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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-11-20] British Columbia. Supreme Court Nov 20, 1989

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 224?  Proceedings  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  THE  MR.  THE  MR.  THE  MR.  VANCOUVER, B.C.  NOVEMBER 20, 198 9  REGISTRAR:  Order in court.  In the Supreme Court of British  Columbia, this 20th day of November, 1989.  The matter  of Delgamuukw versus Her Majesty the Queen at bar, My  Lord.  COURT:  Mr. Plant.  PLANT:  I have a number of matters that I am prepared to  deal with today under the heading of loose ends, and  the first is exhibits.  There are a great number of  exhibits currently marked for identification which we  wish to have tendered as exhibits proper.  The  exhibits which are the subject of this effort have  been also the subject of correspondence between my  friends and myself or Ms. Sigurdson, and we have been  able to reach agreement on some of them.  I have a list which really is taken from a letter  which Mr. Grant sent to me some time last week, and  which I am proposing to hand up to Your Lordship.  It's mainly for the convenience of Madam Registrar, to  keep track of some of these numbers.  And I am going  to have to say something about some of them, because  their admissibility comes under the umbrella of  several different rulings, and also under the auspices  of one or two cases of agreement between my friends  and I, and I think the record had better be clear on  these as we go along.  Before my friend proceeds, I just want to advise  Your Lordship, if he wishes to deal with these, that's  fine, but as I advised in my letter, I have reviewed  other correspondence or other exhibits as well, and I  am prepared -- there is more than is on this list to  which I am prepared to agree to.  My friend sent me a  larger list, and there are, I believe, ten that I will  be opposing that they wish to tender, but a large  number, maybe it's 12, I am prepared to deal with  those ones as well, all except for -- there is one  exhibit that I was unable -- two exhibits I was unable  to locate, but if my friend wishes to proceed with his  explanation of these, that's fine.  But there are  others that can be added to this list, and I am  prepared to speak to that this morning.  COURT:  Are those your crutches, Mr. Grant?  GRANT:  Yes.  COURT:  You are in difficulty today, are you?  GRANT:  Yes.  I tore some ligaments.  MR. GRANT 22489  Proceedings  1  THE  COURT  2  3  MR.  GRANT  4  MR.  PLANT  5  6  7  8  9  10  11  12  13  14  15  16  17  18  THE  COURT  19  MR.  PLANT  20  21  22  23  24  25  26  27  28  THE  COURT  29  30  MR.  PLANT  31  32  THE  COURT  33  MR.  PLANT  34  THE  COURT  35  MR.  PLANT  36  37  38  39  THE  COURT  40  MR.  PLANT  41  THE  COURT  42  43  MR.  PLANT  44  45  THE  COURT  46  47  I am sorry to hear that.  If it's more convenient to  remain seated, you should feel free to do so.  Thank you, My Lord.  Well, I am grateful for my friend's assistance.  He,  of course, promised Your Lordship in court some weeks  ago, a week and-a-half ago or so, that he would be  responding to my original letter of November the 3rd  on these exhibits, and the only response that we  received as of 30 seconds ago was what we put together  in this list.  I don't want to obstruct my friend's  generosity, but it sure makes life difficult when I am  not told until ten o'clock that there is more that he  can agree on, when I'm certainly happy to receive my  friend's letter any time Thursday, any time Friday,  any time Saturday, or any time Monday morning before  now.  But in any rate, let me go on with those that  are on this list, and we'll see where that takes us.  Is it necessary to saying anything about these?  What my friend has done, as he said he would do from  the outset, is he has gone through all of our  requests, and I think that he is telling Your Lordship  in addition to the ones that are on the list that I  have prepared, there are some others on our list which  he is prepared to agree to.  And if that is indeed  what he is telling Your Lordship, then I'm going to  ask that the matter be stood down in order that he and  I can add to this list.  Let me know what this list is.  These are exhibits  tendered by the defendant?  These being exhibits tendered in a variety of  contexts.  By Provincial?  My recollection tendered by the Province.  And they have all been marked for identification?  For various reasons during -- when they were  originally tendered, they were marked for  identification, or I should say, My Lord, in some  instances numbers were reserved --  Yes.  -- for them.  But you and your friend have now agreed that they  can now be marked as exhibits?  These -- the ones on your list that Your Lordship  has .  This list should be an exhibit number, then, to  record those numbers shown on it.  May now be marked  as exhibits without the qualifications which have been 22490  Proceedings  1 mentioned.  What is the next exhibit number, Madam  2 Registrar?  3 THE REGISTRAR:  1205, My Lord.  4  5 (EXHIBIT 1205 - LIST OF EXHIBIT NUMBERS THAT  6 MAY NOW BE MARKED WITHOUT QUALIFICATIONS  7 MENTIONED)  8  9    THE COURT:  Well, then, this will be Exhibit 1205, and is it  10 necessary to say anything more about any of these?  11 MR. PLANT:  I'm afraid it is, My Lord, because some of them are  12 subject to the terms of various rulings, and they  13 should be categorized according to those rulings.  And  14 in at least one case there is -- one case on this  15 list, which is Exhibit 1205, there is an agreement  16 between my friend and I which permits him to add  17 another document.  18 MR. GRANT:  With respect, My Lord, I do agree.  My friend in his  19 letter to me, which he amended on November 15th and  20 sent to me -- and I just want to say, of course, on  21 November 15th when I sent him this list, I said this  22 letter does not deal with your amended November 3rd  23 letter and presently remaining the remaining exhibits,  24 and get back to you in due course.  Some of them are  25 down here, and I had to wait to come down here.  But,  26 in any event, there are -- my friend suggested there  27 is an opening for me to file more.  28 What the term is with respect to Exhibit 815,  29 which is a field note of Mr. Sterritt relating to  30 Steve Robinson, as has been done in the past, is that  31 I said subject to the addition of two pages from his  32 notes which are part of that note --  33 MR. PLANT:  One page?  34 MR. GRANT:  One page, yes.  If my friend — if that's tendered  35 as part of the exhibit.  And that's what Ms. Sigurdson  36 and I had agreed to in the past with respect to other  37 exhibits; in other words, put in an extract of an  38 interview.  And I said add this page, and that's been  39 agreed to.  So that would form part of that exhibit.  40 It's not something that I got liberty to file.  It's  41 part of the exhibit, and that's the agreement.  The  42 only other matter is that Exhibits 110, 263B, 264B and  43 106 was agreed by the parties at the time that the  44 whole document would be filed, and that -- those were  45 portions, I think, of the Babine. In any event, there  4 6 was an agreement that the whole document be filed, and  47 my friends had suggested that in their letter, and I 22491  Proceedings  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  consented on those terms.  And the 246, 247, 386, 387 and 404, the agreement  was if certified copies were filed, and my friends had  raised that matter in their letter, and I had said if  they go along with what they suggested, that I didn't  have an objection.  THE COURT:  All right.  MR. GRANT:  Those are the three categories of agreement.  Other  than that the others can go in.  THE COURT:  Where does that leave you, Mr. Plant?  MR. PLANT:  Well, as usual, it's sort of hard for me to keep up  with these things.  Maybe I can just run through the  list in order very briefly, My Lord, and I will try  and accommodate what Mr. Grant has said during the  course of his most recent submission.  403 and 806 go in by agreement between us.  As to  815, Mr. Grant requires that an additional page from  Mr. Sterritt's field notes be tendered along with the  documents which presently constitute Exhibit 815 for  identification.  I have that additional page.  In fact  I have five copies of it, and I would tender it now.  THE REGISTRAR:  As part of 815?  MR. PLANT:  As part of Exhibit 815.  I want to say for the  record that this document, this extra page, has  nothing to do with the balance of 815, just so that  that's understood, although of course in due course  that will be a subject matter or argument.  GRANT:  That's not agreed, of course, My Lord.  COURT:  Madam Registrar.  PLANT:  Now, the next item as I am going down to the list,  the next item -- oh, excuse me.  All right.  That's  815 then.  Where is my copy of 815?  REGISTRAR:  Where is it going in?  PLANT:  It should be a page as part of 815.  It should  probably be the first page, because in the --  following the pagination of the notebook extract it  precedes the pages which are already 815.  COURT:  Thank you.  All right.  PLANT:  Now, the next item, moving down my list, is Exhibit  110, 110.  That is the report of the Royal Commission.  And we have agreed to provide the full copy of that,  and we can do that now.  I won't do it right now.  Exhibits 263B and 264B are -- numbers were reserved  for the complete transcripts of the evidence taken by  the McKenna-McBride Commission, Royal Commission.  The  number 263B was reserved for the Babine Agency  evidence, and the number 264B was reserved for the  MR.  THE  MR.  THE  MR.  THE  MR. 22492  Proceedings  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.  COURT  PLANT  MR. GRANT  MR. PLANT  MR.  MR.  THE  MR.  GRANT  PLANT  Stewart Lake agency evidence, and that was on the  understanding or agreement that in due course we would  provide the full transcripts of that evidence, and  were able to do that today.  Now, moving down my list to item 106.  :  106?  :  106, yes.  This consists of extracts from the Thomas  George pre-emption file, and I understand that they  relate, roughly speaking, to the time period of 1904.  And we have -- I'm not sure if that's a situation  where we have better copies of documents that we --  yes, that's a situation where we agree to furnish  better copies, and that's what we have for Your  Lordship today.  Now, my understanding is that my friend wishes to  tender, according to the terms of his letter, whole  documents.  And as far as I can see, that's what we  are doing in the context of Exhibit 106.  But if my  friend has an objection, then I suggest that -- it  might be appropriate to deal with that now.  :  Yes.  This was part of a larger listing of my  friends, where it was to provide the whole of copies  or whole of documents or better copies.  And I agree  with him, that in the case of Exhibit 106, although my  letter said if whole documents are filed, it was a  case of a better copy.  And I understand he's  complying with that, and that's -- it's not a question  of a whole document in that case, but a better copy.  :  What we will be doing, then, is providing better  copies of those documents which were already marked as  Exhibit 106.  The result being that the number  reserved for that can now be given to those documents.  Now, the next series of numbers on my list of  November 20th, which is Exhibit 1205, are these  numbers, 246, 247, 386, 387 and 404.  Now, each of  these comes under a category which in correspondence  to my friend was described as documents where we  agreed to tender certified copies, and it's understood  that that was the condition of their admissibility.  And my understanding is that my friend agrees to --  are doing that today, and once those documents are  filed, they can become exhibits proper.  :  Certified copies?  Yes, certified copies will be tendered.  REGISTRAR:  The list shows 247 as an exhibit proper.  PLANT:  You already show Exhibit 247 as an exhibit proper.  It may have been marked under our undertaking to 22493  Proceedings  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. GRANT  THE COURT  MR. PLANT  provide a certified copy.  At any rate, you are going  to have a better copy than you had before.  Now, the next two items on this list are 995-41  and 995-41A.  This is really a matter of correcting  the record, because as we understand it, both of these  numbers are shown as exhibits for identification in  the record, and 995-41 is the index to the 21 volume  set of trapline files, and 995-41A is the number given  to the 21 volumes of trapline files.  Both of those  were admitted into evidence pursuant to Your  Lordship's ruling of October 12th.  So they should not  appear in the Court records as exhibits for  identification.  And my friend agrees to that.  Another admission with my -- my friend has just  made is -- is -- it's appropriate to comment on that  now.  There are two other numbers.  These numbers are  263A and 264A.  Those numbers are the numbers for  extracts from the Royal -- from the evidence before  the Royal Commission.  They were tendered and  marked -- originally at the time that they were  tendered and marked, they were marked on the basis  that we would in due course provide the Court with the  full copies of the transcripts.  We have done that  already.  The record -- the Court record shows these  two numbers as exhibits for identification.  They were  never so marked, and the record, in my submission,  ought to be corrected to show that.  Now, 99J and 99K are items from trapline files,  and my friend consents to their admissibility pursuant  to Your Lordship's ruling of October 12th, 1989.  :  If I may just -- I consent to their admissibility  pursuant to the ruling.  And in that ruling you, as  you recall, it was all of the files, and I objected to  certain of them, but there was some grouping -- types  of documents that I said would be admissible, such as  registrations, and these come within that, and  therefore they really are admissible pursuant to my  concession as well as Your Lordship's ruling that  those types of documents are admissible.  :  Thank you.  :  Exhibit 670A-9 is also from a trapline file and  admissible on the same basis.  Now, the next item is Exhibit 663A-1.  These or  this number comprises Marvin George's notes of an  interview with Freddie Charlie.  Mr. Charlie was  examined out of court, and the -- these interview  notes were marked for identification at that time, and 22494  Proceedings  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. PLANT  MR. GRANT  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  my friend has consented to their being marked as  exhibits proper.  The next two items are 74A and 74B.  Now, they  appear actually on our note of the court exhibits as  74A-ID ("A").  These two documents are pre-emption  related documents which were marked on Johnny David's  cross-examination.  They were only marked there for  identification.  And as I understand it, my friend has  consented to them being marked now as exhibits proper.  The same comment, roughly speaking, can be applied  to 596A-2, although is a much more recent document.  It's an application for Crown land by Thomas Jack in  August of 1981, and my friend has also consented to  that document being marked as an exhibit proper.  The next and penultimate item on the list is  601-A.  That exhibit is the same as Exhibit 1021, and  thus it can be marked as an exhibit proper, and my  friend so consents.  And the last item on my list is Exhibit 581.  This  was an extract from Marius Barbeau's "Totem Poles of  the Gitksan", which I tendered during Glen Williams'  cross-examination.  And Mr. Williams, as I recall,  hadn't identified the particular extract.  That's why  it was only marked as an exhibit for identification  then.  But my friend and I now agree that this can be  marked as an exhibit proper, subject to the  limitations on other anthropological treatises marked  in these proceedings.  Now, that completes the list of agreements -- or  the list of exhibits where there is agreement.  I have  a goodly number of other exhibits which I wish to  tender, but if my friend has some admissions or  some -- if we can reach some agreement that will speed  the proceedings, I would be delighted to do that.  I  don't think --  Are you suggesting you adjourn while you and your  friend have a talk, or are you suggesting something  else?  I prefer to do it that way, if we could.  I am not  adamant about that.  I have -- I am prepared to list the ones right now  on the record, the ones that we agree to.  The additional ones that you agree to?  The additional ones that I agree to.  That would be a useful thing, I think.  I can do that right now, and then I am prepared to  speak to some of the others.  There are two that I 22495  Proceedings  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  have some problems with that I'll speak to my friend  about.  Now, these, unfortunately, because my friend  grouped his proposals in different categories and not  chronologically, these don't necessarily go in  chronologically, My Lord.  First of all Exhibit 596A-8 to Exhibit 596A-25 can  be marked as exhibits proper.  MR. PLANT:  Those are Mr. Sterritt's field notes or notes of one  kind or another that are authored by Mr. Sterritt.  MR. GRANT:  There is an Exhibit 603-3A and an Exhibit 603-3B.  My review of my copies are that these are part of the  same note, and I agree, so long as the four pages --  and there are four pages of that field note of Mr.  Sterritt -- that all four pages are put in, then I  don't object. Both 603-3A and 603-3B form part of  this one note, and the entire note or interview is  four pages long.  My friend may want to consider that.  MR. PLANT:  Is that notes of an interview with Joshua McLean?  MR. GRANT:  Yes, I believe so.  I think it was intended that all  four go in, but when I looked at my copy, it doesn't  look like they did.  That's fine.  If they are all the same document,  then I am happy with that.  REGISTRAR: What documents?  GRANT:  Exhibit 603-3A and 603-3B.  And that is one  interview, My Lord, two parts of one interview.  So  the entire interview goes in, that's fine.  Exhibit 88B we agreed to.  MS. KOENIGSBERG:  I didn't hear that.  MR. GRANT:  88B.  Exhibit 88C we agreed to.  And Exhibit 450 and  Exhibit 451 I agree to with this proviso.  These, My  Lord, were tendered in the examination of Solomon  Marsden, volume 95, pages 5991 - 5992, and I admit  those, subject to the limited information provided by  the witness with respect to those.  In other words,  there was very little that he could say about them.  So long as they are put in in that context, that's  fine.  THE COURT:  That speaks for itself or doesn't speak for itself,  doesn't it?  MR. GRANT:  I think it doesn't speak -- yes, I was concerned  that my friend was -- I was concerned that he may have  been tendering them for a broader purpose, in light of  later rulings, and those particular ones, I think that  that's really all they can speak to.  MR. PLANT:  Just to clarify that.  When they were tendered, Mr.  MR. PLANT  THE  MR. 22496  Proceedings  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  PLANT:  GRANT:  Goldie made certain comments about the purpose for  which he sought the documents to be tendered, and I am  content to have them tendered for that purpose, for  the purpose that was stated by Mr. Goldie at the time.  MR. GRANT:  I'll just review that part of the transcript.  I  think my friend may be saying the same thing --  MR. PLANT:  I am probably -- I am certainly trying to -- there  is the extract there.  MR. GRANT:  Exhibit 94D we agreed to.  THE REGISTRAR:  94D?  MR. GRANT:  94D.  My friend's referring to the comments of Mr.  Goldie on pages 5991 and 5992, lines 43 through to  line 4, and I agree.  Exhibit 149 is agreed to.  Exhibit 269 and 270 is  agreed to.  Exhibit 96 is agreed to.  Exhibit 663A-2,  663A-3 are agreed to.  And those are all subject to  our agreement on October 12th, my agreement that  certain of the trapline documents could be exhibits.  And I assume subject to Your Lordship's ruling on  trapline documents?  Yes.  Exhibit 670A-7.  My record is this is already  an exhibit, and we agree to it, if there is any  confusion that it's only marked for ID.  REGISTRAR:  670A-7 is an exhibit proper.  GRANT:  It was on my friend's list, and I think he took it  off in his amended letter.  Exhibit 5A and Exhibit 5B we agreed to.  That's  capital A and capital B.  We agree to Exhibit 661H --  Exhibit 661H.  My friend had amended it.  I'll just  check what he is asking to agree to.  Exhibit 995-32 we agreed to.  995-32.  A series of  exhibits, exhibits 670A-5, 670A-6, 670A-8, 670A-10,  and 670A-17, we agreed to admit that those can all be  marked as exhibits proper.  Exhibit 1062, which I understand is a planimetric  map, is agreeable to -- agreed to be admitted, subject  to correspondence that Mr. Rush has been having with  my friends that -- relating to that planimetric map.  THE COURT:  I don't know how I am going to deal with that, Mr.  Grant.  MR. PLANT:  What I propose is if the matter be not dealt with  now, because it is still subject to correspondence.  THE COURT:  All right.  MR. PLANT:  What happened there was it was on the list of  exhibits that I provided to my friend, and -- but it  really should have been dealt with separately, because  it is the subject of some extensive correspondence.  MR.  MR.  THE  MR. 22497  Proceedings  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:  All right.  MR. GRANT:  Yes.  I wasn't sure whether the correspondence had  resolved itself, but I'll leave that off for now.  Exhibit 1143 and Exhibit 1144 is agreeable too.  Be  marked as exhibits proper.  Exhibit 1033-15, which was on my friend's list, I  think is an exhibit proper, but if it isn't, it should  be.  MR. PLANT:  That was an instance, according to my recollection,  where the document was marked, but we agreed to  provide a transcription of it, because it wasn't  readable, and that's what we have.  I will provide a  copy of that to my friend.  MR. GRANT:  That's fine.  Exhibits 464 through to Exhibit 470  can be marked as exhibits proper.  They were all for  identification.  Exhibit 94D -- I'm sorry, I may have already  mentioned.  Yes, I mentioned that one.  Exhibit  114(a), Exhibit 114(b), Exhibit 114(c), and I think  those are small a, b and c in brackets, can all be  marked as exhibits proper.  And Exhibit 149 can be  marked as an exhibit proper.  Now, those are the additional exhibits that my  friend has listed, and with respect to the majority of  the rest, I have a submission to make that my friend  has proposed, but there are a couple of them that I  have been unable to locate.  Exhibit 462, a number was reserved for it, and I  could not locate it, and when I went to the  transcript, it wasn't identified in a way that was  sufficient for me to know what it was.  But I can  speak to my friend out of court regarding those  problems, and maybe I will -- I would be happy to  speak to him out of court as to what I was concerned  about with respect to the others, and we may shorten  the list of where there is a difference.  My friend  may agree with me, and there may be something else he  can explain to me on some of them.  THE COURT:  All right.  Thank you.  Ms. Koenigsberg, do you have  any role to play in all of this?  MS. KOENIGSBERG:  Fortunately not, My Lord.  THE COURT:  Thank you.  What do you propose, then, Mr. Plant?  MR. PLANT:  I would be happy to meet with my friend for five or  ten minutes at Your Lordship's convenience to narrow  the gap between my friend and I.  THE COURT:  I will be in my Chambers, and I can come back as  soon as you are ready.  Thank you. 2249?  Proceedings  1 THE REGISTRAR:  Order in court.  Court stands adjourned.  2  3 (PROCEEDINGS ADJOURNED)  4 (PROCEEDINGS RECONVENED)  5  6 THE REGISTRAR: Order in Court.  7 THE COURT:  I'm sorry to have to tell counsel that last week I  8 made an arrangement to meet with some judges, who are  9 sitting this week, at 11:15 this morning for a few  10 minutes.  So I have to take the morning break, even  11 though we have been down for awhile anyway.  But Madam  12 Reporter needs a rest by then anyway.  We'll blame it  13 on her.  14 MR. GRANT:  I anticipate that we are probably going to have a  15 short day today in any event.  16 THE COURT:  That's not the worst thing that can happen.  17 MR. PLANT:  My Lord, I have spoken with my learned friend during  18 this adjournment, and I am grateful for Your  19 Lordship's indulgence in allowing us the chance to do  20 that.  And I can add to the list of exhibits which are  21 now marked for identification, and which can be marked  22 as exhibits proper.  23 Under the category of ancient documents I can add  24 the Exhibit 593A-1 and 596A-4.  There was one document  25 which we sought to have admitted dispensing with the  26 need for a certified copy, and my friend has agreed to  27 that, and that is Exhibit 352A-1, which is part of the  28 federal court file in the Kitwanga Band land claim.  29 I suppose under the heading of business records my  30 friend has admitted 670A-4.  There are some other  31 items that my friend wishes to -- my friend Mr. Grant  32 wishes to give further consideration to in one case,  33 because we are going to provide him with a copy of the  34 document, in at least one case, and there are some  35 others which we are prepared to argue before Your  36 Lordship now.  37 THE COURT:  All right.  38 MR. PLANT:  The first of these, if my note is correct, is  39 Exhibit 103B.  Those are the notes made by Victor Jim  40 of an All Clans Feast.  The Burns Lake All Clans  41 Feast.  42 MR. GRANT:  With respect to that one, My Lord, I just ask my  43 friend if he would have stood that one down, because  44 the reference where that document is dealt with, it's  45 not identified by the witness, and my friend has  46 directed me, and I quickly looked at it, but would  47 like to consider my position on that to another 22499  Proceedings  1  2  3  4  MR.  PLANT  5  6  THE  COURT  7  MR.  PLANT  8  THE  COURT  9  MR.  PLANT  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  THE  COURT  41  MR.  PLANT  42  THE  COURT  43  MR.  PLANT  44  45  46  THE  COURT  47  MR.  PLANT  reference.  And I -- it may not be necessary to argue  it.  So I ask that that particular exhibit be stood  down, and we can deal with it.  I'm sorry, I don't have as good as notes as I  wanted.  That's fine.  I am happy to do that.  All right.  I think the next one on my list would then be  Exhibit 996.  That is the number assigned to a binder  of pre-emption documents, land pre-emption documents.  And I don't have the transcript reference at the  moment, but when this binder was tendered, the binder  has an index, and the binder contains certificates of  title and Crown grants and other documents.  The other  documents were taken from Department of Lands' files.  The plaintiffs made a blanket objection seeking time  to review the documents.  And my understanding is that  they later said that they weren't satisfied with the  admissibility of the extracts from the Lands files,  and I can really deal with this in two ways, or by  dividing it into two categories.  On the one hand there are Crown grants and Orders  in Council and documents of that ilk, including  documents other -- which are marked in other places in  the record as exhibits proper, including Exhibit 74A.  Those documents, I say, are admissible under the Land  Title Act or the Evidence Act as being either public  documents or Land Title Act documents.  What there is  in addition, and this is the other category, are some  extracts from Lands files, which would include  application forms and correspondence and things of  that ilk.  In our -- what we could do is certify those  documents in accordance with Your Lordship's ruling on  ancient documents, because all -- or substantially all  of them are ancient documents.  They have come from  microfilmed copies of old Department of Lands' files,  and we could go through that hoop, if you will, to  render them --  To prove their source.  Excuse me?  To prove their source.  To prove their source, yes.  In my submission that's  all we would have to do to render the balance of the  documents in Exhibit 996 admissible.  They are all 30 years of age or more.  If they are not, the exceptions are few, and it 22500  Proceedings  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. GRANT  would also be the case, My Lord, that all of these  documents are business records.  They are found in  Department of Lands' files, and with respect to those  that are not more than 30 years olds, they could get  the necessary affidavit from the custodian that would  get us through that hoop.  I have sought my friend's indulgence and seek Your  Lordship's indulgence to avoid us going through that  difficulty -- not difficulty, that task now.  But  there is another aspect to the pre-emption documents.  The plaintiffs have indicated that they want to file  additional documents concerning pre-emptions, and my  understanding is -- and my friend will correct me if  I'm wrong, that what they wanted to do was to take --  where we had filed documents from a certain point in  the file, certain chronological point, they wanted to  file all of the preceding documents.  We don't have  those documents, all of the documents that preceded  them in time.  And the real concern there is one of  timing.  As I understand it, as matters stand now, the  plaintiffs need leave from Your Lordship to do that,  and this really comes under the heading of something  that ought to be dealt with now rather than later, so  that we can have all of the documents from these  pre-emption files put into the record.  Now, that's what I have to say about Exhibit 996.  :  I should hear what Mr. Grant says.  :  Our concern is -- our concern is that these Exhibit  996 documents, it's entitled "Documents Re  Applications to Pre-emption", and there is certainly  an implication or a suggestion that these are all of  the pre-emption documents.  And we have requested that  if that is my friend's intention, that they tender all  of those documents and not start at some arbitrary  date, and that they include those.  And my friends, as  I understand, have refused that.  With respect to the question of -- I'll deal with  the first point.  We, of course, do not require  certification of any of the documents otherwise  admissible under Section 308 of the Land Title Act.  We have made that clear that we would waive that  requirement of certification.  But in Your Lordship's  ruling in this case relating to historical documents,  which, of course, has now been reported, 38 B.C.L.R.  (2d), one of the things that you set out is, as you  said: 22501  Proceedings  1 "Perhaps, however, I should say something about  2 two of the usual tests which indicate a lack of  3 suspicion, mainly to dispose of them.  One is  4 that the author of the ancient document must be  5 disinterested.  As I have already mentioned, I  6 shall have to deal with tha question as each  7 document is considered.  Secondly, an ancient  8 document must come into existence before the  9 claim arises or is contemplated."  10  11 Well, we are certainly dealing here, My Lord,  12 with -- in light of the evidence of the Babine Agency  13 and the McKenna-McBride hearings, in light of the  14 evidence that you have heard, we are dealing here with  15 the claim was certainly contemplated and the issue of  16 issuance of pre-emptions in this area in the teens and  17 the twenties was certainly a matter that was not  18 disinterested or disassociated from the claims of the  19 chiefs.  In fact that precluded McKenna-McBride under  20 their own terms of reference from dealing with some of  21 the lands where they had been pre-empted before.  22 So what we have said to my friends is that you  23 can't do here what -- just by the mere fact of  24 organizing into these nice binders a whole host of  25 documents from different sources doesn't make them  26 admissible, and that -- and that also that it's  27 misleading, because it's not all of the -- it's not  28 the history of the pre-emption of these lands.  It's a  29 select portion of that history.  30 So we had asked my friends to, firstly, put in the  31 earlier pre-emptions, if there are any relating to  32 these lots, and they have refused; and secondly, we  33 have said those documents that are not admissible  34 under Section 308 would not come under the ancient  35 document rule, because you would have -- the authors  36 of the correspondence are certainly interested in  37 the -- when I say authors, I am not talking about the  38 Lands branch official, but the applicants -- the  39 settlers were interested in acquiring lands, and it  40 was certainly not something that was invisible to them  41 at that time from other historic correspondence about  42 the interest of Indians in these lands or Gitksan and  43 Wet'suwet'en in these lands.  44 So those were our two objections.  And we asked  45 our friends to reduce -- in one sense to reduce the  46 file -- the binders so that they came within Section  47 308.  And I don't think my friends are prejudiced by 22502  Proceedings  1 that, because those certified documents are going to  2 show that there were pre-emptions issued on such and  3 such a date.  And in fact the only case that I can  4 recall, and I stand to be corrected, and the Johnny  5 David exhibits are an example, my friends tender a  6 pre-emption document, whether to Indian or non-Indian,  7 and they rely -- and those, of course, coming within  8 Section 308.  So I submit that my friends can't --  9 they are implying that there is an entire history of  10 pre-emptions here, but set an arbitrary date, and I  11 say that they should be required to put in the  12 documents.  If they are going to deal with  13 pre-emptions, they should put in all the documents.  14 Alternatively on that ground, if Your Lordship is  15 not with me, I would ask for liberty of the plaintiffs  16 to be able to add to the exhibit in that way that we  17 would do it, if you think that it's not something that  18 should go to the defendants.  But I also am concerned  19 that the trapline files -- I am not certain exactly  20 how to deal with it, and maybe Your Lordship wants to  21 deal with it in a similar manner, and say the  22 plaintiffs can object to a particular document, if my  23 friends rely on it, out of this body on Exhibit 996.  24 That's not entirely -- that may be the most  25 expeditious and practical way of dealing with it.  But  26 I submit that I am concerned that my friends are by  27 binding a body of documents they have selected, some  28 of which are admissible and some of which we say  29 aren't, they have sort of put everything together.  30 And that's not the way it should be dealt with.  31 And I submit in this case the pre-emptions, it was  32 a matter of hot, hot issue in the 1920s and the 1930s.  33 I mean the teens and twenties.  And some of the  34 documents, I think, basically are from that area.  35 There are later ones, as my friend has indicated.  36 THE COURT:  Well, I would say this, that the passage from which  37 Mr. Grant has quoted in my ruling on ancient documents  38 was intended to relate to documents where the author  39 was writing about the claim principally, and there  40 will always be grey zones or no person's land  41 surrounding these matters, but I would not extend that  42 prohibition based upon interest to an independent act  43 such as applying for a pre-emption.  I don't think the  44 operation of the ancient document rule would be  45 precluded because a person is aware of or he acts  46 following awareness of a claim, when he's doing an act  47 which is capable of standing on its own and not in 22503  Proceedings  1 relation to the claim itself.  It's impossible in  2 these matters ever to speak sufficiently precisely and  3 sufficiently comprehensively at the same time, but I  4 would not exclude the operation of the ancient  5 document rule to an act such as an application for a  6 pre-emption or a trapline or a correspondence about  7 it, even though the whole question of land claim  8 activity may have been overhanging the area at the  9 time.  10 With regard to the choice of documents, I have the  11 view that the party tendering documents could tender  12 the ones that he wishes, and unless the others are so  13 clearly related to and a part of what has been  14 tendered, in which case they would also have to be  15 tendered, it is the responsibility of the other side,  16 if they wish to tender the additional documents, that  17 they think bear on the same question, although not, as  18 I understand it, so closely connected to be included  19 as a part of the documents which is being tendered.  20 So on that basis I will leave counsel for a few  21 minutes to see whether that helps them or not.  We'll  22 deal with the matter further when we return.  Thank  2 3 you.  24 THE REGISTRAR:  Order in court.  Court stands adjourned for a  25 short recess.  26  27 (PROCEEDINGS ADJOURNED FOR RECESS)  28  29 I HEREBY CERTIFY THE FOREGOING TO  30 BE A TRUE AND ACCURATE TRANSCRIPT  31 OF THE PROCEEDINGS HEREIN TO THE  32 BEST OF MY SKILL AND ABILITY.  33  34    35 LORI OXLEY  36 OFFICIAL REPORTER  37 UNITED REPORTING SERVICE LTD.  38  39  40  41  42  43  44  45  46  47 22504  Proceedings  1 (PROCEEDINGS RECONVENED PURSUANT TO THE MORNING BREAK)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Grant.  5 MR. GRANT:  Yes, my lord, I just wanted to clarify one point, if  6 I may, relating to Exhibit 996, and that is I wasn't  7 clear but -- and I raised it with my friend at the  8 break, but I understood that or I want the  9 clarification from your lordship that we would be  10 entitled to -- that is, we would be entitled with  11 respect to additional documents to do one of two  12 things.  If we determine that there are additional  13 documents relating to these files that are so closely  14 connected they should be part of the document, that we  15 could revisit it with the court.  16 THE COURT:  Revisit it anyway.  17 MR. GRANT:  That's right.  And if there are earlier pre-emptions  18 that connect to these, we could file those either as  19 part of Exhibit 996 or as an additional exhibit, we  20 would have liberty to do so.  21 THE COURT:  Well, I would like to hear from your friend, but I  22 would think so, but I reach that conclusion more or  23 less by analogy from rebuttal evidence that --  2 4 MR. GRANT:  Right.  25 THE COURT:  -- that if you -- that it seems to me that you ought  26 to be able to supplement something that would probably  27 be admissible as rebuttal evidence anyway.  Yes, or as --  It may not be rebuttal.  -- or possibly as re-direct.  You see, these  31 documents were tendered, I think, in Mr. Brody's  32 evidence.  33 THE COURT:  Yes.  34 MR. GRANT:  And if -- I wanted an opportunity to review them,  35 and we were given that liberty, so we've now looked at  36 them, and we could deal with them as part of  37 re-direct.  38 THE COURT:  Well, I'd like to hear what your friend says about  39 that.  40 MR. PLANT:  Well, my lord, it might be more convenient to hear  41 what I or someone has to say at the time that the  42 documents are tendered.  4 3 THE COURT:  Yes.  44 MR. PLANT:  I accept your lordship's comment about rebuttal  45 evidence, although in this instance the subject of  46 land pre-emptions was gone into very extensively by  47 one of the plaintiffs' witnesses, Dr. Barbara Lane.  2 8    MR. GRANT  2 9    THE COURT  3 0    MR. GRANT 22505  Submission by Mr. Grant  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.  COURT:  Your friend has put it more accurately as re-direct.  PLANT:  Yes.  And if they come within that umbrella, then  we'll be prepared to admit them at the time, but  perhaps we should wait until we have to.  :  I'm inclined to think that one way or another they  would probably go in, but I will not go that far at  this time.  All right.  :  My friend had -- there's one additional exhibit that  my friend had raised that we could speak to now, and  it's Exhibit 81 for Identification.  Exhibit 81 --  :  If I could just interrupt my friend.  I'm sorry for  this interruption, but madam registrar is expressing  some confusion as to whether your lordship has just  ruled that Exhibit 996 be marked as an exhibit proper  as opposed to an exhibit for identification.  COURT:  Yes, I think so.  PLANT:  Thanks very much.  THE  MR.  THE COURT  MR. GRANT  MR. PLANT  (EXHIBIT 996 - A.G.B.C.  PRE-EMPTION DOCUMENTS)  BLUE BOOK, TABS 1 TO IE  MR.  THE  MR.  THE  MR.  THE  MR.  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  Now, this exhibit --  81.  Exhibit 81, I'd just like to show it to -- our copy  to your lordship, then you would have a sense of what  it is .  This came in in the evidence of which witness?  Alfred Joseph.  It was put to him.  He could not  identify it, and it was left as an exhibit for  identification.  This was in cross-examination?  Yes.  Yes, it was.  Just a moment, my lord.  In  fact, I have a copy of volume 35 in which it's  discussed in Mr. Goldie's cross-examination.  Now, there are two parts to this.  One is I  believe that my friends in their correspondence to  myself raised the issue of whether or not we would  agree to waive the requirement of certifying this  particular document, which they state -- and, of  course, if they certify the document, then they can  tender it.  And I want to deal with that because --  very briefly because we take -- we're not -- I'm not  requiring a certification.  That's not the issue here.  But there is an issue, and the issue is that I submit  that this is a post-1984 venture and, therefore, this  document is not relevant.  Now, at the time, in January of 1988 -- I think it 22506  Submission by Mr. Grant  1 says January '87 on the note here, but it's January of  2 '88 -- your lordship had not really dealt with that  3 issue as you subsequently did in December of 1988.  4 And you dealt with it in two respects on two  5 occasions.  You dealt with it on two occasions.  6 December 5th with respect to an application by Mr.  7 Mackenzie relating to the purchase of a snowmobile,  8 and the -- and you stated at page 1,041 of the  9 December 5th transcript that:  10  11 "Well, my ruling sometime ago, I guess it was  12 June if Mr. Grant says it was June, was related  13 to protests that were being mounted in  14 connection with -- I think it was Mr. Art  15 Matthews' evidence about trouble with their  16 smokehouse and something to do with the CNR,  17 and I ruled that I didn't think that anything  18 that happened in that connection would be  19 relevant, because we were determining rights as  20 of 1984, the date of the writ."  21  22 And then you go on in that ruling there to say  23 that with respect to the sale of traplines that you  24 view that differently because it's -- and you state at  25 line 24:  26  27 "I have heard much evidence about the succession  28 to rights and properties in accordance with  29 Gitksan and Wet'suwet'en laws, and the  30 universality of those practices or laws, seems  31 to me, is easy to state and hard to refute, and  32 one of the ways to refute them is to show  33 departures from them."  34  35 And then you ruled that the evidence with respect to  36 the trapline would fit into that, and you ruled that  37 the sale of the trapline would apply to that.  38 Now, we revisited this matter in respect of the  39 cross-examination of Abel Brown on -- in December 9th  40 of 1988, and Mr. Mackenzie at page 1 — 10,270 stated  41 while you were -- line 25, my lord, cross-examination  42 of Mr. Brown:  43  44 "Q  While you were chief counsellor of the Glen  45 Vowell Band, the council applied for a woodlot  46 licence to the Provincial Government?  47 MR. GRANT:  My lord, I wish to object...This 22507  Submission by Mr. Grant  Submission by Mr. Plant  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. PLANT  commenced in September of 1985... it's not  relevant was a new issue."  And you ask how it is relevant, and Mr. Mackenzie  makes a submission.  And then on the next page at line  10 you make your ruling.  "Well, I think I have to be consistent, Mr.  Mackenzie.  I have ruled that we are dealing  with the situation as of October 1984, and  while I have allowed evidence of continuation  of existing practices, if it's -- if it's  something that -- if it's a new initiation or  new initiative, it seems to me it's not helpful  deciding what the legal position of the parties  was as of the commencement of the writ, and it  may be that I will have to review some of the  evidence and disregard it if it -- if I have  heard some evidence that does not fall within  the four corners of that ruling.  But as I say,  it does not seem to me there is much profit, in  view of the ruling I have made now, in  exploring fresh initiatives subsequent to the  commencement of the action.  I uphold the objection."  And that was with respect to a whole series of -- a  woodlot licence application of Glen Vowell in 1985.  Now, if you look at Exhibit 81, it's an  application for a water licence, but the purpose of  the water licence application -- it's for the Broman  Lake Band -- is for starting a fish farming venture in  1985, and it's my submission that the ruling that you  made on December 9th, that this comes right within the  ambit of that ruling and that this document should  not -- is not relevant and should not be admissible.  Those are my submissions.  :  Mr. Plant.  :  The difference between this document and the woodlot  licence that was before your lordship on December 9,  1988, is that this document is an assertion of right  or an application for a privilege, rather, in respect  of land which is the subject of the overlap by the  Carrier-Sekani.  And Ms. Ogen is, as I recall,  identified in evidence before your lordship as someone  who is a claimant in respect of that claim, and as  your lordship will recall, the evidence of overlap 2250?  Submission by Mr. Plant  Submission by Ms. Koenigsberg  1 feasts is evidence of feasts that occurred in 1986 and  2 1987.  So the question of overlap is very much, I say,  3 a continuing matter and one not subject to your  4 lordship's ruling drawing the line in October 1984.  5 So I would say that this -- I would submit that this  6 application, which would be otherwise admissible,  7 comes under that umbrella, as supplementary to the  8 general question of the overlap claim, which at the  9 overlap feasts in 1986 and 1987 is demonstrated much  10 more directly and to the point.  11 THE COURT:  Anything, Ms. Koenigsberg?  12 MS. KOENIGSBERG:  Well, on this one I would second the motion  13 and simply put it maybe in just a very slightly  14 different way in that this is evidence that goes as a  15 form of corroboration, if you will, and from which it  16 may be argued that the Carrier-Sekani have and are  17 asserting a competing claim.  18 THE COURT  19 MR. PLANT  2 0    THE COURT  Well, Broman Lake is not in the claim area though.  Yes, it is.  Is it?  21    MS. KOENIGSBERG:  Yes, it is,  22 THE COURT  2 3 MR. GRANT  2 4    THE COURT  Oh, I didn't think it was.  Broman Lake is within the claim.  Broman Lake is.  It's the Broman Lake Band that are  25 not within the plaintiffs.  26 MR. GRANT:  Some of the members of the Broman Lake Band are  27 Wet'suwet'en and some of them are Nutseni to the east.  28 The band -- well, of course, there isn't a band, but  29 some of the people there.  But I -- I probably would  30 agree with my friend's submission if this was evidence  31 relating to the dealings between Carrier-Sekani and  32 Wet'suwet'en or Nutseni and Wet'suwet'en, but that's  33 not what it is.  This is an application by a band for  34 a new initiative to the provincial government in 1985,  35 a commercial venture, and it's on all fours with the  36 Abel Brown documents, the woodlot licence of Glen  37 Vowell.  It's exactly the same kind of thing.  It's a  38 new commercial venture, and that's what it is.  If  39 there's applications before '84, my friend -- if there  40 was, then my friend would well be in a different  41 position probably because the ruling wouldn't apply.  42 THE COURT:  I think the course of prudence and caution and, I  43 hope, wisdom in this case is to allow this document  44 simply because it is a matter that goes possibly, and  45 I think probably without great weight, but possibly to  46 the reputation of the plaintiffs to the ownership of  47 this territory, which has been ongoing and which is an 22509  Ruling by the Court  Submission by Mr. 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  issue in this case.  I think while this is a fresh  initiative, I think it bears on the question of the  reputation the plaintiffs have for ownership and  occupation and jurisdiction over this territory, and  as that is an ongoing matter, I do not think it should  be excluded.  I'm not troubled by the fact that it may conflict  with the ruling I made about the woodlot licences.  I  may have been wrong in that, but the argument that I  have just received I don't think I received at the  time of that -- of that ruling, and while I'm not  going to revisit it, I'm not going to consider myself  completely committed to repeat the mistake, if such it  should be.  I would be glad to hear counsel further in  argument persuading me, if such is the case, that no  inference can be drawn from this at all, but from the  point of view of admissibility I think that this item  may now be Exhibit 81 at the trial.  (EXHIBIT  29, 1985)  :l  APPLICATION FOR A WATER LICENCE DATED NOV.  THE  MR.  THE  MR.  COURT  GRANT  COURT  RUSH:  MR. GRANT:  My lord, that deals with the issue of exhibits for  now, although my friend has a number of other  outstanding ones, some of which he would like to defer  and some of which I would like to defer --  All right.  -- in an effort to finalize that.  Mr. Rush wished to deal with a matter he was  raising with you last Friday, a week ago Friday, I  believe.  He would like to speak to that.  All right.  What's this about, Mr. Rush?  This pertains to the documents that I sought to  tender of Dr. Barbara Lane in answer to questions put  to her by Mr. Goldie in his cross-examination of her,  and I want to re-tender these documents.  You handed  them back to me, and I'm going to pass them back up to  you.  There are two volumes.  Except for one aspect of  the second volume, these appear to be relatively --  the documents in the second volume seem to be  relatively uncontentious.  COURT:  The second one being the biggest one?  RUSH:  The second one being the bigger of the two, that's  correct.  And what I -- what I want to do, my lord, is  to basically deal with these as -- in terms of how  they arose.  Now, I don't know if your lordship still  has the buff-coloured reference book that I handed up  THE  MR. 22510  Submission by Mr. Rush  1 to you, but I have another copy, and I'll hand it back  2 up to you.  3 THE COURT:  I think I have it right here.  4 MR. RUSH:  Yes, that's right.  Well, I read from this, my lord,  5 and basically, to put my argument back into context,  6 my proposition is simply this, that Dr. Lane's lists  7 and documents contained in these two volumes should be  8 tendered and exhibited as answers to questions put to  9 her in cross-examination.  And that's my proposition.  10 To recapitulate on the question, I'm not going to  11 go through the buff-coloured book again, but I simply  12 want to refer you to this reference booklet at tab 1,  13 where Mr. Goldie in relation to the second volume  14 that's before you, and keeping in mind that there's a  15 concession made about this that I say it applies with  16 equal force to the other volume before you, Mr.  17 Goldie's question at page 17505, and I'm here just  18 going right to the essence of the question, is found  19 at line 5:  20  21 "Q  Could you tell me what treaties were made by  22 Great Britain with native peoples in what is  23 now Canada and what were you referring to  24 there?  If you want to provide me with a list,  25 feel free to do so.  26 A   I would have to refer to notes.  27 Q   Yes.  2 8 A   Yes."  29  30 So the upshot, as you will see in a moment, is that  31 Mr. Goldie asks her to go and refer to notes and to  32 answer the question.  33 Now, my lord, in essence in tabs 2, 3, 4, etcetera  34 in my volume dealing with references there is a  35 similar type of question relating to different  36 subjects and a different -- in different areas, but  37 the request is essentially the same, a question asked  38 of Dr. Lane, "Will you provide me with a list," or  39 "Will you provide me with the references."  Let me  40 give you a second example and the only other one I'll  41 take you to.  It's at tab 5.  It's at page 17607, and  42 it's at line 19 at 17607.  43  44 "Q  And I now want to know, and I have asked you  45 before, I now want to know the documents that  46 you looked at to conduct that process.  Now  47 there is nothing..." 22511  Submission by Mr. 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:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  :  I'm sorry, that's at 17607?  Yes, tab 5 and line 19.  :  Oh, 19.  I see.  That's the question.  And I read all of this to you  before, my lord.  And I read, actually, from Mr.  Goldie's opening questions.  There's a series here  beginning on 17606, but I'm for the moment just  dealing with this one essential question.  He carries  on at line 21:  "Now there is nothing open-ended about it, it is  simply asking you to give me the detail to what  you referred to in your evidence.  A   If you think that's not open-ended, I don't  think you understand scholarly research."  And then down to Mr. Goldie's next question at 31:  "Q  Well, unless his lordship directs otherwise, I  suggest to you that you endeavour to provide me  with a detail of what you described and what  you obviously considered to be an important  process, and if you find that that is  impossible, you can advise Mr. Rush."  Then I object or interject and there is discussion  between the bench, Mr. Goldie and myself, and the  question stands.  Then, my lord, at the end of the cross-  examination, and again I cited this to you last day,  on November the 10th --  :  That's in tab?  Tab 6.  :  Yes.  The series of questions put to Dr. Lane for her to  answer was set out in serial form beginning at line 40  of page 17642.  And again, I read all of this to your  lordship, I'm not going to read it again, but  basically what this does is to go through each one of  the points for which questions were asked of Dr. Lane  and which she was asked to answer by way of providing  a list or a response to the particular question.  Now, then in -- at tab 7 is my -- is Ms.  Sigurdson's letter to me asking -- is a follow-up,  really, and you'll see this at page 2, item (f),  information from Dr. Lane: 22512  Submission by Mr. Rush  1 "Kindly advise when we will receive the  2 information requested during Dr. Lane's  3 cross-examination."  4  5 And then is my transfer letter of October 20th and  6 November the 6th, found at tabs 8 and 9.  7 Now, my lord, I want to refer you to volume 1,  8 which is the skinny one, and I simply want to point  9 out to you by reference to the index what's contained  10 here.  First at tab 1 is Dr. Lane's transfer letter,  11 which is a letter from -- dated September 14th, 1989,  12 Dr. Lane to myself, identifying what she was asked,  13 what areas she was -- she was requested to identify,  14 to provide more detail, stating what she's enclosing  15 and where these documents might be found.  In my  16 submission, completely innocuous.  17 Then at tab 2 is a note that deals with all of the  18 lists, and her first list, and her first answer to the  19 questions.  20 At tab 3 is her next list, and each list  21 identifies by reference both to her letter and to the  22 question asked of her the list that's provided.  There  23 are 63 entries in that one.  24 Similarly, at tab 4 there's the lists, and she  25 makes comment with respect to two of the lists on page  26 9 putting the documents in the context for which the  27 list was sought of her.  2 8 And then at tab 5 is the documents reviewed in  29 assessing Laird statement dated November 2nd.  Again a  30 direct response to Mr. Goldie's questions.  31 Then what follows is a document she appended in  32 the case of one of the documents -- excuse me -- in  33 the case of one of the lists, a Barclay to Douglas  34 document, an extract from British Columbia  35 Confederation, and Helmcken's diary of Confederation  36 negotiations.  All of these appertain to documents  37 which she had on hand which pertained to the list.  38 Why there would be any objection to tab 8 I don't know  39 because it was in fact subsequently filed by my  40 friends in much greater detail.  And then there's a  41 handwritten document of Trutch to Macdonald.  42 And what then follows in my part 2, tab 1 are --  43 is a second letter dated the next day, September the  44 15th, where Dr. Lane advises me that she neglected to  45 include a document, the original of which she had and  46 a handwritten copy of which she had.  She enclosed  47 that and another handwritten copy, and that's what 22513  Submission by Mr. Rush  1 that contains.  2 In terms of the treaty documents, my lord, for  3 which there is no objection except to the transfer  4 letter, the treaty documents contain tabs 1 to 61  5 treaties, and leading into that is a list of selective  6 treaties between British Crown and Indians, the  7 request that was made of her, and the transfer  8 document is simply Dr. Lane's letter to me saying  9 what's in the volume.  Again I say relatively  10 innocuous.  11 Now, my lord, my argument here is this.  In the  12 witness stand Dr. Lane was asked a question.  If she  13 could have answered the question in the stand, her  14 oral evidence would stand as the evidence in the case,  15 and if she sought to assist herself with anything that  16 she had, she could have orally given the evidence that  17 she needed to give in order to answer the question.  18 Now, instead we're in a rather anomalous situation  19 here because what Mr. Goldie asks her to do is to go  20 outside of the stand at the conclusion of cross-  21 examination and to answer the question, but it  22 nonetheless stands as a question which is in need of  23 answering, and the answer has been provided.  24 Now, this is not a situation, as your lordship was  25 mooting with me in the last day, in which this is a  26 previous statement of the witness which is used by the  27 witness on the witness stand to refresh her memory.  28 It's not that situation because your lordship's  29 position was at that time that if it were, the written  30 document would not be admissible pursuant to the  31 request to refresh one's memory, and I think I agree  32 with that proposition.  33 THE COURT:  Unless they went on and asked questions about it.  34 MR. RUSH:  Unless they went on and asked questions, yes.  I  35 mean, one would have to examine it directly.  3 6    THE COURT:  Yes.  37 MR. RUSH:  This -- or unless it is a situation of a previous  38 recollection recorded, in which case I think the  39 authorities allow the document to be tendered.  But  40 that -- we're not in that situation.  The situation  41 that we're in, my lord, is question asked, answer  42 sought having left the witness stand, and answer  43 provided.  44 THE COURT:  As requested.  45 MR. RUSH:  As requested.  Now, my lord, if Dr. Lane were here  46 today, she would give the evidence orally, and could  47 give the evidence orally, and ought to be entitled to 22514  Submission by Mr. 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  MR.  THE  MR.  THE  MR.  THE  MR.  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  Goldie  Lane, "You can answer  give the evidence orally.  And that is -- all the  authorities that I have looked at focus on orality as  the key feature of evidence in the box, if I can put  it that way.  :  I'm sorry, focus on?  On orality or the giving --  :  I thought you said morality, and I thought how did  we get into that.  There may be some of that in this.  :  Precious little.  It's the oral character of the evidence as opposed to  whether or not the written document should form the  evidence.  :  Yes.  And here, my lord, because, as I take it, Mr  elected to say to Barbara -- Dr  me by a written response," then I say he's bound by  the written response, and that written response is her  answer to the question that had she stayed in the  witness stand and been able to answer the question  would have been admissible as part of her oral  testimony.  And in my submission, my lord, if she  can't give the evidence in this form, then there is a  question that Mr. Goldie says he has asked and hasn't  been answered, and that, in my submission, is wrong  because the witness is entitled to answer the  question.  Now, the procedure adopted here, in my submission,  was a procedure which was anomalous no doubt, but  nonetheless it's one which I say my friend has  accepted, the witness has answered, and her answers  ought to be put before the court.  Now, if my friend  wants to ask Dr. Lane to come back in the witness  stand, I think what follows from my argument is that  he can do so and she can go back in the stand and  answer the questions.  And I -- I tried to think of a  way that I could avoid making that concession, my  lord, but I think I am bound to say that if the  written answer can stand as her oral answer, then so  it must be that her oral answer in response to the  question must also be the preferred oral answer.  Obviously, it would be better for Dr. Lane to come  back in the stand and answer the questions, and she  would answer -- she would answer the questions put to  her now presumably that she has provided the written  responses, and I doubt very much it would be any  different. 22515  Submission by Mr. Rush  1 So those are my submissions, my lord, and I say  2 that —  3 THE COURT:  Well, let's take it this far, that he asks her for a  4 list of the treaties, and she starts to give them,  5 assuming she has them memorized, and counsel then  6 says, "Oh, I'm sorry, I have misunderstood you.  7 That's not what I want.  I didn't want just the names  8 of the treaties, I wanted to know who signed them.  Do  9 you remember who they were," and she says, "No, I  10 don't remember who signed them."  Then he could say,  11 "All right.  Well, never mind.  I don't require the  12 rest of the information.  It's not what I thought I  13 wanted.  It's not what I thought I was going to get by  14 the question."  So he cuts it off and says, "No, it's  15 not what I want."  Now, under your theory he's  16 deprived of that opportunity.  17 MR. RUSH:  Well, yes, he is.  Absolutely.  And that — that, in  18 my submission, my lord, is the price that has to be  19 paid for the procedure that was adopted.  I mean, Mr.  20 Goldie could well have said, "Well, look, I'm holding  21 my cross-examination over.  Dr. Lane, you come back  22 here with these answers and you answer them in the  23 witness stand," and then Mr. Goldie would have had the  24 option of picking and choosing of what he wanted and  25 what he didn't want in the answers.  But what I've  26 endeavoured to show you in providing you with this  27 buff-coloured brief is that great pains were taken by  28 both Mr. Goldie and Barbara Lane both to identify  29 correctly the question and to identify the ambit of  30 the response because Dr. Lane evinces several times  31 that she feels that she -- that the scope of the  32 request was so open-ended or broad that it would be  33 difficult for her to focus it down to something  34 manageable.  35 But I -- but I guess my other observation on your  36 lordship's hypothetical is that it would be open to me  37 in re-direct to revisit the issue of Dr. Lane's  38 response with she on the stand, and Mr. Goldie, not  39 liking what he's hearing, he could say, "Well, I'm  40 sorry, that's -- you're going down a path that really  41 I'm not interested in," but it seems to me, my lord,  42 that I would then, the matter having been opened, been  43 able to canvass that with Dr. Lane.  And I think it is  44 evident from the rulings made in the proceedings here  45 that where -- where the witness has something more to  46 offer the witnesses have not been curtailed in  47 proffering the evidence which they are going to give, 22516  Submission by Mr.  Submission by Ms.  Rush  Sigurdson  1 and where one has been short-circuited or for one  2 reason or another cross-examination hasn't permitted  3 the full answer, re-direct has been allowed to permit  4 that answer to be given.  And I can assure you that in  5 these types of requests where I think underlying, as I  6 submitted to your lordship before, underlying this is  7 an inference of a challenge to the reliability of the  8 research procedure that I would have pursued that in  9 re-direct.  10 So I'm asking that these documents be tendered and  11 that they be tendered as exhibits in the proceedings.  12 THE COURT:  All right.  Thank you.  13 MR. PLANT:  My colleague, Ms. Sigurdson, is going to speak to  14 this, my lord.  15 THE COURT:  Thank you.  16 MS. SIGURDSON:  My lord, the question here, as I see it, is  17 there are two categories of items.  One is the list of  18 documents and the documents Dr. Lane tendered as  19 offered, the other is Dr. Lane's cover letters and  20 explanatory notes that are throughout those lists.  21 It's our position that with regard to the documents  22 and the lists they go beyond the questions asked in  23 many cases.  They are not responsive.  They are  24 questions that would have been stopped in the course  25 of cross-examination.  26 For example, she was asked to provide a list of  27 documents dealing with the questions of extinguishing  28 title on Vancouver Island.  The context of the  29 question was pre-union of the Vancouver's Island and  30 the mainland.  In her list she goes well beyond that  31 to post-union documents, also goes well beyond the  32 geographic limitations.  Similarly, with respect to  33 her -- the requests for Trutch's letter and Laird's  34 memorandum, the request was specifically to provide a  35 list of documents that she had in mind when she  36 assessed those statements made in those letters.  Mr.  37 Goldie requested that he did not want the documents,  38 he wanted a list, and it was to go to methodology.  39 And that was the context of the question.  In  40 providing the documents and lists she goes well beyond  41 that.  42 In her explanatory notes she goes into answers  43 that she would not be allowed to give at stand, not  44 only because they were not responsive, but because  45 they were inadmissible under your lordship's rulings.  46 Dr. Lane, like Dr. Morrison and Dr. Greenwood, were  47 allowed to present collections of documents.  They 22517  Submission by Ms. Sigurdson  Submission by Ms. Koenigsberg  1 were not allowed to assess documents or to evaluate  2 any statements or series of documents.  Many of her  3 statements go into that kind of evaluation.  4 It's our submission that the question asked of Dr.  5 Lane was to provide lists of documents.  They were  6 used to assess methodology.  This material goes well  7 beyond it, and it goes well beyond it into  8 inadmissible areas.  9 It's our position that all of the covering letters  10 should not be included in this material.  They are not  11 responsive.  They were not part of the request.  The  12 explanatory notes should be excluded because they are  13 into the inadmissible realm throughout this -- the  14 course of this trial.  With regard to the documents,  15 we say that they are objectionable in large part, and  16 the lists as well, and should not be tendered.  They  17 are not responsive to the questions asked.  They go  18 well beyond that and open up new areas that we are  19 then deprived a right of cross-examination at the  20 time, unless we have to go to the difficulty.  But  21 those weren't the questions asked.  She's enlarging  22 and expanding far beyond what was asked of her.  23 Having said that, we acknowledge your lordship's  24 statement that he will allow the plaintiffs to tender  25 additional documents in this extraordinary case.  We  26 have indicated to our friends that we do not object to  27 the treaties going in.  If they want to add to their  28 collection of documents, they can, without our  29 objection, tender the lists of documents only and the  30 documents that are referred to as their documents, but  31 they are not responsive to the questions raised during  32 cross-examination, and all explanatory notes are  33 inadmissible.  34 And with respect to Mr. Rush's offer that we could  35 recall Dr. Lane, we think that would be unfortunate if  36 that was necessary, but we also do not agree that we  37 should be obliged to cross-examine on inadmissible  38 opinion that should not be before the court in the  39 first place.  4 0    THE COURT:  All right.  Thank you.  Mr. Rush.  Well, I should  41 hear from Ms. Koenigsberg.  42 MS. KOENIGSBERG:  I really only have one comment, my lord, that  43 makes it contentious directly, I suppose, upon on our  44 case in the way we have conducted it.  But the nature  45 of the questions which Mr. Goldie did ask of Dr. Lane  46 was in -- in response to an answer by Dr. Lane that  47 she looked at similar types of documents or a list of 2251?  Submission by Ms.  Submission by Mr.  Koenigsberg  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:  documents which had not been disclosed or itemized.  To allow her to come back at this time without cross-  examination and with editorial comment is putting a  real premium on non-disclosure and simply allows the  putting in of evidence in a way that doesn't encourage  the kind of disclosure that has been necessary in this  case.  :  Thank you.  Mr. Rush.  Well, the difficulty with my learned friend Ms.  Koenigsberg's submission is that she forgets that it  was Mr. Goldie who asked the questions, who opened up  the field.  And that's primarily the difficulty I have  with both Miss Sigurdson's and Ms. Koenigsberg's  submissions, is that this was Mr. Goldie.  Mr. Goldie  was in the position of defining the parameters.  He  could say anything he wanted to.  In fact, Dr. Lane  throughout endeavoured to get him to focus and narrow  his responses -- or his questions so she could focus  and narrow her responses.  And, my lord, I think that  it regrettably requires close reading of the questions  because the response -- the questions that were  summarized to Dr. Lane found at tab 6, in my  submission, do not permit the argument that she went  beyond what was asked of her.  These were very broad  questions.  And I -- I will give as one example here the  question of documents pertaining to the extinguishment  of -- the need for extinguishment, other than those  documents with regard to the Cowichan Valley because  you will recall that in her evidence she addressed  that specifically.  Mr. Goldie wanted her to go beyond  that.  The question that she was asked to answer was  this :  "...And then I wanted to know in reference to  your evidence,"  and I'm reading at tab 6 page 17643.  "...And then I wanted to know the documents that  you" --  excuse me, I just jumped down to the next one.  "...And then I wanted to know in reference to  your evidence the documents on need for  extinguishment other than those with regard to 22519  Submission by Mr. Rush  Ruling by the Court  1 the Cowichan?"  2  3 And she said:  4  5 "Again, I can supply that."  6  7 There was no parameters in terms of time.  She was  8 asked to give in terms of what she looked at those  9 documents on the need for extinguishment other than  10 those with regard to the Cowichan.  Now, for my friend  11 to say that somehow it went beyond a certain time  12 frame or that it went beyond a certain land mass base  13 I think is really saying to Dr. Lane, "Well, we don't  14 like your answer.  We're unhappy with your answer  15 because it went farther than what we asked you."  But  16 if you look at the questions, it's the question that  17 opened up those types of answers.  18 So with regard to the notes, my lord, I -- in my  19 submission, the kind of comment that Dr. Lane makes as  20 a note is not an opinion on the document so much as an  21 explanation by her as to the way she uses the  22 document, and all of the witnesses were allowed to  23 give that kind of evidence.  24 In terms of the cover letters, well, my lord, I  25 can't really argue that the cover letters were asked  26 of her, and I don't put that forward, but neither do I  27 take the position that there is anything injurious or  28 difficult.  I can't see why my friends would be  29 injured by it because it's clear what's being passed  30 back and forth, and I -- well, I must say that I think  31 it would be of assistance to your lordship, but I  32 concede she wasn't asked to give a cover letter.  33 THE COURT:  Thank you.  I think that I have an almost impossible  34 task here because the nature of the question, the  35 nature of the responses, and the nature of the process  36 interact each on the other in ways that may make it  37 exceedingly difficult to draw the line between  38 admissibility and inadmissibility.  I think  39 inadmissibility is probably the wrong word.  Between  40 inadmissibility and what is not admissible.  Not  41 because of the nature of the evidence, but because of  42 the nature of the inquiry upon which we're presently  43 engaged.  44 I think that there is an overtone, possibly  45 unintended, about the research undertaken by Dr. Lane,  46 and I think when she is asked for material which  47 understandably she cannot recall immediately but she 22520  Ruling by the Court  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  MS.  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  is asked to furnish a list, that the list she  furnishes and the documents in question should go in  for the purpose of showing the extent of her research.  I do not think that counsel asking such a question  should be in the position where he is presented with  more than he asked for.  I say that because if the  witness had responded and given him the particulars,  he could have stopped at that point and said something  to the effect of, "Thank you very much," and  immediately changed the subject, and while the  question would have been answered, he wouldn't be  faced with a further body of evidence that may now be  included in the material which has been presented.  And so my ruling is that the response of Dr. Lane  to Mr. Goldie's questions should be admitted into  evidence, but anything that he did not request should  not be admitted under the umbrella of the procedure  conveniently adopted at the time of the cross-  examination .  I do not think the covering letters are admissible  because, as Mr. Rush frankly concedes, they were not  requested and they may in some way be equated to  argument.  I don't know if they are or not.  I haven't  studied them carefully.  But I do not think that the  question as asked during cross-examination called for  covering letters, and for that reason I would exclude  the covering letters.  I do not know whether it is possible for counsel  to conveniently decide or extract from these two books  of documents which ones fall within the ruling I have  just made or otherwise.  Perhaps before I go any  further counsel should tell me whether they think that  can be done.  SIGURDSON:  I propose that we try and come back if we can't  reach agreement.  I can't oppose that.  All right.  There is, however -- I think there are some things we  could do, my lord, if you have finished your ruling on  this .  Yes.  At least let's go so far --  You mean in five minutes or this afternoon?  No, I think there are some matters that we have for  you this afternoon.  Not many, but a few.  Yes.  But at least, my lord, I'd like to propose that from  RUSH:  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  COURT  RUSH: 22521  Proceedings  1 this volume we now extract the cover letters.  2 THE COURT:  Yes.  3 MR. RUSH:  And —  4 MS. SIGURDSON:  Perhaps I should interrupt here.  I think on the  5 thin volume there probably will be a fair bit of  6 discussion, and the lists are interspersed on the  7 explanatory notes.  Perhaps that can all be put off  8 for now.  But I would not object to the treaties filed  9 being tendered with the covering letter withdrawn.  10 THE COURT:  That's the small book?  11 MS. SIGURDSON:  The treaties is the large book.  12 MR. RUSH:  The large one.  13 THE COURT:  All right.  14 MR. RUSH:  My lord, what I am going to propose is that two  15 numbers be reserved for these volumes.  16 THE COURT:  All right.  17 MR. RUSH:  And I'd like to suggest that the smaller, the thinner  18 of the two be the next exhibit.  19 THE COURT:  All right.  That will be 1206.  20 THE REGISTRAR:  Yes, my lord.  21 THE COURT:  And 12 07.  22 MR. RUSH:  Yes.  Now, let's —  23 THE COURT:  And which one is which?  24 MR. RUSH:  The thinner — I think I've labelled it.  Well, the  25 first one or the thin one is Dr. B. Lane  26 Cross-Examination Documents.  27 THE COURT:  The thin one is 1206.  2 8 MR. RUSH:  Yes.  29  30 (EXHIBIT 1206 - CROSS-EXAMINATION BOOK, DR. B. LANE)  31  32 THE COURT:  Yes.  All right.  33 MR. RUSH:  And the fatter of the two I propose -- and this is  34 dealing with treaties between British Crown and  35 Indians.  3 6 THE COURT:  Yes.  37 MR. RUSH:  I propose that that be 1207.  38 THE COURT:  Yes.  All right.  39  40 (EXHIBIT 1207 - LIST OF SELECTED TREATIES BETWEEN BRITISH  41 CROWN AND INDIANS PLUS TREATIES)  42  43 MR. RUSH:  Now, my lord, I am prepared to agree that the cover  44 letter in 1207 be extracted.  45 THE COURT:  That's just the one-page letter?  46 MR. RUSH:  That's in the beginning of the document.  And, my  47 lord, that I take it then leaves in 1207 the list plus 22522  Submission by Mr. Rush  1 the treaties, and I take it that there is no issue  2 further with that.  3 MS. SIGURDSON:  That's correct.  4 THE COURT:  All right.  1207 is looked after.  5 MR. RUSH:  Yes.  Now, I agree with my friend, if she wants to,  6 we can set aside the other matter, and whether or not  7 we can deal with it again today I don't know, but  8 we'll revisit it if necessary.  9 THE COURT:  Should I at least start by taking out the cover  10 letter?  11 MR. RUSH:  Well, that's what I had proposed.  At least we know  12 that that isn't going to be proceeded with.  So the  13 cover letters at tab 1 of 1206, part 1.  14 THE COURT:  All right.  15 MR. RUSH:  Now, my lord, I have one other matter which I might  16 be able to do in two minutes.  17 THE COURT:  Yes.  18 MR. RUSH:  And it's this, it was a matter that I think Mr. Plant  19 could speak to, and I'm not quite sure what his  20 position was going to be, but your lordship --  21 THE COURT:  Oh, I'm sorry, just before you continue, what is tab  22 2 in 1206?  23 MR. RUSH:  Tab 2 of 1206 is Dr. Lane's first note and document  24 list.  25 THE COURT:  All right.  26 MR. RUSH:  And it's -- the list is James Douglas' reports on  27 treaties to London.  2 8 THE COURT:  Yes.  All right.  Thank you.  29 MR. RUSH:  Now, my lord, the — this — the next matter that I'm  30 going to be dealing with and then I hopefully will --  31 my role will be thus truncated is to submit to you a  32 covering letter together with a document that was  33 disclosed during the cross-examination of Dr. Duffy.  34 Now, the sequence of events was this, that Dr. Duffy  35 during his cross-examination was asked about the  36 Kitwancool land reserve, and you may recall that he  37 was asked to go and do some research on that to  38 determine if it was held in his department.  He found  39 a file.  The file was produced.  It was tendered to  40 your lordship.  Two objections were taken, one on  41 relevance and one on privilege.  Your lordship  42 initially ruled on the question of relevance.  You  43 divided two batches of documents.  One you decided was  44 not relevant and you returned to my learned friends.  45 The other batch you decided was relevant.  46 Of the batch that you decided was relevant  47 pertaining to Dr. Duffy's testimony I have extracted 22523  Submission by Mr. 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  THE  COURT  29  MR.  RUSH:  30  THE  COURT  31  MR.  RUSH:  32  THE  COURT  33  34  MR.  RUSH:  35  THE  COURT  36  MR.  RUSH:  37  THE  COURT  38  MR.  RUSH:  39  THE  COURT  40  MR.  PLANT  41  42  43  44  45  46  47  THE  COURT  one of the -- one of the documents from that group,  which I seek to tender, and that's the letter of  January 24th, '75, from A.F. Smith, Assistant Director  of Lands in the Lands Department, to the Associate  Deputy Minister of Recreation & Conservation, and the  cover letter that brought this document to my  attention, a letter from Ms. Sigurdson to me, which  enclosed the copies of the declared relevant extracts  from the Kitwancool territorial reserve.  And I file  these really on the same basis as the documents that  were filed in relation to Mr. Harding's cross-  examination, which were forest reports from the Skeena  Forest District.  My friend and I debated that.  Your  lordship directed that they be -- that they could be  tendered and exhibited in the proceedings.  In my submission, having declared that this  document is relevant, I think it flows that it -- it's  authentic and it's equally tenderable as an exhibit in  much the same way as Mr. Harding's exhibit was.  And I  took from my friend's out-of-court discussion that we  would settle the matter on the Harding issue, and if  it were settled there, then it would be settled for  this issue as well.  So I'm -- given that, and I hope  that I've characterized his position correctly, I seek  to tender these two documents as really documents that  are exhibits in the series of exhibits exhibited in  Dr. Duffy's cross-examination on his affidavit.  :  Well, I've been given two copies of the same thing.  Oh, you shouldn't have been.  :  Perhaps one is entitled for --  Yes.  And there should be two documents.  :  No, there's only one.  There's just the January 24th  letter.  Yes.  And is there not a cover letter?  :  From your learned friend?  Yes.  :  Oh, yes.  That's what comprises the two documents.  :  All right.  Is this objected to?  :  No, my lord.  I have not yet reviewed the parting  material to see what additional documents I wish to  add, if any, and I would claim the same right in  respect of this.  I did not know which, if any, of  these documents my friend would seek to tender, and I  would like to have a chance to go back and look at the  rest.  :  All right.  Ms. Sigurdson's letter will be 1208, and 22524  Proceedings  1 the January 24th, '75, letter will be 1208A, which  2 will be admitted subject to the caveat that Mr. Plant  3 has just mentioned.  4  5 (EXHIBIT 1208 - COVERING LETTER DATED OCTOBER 3, 1989, TO  6 MR.  GRANT FROM MS. SIGURDSON)  7  8 (EXHIBIT 1208A - LETTER DATED JANUARY 24, 1975, TO THE  9 ASSOCIATE DEPUTY MINISTER OF THE DEPT. OF RECREATION &  10 CONSERVATION FROM A.F. SMITH)  11  12 THE COURT:  All right.  Two o'clock convenient?  13 MR. RUSH:  Thank you.  14 THE COURT:  Thank you.  15 THE REGISTRAR:  Order in court.  Court stands adjourned until  16 two o'clock.  17  18 (PROCEEDINGS ADJOURNED AT 12:35 P.M.)  19  20 I hereby certify the foregoing to be  21 a true and accurate transcript of the  22 proceedings herein to the best of my  23 skill and ability.  24  25  2 6    27 Leanna Smith  28 Official Reporter  29 United Reporting Service Ltd.  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 22525  Proceedings  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  THE  MR.  THE COURT  MR. RUSH:  THE  MR.  THE  MR.  THE  MR.  THE  REGISTRAR:  Order in court.  COURT:  Mr. Rush.  RUSH:  My Lord, I had one further matter that I was going to  raise with the Court, and that pertains to the  question of photography.  Your Lordship mentioned that  you were interested in counsels' views on the subject,  and just wanted to express the point of view of the  plaintiffs' counsel; that we think it would be a good  thing to have a photograph taken of the dramatis  personae of the file, and I understood that you were  considering doing that on one of the next couple of  Fridays.  It doesn't have to be then, but it would be probably  most convenient.  This gentleman who has been taking  the pictures of the judges is a -- well, no secret  about it, he is a practising dentist, very able  dentist, and a very able photographer, and he does  them on Fridays.  When judges leave the bench we have  their photograph.  So we have to take them while they  are here, never take them afterwards.  And I haven't  spoken with him, but I'm sure he would be happy to  come and do it if we asked him to.  Well, this coming Friday would be convenient for  counsels for the plaintiff, but we can arrange other  times too.  I hadn't heard from your learned friends yet, so  Friday may be too soon, Mr. Rush.  I don't think you will hear from me in opposition to  Mr. Rush's suggestion.  I know that Mr. Goldie is  unavailable for the earlier part of this week.  I  don't know about Friday.  But perhaps my friend and  Your Lordship can take it that he would be available.  Of course he may not want his picture taken.  With this collection of people.  He may find something else to do.  But in any event,  don't wait to hear from us further on that.  I will  certainly let you know tomorrow if there is a real  problem.  Yes.  All right.  I am sure we are all available, My Lord.  All right.  I will make some enquiries of our master  photographer, who happens also to be my dentist, and  who -- he may be fully booked on Friday.  We had so  many appointments of all the courts, about eight or  nine to take, I think, but it may be possible to work  it in.  I will make some enquiries.  All right.  Thank  you.  COURT  PLANT  COURT  PLANT  COURT  FREY:  COURT 22526  Submissions by Mr. Grant  1  2  3  MR.  RUSH:  4  MR.  GRANT  5  6  7  THE  COURT  8  9  MR.  PLANT  10  11  12  13  14  THE  COURT  15  MR.  PLANT  16  17  18  19  20  21  THE  COURT  22  MR.  GRANT  23  24  25  26  27  28  THE  COURT  29  MR.  GRANT  30  THE  COURT  31  MR.  GRANT  32  THE  COURT  33  MR.  GRANT  34  35  36  37  38  39  40  41  42  43  44  45  46  47  I think I should say that probably the following  Friday might be a better day.  Will you be here then?  I think so, yes.  That's the 1st, and I don't believe Your Lordship is  going to be here. I had scheduled not to be here that  day.  All right.  Thank you.  We'll have to see where we  go from there.  All right.  I'll make some enquiries.  I have another matter that I can speak to very  briefly.  Your Lordship made some enquiries of Mr.  Goldie, and I think perhaps also myself, as to what  was the order-in-council that Mr. Goldie had referred  to in his opening.  Yes.  It's PC1265.  The document is tab 14 in section  Roman numeral XI, volume 12 of the defence and  counter-claim documents, and that's where Your  Lordship will find the document itself.  It's also  identified in paragraph 37D, capital D, of the  Statement of Defence.  All right.  Thank you.  Mr. Grant.  The final matter, I believe for today, related to  interrogatories, and as you may recall, I believe on  November 10th Mr. Plant tendered a brown binder of  interrogatories and affidavits, and it was left up to  the plaintiffs' counsel to suggest if there were any  others.  Yes.  Exhibit 1196.  That was the binder, I believe.  Yes.  Do you have that?  I have it.  I would refer you to -- I believe the first tab is  Mr. Angus's Wii Eelast, and my friends put in 101(a),  (d), (e) and (f) and 103 as I recall in that case.  They didn't always put in both, but in that case he  did.  Now, Mr. Angus did not give evidence and was not  cross-examined.  There is no other evidence from Mr.  Angus.  And with some exceptions, that's the case with  almost all of the interrogatory answers that my friend  has tendered.  Now, in that circumstance, My Lord, I am concerned  that that answer standing alone suggests that the  House does not utilize or exercise control over the  territory today, and that that is misleading in that  respect.  And a perusal of the interrogatory questions  and answers clarifies that, and in this case I am 22527  Submissions by Mr. Grant  1 proposing -- and I propose to deal with this with this  2 example, and then it will be able to -- Your  3 Lordship's ruling will guide me in the review of the  4 rest.  So rather than going through each of them,  5 because they are not always the same question and  6 answer, they don't always apply.  But in this case it  7 would be question 74, and question 74 is --  8 THE COURT:  I'm sorry, this is additional to or putting your  9 further complexion on some -- one of these answers?  10              Which one is it?  On 101 and 103.  Yes.  In the sense that -- just a moment.  101A, for  11 MR. GRANT  12 THE COURT  13 MR. GRANT  14 example:  15  16 "Q   How have you or they been denied?  17 A  According to non-Gitksan laws the Defendant  18 claims that aboriginal title, ownership and  19 jurisdiction have been taken.  For example, I  2 0 cannot go hunting without a permit.  I am not  21 allowed to burn trees to harvest berries or to  22 cut or sell the trees on my territory."  23  24 And then on 103, and then (d), (e) and (f), of  25 course, is the denial of access and use was by  26 representatives of British Columbia and Canada within  27 the territory, and it was denied -- it was described  28 how it was denied.  103 is that:  29  30 "The members of my house and my ancestors have  31 suffered culturally and socially by the severe  32 imposition of the laws of the Province of  33 British Columbia and Canada on our system and  34 way of life.  The provincial and federal  35 governments have attempted to enclose the  36 Gitksan within reserve lands and have attempted  37 to deny them access to their territories.  38 These attempts have caused severe dislocation  39 in the social system and seasonal round.  Laws  40 aimed at restricting our access to House  41 members.  Laws requiring inheritance of  42 property through the father's line upon the  43 death of a male Chief have adversely stressed  44 social relations among the people."  45  46 Now, I am concerned with respect to what my friend  47 has tendered, given that the vast majority of these, I 2252?  Submissions by Mr. Grant  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  think there are -- on my recollection there are two  exceptions that I located, have not given any  evidence.  And there is an implication here that these  Houses have not utilized or exercised control over  their territory by these two questions and answers.  And these, of course, questions and answers, were  answered in the context of other questions and  answers.  My friend, for example, excluded the  question (b) of 101, which was a question which refers  to, among other things, to see the earlier answers,  and (c), "When did the denials occur?"  "See earlier  answers".  He excluded those.  And I am not -- I don't  think because he has excluded them that I -- I am not  suggesting to put those in, but I am suggesting to put  in those two answers which put in context what has  been said here.  And those -- the first of those is  question 74.  My Lord, I -- just a moment.  I have another one  of 74.  This is another interrogatory to which it  would apply, but it has the same answer.  Not all of  them have the same answers.  That's why I wouldn't say  this is a global response, but it certainly would set  the parameters.  The question is:  "What is your personal knowledge of:  (a) the resources which were and continue to be  harvested, managed and conserved within your  House's territory by the Plaintiffs or their  ancestors;  Summer:  Fish - spring, coho, sockeye, pinks  and chum salmon.  Berries:  Soapberries, saskatoons,  thimble-berries, blueberries, and other berries  and fruits.  Fall:  Fish:  stealhead trout.  Berries:  huckleberries, high bush cranberries,  wax berries and wild crab apples.  Animals:  Bear, ground hog ..."  THE COURT:  MR. GRANT:  I have read it.  And it goes through.  And then:  "The manner in which each such resource was and  continues to be harvested, managed and  conserved; 22529  Submissions by Mr. Grant  1 Big game animals were taken by snare and more  2 recently shot with a rifle.  We used to catch  3 fish in baskets and traps.  Presently, we use  4 nets.  We use deadfalls, snares and steel traps  5 to catch fur bearing animals.  6 Salmon was trapped or netted; now they are  7 mainly netted.  The animals were snared,  8 deadfall trapped, speared and now are shot or  9 trapped.  Berries are picked with baskets.  10 The law of the Gitksan is that you only take  11 what yoiu need, that is how we managed the  12 resources.  We do an inventory of what our  13 needs are including food and goods for feasts  14 and for trade and we only take what we need.  15 We do not waste, we use as much of the animals,  16 fish and plants as we can.  17 We only harvested game animals and fur animals  18 when their young did not depend on them.  We  19 burned our berry patches to keep them active  20 and healthy.  We did not allow children to play  21 with fish on the spawning beds.  22 (c)  instances prior to the commencement of  23 this action of harvesting, management and  24 conservation with respect to each of such  25 resources;  26 The use of the territory was ongoing.  However,  27 I have not used Wah Lop myself but instead I  28 use Xhliiyemlaxha's fishing territory, with her  29 permission.  30 The Gitksan people have not changed their  31 harvesting laws.  It is still the same.  32 (d) the location and dates of such activity?  33 Throughout the territory.  34 Within the territories that are described in  35 answer to question 59.  36 Every year we carry on the annual round of  37 resources harvesting."  38  39 And in this one, and this is different than the  40 one that you have, 85(c), which is:  41  42 "What is your personal knowledge of:  43 (c) instances prior to the commencement of this  44 action of the exercise of such authority over  45 the territory by the members of your House and  46 their ancestors?  47 When I received the name Wii Eelast the Chief 22530  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. FREY:  THE COURT  MR. PLANT  spoke generally about the authority of Wii  Eelast over the territory.  In the feast hall  the authority of Wii Eelast is asserted and  reaffirmed."  And that's described earlier as having received  the name of Wii Eelast in 1978.  Now, My Lord, the reason I submit that -- and  85(c) doesn't always apply, but would apply to Wii  Eelast or Jimmy Angus's answer, but the reason I  submit that these answers should be read in with the  others, is that it is misleading when one reads only  the other answer.  It is misleading to suggest that --  the suggestion is there, though, that the -- the House  has not utilized the territory in a contemporary  manner, that basically they have been prevented from  access and use of the territory, and they have  suffered damages.  And I think that that is misleading  in that context, because there is evidence in this --  in this answer of ongoing use of the territory up to  the present time, and there is evidence and statements  of instances prior to the commencement of action of  exercise of authority over the territory, and those  are the two questions and answers with respect to Mr.  Angus that I believe should be read in.  And I submit  that there are similar answers in many of them, but  it's not always the same question and answer.  So I am certainly not asking for a global ruling,  but I am asking for the ruling here.  And I have --  now having referred to it, I can just provide you --  Your Lordship with a copy of Mr. Angus's, which has  those two questions and answers.  That's 74(a), (b),  (c) and (d) , and 85(c) .  And those are the two  questions that --  :  Thank you.  :  That's the whole answer of 74.  That's my  submission.  :  All right.  Mr. Frey, do you have anything to say?  My Lord, this is the 298th day of trial.  I don't  think there is any risk of Your Lordship being mislead  by leaving the answers in 101 and 103 in by  themselves.  :  Mr. Plant.  :  I object to this, My Lord.  The test is expressly  set out in Rule 40(30), and the test is that Your  Lordship has to be of the opinion that any other  answer or part of an answer is so connected with an 22531  Submissions by Mr. Plant  1 answer or part thereof given in evidence that the one  2 ought not to be used without the other.  And what my  3 friend is really seeking to do here is to adduce some  4 self-serving evidence about the plaintiffs' assertions  5 of harvesting and managing of resources that occupied  6 the bulk of -- well, the first half of his case in  7 chief.  He certainly had an opportunity to call every  8 hereditary chief, and chose not to do so.  He called a  9 great number of them.  And in respect of those that he  10 did not call, there were interrogatory answers given,  11 and the question which Your Lordship has to decide is  12 whether, using Mr. Angus's answers as a test case  13 here, whether the evidence given in 74(a), (b), (c)  14 and (d) and 85(c) are necessary to the comprehension  15 of 101 and 103.  16 Now, there is no reference, direct reference in  17 101 or 103 to any of the other -- no specific  18 reference in the answer which I have tendered to any  19 of the earlier interrogatory answers.  The questions  20 were designed so that the answers would be, so far as  21 possible, self-sufficient; that is, they would stand  22 on their own, and they do stand on their own.  My  23 friend wants to now at this stage in his case, in  24 effect, call Mr. Angus to prove his seasonal round of  25 coho fishing and whatever else it says there.  I don't  26 have a copy of the 74(a), (b), (c) and (d), but Your  27 Lordship has heard -- I shudder to think how many  28 volumes of evidence from plaintiffs about the seasonal  29 round.  The plaintiffs chose not to call any evidence  30 from the individuals whose interrogatories are in this  31 binder, and I don't want to call that evidence for  32 them.  If there is some way in which there is some  33 ambiguity here in the answers to 101 and 103 that  34 cannot be understood, but by reference to 74 and 85,  35 then my friend might have a point.  But he hasn't  36 identified any such ambiguity, and in my submission  37 there is none.  38 There are terms here which are very familiar to  39 Your Lordship from the evidence, terms like social  40 system and seasonal round and laws and resources and  41 territory.  All those terms are familiar to Your  42 Lordship, and indeed they are repetition, they are  43 constant repetition throughout all of the 34 tabs in  44 the binder of interrogatories.  The fact that they  45 recur time and time again is part of the reason why we  46 wanted to have the interrogatories put before Your  47 Lordship, to see that these are basically standard 22532  Reply by Mr. Grant  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. PLANT  THE COURT  MR. PLANT  THE COURT  MR. GRANT  form answers.  Why did you put 103?  Damages isn't being tried now.  Why did we help prove my friends' case on damages?  Well, I'm not sure you did that, but 103 relates  entirely to damages.  Yes.  What is the damage as a result of restrictions  on rights.  It would be an over-generalization to put  it this way, but I will put it this way.  There are  types of activity which the plaintiffs characterize as  damage, which we say is the assertion of sovereignty  on the part of the two levels of government that goes  to extinguishing, reducing, limiting the plaintiffs  rights.  That's what 103 is about, so far as -- again  that's over-generalizing a bit, but that's the general  point.  And it's not necessary to understand those  answers, for Your Lordship to have other evidence of  those individuals before you.  And I say again that  what my friend really seeks to do is to adduce some  self-serving evidence here, which he had plenty of  chance to do by calling any of these individuals as  witnesses.  And he chose not to do that.  But we have  information and interrogatory answers which we wanted  before the Court.  The evidence that my friend wishes  to add to that is not necessary to the understanding  or the context of the answers that we have put before  the Court.  My friend gave a perfect example when he  noted that we omitted 101(b) and (c) in the case of  Mr. Angus.  That's because Mr. Angus's answers to  those questions expressly incorporated by reference  other answers.  We didn't want that, and we wanted to  keep the matters simple and directly to the point of  question 101.  So we kept that out.  And what my  friend is really seeking to do is to get in by the  back door which he chose not to bring in by the front.  Thank you.  Mr. Grant.  Well, I am certainly not trying to get in by the  back door what I didn't bring in by the front.  I  could have brought -- I could have called 34  additional witnesses.  We certainly could have.  I  think that it would have been trying on all of us, and  we had to make our choices.  And it's not a question  here -- I am not tendering these answers to prove the  seasonal round.  That's not the point of it.  If you  haven't -- if there isn't sufficient evidence in the  plaintiffs' case about the seasonal round, as  described by the witnesses and the expert witnesses, I 22533  Reply by Mr. Grant  1 think we have a long road to hoe, and we have done  2 that.  3 There is an ambiguity in 101 and 103.  The  4 ambiguity is this, My Lord.  When you read the answers  5 to 101 and 103 in isolation, there is a suggestion,  6 which my friend did not withdraw that suggestion  7 today.  He didn't say no, I don't mean that.  There is  8 a suggestion that the House of Wii Eelast does not use  9 the territory, that their claim effectively is the  10 damages.  11 Now, the answer was to that specific question  12 related to damages, but the answer standing alone  13 implies that that's -- that there is no contemporary  14 use of the territory by that House, and it isn't  15 ongoing.  And that, I submit, is misleading in the  16 context of the other answers.  Those are the answers,  17 the 74 in that -- in this case 74 and 85(c) which  18 explain that.  In some cases the answers are shorter,  19 which explain it -- which take away that ambiguity.  20 But those are the answers which show that there is  21 continuing utilization of the territory by Wii  22 Eelast's House.  That's the purpose for which I will  23 putting it in.  And if my friend -- and like my  24 friend, if my friend is concerned that I am putting it  25 in to try prove the seasonal round, I have no trouble  26 with saying it on the record that's not the point.  27 The point of putting these answers in is to show that  28 at the time that Mr. Angus swore that affidavit, he  29 had already, by the time he got to 101, explained in  30 great detail contemporary utilization of the territory  31 and resources.  And that -- and because he didn't say  32 subject to all my earlier answers in answer to 101, I  33 don't think that precludes the connection, and that's  34 the ambiguity that I want cleared up, and I thought  35 that I was clear about that ambiguity.  That's the  36 only ambiguity I am concerned about.  37 MR. PLANT:  Sorry to interrupt.  The ambiguity which my friend  38 identifies is not the point of the question.  101, the  39 point is denial.  The point is not whether you do or  40 do not use the territory, the point is have you been  41 denied the right of access and use.  And in 103 it is  42 damage as a result of restrictions on rights.  We are  43 interested in what is the answer to the restrictions  44 that -- well, have there been restrictions, and what  45 has been the response.  It's not questions which go to  46 the actual use and occupation or exploitation of  47 resources.  There were other questions that went 22534  Reply by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  THE COURT  through those issues, and as my friend says, they were  answered.  But they are not the subject of these  questions.  :  Well, as I read this, it seems to me that the only  thing that -- let me go back and say I am not going to  deal with 103.  I am not going to even look at it,  because damages are a matter that we are going to deal  with separately here.  When we get around to assess  damages, I will be glad to hear whatever submission  you make about something connected with 103.  But with  regard to 101, the only problem I see with 101 is the  statement in sub A where it says:  "I am not allowed to burn the trees to harvest  berries or to cut and sell the trees on my  territory."  That's -- it seems to me that's the only thing  that suggests a denial other than the imposition of  laws.  And so I -- it seems to me that's the only  issue that we have here.  And I am just wondering, Mr.  Grant, if it wouldn't be solved if I wished to direct  that -- I'm sorry, if -- that the matter isn't  resolved just by 101F, which is already in.  "How was such denial expressed or affected?  Verbally, through the imposition of permits and  other requirements contrary to Gitksan law."  And that would make it clear that the focus of the  question and the answer is denial, and it's a  legislative denial, not a -- and the answer seems to  be relatively neutral as to any active or inactive use  or non-use of the property.  Why do you have to be  concerned about (f)?  That's how the denial is  expressed.  It's verbally through the imposition of  permits.  It doesn't say that they don't use it.  Well, if it's clear that the answer to 101 is not --  Descriptive of what's happening.  -- descriptive that they do not use it, if that's  clear, and my friends are not relying on it to suggest  that they don't use it, then that goes a long way to  solving the concern that I have.  I am disposed to resolve this matter as I already  have said, by declining to look at 101, and by  treating -- I'm sorry, 103, and by treating 101 as  being a question focusing on denial, and the answer 22535  Ruling  1 being that it's true through the imposition of  2 permits.  That seems to me to solve the problem for  3 both of you.  4 MR. PLANT:  I don't understand Your Lordship's refusal to look  5 at 103.  I must submit I am at a loss there.  6 THE COURT:  Because it relates to the question of damages,  7 doesn't it?  8 MR. PLANT:  Is Your Lordship there referring to the severance of  9 damages?  10 THE COURT:  Yes.  11 MR. PLANT:  The only issue that has been severed is  12 quantification.  The issue that remains at large  13 before Your Lordship is whether the plaintiffs can  14 prove any damage, and they are required to prove it on  15 a house by house basis or nation by nation basis,  16 whether their claim is joint or several, or whatever  17 it turns out to be at the end of the day.  So 103  18 doesn't deal with quantification.  It goes to the  19 concept of restriction.  20 And I might say this, I am not going to address my  21 friend's concerns entirely, but whether James Angus or  22 anyone else in the House of Wii Eelast has established  23 that they use, occupy, harvest, manage, conserve any  24 resources on any territory claimed by them is a matter  25 that is -- falls to be determined on evidence other  26 than Mr. Angus's answer to this interrogatory.  I  27 wouldn't be looking to this interrogatory to prove  28 that he does not do those things.  29 THE COURT:  Well, I have read 103 again.  It does seem to me to  30 be focusing substantially, if not entirely, upon  31 legislative restrictions, rather than actual or  32 physical restrictions, and that being so, it doesn't  33 seem to me that it is necessary to add in additional  34 questions to explain these answers.  And, of course,  35 I'm sure Mr. Grant is comforted by Mr. Plant's  36 assurance that he will not be looking to these  37 questions, 101 and 103, to support any argument that  38 may advance the -- regarding the actual way of life of  39 the plaintiffs.  That being so, it seems to me that  40 there is no need to add any further questions to  41 explain those two interrogatories.  42 MR. GRANT:  My Lord, I would like to — I'm in the process of  43 reviewing others, but wish those directions, and would  44 like to be able to revisit the interrogatories, if  45 necessary, but in light of your direction --  4 6 THE COURT:  That's fine.  47 MR. PLANT:  My Lord, Ms. Sigurdson has a matter to speak to. 22536  Proceedings  1 THE COURT:  Thank you.  2 MS. SIGURDSON: My Lord, in the collection of documents tendered  3 by Mr. Goldie, you had asked which were marked as  4 exhibits in other binders.  5 THE COURT:  Oh, yes.  6 MS. SIGURDSON: If it's of assistance to Your Lordship, we  7 prepared an index of all of the binders.  It's in  8 chronological order, but as part of that index the  9 other exhibit numbers are noted, and --  10 THE COURT: Thank you.  This needn't be an exhibit.  I think it  11 will be a useful cross-reference system, I'm sure.  12 MS. SIGURDSON: Yes.  13 THE COURT:  Do I take it that when I get down to Exhibit 1203-1,  14 which is the item, I take it, that I can also find  15 that document in volume 1, section 1 of tabs 1 to 17?  16 MS. SIGURDSON: Yes.  Perhaps I can put it this way.  The first  17 few pages, first four pages are the index, and they  18 explain the --  19 THE COURT:  I see.  20 MS. SIGURDSON: — the codes used and the exhibit numbers.  21 THE COURT:  All right.  And then when I get to page 1, document  22 number 463, that's your numbering system, I guess?  23 MS. SIGURDSON: Yes, it is.  24 THE COURT:  And the date is the date of the document?  25 MS. SIGURDSON: Yes.  2 6 THE COURT:  And it's CG2.  What does that mean?  27 MS. SIGURDSON: Colonial General.  2 8 THE COURT:  All right.  29 MS. SIGURDSON: You will find that in the Roman III.  30 THE COURT:  The only one for this purpose, go down to the bottom  31 of the page, the last one is a letter from Corbett, in  32 addition to being in your document list is Exhibit  33 1056-25.  34 MS. SIGURDSON: Yes.  35 THE COURT:  I understand.  Thank you.  36 MR. PLANT:  My Lord, I am prepared tentatively to close the  37 Province's case.  38 THE COURT:  That's the best news I have heard so far today, Mr.  39 Plant.  40 MR. PLANT:  When I give you the list of subject to clauses, Your  41 Lordship's enthusiasm may be dampening somewhat.  42 THE COURT:  It is already.  Yes.  43 MR. PLANT:  This list is not exhaustive, but it's the best I can  4 4 do at the moment.  45 Number 1, there remains some documents that are  46 marked for identification, which my friend Mr. Grant  47 and I are going to try and reach agreement on, but 22537  Proceedings  1 failing agreement there will have to be further  2 submissions on the question of whether some of those  3 documents can be marked as exhibits proper.  4 Secondly, there are -- there is a possibility that  5 we will seek to file responsive documents -- documents  6 responding to both the extracts from the Ministry of  7 Forests' annual reports, which were filed as a result  8 of Mr. Harding's cross-examination, and the extract  9 from the Kitwancool Land Reserve file, which my friend  10 Mr. Rush filed this morning, and we may -- as I say,  11 we may wish to file responsive documents on those  12 matters.  13 The Barbara Lane documents issue has been largely  14 resolved, but not by any means entirely.  So we have  15 to leave that one open.  16 We are required -- and I'm sorry, I am not  17 numbering these any more.  We are required to provide  18 particulars of the proposed amendment to Section 38 of  19 our Statement of Defence.  That was the amendment that  20 we sought to enlarge the specific reliance on the  21 Senate House Joint Committee Report, so as to include  22 actions taken in reliance on or pursuant to the  23 decision of the resolution of the House Senate.  2 4    THE COURT:  Yes.  25 MR. PLANT:  We have further particulars that we have  26 corresponded with my friend about.  There are  27 particulars that we sought to -- that we are going to  28 seek to make that are not responsive to the final  29 Statement of Claim, and we'll get -- as soon as we can  30 get around to incorporating them into the existing  31 amended consolidated particulars, we'll do that.  32 The next item is the filing of a Statement of  33 Defence in response to the final Statement of Claim.  34 I have here as a note responding, if we consider it  35 necessary to, the particulars which the plaintiffs are  36 required to provide further to the notice pursuant to  37 the constitutional questions Act.  Of course the  38 plaintiffs are not required to provide those  39 particulars until they deliver their summary or  4 0 argument.  41 I have as my next item the cross-examination of  42 Phillip Turner or his alternate on his territorial  43 affidavit.  44 I have as my next item more responsive documents,  45 that is under two categories.  First under the  46 category or the heading of the Special Committee, my  47 friends have had outstanding for some time the 2253?  Proceedings  1 possibility that they would file documents pertaining  2 to the report of the Special Committee, and I  3 understand that they are close to reaching a decision  4 about that, and when they do, and if they do seek to  5 tender further documents, I wish to keep open the  6 right of tendering responsive documents.  And the same  7 applies to the pre-emption material.  8 Your Lordship made a ruling about Exhibit 996  9 earlier today.  10 THE COURT:  Yes.  11 MR. PLANT:  Mr. Boys, B-O-Y-S, was examined by the plaintiffs —  12 I'm sorry, produced by the defendant Attorney General  13 of Canada on commission, and we cross-examined him at  14 the time of his commission.  The plaintiffs now  15 indicate that they are going to object to our  16 cross-examination, and also to our -- to the  17 admissibility of the documents which we tendered to  18 the witness at the time of our cross-examination, and  19 I would prefer to deal with that at the time that the  20 defendant Canada tenders the commission transcript and  21 the exhibits.  22 I should advise Your Lordship that I expect to be  23 delivering to my friend today further overlay maps  24 which -- plastic overlay sheets which pertain to the  25 judge's series, and it may be that in due course we  26 will be providing copies to Your Lordship for Your  27 Lordship's assistance.  2 8 I am eager to know from my friends when rebuttal  29 evidence will be called, and how long it will be, and  30 I understand that my friends are considering that now,  31 and they expect to be able to provide some advice to  32 us soon on that subject.  I am advised that Mr. Goldie  33 would be more than delighted if there could be some  34 indication now of an answer to that question.  I think  35 that that is the last to the subject to clauses.  36 THE COURT:  All right.  37 MR. PLANT:  And subject to all of the above the Province closes  38 its case.  39 THE COURT:  Thank you.  Mr. Grant.  40 MR. GRANT:  I understand on exhibits for ID that are remaining,  41 are ones that my friend and I have corresponded with,  42 and he doesn't anticipate any others.  And he's  43 already listed them all, and we have discussed them.  44 With respect to -- I don't believe I have to --  45 with respect to the Special Committee, that is going  46 to depend in part on the further particulars of the  47 defendants, so before we make a decision on those 22539  Proceedings  1 documents.  2 With respect to reply evidence, we have advised my  3 friends, both federal and provincial, that -- of  4 course this depends in part on the federal case, but  5 Mr. Rush and I have been discussing this, and we  6 anticipate now, and I believe that what we asked Your  7 Lordship to keep in mind was that we would like to  8 reserve two weeks, if you recall.  We anticipate now  9 that at the outside we will not need more than one  10 week, and the question of the timing of it is  11 something that we have really -- are still working  12 out.  But we are looking at whether we -- whether we  13 can do this.  It depends firstly when the federal case  14 ends, and we have out of court things to do on the  15 course court case, and also any notices required on  16 it.  And so we are looking at -- as to whether or not  17 we should look at this week before Christmas, which if  18 we could put everything together, we would rather do,  19 or whether we should look at something in the first  20 half of the month of January.  21 THE COURT:  I am not available in the first two weeks of  22 January.  In the Court of Appeal those two weeks.  23 MR. GRANT:  As soon thereafter as Your Lordship would be  24 available.  That's one of the things we advised my  25 friend.  We can't be sure of timing, and that's --  26 these are matters we are looking at ourselves right  27 now, if necessary.  But we don't need -- my friends --  28 or Your Lordship can be comforted that we don't need  29 to reserve two weeks.  We don't think we will need any  30 more than one.  31 THE COURT:  All right.  Well, I would very much prefer to have  32 it before Christmas, but if it's not more than a week,  33 it's probable that we can accommodate it some time in  34 the second half of January.  I much prefer to get it  35 over with.  36 MR. GRANT:  We as well.  The only problem is, depending on some  37 aspects of it, whether we will be able to get the  38 proper notices and also what we are doing.  We are  39 considering what we are going to do.  40 THE COURT:  And you, more than others, will recognize that I  41 have reserved the courthouse in Smithers, so this  42 can't be allowed to interrupt the commencement of the  4 3 argument.  44 MR. GRANT:  Even if — if it ended up that it was a week in  45 January rather than in December, we are still on the  46 timetable, My Lord, for argument.  4 7    THE COURT:  Yes. 22540  Proceedings  1  MR.  GRANT  2  3  4  THE  COURT  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  MR.  FREY:  25  26  27  28  THE  COURT  29  MR.  FREY:  30  31  32  33  34  35  36  THE  COURT  37  38  39  40  MR.  FREY:  41  THE  COURT  42  43  MR.  FREY:  44  THE  COURT  45  46  47  :  And that's why we would prefer to do it in December.  Not sure we can.  We will advise our friends and the  Court.  :  I have to say that I am sure that this trial has  been a terrible burden to us all, and I think we will  all be a lot better if we could get this part of the  case behind us.  I think that there is an extra strain  by having things hanging over our heads that need yet  to be done, and if we can get to that plateau where we  can say the evidence is behind us, we will all be  better off for it.  And I would like very much to put  this case behind us for a little while, if that can be  done.  I know that counsel will be working on it  anyway, one way or the other, but I think it's highly  desirable to do it in December.  On the same vein I was going to say to Mr. Frey  that I would expect to sit on Saturday, if there is  any reason why we might be running short of time in  order to finish in December.  In view of what Mr.  Grant has just said, it doesn't sound like it will be  necessary, but I would be prepared to do that, if it  appears somewhere along towards the end of the week  that we are running behind your schedule.  My Lord, I think that I am not certain of Your  Lordship's scheduling, but there was the week of  December 2nd or 3rd that was a down week, and I don't  know if Your Lordship is available.  :  That week's available.  Well, then, My Lord, I think that was the week I  anticipated for out of court activities.  But I think  if we even had one day or two days during that week in  court, that we could finish it during that week, and  then the out of court activities, I think, would be  finished by the end of that week.  Off the top of my  head, I don't know what the date is of that Friday.  :  I will leave it to you and your colleagues, Mr.  Frey, to keep us appraised of the progress we are  making, and whether it will be necessary to sit on  Saturday or not.  Yes, My Lord.  :  All right.  That's all for today.  All right.  Thank  you.  You will be ready to open tomorrow, Mr. Frey?  Mr. Macaulay will be here to open the case.  : We will all look forward to that.  Thank you.  (PROCEEDINGS ADJOURNED AT 2:50 P.M.) 22541  Proceedings  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  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD.


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