33 a contentious affidavit containing, in our estimation,  34 a significant body of hearsay to be examined outside  35 of court.  We have no difficulty with examining the  36 witness in court on his affidavit, but in my  37 submission, and this is our position vis-a-vis Mr.  38 Fletcher, it's our position that a contentious  39 affidavit in its entirety containing hearsay as it  4 0 does ought to be examined in court.  And I want to  41 point out I'm not saying here that Mr. Hobenshield's  42 affidavit doesn't contain hearsay, in our view it  43 does, but that it's the type of hearsay which is of  44 not a grievous kind, in my submission, that appears in  45 the Fletcher affidavit.  And we can deal with that,  46 and I think it can be dealt with properly by raising  47 those objections in the course of his 1913?  Proceedings  Discussion  1 cross-examination.  No, our proposal that we had  2 voiced to our friend was that the Fletcher material  3 be -- the offensive portions of it be excised, that  4 his affidavit be re-presented in an acceptable form,  5 which I take my friends to be now saying they're not  6 prepared to do that.  If they are not prepared to do  7 that, in my submission, then it's appropriate the  8 examination be conducted before your lordship.  9 THE COURT:  You don't wish to deal with the affidavit now and  10 obtain a ruling on what is and what is not  11 admissible -- what parts of the affidavit are  12 admissible?  13 MR. RUSH:  Well, I don't want to deal with it right now.  What  14 perhaps I could do is to -- is to look through this  15 affidavit and we could -- we could deal with the types  16 of hearsay that are outstanding later today or perhaps  17 sometime next week.  I don't have any difficulty with  18 that.  If there's some concern about timing, as there  19 seems to be with Mr. Goldie, then we can try to  20 expedite that, but we're not prepared to deal with it  21 right now.  22 THE COURT:  All right.  We'll deal with that matter later in the  23 day.  24 MR. GOLDIE:  My lord, may not the Hobenshield affidavit be  25 marked?  26 THE COURT:  Is there any difficulty with the Hobenshield  27 affidavit, Mr. Rush?  28 MR. RUSH:  Just that subject to the reservation that we are  29 going to be making objections to hearsay content and  30 other objections relating to that.  31 THE COURT:  Yes.  Well, it's all subject to — to all just  32 exceptions.  What's the next exhibit number?  33 THE REGISTRAR:  1113, my lord.  34 THE COURT:  How does one spell Hobenshield, please?  35 MR. GOLDIE:  H-O-B-E-N-S-H-I-E-L-D, my lord.  36  37 (EXHIBIT 1113:  Affidavit of Mr. Hobenshield)  38  39 THE COURT:  Yes.  What you want, I suppose, is it marked as an  40 exhibit subject to just exceptions, and an order for  41 cross-examination out of court.  42 MR. GOLDIE:  Yes.  43 THE COURT:  Yes.  All right.  44 MR. GOLDIE:  And I have to say while my friend Mr. Rush may not  45 have received the letter that was sent because it was  46 addressed to Mr. Grant, with whom we've been having  47 correspondence on this matter, but we proposed 19139  Proceedings  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  yesterday it would be the 14th and the 15th.  Your  lordship, I'll leave this now, but your lordship  will -- may recall that there were many objectionable  and contentious features about the plaintiffs'  territorial affidavits, and in fact at one time that  led us to urge upon your lordship to appoint a  commissioner who could rule upon objections, and that  was resolved by the compromise of your lordship being  good enough to say I'll be at the end of the  telephone.  And I'm not suggesting that.  What I am  suggesting is a -- is a species of that only to be  dealt with today, and I hope that it can be.  THE COURT:  All right.  You can bring it up again later in the  day if it's convenient to do so.  All right.  Do you, Ms. Koenigsberg, or Mr. Rush,  wish to comment on anything else Mr. Goldie has said  about the proposed or tentative schedule?  MS. KOENIGSBERG:  Well, I think that we haven't progressed  beyond recognizing that our case at this point has not  expanded.  We hope to continue to contract, and we  estimate at this time it would take us no more than  four to five weeks of court time, and we're working on  contracting it.  THE COURT:  Yes.  All right.  Mr. Rush, Mr. Grant, anything you  want to say about the schedule?  MR. RUSH:  Yes, a number of things, my lord.  Firstly, we would  like to know how many additional custodial affidavits  are being contemplated.  That's the first thing.  My  friend indicated in his opening that he could tell us  who the two government employees who will supposedly  prove the trapline files.  We would like to know who  these witnesses are.  And if my friend knows now I  think he should tell us.  And how long is this  evidence is going to take.  Are we talking about that  week, the first week of September, or is it going to  carry on.  I want to advise your lordship that we have just  received another document list which apparently  pertains to the evidence of Dr. Farley and Dr.  Greenwood.  MR. GOLDIE:  Just Dr. Greenwood.  MR. RUSH:  And these -- we'll be taking objections to those  documents, and I advise my friends of that.  THE COURT:  Is it convenient to deal with these as we go along?  MR. RUSH:  Well, those are presently my points, my lord.  It's a  question of determining when -- when these witnesses  are going to be called, who are they, and how long 19140  Proceedings  Discussion  1 they will take.  Basically I should think that if my  2 friend is -- on September the 18th it's likely that  3 Dr. Farley would be called.  I think he should be able  4 to tell us who will be called in the previous two  5 weeks.  Apparently Mr. Magwood is a person from whom  6 an expert opinion will be sought on October the 11th.  7 We have as yet no opinion from this person, and we  8 don't have any map from this person.  And, of course,  9 we would like it -- that as soon as possible, and  10 certainly within the 60 day period, which I would  11 assume would be August the 11th.  12 THE COURT:  Mr. Goldie.  13 MR. GOLDIE:  I cannot tell my friend the number of custodial  14 affidavits, because we are trying to see if we can  15 have more than one exhibit dealt with by the same  16 witness.  The names of the government employees are  17 Messrs. Steventon and Marshall.  18 THE COURT:  Where are they located?  19 MR. GOLDIE:  Smithers.  2 0 THE COURT:  Both at Smithers.  21 MR. GOLDIE:  Yes.  22 THE COURT:  They're the ones that you mentioned that prove the  23 fishing permits as business records.  24 MR. GOLDIE:  Not the fishing permits, no, my lord.  They will  25 prove the trapline files that were marked on Mr.  26 Brody's cross-examination.  27 THE COURT:  Oh, it was the first —  28 MR. GOLDIE:  It was the first item that I spoke to.  2 9 THE COURT:  Yes.  Thank you.  All right.  30 MR. GOLDIE:  The third point was how long.  And all I can say  31 is, my lord, that we see three items being the subject  32 matter of lay witnesses from the 5th of September to  33 approximately the 18th of September.  How long  34 Steventon and Marshall will be I can't say at the  35 present time.  I would be guessing.  The number of  36 custodial affidavits which are to be cross-examined in  37 court will be the subject matter of discussion, I  38 assume, during the month of August.  The length of  39 time that a witness or witnesses may have to be called  40 in subpoena, upon a subpoena to prove the fishing  41 permits as business records is something that we can  42 not particularize so far as the length of time is  43 concerned beyond the estimate that we have made, that  44 the three matters would take up to approximately the  45 18th of September.  46 THE COURT:  So in that period of about two weeks, I guess it's  47 nine days, you'll be calling Steventon, Marshall -- 19141  Proceedings  Discussion  1 MR. GOLDIE:  X for the fishing permits.  2 THE COURT:  Yes.  And a number of the —  3 MR. GOLDIE:  Of the people who swear the custodial affidavits.  4 Now, with respect to the custodial affidavits that  5 have not been served upon my friend my objective is to  6 ensure that those are served by the end of this month.  7 THE COURT:  All right.  I don't remember what Mr. Rush's other  8 point was.  9 MR. GOLDIE:  Well, Mr. Rush was complaining about receiving a  10 list of documents relating to Dr. Greenwood's report.  11 THE COURT:  No.  There was something else.  Oh, yes, what about  12 the map of Mr. Magwood?  13 MR. GOLDIE:  Oh, that.  And Mr. Magwood's report, I think, can  14 be delivered before the end of this month.  15 THE COURT:  All right.  That's including the map?  16 MR. GOLDIE:  Yes.  17 THE COURT:  Yes.  All right.  I'm not sure that any response is  18 expected about the most recent affidavit documents, or  19 maybe it is.  20 MR. GOLDIE:  It is -- we're simply disclosing in a supplementary  21 list of documents a further set of documents that Dr.  22 Greenwood refers to in his report.  23 THE COURT:  How long -- have your friends seen Mr. Greenwood's  24 report?  25 MR. GOLDIE:  No.  They have had a summary since 1986 and the  26 full report will be delivered today.  27 THE COURT:  All right.  28 MR. RUSH:  Well, needless to say, my lord, we didn't know about  29 those documents.  3 0 THE COURT:  No.  31 MR. GOLDIE:  Well, of course, you didn't.  32 MR. RUSH:  Neither did Mr. Morrison.  33 MR. GOLDIE:  Well, that's got nothing to do with it.  34 MR. RUSH:  That's where we disagree.  35 THE COURT:  Well, that's a matter that will have to be dealt  36 with after you've seen the documents -- seen the  37 report.  38 MR. GOLDIE:  I'd like to know — I'm sorry, my lord.  39 THE COURT:  I'm sorry.  No.  I'm finished.  40 MR. GOLDIE:  I say, I'd like to know on what basis a complaint  41 is being made or an objection is being made to the  42 disclosure of documents that the expert has forwarded  43 to us.  In the case of Dr. Lane and Mr. -- Dr. Galois  44 and a number of others we were given books of  45 documents just before the witness went on the stand.  46 We're endeavoring to get out of the expert every  47 document that is -- is a primary document and upon 19142  Proceedings  Discussion  1 which he relies as a fact underlying his opinion.  2 THE COURT:  All right.  Well, your friend will have to read the  3 report before he can articulate his objection, I  4 suspect.  We'll take your comments this morning, Mr.  5 Rush, as notice.  6 MR. RUSH:  My friend and I have had an energetic correspondence  7 on the question.  You'll no doubt hear more of that.  8 THE COURT:  Oh, I can't wait.  All right.  Well, I think that  9 completes the scheduling problem.  10 MR. RUSH:  My lord, just one other problem.  It may be a minor  11 point, but it would be of assistance.  When my friend  12 says that Messrs. Steventon and Marshall will be  13 called, will they be called in that order, and can we  14 expect to deal with Mr. Steventon on the 5th of  15 September?  16 MR. GOLDIE:  Yes.  And I expect to call him at 10:00 a.m. on the  17 5th.  18 THE COURT:  That will be something we all look forward to.  19 MR. RUSH:  Yes.  20 THE COURT:  Thank you.  All right.  What else do counsel want to  21 do next, or what do counsel want to do next?  22 MR. WILLMS:   My lord, I have a number of matters, but I  23 understand that my friend Mr. Grant advised yesterday  24 that he or Mr. Rush wanted to deal with the objections  25 to the expert reports, and I thought if my friends  26 want to deal with that we should probably deal with  27 that now.  The sooner those objections are dealt with  28 the better.  You'll recall yesterday was primarily the  29 objections to Ms. Albright, although the argument  30 yesterday will affect the other reports.  But there  31 were other objections taken to the plaintiffs' expert  32 reports as they were -- are marked, and they were  33 marked subject to objection.  And I understood that my  34 friend had some submissions that he wished to make on  35 those this morning, and I think that would be the most  36 convenient thing to do next.  That would be most  37 useful for all.  38 MR. RUSH:  I agree, but I don't think this is a situation as was  39 the argument on the question of the general  40 admissibility and the affect of archival documents  41 and/or the argument that was addressed yesterday by  42 Ms. Mandell.  There are a number of objections which  43 have been set out, some in greater and some are in  44 lesser detail, and it's not clear from the statements  45 made by my friends which objections they're continuing  46 to maintain or they're abandoning or what they  47 consider to be outstanding objections, so I think the 19143  Proceedings  Discussion  1 appropriate way to proceed now would be to start with  2 their objections if they consider them still to be  3 outstanding objections.  In my view, many of them have  4 been dealt with by the reasons for judgment which your  5 lordship has already delivered with regard to  6 historical opinions and archival documents, and will  7 be dealt with in respect of the argument that was  8 addressed to you yesterday on the issue of textbook  9 references and treatises.  So I think that in respect  10 of which ones that my friends now maintain they want  11 to raise before your lordship I think they should  12 state that and they should make the case they want to.  13 And we may as well start with Albright, because I  14 think that there is a chronological and sequential  15 dealing or treatment of many of these objections where  16 the one objection gets raised with one expert and is  17 dealt with apparently there and then it gets  18 resurfaced with the next, and so I suggest it be dealt  19 with that way.  20 THE COURT:  I've said before that common law judges don't like  21 to cross bridges even when they come to them, and I'm  22 wondering, and I shall appreciate counsel's views on  23 this, whether it would be of assistance to counsel, or  24 put it another way, whether it would be sufficient for  25 counsel's purposes if I were to indicate, if I reach  26 this conclusion, that the matter that was argued  27 yesterday be deferred until the end of the case with  28 an interim ruling that the documents in question are  29 admissible on one or more grounds.  Or put it another  30 way, that they are -- they are admissible for one or  31 more purposes, because it's my very preliminary view,  32 and I reach this conclusion until I've done some more  33 work on that, on the subject matter of the argument  34 yesterday, that the documents that the witnesses  35 mentioned in their bibliographies may be admissible,  36 if for no other reason at least to show consistency,  37 or a lack of consistency with other learned views, and  38 that it may not be necessary to go beyond that for the  39 purpose of determining the question of admissibility,  40 and that the argument on the further uses that may be  41 made of the documents is a matter that could be left  42 until final argument.  Now, this is -- this is early  43 morning musing in the garden and is not in any way a  44 view that has even been elevated to the status of a  45 tentative or preliminary view, but I would like to  46 know whether counsel think that sort of a conclusion,  47 if I reach it, would be sufficient for their purposes 19144  Proceedings  Discussion  1 or for the purpose of admissibility at this time.  2 Now, I'm not sure that counsel want to respond to that  3 at this moment, because it's -- it wasn't discussed  4 yesterday excepting in a very oblique way, but I would  5 like to have counsel's comments if they think it's  6 convenient to reply to that.  7 MR. WILLMS:  My lord, generally I think that would be an  8 appropriate method to deal with it subject to two, if  9 I can call them, minor exceptions.  The first one is  10 in respect of such of the documents that contain  11 facts.  And I argued this with respect to Ms.  12 Albright, and your lordship's suggestion, as I  13 understood it, would go to the opinions expressed by  14 the people who had written in the area.  But you'll  15 recall that, for example, the excavations that were  16 done in different locations the actual items excavated  17 are used by Ms. Albright to draw certain comparisons  18 or to reject comparisons.  In other words, she doesn't  19 use the opinions, she uses the facts that are set out,  20 accepts them as being true and then comes to opinions.  21 You'll recall that it was my suggestion that they go  22 in for the facts as prima-facie proof and that would  23 take care of that, but I didn't understand Ms. Mandell  24 wanted to advance it that far.  That is one small  25 point which if your ruling at the end of the day is if  26 they don't go in for the facts then evidence that we  27 may lead, especially in respect of archeology which  28 will also use similar type of material underlying  29 factual material, we are going to be left in a  30 situation where maybe we should have done something  31 else.  Maybe we should have called someone else to  32 prove that.  33 The second point, and I think it's a minor point  34 as well, but I take it from that, my lord, that your  35 preliminary or pre-preliminary view that it would not  36 be necessary to call a witness just to say I've read  37 Dr. MacDonald, he's learned in the field, and this is  38 his opinion and I accept it or I reject it, that those  39 are matters that go at the end of the day really to  40 weight.  Because as I said with respect to facts if we  41 don't call a witness then -- and we have to call a  42 number, I suppose, in addition to Dr. Robinson who  43 we've already advised our friends of because she's in  44 the archeological discipline, but to get somebody to  45 say yes, this is the appropriate linguistic opinion  46 and it's well-known out there, and because the --  47 those opinions don't really meet the opinions of the 19145  Proceedings  Discussion  1 witnesses.  The witnesses while they were giving viva  2 voce evidence brought in these references and  3 supplemented and added to their own opinions by  4 referring to Dyen and Aberle, for instance, only came  5 in because Dr. Kari referred to Dyen and Aberle.  We  6 would like to be able to get the linguist to say  7 whether or not there are other views, other linguistic  8 views other than Dyen and Aberle.  It wouldn't go  9 directly to Dr. Kari's opinion and Dr. Rigby's opinion  10 because they're there, but it would go to the  11 underlying basis of it.  12 We are content, as I suggested yesterday, to deal  13 with those issues, for example, on the basis of the  14 treatises that have been marked.  But subject to those  15 small points, my lord, your proposal, I think, is  16 something that's acceptable in this case.  17 THE COURT:  I'm not sure it's a very small point when you're  18 talking about the underlying facts.  19 MR. WILLMS:  Well, I only —  20 THE COURT:  I find it substantial.  21 MR. WILLMS:  It's only a small point because that particular  22 point really only applies to Ms. Albright.  The other  23 underlying facts -- and when we get into the arguments  24 the other underlying facts that were objected to on  25 the other opinion witnesses were the hearsay, the land  26 claims transcripts, for example, and the like.  2 7 THE COURT:  Yes.  28 MR. WILLMS:  Which are a different character.  That's why I  29 should say it's a big point with Ms. Albright, but  30 it's a minor point generally.  31 THE COURT:  I see.  All right.  32 MS. KOENIGSBERG:  I would welcome that sort of procedure,  33 because I think that the difficulty, at least I  34 perceived yesterday, in dealing with a general ruling  35 in the absence of identifying specific documents that  36 we are going to call treatises, the relationship of  37 the work to the witness and what they said about it,  38 and so on, left us with a grave difficulty.  And, in  39 my submission, it would be of assistance to deal with  40 it in final argument.  And if any of us should require  41 a ruling on a specific work because it impacts on a  42 particular course of action it would seem to me that  43 it would be appropriate to bring it up and to argue it  44 specifically in relation to that matter.  And I would  45 submit that that can certainly go to the  46 admissibility, if you can put it that way, of or the  47 way in which we might deal with the expert opinion 19146  Proceedings  Discussion  1 evidence that other plaintiffs have led as well.  All  2 of the arguments have been put forward, and your  3 lordship ruled in your reasons that all of those  4 opinions are in as exhibits subject to objections  5 which fall into your lordship's rulings.  And that  6 may, as your lordship pointed out in your reasons, it  7 may very well be the subject of close argument on  8 which side of the line a particular opinion or  9 foundation is going to fall.  10 If it's of any assistance to my friends to know  11 the position we take with regard to the objections  12 that we made we stand by all of them, and we will be  13 prepared to argue at the end of the day our  14 interpretation of your lordship's rulings on what's  15 in, and what's permissible and impermissible opinion.  16 It is our submission that the reports and the evidence  17 of the experts to which we objected is closely  18 interwoven with what is permissible and impermissible,  19 and it will have to be left to argument, in my  20 submissions, to sort it out.  21 THE COURT:  Thank you.  Just a moment, please.  Mr. Rush or Mr.  22 Grant.  23 MR. RUSH:  My lord, the points raised by Mr. Willms are not  24 minor points.  They strike at the heart of the  25 argument they raised yesterday, and his trying to  26 skate around the seriousness of his own points I don't  27 think he really deals with it.  The fact is he  28 challenged very substantially the underlying facts  29 relied upon by Ms. Albright, in respect.  30 THE COURT:  Mr. Rush, isn't what I have said almost what Ms.  31 Mandell contended yesterday?  32 MR. RUSH:  It is, my lord, and that is what I was going to come  33 to.  In my submission there should be a judgment,  34 there should be reasons issued, and it's not a matter  35 which should be deferred.  36 THE COURT:  Well, I thought Ms. Mandell was really suggesting it  37 shouldn't be the subject of a judgment now.  38 MR. RUSH:  I wasn't here all day yesterday, my lord, but I think  39 it's appropriate that reasons be issued and that we  40 have the guidance of the bench on the question.  I  41 don't agree with my learned friend Ms. Koenigsberg  42 that she's going to maintain objections through to the  43 end of the argument of the day on the question of  44 issues of admissibility.  45 THE COURT:  No, I didn't understand her to say that.  She's — I  46 understood her to say that -- that we separate  47 admissibility from the question of the proper use of 19147  Proceedings  Discussion  1 the documents, and that be deferred to final argument.  2 Have I misstated what you were saying, Ms.  3 Koenigsberg?  4 MS. KOENIGSBERG:   Well, in truth I said both.  And, in my  5 submission, it's such a close question that I don't  6 think one can separate it very easily.  I'll just give  7 the illustration that objections were made, an example  8 dealing specifically for instance with the report --  9 the admissibility of the report of Antonia Mills.  It  10 happened to go to her evidence in certain respects as  11 well.  It was the submission of the Attorney General  12 of Canada, and I believe it was probably the  13 submission of the Provincial defendant as well, that  14 her report -- parts of her report were not admissible  15 to the extent that they relied upon participant  16 observation and interviews because of the litigation  17 process having been ongoing.  As that was going on  18 your lordship made a ruling at the time, and your  19 ruling was that on the one hand you would have to  20 await the unfolding of the evidence and on the other  21 that it was your view that it would go to the question  22 of weight rather than admissibility, and you then  23 marked her opinion and heard her evidence subject to  24 the objections.  In your reasons you again allude to  25 the great difficulty of this problem.  On the one hand  26 one can characterize it as an admissibility problem,  27 but it seemed to me we had tried to deal with that in  28 a practical way.  All of it's more or less admissible.  29 Your lordship has heard some objections, for instance  30 the objection of the Attorney General of Canada that  31 the evidence is on the one hand not admissible because  32 it's so fraught with lack of trustworthiness that it  33 shouldn't be admitted, was nevertheless heard, and it  34 will be our submission that it should be given no  35 weight.  36 Now, textbook writers have a lot of fun trying to  37 parse whether it's admissibility and weight.  If it's  38 no weight it shouldn't be admitted.  I think that we  39 are into a situation where we can't deal with the  40 thing generally and that we are going to have to take  41 what is in.  And your lordship has admitted all of  42 this material in subject to objection, and you've  43 ruled in some respects with regard to objections, and  44 you've clearly said in some instances I don't accept  45 that objection.  It clearly doesn't go to  46 admissiblility.  As far I'm concerned it goes to  47 weight.  In some you say what textbook writers would 1914?  Proceedings  Discussion  1 say, both sides of the question.  I may after I hear  2 it all give it no weight or I will mark it.  I'll have  3 to hear it all and weigh it all and perhaps at the end  4 of the day it wouldn't be admissible.  Whether these  5 objections go to admissibility or to weight, in my  6 submission, your lordship at this point is going to  7 have to weigh at the end of the day, and whether it  8 was admissible becomes an academic exercise.  In  9 relation to expert opinion, and it is going to be a  10 question that we'll be arguing that your lordship,  11 should give no weight at the very least to certain  12 parts of the expert evidence.  And that's the way, for  13 instance, Mills' report and her evidence was left.  14 And I'm content to leave it that way.  And I'm content  15 only because, in my submission, I don't know how we  16 are going to deal with it in the abstract.  It's  17 terribly tedious argument to try to deal with it let's  18 take them one at a time and argue it through and go  19 back through all the exhibits, and so on, when each  20 party will be marshalling the evidence and wanting to  21 argue it at the end of the day and those rulings can  22 be dealt with.  I think the issue raised by Mr. Willms  23 of a problem with Ms. Albright's report and the  24 factual of the opinion is, in my submission, a  25 different problem.  And I didn't understand him to be  26 saying that the report goes.  It seems -- it seemed to  27 me that he seems to be contending that the facts are  28 in.  29 THE COURT:  I'm not sure what's in the opinion.  Whether it's  30 something that can be given any weight is a matter  31 that depends upon a consideration of the weight or  32 amount of weight or lack of weight upon the crucial  33 underlying facts.  And while it's clearly approaching  34 the metaphysics, but it may be beyond metaphysics, if  35 we try to encompass all the various considerations  36 that go into this equation.  But do I understand you  37 now, Ms. Koenigsberg, to be saying that apart from  38 this question Mr. Willms has raised about the  39 underlying facts used by Ms. Albright that a ruling on  40 admissibility at this point is sufficient?  41 MS. KOENIGSBERG:  Yes, my lord.  I think that you have set out  42 in your reasons, most recently issued on July 14th,  43 your view of the matter having regard to what's  44 admissible or inadmissible, and you state the  45 difficulty, extremely well, of course --  4 6    THE COURT:  Thank you.  47    MS. KOENIGSBERG:  — That it's interwoven.  That some's going to 19149  Proceedings  Discussion  1 be permissible and some's impermissible, and they're  2 all mixed up together.  And we all knew that.  And you  3 dealt with the specific problem of whether the reports  4 are marked as exhibits, and in that sense are in.  And  5 I think your lordship again dealt with an extremely  6 difficult matter this morning, and I agree with your  7 lordship.  Essentially almost all of the documents  8 that we have been, I might say fairly loosely calling  9 treatises yesterday, and again today, probably are --  10 well, they're all in for one reason or another, and  11 they may be in the group of things that are in and  12 fall into that category of things that are clearly in  13 for the truth of their contents.  And in some cases  14 they were referred to, and it's going to be a matter  15 of weighing credibility, and so on, and so on.  I have  16 no difficulty -- in fact I think practically we have  17 got no choice to leave it at the end of this point.  18 THE COURT:  I'm going to take the adjournment now, and I'll be  19 glad to hear you.  I want to hear you further, Mr.  2 0 Rush.  21 The late great Walter Williston once invented a  22 word that was better than interwoven.  He said it was  23 interfluent.  I was going to use it in my judgment.  24 And I'm not sure that these aren't interfluent  25 considerations or concepts.  We'll hear about that in  2 6 a minute.  27 THE REGISTRAR:  Order in court.  Court stands adjourned for a  28 short recess.  29  3 0 (PROCEEDINGS ADJOURNED)  31  32 I hereby certify the foregoing to be  33 a true and accurate transcript of the  34 proceedings herein to the best of my  35 skill and ability.  36  37  38  39 Peri McHale, Official Reporter  4 0 UNITED REPORTING SERVICE LTD.  41  42  43  44  45  46  47 19150  Submission by Mr. Rush  Discussion  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR: Order in court.  4 THE COURT:  Mr. Rush.  5 MR. RUSH:  My lord, I want to try to deal with two points at  6 once.  One is the specific question of whether or not  7 a ruling should be made by your lordship at this time  8 in a formal sense with regard to the textbooks and  9 treatises argument addressed to you yesterday, and  10 secondly, but interrelated, is the question of how to  11 proceed with the issue of dealing with the provincial  12 and defendant's objections outstanding as they  13 sometimes appear to the expert opinion reports of the  14 plaintiffs.  15 I can say in sum that it's our position that your  16 lordship should issue reasons dealing with the  17 judgment -- dealing with the argument yesterday and  18 issue judgment, and I think it would be of assistance  19 to all sides.  It's not a matter, in my view, that  20 should be appropriately left to the end of the day and  21 I think that it's quite evident by the slipping back  22 and forth that Miss Koenigsberg evidences to me in her  23 argument between issues of admissibility, that is to  24 say, what constitutes evidence, and questions of  25 weight, and I don't -- I think that, however difficult  26 a task it might be at the end of the day to  27 differentiate between these tasks, there are points in  28 a trial where we can differentiate between them, and  29 the issues that are raised now are issues pertaining  30 to admissibility, that is, what material, what  31 information will come to your lordship and be part and  32 parcel of the corpus of evidence that you will take  33 into account and weigh at the end of the day.  34 Now, in relation to both of the questions I think  35 that your lordship should take these factors into  36 account:  Firstly, it was at the urgings of Mr. Goldie  37 that there be an argument on the question of the  38 treatises and that was something that he advanced on  39 several occasions prior to today's date.  Secondly, it  40 was on the urgings of Miss Koenigsberg that she  41 advised that there were some 12 reports which in her  42 mind were inadmissible, and as a result of that this  43 question was raised by myself in court and it was  44 raised on July the 10th in Volume 250 at page 18452,  45 to 53 and I said the following, my lord.  I said this:  46  47 "My lord, I suppose I am addressing you on 19151  Submission by Mr.  Discussion  Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. RUSH:  this subject because at the end of Friday  reference was made to the expert opinion  report of Dr. Albright.  I want to raise  again this question of what appears to be a  difference between parties as to the effect  of the filing and tendering of expert  opinion reports with what appears to be the  defendants' position that there are  outstanding objections in respect of those  expert opinion reports.  And as I see the  plaintiffs' position, we say those are filed  and tendered and our evidence in the case.  My friends say those are filed and tendered  and evidence subject to their objections.  And that raises I think two pressing  issues in my mind.  One is the way in which  these objections and the effect of the  filing of these reports is to deal with --  is to be dealt with.  And, secondly, the  timing.   And I here raise this more to deal  with the issue of process.  I think it has  to be clear among us that the plaintiffs'  view is these are -- these reports are filed  and are evidence in the case.  Yet, at the  same time, I can see that some of the  reports or some aspects of either the  reports or the documents on which those  reports rely were filed subject to  obj ection.  Now, from my perspective, my lord, it  should be clear that we have a process to  deal with these objections so that these  reports are part of the outstanding issues  to be filed as part of the plaintiffs' case  or that the objections are raised as part of  the arguments of my friends in the course of  their closing submissions.  Now, I take it  that..."  What was that last sentence again, please?  "Now, from my perspective, my lord, it  should be clear that we have a process to  deal with these objections so that these  reports are part of the outstanding issues  to be filed as part of the plaintiffs' case 19152  Submission by Mr. Rush  Discussion  1 or that the objections are raised as part of  2 the arguments of my friends in the course of  3 their closing submission.";  4  5 And if I may just pause and deviate from what I  6 said, I think that there what I was trying to do was  7 to articulate what I perceive at this point to be the  8 very issue raised by Miss Koenigsberg.  9  10 "Now I take it that there is not  11 necessarily", and I'm continuing, "I take it  12 there is not necessarily one way of dealing  13 with all of these so-called objections.  14 But what I do say, my lord, is that at  15 least I understand from Mr. Willms'  16 submission Friday and Mr. Goldie's today  17 that at least in regard to certain documents  18 of Miss Albright's report that they wish to  19 see an argument on those documents.  I see  20 that there are some outstanding arguments  21 that need to be made vis-a-vis those reports  22 and those documents that underlie those  23 reports."  24  25 And if I may deviate, in my submission that was  26 precisely the majority of the focus of the argument  27 yesterday, but that doesn't mean to say that there may  28 not be other objections that would be raised with  29 regard to Miss Albright's report.  30 And continuing:  31  32 "And my recommendation, my lord, is that  33 you assist in giving some direction as to  34 the timing of these arguments if my friends  35 perceive that these are matters that are of  36 some urgency to their case.  And, secondly,  37 to the determination of the issue of whether  38 these are to be -- intended to be left by  39 the court and by my friends to their closing  40 submissions.  And if not, if that is not so  41 in terms of of my friends' understanding  42 then I would suggest that we establish some  43 sort of schedule by agreement to deal with  44 each of these documents in turn, and to  45 resolve those outstanding objections and to  46 make it clear that these objections, once  47 resolved, clarify and articulate for all of 19153  Submission by Mr. Rush  Discussion  1 us the status of the reports and the  2 underlying documents.  3 THE COURT:  Is there a list of these outstanding  4 matters?  5 MR. RUSH:  Well, we asked — there is a  6 difference again between our friends and  7 ourselves on which are those documents that  8 they consider to have objections about.  And  9 on the 7th of July we asked for a listing  10 from Ms. Koenigsberg concerning this.  It  11 seems to me that that's the way to go.  If  12 my friends have something in mind, and  13 certainly I can see by reference to some of  14 the transcript accounts of the course of  15 events that, yes, I can see that there are  16 arguments that need to be made.  But I am  17 not sure that we are ad idem on all of these  18 reports.  I feel that we need to have  19 clarified what is outstanding on these  20 reports and then deal with it in some way.  21 THE COURT:  I agree with you, Mr. Rush.  I agree  22 that these matters should be resolved.  Do  23 defence counsel have anything to say in this  24 regard?  25 MR. GOLDIE:  Any convenient time?  2 6 THE COURT: Yes.  27 MR. GOLDIE:  But before we adjourn.  28 THE COURT:  Yes.  Well, I'm in counsels' hands."  29  30 And then we went off to deal with the matter of  31 witnesses and the scheduling.  32 Now, following that, my lord, on the 12th of July  33 Mr. Willms sent a letter to me and to counsel setting  34 out, in effect, those areas in general terms of the  35 objections which he intended to raise with regard to  36 Miss Albright, Dr. Daly, Dr. Mills, Mr. Morrell, and  37 Mr. George.  And he also pointed out that he wished to  38 have an argument on the issue of treatises or texts.  39 Now, we had one comment, a letter from Miss  40 Koenigsberg, that focused on the issue of Mr. Brody's  41 report.  Now, my lord, we were guided by the fact that  42 the defendants wished to raise for decision or  43 determination objections reserved as to admissibility  44 questions, and those were in part the ones addressed  45 yesterday by Miss Mandell on the question of the  46 treatises and texts.  They are also in part the  47 documents underlying the reports and those reports 19154  Submission by Mr. Rush  Discussion  1 identified by Mr. Willms now in the letter of July the  2 12th.  And to some extent I take Miss Koenigsberg to  3 concur that those are the reports at issue and in  4 addition that there may be an issue with regard to Mr.  5 Brody.  6 Now, I would assume that the arguments addressed  7 to your lordship yesterday on treatises and texts  8 touched particularly on the subject of Mr. Brody's  9 report, but I don't know if there is a separate issue  10 to be raised there.  But I say that these were all  11 raised for the purposes of dealing with the question  12 of what reservations there will be to what is going to  13 be admitted as part of the plaintiffs' case, and that  14 is what we sought to dispose of.  15 Now, there's no question that Miss Koenigsberg has  16 a number of objections that relate not to  17 admissibility, but to questions of how your lordship  18 should evaluate or weigh this evidence at the end of  19 the day, and no doubt there will be a lot of argument.  20 We're going to go nose to nose on this subject.  The  21 point of the matter is though that I don't think we  22 can do what Miss Koenigsberg is urging on you, and  23 that is let the issues of admissibility and weight  24 slip together.  25 And on many occasions in dealing with questions of  26 qualification, questions of admissibility, your  27 lordship has expressly dealt with objections on the  28 basis that those objections go to questions of weight.  29 And I'm going to cite just one example, my lord, and  30 that is an objection that was raised by Mr. Mackenzie  31 on the qualifications of Dr. Mills.  Having heard the  32 objection, what you said in part is this:  You dealt  33 with an objection that was raised to whether or not  34 she could interpret the operation of Wet'suwet'en law  35 and you said:  36  37 "Aside from that," and I'm quoting, "the  38 other objections that have been made to her  39 qualifications both by Mr. Mackenzie and  40 Miss Koenigsberg, in my view, go to the  41 question of weight rather than  42 admissibility, and for that reason I'm going  43 to rule that she is qualified to give  44 opinion evidence on the areas generally  45 described by Mr. Rush at the commencement of  46 today's proceedings."  47 19155  Submission by Mr. Rush  Discussion  1 If your lordship needs a reference it's at page 12871.  2 Now, my lord, I raise that only to exemplify my  3 point that you were called upon on many occasions to  4 decide on is the person offered as an expert  5 qualified, and to make the decision as to whether or  6 not we're dealing with evidence of -- questions of  7 admissibility in evidence or are we dealing with  8 questions of weight.  And I say that where the  9 questions were reserved for decision or where  10 questions of admissibility were dealt with by your  11 lordship on the basis that the objections raised were  12 reserved as to admissibility, then we should deal with  13 those.  14 And one of the reasons I suggest to your lordship  15 this morning that we deal with the reports  16 chronologically is that as you dealt with the -- these  17 experts at least, commencing with Miss Albright at the  18 first of the year, the objections were raised again  19 and again and at points throughout the evidence of all  20 of these experts there were issues joined between the  21 parties and resolutions were arrived at in some cases  22 and in other cases perhaps they weren't.  But the  23 point is that these objections should not stand as  24 objections to the admissibility of the plaintiffs'  25 evidence.  These should be dealt with.  And I say in  26 like manner so should the question of the treatises  27 and the texts.  That should be dealt with and there  28 should be some clarity and certainty on that subject.  29 I'm not sure if Miss Koenigsberg is now taking the  30 position that she waives her objections as to  31 admissibility.  She says on the one hand that all of  32 her objections stand, and yet her argument suggests  33 strongly to me that she waives those objections as to  34 admissibility and will argue the question of the  35 meaning or force of the evidence in terms of a  36 determination on weight.  Now, it's not satisfactory,  37 in my submission, for my friend to ride the two  38 horses.  We'll wait until the end of the day and argue  39 it as, well, maybe admissibility, but certainly its  40 weight, and at the same time say well, we're going to  41 preserve the right to retain our objections to the  42 plaintiffs' evidence.  In my submission that leaves  43 things in a very unsatisfactory state and it should  44 not be allowed to stand.  45 Now, it's our position that these are for the most  46 part, as I review the objections that were taken, in  47 point of fact these are questions that really go to 19156  Submission by Mr.  Discussion  Rush  1 weight and that the questions that my friends -- and  2 here I'm speaking in a global way, my lord, and I  3 don't propose that this is a desirable way to deal  4 with it, but as part of this issue it's clear that for  5 the most part, and I'm generalizing, that the  6 defendant's objections go to issues of weight and that  7 they will argue those at the end of the day no doubt.  8 And, in my submission, these should be dealt with now  9 for what they really are.  And if they are objections  10 to weight or considerations of weight, then they  11 should be dealt with in the argument and they  12 shouldn't be dealt with as an objection to  13 admissibility so that it's clear what the corpus of  14 the evidentiary base of the plaintiffs' case is, and I  15 think that has to be clear.  16 THE COURT:  But how are you going to be any better off or how is  17 that certainty to be advanced by a ruling at this  18 time?  Surely the most I can do at this time is to  19 determine admissibility.  The question of weight is  20 always at large.  21 MR. RUSH:  I'm not asking your lordship to determine questions  22 of weight.  That -- if I gave that impression then I  23 misspoke.  What I want at this juncture, and what I  24 thought we were here to do, is to determine issues of  25 admissibility.  And that's what I say, with respect,  26 my lord, is the issue that was joined yesterday on the  27 treatises argument.  The objections were raised as to  28 questions of admissibility to the documents of the  29 plaintiffs.  30 THE COURT:  But if I were to follow my pre-preliminary musings  31 and to rule that they are admissible, that is, the  32 reports and opinions which I've probably already dealt  33 with, and the -- now the other writings which were put  34 in either in chief or in cross-examination, if I were  35 to say with respect to those writings that they are  36 admissible at least to show consistency or  37 inconsistency with other learned opinions, then the  38 question of weight is still at large and you have the  39 certainty of admissibility.  You have an  40 identification of the corpus of evidence for which  41 you're contending.  42 MR. RUSH:  I have two points in response to that.  One is that  43 Mr. Willms presses the argument that where Miss  44 Albright relies, for example, on Dr. Fladmark and an  45 opinion by Dr. Fladmark, that any -- excuse me, I  46 haven't completed what I have to say.  That the facts  47 that Dr. Fladmark relies upon to make his opinion are 19157  Submission by Mr.  Discussion  Rush  1 not facts which Miss Albright can rely upon for either  2 agreement with the opinion of Dr. Fladmark or the  3 making of her own opinion.  And that's where I differ  4 with my friend.  And that is where the nature of the  5 reservation on the reason for the admissibility of the  6 evidence is of importance, that your lordship, by your  7 own definition of how the documents would be admitted,  8 applies a qualification, that is, whether it is  9 inconsistent or consistent with writings in the field.  10 Well, I have no -- I have no difficulty with that, but  11 I want to be clear that if in the mind of my learned  12 friends there are other reservations which they hold  13 and will argue as to admissibility at the end of the  14 day, then I say that that is an intolerable position  15 that we are in now as to the determination of  16 admissibility.  17 THE COURT:  But if I rule they're admissible, that is  18 foreclosed.  19 MR. RUSH:  I accept that.  I accept that, my lord, and if that  20 is -- if that is the determination, preliminary in its  21 nature, then I don't have a difficulty with that.  I  22 do have a difficulty in terms of Mr. Willms'  23 outstanding, as he calls it, a minor point, but I  24 think it's a very major -- it's a major point for this  25 reason, and I think my friend and I are pretty clear  26 about the significance of this:  When Miss Albright  27 finds a notched point and takes the notched point to a  28 photograph in Dr. Fladmark's book and she compares the  29 two, she has to accept Dr. Fladmark's findings that  30 the item that's in the photograph is in fact an item  31 that was found by him and, as well, his opinion that  32 that point is a lanceolated point.  And it is of  33 crucial significance to the plaintiffs that there are  34 facts, where referred to and relied upon by our  35 experts, that have been accepted and form part of the  36 work of a reference that our experts have relied upon,  37 not only for the purposes of accepting other's  38 opinions, but for the purposes of forming opinions of  39 their own based on previous research work and factual  40 presentation of other experts.  41 THE COURT: Well, the straw that the drowning camel clutched  42 might be found in the St. John case where the  43 distinction was made between the underlying facts  44 which are not admissible and the opinion which is.  45 And is it not possibly a way through these woods to  46 say that it's not the underlying facts of Fladmark  47 that Miss Albright relies upon as the opinion of 1915?  Submission by Mr. Rush  Submission by Mr. Willms  1 Fladmark --  2 MR. RUSH:  Yes.  3 THE COURT: -- the underlying facts are subsumed into his  4 opinion, but it's the opinion that she really relies  5 on?  6 MR. RUSH:  Yes, it is.  It's Fladmark's opinion that that is a  7 lanceolated point of a certain period, yes, and she  8 relies on that.  And when she has her lanceolated  9 point and compares the two, she draws her opinion  10 based on Dr. Fladmark's opinion that that is a similar  11 or if not identical lanceolated point.  12 My lord, I suppose in the crystalization of this  13 argument it really turns on the nature of the  14 reservations that are understood by the court as to  15 what constitutes the admissibility of the evidence  16 that has been relied upon and led from the experts.  17 And it's for that underlying, I suppose, issue that I  18 feel that it's -- it would be of assistance to have  19 some certainty at this point because it, in my  20 submission, does not leave open for the defendants to  21 argue hopefully at the beginning of next April that  22 there are issues of admissibility that are yet  23 outstanding with regard to the plaintiffs' evidence.  24 And it is that which I think should be dealt with and  25 for which there should be certainty at this point.  26 Now, those are my submissions with regard to the  27 issue raised by your lordship at the opening of the  2 8 day.  29 THE COURT: All right.  Thank you.  Well, I think that — well,  30 I'm sorry, perhaps Mr. Willms should be given a chance  31 to reply to that.  32 MR. WILLMS:  Thank you, my lord, because I did want to draw --  33 the portions where, for example, Miss Albright adopts  34 Fladmark's opinion and therein takes in his underlying  35 facts is not really the concern.  The concern is where  36 Miss Albright, for example, takes Dr. Ames' facts, but  37 rejects his opinion.  You see, there all she takes is  38 his facts from the investigation -- from the  39 excavation.  You'll recall that Dr. Ames did a dig at  40 Hagwilget and concluded that for a very very long time  41 light and sporadic occupation as a fishing village.  42 Now, Miss Albright said I read the same stuff that Dr.  43 Ames dug up completely differently.  I don't read it  44 that way at all.  So that is not a case where Miss  45 Albright takes Dr. Ames' opinion and with that opinion  46 the underlying facts.  She needs the underlying facts  47 because she's going to reject the opinion. 19159  Submission by Mr. Willms  1 Another example is Dr. McDonald and his work at  2 the Kitwanga Fort and the excavation there.  Once  3 again, she takes the facts that Dr. McDonald  4 unearthed, but then rejects Dr. McDonald's conclusions  5 which are set out in "The Epic of Nekt" which was  6 marked by the plaintiffs.  And so there are a number  7 of other instances.  Those are the ones that just came  8 to mind when my friend drew the distinction that Miss  9 Mandell did not do yesterday, but there is a  10 distinction.  They are not all being taken I accept  11 the opinion and therefore I accept the underlying  12 fact.  In many many cases Miss Albright says I accept  13 the underlying facts, but the opinion's wrong.  14 THE COURT:  But isn't that a matter of weighing than analysing?  15 Don't juries deal with those matters quite effectively  16 when they come to sort these things out?  If it's as  17 bald as you've just described, then the jury would  18 have no difficulty in dealing with --  19 MR. WILLMS:  If Dr. Ames' opinion is also in evidence, my lord,  20 as I think your lordship's pre-preliminary ruling  21 would have it, that would take care of it because then  22 it would be there, Dr. Ames' opinion, and you'd have  23 Miss Albright's opinion, and at the end of the day  24 your lordship could look at both of them.  But I think  25 what my friends say is that whether or not the -- they  26 don't want Dr. Ames' opinion in, they just want the  27 underlying facts in.  And I suppose if we want Dr.  28 Ames' opinion we should call Dr. Ames.  And for Dr.  29 McDonald they want the underlying facts from Kitwanga  30 Fort in so that she can rely on them, but if we want  31 Dr. McDonald's opinion, which she rejects, we've got  32 to call Dr. McDonald.  33 Now, in my submission, my lord, with your  34 lordship's suggestion earlier this morning that it's  35 in if the opinion is in and then we can argue about  36 how we deal with it at the end of the day, then that  37 does take care of that particular issue.  And it's  38 quite independent of St. John's, my lord, because I  39 made a submission earlier on what St. John's stood for  40 and, in my submission, St. John's doesn't stand for  41 being able to look to excavations at Prince Rupert  42 Harbour and take the underlying facts there and then  43 come to a conclusion somewhere else.  I mean, what  44 it -- you may be able to say there have been 19  45 excavations that are called this kind of an excavation  4 6 and I went and dug this one and this is the same kind  47 of excavation, but when you get down into the 19160  Submission by Mr. Willms  Submission by Mr. Rush  1 minutiae, and that's like the opinion on what the  2 land's worth, but I don't think I need to get into  3 that right now.  So that to that extent, my lord, that  4 it is important and your pre-preliminary ruling or  5 musing I think you called it would take care of that,  6 that problem, because then the facts would go in,  7 notwithstanding that Miss Albright doesn't adopt the  8 facts through the opinion.  She just takes the facts  9 and rejects the opinion.  But at the end of the day  10 your lordship will have the opportunity to review all  11 of it with the assistance of argument.  But I say my  12 friends cannot put in an opinion and then argue that  13 your lordship has to ignore the opinion of Dr. Ames,  14 but the witness can look at the facts.  In my  15 submission that can't be the case.  That deals with  16 that part.  17 On the other part, my lord -- and in fact that  18 deals with the admissibility objections to Miss  19 Albright.  There are no other admissibility objections  20 to Miss Albright's report save for that.  On the other  21 witnesses, as I stated to my friend earlier, there are  22 admissibility objections and I agree that the  23 admissibility objections should be dealt with.  I'm  24 prepared to restate the objections, they're not long,  25 in respect of the particular witnesses that go to  26 admissibility and not weight. And I agree with my  27 friend that he shouldn't wait while we tell him that  28 we made an admissibility objection and we're going to  29 make it again.  He's entitled to have it ruled on, in  30 my submission, and I'm prepared to deal with each of  31 the witnesses that I wrote to my friend about  32 setting -- telling him where I made the objection in  33 the transcript.  I'm prepared to deal with that today.  34 But, as I said, the submissions yesterday and the  35 submissions that we've made this morning dispose of  36 Miss Albright.  37 THE COURT:  All right.  Well, you are impelled to speak again?  38 MR. RUSH:  I'm always compelled to speak again.  39 THE COURT:  No, no, it was impelled.  There's no compulsion  40 here.  41 MR. RUSH:  Just that I do think that Mr. Willms, perhaps for the  42 first time to my ears but I'm sure not to Miss  43 Mandell's, has joined issue on the very essence of the  44 argument of yesterday's date.  And I don't want to  45 recapitulate that, but I do think, my lord, that if  46 you adopt the proposition that you can accept the  47 underpinnings of the facts of an opinion, you can also 19161  Submission by Mr. Rush  Submission by Mr. Willms  1 reject the opinion and comment on the facts or accept  2 the facts.  The question is all in what the expert  3 does with it, and I don't wish to state it any further  4 than that because I think that would be just  5 entrenching on Miss Mandell's argument, but I do think  6 that that is a point too.  7 THE COURT:  All right.  Well, I'm going to give this matter some  8 more thought.  I'm not at the moment persuaded that  9 counsel are entitled to anything more than a ruling on  10 admissibility.  If I can go further than that I will  11 do so.  I have an uneasiness, however, about  12 foreclosing a better consideration of the fine points  13 of evidence which may be possible later and after I've  14 heard counsel's submissions on the evidence which will  15 bring it together I'm sure in better form and order  16 than I'm presently able to command.  But I will give  17 it some more thought and I will certainly give counsel  18 my conclusions in written form so they may consider  19 them and if thought necessary advance further  20 arguments from that platform, the security of which I  21 will not presently warrant, but counsel can see what I  22 have to say and make such further arguments as they  23 think necessary.  24 THE COURT:  All right.  Mr. Rush, do you want your friend to go  25 through his list of objections to evidence as the next  26 order of business or do you want to do something else?  27 MR. RUSH:  Yes, I think that's what we should do.  2 8 THE COURT:  Yes.  All right.  29 MR. WILLMS:  Perhaps what we could do is deal with them one  30 witness at a time.  31 THE COURT:  Just a moment.  Now, just let me have it again as to  32 what precisely it is you're going to be doing now.  33 MR. WILLMS:  The witnesses.  34 THE COURT:  This is a list?  35 MR. WILLMS:  This will be a restatement for my friend of the  36 objections that were taken at the time the witnesses'  37 opinions were tendered which go to admissibility, in  3 8 my submission.  39 THE COURT:  Well — and these are the residue of what's left  40 over after my previous ruling or are they something  41 different?  42 MR. WILLMS:  Well, this is something different because in my  43 view your lordship's ruling dealt with Doctors Ray,  44 Galois, Lane, Morrison, and Brody.  4 5 THE COURT:  Yes.  46 MR. WILLMS:  Because that's the historical evidence.  So this is  47 the non-historical and I think, as I called it the 19162  Submission by Mr. Willms  Submission by Mr. Rush  1 other day, the more scientific.  2 THE COURT:  Yes.  All right.  Well, are you going to be asking  3 me -- asking your friend to respond to what you're  4 going to say now and asking me to rule on it?  5 MR. WILLMS:  Well, I understood -- we've told our friends where  6 the objection is in the transcript.  7 THE COURT:  Yes.  8 MR. WILLMS:  So they've had a chance to read it.  I thought that  9 my friend -- I thought the objections were clear, but  10 I'm prepared to restate my objection to the  11 admissibility of the opinion evidence of each of the  12 other opinion witnesses, the non-historical opinion  13 witnesses.  14 THE COURT: Well, I'm happy to have you do that.  I don't see  15 much point in it, however, if you've given your friend  16 written notice of what they are and if he's not ready  17 to respond to them.  I don't know.  18 MR. RUSH:  Well, the difficulty, my lord, is that what my friend  19 has done is simply set out a number of pages in the  20 transcript with relation to Miss Albright, for  21 example.  22 THE COURT:  Yes.  23 MR. RUSH:  And the pages that he's referred to in the transcript  24 he's withdrawn an objection with regard to those and  25 he is maintaining the questions part and parcel of the  26 treatises and textbook arguments.  Now, these are  27 framed in such broad language I don't know if my  28 friends are maintaining all of these objections, and  29 that's what I wanted some articulation about.  There's  30 no question that in the places in the transcript that  31 my friend has isolated that there are there set out a  32 number of objections and they were dealt with in  33 different ways.  And it's -- I think that my friend,  34 to assist the court, should state, well, what's he  35 maintaining and what objections is he going to press.  36 THE COURT:  Well, let's take the first one then and use it as a  37 pathfinder.  38 MR. WILLMS:  All right.  Well, as I said this morning, I didn't  39 withdraw the objection to Miss Albright, I made it  40 yesterday, my lord, and your lordship is going to give  41 a memorandum on that, but Miss Albright's opinion  42 evidence, the admissibility of that, turns on how the  43 treatises are dealt with, that is, the factual matters  44 in the treatise. And I think you --  45 THE COURT:  Turns on the treatise treatment.  46 MR. WILLMS:  Turns on the treatise treatment, yes, and I think  47 that's been resolved. 19163  Submission by Mr. Willms  1 Now, with respect to -- and I can put Dr. Daly and  2 Dr. Mills together because the objection to  3 admissibility is the same.  The first objection is  4 that participant observation anthropology, where the  5 participant observation takes place wholly after the  6 commencement of litigation, is inadmissible because it  7 is impossible to duplicate.  And that goes to both Dr.  8 Daly and Dr. Mills, and your lordship may recall that  9 in the authorities respecting opinion evidence the --  10 there is a tab 16 with an extract entitled "The Expert  11 in Court" which was an article in the Law Quarterly  12 Review which sets out four, and I submitted four,  13 tests for the admissibility of expert opinion.  And  14 one of the tests was is it possible to duplicate.  15 It's not necessary to be able to duplicate it, but is  16 it possible to duplicate the work that was done.  And  17 it was my submission, and it is still my submission,  18 that it is impossible once a lawsuit has commenced to  19 duplicate participant observation anthropology.  So  20 there's no method of meeting the evidence by contrary  21 expert evidence.  22 THE COURT:  Can you give me the volume and page where the  23 objection is made and where I avoided making a ruling?  24 MR. WILLMS:  The objection — the note that I have in my letter  25 for Dr. Daly is Volume 184 February 20th, 1989, page  26 11857.  27 THE COURT:  11587?  28 MR. WILLMS:  11857.  29 THE COURT:  11 — I'm sorry, 11 —  30 MR. WILLMS:  Oh, apparently I begin on 55.  31 THE COURT:  11855?  32 MR. WILLMS:  55 to 11857.  33 THE COURT: Yes.  34 MR. WILLMS:  And the report, the marking of the report is at  35 Volume 190, page -- and I just have two pages, 12397,  36 to 12398.  37 THE COURT:  The ruling I made was at page 11587 was it?  38 MR. WILLMS:  11 — no, 12397.  39 THE COURT:  All right.  40 MR. WILLMS:  12398.  And for Dr. Mills I have the ruling, but my  41 friend Miss Koenigsberg -- I don't have the --  42 MS. KOENIGSBERG: I have both.  43 MR. WILLMS:  You have them.  44 MS. KOENIGSBERG: Yes.  Volume 196, and the submissions I guess I  45 happen to make on admissibility are at page 12870.  4 6 THE COURT:  12 —  47 MS. KOENIGSBERG:  — 870. 19164  Submission by Mr. Willms  1  THE  2  MS.  3  MR.  4  5  MR.  6  MR.  7  8  MS.  9  MR.  10  MS.  11  12  13  14  THE  15  MS.  16  MR.  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  THE  32  33  34  35  36  37  38  39  40  41  42  43  MR.  44  45  46  47  COURT:  Yes.  KOENIGSBERG:  And your lordship's ruling is on 12871.  RUSH:  That should be made clear that that's on  qualifications.  That issue is on qualifications.  WILLMS:  Well —  RUSH:  Well, it makes a difference because there was a  separate argument --  KOENIGSBERG: Well, I was just going to get to that.  RUSH:  -- on the question of admissibility.  KOENIGSBERG: The submission that I made which I was  submitting went to admissibility was at 12871 and then  in Volume 199 there was a ruling through the marking  of the report as an exhibit at page 13092.  COURT:  Thank you.  KOENIGSBERG:  It was there marked subject to objection.  WILLMS:  Now, if I could just complete on the second  objection to both Dr. Daly and Dr. Mills is the  reliance on interview notes where the evidence was not  given by a witness in this proceeding and also the  reliance on land claims transcripts where the evidence  was not given by whoever was being interviewed in the  transcript in this proceeding.  And in fact, my lord,  in respect of some of the land claims transcripts  referred to I don't think they've even been tendered  by my friends.  Some of them have and some of them  haven't, but those are the two objections to  admissibility made by this defendant for both Dr. Daly  and Dr. Mills.  Now, I don't know whether I should  highlight each of the following ones or whether we  should deal with them one at a time.  COURT:  Well, speaking for myself I don't think I would want  to hear argument on this until I've looked at these  and familiarized myself with them.  I just don't think  I would be in a position to absorb the full flavour of  the submission at this time without looking at those  passages and reminding myself of them.  I don't know  if that's a convenient way to proceed, but I would  much prefer to have those matters in closer recall  than they are now before I get into a further  adversarial interaction.  Is it convenient for Mr.  Willms just to give me this kind of information and  have the argument some other time?  RUSH:  I don't have a problem with that, my lord.  It's just  that I think that Mr. Willms is perhaps desiredly  truncating somewhat the references.  There are some  other references there which I think you could be  assisted by -- 19165  Submission by Mr. Willms  Submission by Mr. Grant  1 THE COURT:  Oh, I'd be glad to —  2 MR. WILLMS:  My lord, I didn't purport to set out my friend's  3 submissions at the same time.  I mean, they're in and  4 around the same pages, but I just -- my friend wanted  5 to know where we objected and what we said and so I  6 let him know.  7 THE COURT:  All right.  8 MR. WILLMS:  But there may be surrounding references.  9 THE COURT: Well, I'd be glad to have them from you now or by a  10 memo, Mr. Rush, if that's convenient.  11 MR. GRANT: My lord, I can speak on Dr. Daly.  In terms of the  12 proposal you raised, that's fine.  I was going to be  13 prepared to argue about Dr. Daly, but I think what's  14 very important here for you to appreciate here is  15 that, and I want my friend to be clear, that he is now  16 saying that these two objections that he has set out  17 here are his sole objections on the admissibility of  18 Dr. Daly's report because when you look at the  19 transcript -- this is the difficulty with his letter.  20 He had -- he raised a whole series of different  21 objections and we didn't know until this moment, so I  22 take it these are the only two objections on  23 admissibility and any of the others that are in the  24 transcript he is not now proceeding upon on  25 admissibility.  26 MR. WILLMS:  That is correct, my lord, for Dr. Daly and Dr.  27 Mills these are the two. I mean, there are many things  28 that have happened during the course of the trial  29 either during the evidence of each particular witness  30 or subsequently that have dealt with some of the other  31 obj ections.  32 THE COURT:  Those references I was given, I have a feeling that  33 they're all related to Dr. Daly.  Was I given any  34 references to Dr. Mills?  35 MR. WILLMS:  I think the references Miss Koenigsberg gave were  36 Dr. Mills'.  37 THE COURT:  Volumes 196 and 199?  38 MS. KOENIGSBERG:  Yes.  39 THE COURT:  All right.  Thank you.  40 MR. RUSH:  My lord, I'd just like to add to that I think you  41 would be benefited by the reference at 12883 through  42 to 12891.  That's where Mr. Mackenzie raises similar  43 objections that were raised by Mr. Willms in the  44 course of Dr. Daly's evidence, but these were repeated  45 in Dr. Mills'.  46 THE COURT: What volume is that in, please?  47 MR. RUSH:  I think it was 196. 19166  Submission by Mr. Willms  1 THE COURT:  Yes.  2 MR. RUSH:  I think it's 196, my lord.  3 THE COURT:  All right.  4 MS. KOENIGSBERG: I'll just check.  5 THE COURT:  All right.  6 MR. GRANT: And regarding Dr. Daly references I don't believe my  7 friend referred to pages 11821 through to 11825.  Now,  8 these include certain other arguments, but include the  9 argument on this.  10    THE COURT  11 MR. GRANT  12 THE COURT  And that's also Dr. Daly  9  That's Dr. Daly.  All right.  Thank you.  All right.  What's your next  13 point, Mr. Willms?  14 MR. WILLMS:  My friend Miss Koenigsberg reminded me that I also  15 made the Emil Anderson argument on this is really  16 argument and not expert opinion, but in my submission  17 in that respect because of rulings that have taken  18 place in this case, your lordship can disregard that  19 as a matter of weight at the end of the day rather  20 than as a matter of admissibility.  I did raise that  21 and I take my friend's point that he wants to know the  22 narrow ones and that particular -- and I did make that  23 argument with respect to each witness, my lord, but  24 there's no question that each witness expresses  25 opinions, true opinions, rather than just argument  26 disguised as opinion.  We can deal with all of that in  27 final argument.  2 8 THE COURT:  All right.  29 MR. WILLMS:  Now, I did point out to my friends the portions of  30 Mr. Morrell's report where your lordship did make  31 rulings and I only pointed that out not to revisit  32 them because the rulings have been made, but only  33 because it was left.  I think that my friends may wish  34 to revise the report or do something to retender it.  35 I don't think -- I didn't know whether they were  36 planning on doing that or not.  If they're not  37 planning on doing that, then Mr. Morrell is dealt  38 with.  39 THE COURT:  You say nothing required at this time.  40 MR. WILLMS:  I say nothing required with respect to Mr. Morrell.  41 The next witness that I made a note of was Mr.  42 George, and the objection to Mr. George's -- and it  43 was an objection that went through a number of  44 different maps, my lord -- was that the Marvin George  45 working maps were maps that were prepared by four  46 people, Mr. Sterritt, Mr. Williams, Mr. Marvin George  47 and I believe Mr. Leonard George, and what they did 19167  Submission by Mr. Willms  1 was they apparently went around and talked to elders  2 and got names of peaks and transferred those names on  3 to these large maps, and then from these maps then Mr.  4 George started preparing his other maps.  And I  5 objected to all of the maps all the way from the  6 working maps to the final product on the basis that  7 inadmissible hearsay formed -- that all of the maps  8 had as their foundation inadmissible hearsay.  9 THE COURT:  You say that inadmissible hearsay is at the root of  10 all of the working maps?  11 MR. WILLMS:  It's at the root of all of the working maps because  12 it is what Leonard George and Marvin George were told  13 by elders when they went around and marked the maps up  14 and what I believe is Mr. Sterritt and Mr. Williams  15 were told for the Gitksan territories.  And those, my  16 lord -- and because there were a number of maps that  17 were objected to, if you -- and this was the best that  18 I could do because it came up again and again.  It's  19 in Volume 216 starting at about page 15704, but every  2 0 time a new map was tendered I think I stood up and  21 said something like "same objection", and your  22 lordship noted that, and each of the maps was marked  23 on the same basis.  24 And then going to Volume 217, pages 15759 --  25 THE COURT:  I'm sorry, 15759?  26 MR. WILLMS:  15759 all the way through to 15798 and, once again,  27 it's not that that is an objection through that whole  28 transcript, but every time a document was marked, and  29 I think at some point I -- and I can't recall exactly  30 where it is, suggests that it -- perhaps I wouldn't  31 need to object on each one because the objection was  32 the same.  And your lordship may have said subject to  33 that objection at the time of the marking.  34 THE COURT:  Yes.  35 MR. WILLMS:  But that's the objection.  Then Mr. George's report  36 was marked subject to objection, Volume 218, at page  37 158 --  38 THE COURT:  I'm sorry — oh, sorry, volume?  39 MR. WILLMS:  Sorry, 218.  4 0 THE COURT:  Yes.  41 MR. WILLMS:  Page 15843.  42 THE COURT:  Do you have an exhibit number for the report?  Oh,  43 it doesn't matter.  I can find it.  44 MR. WILLMS:  And there, my lord, the two objections were -- of  45 course the first objection is the continuing objection  46 to the underlying information from the working maps on  4 7              up. 1916?  Submission by Mr. Willms  1 THE COURT:  Yes.  2 MR. WILLMS:  And then I also made an objection as to argument  3 and beyond the scope of Mr. George's expertise and in  4 that respect my recollection is that your lordship  5 dealt with that objection.  6 THE COURT:  I made a ruling.  7 MR. WILLMS:  Your lordship, if I can -- yes, Mr. George's report  8 is Exhibit 998, and I think it's for identification.  9 My note is that it's —  10 MR. RUSH:  I thought it was 998 for the — subject to  11 reservations that had been raised about it.  12 MR. WILLMS:  That's right, my lord.  The objections were made at  13 15842 which all relate to the underlying hearsay  14 objection, and then I also made an objection which --  15 that one through five usurped your lordship's function  16 and in that respect, I mean, that can be argued at the  17 end of the day. That doesn't need to be argued now.  18 For example, when Mr. George gives the opinion  19 that those are the external boundaries of the Gitksan  20 and the Wet'suwet'en, that of course is a matter  21 solely for your lordship.  I mean, certainly Mr.  22 George can say that he took some information and  23 plotted it on a map, but he can't say that that's the  24 external boundary of the Gitksan-Wet'suwet'en.  And  25 that, in my submission, can be left for final  26 argument.  It doesn't really go to admissibility.  It  27 really goes to what your lordship can take from the  28 report.  2 9 THE COURT:  All right.  Do you have a page reference where you  30 say I made a ruling?  31 MR. WILLMS:  Yes.  Your ruling is at 15843 — sorry, starts at  32 15842.  33 THE COURT: All right.  34 MR. WILLMS:  Over to 15843.  35 THE COURT:  All right.  Thank you.  36 MR. WILLMS:  Now, I do understand and I -- that in respect of  37 Mr. Brody that my friend Miss Koenigsberg has sent  38 some references and my position with respect to Mr.  39 Brody is that he didn't express any anthropological  40 opinions really.  He was just a historian and that's  41 covered by your lordship's earlier ruling.  42 THE COURT:  All right.  43 MS. KOENIGSBERG: I can give your lordship the citations for the  44 submissions that we said go to admissibility and we  45 say still do.  There were submissions and a ruling on  46 the issue of bias.  Those are found at Volume 210,  47 pages 142 -- I can't read the writing.  Just a sec, 19169  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  14215 --  THE COURT:  Yes.  MS.  KOENIGSBERG: — to 14226.  Then there were submissions  which were lengthy on the issue of relevance and that  it was based on inadmissible hearsay, et cetera, which  are all set out again in Volume 210 and pages 14233  through 14239, and then in Volume 211 at pages 14241  to 14251, and your lordship marked -- made a ruling on  the marking of the report in Volume 211 at pages 14251  and over to 52.  THE COURT:  Thank you.  Is that it?  MR. WILLMS:  In respect of this matter, yes, my lord, and I  don't know whether my friends want to say anything.  There are a number of other things that could be done,  but it would be more useful for the next items that we  wish to deal with to start them at two o'clock.  THE COURT:  Yes.  All right.  MR. RUSH:  Just we should be aware of what these items are, my  lord, because it might be that we're not in a position  to deal with some of these.  But --  THE COURT:  You mean these here?  MR. RUSH:  No, no, not the ones we've just discussed, but rather  the ones that are upcoming that are suggested by my  friends, and I -- yes, perhaps I should have an  indication from your lordship as to what time frame  you would be thinking of with regard to dealing with  these objections.  THE COURT: Oh, I assumed we'd be all day, but I can sit later  today if we have to.  MR. RUSH:  Well, this was my confusion.  Is your lordship going  to now go and read these?  THE COURT:  Oh, no.  MR. RUSH:  These will be done on a separate day? That's what I'm  interested in.  THE COURT:  Yes.  That will have to be so.  I have something  else I have to do --  MR. RUSH:  Then —  THE COURT:  -- in addition to eating lunch.  Are you suggesting  we don't need to come back this afternoon, Mr. Rush?  MR. RUSH:  No, I'm not suggesting that, my lord.  I don't know  if we'll have to come back this afternoon, but I would  like to know what in my friend's agenda they see  dealing with this afternoon because there were some  things that were being done by other counsel this  morning.  THE COURT:  I see.  MR. RUSH:  And we will have to determine if that has been 19170  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  MR.  THE  MR.  THE  MR.  achieved.  COURT:  You want Mr. Willms to outline what he wants to do  this afternoon?  RUSH:  Yes.  It took me a long time to get to that.  WILLMS:  My lord, there is the Fletcher affidavit, which my  friend wanted to consider; there is the letter that we  sent a couple of -- maybe in last week, but certainly  very early this week about listing exhibits for  identification which we want to tender as exhibits  proper, and they've got a list of those, and we want  to formally tender them as exhibits proper this  afternoon, and I mentioned that yesterday.  The other  matter is the alienation series which have been --  most of them have either been marked for  identification or some of them have been marked  subject -- marked for a limited purpose like the  trapline map.  COURT:  Doesn't that depend on some more cross-examination?  WILLMS:  Well, no, my lord, it will be my submission -- what  I will be tendering this afternoon are the five  custodial affidavits and seeking to have them marked,  and then my friends have already cross-examined on  one, they can cross-examine on the other four, and I  will be asking that the identification be removed from  the five related maps, and if my friends have an  objection to that, I will hear that objection to doing  that.  And that's what we propose to do this  afternoon.  All right.  My lord, I'd advised Miss Sigurdson yesterday that we  were not in a position to deal with these exhibits for  identification because of the scheduling that counsel  for the plaintiffs were in this week, except for she  wished to tender cross-examinations of -- on the  territorial affidavits, and that we can deal with  that, but the others we were not in a position to deal  with, either the plaintiffs' or defendant's exhibits  for identification, today and I advised counsel of  that yesterday.  All right.  Well, I'm going to adjourn until two  o'clock then.  There's something we can do this  afternoon, so we'll come back and do that much anyhow.  REGISTRAR: Order in court.  Court stands adjourned until two  o'clock.  COURT:  GRANT:  THE COURT  THE 19171  Discussion  1 (PROCEEDINGS ADJOURNED FOR LUNCH RECESS)  2  3 I hereby certify the foregoing to  4 be a true and accurate transcript  5 of the proceedings herein to the  6 best of my skill and ability.  7  9 Tanita S. French  10 Official Reporter  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 19172  Proceedings  Discussion  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON RECESS)  2  3 THE COURT:  Right.  Who's next?  4 MR. WILLMS:  My lord, I know my friends said before the break,  5 before the luncheon adjournment, that the list that  6 was sent over on exhibits for identification which we  7 wanted to tender as exhibits proper they weren't  8 prepared to deal with them yet, but I note from  9 reading the list that all save three or four are Neil  10 Sterritt's notes, two -- one of them is a document  11 that's been admitted in, a notice to admit, another  12 two are articles which are covered by -- are covered  13 by rulings on authenticity of documents, two of them,  14 450 and 451, are ancient documents, and another one is  15 an interview of a plaintiff transcribed.  So I would  16 like to know -- I understand my friends can't deal  17 with that.  I would like to know when they will be  18 able to deal with it, because it's certainly not  19 contentious.  20 MR. GRANT:  Well, my lord, my friend — I don't think we need to  21 spend any time on this.  Quite simply, my lord, this  22 letter, if I recall correctly, came at the beginning  23 of this week, and counsel in dealing with this matter  24 has been in court.  It may have been on Friday.  25 MR. WILLMS:  Yeah, it was a week ago, my lord.  26 MR. GRANT:  Yes, it was Friday.  I was in transit.  I was trying  27 to deal with it.  I was in transit here.  Some of our  28 exhibits on cross-examinations were in my offices.  I  29 brought those down.  Some are in Mr. Rush's office.  30 Some of them are in our room here.  It's a matter of  31 just getting the time to verify what the exhibits are.  32 If it's all as uncontentious as my friend considers,  33 and the one I did have an opportunity to look at  34 seemed to be completely uncontentious, I think we can  35 deal with it in about three minutes, but we have to  36 verify that.  There are many, many exhibits for  37 identification that have to be dealt with.  We want an  38 opportunity to verify that.  I haven't had the time  39 this week because I was involved with Mr. Shelford.  40 THE COURT:  I'm not enthusiastically disposed of forcing people  41 to deal with matters today if they say they're not  42 ready to deal with them.  I always found that to be a  43 futile process and a time wasteful one.  So, I think,  44 Mr. Willms, we'll pass on that one.  45 MR. WILLMS:  No.  All I wanted, my lord, is — the unfortunate  46 position it puts us in is my friends stand up and they  47 don't object, they don't admit, they just said we're 19173  Proceedings  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  not ready, in a week they're not ready, and six months  they're not ready.  It doesn't get done.  MR. GRANT:  That's not correct, my lord.  I got this letter last  Friday.  I explained the background.  If it's all  uncontentious I'm sure we can deal with it.  We are  dealing with a whole series of these matters, as your  lordship knows, outstanding matters of the plaintiffs'  case.  We are not endeavoring to delay this, it's just  counsel needs time.  THE COURT:  All right.  What's next?  MR. WILLMS:   Next, my lord, it's an affidavit.  There were five  affidavits respecting the underlying documents, my  lord, which were filed in July of 1987, five custodial  affidavits.  Cross-examination has taken place on one  of them, and I would like to tender each one now and  have them marked as exhibits proper.  The first one is  the affidavit of Percy J. Vandy --  MR. RUSH:  Well, I don't think any of these should be marked  until the cross-examinations have occurred, my lord.  MR. WILLMS:  Well, my lord.  THE COURT:  I don't think the plaintiffs' territorial affidavits  were marked until after the cross-examination.  MR. WILLMS:  They were marked, my lord.  Some of the plaintiffs'  territorial affidavits bear exhibits 213, number 213  or early numbers.  They were all marked.  Many of them  or most of them were marked prior to any  cross-examination on the affidavit.  COURT:  I don't recall that, but —  WILLMS:  Well, if I'm wrong I'm sure my friends will stand  up right now and correct me.  COURT:  I made an order that there be a cross-examination on  affidavits, but I don't remember that -- that they  were filed in advance, but --  WILLMS:  Well, in point, my lord, except for one or two  exceptions I don't think any of the cross-examinations  on the territorial affidavits have been filed yet, but  all of the territorial affidavits have been marked as  exhibits in this proceeding.  THE COURT:  The cross-examinations haven't been filed, I don't  think.  MR. GRANT:  Some —  THE COURT:  Some have.  MR. RUSH:  Yeah, sure.  MR. WILLMS:  One or two.  But, my lord, this procedure, the  custodial affidavit procedure, in my submission,  coming as a result of your lordship's ruling on how to  deal with this, the cross-examination, doesn't render  THE  MR.  THE  MR. 19174  Proceedings  Discussion  1 the affidavit admissible or inadmissible.  The  2 cross-examination is the cross-examination.  But we  3 would like to mark -- mark them as exhibits at this  4 time, the five that have been delivered to my friends.  5 THE COURT:  Well, I'm — I don't think there's any magic in  6 this.  I think that the affidavits don't have to be  7 marked now, but if you want to identify them, and  8 subject to what your friends said, I'll make an order  9 there be cross-examination on those affidavits.  10 MR. WILLMS:  I think that's already been done.  11 THE COURT:  Has it?  12 MR. WILLMS:  There has already been an order that this evidence  13 be led on the custodial affidavit and that my friends  14 cross-examine on it.  15 THE COURT:  I don't know if you want them marked, Mr. Willms,  16 because your friend doesn't want them marked, or your  17 friend doesn't want them marked because you do.  It  18 doesn't seem to me to make any difference.  19 MR. WILLMS:  I want them marked because I'm going to ask the  2 0 other documents be marked.  21 THE COURT:  What other documents?  22 MR. WILLMS:  The documents these go to.  For example, this  23 custodial affidavit is in respect of Exhibit 24B which  24 has been marked for identification, and I am going to  25 be submitting once this affidavit is marked that  26 Exhibit 24B should be an exhibit proper at this trial,  27 and then I'll going to be submitting that Exhibit 24B  28 should be an exhibit proper at this trial.  29 MR. RUSH:  Isn't that the very problem, my lord.  There's  30 nothing magic in the affidavit, but a lot of magic in  31 these maps, and they're all, in my submission, it's a  32 function of the cross-examination as to whether or not  33 these maps have any utility at all in their form.  34 THE COURT:  Just a moment.  Why should underlying documents be  35 marked until the affidavit -- the cross-examination  36 takes place.  Surely that's the point of the  37 cross-examination for your friends to argue that the  38 maps should not be marked, or the underlying documents  39 should not be marked.  40 MR. WILLMS:  Well, my lord, there would be in respect of  41 procedure if that was the concern of my friends.  That  42 is that the -- there are some problems with the  43 custodial affidavits and there, you know, my friends  44 may explore what they may.  But throughout this trial  45 starting with Mr. Rush early in the trial talking  46 about having his cartographer look at the base maps  47 through to my cross-examination of Marvin George to 19175  Proceedings  Discussion  1 show he did not look at the plaintiffs' alienation  2 series through to my examination of Mr. Skoda, the  3 plaintiffs' cartographer, we now showing he didn't  4 look at the topographic material as a basis, it's my  5 submission that if I tender the document now that I'm  6 entitled, in my submission, to my friends complete  7 objections.  Not just the objection that there's  8 cross-examination that they need to do on the  9 underlying documents, but if my friends say that they  10 object to, for example, the transfer of the underlying  11 material cartographically to the map, or if my friends  12 say that they object to the cartographic information  13 that is on the map that, in my submission, by  14 tendering it now I'm entitled to have all of my  15 friends' objections placed on the records so that we  16 may deal with all of them.  What I fear, my lord, is  17 that we'll have cross-examinations on the affidavits,  18 we'll come in, solve all of my friends' concerns about  19 custody and about business records, and then have an  20 objection at that time to some cartographic inaccuracy  21 or insufficiency of either the map itself or the  22 transfer from the underlying document to the map.  23 Now, I've asked my friend a number of times in court,  24 and especially during the cross-examination of Marvin  25 George, and during the cross-examination of Lou Skoda,  26 if there is any cartographic problem that the  27 plaintiffs have with these maps, and I've been met  28 with stoney silence.  And, in my submission, this is  29 an appropriate way to have my friends state for the  30 record what his objections are.  And if his objections  31 just go to the underlying documents, either they're  32 not business records or the custodial affidavits are  33 insufficient to prove them, so be it.  Then we'll deal  34 with it on that basis, but if he has additional  35 objections, my lord, in my submission, those should be  36 set out on the record as part of the objection to me  37 tendering this material, otherwise great unfairness,  38 in my submission, will take place if at a later time  39 in October my friend says after we've satisfied the  40 business records exception to the hearsay rule, after  41 we've satisfied the custodial issues my friend then  42 says:  Oh, well, this is all inaccurate.  My own  43 cartographer says that you've done it all wrong and  44 therefore you better prove it, because I want to  45 cross-examine on that.  Now, in my submission, my  46 lord, the way for us, the defence, to know what it is  47 that we need to meet is appropriate to tender the 19176  Proceedings  Discussion  1 document now and have my friend state for the record  2 what his objections are.  All of them.  3 THE COURT:  Well, I think that is a different matter.  I think  4 you are tendering the documents and your friend says  5 it isn't timely to have them marked.  I'm not going to  6 get very excited whether they're marked or not.  I  7 think there may be some fairness-substance in wanting  8 to know what the objections are, and I think your  9 friend should at an early date give you a clear  10 statement of what his objections are and why they  11 shouldn't be marked.  And it seems to me it's a  12 question of fixing a time within which that might be  13 done.  Are you in a position to respond to that, Mr.  14 Rush?  15 MR. RUSH:  Well, stoney silence my friend talks about.  I might  16 read the letter I sent to Mr. Mackenzie on April 23,  17 1989 with regard to what we were prepared to do with  18 regard to the alienation maps.  The point of  19 cross-examination is to probe the reliability or the  20 confidence that we can place in the underlying  21 information which was said to have been transferred  22 from these underlying facts onto the map.  And in at  23 least the one cross-examination that has been  24 conducted, frankly, I don't have much confidence in  25 the underlying or the information that that witness  26 had about the underlying information.  However, that  27 may change.  There is, in my submission, information  28 on the maps that's -- that has become apparent in the  29 presentation of the defendant's witnesses now that is  30 certainly not up to date, so what I can say is that I  31 think it is the function of the cross-examinations  32 about to happen, which my friend didn't advise you  33 that we had agreed that we were open to having these  34 cross-examinations, that was convenient for counsel,  35 in Victoria as suggested by my friend in the month of  36 August, and we suggested a date.  It's not as though  37 there's nothing happening on this side, as my friend  38 would suggest.  And, in my submission, my lord,  39 what -- when we have completed these  40 cross-examinations it seems to me that's the time when  41 my friend might have a reasonable request to make of  42 us, and that is do you have any other objections.  And  43 what we're trying to do is look at the material and  44 clear up what we think are the difficulties with this  45 process, because we think essentially it is not a very  46 convenient way to amass a huge volume of essentially  47 opinion material and place it on a map. 19177  Proceedings  Discussion  1 THE COURT:  Well, it's over two years ago that Mr. Goldie  2 interrupted plaintiffs' case in Smithers to make his  3 application to have the alienation documents admitted  4 into evidence, and I suppose cross-examination was  5 ordered at that time.  Although, I don't think the  6 affidavits were then extant, but I notice that this  7 one is filed July 14th, 1987.  And I think that the  8 time has come when there should be some -- some  9 finality to that.  And I take that to be maybe what  10 Mr. Willms is seeking so that he will have an early  11 appreciation of where -- or not early, but a timely  12 appreciation of what difficulties there are, and for  13 that reason it seems to me that we ought to have the  14 formal argument on these matters early in September.  15 And I'll leave that to counsel to schedule.  I expect  16 it's included in Mr. Goldie's schedule already.  I  17 think I heard about this this morning, and I think  18 what we need now is probably a time within -- within  19 which the cross-examination will have to be  20 undertaken.  Is the end of August a reasonable time to  21 fix for the completion of the cross-examinations?  You  22 have the affidavits now.  23 MR. RUSH:  We have one set of affidavits, and that set we've had  24 discussion -- discussions about, and I thought some  25 measure of agreement.  Certainly in my letter to Mr.  26 Mackenzie I told him we were ready to go ahead with  27 those cross-examinations, four of them, in the month  28 of August in Victoria.  29 THE COURT:  Yeah.  What other affidavits are there?  30 MR. RUSH:  Well, today Mr. Goldie advised the court that there  31 will be another set of custodial affidavits which we  32 do not yet have which he promises by the end of the  33 month, which presumably we'll be -- desire affidavits  34 on those cross-examinations if they're like the kind  35 we already have.  Now, if those can be produced in a  36 timely way then presumably we can try again to  37 schedule another set of cross-examinations for those  38 affidavits.  And there was -- Mr. Grant reminds me  39 that there was some comment by Mr. Goldie that perhaps  40 that would be done in court in September.  Now, for my  41 part that's not necessary to do it in court, but it  42 may reflect what Mr. Goldie's view is of the  43 scheduling of these things and how we can fit them in,  44 but I would think to answer your lordship's earlier  45 question that to schedule to completion by the end of  46 August might be somewhat early.  I think it certainly  47 could be done by the middle of September. 1917?  Proceedings  Discussion  1 THE COURT:  Well, I think that's a little bit late if Mr. Goldie  2 is going to anticipate closing the defendant's case in  3 late October.  If there's something that has to be  4 done that resulted from the cross-examination there  5 has to be time to do it.  Maybe I can ask Mr. Goldie  6 how many more affidavits do you expect to be tendering  7 in this area?  8 MR. GOLDIE:  I mentioned this morning, my lord, I couldn't give  9 that number because we are trying to have one person  10 swear to as many of the custodial aspects of a number  11 of exhibits as possible.  12 THE COURT:  And is there a special reason why you propose to  13 having this cross-examination in court rather than out  14 of court?  15 MR. GOLDIE:  No, I put it this way, at least I believe I put it  16 this way, that in my schedule I said those custodial  17 affidavits which could not be examined out of court  18 would have to be examined in court.  My suggestion is  19 that if my friends are not -- do not feel that they  20 can argue to state the objections other than on the  21 custodial aspect at the present time that we have an  22 argument with submissions on objections to the  23 alienation series at the conclusion of the evidence of  24 Messrs. Steventon and Marshall.  That meets the  25 concern of Mr. Rush that at the end of August would be  26 too late.  It would, I hope, have got a good deal of  27 the underlying material out of the way.  And I  28 continue to hope that perhaps my friends might  29 reconsider the point that Mr. Willms made, which is  30 the transfer of the material from A to B.  The map is  31 done in an unexceptional way.  32 THE COURT:  All right.  Well, I think that I will content myself  33 by giving leave, if it's required, to cross-examine on  34 these affidavits filed and to be filed, and I think  35 that it -- I think the affidavits to be filed should  36 be filed before the end of this month.  And I think  37 the cross-examination should all take place before the  38 end of the evidence of the witnesses who have been  39 mentioned.  I have their names here somewhere.  40 MR. GOLDIE:  Steventon and Marshall, my lord.  41 THE COURT:  Steventon and Marshall.  Yes.  Sounds like a  42 department store.  And if not then we'll have to see  43 whether there is time to have the cross-examinations  44 in court or after court or when.  I do not think it is  45 necessary that the affidavits and the underlying  46 documents be marked at this time.  I think -- I think  47 the course of wisdom is not to mark them in case 19179  Proceedings  Discussion  1 something dramatic is developed in the  2 cross-examinations, which is what the  3 cross-examinations are for is to determine if there's  4 any reason not to have them marked.  It would be  5 premature, I think, to mark them now.  I think the  6 desire of the defendant to have the objections clearly  7 delineated is satisfied by the course that I have just  8 outlined, and I don't think we can initially do  9 much -- usefully do more about it at this time.  10 MR. GOLDIE:  My lord, may I raise again the affidavit of Mr.  11 Fletcher and ask if my friends have had an opportunity  12 of reading that affidavit, because if they still have  13 a concern about it, having regard to what I have said  14 in light of your lordship's ruling made at the time  15 Mr. Shelford gave his evidence, then what I would  16 propose doing is taking his affidavit and indicating  17 to your lordship and to my friends the areas that I  18 consider in his affidavit would be subject to the  19 Shelford type of objection if made.  In that way -- if  20 my friends say yes, we make that objection in that way  21 we can have this affidavit dealt with as if the  22 witness was in the stand, the questions were being put  23 to him and objections taken, and we can get on with  24 the job of examining him and get that out of the way.  25 And subject to your lordship's directions that's what  26 I would wish to do at this point.  27 THE COURT:  Have you had a chance to read the affidavit, Mr.  2 8 Rush.  29 MR. RUSH:  Yes, I think we can go ahead.  30 MR. GRANT:  I can deal with this.  I take — the plaintiffs take  31 exception to the reading in of any part or the  32 tendering of this affidavit.  My lord, I've just in a  33 brief time copied the amendments to the Supreme Court  34 Rules that deal with this.  35 MR. GOLDIE:  May I have a copy, please?  36 MR. GRANT:  I just have one copy.  It's Rule 42.  I'll read out  37 the relevant section.  This, of course, is the April  38 19th, 1989 rule.  And it's Rule 42 that says:  39  40 "The evidence of a witness..."  41  42 It's on the second page, my lord.  43  44 "May be given by affidavit if a copy of the  45 affidavit is furnished to every party of record  46 by the party tendering the affidavit at least  47 30 days before the affidavit is given in 19180  Proceedings  Discussion  1 evidence. "  2  3 Rule 43 — sub rule 43.  4  5 "The deponent of an affidavit under sub rule 42  6 may only state, would be permitted to state if  7 the evidence to be given orally."  8  9 And then there's provisions for cross-examination.  10 Rule 40 sub 48 sets out:  11  12 "The court may on the application of a party  13 furnished with an affidavit under sub rule 42  14 order that the evidence contained in the  15 affidavit be given orally where the court  16 considers;  17 A) that the evidence contained in the evidence  18 is controversial, or;  19 B) there is some other good reason why the  20 evidence should be given orally."  21  22 Now, with respect to this witness, or this  23 affidavit, my lord, the affidavit is 19 paragraphs  24 long.  Paragraphs 3, 4, 6, 12, 13, 14, 17, 18.  25 MR. GOLDIE:  Just -- can you just do that a little more slowly.  26 MR. GRANT:  I'm sorry.  27 MR. GOLDIE:  3, 4, 6?  2 8 MR. GRANT:  3, 4, 6.  29 MR. GOLDIE:  Yes.  30 MR. GRANT:  12, 13, 14, 17, 18 and 19.  31 MR. GOLDIE:  Yes.  32 MR. GRANT:  Contain inadmissible hearsay.  That's the first  33 problem.  So, in other words, nine out of 17  34 paragraphs, and, of course, I've excluded a paragraph  35 1 which is the I have personal knowledge paragraph and  36 paragraph 2 that says there's a map here that I'm  37 going to refer to.  I've excluded those two, so nine  38 out of 17 paragraphs are in our submission entirely  39 inadmissible.  40 Now, the second point is this, the rule, my lord,  41 says that the court may on application of a party or  42 the evidence contained in the affidavit be given  43 orally where the court considers A, that the evidence  44 contained in the affidavit is controversial.  In this  45 affidavit paragraphs 4, 6, 12, 13, 14 --  46 MS. KOENIGSBERG:  Slower.  47 MR. GRANT:  17, 18 and 19 all contain controversial material. 19181  Proceedings  Discussion  1 What my friend purports to do in this affidavit -- my  2 friends purport to do in this affidavit, my lord, is  3 to directly contradict a substantial amount of  4 evidence that you have heard in this trial by way of  5 an affidavit and then have the witness away from the  6 court being cross-examined.  The issue, my lord, will  7 involve an issue of credibility.  It is, I submit,  8 entirely inappropriate in this case for this type of  9 evidence to be given by way of affidavit.  There  10 are -- and I submit that where you have that kind of a  11 problem that the use of affidavit evidence is not  12 appropriate.  And that is not the purpose of the rule.  13 It is certainly not the intent of the rule to have  14 substantially, and as I say substantially inadmissible  15 evidence in an affidavit which my friend says we'll  16 deal with that as objections as they come up.  I had  17 proposed to my friend if you prepare an affidavit that  18 has got none -- an affidavit of Mr. Fletcher that does  19 not contain objectionable evidence we would be happy  20 to reconsider our position, and I have got no response  21 to that.  My friend mentions this letter.  I have not  22 seen a response to that I should say, because he may  23 have responded to it in the letter he referred to this  24 morning, but there has certainly not been an amended  25 affidavit prepared.  Oh, yes, there is a letter, but  26 where my friend sets out his position that he would --  27 the -- that he has raised in court here, and he  28 suggests that Mr. Fletcher be scheduled for August  29 22nd.  This morning he suggested something about 14th  30 and 15th of August, which I may say to my friends  31 those dates are not going to be possible for the  32 plaintiffs' counsel.  I determined that over the lunch  33 hour.  But, in any event, this is not the type of  34 evidence that is intended by the rule, my lord, to be  35 done by affidavit.  This is evidence that is clearly  36 tendered to directly contradict the oral evidence  37 you've heard before your lordship.  And if this is all  38 of the evidence that my friend wishes to call we're  39 not talking about extreme extension of trial time.  40 This is generically the same kind of thing that we've  41 already heard, and these witnesses are relatively  42 short, but this is -- there are two problems here, my  43 lord.  One is the hearsay, and the evidence is so full  44 of hearsay that the affidavit should not be filed as  45 it is.  I mean, my friend says well, we can object as  46 though the witness is in the stand, but when the  47 witness is in the stand and the objection is taken -- 19182  Proceedings  Discussion  1  THE  COURT  2  MR.  GRANT  3  4  5  6  THE  COURT  7  MR.  GRANT  8  9  10  THE  COURT  11  12  13  14  15  MR.  GRANT  16  THE  COURT  17  MR.  GRANT  18  THE  COURT  19  20  MR.  GRANT  21  22  23  24  THE  COURT  25  26  27  28  MR.  GRANT  29  30  31  32  33  34  35  36  37  THE  COURT  38  39  40  41  42  43  44  45  46  47  Where is the hearsay in paragraph 12?  I'm sorry, my lord.  Just a moment.  I never  heard -- the second paragraph, my lord, second  sentence, "I never heard anything from from them about  Indians hunting or roaming around the Alpine areas."  Yeah.  That's not hearsay.  Well, presumably -- presumably he talked to them.  Maybe he didn't.  I understand because it's negative  maybe --  Yeah, but it proves nothing more than what it  states, that I never heard anything from old time  prospectors about Indians having roaming around the  Alpine area.  You might say so what to that, but it's  not hearsay.  Well, that —  13 is a little bit different.  Yes.  Although it could easily be edited so it was  inobj ectionable.  But, my lord, what I'm saying is that even if we  edited out the hearsay here what we have proposed here  is to the defendants to call evidence in this manner  that is highly controversial and is in issue --  I'm sorry.  I'm only up to paragraph 14.  I don't  see anything very controversial in any of this.  This  is all evidence he could easily give in the witness  box.  Wait a minute.  What I'm saying, my lord, is it's  controversial.  There's two points here.  One is it's  -- it contradicts evidence that you have heard.  It's  an issue between the parties.  You're going to have to  weigh this evidence up between the two parties.  And  you're going have to weigh it up on the transcript of  this witness as opposed to the oral evidence of the  plaintiffs' witness.  And Rule 48 suggests, I would  say, that it makes -- 48(a) of the rules that --  Well, I think that controversial has to be given a  reasonable definition.  It may be controversial in the  sense that it isn't what the plaintiff would like him  to say, but if there isn't much likelihood that he's  going to be shaken on cross-examination then that risk  can be taken by having him cross-examined out of  court.  But in paragraph 14 he says I never saw any  Indians in the Silver King Mountain Cronin Mountain  area during the entire time I was packing, hunting,  trapping and guiding through that area.  I think it  highly unlikely that in cross-examination he's going 19183  Proceedings  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  GRANT  COURT  MR. GRANT  THE  MR.  THE  COURT  GRANT  COURT  MR. GRANT  THE  MR.  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  COURT  GRANT  to be shaken as on television and say yes, I saw all  kinds of Indians in this area.  That doesn't happen in  litigation, only on television.  I appreciate that, my lord, only too well.  It's controversial and different from what other  witnesses have said, but not necessarily different.  He says if they were there I didn't see them.  But what I'm saying, my lord, is at the end of the  day you're going to be asked to weigh the evidence of  this witness as opposed to the evidence of the others.  Yes.  And certainly -- and certainly --  That's a problem we have -- we've learned to deal  with that ever since we -- parties were allowed to  file medical reports.  One files a medical report the  other calls the doctor.  They both say something  completely different.  One says you'll never work  again and the other one says there's nothing wrong  with it.  That happens all the time.  Judges weigh  those things.  That's not the kind of controversial  evidence that I think the rule would require or would  expect a witness to be brought to prove things of this  kind.  I don't think that's what controversial says in  this sense.  I've only got as far as page 14.  Maybe I  better read the rest of it.  Well, I've referred you to paragraph 17 with respect  to controversial areas.  And the point of 17, 18 and  19 -- just a moment.  Oh, okay.  I'm sorry, my lord,  my note was -- I did say this and I -- my note  reference was with respect to hearsay 17, 18 and 19 do  not contain hearsay.  No, I don't think they do.  No.  I just -- I in discussions with my colleague  there was -- I had seen another notation, but no, they  don't.  Well, in the context of this case, Mr. Grant --  Can I just --  I'm sorry.  Go ahead.  Just raise one more point.  My lord, I had proposed  a compromise to my friend.  I didn't think it was a  very difficult one.  And that compromise was proposed  when I had raised the issue of the objection I  ultimately raised with Mr. Shelford, and which you  ruled on.  It was for him to file an admissible  affidavit of this man.  I do not see unless we use the  black out approach, which I think is not -- shouldn't  be necessary, why my friends cannot amend, and if they 19184  Proceedings  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  MR.  THE  MR.  THE  GRANT  COURT  GRANT  COURT  are going to proceed by this method, tender an  affidavit that is admissible and then there is no  dispute or debate in the future as to what was the  evidence and what was not.  There's been no suggestion  in -- there's been no suggestion whatsoever since I  made that proposal to my friends and since we agreed  to Mr. Hobenshield going ahead, there has been no  response in that to saying well, yes, we can do it or  no we can't, Mr. Fletcher has gone to Europe to the  14th of August, or something like that.  I mean,  there's been no suggestion why that can't be done.  And I say if we are going to proceed by affidavits my  friends put -- redo the affidavit and clean it up --  it's not a big problem -- and tender a proper  affidavit.  And I even left it open that once we saw  that that we would reconsider our position regarding  the cross-examination of him out of court.  But, my  lord, there's been nothing been done.  I should just  say on the Hobenshield affidavit that paragraphs 8 and  17, which is the one that was tendered as Exhibit  1113, paragraphs 8 and 17 --  I don't have it.  -- Contain inadmissible hearsay.  As far as I can see the only hearsay in this  affidavit that I've noticed is paragraph 3 and in the  first two sentences of paragraph 4.  3 and 4.  The last -- the paragraph 13.  Paragraph 13.  Yes, you'd noted that.  3, 4 and 13.  Oh, yes, 13.  Oh, pardon me.  First sentence of 13.  Well, you see.  Part of the second sentence if that's what he means.  He said I know that there have always been deer  throughout the Bulkley Valley.  I would take that to  mean there has always been deer in the Bulkley Valley  in his life time.  Well, it's unclear.  That's pretty clear if it's limited to personal  knowledge that he didn't know there were deer  throughout the Bulkley Valley before he was born.  That's right.  And then he forms this opinion.  I don't -- except for those things I don't find  anything objectionable in that affidavit at all.  While if this was a motor vehicle accident case where  there was a plaintiff and a defendant and they were  the only two witnesses it might be that for  credibility purposes you would want to see them both, 19185  Proceedings  Discussion  1 but in a case of this kind it seems to me that this is  2 the reasonable way to deal with this problem.  I don't  3 think you should bring the witness to Vancouver to say  4 those things.  5 MR. GRANT:  Well, as I've said, and I want this to be very  6 clear, my lord, I had proposed over a week ago when my  7 friend was anxious to get a response that my friend --  8 that there was a way to resolve it.  9 THE COURT:  Your friend probably thought you were saying there  10 was hearsay in paragraphs 3, 4, 6, 17, 18 and 19.  I  11 don't know if --  12 MR. GRANT:  No, I had just said that there was inadmissible  13 hearsay in the affidavit and that if he amended it to  14 clean up the hearsay that we would be happy to  15 reconsider our position, but that we didn't think that  16 this affidavit which contains this inadmissible  17 evidence -- I mean, my friend makes the parallel, as I  18 say, of the objection.  Well, the answer of the  19 witness couldn't go in.  20 THE COURT:  When is it proposed to have this cross-examination?  21 MR. GRANT:  Well, I had proposed Mr. Hobenshield on the 21st.  22 My friends letter of yesterday, which I had received,  23 suggested that Mr. Fletcher be scheduled for August  24 22nd, and my friend had indicated this morning he had  25 proposed August 14th and 15th.  26 THE COURT:  I don't care what date it is.  There's lots of time  27 to revise the affidavit along the lines that I've  28 mentioned.  I don't see why that shouldn't be done.  29 MR. GRANT:  And if that's done then we can deal with it  30 appropriately.  31 THE COURT:  Yes.  32 MR. GOLDIE:  Well, all right.  My lord —  33 THE COURT:  If there is no problem in cleaning up the affidavit  34 inartistically as --  35 MR. GOLDIE:  Well, my friend's letter objecting to it as so full  36 of hearsay, and when I'm invited to redo an affidavit  37 that is so full of hearsay that it is entirely  38 inadmissible I'm really at a loss to begin.  The  39 only -- the only areas I can see any objection to, my  40 lord, is the first two sentences of paragraph 3.  41 That's number one.  I've got 3 points.  That's number  42 one.  Unless my friend is also objecting to the  43 witness saying that he was born in 1918.  44 MR. GRANT:  We dealt with that, my lord, and although I said  45 that, we weren't objecting to that.  46 THE COURT:  I'm going to weigh the hearsay rule on that.  47 MR. GRANT:  The position I took on Mr. Shelford would apply 19186  Proceedings  Discussion  1 there.  2 MR. GOLDIE:  All right.  The next one is the first 3 sentences  3 of paragraph 4 consisting of the first 4 lines.  4 MR. GRANT:  That's correct, in paragraph 4.  5 MR. GOLDIE:  And if my friend makes the objection that he took  6 to Mr. Shelford I told him that I would agree with  7 that ruling, that the ruling your lordship made  8 applied to that statement.  9 THE COURT:  Yes.  10 MR. GOLDIE:  The only other place is paragraph 13.  11 THE COURT:  Yes.  12 MR. GOLDIE:  The first 3 lines, the first sentence, and the  13 words "I understood from him and".  14 THE COURT:  Yes.  15 MR. GOLDIE:  And then from then on.  And, my lord, I'm unable to  16 see any other hearsay in the rest of this document.  17 Now, as to cleaning up the affidavit my friend has  18 omitted to say that my reply to his suggestion that we  19 file a new affidavit was to make precisely the  20 statement that I have made, that if my friend took the  21 objections, and I anticipated that he would be  22 objecting to a whole series of paragraphs, those 3  23 that I've now mentioned I would agree were covered by  24 your lordship's ruling.  25 THE COURT:  I think you can make those amendments then.  There  26 may be cross-examination on that affidavit.  27 MR. GOLDIE:  The next concern that I have, my lord, is that I --  28 if I can do that, and Mr. Fletcher, of course, lives  29 in Smithers, and we have the mails to to take care of,  30 and he's not a young man.  I still want to do this in  31 August.  I do not want to be met with the objection  32 that the affidavit isn't delivered in a timely  33 fashion, or anything of that order.  34 MR. GRANT  35 THE COURT  3 6    MR. GRANT  Well, I had -- in my letter I had invited that.  The affidavit --  I had invited my friend that we would do it.  I had  37 assumed if we could come to an agreeable date for Mr.  38 Hobenshield that we'll deal with Mr. Hobenshield and  39 Mr. Fletcher at the same time.  I believe counsel are  40 endeavoring to schedule that in August.  41 THE COURT:  I'm not going to make an order, because things do  42 happen.  I think there should be no reason why those  43 cross-examinations couldn't take place by the end of  44 August.  I think they should be corrected before then.  45 MR. GRANT:  That's what our objective is unless my friend puts  46 in some entirely unexpected material that I have no  47 idea of. 19187  Proceedings  Discussion  1 MR. GOLDIE:  Let's meet that right now, my lord, and cross out  2 the lines that I read in that affidavit.  3 THE COURT:  It's been recorded.  I don't think you have to do  4 that.  5 MR. GOLDIE:  Well, in that case, my lord, I feel no necessity of  6 filing a new affidavit.  Those lines are crossed out.  7 My friend has made the objection.  I've acceded to  8 them.  The affidavit is there to be cross-examined on  9 with the lines crossed out.  Now, that takes care of  10 that, in my submission.  11 MR. GRANT:  Well, I raised the objection two weeks ago.  I  12 asked my friend to deal with it as I suggested, my  13 lord.  I see no point in going on with this.  14 THE COURT:  I'll tell what you I'll do.  I'll have my secretary  15 type the affidavit if that's the problem.  I don't  16 know if there is a problem amending the affidavit to  17 exclude hearsay.  I'll have it typed.  18 MR. GRANT:  Oh, well, I'd be happy to have it typed in my  19 office.  20 THE COURT:  In view of the objection where there is a hearsay I  21 think there should be a new affidavit.  Who types it I  22 don't really care.  All right.  23 MR. GOLDIE:  I just wanted to say, my lord, that the letter that  24 was delivered to my friend's office last night with  25 respect to the dates was that Mr. Hobenshield is not  26 going to be in the country as we learned on the  27 21st -- on August the 21st.  We wanted to schedule Mr.  28 Fletcher at the same time.  If my friends are not  29 prepared to go ahead until the 21st well, we'll have  30 Mr. Flethcer's cross-examination then and we'll have  31 to struggle and find a date for Mr. Hobenshield when  32 he's available.  33 THE COURT:  All right.  There must be something else.  34 MR. WILLMS:  I don't have anything further, my lord.  35 THE COURT:  All right.  36 MR. RUSH:  Nothing further from the plaintiffs.  37 THE COURT:  Thank you.  You're not going to let us down, are  38 you, Ms. Koenigsberg?  39 MS. KOENIGSBERG:  I'm sorry.  I should have stood.  I have  40 nothing.  41 THE COURT:  All right.  Well, then we'll adjourn until the 5th  42 of September.  If there are matters that counsel need  43 my assistance on I will be available on reasonably  44 short notice, and I look forward to seeing you all in  45 September and wish you all a pleasant interim, unless  46 I see you before then.  Thank you.  47 THE REGISTRAR:  Order in court.  This court stands adjourned. 191?  Proceedings  Discussion  (PROCEEDINGS ADJOURNED)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Peri McHale, Official Reporter  UNITED REPORTING SERVICE LTD.

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