Open Collections

Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-02-06] British Columbia. Supreme Court Feb 6, 1990

Item Metadata


JSON: delgamuukw-1.0018462.json
JSON-LD: delgamuukw-1.0018462-ld.json
RDF/XML (Pretty): delgamuukw-1.0018462-rdf.xml
RDF/JSON: delgamuukw-1.0018462-rdf.json
Turtle: delgamuukw-1.0018462-turtle.txt
N-Triples: delgamuukw-1.0018462-rdf-ntriples.txt
Original Record: delgamuukw-1.0018462-source.json
Full Text

Full Text

 23453  Submission by Mr. Rush  1 February 6, 1990  2 VANCOUVER, B.C.  3  4 THE REGISTRAR: Order in court. In the Supreme Court of British  5 Columbia, this 6th day of February, 1990, in the  6 matter of Delgamuukw and others against Her Majesty  7 the Queen in right of the province of British Columbia  8 and the Attorney-General for Canada, my lord.  9 THE COURT:  Thank you.  Mr. Rush?  10 MR. RUSH:  As matters stood a week ago, my lord, I was going to  11 review the Loring document binders and advise your  12 lordship as to whether or not the late delivery of  13 these binders would adversely affect the schedule of  14 the oral argument.  We've completed our review of the  15 binders and we have also received a document list  16 listing the new documents.  We received that  17 yesterday.  This is an AG Canada document list which  18 sets out in detail what are the contents and the  19 provenience of the contents of the documents that were  20 filed in the five volume set.  21 Now, we have also been advised that the Loring  22 documents that were tendered last week together with  23 the earlier documents do not comprise all of the  24 Loring documents, that they are, in fact, a selection  25 by the federal defendant of what it considers to be  26 relevant, and they are not all of the documents in  27 respect of the Loring documents.  We are advised by  28 the federal defendant that the Loring documents run in  29 the thousands.  Obviously we've not had an opportunity  30 to review all of those documents, documents which  31 Canada did not consider relevant but, nonetheless, our  32 review of what has been provided gives us an  33 indication I think, an indication as strong as we can  34 have at this juncture of the trial, that it will not  35 be necessary to file further documentary reply in  36 respect of those documents that are comprised of the  37 Loring binders.  We do not, therefore, see as a result  38 of that any alteration in schedule for argument.  39 We have made requests of the federal defendant for  40 documents apparently in their possession or identified  41 by their researchers, and these include a diary that  42 apparently is referred to in the Loring binders as  43 well as certain closures.  We've also identified a  44 number of documents which have missing pages and, in  45 fact, one whole document is missing from their  46 selection.  What I propose to do in respect of that is  47 to simply deal with that directly, and if it's a 23454  Submission by Mr. Rush  1 matter that needs to be brought back to the court,  2 then we will do so.  But at this point I'm hoping that  3 this matter can be dealt with out of court.  4 Now, my lord, I'd like to move to the next  5 question and that is in terms of the other aspect of  6 the plaintiffs' reply now that we've completed the  7 oral testimony of Mr. Atkinson.  I propose to tender  8 reply documents comprising of some six volumes of  9 documents.  These documents contain an index which  10 sets out the categories, we've endeavoured to group  11 the documents around specific categories of reply, and  12 they number some eight such categories.  I intend to  13 proceed with the tendering of those documents now,  14 subject to this one supplementary matter, and it is  15 this:  Yesterday I wrote to counsel for the province  16 requesting some further documents in the hope that I  17 would be able to include them in the volume.  I wasn't  18 able to obtain those documents until after I had  19 dispatched the volumes to counsel for the defendants  20 and, as a result, I didn't get an opportunity to  21 review those documents to determine if I wanted to  22 include any further documents.  I've now had a chance  23 of looking at those additional documents and I would  24 like to include most of them and they number about 20.  25 I've advised my friends that I intend to add these not  26 in the chronological order of the volumes, but  27 nevertheless to add them to one of the volumes, and  28 I'm hoping to be able to do that today.  They are  29 documents dealing with one particular subject and they  30 are, I think, conveniently grouped in that subject  31 heading, and my learned friends know the area about  32 which I'm referring.  33 So what I intend to do now, my lord, is to tender  34 these documents as exhibits, and I will do that now.  35 And, Mr. Registrar, what I'm going to do is to hand to  36 you six volumes of documents, one set for his lordship  37 and one as the registrar's copy, and here are the  38 first of the two -- of the six, rather.  3 9    THE COURT:  Thank you.  40 MR. RUSH:  Now, maybe you could just take the little sticky off  41 that identifies his lordship's copy.  42 THE COURT:  What is it you propose, Mr. Rush, that each volume  43 be given a separate exhibit number or that they be  44 given one number and marked with a series of numbers  45 thereafter?  46 MR. RUSH:  Yes, my lord, I'm going to ask that they be given one  47 number and that it be marked separately by volume 23455  Submission by Mr. Plant  1 numbers.  So whatever the next exhibit number is I  2 would ask that they be marked, and I will identify --  3 THE COURT:  1256.  4 THE REGISTRAR: 1256, my lord.  5 MR. PLANT:  Before that number gets affixed to the documents, my  6 lord, may I say that we received our set of these  7 binders late yesterday afternoon.  There are quite a  8 few documents in them.  We've had a chance to look at  9 some of them and it's apparent that, from our  10 perspective at any rate, that the binders contain  11 documents which are proper reply documents, but  12 equally the binders contain documents which, in our  13 submission, do nothing more than add to the  14 plaintiffs' case.  There are, in addition, documents  15 which may be reply or may be a case of adding to the  16 plaintiffs' case and we're not certain at the moment.  17 And there is probably a fourth category, it might be  18 worth stating it as a category, there are documents  19 which are apparently in answer to our counter-claim  20 and as such, of course, they are not really reply so  21 much as they are defence to the counter-claim, and in  22 that respect we would want to consider whether further  23 documents should be filed in reply to those.  24 Now, what has happened is that Mr. Goldie, who's  25 still looking at them now, is drafting a letter to Mr.  26 Rush in which he will set out the documents that he  27 can admit and those that he can't admit, and ask some  28 questions about the balance.  Mr. Goldie would like  29 very much to have the opportunity to speak to this  30 matter tomorrow, and I say tomorrow because that will  31 give Mr. Rush an opportunity to consider Mr. Goldie's  32 letter.  Now, I'm happy to give the binders a number  33 now, but with the observation that we don't  34 necessarily at this juncture consent to the tendering  35 of all of these documents as exhibits proper at this  3 6 time.  37 THE COURT:  Yes.  All right.  Well, I think the way to  38 proceed -- I'm sorry, I haven't heard from Mr.  39 Macaulay.  40 MR. MACAULAY: My lord, we propose to wait for Mr. Goldie's  41 analysis.  I didn't see these documents until this  42 morning.  4 3 THE COURT:  Yes.  44 MR. MACAULAY: Since he's going to be doing the work, we'll be  45 happy to take advantage of that and add whatever we  46 consider appropriate.  47 THE COURT:  Yes.  All right.  Well, I think that the way I will 23456  Submission by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  MR.  PLANT  12  MR.  RUSH:  13  THE  COURT  14  MR.  RUSH:  15  16  17  THE  COURT  18  MR.  RUSH:  19  THE  COURT  20  21  22  23  24  MR.  RUSH:  25  26  THE  COURT  27  MR.  RUSH:  28  29  30  31  32  33  34  35  THE  COURT  36  MR.  RUSH:  37  38  39  40  41  42  43  44  THE  COURT  45  MR.  RUSH:  46  47  THE  COURT  proceed is to mark these documents as they're  tendered, subject to Mr. Plant's and Mr. Macaulay's  reservations, and deal with that in due course when  it's appropriate and convenient.  I have to tell  counsel that I'm able to hear them on this matter  tomorrow afternoon, but not tomorrow morning now.  I  took a chance and it looks like I may have lost in  committing myself to something else tomorrow morning  that would be very awkward to put aside, but if it's  convenient I can do it tomorrow afternoon.  : I have no reason to think it's not convenient.  It's convenient.  :  All right.  Thank you.  Well, proceeding on the basis of my friend's  qualifications, I would ask then that these documents  be marked as reply documents of the plaintiffs.  :  Yes.  Exhibit 1256 1, 2, 3, 4, 5, and 6.  :  1256 -- capital or Roman I, tab number.  (EXHIBIT 1256:  Six volumes of black binders  containing plaintiffs' reply documents)  Thank you.  Yes.  And I have here the registrar's  set.  :  Yes.  And there are six of them?  Yes, there are, my lord.  And, my lord, I simply ask  you to refer to the index, and I will simply draw to  your attention the categories that are there  indicated.  I don't intend to speak to these now.  It  seems a much more economical process to wait to  determine which of the documents are consented to by  my learned friends, and then address the disputed  categories.  :  All right.  And so there are eight categories, and these relate  firstly to the Treaty of Paris and the Royal  Proclamation and, secondly, documents relating to the  colony of New Zealand and to the Treaty of Waitangi.  That's subsection 2.  Sub 3 is documents relating to  the terms of Union, the Indian Reserve Board, and the  Commission, and on page 6 there are documents relating  to Metlakatla, and category --  :  That should be 5?  Yes, that should be 5.  Well, we'll have to correct  that.  Apparently we have two category 4's.  :  Well, I can make the correction. 23457  Submission by Mr. Rush  1  MR.  RUSH:  2  THE  COURT  3  MR.  RUSH:  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  THE  COURT  27  28  MR.  RUSH:  29  30  THE  COURT  31  MR.  RUSH:  32  THE  COURT  33  MR.  RUSH:  34  THE  COURT  35  MR.  RUSH:  36  THE  COURT  37  38  39  THE  COURT  40  41  MR.  RUSH:  42  43  THE  COURT  44  MR.  RUSH:  45  46  47  Yes, you'll have to make the correction.  :  That should be just Volume 5, shouldn't it?  That's right.  That should be 5.  The documents  relating to Treaty 8, and then 6, those documents  relating to the Royal Commission and the Ditchburn  Clark review, and 7, documents relating to treaties,  and finally the census of 1901.  Just to advise your lordship about the last  document, this is a document that was requested  several years ago, requested by the plaintiffs of the  federal defendant, and at that time we were advised it  was not available.  And I somehow have a recollection  that at the time we were told it was not available  because it was -- the requisite number of years had  not gone by for its disclosure.  Those now have gone  by and, whatever that is, and we now have the census  disclosed to us as of the first part of January of  this year, and we would have put it in as part of our  case and we seek to put it in now.  That may be an  issue that Mr. Goldie would have referred to.  That's  why that is there.  Apart from those comments, my lord, I will be  adding the documents that were disclosed to me  yesterday as part of the fifth volume, and I will  provide tomorrow morning an updated and amended index.  :  What have I got here?  I've got two volumes.  Are  they the same?  They're both Volume 1 are they?  No, they're Volume 1, 2 and so on.  All the tabs are  marked sequentially.  :  I see.  So they run through all six volumes, tabs 1 to 123.  :  All right.  So Volume 2 starts with tab 24?  That's right.  :  All right.  Now, but I don't have 3, 4, 5 and 6 yet?  Yes.  : Oh, they're there.  All right.  I didn't see them,  I'm sorry.  But I think just to clear -- I think I'll  mark them all on each of them.  :  Yes.  All right.  Thank you.  Do I need these  further today, Mr. Rush?  No, my lord, we'll stand that matter down and we'll  deal with them again tomorrow afternoon.  :  All right.  Now, my lord, I'll proceed to the next item that I  wish to deal with this morning and that is the  proposed amendment to the statement of claim.  And  last Monday your lordship indicated that you were 2345?  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:  predisposed to granting the amendment subject to  consideration of the amendment by my learned friends  and as well a further statement by myself as to the  crown referred to in the amendment.  And the amendment  is at page 18 and is at paragraph 72, large A.  And  you may recall that both Mr. Goldie and Mr. Macaulay  raised a query as to which crown is being referred to.  THE COURT:  Yes.  MR. RUSH:  And I indicated in my submission last day that it was  both crowns, and for the sake of further clarity --  I'm sorry, Mr. Rush, is that what you said?  I  thought you said that it was either the Imperial crown  or the federal crown.  Well, we were dealing with different periods, my  lord.  THE COURT:  Yes.  All right.  MR. RUSH:  And in terms of the pre-Confederation period we were  dealing with the Imperial crown.  In terms of the  post-Confederation period I said that we were dealing  with either the federal and the provincial crown or  the federal crown.  Now, I want to make it clear I stand by what I  said, but I think it may be of some assistance if I  say it this way:  The crown that's referred to in the  amendment in 72 A is both the provincial and the  federal crown.  The burden or the subject to referred  to in paragraph 72 A is on the crown in right of the  province because it, the provincial crown, has the  underlying title to the land.  However, incorporated  into this is the federal crown which, because of its  constitutional obligations, under sections 9124 and  section 109, both of which have been pleaded --  THE COURT:  I'm sorry, the section numbers again?  MR. RUSH:  9124.  THE COURT:  Yes.  MR. RUSH:  And section 109.  THE COURT:  You include 35 of the Charter in there too?  MR. RUSH:  I would, but in respect of both crowns.  THE COURT:  All right.  MR. RUSH:  Section 35, of course, can be included here, but for  the purposes of this distinction it's 9124 and section  109.  The constitutional obligations in those sections  require that the only authority which can act or  extinguish the plaintiffs' title is the federal crown.  So when I indicated that there was entailed within 72  A both crowns, that is the sense in which I said that.  Now, my lord, I wish to have an order that the 23459  Submission by Mr. Rush  Submission by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  THE  COURT  20  MR.  RUSH:  21  22  THE  COURT  23  MR.  RUSH:  24  25  26  27  28  29  30  THE  COURT  31  MR.  PLANT  32  33  34  35  36  37  38  39  40  41  42  43  44  THE  COURT  45  MR.  PLANT  46  THE  COURT  47  MR.  PLANT  statement of claim be amended as sought, and I  suppose, my lord, that I'm also asking your lordship  to direct that the particulars that we provided to our  learned friends in respect of the word predecessor,  which goes back to sometime in early September of last  year, that those particulars are sufficient for the  purposes of the amendments that we sought to make at  that time, and that what I would ask now is that in  respect of the earlier amendments and the amendments  with regard to paragraph 72 A, that the court order  that the amendments shall be made and I'll provide my  friends with a further amended statement of claim.  Now, on the issue of the reply to the direction of  particulars, my lord, my friends had not had an  opportunity of reviewing that reply as of last week.  I would -- it's a two-paged document.  It's not overly  long.  I would assume that they would be in a position  to reply to that now.  That's an amended reply?  No, my lord, this is in respect to a reply to  direction to provide particulars --  All right.  -- directed by your lordship in respect of certain  paragraphs of the statement of claim where we included  the word predecessor and what was meant by the use of  that term.  And we've given our particulars as to our  meaning to the use of that term.  So I'm asking for,  in effect, a composite order entailing both  amendments, all amendments actually.  Mr. Plant?  Yes, my lord, I think that I'd like to speak to  these matters in reverse order, and so what I want to  speak to first, and I want to do so by way of  objection, is the plaintiffs' application to amend  their statement of claim to modify certain of the  paragraphs which to this point have described the  plaintiffs and their ancestors to read "the  plaintiffs, their ancestors, and/or predecessors".  I  think I might be able to give your lordship a bit of  the context of this if I could impose on your lordship  to have paragraph 57 of the -- I suppose the most  recent statement of claim would be the best because  you'll see the amendment there.  The one tendered on January 29th?  Yes.  What paragraph?  Paragraph 57, which on my copy is page 13. 23460  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:  THE COURT  MR. PLANT  THE COURT:  MR. PLANT:  Yes.  So you'll see that it reads, without restricting the  generality of paragraphs 56 and 56.A, "Since time  immemorial the plaintiffs, their ancestors, and/or  predecessors, have..." and then there are the  allegations that we're familiar with.  The words  "and/or predecessors" were added at about the time  that the plaintiffs closed their case.  There was some  debate about whether the plaintiffs ought to be  entitled to take that amendment, and that debate,  which took the form of argument before your lordship,  centred around two options.  One, the plaintiffs could  plead "their ancestors and/or Gitksan or Wet'suwet'en  predecessors", making it clear that the predecessors  in question were Gitksan or Wet'suwet'en predecessors  or, alternatively, they could leave it unadorned, as  it were, unqualified.  And we read the attempt to  amend it without the qualification as an attempt to  alter one of the fundamental premises of the  plaintiffs' case, and so we objected to it.  And I  maintain that objection today.  Just to tie up the procedural history, your  lordship said "Well, plaintiffs, if you want to take  the amendment in the form of Gitksan or Wet'suwet'en  predecessors, you can go ahead.  But if you want to  take the amendment unadorned predecessors, unqualified  predecessors, then what you have to do is you have to  provide particulars to your friends and then reapply."  Now, originally there was some talk that that  would be done in early December, and it wasn't done by  then.  We did finally receive the particulars early  this week.  Now, the particulars I think I should ask  your lordship to have a look at them now.  Were you  given a copy of them?  No, not yet.  I've got a copy here for your lordship.  Now, what's going on here, if I'm not rushing your  lordship --  No.  -- is that there are some parts of this territory  claimed by the plaintiff which it's now suggested have  been transferred to the plaintiffs or their ancestors  from other aboriginal peoples.  Now, I say that is a  fairly fundamental change in the way the plaintiffs  have put their case.  In order to make that point, I  think I have to come back to the statement of claim as  it was, that is to say, in paragraph 57 the plaintiffs 23461  Submission by Mr. Plant  1 were saying that they or their ancestors were the ones  2 who for thousands of years had lived within the  3 territory, harvested, managed, and conserved the  4 resources within the territory, governed the  5 territory, all of that within the territory, protected  6 and maintained the boundaries of the territory, and so  7 on.  And then, paragraph 61, the plaintiffs from the  8 outset said the plaintiffs and their ancestors  9 exercised jurisdiction over the territory as against  10 other aboriginal peoples.  11 So, if you don't mind my putting it in this way,  12 consider the position of a defendant who's met with  13 these allegations.  You might think that the defendant  14 would say to himself, right, if I can prove that from  15 time immemorial the plaintiffs have not lived within  16 this territory, have not governed this territory, have  17 not protected and maintained its boundaries, and have  18 not exercised jurisdiction over that territory as  19 against other aboriginal titles, I'm doing a pretty  20 good job.  In fact, I think I'm winning.  21 That's what happened.  The defendant  22 cross-examines and tests the plaintiffs' assertions  23 that these are the things that they have done for  24 thousands of years.  That is the way the defendant  25 meets the plaintiffs' case.  It's not until the  26 plaintiffs' case is over and we've lost the  27 opportunity to test any other allegations they might  28 have and, as a practical reality, not until the  29 defendants' case is closed, that we find that that's  30 not the plaintiffs' case.  The plaintiffs' case is  31 something else.  The plaintiffs' case is that they  32 haven't been there for thousands of years exercising  33 aboriginal ownership and jurisdiction as against other  34 aboriginal people, instead they pick up parts of this  35 territory from time to time, unspecified times but,  36 nonetheless, that's how they get some of this  37 territory.  I say that, in concept, that's not much  38 different from an attempt to withdraw an admission  39 made under a notice to admit.  That the plaintiffs  40 have to show pretty strong cause why they ought to be  41 allowed to do this.  42 I suppose I could put this under another heading.  43 That would be to say, if this were an amendment sought  44 in the ordinary course I could object to it and your  45 lordship would then be in the situation of a Rule 1924  46 application where I would say that this amendment  47 discloses no cause of action. 23462  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  THE COURT  Now, the test is pretty lenient to the plaintiffs.  Your lordship would have to be satisfied that this  amendment disclosed absolutely no cause of action.  I  say without any hesitation I could meet that test.  There is not one shred of judicial support in Canadian  courts for the authority for the proposition that is  implicit in the amendment which the plaintiffs now  seek.  So to sum up the position so far, I say that in  terms of how the defendants answer the plaintiffs'  case, there is real and substantial prejudice by  allowing the plaintiff to amend their case in this  very substantial way at this time and, secondly, I say  that the amendment discloses no cause of action and  for that reason also ought to be disallowed.  Now, I've considered the possibility that we  should have been alive to this from the outset  because -- I don't know why.  There's no case that  suggests that I should be alive to it.  All the cases  suggest that if I can find that somebody else was on  that territory other than the plaintiffs, then I win.  But it may be that from the outset that I should have  had some handle on this, and I suggest that the answer  to that was Mr. -- was given by Mr. Adams when he  first sought this amendment.  And this is in Volume  266 of the transcript at page 19548.  :  1 — sorry, 19548?  :  19548, yes.  This is actually I think perhaps the  second time it came up before your lordship.  The date  here is the 15th of September, and in the first part  of what Mr. Adams says, by way of introduction, he  talks about the difference between biological ancestry  and some other form of transfer of rights.  And then  Mr. Adams says "And so the idea was hatched of not  confining ourselves to ancestors." Well, I think it's  a bit late, at both then and now, for people to sit  around hatching up ideas as to how to get over what  from the outset, from the moment the evidence is put  into court, is clearly evidence which on any  conception of the plaintiffs' case, most particularly  the conception of the plaintiffs' case as pleaded, are  facts that stand against the plaintiffs, not for them.  :  Well, Mr. Plant, if Indian group A occupied  territory "X" from time immemorial up to say 16 or  1700, and assume that the time of contact is taken  arbitrarily to be 1800, then in 1600 the Indian group  A transferred territory "X" for any number of reasons 23463  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  MR.  THE  MR.  COURT  PLANT  COURT  PLANT  to Indian group B, Indian group B. occupied it up to  and including the time of contact, could that not as a  pleading be a cause of action?  MR. PLANT:  As a pleading I would say that it wouldn't be any  worse than what we've had to face.  I'm not sure what that means.  Well, I don't want to concede that it's a good cause  of action, but I certainly concede that there is that  argument.  Yes.  That wasn't the -- that wasn't this case.  This case  was we've been here since I think the last time I read  the phrase was post-glaciation, and all along that is  the case that we've considered that we've had to  answer.  So I maintain the objection to an amendment  in the terms now sought.  If the particulars went half  as far in terms of clarity as your lordship's  observations, then they would be that much better, but  the particulars as framed don't, in my submission.  They lead the issue so completely ambiguous as to when  this occurred and what the allegation is in respect of  assertion of governance over that territory subsequent  to that time.  I'm concerned about that too.  But I should say, my lord, that, while I don't  want to dissuade your lordship from taking the  opportunity that I said you have in denying the  amendment, I do have, in effect, a fall-back position,  and that is this:  That if the plaintiffs are saying,  as I understand them to be saying, that in every  respect but those two particulars the claim is for  rights inhering in the plaintiffs and their ancestors,  then the proper way of dealing with it is to treat the  two particulars as an exception within the body of the  statement of claim to the allegation of ancestry.  COURT:  Well, doesn't this come to the same thing?  PLANT:  Well, if my friends concede that it does, and the  particulars are exhaustive and full, then it would be  good enough.  THE COURT: Well, Mr. Rush is an artful pleader but I don't see  anything to suggest that that this reply, considering  its raison d'etre, would be anything except an  exception for these two areas. Mr. Rush will correct  me if I'm labouring under -- correct us both if we're  labouring under any misapprehension that we are.  MR. PLANT:  Well, I don't hear Mr. Rush, the creak of Mr. Rush  rising to his feet, so I assume that we're correct on  that.  Well, then that is a fall-back position, my  THE  MR. 23464  Submission by Mr. Macaulay  1 lord.  My objection stands, however, as I've expressed  2 it.  3 Now, I am prepared to speak to the other  4 amendment, but it might be more convenient to deal  5 with these two --  6 THE COURT  7 MR. PLANT  8 THE COURT  All right.  Yes.  -- sequentially.  All right.  Mr. Macaulay, any submission on these,  9 on the predecessor amendment of particulars?  10 MR. MACAULAY: My lord, if the term predecessor applies only to  11 the two instances set out on page 2 of the  12 particulars, we do not make any objection.  Our  13 concern is rather for a deal that might have been made  14 at say an All Clans' Feast or some transaction made  15 after British sovereignty, whenever that was, at Bear  16 Lake or around Bear Lake, where there is a good deal  17 of evidence of various tribes and clans of people  18 living there and exercising aboriginal rights.  It  19 might be better if the amendment were pleaded in the  20 way that it's intended, that is, as just the two  21 exceptions to the general allegation.  We'll come to  22 that again in connection with the proposed new 72 A.  23 I feel uncomfortable with pleadings that suggest  24 one thing but are said to mean quite a different  25 thing, and that's what we have here.  The amendment  26 sought is a much broader amendment, if you read the  27 amendment, than appears to be the case if you read the  28 particulars, and therein it's inconsistent.  I agree  29 with my friend Mr. Plant that it's inconsistent with  30 the case that, as presented by the plaintiffs, that we  31 had to deal with for nearly three years, so I'm not  32 consenting to the amendment.  I'm proposing that the  33 amendment that's granted reflect the true character of  34 the thing, that is, that there are a couple of  35 exceptions to the allegation of -- that the plaintiffs  36 and their ancestors had jurisdiction to occupy the  37 territory, governed it, and enjoyed the aboriginal  38 rights, and so on.  39 THE COURT:  All right.  Thank you.  Mr. Rush?  Can you tell, Mr.  40 Rush -- looking at these particulars in the second  41 line it refers to paragraphs 56, 56 A, 57, 72, 74, 74  42 A, and 75.  Are those the only two places where the  43 word predecessor appears in your proposed amended  44 statement of claim?  45 MR. RUSH:  Not two, but one, two -- seven paragraphs where  46 predecessor occurs.  47 THE COURT:  There's one, two, three, four, five, yes, but those 23465  Submission by Mr. Rush  1 are the seven, and only seven, places where  2 predecessor is sought to be introduced into the  3 proposed amended statement of claim?  4 MR. RUSH:  That's right, yes. The reason for adding the word  5 predecessor was because there was some evidence, and  6 the two cases which have been referred to in the  7 particulars suggested that -- but in our argument we  8 don't say we'll prove -- but suggested that there was  9 a transfer of territory to a Gitksan chief after a  10 time that the defendants could reasonably say that  11 they claimed sovereignty.  Now, that doesn't mean to  12 say that's our argument, but if reasonably they could  13 say that, then those are the two instances.  14 My friend, Mr. Plant, has in my view completely  15 misunderstood the question of what constitutes time  16 immemorial because, my lord, our argument is going to  17 be that time immemorial commences as at the time that  18 the sovereign crown of Great Britain claimed  19 sovereignty over the land that is now known as British  20 Columbia.  And, in our submission, that is going -- we  21 will argue that was into the middle 1800's and, at the  22 very best, at the very best, possibly at the turn of  23 the century as your lordship posited.  24 But, in our submission, my lord, if there's  25 ambiguity, it's an ambiguity that arises from the  2 6 evidence that has been given by Mr. Gunanoot and Mr.  27 Blackwater where it is not clear from their evidence  28 as at the time at which these events occurred and, if  29 these events occurred after the time, if it's  30 established that these events occurred after the time  31 at which it reasonably can be said that the crown, the  32 Imperial crown, claimed sovereignty to the land mass  33 of British Columbia, then we say these people are  34 predecessors to the present owners.  And in every  35 other sense, my lord, it's our argument that chiefs  36 and houses of the Gitksan and Wet'suwet'en were  37 themselves ancestors to the present title-holders,  38 plaintiffs in the case and, in my submission, this is  39 an appropriate particularizing, as your lordship did,  40 as your lordship requested that we do, that we state  41 who it is we say are predecessors to the present  42 holders, and we say that these could be, if the  43 evidence can support that, predecessors, and for that  44 reason we propose this amendment.  And it applies to  45 the six paragraphs, as I've indicated.  46 THE COURT:  All right.  Well, on the basis that the particulars  47 describe the exceptions to the general cause of action 23466  Ruling by the Court  Submission by Mr. Plant  1 alleged by the plaintiffs, the exception being limited  2 to the two areas mentioned in the particulars and  3 relating only to these two isolated cases, I'm  4 satisfied that the amendments proposed relating to  5 predecessors should now be made, and I so order.  6 That leaves open, Mr. Plant, for you to now let me  7 have your views, if you'd be so kind, relating to the  8 amendment about the underlying title.  9 MR. PLANT:  As I recall, my lord, last week there were — Mr.  10 Goldie had a couple of concerns about the language of  11 the amendment paragraph 72 A.  One was the uncertainty  12 of the sense in which the term crown was used, and  13 what my friend has said this morning goes some  14 distance towards helping me understand what is meant  15 by this, by the word crown in that pleading.  I think  16 it would be of much greater assistance if the word  17 crown could be qualified in the pleading itself so  18 that it's not necessary to refer to Mr. Rush's  19 submissions.  But the second of Mr. Goldie's concerns  20 related to the relationship between the recognition  21 contained in paragraph 72 A, the proposed paragraph 72  22 A, and the prayer for relief, including some of the  23 prayers which we've read, to amount to a denial of  24 jurisdiction on the part of the province in respect of  25 any part of the territory.  And I'm unable to  26 reconcile the apparent admission in 72 A with the --  27 our construction of the declaration sought in the  28 prayer for relief, and so that issue remains  29 outstanding.  I might say though that I'm still  30 generally concerned about this paragraph in a number  31 of ways.  I won't repeat what Mr. Goldie said last  32 time, but I will add one aspect that he didn't mention  33 that causes me concern.  The second sentence says  34 this:  "The plaintiffs assert that this title", and by  35 that I assume they mean there the underlying title of  3 6 the crown.  37 THE COURT:  Yes.  38 MR. PLANT:  "That this title is subject to the aboriginal title,  39 ownership, and jurisdiction of the plaintiffs, and  40 encompasses the obligation on the crown not to deal  41 with the plaintiffs' title except by their consent."  42 Where are the words ownership and jurisdiction in  43 the last line?  Am I to infer something from their  44 absence?  Is title merely shorthand for title,  45 ownership, and jurisdiction?  Is title merely,  46 speaking of the plaintiffs' title, merely shorthand  47 for ownership and jurisdiction?  Have the plaintiffs 23467  Ruling by the Court  Submission by Mr. Macaulay  1 simply forgotten in the last line to say the  2 obligation on the crown not to deal with the  3 plaintiffs' title, ownerhsip, and jurisdiction, or am  4 I to read something into that?  And I must assure your  5 lordship most earnestly that we spent many hours  6 trying to understand what the difference is in this  7 case between title, ownership, and jurisdiction, and  8 we cannot regard lightly any instance where the words  9 don't track in the way that, at least for  10 consistency's sake, I think they ought to track.  11 And that comes back again to the prayer for relief  12 because the prayer for relief mixes apples, oranges  13 and bananas all over the place.  There are rights to  14 ownership and jurisdiction, there are rights to  15 ownership, there are restrictions on the province's  16 ownership, the word title is used.  And so we think  17 there must be something in this, in this  18 discrimination or in this deliberate, what appears to  19 be deliberate, choice of terminology.  And so I come  20 back to paragraph 72 A, and say what does this mean?  21 I don't know, I confess.  I'm not certain what it  22 means, and it may be that it's something that can be  23 remedied rather straightforwardly, but at the time, at  24 this point, I'm not able to follow what this  25 allegation says.  So those are my submissions on that,  2 6 my lord.  27 THE COURT:  Okay.  Macaulay?  28 MR. MACAULAY:  My lord, this pleading alleges that, to take a  29 concrete example, it alleges that the plaintiffs owned  30 and had jurisdiction over, and that means governed,  31 had the right to govern the Smithers Airport, and that  32 is paramount to any right of the federal crown.  It  33 goes farther.  The plaintiffs allege that the federal  34 crown can't deal with the Smithers Airport lands  35 without their consent.  It can't lease any part of  36 those lands, it can't apply for zoning that might --  37 the plaintiffs might claim trenches on their ownership  38 and jurisdiction.  It raises directly the jurisdiction  39 of the federal crown in one of the matters reserved to  40 it under the Constitution Act of 1867.  That's  41 transportation.  42 Mr. Rush -- I heard Mr. Rush say the last time  43 this was discussed that, of course, your lordship's  44 rulings of February 1988 still stand so far as he's  45 concerned, but that's not what these pleadings say.  46 They ought not to be allowed.  They are -- they go  47 against your lordship's rulings.  The same might be 2346?  Submission by Mr.  Submission by Mr.  Macaulay  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  said about other federal property, but that's the one  that we're all familiar with and that's the most  obvious one.  The federal crown, in this area, does  not happen to be the -- again, it's peace time --  does not happen to be any considerable land-owner or  holder.  In war time it's different.  In fact, this is  how the federal crown became the owner was because of  the network of air fields leading into the Pacific  during the Second World War.  There is a deal.  And my  remarks apply to as well the Woodcock Airport that it  was at this time an RCX station and is still owned by  the federal crown and is still the subject of the  federal crown's jurisdiction over aeronautics.  This  asserts that the plaintiffs' rights are paramount to  those things, and for that particular reason the  amendment as it's phrased now ought not to be allowed.  If they mean something else, let the draftsman return  to the drawing board and produce something in that  amendment that limits the allegation in the  appropriate way.  That's not difficult to do.  THE COURT:  Thank you, Mr. Macaulay.  Mr. Rush, I'm still disposed to grant the  amendment, on the basis of your submission that it is  subject to the rulings I made in February 1988, but I  do need to hear from you with respect to the absence  in the last line of the words ownership and  jurisdiction.  MR. RUSH:  Yes.  I'm grateful to my friend for pointing that out  to me.  It should be in there.  It should read "The  plaintiffs' title, ownership, and jurisdiction".  It  should be in there.  COURT:  All right.  Then —  RUSH: And I would ask that those words be added. There  should be a symmetry of the language and it was an  oversight.  All right.  Then do you say that that would square  this pleading with your prayers for relief?  I haven't  looked at it, but --  Well, yes, I do.  I say that our pleadings here are  compatible with the alternative claims and the nature  of the declarations that are being sought.  I don't  think that I'm required to go chapter and verse  through each one of our declarations.  COURT:  Yes.  RUSH:  But in our submission there's a suggestion here that  there can be no room for a provincial jurisdiction  upon the claim by the plaintiffs for an aboriginal  THE  MR.  THE COURT  MR. RUSH:  THE  MR. 23469  Submission by Mr. Rush  Submission by Mr. Plant  Submission by Mr. Macaulay  1 jurisdiction in respect of title which they claim  2 title to and ownership of, and in my respectful  3 submission that is not necessarily so.  And I think it  4 waits for the argument to determine how we  5 characterize the nature of the plaintiffs' title and  6 how that relates to the nature of crown title or the  7 underlying title of the crown, which we say is there  8 in the province because we are talking about  9 provincial land.  And, in my submission, my lord, the  10 question raised now of juxtaposing the relief claim  11 with this paragraph is really not one to be dealt with  12 as a function of pleading, it's a matter to be dealt  13 with as a function of argument.  And it will be to  14 those issues that we will direct your lordship's  15 attention, but I think I need not go farther than  16 that.  In my submission, there's nothing inconsistent  17 in the proposed amendment with the language that we've  18 suggested and the relief in its manifest forms, and  19 there are alternative forms in the -- claimed in the  20 prayer.  21 THE COURT:  All right.  Well, Mr. Plant, you're now facing a  22 different amendment.  Anything you want to say?  As I  23 see it at the moment, in view of what Mr. Rush has  24 just said, this amendment changes the situation hardly  25 at all from what it was at the time of Mr. Rush's  26 opening.  He said at that time that the underlying  27 title was in the crown.  He's still saying that.  28 MR. PLANT:  Well, we've had from the outset a case where there  29 is a statement of claim and there is what counsel say  30 it means, and whether Mr. Rush is correct in the  31 contention which you've imputed to him that this  32 doesn't change things much is probably quite rightly  33 something which in this case, after all the evidence  34 is in, as it is now, is a matter for argument and  35 we're obviously not going to have that argument today.  36 THE COURT:  No.  Mr. Macaulay?  37 MR. MACAULAY: Well, I still don't know whether the allegation  38 pertains to the jurisdiction under the heading of  39 transport and aeronautics, whether that jurisdiction  40 is challenged by this amendment.  What your lordship  41 said in February 1988 was that unless amendments were  42 made, then it would be taken that the federal  43 jurisdiction in various -- in its manifestations were  44 was not challenged.  I pointed out just a minute ago  45 that this here was a challenge and my friend didn't  46 say oh, well, we didn't mean that.  47 THE COURT:  No, but your friend said that he was making or 23470  Ruling by the Court  Submission by Mr. Rush  1 receiving this amendment in the light of, and subject  2 to, the rulings I made in February 1988, and that  3 seems to me to be an answer to the otherwise  4 understandable concerns that you might have.  5 MR. MACAULAY:  I haven't heard that from Mr. Rush.  6 THE COURT:  He said it last week.  7 MR. RUSH:  I said that last week.  8 THE COURT:  My memory runneth not time immemorial, but it does  9 runneth to last week.  10 MR. MACAULAY:  I recall what Mr. Rush said last week.  11 THE COURT:  Pardon?  12 MR. MACAULAY:  I recall what Mr. Rush said last week.  13 THE COURT:  All right.  I'll still disposed to grant the  14 amendment, having in mind as I do both the rulings I  15 made in 1988 and in the course of the trial the  16 statements that Mr. Rush has made in connection with  17 this amendment.  I give leave to amend in the form  18 presented to me on January 29th, 1990, but with the  19 addition of the two words ownership and jurisdiction  20 in the last line of the proposed paragraph 72 A I  21 think it is.  Yes.  All right.  You'll be furnishing  22 us all with a new improved text of the statement of  23 claim, Mr. Rush?  24 MR. RUSH:  Yes, my lord, I will.  2 5 THE COURT:  Thank you.  26 MR. PLANT:  I may say, my lord, that we will want to consider  27 our statement of defence.  2 8 THE COURT:  Yes.  29 MR. PLANT:  Whether it should be amended accordingly.  30 THE COURT:  Yes.  Mr. Macaulay too if he wishes.  All right.  31 Thank you.  32 MR. RUSH:  Now, my lord, the next matter, I have a number of not  33 quite as significant issues that I'd like to try and  34 deal with.  35 THE COURT:  Okay.  36 MR. RUSH:  If I can just proceed to the next one.  This  37 pertained to the filing and tendering by the  38 plaintiffs last Monday of the volume, the one volume  39 set of plaintiffs' replies to the wills collection  40 filed by my friends, the federal defendant.  And the  41 collection was filed subject to two conditions raised  42 by Miss Koenigsberg, and they pertained to two tabs of  43 the collection.  And your lordship may remember that  44 the collection was filed subject to my submitting to  45 you on tab 53 -- excuse me, tab 50 and tab 83, and it  46 was said that there were documents at those two tabs  47 which apparently didn't come from the estate files 23471  Submission by Mr. Rush  Submission by Ms. Koenigsberg  1 collection tendered by the federal defendant, and  2 therefore they shouldn't be included, and I said I  3 would check with Mr. Grant.  I have done so and I can  4 advise your lordship of this:  Regarding tab 50, this  5 came out of the federal defendant's file number 3988  6 dealing with the estate file of Mr. Sam Jones, and Mr.  7 Grant simply took that document from the same file and  8 assumed that it was part of the agreement he and Mr.  9 Macaulay had reached that it could be extracted from  10 the same one.  Regarding tab 83, this comes from  11 federal document number 10808 which is a general  12 correspondence trapline file of the Babine Agency from  13 1943 to 1954, but apparently wills documents were  14 taken by the federal defendant from that trapline file  15 and, in fact, it's listed as number 140 on their index  16 list.  And so Mr. Grant, assuming that he could do the  17 same thing, he took a number of documents from the  18 same file.  And, in my submission, it falls completely  19 within the agreement that he and Mr. Macaulay had  20 reached, that is to say, that documents taken from  21 files, and it would appear that in this case there was  22 at least federal documents taken from one trapline  23 file, and I simply say that this should be part of the  24 same collection and they should go in.  I have nothing  25 further to say.  26 THE COURT:  All right.  Any response to that?  27 MS. KOENIGSBERG:  Well, I will try.  I can't say that Mr. Grant  28 didn't find tab 50 in a file that -- in an estate file  29 if he says he did.  All I can tell your lordship is  30 that it's not in our copy of the estate file and it  31 clearly doesn't belong in the estate file.  So if  32 there was -- if this document was there, it's clearly  33 not a document which on its face came from there, and  34 it isn't in our copy so, in my submission, I can't  35 really respond to it, other than to say it's not an  36 estate file document.  It could have mistakenly  37 somehow gotten in there either maybe -- either through  38 somebody in our office leaving it there or perhaps Mr.  39 Grant.  I have no idea.  It is, however, on its face  40 not an estate document.  It certainly doesn't relate  41 to the will.  42 As to tab 83, it may be, I don't know, that wills  43 came from that file.  Wills came from a lot of places,  44 other than estate files, and I don't think that makes  45 any other documents relevant within the context of our  46 agreement or at all.  And, in my submission, the  47 trapline registration documents that are in tab 83 are 23472  Submission by Ms. Koenigsberg  Submission by Mr. Plant  Ruling by the Court  1 no more relevant either to the agreement or to the  2 notion of being responsive to the wills collection  3 from estate files then just because there was a will,  4 a copy of a will, in those files.  There are copies of  5 wills in lots of relevant -- or lots of places because  6 the will may have some relevance to something else in  7 that file.  And so I would maintain that these  8 documents are not -- still are not responsive and  9 still are not relevant.  10 THE COURT:  Well — I'm sorry, Mr. Plant?  11 MR. PLANT:  Well, I just wish to remind your lordship that the  12 document at tab 50, which is a letter on the heading  13 of the Gitksan-Wet'suwet'en Tribal Council dated  14 January 18th, 1988, is headed "Without prejudice to  15 aboriginal title action Delgamuukw versus the Queen,  16 Smithers Court Registry number 0843", and so obviously  17 there must be something going on there that I don't  18 understand.  The document itself is just pure hearsay.  19 It's Ralph Michell saying what Willy Mowatt told him,  20 and what he's doing as a result of that.  And I also  21 support my friend Miss Koenigsberg in relation to the  22 inadmissibility of tab 83, that's the trapline  2 3 documents.  24 THE COURT:  Well, I have some confidence that this case isn't  25 going to turn on either of these items, and counsel  26 not being able to be specific regarding their history,  27 I think in such a difficult position I must fall back  28 on principle and favour admissibility over  29 inadmissibility, but subject to the comments that  30 counsel have made.  And if in argument it's necessary  31 to deal with the matter, I think that I will have the  32 authority to reconsider whether the documents should  33 be here at all.  But for the time being I think the  34 most convenient thing to do is to order that they be  35 included within the documentary evidence, and I say  36 that with some hope and some expectation we may never  37 hear of them again, but if we do we'll deal with them  38 when the time comes.  All right.  Thank you.  39 MR. RUSH:  My lord, there was an issue between the provincial  40 defendant and ourselves concerning the base map of one  41 of the, what they call the judge's series, and this  42 is -- your lordship may be able to see the base map  43 over here.  And there was no, in our estimation, there  44 was no adequate explanation provided so far as the  45 means by which this base map was made.  And after  46 discussion between Mr. Plant and I, I can now say that  47 Mr. Plant has provided me with a letter which 23473  Submission by Mr. Rush  1  2  3  4  5  6  THE  COURT  7  MR.  RUSH:  8  THE  COURT  9  MR.  PLANT  10  11  12  13  14  THE  COURT  15  16  MR.  PLANT  17  THE  COURT  18  MR.  RUSH:  19  20  21  22  23  24  25  26  27  28  29  30  THE  COURT  31  MR.  RUSH:  32  33  34  35  36  37  38  THE  COURT  39  40  41  42  43  MR.  RUSH:  44  45  THE  COURT  46  MR.  RUSH:  47  THE  COURT  satisfies me of the technical features about how this  document came into being and I can advise the court  and my friend that if that letter is filed then  whatever objection we might have had to this base map  we now withdraw.  All right.  And the letter can now be --  What number is it, Mr. Plant?  Well, the base map itself doesn't have a number yet,  and given what my friend has said about wanting to see  the letter, perhaps tomorrow morning I could bring the  letter and the base map and they could be marked at  the same time.  You're welcome to do that, but I suggest you might  find it more convenient to do it tomorrow afternoon.  Tomorrow afternoon, yes.  All right.  Thank you.  All right.  Thank you, my lord.  The next matter was  again a minor matter, and then I'm going to turn the  floor over to Mr. Guenther for a couple of issues.  It  pertains to an index of the documents filed in the  cross-examination of Sheila Robinson.  You will recall  that there were -- there was an objection taken by my  learned friends to what was suggested as an  editorialization of some of the index.  That index was  reviewed and a fresh one was introduced and, Mr.  Registrar, I think you're going to find it in -- just  down on the first step before his lordship.  Yes.  And  I believe this is the revised version, my lord.  This is the exhibits on cross-examination?  Yes.  This is the cross-examination exhibits of the  plaintiffs of the cross-examination of Sheila  Robinson, Exhibit 1191 and -- excuse me, 1191 and 1191  large A.  Our friends have been provided with a copy  and I would like to have that now simply inserted into  the requisite volumes.  I shouldn't think there would  be any further objection to it.  I don't hear any.  All right.  They may be  substituted in for the previously impuned index.  All  right.  I think we'll take the morning adjournment  now.  Before we do that, can counsel tell me what they  think we have in store for us for the rest of the day?  My lord, from our standpoint I think we have two  further issues, both of a minor nature.  Yes.  And that completes what the plaintiffs have to raise.  Mr. Plant and Mr. Macaulay? 23474  Submission by Mr. Rush  1 MR. MACAULAY:  My lord, we have — want to tender now the six  2 volumes of the second series of Loring documents and  3 there are another two other very minor matters.  4 THE COURT:  The question that I'd be grateful if counsel assist  5 me on is whether we're going to be here this afternoon  6 or not.  7 MR. RUSH:  I don't think so, my lord.  8 MR. PLANT:  I don't think so either.  9 THE COURT:  All right.  Well, then we'll take a very short  10 adjournment then.  Thank you.  11 THE REGISTRAR: Order in court.  Court stands adjourned for a  12 short recess.  13  14 (PROCEEDINGS ADJOURNED FOR THE MORNING RECESS)  15  16 I hereby certify the foregoing to be  17 a true and accurate transcript of the  18 proceedings herein transcribed to the  19 best of my skill and ability.  20  21    22 Tanita S. French  23 Official Reporter  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 23475  Submissions by Mr. Guenther  1 (PROCEEDINGS RESUMED AT 11:30 a.m.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Guenther.  5 MR. GUENTHER:  Thank you, my lord.  Two areas I'd like to  6 address, I think I can deal with quite briefly.  The  7 first is that two occasions ago my friend Ms.  8 Koenigsberg tendered some edited reports from Exhibit  9 1216-B.  These were documents related to Mr.  10 Turnbull's evidence, the fishery officer, and Mr.  11 Grant at the time raised objections to portions of his  12 reports being tendered being irrelevant.  Ms.  13 Koenigsberg agreed to edit those and she presented the  14 edited versions, as I say, two occasions ago.  I  15 reviewed those and discussed it with Mr. Grant.  It  16 would appear from our point of view at least some  17 portions were edited out that were material and should  18 have been left in and, at this point, we are content  19 to go back to the original position before the  20 objection was made and allow the reports as originally  21 tendered to stand in that exhibit book.  I have  22 discussed it with my friend Ms. Koenigsberg and she is  23 content I think as well to simply have the edited  24 reports tendered on the last occasion withdrawn and  25 it's extremely doubtful that anyone would refer to any  26 portions of those reports but, if they do, it will be  27 to a portion that we consider relevant and the balance  28 can be left for argument.  29 THE COURT:  All right.  Now, can that be left until Miss Thomson  30 returns?  31 MR. GUENTHER:  Yes.  I think it could probably be left because I  32 think that the edited versions were simply to be  33 inserted behind the originals and no harm will be done  34 if they remain so in any event.  35 THE COURT:  All right.  36 MR. GUENTHER:  Secondly —  37 THE COURT:  Nothing then seems to be required there.  38 MR. GUENTHER:  No, I don't think, my lord.  39 THE COURT:  Okay.  40 MR. GUENTHER:  There remains an outstanding matter as well with  41 respect to various exhibits for identification marked  42 so during the course of the trial.  I believe that  43 most of those that were the defendant Province's  44 exhibits have been dealt with save for two, and I had  45 some correspondence with my friends with respect to  46 the balance and can say this for the record:  Exhibit  47 7, and I'm not going to say much by way of background 23476  Submissions by Mr. Guenther  1 except to say there appears to be agreement that  2 Exhibit 7 for Identification can now be marked as an  3 exhibit proper.  4 THE COURT:  Thank you.  5  6 (EXHIBIT 7 - MAP OF GYOLUGYET TERRITORY (formerly for  7 I.D.)  8  9    MR. GUENTHER: Similarly, Exhibit 570 can be marked as an exhibit  10 proper.  The plaintiffs do not take the position that  11 that exhibit can stand as proof of the contents  12 thereof, and I think my friends have our position on  13 that, that it should be marked as an exhibit proper as  14 going to explain the background to Mr. Williams'  15 evidence.  16 THE COURT:  Yes.  17  18 (EXHIBIT 570 - TAB 21, SUMMARY OF OFFENCES COMMITTED/  19 REPORTED TO BY RCMP (formerly for I.D.)  20  21 MR. GUENTHER:  The plaintiffs will withdraw or seek to withdraw  22 Exhibit 578 for Identification.  We would ask that  23 Exhibits 704 to 717 inclusive remain as exhibits for  24 identification.  These are all matters of consent, my  25 lord, agreement, my lord.  With respect to Exhibits  26 838 and 839, those can now be marked as exhibits  27 proper.  Those were for identification as well.  28  29 (EXHIBIT 838 - FEAST BOOK, 20 PAGES, 1ST PAGE DARK  3 0 WITH NAME ROBERT JACKSON  31 (EXHIBIT 839 - FEAST BOOK, 10 PAGES, 1ST PAGE SPIRAL  32 NOTEBOOK SUBJECT JOHN MOORE STONE)  33  34 MR. GUENTHER:  The plaintiffs will seek to withdraw Exhibit 982.  35 There was an objection to Exhibit 1027-3 based upon  36 relevance and there is agreement that that ought to  37 remain as an exhibit for identification subject to  38 final argument.  The plaintiffs will seek to withdraw  39 Exhibits 1105 and 1106, my lord, and Exhibit 1110 can  40 be marked as an exhibit proper.  41 THE COURT:  Yes.  42  43 (EXHIBIT 1110 - LETTER TO BOYS FROM GILL - OCTOBER 27,  44 1947 - GAME INSPECTOR RE TRAPLINES  45 (formerly for I.D.)  46  47    MR. GUENTHER:  And Exhibits 1249 and 1250 should remain as 23477  Submissions by Mr. Guenther  1 exhibits for identification.  They were so marked on  2 the basis that they would be referred to in argument.  3 Exhibit 1032 by agreement can be marked -- that is for  4 identification, can now be marked as an exhibit  5 proper.  6  7 (EXHIBIT 1032 - APPLICATION FOR A RESEARCH GRANT)  8  9    MR. GUENTHER:  Now, that, my lord, leaves six — actually eight  10 exhibits over which are marked currently for  11 identification over which there is some dispute and,  12 if I might just summarize those briefly, they are  13 Exhibits 1193-A and 1193-B which were two volumes of  14 Dr. Robinson's Ph.D. thesis, I believe, which the  15 defendant Province sought to mark after Mr. Grant's  16 cross-examination of Dr. Robinson.  There was argument  17 as to what portions of her thesis ought to be marked  18 and your lordship made various rulings as to portions  19 that should be marked, and I refer your lordship to  20 volume 295 of the transcript, pages 22263 to 22272  21 inclusive.  The Province then sought to or maintained  22 its request that the two volumes of her thesis be  23 marked in their entirety and the issue is left  24 outstanding.  I will make this comment, my lord, that  25 the plaintiff's position is that we maintain our  26 objection to those two volumes being marked as  27 exhibits proper, however, we would be content to have  28 them remain as exhibits for identification subject to  2 9 final argument and should the defendants make  30 reference in their argument to any portions thereof  31 that we at that time would consider objectionable, we  32 would be content to make our argument at that time.  33 The proposal is one that I think has been expressed by  34 your lordship, in fact, was expressed by your lordship  35 at the time you suggested they be marked for  36 identification.  37 The other exhibits then for which we make a  38 similar proposal are Exhibits 793 for Identification  39 which was a document that was a transcript of an  40 interview entitled Making Berry Cakes at Kispiox and  41 the evidence of Mr. Chilton which was put to him as a  42 reference to his background material in embarking upon  43 his work, again, we would ask that that remain for  44 identification subject to final argument.  And also in  45 order to explain the reference in his evidence thereto  46 and as background to his work.  Similarly, I am sorry,  47 I have left this out.  That was the second or third 2347?  Submissions by Mr. Guenther  1 exhibit for which there is dispute.  Exhibit 901-13  2 capital A was marked for identification.  This was a  3 page that was missing from a document that was put to  4 a witness by Ms. Koenigsberg.  She is in agreement  5 that that can be marked as an exhibit proper at this  6 time.  7 THE COURT:  All right.  8  9 (EXHIBIT 901-13A - A.G. OF CAN. CROSS-EXAM. BOOK ELLEN  10 JOHNSON INTERVIEW JULY 5, 19 82  11 (formerly for I.D.)  12  13 MR. GUENTHER:  Exhibit 981 was marked for identification and is  14 one again that there is some dispute.  15 THE COURT:  901?  16 MR. GUENTHER: 981, my lord.  This was a document that was a  17 listing of various fishing sites referred to in the  18 evidence of Mr. Morrell, and apparently prepared by  19 Susan Marsden.  Again, there is dispute.  The  20 plaintiffs would have it marked as an exhibit proper,  21 the defendants would have it excluded entirely but,  22 again, I propose that it remain as an exhibit for  23 identification subject to final argument.  And if  24 there is reference made at all in argument to it, the  25 matter of evidentiary value could be addressed at that  26 time.  There are then Exhibits 1026-31 and 1026-35.  27 These are two documents that were put to Mr. Morrison  28 in examination in chief by Miss Mandell which were two  29 published articles, both I believe by Mr. -- I am  30 sorry, Norvelle, I believe.  There was argument at the  31 time and in fact your lordship heard argument and  32 reserved on the question of whether they should be  33 marked as exhibits proper and I will refer you to the  34 transcript reference volume 262, pages 19392 to 19398  35 inclusive.  Narvey was his name, the author of those  36 two articles.  37 THE COURT:  Narvey?  38 MR. GUENTHER:  Yes, N-a-r-v-e-y.  The plaintiff's position  39 briefly put was that these really fell within the  40 treatise ruling of your lordship.  There was  41 discussion about the status of Mr. Morrison as an  42 expert.  Nonetheless, we would be content to have them  43 remain as exhibits for identification again subject to  44 final argument.  Yes, they fell into the category of  45 the type of treatises or extracts from treatises that  46 were put to Mr. Morrison and Mr. Greenwood and I  47 believe others as well during the course of trial. 23479  Submissions 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  THE COURT  MR. PLANT  THE COURT  The final exhibit over which there is dispute is  Exhibit 1031.  This was a draft plate referred to by  Dr. Galois, that is, he was involved in the  participation.  The draft plate was put to him in  examination on qualifications by Mr. Adams solely for  the purpose of making an example of the type of work  that Dr. Galois did.  It should remain, in our  submission, as an exhibit for identification, if for  nothing else then to explain the exchange that occurs  at volume 216 -- I am sorry, 262, pages 19392 to  19398.  That was during the examination on  qualifications.  Our submission simply that those --  that the set of contentious documents should remain  marked as exhibits for identification subject to  argument, my lord.  :  All right, thank you.  Any response to that by  counsel?  :  Yes, my lord.  There are some of these documents  that I think should be withdrawn from the record now.  There is obviously some temptation to think that the  matter ought to be left to final argument, but my view  here is that some of these are so sufficiently open  and shut that it would expedite the cast of preparing  for final argument and for record at least for lacking  these few documents or including them in one case.  First is to Dr. Robinson's thesis extracts.  Dr.  Robinson had written a Ph.D. thesis.  Some reference  was made to that in her report which was delivered to  the plaintiffs back in 1987, and I say that these  documents can go in now as under the treatise ruling.  The documents -- I am sorry, the dissertation was  referred to and relied upon by Dr. Robinson and she  was cross-examined on it and it should go in for that  reason alone.  It's not even a case where treatises  have, as they have been, put in where there's the  bearest reference made to them in a bibliography.  Here we have a treatise which is the work of the  witness, that she was cross-examined on, and I say  that that ought to go in as an exhibit proper.  :  Well, I don't think I dealt with the situation in my  treatise judgment where the treatise was written by a  live witness.  The question then:  Does it make any  difference.  :  I would say that if -- well, first of all --  :  I have to tell you, Mr. Plant, that I'm having some  difficulty getting mental traction here.  I don't  recall exchange that went on between counsel and the 23480  Submissions by Mr. Plant  1 basis for the objection and the purpose for the  2 document and, unless I get them out and review them in  3 the light of the passages of evidence, I don't know  4 how I can deal with this other than the way your  5 friend suggests.  6 MR. PLANT:  No, I don't know how it would be fair to suggest  7 that your lordship do that.  Perhaps I think then what  8 I ought to do is just to, if I might make one or two  9 comments so that when your lordship refers to this  10 extract of the evidence, if your lordship ever should,  11 you will see what I have to say now about these things  12 and I won't ask your lordship to rule on them.  13 THE COURT:  All right.  14 MR. PLANT:  As to Exhibit 793, what your lordship should know is  15 that this document which was put to a Mr. Chilton is  16 Mr. Overstall's version of Neil Sterritt's notes of  17 interviews with plaintiffs who were not called to give  18 evidence.  This document, wholly inadmissible as it  19 is, was apparently relied on by Mr. Chilton and we  20 will object to reference being made to it in final  21 argument if that -- certainly if that reference is for  22 the purpose of the truth of any of the statements made  23 in it.  24 The next item that I want to speak to, 981.  What  25 your lordship should know is that this is a very  26 lengthy report by Susan Marsden on fishing sites.  It  27 contains her analysis and interpretation of evidence  28 at trial.  It contains reports by two other  29 individuals, Dr. Cove or Mr. Cove, and a Miss Hogarth.  30 Now, the sequence was this:  Mr. -- this document of  31 Miss Marsden's was tendered during Mr. Morrell's  32 evidence probably as part of the background or  33 something of which Mr. Morrell relied.  The plaintiffs  34 later called Miss Marsden and they never proved this  35 document through her as I submit they ought to have  36 done, so that's the concern I have about that one.  37 Then as to 1026-31 and 1026-35, these are two  38 treatises which were referred to during the evidence  39 of Mr. Morrison, and I think my friend Mr. Guenther  40 has stated the concern correctly.  We objected because  41 it was our construction of your lordship's treatise  42 ruling that treatises could be filed where they had  43 something to do with opinion evidence given by an  44 expert and Mr. Morrison wasn't called to give opinion  45 evidence other than in relation to the selection of  4 6 documents, so we didn't see then how these two  47 treatises could be marked.  Your lordship did reserve 23481  Submissions by Mr. Plant  Submissions by Mr. Guenther  1 on that at the time.  Item -- the next item, 1031.  2 This is a draft plate or map chart of Dr. Galois, and  3 I am tempted to say that it can be marked for -- as an  4 exhibit for identification but --  5 THE COURT:  Well, it is marked as an exhibit for identification.  6 MR. PLANT:  That's right.  I am tempted to accede to my friend's  7 request that it continue to be so marked but I am  8 going to hold off on that until I see the use that's  9 made of it, if any, in final argument.  10 THE COURT:  All right.  11 MR. PLANT:  Those are the comments I had and I won't ask your  12 lordship to rule on those matters now.  13 THE COURT:  All right.  Mr. Macaulay?  14 MR. MACAULAY:  My lord, I have handed up two sets of five  15 volumes each --  16 THE COURT:  I am sorry, I wanted to ask first if you had any  17 comment to make on Mr. Guenther's suggestions as to  18 what I do with these documents.  19 MR. MACAULAY:  No.  20 THE COURT:  Does that complete your submissions today, Mr.  21 Plant?  22 MR. PLANT:  I wish to tender the transcripts of the Commission  23 Evidence of Mr. Boys but I think my friend Mr. Rush is  24 or Mr. Guenther is as eager to do that as I am, so I  25 am not sure it matters who does it.  That's the only  26 other matter on my list.  27 MR. GUENTHER:  I wanted to reply very briefly to Mr. Plant's  28 comments, not as to all the exhibits, but only to  29 those with respect to Dr. Robinson's thesis.  We take  30 the position that that thesis should not go in under  31 the treatise ruling.  It is firstly an unpublished  32 work and on the evidence of Dr. Robinson not widely  33 circulated if at all.  Secondly, there is a  34 distinction to be made in our submission with respect  35 to a document of that sort prepared by the very  36 witness when in fact defendants tendered Dr. Robinson  37 as an expert, gave notice of the opinion report, but  38 gave no notice of the Ph.D. thesis.  39 THE COURT:  Who put the Ph.D. thesis to her?  40 MR. GUENTHER:  She referred to it during cross-examination.  I  41 don't recall exactly whether she mentioned it in  42 chief.  I know that she did mention it simply as  43 background work that she had done.  44 THE COURT:  Yes.  Well, I think that there is a problem with  45 that that I should reserve on as you have suggested  46 because I'd like to revisit the authorities, but it  47 does seem to me that perhaps one of the conditions of 23482  Submissions by Mr.  Submissions by Mr.  Guenther  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  thesis admissibility was that they had withstood  intellectual scrutiny, but I am not sure about that.  MR. GUENTHER:  That was my understanding, my lord.  I have no  other comments on that.  THE COURT:  All right.  I will be glad to deal with it when —  if, as and when it becomes necessary to do so.  What  about these transcripts?  You are both anxious to get  them in, are you?  MR. PLANT:  Well, I don't have — oh, yes, I do.  This is —  THE COURT:  This is your examination on Commission, Mr. Plant?  MR. PLANT:  Yes, and Mr. Rush cross-examined.  There are two  transcripts, the first is dated January 23, 1990, and  the second is dated January 26, 1990.  There are  already some transcripts of Mr. Boys in evidence and,  following the sequence, the transcript of January 23  should, I am advised, be given the Exhibit number 1213  capital F.  THE COURT:  Yes, all right.  MR. PLANT:  And the second — rather the last volume, the 26th  of January volume would become 1213 capital G.  THE COURT:  Is one in chief, one cross, or does it slop over?  MR. PLANT:  No, it doesn't slop over.  THE COURT:  So the first, the F number, will be the evidence in  chief then, will it, and the G will be cross?  MR. PLANT:  Yes.  THE REGISTRAR:  Exhibits 1213 F and G, my lord.  THE COURT:  Yes.  (EXHIBIT 1213F  (EXHIBIT 1213G  COMMISSION EVIDENCE OF MR. BOYS DATED  JAN. 23, 1990 - EXAM. IN CHIEF)  COMMISSION EVIDENCE OF MR. BOYS DATED  JAN. 26, 1990 - CROSS-EXAM.)  MR. PLANT  There are two additional exhibits, the first I can  speak to.  During the course of Mr. Boys' examination  in chief, I referred him to a blue original version of  an application for registration of a trapline in the  name of the applicant, Bob and Steven Skawill, and  because there were pages pasted onto both the front  and the back of the form, a photocopy -- proper  photocopy of this document requires four pages.  Now, in the exhibit -- in the previous record of  the Boys' Commission, tab 42 of his documents  contained trapline application formation and I am  proposing that the four-page photocopy of this Bob and  Steven Skawill application form be added at the end of  the documents which are already in tab 42. 23483  Submissions by Mr. Rush  Submissions by Mr. Macaulay  1  THE  COURT  2  MR.  PLANT  3  THE  COURT  4  MR.  PLANT  5  6  7  THE  COURT  8  MR.  RUSH:  9  THE  COURT  10  MR.  PLANT  11  THE  COURT  12  MR.  PLANT  13  14  MR.  RUSH:  15  16  17  THE  COURT  18  MR.  RUSH:  19  20  21  22  THE  COURT  23  MR.  RUSH:  24  25  26  27  28  THE  COURT  29  30  MR.  PLANT  31  32  33  34  THE  COURT  35  MR.  MACAU  36  37  38  39  40  41  42  43  44  45  46  47  What number does it have now?  Well, tab 42 will be Exhibit 1213-42.  All right.  And this -- I am proposing that this just be added  at the end of the documents which are already in that  tab.  All right.  Is that satisfactory, Mr. Rush?  Yes.  That will be part of 1213-42.  I have two copies.  Thank you.  Now, my friend, Mr. Rush, marked an additional  document during his cross-examination.  Yes, my lord.  I have a document that was put to Mr.  Boys in cross-examination, it pertains to the Joe Nass  and Company Trapline Application.  N-a-s-s.  Yes.  And I think that this should be marked as part  of the exhibit series and, therefore, it ought to be  Exhibit 1213-71, and these should be inserted in there  and I will hand two copies up to the registrar.  1213-71.  Thank you.  (EXHIBIT 1213-71  DOCUMENT PERTAINING TO JOE NASS AND  COMPANY TRAPLINE APPLICATION)  :  All right, thank you.  Does that complete your work  for the day, Mr. Plant?  :  Yes.  I think I will scrounge around and see if I  can find a tab that has the number 71 on it to make it  clear in the binder that your lordship has where that  should go.  :  Thank you.  All right, Mr. Macaulay.  jAY:  My lord, I have two sets of five volumes, each of  the second series of Loring reports and letters and I  ask that they be marked.  Mr. Rush made some comments  earlier this morning about a document being missing.  If that's so, well, if he will just tell me then we  can straighten that out.  I hope we don't have to  speak to your lordship again about it, and it may be  that there is a page missing from a letter.  Again, if  Mr. Rush will identify that, we'll correct or add to  the exhibit.  Perhaps a letter to the registrar might  be sufficient in order to make whatever amendments  might be necessary unless we can do that on tomorrow  afternoon. 23484  Submissions by Mr. Macaulay  Submissions by Mr. Macaulay  1 THE COURT:  Well, whatever is convenient.  If counsel are able  2 to reach an agreement on it, a letter is sufficient,  3 as long as the letter sets out the agreement because  4 otherwise, if I get such a letter exparte, I have then  5 got to send it to the other side, then lose it.  All  6 right.  Have these documents been given a number  7 previously?  8 MR. MACAULAY:  No, they haven't, my lord.  9 THE COURT:  And you have nothing further to say about them?  10 MR. MACAULAY:  There may have been a number reserved but I don't  11 recall it.  They haven't been marked as an exhibit  12 though.  13 THE COURT:  Have you anything further to say about this, Mr.  14 Rush?  15 MR. RUSH:  Only that I had assumed that the Loring binders would  16 be marked in the sequence of the earlier Loring  17 binders, that the earlier binders had been given a  18 number and marked in a sequence and it makes sense  19 that these should be all marked in the same sequence.  2 0 THE COURT:  Does anyone know what the number was?  21 MR. MACAULAY:  I think 12 09.  22 MR. GUENTHER:  Yes.  23 THE COURT:  All right.  Mr. Registrar, can you find 1209 series  24 and see what prefix or suffix initials we have used?  25 MR. MACAULAY:  The first series was marked 1 to 6.  2 6 THE COURT:  Six volumes.  27 MR. MACAULAY:  Six volumes.  These are marked 1 to 5.  That's  28 how they were labelled.  29 THE COURT:  1209, yes, they are just marked volumes 1 to 6.  30 Now, what do you suggest for these?  There are five  31 volumes?  32 MR. MACAULAY:  Five volumes.  Well —  33 THE COURT:  7 to 11.  34 MR. MACAULAY:  Or perhaps A, B, C, D, E.  35 THE COURT:  Yes, that's open.  36 MR. MACAULAY:  In argument, my lord, what I propose to do is to  37 merge those two in chronological order but I don't  38 think they can be marked that way.  39 THE COURT:  All right.  Well, I am —  4 0 MR. MACAULAY:  As exhibits, I mean.  41 THE COURT:  I see no reason why this present series of five  42 volumes can't be 1209 A, B, C, D, and E.  4 3 MR. MACAULAY:  Thank you.  44 THE REGISTRAR:  Exhibits 1209 A through E.  4 5 THE COURT:  Yes.  46  47 (EXHIBIT 1209-A - BINDER SECOND SERIES OF LORING REPORTS) 23485  Submissions by Ms. Koenigsberg  (EXHIBIT 1209-B - BINDER SECOND SERIES OF LORING REPORTS)  (EXHIBIT 1209-C - BINDER SECOND SERIES OF LORING REPORTS)  (EXHIBIT 1209-D - BINDER SECOND SERIES OF LORING REPORTS)  (EXHIBIT 1209-E - BINDER SECOND SERIES OF LORING REPORTS)  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. MACAULAY:  Ms. Koenigsberg has one small matter, my lord.  THE COURT:  Thank you.  MS. KOENIGSBERG:  My lord, we were about to mark some — an  interrogatory affidavit and a note and a letter in  relation to Phillip Turner's affidavit and your  lordship had asked me what affidavit -- what the  exhibit number was and we couldn't find it.  It is  Exhibit 612 and I would propose that the three new  exhibits and there is a 612-A already, it's the  translation affidavit, so I would propose that the  interrogatory affidavit of Phillip Turner be marked as  612-B.  THE COURT:  Yes.  (EXHIBIT 612-B  INTERROGATORY AFFIDAVIT OF PHILLIP  TURNER)  MS. KOENIGSBERG:  That the notes of Neil Sterritt dated March  28, 1987 of Phillip Turner be 612-C, and that the  letter from Phillip Turner dated July 23, 1949 be  612-D.  THE COURT:  All right, thank you.  (EXHIBIT 612-C  (EXHIBIT 612-D  NOTES OF NEIL STERRITT DATED MARCH  28, 1987 OF PHILLIP TURNER)  LETTER FROM PHILLIP TURNER DATED JULY  23, 1949)  THE COURT:  Yes, thank you.  MS. KOENIGSBERG:  That's all, my lord.  THE COURT:  All right, thank you.  Anything else then?  Mr.  Rush.  MR. RUSH:  Just that the normal course of affairs would follow  in respect of the filing of Mr. Sterritt's notes, that  should these have been extracted from the larger  sequence, we would simply wish to have the right to  file anything that might get added to it, to the  sequence.  THE COURT:  Yes, I would think so. 23486  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. RUSH:  THE COURT:  MR. RUSH:  That's been the case previously.  THE COURT:  Yes, all right.  Can counsel tell me where we are  after we do whatever we are going to do tomorrow  afternoon?  What time should I continue to reserve for  this case prior to April 2 or 3 or whatever that magic  date is?  My lord, I am hopeful that after tomorrow we will  have completed all the necessity that we presently  have for court time.  All right.  Well, I am available between now and  April on reasonable notice, except for later this  week, so I'll be -- I won't be anxious but I will of  course look forward to hearing from counsel.  I wanted to raise with counsel just for their  consideration whether they have given any thought to  the hours of sitting during argument both in Smithers  and here.  I don't require an answer now.  We sat what  I would regard as slightly leisurely or banker-type  hours when we were taking evidence partly because of  the age and weariness levels of witnesses and that  condition may apply equally or to a greater extent to  counsel, I am not sure, but I would be prepared to  consider longer hours if counsel think there's any  cost benefit advantage in doing so, but I'll leave  that to counsel to think about and we can talk about  it again some time.  All right.  We will adjourn then  until two o'clock tomorrow afternoon.  Madam Reporter,  thank you.  THE REGISTRAR:  Order in court.  Court stands adjourned until  February 7, 1990, at two p.m.  (PROCEEDINGS ADJOURNED AT 12:00 p.m.  2:00 p.m.)  TO FEB. 7, 1990 AT  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings transcribed to  the best of my skill and ability.  Tannis DeFoe  Official Reporter,  UNITED REPORTING SERVICE LTD.


Citation Scheme:


Citations by CSL (citeproc-js)

Usage Statistics



Customize your widget with the following options, then copy and paste the code below into the HTML of your page to embed this item in your website.
                            <div id="ubcOpenCollectionsWidgetDisplay">
                            <script id="ubcOpenCollectionsWidget"
                            async >
IIIF logo Our image viewer uses the IIIF 2.0 standard. To load this item in other compatible viewers, use this url:


Related Items