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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-12-11] British Columbia. Supreme Court Dec 11, 1989

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 23175  Submissions by Mr. Macaulay 1  Vancouver, B.C.  2 December 11, 1989  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia this  7 11th day of December, 1989, in the matter of  8 Delgamuukw versus Her Majesty the Queen at bar, my  9 lord.  10 MR. MACAULAY:  My lord, I suppose our case is not yet quite  11 closed.  12 THE COURT:  No.  I don't think anyone said those magic words  13 yet.  14 MR. MACAULAY:  And that being so, if I may have leave to hand up  15 an affidavit of Judge Robert W. Metzger.  Judge  16 Metzger deposes that he was a witness to the will, the  17 last will and testament of Wallace Barnabus Morgan.  18 May I say -- that's the original and there is a copy.  19 May I say that we have the will itself, the original  20 will in court.  Judge Metzger has identified, has been  21 shown the will as the affidavit shows and he attaches  22 a copy of it to his affidavit.  I suggest the original  23 not be marked.  We intend to recommend to the  24 government official who has received it that it be  25 returned to the executor.  2 6 THE COURT:  All right.  2 7 MR. MACAULAY:  Could that be marked as the next exhibit, my  28 lord?  29 MR. RUSH:  Well, I don't think so.  Not yet, my lord.  30 THE COURT:  All right.  31 MR. RUSH:  My practise has been that we would, I think, have a  32 number reserved and then subject to any  33 cross-examination that we might want to undertake.  34 This came into our hands, I think, Thursday or Friday  35 of last week and I don't think we have a position with  36 regard to this affidavit and the deponent.  On the  37 face of it, it looks rather innocuous.  I would like  38 just to -- my principal concern is to determine what  39 other documents are around this document.  These  40 things don't stand in splendid isolation.  41 MR. MACAULAY:  This one does.  The will came floating in.  I  42 think I made that clear last week.  It hasn't got a  43 file.  44 MR. RUSH:  Well, it's always interesting for the plaintiffs to  45 determine how these things float around, my lord.  46 What we'd like to do is simply have it reserved.  We  47 will take a position on it and then advise my friends. 23176  Submissions by Mr. Macaulay 1  MR. MACAULAY:  It came in from  a plaintiff, I believe.  2 THE COURT:  Yes, all right.  3 MR. MACAULAY:  We can't make those inquiries because they are  4 plaintiffs.  5 THE COURT:  The next number I believe is 1242.  It will be given  6 that number tentatively and if I don't hear further  7 from you, Mr. Rush, or from someone on your side of  8 the table, it will become an exhibit.  I hope, though,  9 that you can let us know one way or the other so that  10 all uncertainty can be removed.  11 MR. RUSH:  Yes.  Thank you.  12 THE COURT:  Thank you.  13 MR. MACAULAY:  On the subject of wills, we had expected that  14 Miss Peters, the custodial affiant who we have offered  15 for cross-examination, would be examined last week.  16 But that wasn't to be and she will now be  17 cross-examined, as I understand it, on Friday, the  18 15th of December.  We have -- Mr. Grant says he wants  19 to see the estate files, all of the estate files  20 referred to in Mrs. Peters' affidavit and they will be  21 available for him on December 13 and 14 at the Justice  22 Research Centre and he can take whatever copies of  23 whatever documents that he wishes at that time.  We  24 have made a member of the clerical staff available to  25 him.  That brings us to the question of marking the  26 three volumes of wills.  They are still sitting on the  27 edge of the table here.  First, could I ask if your  28 lordship is available during the week of December 18?  2 9 THE COURT:  Yes.  I think so.  30 MR. MACAULAY:  If that's the case, if we can be reasonably sure  31 that your lordship will be available, then after the  32 cross-examination on December 15, which is a Friday,  33 and this is a date chosen by the plaintiffs, not by  34 ourselves.  35 THE COURT:  That's the 15th?  36 MR. MACAULAY:  15, yes.  37 THE COURT:  Yes.  38 MR. MACAULAY:  In fact all of those three days, the 13th, 14th  39 and 15th, the two days for examination of the  40 documents, and 15th for cross-examination, I suggest  41 that whatever submission the plaintiffs have regarding  42 the wills be made during the week of the 18th so that  43 we can finally end the matter.  44 THE COURT:  What do you say about that, Mr. Rush?  45 MR. RUSH:  I have this to say, my lord.  That's a good  46 suggestion.  I don't have any problem with it.  The  47 only counter suggestion I might make is that the 23177  Submissions by Mr. Macaulay 1 cross-examination is  to take place on the 15th.  I  2 don't know that the whole of the day of the 15th is  3 going to be dedicated to that cross-examination and if  4 it isn't we might be able to deal with it on that day  5 at the end of the day.  6 THE COURT:  What day of the week is it?  7 MR. MACAULAY:  That's a Friday.  8 THE COURT:  I'd rather not -- you think you are convening in the  9 afternoon, Mr. Rush?  10 MR. RUSH:  Something in that order.  11 THE COURT:  Well, if it's more convenient to your side and not  12 inconvenient to anyone else, I'll see about that sort  13 of thing.  I expect to be here and I have to be  14 somewhere every second of my life.  Might as well be  15 here as there.  16 MR. MACAULAY:  Well, can we — can we set a time?  Is your  17 lordship sitting --  18 THE COURT:  No, the court won't be sitting and I don't have  19 jurisdiction anywhere except the Court of Appeal, so I  20 will be available.  21 MR. MACAULAY:  How shall we arrange that?  22 THE COURT:  Oh, just speak with —  23 THE REGISTRAR:  Miss Gosney.  24 THE COURT:  Yes.  We better go through the Supreme Court trial  25 coordinator, I think.  26 MR. MACAULAY:  Yes.  Thank you, my lord.  The next matter, as I  27 understand it, is no longer a bone of contention  28 between the plaintiffs and ourselves.  It's the  29 overlays to the base map, the map that's been standing  30 over in the corner for all this time.  31 THE COURT:  Yes.  32 MR. MACAULAY:  I'd like to hand up the overlays and have the  33 base map marked.  The overlays I'm handing up are the  34 overlays showing the railways -- railway.  Is only one  35 railway shown there.  The B.C. Railway is not shown.  36 And then the maps showing the Federal presence other  37 than reserves, those are 29A and B now.  The tag says  38 64A and B, but those -- that numbering was long since  39 abandoned.  These are overlays of 29A and B showing  40 the small -- modest holdings of the --  41 THE COURT:  A is railroads, is it?  42 MR. MACAULAY:  Now, the railway map is numbered.  43 THE REGISTRAR:  31A and B, I think.  Those big maps?  31A.  44 MS. KOENIGSBERG:  There is just one railway map.  45 MR. MACAULAY:  There is one railway map.  46 THE REGISTRAR:  Five.  47 MR. PLANT:  Well, my lord.  Exhibit 1223 — 2317?  2  MR.  3  4  5  THE  6  7  8  MR.  9  MR.  10  THE  11  MR.  12  THE  13  14  15  MR.  16  THE  17  MR.  18  19  THE  20  MR.  21  THE  22  MR.  23  24  25  THE  26  MR.  27  THE  28  MR.  29  THE  30  31  32  MR.  33  THE  34  THE  35  36  37  MR.  38  39  THE  40  41  MR.  42  43  44  45  46  THE  47  Submissions by Mr. Macaulay 1  THE COURT:  Yes.  PLANT:  -- is the railway's map and within the alienations  mapping series the Provincial numbering, that was  originally map five.  COURT:  Yes.  Well, we have this noted as being map five  C.N.R. and Grand Trunk Pacific Railway.  Does it  include the B.C. Rail as well?  MACAULAY:  Not the overlay doesn't.  PLANT:  Well, I think it does.  COURT:  It does.  MACAULAY:  Oh, does it?  COURT:  Yes.  I can tell just looking at that that that's  obviously B.C. Railway running from nowhere to nowhere  on this map.  MACAULAY:  On the exhibit itself it's shown.  COURT:  Yes.  MACAULAY:  I didn't -- I hadn't noticed it was shown on that  overlay.  COURT:  Well, this redish line.  MACAULAY:  Oh, yes.  COURT:  I think it's the B.C. Railway.  All right.  MACAULAY:  It's not a Federal — I mention 2 9A and B.  I  misspoke myself.  It's 31A and B in our numbering  system.  The Federal presence.  COURT:  Well, you have marked as 1227 map 31A.  MACAULAY:  That's right.  COURT:  Federal presence as of 1984.  MACAULAY:  That's right, my lord.  COURT:  All right.  Well, now, just let me get something  else.  There was another overlay that was reserved and  it —  MACAULAY:  Reserved.  THE REGISTRAR:  It was just submitted.  It wasn't given —  COURT:  Yes.  It's just an aide-memoire.  It doesn't seem to  have been admitted into evidence.  I don't think you  asked it be admitted into evidence.  MACAULAY:  Now, the plaintiffs have a submission to make  concerning missing reserves.  We are waiting for that.  COURT:  I see.  All right.  All right.  Well, we can deal  with that when the time comes then.  MACAULAY:  These are ones that I understand are not -- are  not now the subject of debate.  I understand the  plaintiffs' position to be that they are -- they prove  no more, no less than the exhibits that they mirror or  reflect in and of course that's true.  COURT:  I am sure that's right.  All right.  Well, then,  what is it that you wish to do Mr. Macaulay?  How do 23179  Submissions by Mr. Macaulay 1 you want to mark  2 MR. MACAULAY:  Well, there is the base map.  I ask that the base  3 map itself be marked and that these be marked exhibits  4 A, B and C respectively.  Perhaps the rail --  5 THE COURT:  Well, the base map is Mr. Macaulay's famous map that  6 hasn't yet been admitted as an exhibit, is it?  7 MR. MACAULAY:  Yes, my lord.  8 THE COURT:  That's not opposed now?  9 MR. RUSH:  Pardon me?  10 THE COURT:  That's not opposed now?  11 MR. RUSH:  I take it that my friend is assuring the court that  12 the base map is also reflected in some other evidence  13 in the court.  That's -- and that's Exhibit 5, is it?  14 MR. MACAULAY:  Exhibit 5.  There is a line on the base map  15 showing the then outer boundaries of the claim area  16 and it is intended to show the line on Exhibit 5, the  17 plaintiffs' Exhibit 5.  18 MR. RUSH:  Well —  19 MR. MACAULAY:  Nothing more than that.  20 MR. RUSH:  My lord, setting aside the line for the moment.  21 THE COURT:  Yes.  22 MR. RUSH:  Is the base under the line the base of Exhibit 5?  23 That was my question.  24 MR. MACAULAY:  No, it isn't.  2 5 THE COURT:  Oh.  26 MR. RUSH:  And that's what I think we have to know is where does  27 that base come from?  28 MR. MACAULAY:  We have long since described where it came from  29 over -- we've been exchanging correspondence about  30 what that is over time.  It's a shrinking of an NTS  31 map.  And I thought that Mr. Grant had taken the  32 position on that that --  33 MR. RUSH:  Apparently he has, my lord.  We have agreed to it.  34 THE COURT:  All right.  Well, then the base map will be the next  35 number which will be 1243, won't it, Madam Registrar?  36 THE REGISTRAR:  Yes, my lord.  37 THE COURT:  Now, just before you go on to it, Mr. Macaulay, I  38 have got a bunch of overlays on it already.  3 9 MR. MACAULAY:  Yes, my lord.  40 THE COURT:  Now, what's the status of those interesting  41 documents?  42 MR. MACAULAY:  Well, those are overlays that were handed up by  43 the Province, I believe, just looking at them from  44 here.  They represent -- or did we?  I don't remember  45 who handed them up.  But they represent some of the  46 plaintiffs' exhibits except for the overlap.  47 THE COURT:  Well, the first one is marked number 68 External 23180  Submissions by Mr. Macaulay 1 Boundary May 11,  1987.  2 MR. MACAULAY:  That is a — that represents an — in effect a  3 plaintiffs' exhibit and it compares it with an earlier  4 plaintiffs' exhibit.  That's why the colouring is --  5 THE COURT:  Is the 68 the number of the plaintiffs' exhibit  6 number?  7 MR. MACAULAY:  Oh, no.  8 THE COURT:  What does this 68 mean?  9 MR. MACAULAY:  Well, those numbers we don't use any more.  10 THE COURT:  All right.  Then the second one is said to be  11 Internal Boundaries.  12 MR. MACAULAY:  Yes.  13 THE COURT:  And the third one is said to be House Territories.  14 MR. MACAULAY:  Well, the plaintiffs from time to time have put  15 in exhibits.  These all reflect plaintiffs' exhibits  16 and the plaintiffs have put in exhibits showing  17 various boundaries and that's what those are.  They  18 are a reduced version of the plaintiffs' various  19 exhibits.  I think what we better do is make  20 arrangements with the Registrar to identify which of  21 the plaintiffs' exhibits, that is prepare a tag for  22 those overlays, showing which of the plaintiffs'  23 exhibits that they represent.  24 THE COURT:  Should I take them off and give them back to you?  25 They are not exhibits?  2 6 MR. MACAULAY:  No.  All right, my lord, yes.  27 THE COURT:  I am giving back the three overlays that I have  2 8 become comfortable with for so long.  And now we're  29 going to mark the underlying base map as Exhibit 1243.  30 All right.  And then the first overlay then will be  31 the railway map which might conveniently be 1243  32 capital A.  33 MR. MACAULAY:  Yes, my lord.  Please.  34  35 (EXHIBIT 1243:  Base map - claim territory)  36  37 MR. RUSH:  My lord, my recollection is not sharp on this point,  38 but I had not thought that the B.C.R. line is  39 portrayed on that overlay as part of the Federal  40 Government's proof of its map.  41 MR. MACAULAY:  It's on the map.  42 MR. PLANT:  And it's in the book that was handed up as one of  43 the component parts of that alienations map.  44 THE COURT:  Do you accept that, Mr. Rush?  45 MR. RUSH:  I guess the Province has a sharper idea to that one.  46 I will take that.  47 THE COURT:  We will put this on as the first overlay.  Is there 23181  Submissions by Mr. Macaulay 1 a trick about  putting these on?  Do you start at the  2 middle or something?  3 THE REGISTRAR:  That's going to be 1243A.  4 THE COURT:  Yes.  5 THE REGISTRAR:  Railway.  6 THE COURT:  I will need a tag on it, Madam Registrar.  7 THE REGISTRAR:  Yes.  8  9 (EXHIBIT 1243A:  Overlay - Railway)  10  11 THE REGISTRAR:  Mr. Rush is looking at the other two.  12 THE COURT:  Yes.  13 MR. RUSH:  Yes.  Yes.  I am satisfied.  14 MR. MACAULAY:  Then if 1243B could be the — what was 31A.  15 THE COURT:  There is two here.  16 MR. MACAULAY:  The first of the two Federal presence maps.  17 THE COURT:  All right.  Now I have two.  One is Federal presence  18 in '82 and the other is Federal presence '84.  19 THE REGISTRAR:  '84.  2 0  THE COURT:  '84.  21 MR. MACAULAY:  '84.  22 THE COURT:  All right.  Should they be B and C?  23 MR. MACAULAY:  '82 as B and 1984 as C.  24 THE COURT:  Yes.  And 1982, 1984.  25  26 (EXHIBIT 1243B: Overlay - Federal presence (1982))  27 (EXHIBIT 1243C: Overlay - Federal presence (1984))  28  29 MR. PLANT:  My lord, may I inquire as to whether there is a  30 little plastic tab sticking out of that overlay?  Yes.  And what are the numbers on those?  64B.  A and B.  64A and B?  Yes.  A is '84 and B is '82.  Thank you.  Conveniently in reverse order chronologically.  All  38 right.  So '82, however, is going to be 1243B.  Thank  3 9 you.  40 MR. MACAULAY:  The other overlay in which Canada is interested  41 is the reserve overlay that's sitting over in the  42 corner of your lordship's desk.  4 3 THE COURT:  Yes.  44 MR. MACAULAY:  The map itself was marked Exhibit 1219.  4 5 THE COURT:  Yes.  4 6 MR. MACAULAY:  At the time objection was taken to it on the  47 grounds that there were reserves missing.  We haven't  31 THE COURT  32 MR. PLANT  33 THE COURT  34 MR. PLANT  35 THE COURT  3 6 MR. PLANT  37 THE COURT 23182  Submissions by Mr. Macaulay 1 heard any more about  that and since I'm reminded by my  2 friend, my colleague, Miss Koenigsberg, that the map  3 itself is already marked as an exhibit, I take it  4 without qualification, that maybe the overlay should  5 be marked D in this series of overlays.  6 MR. GUENTHER:  I don't think that's a problem.  My recollection,  7 my lord, was that Mr. Grant was having a look at that  8 to determine there was the possibility of a reserve  9 not reflected in the map.  But to the extent that the  10 overlay reflects only the exhibit already marked with  11 the qualifications made at the time on the record,  12 presumably again if nothing is said then that remains  13 as evidence without proviso, but I believe Mr. Grant  14 is going to look at this.  But we have no objection to  15 marking the overlay on that basis.  16 THE COURT:  All right.  Thank you.  1243 capital D.  17  18 (EXHIBIT 1243D:  Overlay - Indian land reserves in  19 claim area)  20  21 THE COURT:  I take it that when one is looking at this for  22 pictorial assistance one has to take -- look only at  23 the -- in some cases look only at the overlay in  24 question, because the '82 and '84 Federal presence  25 will overlap in some cases, not others.  2 6 MR. MACAULAY:  That's right, my lord.  They are very small  27 differences.  2 8 THE COURT:  All right.  29 MR. MACAULAY:  Perhaps the overlays that should be dealt with in  30 batches or groups are the ones that your lordship just  31 handed back.  32 THE COURT:  Yes.  33 MR. MACAULAY:  Those that we've handed up are, my lord, for the  34 court's assistance when you reach that topic.  35 THE COURT:  Yes.  3 6 MR. MACAULAY:  With the others, they don't show anything  37 significant one on top of the other.  3 8 THE COURT:  No.  39 MR. MACAULAY:  The ones that you handed back might, though, and  40 that's something we'll have to address.  41 THE COURT:  Well, I'll be glad to hear from you on that.  It  42 seems to me that the one -- particularly the ones  43 purported to show house boundaries may be incomplete.  44 It may be that they are not.  But it just occurred to  45 me that particularly down in the southwest corner  46 there is a very large area that seems to be  47 unallocated to a house by number, but maybe it's 23183  Submissions by Mr. Macaulay 1 all -- maybe it  appears somewhere else.  2 MR. PLANT:  I can assist your lordship to the extent of  3 explaining that the map which -- I am sorry, the  4 overlay which had the little tab with the number 61  5 and the description House Territories is identified in  6 the upper right-hand corner as interrogatories maps.  7 So this overlay was derived from the Provincial  8 Government's interpretation of the interrogatories  9 maps which were of the maps showing the house  10 territories which were part of the plaintiffs' answers  11 to interrogatories.  12 THE COURT:  Yes.  All right.  13 MR. PLANT:  That explains one of the three overlays that your  14 lordship handed back.  15 THE COURT:  Yes, all right.  And the other one — I think one of  16 the other ones was intended to show the changed  17 boundaries relating in part to Nii kyap's territory up  18 in the northeast corner.  19 MR. PLANT:  Yes.  One of them was intended to show, if I can put  20 it this way, the evolution in the external boundary of  21 the claim area as taken again from Provincial  22 Government's interpretations of the plaintiffs' --  23 well, in one case from the statement of claim filed  24 May 11, 1987 and in another case from a document which  25 was Schedule A to a report of Neil Sterritt dated  26 March '87.  27 THE COURT:  Yes.  All right.  Thank you.  28 MR. MACAULAY:  We come now to the Loring books of — Loring  29 reports, six volumes.  I can tell your lordship that  30 in addition to the transcript -- transcriptions of the  31 Loring reports from 1889 to 1904, the handwritten  32 ones, we have asked a member of our staff to go to  33 Ottawa to look at the original documents and she is  34 doing that right now.  I've noticed, too, that there  35 have been typographical errors in the transcriptions  36 that were provided for my friends and for your  37 lordship.  We intend very shortly to provide improved  38 transcriptions.  The plaintiffs take the position, and  39 quite rightly, probably, that those are simply our --  40 they are by way of our submissions about what the  41 documents say rather than definitive or authoritative  42 material.  That's true.  43 THE COURT:  Of course, that's the case with any translation or  44 attempt to duplicate some other -- some original  45 material.  4 6 MR. MACAULAY:  That's right.  47 THE COURT:  Or any original material, rather. 23184  Submissions by Mr. Macaulay 1  MR. MACAULAY:  We invite our  friends, the plaintiffs, and also  2 the Provincial defendants to improve on them.  As we  3 have -- it took quite awhile to reach the point we  4 have reached now, we expect some small improvements,  5 further small improvements and we will hand up a  6 second edition of the transcriptions.  7 THE COURT:  Well, the original documents will always prevail if  8 there is a dispute and either side can make  9 suggestions as to what the original document is.  Or  10 what it says, rather.  11 MR. MACAULAY:  Now, these Loring -- the Loring reports were not  12 actually marked.  13 THE COURT:  No.  They are 1209 as the number that's been  14 reserved for them.  15 MR. MACAULAY:  Reserved for them.  I would ask that they are  16 marked now.  17 MR. GUENTHER:  Yes, we -- well, we advised our friends, my lord,  18 that we have no objection to the Loring documents be  19 marked subject to the usual reservations as to  2 0 relevance to be made in argument.  21 THE COURT:  All right.  22 MR. GUENTHER:  What is reference.  23 THE COURT:  That will be 1209 A to F, their being six volumes.  24 MR. MACAULAY:  Yes, please.  25  26 (EXHIBIT 1209A:  27 (EXHIBIT 1209B  28 (EXHIBIT 1209C  29 (EXHIBIT 1209D  30 (EXHIBIT 1209E  31 (EXHIBIT 1209F  32  33  34 MR. GUENTHER:  Just for clarity, my lord, I take it that the  35 transcriptions, then, are simply -- are they to be  36 marked separately or are they --  37 THE COURT:  I think they will just be inserted in tabs but not  38 marked as exhibits.  39 MR. MACAULAY:  I believe I have stated correctly what our  40 understanding of the status of those transcriptions  41 are.  42 THE COURT:  Yes.  I think for convenience sake it should be  43 inserted in the tabs but not form part of the evidence  44 at the trial.  45 MR. MACAULAY:  Next are the three volumes of what you might call  46 miscellaneous historical documents.  They are intended  47 to supplement all the collections of historical  oring  Reports  - Vol.  1)  oring  Reports  - Vol.  2)  oring  Reports  - Vol.  3)  oring  Reports  - Vol.  4)  oring  Reports  - Vol.  5)  oring  Reports  - Vol.  6) 23185  Submissions by Mr. Rush        1 documents that have been  marked as exhibits over the  2 years by various parties.  The number 1239A, B and C  3 was reserved for them.  4 THE COURT:  What number, please?  5 MR. MACAULAY:  1239A, B and C.  And I would ask that those three  6 volumes be marked now.  7 THE COURT:  Yes.  They were so marked.  Any objection?  8 MR. RUSH:  Yes.  Well, there is an objection.  Observation and  9 an objection to some.  My lord, most of these  10 documents are directed at the evidence of -- in  11 attempt to reply, I think to the evidence of Dr. Ray  12 and Dr. Galois, and in our view should properly have  13 been put to those witnesses.  It strikes me as a  14 backfilling of the -- both the Province's and the  15 Federal case in that respect.  The difficulty is that  16 I recognize your lordship's rulings on the question of  17 documents.  And having said that, I don't think I can  18 go beyond saying anything further about their  19 admissibility, except for one issue and that is that  20 there are a number of documents which are purportedly  21 ancient documents for which there is no source  22 indicated and I don't think those documents should be  23 marked.  And they are by my reckoning documents at  24 tabs 20 through to 26 save and except 24.  Now, those  25 documents, my lord, simply don't indicate where the  2 6 document came from.  And I think that my friend simply  27 can't produce a document which on its face looks old  28 and which -- for which there are clearly -- there are  29 parties whom we know were people that were involved in  30 activities in the period.  Nonetheless, I think that  31 if the Ancient Document Rule is to have any meaning  32 whatsoever, apart from the fact that the document is  33 old and appears on its face to be old, it has to come  34 from some source, that we can identify the source and  35 satisfy ourselves that that source is a reputable  36 source.  And throughout these tabs that I've mentioned  37 to you there is source question mark, source question  38 mark, source unknown, source unknown.  And I don't  39 think that that's the type of document that can really  40 assist your lordship in any way and it certainly  41 doesn't assist us to determine whether or not we can  42 accept the reliability of the document.  There are  43 some other documents where the source is not readily  44 known, but -- for example, tab 36, the document of  45 Father Legaic, but I know from separate investigations  46 the source of the Legaic records, so I am not  47 concerned about that one.  The others I've mentioned I 23186  Submissions by Mr. Macaulay        1 am concerned about  and I don't think they should form  2 part of this volume.  Apart from my comments and those  3 particular comments, I don't take any further position  4 about the marking of this three-set volume.  5 THE COURT:  All right.  Mr. Plant?  Do you have a position, Mr.  6 Plant?  7 MR. PLANT:   Well, my lord, I am just surveying some of these  8 documents now with Mr. Rush's concerns in mind.  I see  9 that one or two of them come from A.G.B.C. documents.  10 They have a reference to my list of documents in the  11 upper right-hand corner.  12 THE COURT:  You think they are already in?  13 MR. PLANT:  I would hope that I could address Mr. Rush's concern  14 in relation to one or two of them, but at the moment  15 have nothing else to say.  16 THE COURT:  Thank you.  17 MR. MACAULAY:  I have just been informed by a member of my  18 staff, research staff, that we got them from the  19 Vancouver Public Library.  They are well-known figures  20 in history, in the local history.  The first one is  21 Mr. Conway who was a major figure in the Colin's  22 Overland Telegraph.  There is Roderick Findlayson by  23 whom your lordship has heard, a principal -- one of  24 the principal figures of the Hudson Bay Company at the  25 time and it's a letter to Mr. Manson who is another  26 official of the Hudson Bay Company.  Another is Mr.  27 Tolmie's letter to William, the same Manson of the  28 Hudson Bay Company.  The next is a letter by -- from  29 Manson to Findlayson.  Obviously that's one that's not  30 objected to.  We identified it as part of the Hudson  31 Bay Company archives.  The tab 25 is Tolmie's letter  32 to Manson and 26 Edgar Dewdney's letter to Pearce, the  33 assistant surveyor general.  These are all letters  34 written in the 1860s -- well, the last one is written  35 on April 10, 1871 just before Confederation.  Perhaps  36 we ought to have listed the source as Vancouver Public  37 Library and that's where -- that's how it came to us,  38 it came to us.  I might add that these were not  39 collected in order to rebut anything -- any particular  40 thing said by Dr. Ray.  We thought he sort of took  41 care of himself in his evidence and we didn't need to.  42 THE COURT:  It's additional to what Dr. Ray said?  4 3 MR. MACAULAY:  I beg your pardon?  44 THE COURT:  I take it you are putting it forward on the basis  45 that it's in addition to what Dr. Ray said?  46 MR. MACAULAY:  Well, no, it's — we will be making submissions  47 about various aspects of the history of the claim area 23187  Submissions by Mr. Rush        1 and we will be relying  largely on documents that are  2 already -- have already been put in of evidence by  3 other parties, but in some cases in order to make our  4 point we add a few documents and that's -- I tried to  5 explain that in my opening and that -- the reason for  6 these.  For instance, we will be making submissions  7 concerning the origins of the land claim idea.  I  8 believe we cross-examined Dr. Galois about that and  9 others, other expert witnesses.  We intend to make  10 submissions and one or two of those documents will  11 fill out the already ample record.  They are really  12 intended for that kind of purpose.  It happens in a  13 case like this where you have hundreds if not  14 thousands of documents produced by a witness that  15 after the cross-examination you find that in the huge  16 number of documents we have in our collections now  17 there are a few more that we might have put to that  18 witness.  19 THE COURT:  Well, I am not troubled and I think Mr. Rush has  20 realistically recognized the way the wind is blowing,  21 on the question of putting the documents to the  22 witnesses in a case like this it would be suicidal for  23 a judge or -- to order that every document might be  24 tendered later has to be put to a witness.  That is a  25 salutory rule when one is dealing with conventional  26 litigation, but I don't need to hear you on that part  27 of it.  But there is a substantial question arising  28 out of Mr. Rush's other submission that an ancient  29 document only becomes admissible by being ancient and  30 by being found in a depository which contributes to  31 the -- to its trustworthiness and regularity.  I think  32 you've now given me an answer.  I'm not sure it's a  33 sufficient answer to Mr. Rush's objection when you  34 tell me that they come from the library.  Mr. Rush  35 required verification that could be done by affidavit,  36 but the question now is is that enough?  Libraries get  37 things long, sometimes long after the event and --  38 MR. RUSH:  My lord, perhaps I would be prepared to accept the  39 document from the Vancouver Public Library --  4 0 THE COURT:  Yes, all right.  41 MR. RUSH:  -- of this antiquity to satisfy you on the depository  42 issue.  43 THE COURT:  All right.  44 MR. RUSH:  But I would like something from my learned friends  45 indicating that that is the source and for this  46 reason, and only for this reason, and that is that  47 there are other documents identified as having come 23188  Submissions by Mr. Macaulay        1 from the Vancouver  Public Library identified in the  2 index and these ones weren't and I'm concerned about  3 that distinction.  4 THE COURT:  Yes.  5 MR. RUSH:  And my second point is that as Mr. Plant has already  6 indicated, that of some I think only one of the  7 documents that I noted that where the source was not  8 identified, it is from the A.G.B.C.S. and my friend  9 Mr. Macaulay may not be able to satisfy me about that  10 document and I'd like to know about that one as well.  11 MR. MACAULAY:  Which one is that?  12 MR. RUSH:  That's 26.  13 THE COURT:  26.  14 MR. MACAULAY:  Yes.  15 MR. RUSH:  Now, my lord, I would ask -- my position is that  16 those documents should be excluded from the volume.  17 As a pragmatic approach, however, I'm prepared to do  18 this, that subject to my friend satisfying me about  19 these particular documents, the documents can be  20 filed.  21 THE COURT:  Yes.  All right.  Well, I won't ask that they be  22 physically excluded, but until the matter is dealt  23 with further the three volumes except tabs 20 to 23  24 and 25 and 26 will not be included and the three  25 volumes will be Exhibits 1239A, B and C.  26  27 (EXHIBIT 1239A:  28 (EXHIBIT 1239B:  29 (EXHIBIT 1239C:  30 (EXCEPT TABS 20, 21, 22, 23, 25, 26)  31  32 MR. MACAULAY:  Is tab 27?  33 THE COURT:  I haven't got a note of tab 27.  34 MR. RUSH:  No, not 27.  35 MR. MACAULAY:  Oh, okay.  All right, my lord.  Thank you.  I ar  36 grateful to my friend for that and your lordship.  37 There is one other matter, that is the ONC documents  38 concerning which Madam Ladouceur has submitted an  39 affidavit, made an affidavit.  Could my colleague,  40 Miss Koenigsberg, deal with that after the morning  41 adjournment?  42 THE COURT:  Yes.  43 MR. MACAULAY:  We have made the inquiries that your lordship  44 directed to be made and we have some material that I  45 think my friends should see and that perhaps we can  46 deal with today.  Those are the -- those are the  47 matters that I wanted to deal with and the only --  Historical Doc's collection  Historical Doc's collection  Historical Doc's collection  . 1)  •   2)  •    3) 23189  Submissions by Mr.  major hurdle we have now  Plant  1  apart from ONC, the only  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 understand it,  -- after the 15th.  seems to be the wills and that, as  will be dealt with perhaps on the -  THE COURT:  Yes.  All right.  MR. MACAULAY:  My lord, now, there are other matters.  The  plaintiffs have informed me that they have matters  they want to bring up.  MR. GUENTHER:  My lord, just for the purpose of listing, there  is one other matter that relates to the Federal case  that we wish to address at some point and that was the  order -- you made an order, broadly stated, with  respect to particularization on the Federal position  on extinguishment.  And my friends have provided me  with a letter this morning that I have not had an  opportunity to review, but that's the only other  matter with respect to the Federal case that is  outstanding in addition to the ONC.  MR. MACAULAY:  We don't intend to put that in as an exhibit.  MR. GUENTHER:  No.  But —  MR. MACAULAY:  That was a statement of position.  THE COURT:  Yes.  All right.  MR. GUENTHER:  Yes, I had understood that, my lord.  I wished to  review it, however, to -- with respect to the  possibility of the plaintiffs taking a further  position on it, and I wish to try to do that over  lunch and perhaps speak to it this afternoon, if that  is at all necessary.  Yes.  Thank you.  My lord, I have a number of matters that I would  hope could be spoken to.  I have taken the liberty of  preparing a sort of checklist or agenda and I have a  copy of it.  It's really just for reference.  Thank you.  I am not sure that I will go through these  necessarily in the matter -- in the order in which  they appear, but the first item of business on this  agenda is to tender as Exhibit 568 capital A, a letter  from Mr. Chiasson of Ladner Downs to Peter Grant and  this is being done by way of agreement between Mr.  Grant and myself.  I have two copies.  All right.  And that -- that's now going to become  Exhibit 568 by consent or without opposition?  It goes in without objection.  Yes.  All right.  Exhibit 568A, thank you.  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT:  MR. RUSH:  THE COURT:  (EXHIBIT 568A:  agreement)  Letter dated Sept. 19, 1985 re 23190  Submissions by Mr. Plant        1  MR. PLANT:  The next item is an  extremely minor matter of  2 housekeeping.  At Volume 306 page 23167 of the  3 transcript.  4 THE COURT:  23167?  5 MR. PLANT:  167, yes, my lord.  What is Exhibit 92B is there  6 referred to as Exhibit 292B and I merely wish the  7 record to be clarified.  8 THE COURT:  All right.  9 MR. PLANT:  It's Volume 306 of the transcript.  Oh, the page is  10 23167.  11 THE COURT:  All right.  Is there — are you aware of this, Mr.  12 Rush?  13 MR. RUSH:  I'm not aware of it, but I'm sure my friend wouldn't  14 make the submission if it weren't so.  We accept that.  15 THE COURT:  All right.  16 MR. PLANT:  It's not a matter in which there is any doubt.  It's  17 part of a sequence of documents that we were --  18 THE COURT:  Madam Registrar tells me there is another problem  19 about that page.  20 THE REGISTRAR:  There is another exhibit.  It should be titled  21 numbered 969-4 and it's titled 949-4, an Alaskan  22 Boundary Tribunal.  23 THE COURT:  It's in the index to Volume 306.  Yes.  24 MR. PLANT:  And it appears there in the index as nine --  25 THE REGISTRAR:  49.  26 MR. PLANT:  And it should be 969?  27 THE REGISTRAR:  Yes.  28 MR. RUSH:  It must be in a sequence, my lord.  2 9 THE COURT:  Yes.  All right.  30 MR. PLANT:  That actually corresponds with our list of exhibits  31 also that the documents should be identified as 969-4.  32 THE COURT:  Dash four.  So marked.  All right.  Thank you.  33 MR. PLANT:  The next item I have on this list is the renewal of  34 our application to examine on commission Mr. Boys and  35 your lordship will recall Mr. Boys was produced for  36 examination some time ago by the Federal defendant and  37 we wish now to renew the application which I made a  38 few days ago to examine Mr. Boys ourselves on  39 commission.  The application was deferred at the time  40 because Mr. Guenther or Mr. Rush wished time to  41 consider their position.  I have an affidavit of Mr.  42 Mackenzie which has been filed and my friends have  43 copies.  It really speaks to just one or two issues  44 that are of some importance.  I think the first point  45 of significane is in paragraph numbered three on page  46 two where Mr. Mackenzie speaks to the fact that when  47 Mr. Boys was originally examined the examination took 23191  Submissions by Mr. Guenther 1 place by consent and  then there are some observations  2 by Mr. Mackenzie with respect to Mr. Boys' physical  3 condition at the time of his original examination in  4 November, 1988.  5 MR. GUENTHER:  My lord, if I may assist my friend.  We don't  6 take the position here that if it is appropriate for  7 the Province to examine Mr. Boys that it's all  8 inappropriate that it be done by way of deposition or  9 commission or that it be done by proposed -- or in the  10 manner proposed by the Province.  We do take objection  11 to the proposition that they should be allowed to  12 examine him at all at this point.  13 THE COURT:  All right.  Thank you.  14 MR. PLANT:  Well, I think I hear my friend saying that he is  15 objecting to our seeking to reopen our case --  16 THE COURT:  Yes, I think he said that.  17 MR. PLANT:  — for this purpose.  But my friend Mr. Guenther —  18 MR. GUENTHER:  No, not exactly.  19 MR. PLANT:  -- is shaking his head, so I better make sure I get  20 his objection just right.  Sorry, I can't sit down up  21 here, but --  22 MR. GUENTHER:  You don't have to.  It's not an objection to  23 reopening and reopening it at this stage.  It's simply  24 a question of the Province in essence having had an  25 opportunity to do that which they seek to do now and  26 in essence are now essentially moving to call a  27 witness or commission a witness a second time and we  28 take the position that that's not appropriate under  29 the circumstances.  And I suppose to be more explicit  30 about our position it is this, and I have reviewed  31 your lordship's comments on the argument as to the  32 admissibility of Mr. Mackenzie's cross-examination of  33 Mr. Boys as against the plaintiffs as well.  It was  34 our position on that argument that the Province was  35 not at liberty to cross-examine a witness tendered in  36 that manner by another defendant.  It was our  37 position, however, that they could have examined him  38 on some of the areas of concern to the Province, not  39 by way of cross-examination.  Now, I did not take your  40 lordship's ruling to be so broad as to be that the  41 Province could not examine a witness such as that  42 commissioned or called by the Federal defendant.  Our  43 position, if that be so, is that, simply put, the  44 Province chose to cross-examine Mr. Boys on issues  45 that they said largely went to an issue between the  46 defendants and now seek again to examine him, having  47 chosen to cross-examine him and in the course of 23192  Ruling        1 cross-examination having been ruled not to  be  2 appropriately evidence against the plaintiffs.  So in  3 essence what they are attempting to do here is to  4 correct that which they chose to do wrongly the first  5 time and our position is that this is not appropriate  6 course to take at this time in this trial.  7 MR. PLANT:  Well, I think then one starts from the premise that  8 we could have examined Mr. Boys at our own instigation  9 initially and --  10 THE COURT:  Well, Mr. Plant, I don't think I need to hear you.  11 I think that the way this matter developed that it was  12 assumed, I think by all before they really had to  13 address themselves to this question, that when Mr.  14 Boys' evidence was taken that the convenient way to  15 get the evidence of each of them was by examining him  16 at that time and while it would have been better for  17 Mr. Mackenzie to have examined in chief and  18 arrangements to have been made beforehand, the fact of  19 the matter is that when we got to trial and we got  20 back into court we -- having been at trial for some  21 time, that the question of what was at issue between  22 the parties became a matter of some debate and it was  23 then ruled with some hesitation that this was -- this  24 was not on the pleadings and an issue upon which there  25 could be cross-examination, but there was no ruling  26 that the evidence wasn't -- wouldn't be admissible if  27 brought forward in a different way than  28 cross-examination.  And I don't -- I've said several  29 times I don't think there should be like a game  3 0 checkers where you have made your move the moment you  31 have lifted your hands from the piece.  I think there  32 is room for redemption in this world and I think a  33 completely understandable mistake of procedure was  34 made.  The evidence could have been obtained in a  35 different way.  I think that I would not preclude the  36 plaintiff from -- I am sorry, the Province from  37 obtaining this evidence even at this late date if --  38 in view of the fact that it could have been obtained  39 and would have been obtained, I assume, in the proper  40 way if the issue had been presented as squarely to  41 parties as it later was.  And I think I'm influenced  42 in part also by the fact that I think -- I recall that  43 the plaintiff was pressing the -- I am sorry, Canada  44 was pressing the plaintiffs for some months to arrange  45 the date for the examination of Mr. Boys and this  46 issue might well have arisen far earlier than it did  47 if the examinations had been conducted at an earlier 23193  Submissions by Mr.  in criticism of anyone.  Plant  1  date.  I don't say that  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. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  Everyone has been busy and it was not convenient to  have the examination till it was, but the matter was  substantially delayed, as I recall it, and I don't  think this further delay is a matter that I should  regard as one of any consequence.  So I'm going to  give you leave, Mr. Plant, to open your case and to  adduce commission evidence of Mr. Boys to be taken on  fairly strict terms, though, and it will have to be  sometime -- I would think it would have to be done if  Mr. Boys is available and it can be done I think  before the 15th of January, so if there is any  difficulty we can deal with the matter when we  reconvene at that time.  Very good, my lord.  Thank you.  That doesn't dispose of your list, Mr.  Plant?  That gets us to item four on my list.  Yes.  The next item under the description of evidence is  Bud Hobenshield.  There has been a development here  since my last correspondence with my friends on  Friday.  I am instructed that Mr. Hobenshield -- well,  I should pause for a moment.  Mr. Hobenshield, as your  lordship will recall, is a resident of Kitwanga.  He  swore an affidavit and the plaintiffs wish to  cross-examine him on that affidavit.  My advice and  instructions are that Mr. Hobenshield will not agree  to attend at -- voluntarily at a cross-examination,  but there is some reason to believe that he would  respond to a court order that he be directed to attend  in Smithers for cross-examination on the affidavit  which he has sworn.  I am prepared to speak to your  lordship as to the importance of his evidence and the  reason why I say it should not be lost.  But in sum  I'm asking your lordship for an order akin to a  subpoena, but not directly a subpoena, because we  don't ask your lordship for an order that he be  produced for cross-examination in Vancouver, but  rather that he be produced for cross-examination in  Smithers in keeping with the earlier arrangements.  Now, I have not yet had an opportunity to speak with  my friends about convenient dates, but it would be out  of the question that we would want this to be delayed  past mid-January.  Again, the aim would be that it  could be done in early January in Smithers.  Now, I  haven't addressed your lordship on the reason why Mr. 23194  Ruling        1 Hobenshield's evidence is important, but I  am not sure  2 what my friend's position will be in response to this  3 application.  4 MR. RUSH:  Our position has been the same throughout.  We want  5 to cross-examine him and if a direction of the court  6 or if a subpoena from the plaintiffs would have  7 sufficed, we would have taken that as well.  8 THE COURT:  Yes.  9 MR. RUSH:  And we are quite happy to make whatever convenient  10 arrangements can be made.  There has been some  11 difficulty, inconvenience between Mr. Hobenshield and  12 Mr. Grant and I think that can be worked out.  We  13 simply want to cross-examine his affidavit.  14 THE COURT:  All right.  Well, I am not disposed to make an order  15 that he be attended to be examined.  I think I should  16 follow the usual practice and procedure in these  17 matters and merely to order that he be -- that the  18 plaintiffs be at liberty to cross-examine Mr.  19 Hobenshield on his affidavit and that it is the  20 responsibility of the Province to make him available  21 and that they have leave, if required, to issue a  22 subpoena for the taking of his cross-examination at  23 the time and place to be arranged at Smithers.  24 MR. PLANT:  Thank you, my lord.  The next item on my list  25 concerns the territorial affidavit of Philip Turner.  26 This was an affidavit that was tendered by the  27 plaintiffs as part of the package of territorial  28 affidavits tendered some time ago.  After the original  29 bundle of territorial affidavits was tendered in  30 keeping I should say with the directions which your  31 lordship gave back in July of 1987, it subsequently  32 became apparent that Mr. Turner's health did not  33 permit him to attend for cross-examination on that  34 affidavit.  Now, after that the plaintiffs prepared  35 another affidavit deposing to the same territory.  36 That affidavit was sworn by Stanley Williams who held  37 the name Gwis gyen.  We had arrangements in place, I  38 recall, to cross-examine Mr. Williams on that  39 affidavit, but unfortunately Mr. Williams was killed  40 in a car accident before that cross-examination could  41 take place.  Now we are in the situation where the  42 affidavit of Mr. Turner is in the record before the  43 court, but has not been cross-examined on.  And our  44 initial position on this is that the plaintiffs should  45 endeavor to produce another affiant as to this  46 territory.  Failing which then either the affidavit  47 should be withdrawn or at a minimum it should remain 23195  Submissions by Mr. Plant        1 in the record with the  rider, as it were, that it  2 stands for whatever it stands for in recognizing that  3 there is no one else around who knows enough about  4 this territory to be able to swear an affidavit about  5 it.  6 THE COURT:  What is the problem with Mr. Turner now?  He's not  7 available to be cross-examined?  8 MR. MACAULAY:  He's quite old and either as we speak or at  9 sometime in the recent past he's been hospitalized.  10 THE COURT:  Yes.  11 MR. PLANT:  My friends have given that advice to us from time to  12 time and I have no reason to doubt it.  So that leaves  13 us in the position where on the basis of my friends'  14 assurances I understand that we are not able to  15 cross-examine Mr. Turner on his affidavit and we are  16 concerned to have an opportunity to test that evidence  17 in some way or other.  18 THE COURT:  Is there any material difference between the  19 affidavit of Mr. Williams and the affidavit Mr. Turner  20 with respect to this particular territory?  21 MR. PLANT:  No.  They were, I think, just about word for word  22 the same.  2 3 THE COURT:  Yes.  24 MR. PLANT:  My understanding was that Mr. Williams' affidavit  25 was produced because Mr. Turner was unavailable.  26 THE COURT:  Yes.  And then Mr. Williams wasn't cross-examined on  27 that.  28 MR. PLANT:  He was not cross-examined on that affidavit.  Now, I  29 have to recall to your lordship that when the matter  30 last arose, that is to say when Mr. Grant some time  31 ago sought to file the Stanley Williams' affidavit on  32 the basis that Mr. Williams had died and that this was  33 somehow necessary evidence, it was drawn to your  34 lordship's attention that Mr. Williams had been  35 extensively cross-examined on commission and when he  36 was commissioned he swore an affidavit which deposed  37 to the boundaries of territories that surrounded this  38 one and so his commission evidence naturally did touch  39 on the periphery or the boundaries of this particular  40 territory.  But at the time he was commissioned we did  41 not have this affidavit of this territory to  42 cross-examine him on.  43 THE COURT:  All right.  Yes.  44 MR. RUSH:  Couple of points.  My friend's advice to the court I  45 think is essentially correct on all matters.  Mr.  46 Turner is infirm.  He's in and out of hospital and  47 that's the difficulty is that he has been hospitalized 23196  Submissions by Mr. Rush 1            several times for lengthy  periods of time and then  2 he's out again.  Our position on this, my lord, is  3 that you have already dealt with it and that's our  4 view with our learned friends.  It was dealt with at  5 Volume 278 at page 20645 and this is what you said.  6 This was during the time that Mr. Grant made a  7 submission to have Mr. Williams' affidavit placed  8 before the court.  This is what you said at line 12:  9  10 "Well, I don't think so, Mr. Grant.  I'm not  11 going to rule on it at the moment, in view of  12 the fact that there may be somebody else who  13 can swear the affidavit.  If there isn't, Mr.  14 Turner's affidavit is before the court and is  15 evidence.  I would have to consider the weight  16 to be given to it in view of the fact that it  17 hasn't been tested on cross-examination, but  18 balanced against that is the reason why it  19 hasn't been tested on cross-examination and I  20 suspect that the weight to be given to it would  21 be affected hardly at all unless there are  22 rather intrinsic reasons why the affidavit  23 should be doubted.  But I don't -- I think I  24 agree with Mr. Goldie that there is no point in  25 oath helping one person's affidavit with  26 another.  Mr. Turner's evidence was sworn to.  27 It's in evidence.  It's here.  It will be  2 8 before us at the time of argument and judgment.  29 And it can be supplemented, if you wish, by  30 another -- another affidavit, if such a person  31 exists who can be cross-examined and that will  32 solve all of problems or some of them.  But I  33 don't think at this time I should merely  34 substitute another untested affidavit for Mr.  35 Turner's.  I don't think you can renew the  36 application if -- well, no, I don't think there  37 is any point in putting Mr. Williams' affidavit  38 in.  I think I should dispose of that."  39  40 So Mr. Williams' affidavit was not tendered.  It was  41 not permitted to be tendered as evidence and Mr.  42 Turner's affidavit was to allow it to be tendered as  43 the evidence that it represents with whatever  44 infirmities it has.  45 THE COURT:  What's the page reference there, Mr. Rush?  46 MR. RUSH:  That's page 20645 or twenty thousand six hundred and  47 forty-five.  And my lord, I -- it's my position you 23197  Submissions by Mr. Rush        1 have dealt with this.  My  friend is raising it  2 essentially to revisit the same issue.  I think that  3 we are no farther ahead than we were back at the time  4 you dealt with it at that time and in my submission  5 the matters should stand as they did at that time on  6 this occasion as well.  7 THE COURT:  All right.  Thank you.  Any reply?  8 MR. PLANT:  Just one point, my lord.  Your lordship made those  9 observations that Mr. Rush has read to you in the  10 context of the application to tender Mr. Williams'  11 affidavit in the circumstances.  Your lordship did not  12 have before you on that occasion the admissibility of  13 Mr. Turner's affidavit in as a consequence or not of  14 the issue which was before your lordship which was  15 whether or not in the circumstances Mr. Williams'  16 affidavit should be put in.  So my own reading of your  17 lordship's comments was that you were disposing of the  18 application to put Mr. Williams' affidavit in and the  19 reasons that your lordship gave in my submission don't  20 necessarily dispose of the admissibility of Mr.  21 Turner's affidavit.  22 THE COURT:  Well, all right.  I think they do, Mr. Plant.  I  23 think that the ruling I made then encompasses this  24 problem.  I can say this, that it's the ruling that I  25 proposed to make subject to being persuaded otherwise  26 with respect to Mr. Hobenshield's affidavit, that it  27 was -- it was in, I think it was in, it had been  28 tendered and I proposed to treat his lack of  29 cross-examination in the circumstances a matter of  30 weight and I propose to do the same thing with Mr.  31 Turner's affidavit.  32 MR. PLANT:  Very good, my lord.  The next item on my list --  33 THE COURT:  Before you go back, Mr. Turner's affidavit has been  34 filed and is in evidence, is it not?  35 MR. PLANT:  I believe so.  36 MR. RUSH:  Yes, it is.  37 MR. PLANT:  I stand to be corrected on that.  38 MR. RUSH:  Yes, it is.  39 THE COURT:  All right.  Thank you.  40 MR. PLANT:  Under the heading 1930 Prince Rupert Forest District  41 Annual Report Extract, what I there am intending to  42 refer to is the documents that were filed as a result  43 of in the first instance the cross-examination which  44 Mr. Adams conducted of Robert Harding at the time that  45 the cross-examinations on the alienations map project  4 6 were taking place.  Mr. Adams tendered some old  47 extracts from old annual reports of the Prince Rupert 2319?  Submissions by Mr. Rush  Harding was unable to identify  1  Forest District.  Mr.  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  MR.  RUSH:  20  21  THE  COURT  22  MR.  RUSH:  23  24  25  MR.  PLANT  26  27  28  29  THE  COURT  30  31  MR.  PLANT  32  33  34  35  THE  COURT  36  MR.  PLANT  37  THE  COURT  38  39  MR.  PLANT  40  41  42  43  44  45  THE  COURT  46  47  MR.  PLANT  them.  We were then asked to go away and see if we  could authenticate them and we were able to  authenticate them.  My friends then sought to tender  them as documents essentially arising in the case and  at the time that they were tendered and admitted into  evidence by your lordship I sought a reservation that  if there were in those annual reports any other  extracts or pages which I considered ought to be added  to provide context or were otherwise relevant, then I  would seek leave to file them.  That's what I have  now.  I have one page, a further page from the Prince  Rupert Forest District Annual Report Operations 1930.  And I have copies of these, but I -- perhaps your  lordship should hear from my friends, because as I  recall, they are prepared to deal with it, but I am  not sure what their position is going to be on the  admissibility of this document.  Under the circumstances, my lord, I don't think we  could take a position in opposition and we don't.  Thank you.  The only thing I am not clear about is whether or not  this page is of one of the page -- is of one of the  reports that we've filed.  I cannot recall that.  My recollection is that the series of reports that  the plaintiffs filed only began in 1930.  The extract  which I propose to file is a further extract from the  1930 annual report.  All right.  And what exhibit number are those  reports?  That I can't -- ah, they are from Exhibit 1125 and I  think the documents that were included under Exhibit  1125 have already been given a capital letter  designations A through N.  All right.  This could be added to the series.  And this is -- would be part of the 1930 which would  be capital A?  There were a number of documents, as I recall,  marked as part of the series which is documented --  which is Exhibit 1125 and my recollection at the  moment is that the series of documents begins with A  and it goes up to N.  Some of those documents are not  annual reports.  Some are.  And --  Well, this can be Exhibit 1125 capital A-l, can it  not?  Ah, yes, very good. 23199  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  Submissions by Mr  MR. PLANT  Rush  1  THE COURT:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  Thank you.  I have just seen the reference.  I have two copies.  My lord, there are some matters on this list.  I  am going to move below item number 7 and I would be  happy to speak to -- well, I won't be speaking to item  number eight, the Barbara Lane documents.  But either  that or item number nine, examination for discovery  questions.  The item number nine is a reference to  some questions which the plaintiffs wish to add to the  reading in of the discovery -- of our discovery, our  examination for discovery of two of the plaintiffs.  My friend Mr. Rush and I reached an agreement on some  additional questions to be read in, but my friend and  I are still at odds with respect to certain additional  questions which my friend wishes to read in and I am  happy to argue their admissibility now, if that's  convenient to your lordship and my friend.  All right.  Well, I haven't -- I have been waiting  for this and have for that reason delayed reading any  of this.  Is it convenient and useful to argue it when  I haven't read it or is it --  Well, my lord, I was going to propose a course of  action on this. I think that this comes down to a  kind of argument that is yes it's in, no it isn't in.  All right.  Frankly, I have reviewed all of the questions and  answers and I think ultimately your lordship will have  to read them and our simple view is that the text --  the test here is a relaxed one and that our requests  are in fact quite modest in relation to the totality  of the discovery.  And we simply ask that you read the  questions and I have the questions --  Do I have a list of them?  If you don't, I can provide you with one.  All right.  I have the questions -- I can give you the  correspondence where my friend and I disagree.  I have  the examination for discovery, the relevant portion of  Mr. Green's evidence and Mr. Williams' evidence and I  also have the passage at the proceedings at Volume 266  where my friend's passages were read into the record  on his behalf, I believe, by the -- you didn't read  them in, but they were read in by the process of just  folding them into the record.  So I have all of those  for your lordship.  All right.  Well, I will -- I think the time has  come when, subject to what Mr. Plant says to read the 23200  questions that the  rovince  is seeking  2  3  4  5  MR.  RUSH:  6  7  8  9  THE  COURT  10  MR.  RUSH:  11  12  13  14  15  16  THE  COURT  17  18  19  MR.  RUSH:  20  THE  COURT  21  22  MR.  PLANT  23  MR.  RUSH:  24  25  MR.  PLANT  26  THE  COURT  27  MR.  PLANT  28  29  30  MR.  RUSH:  31  32  33  THE  COURT  34  MR.  RUSH:  35  THE  COURT  36  MR.  RUSH:  37  38  39  40  MR.  PLANT  41  THE  COURT  42  43  MR.  RUSH:  44  THE  COURT  45  MR.  RUSH:  46  THE  COURT  47  MR.  RUSH:  Submissions by Mr. Rush        1  to put into  evidence and to read the additional questions for  which the plaintiff contends, and I will give you an  answer.  What I am going to hand up to you, my lord, is a  letter from Mr. Adams to Mr. Plant of December 2  outlining what's been agreed to and what remains for  agreement.  Yes.  And secondly, the discoveries of Mr. Green and Mr.  Williams.  And then secondly, a letter from Mr. Plant  to myself indicating what questions and answer are  read into the record and then the record and of where  they were in fact read into the record.  So I can hand  this all to your lordship and --  All right.  Can counsel remind me what is the  exhibit number of the list of questions that Mr. Plant  put into evidence?  The exhibit number?  Yes.  I think the list was marked as an exhibit, as  I recall.  I don't think there is  Well, I don't think so,  an exhibit number,  my lord.  Yes, there  There is.  1146.  Yes, that's right.  Yes, all right.  There is one error  That was the list.  letter of December  Does  in Mr. Adams  2 which Mr. Rush is going to give your lordship  your lordship have a copy of that letter yet?  I'll hand it up to your lordship.  It's page two of  Mr. Adams' letter.  There is an entry under Williams,  the first entry under Williams should be under Green.  All right.  And your lordship can see that.  Is that so marked?  Pardon me?  No, it doesn't, but if your lordship can  look at it and you will see the 440 to 446 reference  should actually be under Green.  That's what you were  referring to, isn't it?  Yes.  All right.  It is now.  Then I can keep all this  material or did you want it back?  Yes.  I don't need it.  After your lordship has perused it.  Well, it seems to me I have my own copies.  I not sure that you have your own copies of our  of 23201  Submissions by Mr. Rush        1 the discovery of Green  and Williams that wasn't read  2 in and that we are proposing to read in.  3 THE COURT:  I wasn't given the full transcripts?  I thought I  4 was.  5 MR. PLANT:  I wasn't here when the discovery transcripts were  6 read in.  7 MR. RUSH:  No, I don't think you were, my lord.  What you were  8 given was the questions and answers as read into the  9 record as interpolated by the court reporter.  10 THE COURT:  Madam Registrar, can you find me the transcripts  11 that were put in or do you think I have them already?  12 THE REGISTRAR:  I will try and find them.  13 THE COURT:  See if you can find them.  They may be downstairs.  14 All right.  Well, then I'll look after that and give  15 you answer as quick as I can.  Is it convenient to  16 take the morning adjournment?  17 MR. RUSH: Yes, I think so.  18  19 (PROCEEDINGS ADJOURNED PURSUANT TO MORNING  2 0 ADJOURNMENT)  21  22 I hereby certify the foregoing to be  23 a true and accurate transcript of the  24 proceedings herein to the best of my  25 skill and ability.  26  27  28  29 Laara Yardley, Official Reporter,  30 United Reporting Service Ltd.  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 23202  Submission by Mr. Plant        1 (PROCEEDINGS RECONVENED  AT 11:30 A.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Well, going back to the matter we were on before, I  5 have a transcript of Sylvester Green which seems to be  6 complete as far as page 66 is concerned -- no, beyond  7 that, 67.  And I have a list of questions that the  8 plaintiff -- the province wishes to put in.  And then  9 there is a transcript of Sylvester William which seems  10 to be complete up to page 66 as well, and then a list  11 of questions.  So is that the totality of the  12 discoveries that the province is putting in, Mr.  13 Plant?  14 MR. PLANT:  Yes.  And your lordship now has the material from  15 Mr. Rush that will identify the disputed questions.  16 THE COURT:  All right.  Where did that go?  17 MR. PLANT:  Oh, I am sorry.  I thought Mr. Rush handed up some  18 material.  19 THE COURT:  Oh, it's here.  Yes, it is.  All right.  Well then,  20 I don't need the transcripts, Mr. Rush.  I have your  21 letter.  22 MR. PLANT:  I am not sure that you need my letter either,  23 because I agree with the questions that are set out in  24 items one and two on page 1 of Mr. Adams' letter of  25 December 2, as questions that I have agreed should be  26 added to those which I have already asked to be read  27 in.  28 THE COURT:  So those two sets of collections -- of questions are  29 agreed by Mr. Plant.  30 MR. PLANT:  Yes.  It's just the questions then identified on  31 page 2 of Mr. Adams' letter which I don't consent to.  32 THE COURT:  Yes, all right.  I'll give an answer as quickly as I  33 can.  Thank you.  34 MR. PLANT:  And I will go back to item number seven on my list  35 of matters to be spoken to.  And this is similar in  36 some respects to item number six.  37 Item number seven, described there as "Tender the  38 balance of the Kitwancool land reserve documents."  39 What I intend to refer to there is the events that  40 arose out of the plaintiffs' cross-examination of Mr.  41 Duffy, the surveyor general.  He was examined on his  42 affidavit in support of the territorial alienations  43 mapping projects.  He was examined out of court, and  44 during that examination he was asked some questions  45 about something called the Kitwancool land reserve or  46 Kitwancool territorial reserve, and he had no  47 knowledge of it.  He was asked to look for documents. 23203  Submission by Mr. Plant 1            We produced documents,  There was an issue about the  2 relevance and/or a claim of privilege to some of those  3 documents.  Your lordship was asked to review the  4 file, and your lordship ordered that certain documents  5 in the file were relevant.  Those documents were then  6 disclosed to the plaintiffs, and one of the documents  7 in that collection was tendered by the plaintiffs and  8 is now Exhibit 1208A, according to my notes.  9 Now, I wish now to tender the other documents that  10 were part of the -- well, the balance of the documents  11 that your lordship ordered to be disclosed as being  12 relevant, and I -- in order to elaborate on that  13 submission, I have to refer to Exhibit 1208A, and I  14 have a copy of the whole bundle for your lordship,  15 including 1208A.  16 Turning to the second page of this bundle, this  17 is a memorandum from A.F. Smith, the Assistant  18 Director of Lands.  This is Exhibit 1208A.  And the —  19 it's a reply to a memorandum from someone in the  20 Department of Recreation and Conservation, and appears  21 to be the Associate Deputy Minister.  And it starts:  22  23 Your letter of December 20, 1974...has been  24 read with a great deal of interest since I am  25 familiar with the Lower Kispiox Valley...  26  2 7 And so on.  28  29 As is so often the case, it would be very  30 helpful if we had more basic inventory  31 information before starting to assess a  32 specific request such as the one presented in  33 the Kispiox Valley Community Association brief.  34 I should mention that a large part of the  35 proposed conservancy area lies within the  36 Kitwancool Territorial Land Claim area.  37  38 And I think that the balance of that doesn't add  39 to my point other than the first line or so in the  40 final paragraph:  41  42 We would be prepared to see the area  43 designated as an integrated resource management  44 study area if such a suggestion were to receive  45 the approval of the Secretariat.  46  47 Now, my submission here is simply that the 23204  Submission by Mr. Plant 1            balance of the documents  which your lordship ordered  2 to be disclosed, were disclosed because they pertain  3 to this Upper Kispiox nature conservancy proposal.  4 And the document which is 1208A, the memorandum that  5 I've been reading from, really doesn't make any sense  6 unless you have some idea of what this Kispiox Valley  7 Community Association brief is.  8 So if you go through the balance of the file, you  9 will see the next item after 1208A is the letter of  10 December 20th, 1974, to which Exhibit 1208A is the  11 reply, and other documents including a memorandum  12 responding to the proposal, a letter of July 4, 1974,  13 and then the proposal itself entitled "The Upper  14 Watershed of the Kispiox River as a Nature  15 Conservancy."  And this is dated 1974 at Hazelton,  16 B.C.  It's for -- appears to be authored by the  17 Kispiox Valley Community Association, the Zoning and  18 Planning Committee, and I'm really now referring to  19 what would be the nineth page in this bundle, which is  20 the title page of the proposal.  21 THE COURT:  Yes.  22 MR. PLANT:  And if your lordship turns to the next page and sees  23 Table of Contents, the heading -- the two headings  24 "Synopsis" and "Introduction", and I just want to  25 refer briefly to one or two points in this proposal.  26 Under the heading "Synopsis" on page 1:  27  28 We, the residents of the Kispiox Valley,  29 are concerned with the future of our community.  30 We strongly feel that the Provincial Government  31 must:  32  33 And then there is a list of the things which the --  34 this proposal, which are the proposals, really.  35 And going on to page 5 of the synopsis, just  36 before the introduction:  37  38 This brief has been compiled and formally  39 approved by the Kispiox Valley Community  40 Association, the local governing body in the  41 Kispiox Valley.  42  43 And it's signed by Neil Sterritt and by Margaret Clay.  44 And that's really all I need to refer to in order to  45 make the point that I have endeavoured to make, which  46 is that if this letter which is 1208A is to make any  47 sense, then the documents which give rise to it ought 23205  Submission by Mr. Plant  Submission by Mr. Rush  1  2  THE  COURT  3  MR.  PLANT  4  MR.  RUSH:  5  MR.  PLANT  6  THE  COURT  7  8  9  MR.  PLANT  10  11  12  13  14  15  THE  COURT  16  17  18  19  20  MR.  PLANT  21  22  THE  COURT  23  24  25  26  MR.  PLANT  27  28  29  THE  COURT  30  MR.  PLANT  31  32  THE  COURT  33  MR.  PLANT  34  35  THE  COURT  36  MR.  PLANT  37  THE  COURT  38  MR.  RUSH:  39  40  41  42  43  44  45  46  47  also to be part of the record.  Is Margaret Clay a plaintiff?  Not to my knowledge, my lord.  No.  But my knowledge is insufficient on that.  Well, I am not sure that I've completely followed  you.  This is a document that had not been produced to  the plaintiffs on the ground of relevance and --  But one quibble with that.  The proposal itself is  actually on the plaintiffs' list of documents, and has  been from almost the beginning of time.  So it was in  the first instance, although the copy that your  lordship has comes from the file which, as I agree, we  originally did not produce.  But the plaintiffs supplied, and I ordered that you  produce for my inspection after some discussion, the  examination of your file on this Upper Kispiox  conservancy proposal.  I don't think it was called  that.  It was called the land reserve, wasn't it?  That's right.  It was the Kitwancool Territorial  Reserve File which contained these documents.  Yes.  So I looked at them and I said I thought there  was only a few of them that were relevant, and this  letter of January 24th is one of them that I said was  relevant, is it?  Yes.  Including -- in fact, the bundle that I've  been referring to comprises the entirety of the  documents which your lordship ruled were relevant.  Yes.  And you now want to put them in?  My friend has -- my friends have put in the first  document.  I see.  At the time they did so, I indicated that I wished  to reserve the question whether others should go in.  Yes.  And I am revisiting that question.  All right.  Thank you.  Mr. Rush.  Well, my lord, I say that if it's my friend's wish to  put in the rest of the documents because, as he says,  nothing makes sense here in this letter of January  24th unless you have the totality of the documents,  then I say yes, I agree with that submission.  But  everything should go in, including the Kitwancool  territorial land reserve.  That this is, in my  submission, a -- a self-serving device on the part of  my friends to put a document in.  And it all arises,  essentially, because we, the plaintiffs, decided -- we 23206  Submission by Mr. Rush        1 found a reference to the  Kitwancool land reserve in  2 Provincial Government documents and wanted to pursue  3 that to determine whether that was relevant.  We were  4 not able to determine that because that was within  5 your lordship's purview.  We did not see the  6 documents.  You disclosed these documents as saying if  7 anything is relevant, this one document is relevant.  8 THE COURT:  Yes.  9 MR. RUSH:  And we -- or not this one document, but this bundle  10 of documents is relevant, and we chose from that  11 bundle what we wanted to put in.  12 Now in my submission, my lord, that if my friends  13 wanted to deal with any of these documents, it was  14 open to them to do so.  They didn't want to.  They,  15 for their reasons, felt that it wasn't important to  16 their case.  However, the only document that makes  17 reference to the Kitwancool territorial land reserve,  18 which is what we consider to be of relevance, is this  19 one of January 24th, '75.  Otherwise, it's dealing  20 with the Upper Kispiox nature conservancy proposal  21 which is not a matter which came out of the  22 cross-examination in its original history.  23 So, my lord, I say that for my friends now to put  24 in the rest of this document, it's simply not open to  25 them to do so, simply in order to fill out this one  2 6 document.  What do they care about that?  And I say  27 that if your lordship is disposed to allowing a full  28 letter record to be before the court rather than this  29 document, then I say two things:  I say firstly, that  30 really the fuller record must comprise of the  31 Kitwancool land claim reserve documents which you have  32 determined are not relevant.  And secondly, at the  33 very least, there is a reference at the bottom of  34 paragraph one -- I'm sorry, the last paragraph of the  35 January 24th, '75 letter, to a map indicating the  36 position of the Kitwancool territory in red.  And I  37 would be very happy to have that map as part of this  38 letter and the rest of the documents to be filed as --  39 to use my friend's language -- in order to fill out  40 the record and to make the document make sense.  41 Because surely, my lord, if his argument is that these  42 other documents need to be admitted for the purposes  43 of making the January 24th letter sensible, then so  44 should the map.  45 THE COURT:  All right.  Do you have a position on this, Mr.  46 Macaulay?  4 7  MR. MACAULAY:  No, my lord. 23207  Submission by Mr. Plant  Ruling  1 THE COURT:  All right.  Any reply, Mr. Plant?  2 MR. PLANT:  Yes, my lord.  My position is that the rationale  3 behind your lordship's ruling was that the Kitwancool  4 territorial reserve was irrelevant, and therefore  5 documents which pertain to it ought not to be  6 disclosed.  However, this document, the document which  7 is 1208A, was disclosed because it referred to this  8 Upper Kispiox nature conservancy proposal.  And in my  9 submission, that in order to make sense of that  10 conceivably relevant matter, your lordship should have  11 the balance of the documents, all of which were  12 ordered to be produced, because they were relevant to  13 that issue, not to the Kitwancool territorial reserve  14 issue.  15 THE COURT:  Thank you.  I do not think that there is any  16 relevance at all in the Kitwancool, so-called,  17 Reserve, which I know from having read the material  18 did not exist.  But I can see some possible relevance  19 in this letter, although I must say I do not find much  20 relevance to it.  However, I do not think that putting  21 this letter in requires the admission of a lot of  22 other material about the so-called Kitwancool  23 territorial reserve.  I would allow you, Mr. Rush, to  24 withdraw this document if you wish, but I would not  25 allow it to be used as a reason to put in this larger  26 volume of material which, in my view, has no relevance  27 at all.  If this letter is to go in, I think the  28 explaining documents based upon the same rule we use  29 with regard to discovery, that is connection, requires  30 this other material to be admitted.  31 But -- I should not press you.  If you wanted to  32 withdraw the document, I would certainly allow it to  33 be done because I am not sure it means much.  But if  34 you do not wish it to be withdrawn, you are welcome to  35 put it in, but I think the other material that Mr.  36 Plant has now tendered must be included as well as  37 explaining what the subject matter of that letter is,  38 which is referenced Upper Kispiox nature conservancy  39 proposal.  40 MR. RUSH:  Well, my lord, I don't intend to withdraw the  41 document.  But I do think that if my friend is  42 permitted to put in this amplifying material, then so  43 should the map be put in, because it's part and parcel  44 of the material.  45 THE COURT:  Well, I don't see anything wrong with that.  The map  46 itself can go in.  47 MR. PLANT:  Yes.  I don't have any objection to that, my lord. 2320?  Submission by Mr. Plant  1  When I reread this  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:  Yes,  of this  what  -- the document which is now 1208A, I couldn't  recall having seen the map in the file.  THE COURT:  Yes.  MR. PLANT:  And that's my only reservation now.  If the map is  in the file, I will produce it and, subject to your  lordship's comments, it will also form part  package.  THE COURT:  All right.  This letter now is exhibit  exhibit is this letter now?  MR. PLANT:  According to my note, it's 1208A.  THE COURT:  Yes.  All right.  Well then these other documents  can be 1208A-1, 2, 3, as the case may be, all subject  to Mr. Plant determining whether that map is  available, and if not, we will have to speak to the  matter again.  This is whose material?  That must be  the one we are keeping?  THE REGISTRAR:  This is a photocopy.  MR. PLANT:  You may have what I've given the Registrar, and I  don't know that Ms. Sigurdson's covering letter on the  front part of the package should remain a part.  But  the first item in the package would be the document  that's already 1208A.  THE REGISTRAR:  Miss Sigurdson's covering letter is 1208.  THE  MR.  THE  MR.  THE  MR.  THE  COURT  PLANT  COURT  PLANT  COURT  PLANT  COURT  MR. PLANT  Yes.  That's right.  Yes, I'm sorry.  And I don't know whether there is a 1208B.  There isn't yet.  All right.  Well then these other documents can be  numbered B, C, and D and E.  I think there is four  there.  And that will -- whatever number we get to if  and when the map is located.  :  Thank you, my lord.  :  Thank you.  (EXHIBIT 1208B - Letter from Mr. Ahrens to Mr. Redel  dd. December 20, 1974)  (EXHIBIT 1208C - Upper Kispiox River Nature  Conservancy Proposal)  (EXHIBIT 1208D - Letter from M. Clay to B. Price dd.  July 4, 1974)  (EXHIBIT 1208E - The Upper Watershed of the Kispiox  River as a Nature Conservancy dd. 1974)  :  My lord, the next item on my list which I wish to  speak to is item ten, and this concerns the 23209  some time  ago  to am  2  3  4  5  6  7  8  9  10  11  THE  COURT  12  MR.  PLANT  13  14  THE  COURT  15  16  17  MR.  PLANT  18  THE  COURT  19  MR.  PLANT  20  21  THE  COURT  22  MR.  PLANT  23  24  THE  COURT  25  MR.  PLANT  26  27  THE  COURT  28  29  30  31  32  33  MR.  PLANT  34  35  36  37  THE  COURT  38  MR.  PLANT  39  THE  COURT  40  MR.  PLANT  41  THE  COURT  42  MR.  PLANT  43  44  45  THE  COURT  46  MR.  PLANT  47  Submission by Mr. Plant        1 application which I made  :nd the  province's statement of defence.  The amendments which  I sought were not responsive to the anticipated final  version of the statement of claim, but rather were  matters that came to our attention as we reviewed the  pleadings from time to time, and we considered that  they needed to be addressed at this point.  Your  lordship acceded to the amendments which I sought in  all but one respect.  And the -- that was an amendment  which I sought to paragraph 38A.  Let me know what document I should be working from.  I'm sorry, I'm going to give your lordship the only  document you'll need.  I have a document loose in the trial record which is  a further amended defence of the province date stamped  August 22nd, 1988.  Now what is that?  That's the —  I think that's the document that --  That you are seeking to amend again?  Yes.  Is your lordship -- if your lordship turns to  paragraph 38A of that defence.  Yes.  Is there an amendment at the end of that paragraph  which is underlined?  No.  All right.  Well then I've got here the correct  further amended statement of defence.  Well, we may have it.  We may have it.  Oh yes,  thank you.  Yes, I ordered this August 22nd, 1988,  defence amended on November 9th, 1989, as to  paragraphs 14 and 15, but I adjourned on -- I'm sorry,  pages 14 and 15, and I reserved insofar as page 16 is  concerned, pending particulars.  Correct, my lord.  I have the reply to your  lordship's direction to provide particulars, and I am  going to ask Madam Registrar to provide you with a  copy.  Has your friend seen these?  Excuse me, my lord?  Has your learned friend seen this?  Yes.  Yes.  The -- at the bottom of page 1 and the top of page  2, the paragraph which is the subject of this  direction --  Yes.  -- is set out, and then the directions.  And our  reply is set out -- perhaps I won't read it, I'll ask 23210  Submission by Mr. Plant 1            your lordship to read it  though, if I may.  2 THE COURT:  All right.  Yes.  3 MR. PLANT:  Now, I am prepared to speak not merely to the  4 adequacy of this reply, but also to the issue at  5 large, whether or not the amendment to paragraph 38A  6 should be granted at this time.  I couch my position  7 in that term -- in those terms, because after we  8 listened to Mr. Rush's submission, when this matter  9 was first raised in early November, we went back to  10 the transcript and to the record of proceedings to see  11 what the basis was for the concern that Mr. Rush  12 identified to you then.  And my position, generally,  13 here, is that the plaintiffs have known for a very  14 long time what it was that this was all about.  And  15 this amendment to the statement of defence clarifies  16 what might, on a very narrow reading of our earlier  17 paragraph 38A, have been a potential problem.  But in  18 fact, everyone has known from -- well, from as far  19 long ago as the examination by Mr. Goldie of Alfred  20 Joseph in January of 1988, about our interest in the  21 B.C. Special Fund and whether Indian bands received  22 monies from the fund and how they were spent.  23 We asked similar questions of Dan Michell in  24 February of 1988, and Dora Wilson-Kenni in March of  25 1988.  In May of 1988, volume 92 of the transcript,  26 May 1st, we applied for an order for the production of  27 B.C. Special documents which were -- we considered to  28 be in the possession or control of band councils.  And  29 to comply with that order which your lordship did  30 make, Mr. Grant -- my friend Mr. Grant requested that  31 Canada produce B.C. Special documents.  And this is  32 what he said at volume 92 page 5835:  33  34 Q  ...that's one of the reasons we are  35 demanding the documents from Canada, so  36 we can focus on this and track it down.  37 As you say --  38  39 Referring to your lordship.  40  41 -- the defendants have raised [the B.C.  42 Special], they have said it's an issue  43 and that's been argued out and I don't  44 think anybody is really disputing that  45 one of the issues before the court is  46 going to be the B.C. Special.  The  47 defendants at least have raised that. 23211  Submission by Mr. Plant 1  2 And then your lordship went on to make the order  3 which Mr. Grant sought, as I recall, saying at page  4 5836 and seven:  5  6 Q  Well, I am going to make an order for  7 production under the B.C. Special,  8 category of this application, but I am  9 going to follow the practice that used to  10 prevail in the Provincial Court in cases  11 of drunkenness and hold the order for a  12 week to give everybody a chance to get  13 out of town and thereby solve the  14 problem.  I have no doubt that a very  15 simple --  16  17 I don't know that it worked that time, my lord.  18  19 I have no doubt that a very simple  20 admission is all that's required in this  21 case, in this connection.  I doubt if Mr.  22 Goldie wants to know how many specific  23 dollars each band received.  I suspect he  24 would be satisfied or he should be  25 satisfied, I think, to say that  26 each year the various bands received, if  27 such was the case, their pro rata share.  28  2 9  THE COURT:  Did I say then that one time Mr. Scott gave what was  30 called a floater to a dog that was ordered to be  31 destroyed, and he gave the dog 24 hours to get out of  32 town?  I thought what I said at the time, you people  33 would go up to Smithers and find the records.  34 MR. PLANT:  Well, we haven't yet had the admission on the B.C.  35 Special.  36 THE COURT:  I see.  37 MR. PLANT:  Whether it's in town or out of town.  And really,  38 the B.C. Special, while it's just one part of the  39 events which transpired as a result of -- or  40 consequent on the 1927 Joint Committee Report, is a  41 pretty important part of the package.  42 And I am not going to take your lordship through  43 the various exhibits and I don't have reference to the  44 particular passages in the evidence of Mr. Michell or  45 Ms. Wilson-Kenni or Mr. Boys or Mr. Mclntyre that all  46 pertain to that.  But the basic proposition is that  47 this issue has been a live one for a long time and 23212  Submission by Mr. Plant  Submission by Mr. Rush  1 there is really not any question either of surprise or  2 prejudice on the part of the plaintiffs which stand in  3 the way of our getting leave to make this further  4 amendment to paragraph 3 8A now.  5 THE COURT:  What I ordered was particulars of the subsequent  6 actions, was it?  7 MR. PLANT:  Yes.  And that's what the particulars endeavoured to  8 do.  9 THE COURT:  Yes.  10 MR. PLANT:  There is the -- most of the references are  11 references to B.C. Special expenditures and decisions  12 about those expenditures.  And there is also in point  13 three, the adoption of the report itself by the  14 plaintiff, and that's at the bottom of page 2 of our  15 reply.  16 THE COURT:  All right.  Thank you.  Any submission on this, Mr.  17 Macaulay.  18 MR. MACAULAY:  No, my lord.  19 THE COURT:  Thank you.  Mr. Rush.  20 MR. RUSH:  Yes, my lord.  21 I think that my friend makes a submission that,  22 "Well, everybody knows and so there is really no  23 surprise," and so on and so forth.  But if that's so,  24 then I think he should be a little more forthcoming.  25 Because I don't think these particulars are  26 satisfactory unless a few words are altered, and they  27 were key words, my lord.  And if you just read the  28 particulars, it says in the fourth line, "After  29 detaining certain actions including administrative  30 actions, consequent to and pursuant to the report, the  31 Indian Act and other laws of Canada."  And my point  32 was always throughout:  What were those actions which  33 at the end of the day my friend said was the type of  34 action which he is saying supports that plea?  35 And then he goes on to say, "such as those actions  36 indicated in."  Now, are those the actions which are  37 the particulars, or is there something else?  And I  38 think it's very helpful to know that this is what is  39 being referred to.  And if that's all that's being  40 referred to, then I'm happy with this, because I think  41 that what that says is those are the actions, and if  42 there are other actions, then I would like to know  43 what those other actions are, because presumably they  44 ought to be in the evidence.  If there are other like  45 actions, then it seems to me my friend, having gone to  46 the trouble that he has in isolating -- and I take no  47 issue with the B part there -- I don't think he has to 23213  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  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  go chapter and verse to the sections.  I can find them  as easily as he.  But if he is referring to other like  actions in the evidence, then I think having done his  listing here, he ought to be in a position to  demonstrate to me what those other examples are.  But my concern, really, is this, my lord: is that  my friend isn't stating, because of a desire to keep  the door open, exactly what it is they are relying on.  And I think he -- he -- I think they ought to say that  now, and they can say that now, and that your lordship  asked for particulars of a detailed nature.  My friend says that we were aware that one of the  issues was the B.C. Special vote.  Well, sure, we  were.  You would have to be blind to the statement of  defence not to know it.  But the statement of defence  as pleaded, 38A, and it isn't -- it wasn't known to us  at the time of the evidence being elicited in  cross-examination, that subsequent actions to 1927  were actions which in fact were thought to be, in the  mind of the defendant, material to 1927.  Now, I simply say that if these are the -- either  the inclusive body of examples, then it should be  said, "Those are the examples that we are relying on,"  and leave it at that.  And I think I would be happy  with that.  If there are other types of evidence which my  friends rely on, I would like to know what those types  of evidence are.  I think that there should be some  kind of enclosure, some kind of certainty here without  these -- what I think are the open-door language, the  terminology of including or-such-as statements.  And  it is for those reasons that I say that this is really  not a fully responsive, although partially responsive  response to the demand for particulars, or their  suggestion that there be -- this section, paragraph,  be particularized.  :  Mr. Plant?  :  Well, as I hear my friend, his -- one of his  concerns is that the list is not exhaustive.  That is  a list which sets out --  :  Exhausting but not exhaustive.  :  Yes.  And I think that's really the point.  The  first point I have in reply is that it's good enough  to give my friend an idea of what we are on about.  But as a practical wrinkle to that, it's based on the  review of the evidence that we were able to conduct  within a moderately reasonable time framework.  And in 23214  Submission by Mr. Plant 1            order to come up with the  things that, as we could  2 recall them, were directly and immediately -- spoke  3 directly and immediately to the point.  There may be  4 other material in the order.  For example, there may  5 be material in the three or so volumes of historical  6 documents which the Attorney General of Canada has  7 filed, which we have not yet had an opportunity to  8 look through.  It will be in the record, the material  9 will speak for itself to that extent, and I think it  10 would be most unfortunate, and entirely unnecessary to  11 require us at this point to basically state in a  12 conclusive way what our argument at the end of the day  13 is.  There is no smoking gun here.  There is nothing  14 that we are keeping in our back pocket that I know  15 about.  We have done the best we could, given the time  16 frame and the circumstances, to assist my friend to  17 point him to the evidence which bears on what we have  18 in mind.  And it's quite clear that my friends have  19 had some idea of what was in mind for a long time.  20 There is no attempt to lie in the weeds here.  We just  21 don't want to slam the door irrevocably in  22 circumstances where it may be foolish to do that.  23 There may be other material which your lordship ought  24 to have in order to consider this issue at the end of  25 the day, material which is already in the record, or  26 will be, as a result of whatever reply evidence that  27 my friends may choose to call.  28 And I submit that this is adequate.  In fact, it  29 is more than sufficiently responsive to my friend's  30 concerns, and it sufficiently identifies the kinds of  31 things that we have in mind.  And it does more than  32 that.  It identifies all of the things that we have in  33 mind that we could come up with in the time frame that  34 we have.  35 Now, there is one qualification to what I've just  36 said.  I do not recall at the moment whether the  37 material identified in points one, two or three  38 incorporates a documentary reference to the -- the  39 vote as it first occurred in the annual government  40 expenditures for Parliament in 1927.  That may be in  41 the material, but I am not even sure if the document  42 exists.  43 THE COURT:  You mean the Parliament proceedings leading up to  44 and including the vote?  45 MR. PLANT:  Well, no.  Simply a record of the vote.  That would  46 presumably be an extract from Hansard or the Gazette.  47 That in the books for Canada, shows in 1927 or 1928 23215  Submission by Mr. Plant  Ruling  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.  THE  RUSH:  COURT  MR. PLANT  THE  MR.  THE  MR.  COURT  PLANT  COURT  PLANT  when it first happened, a hundred-thousand dollars  under B.C. Special vote, that's just a matter of  record.  And I can't recall right now whether such a  thing exists or whether -- whether or not it does or  whether it's in the material.  But I say that my friend's concern with respect  to the point of keeping the door open is all well and  good.  But what we are really up to now, I say, is  giving the plaintiffs and your lordship an indication  of what we had in mind by this amendment with  sufficient detail to make it quite clear what it's  all -- but without foreclosing the possibility that  there might be other material which, when we are  preparing our argument, ought to be put before your  lordship.  All right. Well, as is so often the case, and as I  have sometimes said before, I think there is merit in  what both counsel have said.  I think as a matter of notice, the particulars  that are now tendered are sufficient for this time.  But I think the plaintiff is entitled, as Mr. Rush has  said, to have some finality.  And I think that it must  be -- these must be treated as inclusive or exhaustive  unless at the time the province delivers its written  submission it clearly indicates what other facts it  proposes to rely upon.  And that will give the  plaintiff some chance to amend their argument or to  adjust it not much but some, and will permit both  sides, when they start their argument, to know  precisely what it is, if additional to these matters,  the province propose to rely upon them.  With that caveat, is there any reason other than  what you've already said, Mr. Rush, why the amendments  amended by the defence as proposed on November 9th  should not now be amended?  No.  That was the only submission I had.  Yes, all right.  Then that proposal -- the  defendant -- the defence of the province will be  amended in the form proposed on November 9th, subject  to what I have said today.  My lord, I have the original of that statement of  defence.  All right.  If it would be of assistance for the record.  Yes.  Thank you.  And as a collateral matter to that, we will, in due  course, be filing amended particulars because we have 23216  Submission by Mr. Plant  Submission by Mr. Rush  Submission by Mr. Plant  1 one or two amendments to the consolidated particulars  2 that we've already been -- that we've already  3 delivered, and these particulars will be incorporated  4 into the consolidated particulars.  5 THE COURT:  All right.  Thank you.  6 MR. PLANT:  My lord, item 11 on my list of matters to be spoken  7 to reads, "Amendments to statement of claim".  This is  8 really a matter which I would be grateful to hear from  9 my learned friends about.  10 There was -- there have been discussions and  11 orders have been made with respect to a final  12 statement of claim from the plaintiffs, and I -- my  13 understanding was that certain things were to happen  14 by December 1st, or thereabouts, that we were to get  15 particulars of a certain -- if a certain amendment was  16 to be taken by the plaintiffs.  We haven't received  17 any such particulars, and we haven't received a final  18 amended statement of claim yet.  And I am particularly  19 concerned to know what the timetable is for those  20 events.  Among other things, we would like very much  21 to deliver a final statement of defence, and we can't  22 do that until we see the final version of the  23 statement of claim.  I don't know if my friends are in  24 a position to assist your lordship on that now or not.  25 MR. RUSH:  Your lordship ordered particulars of certain  26 amendments, I think we called it the predecessor  27 language amendment.  We are not in a position to  28 deliver those as yet, so I must say the discussion  29 around the statement, the particulars tendered by my  30 friends has been helpful and maybe that will assist in  31 helping to sharpen our formulation of those  32 particulars.  We are trying to do it in an expeditious  33 way.  34 THE COURT:  All right.  I am not disposed to make any draconic  35 orders fixing time limits or anything, but it must be  36 soon.  I am sure you agree, Mr. Rush.  37 MR. RUSH:  Yes, my lord.  38 THE COURT:  Thank you.  Mr. Plant.  39 MR. PLANT:  I can jump down one item because item number 13 is  40 extremely brief.  41 Item number 13 reads, "Schedule for Oral  42 Argument."  I wish only -- here I wish only to refer  43 to the discussions that have been held and the  44 memorandum of your lordship concerning the timetable  45 for the memorandum of -- for the plaintiffs' oral  46 argument in Smithers.  And as I understand it, your  47 lordship has reserved a courtroom, and the position is 23217  Submission by Mr. Plant  Submission by Mr. Macaulay  1 that the plaintiffs have up to four weeks to adduce  2 their oral argument.  My only note is that the  3 province wishes to have one or two days in Smithers  4 for the purpose of outlining its response and its  5 argument, and I -- it  6 would have to follow directly upon the completion of  7 the plaintiffs' oral argument, and I would hope that  8 it could be done within the four-week timetable that I  9 understand has been set aside for submissions in  10 Smithers.  But if not, I would ask that we have the  11 opportunity to stay in Smithers, in effect, for the  12 purpose of outlining the province's argument, and this  13 would take a day or perhaps two, but no longer than  14 two days.  That's really all that I had to say on that  15 subject.  16 MR. MACAULAY:  I have something to say about that.  17 THE COURT:  Yes.  18 MR. MACAULAY:  I heard of this just recently and I've told my  19 friends, the counsel for the province, that if they do  20 that, we ought to have the same opportunity; that is,  21 to outline -- and I don't know whether we will need a  22 day or two days, but outline the Attorney General of  23 Canada's position.  I don't think one defendant should  24 be --  25 THE COURT:  Well, let me find out what you mean, Mr. Macaulay.  26 Do you mean after the plaintiff has argued -- after  27 the province has argued?  2 8 MR. MACAULAY:  No.  After — we can't all go up there again  29 after the province has come down here, and spend two  30 and a half or three weeks making their full argument.  31 What I'm saying is that if the province seeks that  32 indulgence then the federal defendant ought to have  33 the same opportunity.  34 Clearly, what they want to do is just outline  35 their whole argument, their whole position in the  36 claim area, so to speak.  If they are allowed to do  37 that, so are we, and I don't see why one defendant  38 should be treated differently than another.  And the  39 only way of achieving that is to have us follow  40 immediately on their submission in Smithers.  41 THE COURT:  Well, this raises problems that I haven't given much  42 thought to.  43 MR. MACAULAY:  As I say, this has just came up recently and  44 that's my suggestion.  45 THE COURT:  You will be seeking only to reply to the province's  46 argument and not to the plaintiff?  4 7 MR. MACAULAY:  No. 2321?  Submission by Mr.  Submission by Mr.  Macaulay  Rush  1 THE COURT:  I am trying to —  2 MR. MACAULAY:  No.  We have — we have — we have a different  3 defence and different submissions to raise vis-a-vis  4 the plaintiffs, as well as a submission we have to  5 make regarding the province counterclaim.  6 Now, the -- I don't know what I -- I suppose the  7 province wants to talk about its counterclaim in  8 Smithers.  We haven't been told that, whether they  9 want to confine their day or a day and a half to their  10 defence to the plaintiffs' claim, or whether they want  11 to deal with the -- their claim over, as your lordship  12 has characterized it.  Whatever it is, I don't think  13 that the federal defendant should stand mute in  14 Smithers while the province delivers its message,  15 which is what it sounds like, not a legal argument, a  16 message.  17 THE COURT:  I don't imagine you are in a position to assist us,  18 are you, Mr. Rush, in indicating whether you think  19 your argument will be four weeks or three weeks or  20 part of a fourth week?  21 MR. RUSH:  No.  I am completely unable to say and I wouldn't be  22 able to say until we got a lot closer to that time.  2 3 THE COURT:  Yes.  2 4 MR. RUSH:  But if I may —  25 THE COURT:  Sorry.  Go ahead.  26 MR. RUSH:  My comment in respect to both requests is that I  27 would support them in whatever way they can be  28 accommodated to the scheduling and to the court's  29 convenience.  I would also point out to your lordship  30 that there is another, in my view, outstanding issue  31 as to the locus or situs of the reply.  And it was our  32 early submissions to you that the arguments of the  33 plaintiffs be in Smithers, and although we never  34 really addressed the question of the reply being in  35 Smithers, I do raise it now, and it is a matter that I  36 feel should be addressed at some point by the court.  37 THE COURT:  I don't think it was mentioned when we last talked  38 about this.  39 MR. RUSH:  No, it wasn't the last time we talked about it, but  40 it is in my first submissions, that the plaintiffs'  41 arguments, including reply, be in Smithers.  And I --  42 and your lordship, I think, has dedicated three or  43 four days to the reply.  4 4 THE COURT:  Yes.  45 MR. RUSH:  And I do make that request of you now, if it hasn't  46 been made articulately before, that the reply be in  47 Smithers. 23219  Submission by Mr. Plant        1  THE COURT:  Well, one of the  problems that I have, of course, is  2 the enormous difficulty of moving these exhibits.  3 MR. PLANT:  I think I might be able to assist your lordship  4 in -- on that.  I am virtually certain and I can  5 confirm this over the lunch break, that it would be  6 unnecessary for the purposes of our day or two day  7 introduction to the case to have many or any of the  8 exhibits.  9 THE COURT:  That's no problem though, because they will already  10 be there.  11 MR. PLANT:  Well, yes.  I didn't — all right.  Fair enough.  12 THE COURT:  The plan was to have them moved down here during the  13 off week between plaintiffs.  14 MR. PLANT:  And my point being, if for some reason we had to  15 stretch over that off week, then the exhibits could  16 still be moved down.  Unfortunately, the bodies would  17 have to be moved back up for a day or two at the  18 beginning of that next week.  19 THE COURT:  All right.  Well, I'll have to think about this one.  2 0 I am not able to deal with this at the moment.  I  21 think that I have to try my best to project what state  22 we are all going to be in after four weeks, if it goes  23 that long.  I am not optimistic about that thought,  24 and I am conscious of the difficulties we all labour  25 under, and I'm sure counsel will be giving some  26 consideration to the particular difficulties in which  27 I suffer.  I would not be disposed to risk the early  28 completion of this whole trial by this sort of  29 discussion we are having now, and the consequences of  30 it.  I -- my first thought is that we might be  31 exhausting ourselves by having four weeks in a row to  32 complete the plaintiffs' argument.  To add another  33 week to that is something I wouldn't be prepared to  34 risk, or any part of an additional week.  35 MR. PLANT:  Well, my lord, I don't wish our position to  36 interfere with that aspect of your lordship's  37 concerns.  Our principal concern is --  38 THE COURT:  I wish you hadn't brought it up, Mr. Plant, or we  39 wouldn't have this difficulty.  40 MR. PLANT:  Well, what I mean by that is if it's two weeks and  41 then a week off and then two weeks, that's -- whatever  42 is --  43 THE COURT:  No, Mr. Plant.  There has to be some certainty to  44 these things.  I thought that this was settled and I  45 am troubled by it being reventilated now when it  46 wasn't mentioned before, and I am tempted to say we  47 have set the schedule and that is what it will be.  I 23220  Submission by Mr. Plant  to what counsel say about  these things.  1  have to give some thought  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 am prepared to give it that thought.  I am not very optimistic about it because I think that  it is imposing burdens on us that we ought not to  risk, but I -- it was two years ago, but I must say I  found the experience to be very, very difficult to be  in the situation of being there for four weeks in a  row.  It's -- with so many other things to worry  become and the ambiance being what it's been.  But  I'll give it whatever thought I can and I'll get back  to you as soon as I can.  Thank you, my lord.  The next item --  How much more have you got to go, Mr. Plant?  Well, I have two items on -- left on my list of  matters to be spoken to.  The --  All right.  Well, perhaps we should come back at two  o'clock.  You have got some matters too, Mr. Rush?  Yes.  Yes, all right.  I think we will resume at two.  THE REGISTRAR:  Order in court.  Court stands adjourned until  two o'clock.  (PROCEEDINGS ADJOURNED AT 12:30 P.M.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability.  Toni Kerekes, O.R.  United Reporting Service Ltd.  MR. PLANT  THE COURT  MR. PLANT  THE COURT:  MR. RUSH:  THE COURT: 23221  Submissions by Mr. Rush        1 (PROCEEDINGS RESUMED  PURSUANT TO LUNCHEON ADJOURNMENT)  2  :  Mr. Plant, have you finished your agenda?  :  My lord, the next item on my agenda that I wish to  deal with or to be dealt with is item -- the item that  pertains to the Barbara Lane documents which is item  eight and my colleague Ms. Sigurdson and I believe Mr.  Rush will be dealing with that.  :  Thank you.  My lord, maybe I can take the lead here.  Ms.  Sigurdson and I have been corresponding on the Dr.  Lane documents and it seems like there is relative  agreement on most issues except for two.  And if you  have Exhibit 1206, which is the thin volume of Barbara  Lane's documents before you, I think we can move  quickly to a point of -- a point of dispute.  I can  advise your lordship that the particular volume was  broken into tabs in accordance with various documents  and lists that were requested of Dr. Lane or offered  by Dr. Lane and we had reached agreement on one and in  terms of tab 2.  :  Yes.  I'd like you to turn to that now, my lord.  :  Tab 2?  Yes.  Tab 2.  :  Yes.  Your lordship can ignore the note at the top of the  page, because it's by agreement.  We have agreed to  excise that.  The only issue on tab 2 page three is  the last sentence.  :  Oh, I'm sorry.  I've only got one page on tab 2.  You should only have one page in tab 2.  :  I thought you said --  And it should be page three.  :  Oh, yes, it is page three.  Thank you.  That's a new  one.  First page is number three.  They are organized this way, my lord, because there  are separate lists in each tab, although they were  tendered to me by --  :  All right.  Yes.  -- Dr. Lane in this form.  The only issue between my  learned friend and I is that the last sentence I say  can be included and my learned friend says it is not  necessary to include it.  I say that it goes to the  question of --  :  I am sorry, the last sentence at the foot of the  page or the last sentence in that long paragraph?  3  THE  COURT  4  MR.  PLANT  5  6  7  8  9  THE  COURT  10  MR.  RUSH:  11  12  13  14  15  16  17  18  19  20  21  22  THE  COURT  23  MR.  RUSH:  24  THE  COURT  25  MR.  RUSH:  26  THE  COURT  27  MR.  RUSH:  28  29  30  31  THE  COURT  32  MR.  RUSH:  33  THE  COURT  34  MR.  RUSH:  35  THE  COURT  36  37  MR.  RUSH:  38  39  40  THE  COURT  41  MR.  RUSH:  42  43  44  45  46  THE  COURT  47 23222  the foot  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  Submissions by Mr. Rush        1  MR. RUSH:  No, the last sentence in  of the page.  THE COURT:  "I do not have my position — "  MR. RUSH:  Yes.  Reporting the Nanaimo treaty.  And my friend  says that that I think does not address the  communications that were sought of her in the reports  of the treaties to London.  I think she indicates, if  I am stating her position correctly, that there is no  indication that such a communication was made, there  is no evidence of that and therefore it shouldn't be  included.  My argument is that the character of the  sentence presupposes the existence of such a  communication, but Dr. Lane didn't have it, but  nevertheless was one that she at least took into  account.  Now, there is one other disputed issue and  if you wish me to go to that.  THE COURT:  No.  I think we should deal with this one, if that's  convenient.  MR. RUSH:  That's fine.  THE COURT:  Ms. Sigurdson?  MS. SIGURDSON:  Our submission is that if there is a  communication the document, the citation should be  included, but this adds nothing.  It assumes or  implies the communication exists and to my  recollection there is not one in evidence so far,  although I stand to be corrected on that point.  Absent an actual document the sentence is of no  assistance.  THE COURT:  All it proves is that she doesn't have one if there  is one, but you say it suggests that there is and it  may not be.  MS. SIGURDSON:  Well, that's my concern.  THE COURT:  Why do you want it in, Mr. Rush?  MR. RUSH:  Well, the fact that in my submission --  THE COURT:  Like the mountain, it's there?  MR. RUSH:  Well, Dr. Lane obviously believes that there is such  a communication, but she doesn't have it, and that's  to signal to the court that there is such a  communication and it's not in her possession, that's  all.  THE COURT:  All right.  Well, I think it's innocuous and being  as positive as I can instead of as negative as I can,  let's leave it in.  It proves nothing and I think no  inference could possibly be drawn.  MS. SIGURDSON:  If I can interject.  Mr. Rush has delivered to  me copies of these pages with the parts we agreed  could be excised or blanked out.  MR. RUSH:  Yes, I have those here.  That's if your lordship 23223  Submissions by Mr. Rush        1 wishes to --  2 THE COURT:  Exchange?  3 MR. RUSH:  Yes.  This is tab 2 and that can be inserted.  4 Thank you.  Now, my lord, if you turn to tab 3  5 there is no disagreement on tab 3.  If you turn to tab  6 4, this -- excuse me.  7 MS. SIGURDSON:  Could I -- perhaps I can make my comments as we  8 go along and it might save time.  9 MR. RUSH:  Yes, go ahead.  10 MS. SIGURDSON:  Our position on tab 3 is that we do not accept  11 that all these treaties or documents are responsive to  12 Mr. Goldie's question.  Having said that, though, many  13 of the documents to which we take objection in this  14 context are already exhibits.  We leave for now the  15 relevance to argument.  16 THE COURT:  Yes.  All right.  17 MS. SIGURDSON:  So we have — we would like to tender two  18 documents that we say provides context to one of the  19 documents and I will do that after Mr. Rush is  20 completed, if that's acceptable.  21 THE COURT:  All right.  22 MR. RUSH:  Thank you.  Tab 4, this is page eight.  My friend has  23 a comment with regard to the two introductory  24 paragraphs leading to the lists that are set out at  25 this tab, but I don't take her comment to be that she  26 disagrees that the contents of page eight shouldn't be  27 included.  I will leave her to make that comment.  2 8 MS. SIGURDSON:  My only concern was that when I read the comment  29 at tab 4 I wasn't sure of Dr. Lane's meaning.  If in  30 her comments she is setting out categories of  31 documents and then listing all of the documents that  32 she had in mind, then we take no objection.  If there  33 is any open-endedness, then we do object, and I will  34 be asking for a complete listing.  In my letter to Mr.  35 Rush I simply ask for his assurance that that was a  36 complete list.  37 THE COURT:  Well, I doubt if Mr. Rush can give that assurance,  38 can he?  39 MR. RUSH:  Yes.  I am bound by the language of Dr. Lane's  40 response and I am a captive of it as much as my  41 learned friend.  I can only say that it says what it  42 says there and I am not sure that I would be in a  43 position to argue anything beyond what appears on this  44 page.  45 THE COURT:  Yes.  Well, I think that it can stay the way it is.  4 6 I have Ms. Sigurdson's comments in mind that -- and  47            Mr. Rush's about being a captive to what's here and I 23224  Submissions by Mr. Rush        1 think no injustice will  result from leaving it the way  2 it is.  3 MR. RUSH:  All right.  Now, my lord, the second page at tab 4  4 which is page number nine, the only disputed paragraph  5 on this page is the first paragraph under the second  6 heading beginning "for an assessment."  Everything  7 else is resolved and I can hand you a page to that  8 effect in a moment.  So the paragraph here, again it  9 is Dr. Lane's evaluation of that request and  10 contextualizes what will be the one reference that she  11 includes there under the 1975 Reminiscences of Dr.  12 Helmcken.  I say that what it does is to again  13 identify for your lordship the absence of the material  14 directly on the point and expresses what she relied on  15 as a general information on the issue.  And I really  16 have nothing more to say than that.  17 THE COURT:  Thank you.  Ms. Sigurdson?  18 MS. SIGURDSON:  Mr. Goldie asked Dr. Lane if she could provide a  19 list of documents that she elected to assess this  20 letter for Mr. Musgrave's endorsement.  She said she  21 could.  The response in tab 4 at page nine is not a  22 list of documents nor is it a simple assertion that  23 there was no single document to look at, but goes away  24 and starts talking about general history.  And if  25 there is general history we would like to know what  26 document she had in mind.  If there is no particular  27 document, we are satisfied that that could be  28 included, but not the comment as it is here.  29 MR. RUSH:  Well, in response, my lord, I would simply say that  30 general background must be an evaluation of the period  31 and the exchanges that had occurred without any  32 particular reference necessarily to one or even a  33 grouping of documents.  There is that one entry and to  34 the extent that one constitutes a list, of course that  35 qualifies it.  36 THE COURT:  I don't think this is the sort of thing where one  37 can be sent off to explain the basis for comment or a  38 statement and then having difficulty finding them  39 except for one it has to fall back on general  40 background information.  I would have to read it in  41 the context of what she said and decide whether this  42 is a retreat or not, but if it is then it speaks for  43 itself and if it isn't, then well and good.  But I  44 think that it would be asking too much of a witness to  45 have to specify what is included within general  46 background information.  The doctor has already given  47 us four volumes, I think it is, of historical 23225  Submissions by Mr. Rush        1 documents and I just  don't think that a witness with  the amount of knowledge these people have can be  pinned down that tightly and I wouldn't require this  to be changed.  All right.  My lord, my learned friend and I have  agreed to excise certain other passages on this page.  :  All right.  And I will hand up to you a version of this page  which is a clean version.  So I'd ask you to  substitute that new altered page nine.  :  Yes, I've done that.  Thank you.  Thank you.  And then, my lord, if you'll turn now to  tab 5.  :  This book alone is 1206, is it?  Yes.  :  Yes, all right.  Tab 5?  Yes.  And we have agreed --  :  Oh, I am sorry.  Just a minute.  You were in tab --  :  The first one was from -- was tab 1, wasn't it?  Tab 2.  :  Tab 2.  And the second was tab --  Was tab 4, page nine.  :  Yes.  All right.  And the last one --  :  Oh, yes, I can figure them out by the page number.  Yes.  :  All right.  Tab 8?  No, my lord, tab 5.  :  Five.  Page ten.  And I'll  think that a 'ñ†  2  3  4  5  MR.  RUSH:  6  7  THE  COURT  8  MR.  RUSH:  9  10  11  THE  COURT  12  MR.  RUSH:  13  14  THE  COURT  15  MR.  RUSH:  16  THE  COURT  17  MR.  RUSH:  18  THE  COURT  19  MR.  RUSH:  20  THE  COURT  21  MR.  RUSH:  22  THE  COURT  23  MR.  RUSH:  24  THE  COURT  25  MR.  RUSH:  26  THE  COURT  27  MR.  RUSH:  28  THE  COURT  29  MR.  RUSH:  30  THE  COURT  31  MR.  RUSH:  32  33  34  THE  COURT  35  MR.  RUSH:  36  37  38  39  40  41  THE  COURT  42  MR.  RUSH:  43  44  THE  COURT  45  MR.  RUSH:  46  47  my  friend and I have agreed to  extract a certain portion of that and I am handing you  up now an amended version of that page.  Thank you.  Thank you.  Now, tabs 6, 7, 8, 9 are to remain as  they presently are and there is a second part to this  volume which begins a new series of tabs and that's at  part two, tab 1, and we've agreed to take out the  cover letter which is at tab 1.  So if you'll just  take that out, my lord, and that will be excluded.  Okay.  And the rest of the volume is to be -- is to remain  as is .  Thank you.  All right.  And I think my learned friend wishes to speak to two  documents which she sought to tender as part of this  discussion. 23226  Submissions by Ms. Sigurdson        1  THE COURT:  Thank you.  2 MS. SIGURDSON:  There is a letter referred to in the list at tab  3 3 from Sir John A. MacDonald to Joseph Trutch dated  4 April 9, 1874 and the document itself is found at part  5 two tab 1.  We seek to tender two letters that --  6 THE COURT:  Is this the letter of the — I can never figure  7 these things out.  1874 04/09, whatever that is.  8 MS. SIGURDSON:  Yes.  April 9, 1874.  9 THE COURT:  That's April 9, and that's the one you're talking  10 about?  11 MS. SIGURDSON:  Yes.  I have two letters here.  The first is  12 from Joseph Trutch to Sir John A. MacDonald dated  13 March 26, 1874.  14 THE COURT:  Is there a problem with this, Mr. Rush?  15 MR. RUSH:  No, there is no difficulty with this.  16 THE COURT:  All right.  Thank you.  And should it most  17 conveniently be put with this document?  18 MS. SIGURDSON:  That would be my suggestion, my lord.  19 THE COURT:  Yes.  All right.  20 MR. RUSH:  Which one does it go?  21 MS. SIGURDSON:  Part two tab 1.  22 MR. RUSH:  Part two tab 1.  23 MS. SIGURDSON:  Is the document itself.  The document, my lord,  24 is referred to at tab 3 of part one.  2 5 THE COURT:  Yes.  26 MS. SIGURDSON:  In a list.  2 7 THE COURT:  Yes.  28 MS. SIGURDSON:  The document itself appears at part two tab 1 —  29 pardon me, part two tab 2.  Thank you.  And the second  30 letter in the bundle I have given you is --  31 THE COURT:  All right.  32 MS. SIGURDSON:  — a letter from Mr. Trutch to Sir John A.  33 MacDonald of May 25, 1874.  34 THE COURT:  Where was that list again?  Oh, yes.  I have got it.  35 And what is the date of this other letter?  36 MS. SIGURDSON:  There are two letters, my lord.  The first one  37 is March 26, 1874.  Oh, pardon me, the date of the  38 letter that these relate to is April 9, 1874.  It is a  39 letter from Sir John A. MacDonald to Joseph Trutch.  40 THE COURT:  It's the same letter.  41 MS. SIGURDSON:  And there are two letters between the same  42 parties but different dates that I seek to tender.  43 THE COURT:  Oh, all right.  So they will both go into tab 2  44 then.  45 MS. SIGURDSON:  Yes.  46 THE COURT:  The second part of this document.  Yes.  All right.  47 I am confused.  The document you handed me first has 23227  Submissions by Mr. Rush        1 three parts to it.  Is  that what it should be?  2 MS. SIGURDSON:  The first two are the original and a typescript  3 or a transcript of the letter of March 26, 1874.  4 THE COURT:  All right.  Yes.  5 MS. SIGURDSON:  The third item is the second letter.  It is from  6 Joseph Trutch to Sir John A. MacDonald of May 25,  7 1874.  8 THE COURT:  Yes.  All right.  They will all go in, then, as part  9 of the second tab 2 of 1206.  Thank you.  10 MR. RUSH:  Thank you, my lord.  Now, I'm going to be addressing  11 a new issue and it's now a departure from the  12 Province's list of items.  And I'm seeking to tender  13 certain volumes of documents at this stage and I'm  14 going to hand up to your lordship three volumes.  15 THE COURT:  Your friends have seen these?  16 MR. RUSH:  Yes, they have.  Now, I will deal with those and I'm  17 going to hand up two more volumes which I'd like to be  18 dealt with in a different category, if I may.  Now, my  19 lord, if I can deal with the set of the first three  2 0 that I handed up to you.  There are two eight and a  21 half by 14 sized binders and one three-ringed binder  22 eight and a half by eleven.  They are marked volumes  23 one, two and three and they are entitled Treaties and  24 Laws 1607 to 1789 and Treaties and Agreements 1850 to  25 1989.  Now, these are being tendered now by the  26 plaintiffs as additions to the collections of  27 documents tendered as exhibits in the proceedings.  28 Your lordship has already expressed the view that such  29 documents may be tendered after the close of evidence  30 of a witness and this you stated during the course of  31 argument made when we tendered the Barbara Lane  32 documents and your lordship may recall that exchange  33 or you perhaps may not.  But if you don't I'd like to  34 hand up to your lordship the passage.  Now, I just  35 direct your attention, my lord, to pages 22385 and if  36 you look to the court's interjection at line 25 your  37 lordship will see the following:  38  39 "But we don't have that problem, because I am  40 presently of the view that they can go in as  41 part of your addition to the collection if you  42 want to put them in and it isn't a question of  43 consequences resulting from Mr. Goldie asking  44 for the documents.  Now, I haven't heard Mr.  45 Goldie on that part of it.  But it seems to me  46 that, again I come back to the analogy of the  47 cheque again, that in a case as massive as 23228  Submissions by Mr. Rush        1 this, I think you  can supplement the collection  2 by further documents in the same general  3 classification as the collection and then it  4 becomes a question if you do, that Mr. Goldie  5 might be able to further cross-examine Dr. Lane  6 on those documents."  7  8 Now, that was within the context of that particular  9 discussion.  You returned to this issue on the  10 following page, but I think it's simply a repetition  11 of the position taken by your lordship.  And I take  12 the principle to be that where any of the parties seek  13 to add to the collection of existing documents that  14 were addressed in the evidence either viva voce or by  15 reference to the documentary record that's been filed  16 as part of that witness' evidence or cross-examined  17 upon, that that party may introduce further documents  18 by way of adding to the collection of those documents.  19 And I think a case in point is the -- is the example  20 of Ms. Sigurdson adding to the collection of documents  21 of exchange between Sir John A. MacDonald and Mr.  22 Trutch.  The documents that I am seeking to tender  23 here in the first volume, Volume 1, which is a -- the  24 large volume, these are all ancient documents and they  25 all come from the same source, which is a source which  26 has been disclosed, and this is from a collection of  27 treaties by the general editor Eldon Vaughan and you  28 can see that by reference to the index and what this  29 is is a collection of the some of the conferences,  30 councils and deeds from early American Indian  31 documents, which is the name of the volume, Treaties  32 and Laws, and they run from 1607 to 1789.  And, my  33 lord, the Vaughan document was disclosed under  34 plaintiffs' number 3930.  Now, this collection  35 includes early American treaties, conferences,  36 councils and deeds of land between representatives of  37 European powers including Great Britain and the  38 colonies of North America and the Indians in those  39 colonies and in those particular areas.  And they  40 range from the early Dutch deeds with the Indians  41 from -- the earliest one I think there is 1629 on the  42 east coast of North America to the treaties with the  43 Six Nations in the 1740s and 50s and then through to  44 the Treaty of Lochaber in 1870.  Now, we say that  45 these documents are relevant to showing the historical  46 treaty-making process proceeding, leading up to and  47 founding the basis of the Royal Proclamation and after 23229  the Proclamation.  A  number of  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  Submissions by Mr. Rush        1  treaties before and  after the Royal Proclamation have been tendered as  part of Mr. Morrison's collection and they were also  tendered -- or referred to in part by Dr. Greenwood.  Now, we are tendering these to fill out the -- that  collection of documents of Mr. Morrison's.  Now, I  want to point out as well, my lord, that the treaties  in the second volume, this is in a sense a second  listing of these treaties and they run from tab 1 to  17 and except in the second volume tab 18, there is a  report of a select committee on aboriginees, the  official report of 1837, they are all treaties and  documents.  Now, my lord, these documents have been  made in our submission particularly relevant by the --  and this is really, if I can put it this way, an  auxiliary or supporting point on the argument, by the  submission that Mr. Goldie made in his opening.  And  I'd just like to hand up a copy of that to your  lordship.  What I'm doing here, my lord, is referring  to Mr. Goldie's opening in Volume 250 at page 18454  and the focus by the Province on the question of  treaty making was particularly appropriate.  He says  at 55 —  Is that the first or the second page?  That's 18455.  That's the first page.  I can't see the numbers.  They have been stapled  over.  So is it the first or the second page?  It's the first page.  "I noted that when British Columbia became a  Province of Canada these powers of reservation  and disallowance were vested in the Dominion.  And what is possibly one of the most important  aspects of the case in the constitutional  sense, British Columbia lost the competence to  enact legislation in respect of Indians as  Indians.  And that is, of course, as a result  of section 91."  And then he goes on to say:  "There have been suggestions from time to time  that British Columbia is somehow unique in not  having concluded land cession treaties with  Indian peoples in the province.  That  uniqueness, so-called, is simply not so.  By way of illustration, my lord, I have put  THE COURT  MR. RUSH:  THE COURT  MR. RUSH: 23230  Submissions by Mr. Rush        1 up on the board,  and it is rather small  2 scale .... map."  3  4 And what my learned friend did was to place a copy of  5 a Department of Indian Affairs map as of October of  6 1977, apparently demonstrating the treaties that had  7 been entered into with Indians in Canada.  He goes on  8 to discuss that at the bottom of that page, taking a  9 position that in fact there were areas of Canada in  10 which there were -- large areas in Canada in which  11 there were no treaties covering that particular land  12 mass.  And they he goes on at the bottom 47:  13  14 "Now, of course, British Columbia has been  15 constitutinally incompetent to make such  16 treaties since 1871.  17 So I simply say that the constitutional  18 observations made in May 1987 are as relevant  19 now as they are then.  And they continue, as I  20 say, to be relevant.  They are particularly  21 relevant when, in the intervening period of two  22 years we come to consider the nature of the  23 plaintiffs' claims.  24 It was then and is now a claim of ownership  25 and jurisdiction."  26  27 And he goes on touching on that issue.  But I say that  28 Mr. Goldie clearly focused in on the extent of the  29 treaty making -- the extent of the treaty making in  30 the land mass which is now Canada and I think that  31 that generates the issue of the pre-existence of the  32 geopolitical reality of Canada and the post  33 confederation political land mass of Canada and the  34 treaties which were entered into prior to that time  35 and the treaties which had been entered into since  36 that time.  Now, apart from Mr. Goldie's conclusions  37 which are contained there, of course which we take  38 issue with, Mr. Goldie placed precolonial and colonial  39 and post confederation treaty-making history directly  40 in issue.  And it is essentially to these issues that  41 we seek to tender these volumes as well.  And I say,  42 my lord, and I am going to direct you to the third  43 volume now, that what is contained in the third volume  44 are the -- there are four tabs and they -- these  45 contain firstly at tab 1 the treaties of Canada with  4 6 the Indians. The volume by the Honourable Alexander  47 Morris of 1880 which contain a number of treaties, and 23231  Submissions by Mr. Rush        1 I should say the numbered  treaties except for two, as  2 well as the Selkirk, Robinson and Manitoulin Island  3 treaties negotiated in Ontario.  The documents which  4 are at tabs 2, 3 and 4 are the comprehensive land  5 claims agreement in principle between the Council for  6 Yukon Indians and the Government of Yukon in May 1989.  7 The agreement in principle between Canada and the Dene  8 Nation of the Northwest Territories of September of  9 '88 and the agreement between the Nishga Tribal  10 Council and Canada in December of 1988.  11 Now, I say firstly, my lord, that the question of  12 the process of treaty making, the actual negotiated  13 treaties in the post confederation period was a  14 subject of evidence of Dr. Lane, Dr. Galois and Mr.  15 Sterritt.  Indeed, while I don't intend to into it  16 fully, Mr. Sterritt referenced the document in all  17 fairness being the position of the office of Native  18 claims policy on the treatment of Indians and that is  19 referenced as Exhibit 615.  You will also recall that  20 Treaty 8, which is one of the numbered treaties and  21 not in the Morris collection, and its adhesions were  22 tendered as part of Dr. Lane's evidence.  And I say  23 the comprehensive lands claims process and the role of  24 the ONC was addressed by Mr. Sterritt and by -- well,  25 through several documents relating to his evidence and  26 the Federal defendant, as has been evident throughout  27 some of the exchanges between counsel, has sought to  2 8 lead ONC documents dealing with comprehensive claims  29 submitted to that body as part of its case.  30 Now, I say, my lord, that these documents are  31 admissible now and they are admissible under your  32 lordship's ruling.  Now, I should address specifically  33 the documents that are contained in the two simply  34 marked volumes, Volumes 1 and 2 which I will redefine  35 as Volumes 4 and 5 in due course as part of this.  36 MR. PLANT:  I wonder -- are you moving on to the treatises?  37 MR. RUSH:  Yes.  I simply want to advise the court what I have  38 done here, and if there is a problem with dealing with  39 it now, then we can touch on that.  What's contained  4 0 in the two additional volumes simply marked one and  41 two are a number of treatises, all of which -- all but  42 four, as I count them, I have given notice to my  43 friends and which have been disclosed on the lists  44 and/or have been referenced in as footnotes to either  45 Dr. Greenwood's or Mr. Morrison's evidence.  These are  46 treatises that we seek to add to the collection of the  47 documents which are outstanding.  In some cases, my 23232  Submissions by Mr. Plant        1 lord, you'll notice if  you look at the index to the  2 Volume 1, B. Trigger, "Natives and Newcomers."  Mr.  3 Trigger's work has been periodically referred to and  4 pieces of that have been put into evidence, where the  5 evidence of Mr. Jennings, for example, F. Jennings,  6 "The Invasion of America" likewise has been referenced  7 on several occasions and I believe so has tab 8, "The  8 Covenant Chain Confederation."  And so we are seeking  9 to add these documents to that collection of treatises  10 that your lordship ought to take into account as part  11 of the plaintiffs' evidence.  12 Now, I can say, however, that in perusing this  13 list, that there are four of these treatises which I  14 had not previously disclosed, and if this presents a  15 problem then I am happy to have the whole matter stood  16 down.  They are tab 4, the de las Casses, the  17 document.  They are the B. Johansson "Forgotten  18 Founders," tab 9 and the — 11, C. Johnson, "The  19 Valley of the Six Nations" and as well as the Rochan  20 "Father and Children" tab 13.  And I will be seeking  21 in due course, if it's a problem of notice, to have  22 those tendered as part of the documents.  So that's my  23 submission.  I'd like these to be tendered now.  And I  24 don't know what my friends' positions are.  They  25 are -- characteristically I would expect them to  26 oppose.  27 MR. PLANT:  My lord, I want to deal first if I might with the  28 three-volume collection of treaties.  My first comment  29 is really a question which perhaps my learned friend  30 can answer.  That is to find out whether these  31 documents are being tendered as part of the  32 plaintiffs' case in chief or as part of their case in  33 reply, that is to say their rebuttal case.  I asked  34 that question, I was prepared to ask that question  35 before my friend began.  I ask it again now because  36 nothing that my friend has said has enlightened me on  37 that, because he says firstly as to the treaties that  38 these are simply additions to collections of documents  39 already tendered as exhibits in the proceedings and  40 then in support of his argument for their general  41 admissibility and relevance he refers to Mr. Goldie's  42 submission which, of course -- Mr. Goldie's opening.  43 That second observation suggests to me that he's  44 replying to the Province's case, in which case these  45 documents are being filed as part of the plaintiffs'  46 rebuttal.  Whereas, the first proposition suggests  47 that they are being filed as part of the case in chief 23233  Submissions by Mr. Plant        1 and my response to my  friends' submission depends on  2 which of the two positions he's taking.  I really  3 can't say more without knowing which of the two it is.  4 MR. RUSH:  The first.  5 MR. PLANT:  Well —  6 THE COURT:  I am sorry, the first being that there —  7 MR. RUSH:  It's part of the plaintiffs' case and adding to the  8 collection of documents.  That's correct.  9 THE COURT:  All right.  10 MR. PLANT:  Then I suppose my general problem is that these  11 documents -- I have my friends' general statement of  12 whose evidence they are seeking to add to now.  I do  13 have a concern.  I say that generally speaking it's  14 not appropriate to file such a mass of documents so  15 long after the witness has left the stand.  Mr. Rush  16 referred to a couple of documents which my friend Ms.  17 Sigurdson has tendered as exhibits just a few nights  18 ago and that was a situation where, if Dr. Lane had  19 had the information when she was in the witness box  20 that Mr. Goldie was seeking, then Mr. Goldie would  21 have responded then and there by putting those two  22 extra documents into the record.  Here we have the  23 situation where some months, if not a year - I am not  24 sure what the sequence is - after some of these  25 witnesses have given evidence, we are faced with this  26 additional volume of material, and it goes -- it  27 goes -- at this point I think I have to say that my  28 concern rises to an objection when -- I refer to  29 another point which is of the three volumes of  30 treaties, our work indicates that there are eight  31 treaties that were referred to in the evidence of Mr.  32 Morrison, so the balance of the documents are new.  33 Now, what -- the problem comes here, my lord,  34 because both Mr. Morrison -- well, Mr. Morrison in  35 particular was tendered as an expert to assist your  36 lordship in selecting relevant documents.  His  37 opinions weren't, generally speaking, admitted and he  38 didn't file an opinion report.  So what is it that Mr.  39 Morrison was doing to assist your lordship?  And I  40 think here I can refer your lordship to -- and I won't  41 ask your lordship to get the volume out, but at Volume  42 222, page 16149 of the transcript, Mr. Morrison was  43 being led in chief by Miss Mandell and the question at  44 line 21:  45  4 6 "Q  And were the documents which we've already  47 referred to from tab 1 to 19 a selection of 23234  Submissions by Mr. Plant        1 documents  which -- which was done by you  2 with respect to some of the major issues of  3 this period as you understood them?  4 A   Yes, it's a selection from among -- there  5 are an enormous number of historical  6 documents from the period and I selected  7 ones which I felt were important.  There  8 are many, many documents."  9  10 What the plaintiffs are doing now by saying that all  11 of these documents pertain to the -- or many of the  12 documents in Volumes 1 to 3 pertain to the evidence of  13 Mr. Morrison is that they are impugning Mr. Morrison's  14 credibility.  Mr. Morrison says here are the documents  15 which I'm bringing before your lordship.  I as an  16 expert in these matters have selected documents which  17 I consider to be important.  That's all he could do to  18 assist your lordship.  And now we're getting three  19 volumes -- well, really it's Volume 1, and to some  20 extent Volume 2, that pertain to the Morrison  21 evidence, which casts doubt on Mr. Morrison's  22 assertion that he had already performed the selection  23 procedure.  So in that respect I do have a concern  24 that rises to an objection on the issue of treaties.  25 We obviously don't have the opportunity now to  26 question either Dr. Lane or Mr. Morrison or Dr. Galois  27 about any of these documents.  And there is some  28 potential for hardship in that regard.  But I don't  29 make too much of that.  30 I do, though, have two other general comments.  31 And the first is that we have Mr. Goldie's comment  32 in -- his opening in mind.  You will recall that Mr.  33 Goldie was referring to treaties in Canada and the  34 treaties based on my review, the treaties in these  35 Volumes 1 and 2 don't appear to be treaties made in  36 Canada.  By and large appear to be treaties made in  37 the United States or what is now the United States.  38 So we're really opening up -- as I understand it we're  39 opening up new ground here at what I think is a fairly  40 late date to be doing it as part of the plaintiffs'  41 case in chief.  But when we come to Volume 3, these  42 land claim agreements that are tabs two, three and  43 four, frankly I don't see what these have to do with  44 the case at all.  This is the Government of Canada  45 entering into a land claims agreements in 1988, 1989.  46 There are agreements in principle.  They are made and  47 have nothing to do with the Province of British 23235  Submissions by Ms. Koenigsberg        1 Columbia so far as  I can see or with any of the  2 plaintiffs other than the framework agreement between  3 the Nishga Tribal Council and what -- and what use we  4 are supposed to make or understand will be made of  5 land claims agreements being made in 1988 and 1989  6 escapes me.  So I do take particular objection to tabs  7 two to four of Volume 3 on the basis of relevance and  8 I do have a concern with respect to the question of  9 how this tendering of documents now can -- what sense  10 are we to make of the evidence of Mr. Morrison when  11 the whole basis on which he was called and the only  12 thing that he did for your lordship as an expert was  13 to select some documents which he considered to be  14 important and we now find that his selection was  15 insufficient, inadequate and incomplete.  Those are my  16 submissions.  I prefer, if I might, just to deal with  17 that issue first before dealing with the treatises  18 issue.  I think that those other two volumes raise  19 different concerns.  20 THE COURT:  All right.  Thank you.  Mr. Macaulay or Miss  21 Koenigsberg?  22 MS. KOENIGSBERG:  I'll be brief, my lord.  I find a difficulty  23 in dealing with this large amount of material at such  24 a long -- well, actually in -- I think it was sent  25 over to us perhaps at the end of the Province's case  26 or at the beginning of our case and it becomes  27 difficult to know what to do with it essentially.  The  28 documents on their face on the rulings that your  29 lordship has made are admissible.  They are ancient  30 and probably archival or from an institution, so  31 that's not the difficulty.  The difficulty is how do  32 we reply to it in the sense that we are now at the end  33 of our case, we hope, and we don't have a right of  34 rebuttal.  And it's a massive job to now go through  35 this material and determine if there is something else  36 that your lordship should be looking at, because we  37 are dealing with some slightly new departures.  We are  38 not dealing with the filling out of a small point  39 here.  We're talking about the relevance of large  40 numbers of international treaties -- or rather  41 treaties outside Canada.  And in the case of, for  42 instance, the land claims agreements, again it's a new  43 wrinkle, if you will, perhaps large enough to make a  44 pleat, as to what we do in terms of dealing with  45 whatever the submissions would be that would follow  46 from that.  And on top of that, I have a real concern  47 about the land claims agreements which in fact follow 23236  Submissions by Mr. Rush        1 upon the negotiations, if  you will, from the land  2 claims policies.  And you'll be hearing about the  3 restrictions, if you will, of produceability and  4 relevance when we -- I hope this afternoon when we get  5 to the ONC documents.  But the -- it's very clear and  6 the evidence is already before your lordship that  7 those negotiations and the settlements are without  8 prejudice and they have nothing to do with the issues  9 before your lordship.  They are a separate process  10 that has gone along on a different track, and their  11 only relevance in this trial has to do with reputation  12 evidence, if you will, and the fact that claims have  13 been made by adjacent Indian groups.  So here we are  14 now with a Nishga agreement in principle, not  15 concluded, and that follows on the process which was  16 entered into on a without-prejudice basis and that is  17 part of the policy of the Federal Government and it  18 was clearly put in place not only without prejudice,  19 but on the clear understanding that it was without  20 regard to legal liability.  So I have a great deal of  21 difficulty with what can be made of and what in fact  22 we should even be doing with other documents which may  23 be relevant, if those are relevant.  So I would object  24 on those grounds.  And I repeat, I don't object on an  25 admissibility ground technically, but I certainly -- I  26 think that it is inappropriate to advance major  27 points --  2 8 THE COURT:  Well, some of them are not ancient documents.  29 MS. KOENIGSBERG:  Well, certainly not the Nishga.  The land  30 claims agreements fall into a different category.  And  31 even if they were technically admissible by proof, and  32 we wouldn't, I wouldn't think, put the plaintiffs to  33 that proof, technical proof that is, but I can't see  34 what the possible relevance could be particularly in  35 light of the process, the acknowledged process from  36 which those agreements arrive.  37 THE COURT:  Thank you.  Mr. Rush?  38 MR. RUSH:  There are different types of objections taken here,  39 my lord.  To answer Mr. Plant, if Mr. Morrison had not  40 been called, would his documents have been any less  41 admissible?  I think it was evident in the rulings  42 that your lordship made that those documents were  43 admissible and were usable in argument notwithstanding  44 the witness.  In fact, your lordship urged upon us  45 that there was an alternative course of action  46 available to counsel.  47 THE COURT:  Well, indeed Mr. Goldie did.  He elected to put his 23237  Submissions by Mr. Rush        1 documents in without a  witness.  2 MR. RUSH:  And precisely.  And not just electing to put  3 documents in without a witness, but electing to leave  4 Mr. Morrison's evidence untouched in cross-examination  5 And by a particular choice on his part of the  6 appropriate way to proceed with regard to documents.  7 So I think it's -- the tendering of these documents as  8 part of that collection is -- says nothing about Mr.  9 Morrison's selection, but it says something about  10 the -- what counsel may make of the additions to  11 documents available to that collection.  And my lord,  12 I say that the documents are relevant to the question  13 of what the Royal Proclamation says on its face to be  14 the policy of the treatment of Indian and Indian lands  15 as a matter of Crown's statement at that time, of  16 Crown policy at that time.  It also -- the post -- the  17 post Proclamation documents as well in my submission  18 state the expression in treaty form of the, if you  19 will, the passing into being of the principles of the  20 Royal Proclamation through those treaties.  21 THE COURT:  Well, Mr. Rush, when you find yourself in a position  22 like this you cast about for some legal shorthand to  23 describe the situation or some pigeon hole of the law  24 underwhich something can be placed or some principle  25 you can fall back on.  And what I'm troubled about  26 here more than anything at the moment, although it's a  27 new problem to me, is this question of the time when  28 you do this, your friends have heard your case and  29 they have opened their case and they have presented  30 their evidence.  And if it was a question of adding  31 documents which have been mentioned by witnesses or  32 are connected with sufficient proximity to others and  33 it was a matter just of supplementing the list that  34 you had already made and completing the list you have  35 already made, I would view it differently.  But it  36 seems to me that the very brief exposure I've had to  37 these cases -- or these documents, rather, suggests  38 that it's a vastly expanded area of investigation and  39 Miss Koenigsberg mentioned that and I forget what  40 number she said, but something like X treaties had  41 already been mentioned in the Morrison documents, I  42 think she said, or something of that kind, and is  43 there not a difference between that and the rest of  44 your now tendered collection?  Because there is --  45 seems to me that there is even in a wide range of  46 cases like this there is the basic understanding that  47 the plaintiff put their evidence in and then the 23238  Submissions by Mr. Rush        1 defendants put their  evidence in and the plaintiff  2 makes a reply.  And the plaintiff in reply is  3 precluded from bolstering its case in chief.  It has  4 to be something that arises for the first time in the  5 defence.  My first reaction is that a lot of these  6 documents don't meet that test.  But if you can  7 persuade me -- you can persuade me otherwise, I am  8 sure perhaps we should do that after we break.  9  10 (PROCEEDINGS ADJOURNED PURSUANT TO AFTERNOON RECESS)  11  12 I hereby certify the foregoing to be  13 a true and accurate transcript of the  14 proceedings herein to the best of my  15 skill and ability.  16  17  18  19 Laara Yardley, Official Reporter,  20 United Reporting Service Ltd.  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 23239  Submission by Mr. Rush 1            (PROCEEDINGS RECONVENED AT  3:15 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Rush.  5 MR. RUSH:  Yes, my lord.  I make these points:  6 Firstly, with regard to the notice to my friends,  7 that they were given notice of our intention to  8 proceed with tendering these documents on November the  9 23rd before the end of the province's case.  10 The second thing, is that the objections to the  11 extent that they are objections -- and I would like  12 you to evaluate what I consider to be the qualified  13 observations of the defendants here with regard to  14 these documents.  The only objection that I really  15 heard in the arguments was one from Miss Koenigsberg,  16 and that is that it's too big a task to deal with it  17 at this point, which I -- with respect, does not --  18 well, I have a point to make on that as to just how  19 big this task is, so-called.  And indeed, there was no  20 response to this proposal by my learned friends until  21 you heard their objections, such as they are, today.  22 My position is, my lord, that these documents,  23 despite the fact that they are numerous, does not --  24 that does not mean to say that they do not qualify as  25 documents to add to the collection.  The fact that  26 they may be, in this case 92 entries, does not  27 preclude them from qualifying under your lordship's  28 determination that documents which are properly  29 related to the evidence of witnesses -- and I dare say  30 it's not just Mr. Morrison but also Dr. Greenwood's  31 evidence -- that those documents may be added as part  32 of the collection.  And I say that all right, there  33 are more than the two or three that were tendered by  34 Miss Sigurdson.  That doesn't deprive the plaintiffs  35 from raising these documents as documents which are  36 part of that collection.  And I say, my lord, that the  37 court shouldn't be deprived of relevant documents, and  38 these are relevant documents to issues which are  39 highly debated in the litigation.  40 The question of whether or not -- and I think  41 this is really what it comes down to: is there some  42 prejudice to the defendants for having delivered this  43 number of documents of this kind at this stage in the  44 trial?  And I say, "Well, what is the real prejudice  45 to them?"  And that is what my friend, Miss -- Ms.  46 Koenigsberg argues.  Pragmatically, we've quoted a big  47 bunch of documents that we had to deal with.  And I -- 23240  Submission by Mr. Rush        1 my response to that is  twofold:  Firstly, what's new  2 about there being a big number of documents to have to  3 deal with in this trial?  The federal defendant  4 provided me with three volumes of 154 entries of  5 historical documents a week ago Friday.  6 MS. KOENIGSBERG:  In our case.  7 MR. RUSH:  And we dealt with the documents this morning.  And I  8 say, my lord, that there is absolutely no difficulty  9 or prejudice in terms of the number or the volume of  10 the documents that my learned friends have to deal  11 with here in terms of the evidence that these three  12 volumes represent.  13 In sum, there are 92 entries in the first two  14 volumes, there are four entries in the third.  And I  15 say that there are -- on that basis, if that's the  16 argument that your lordship is concerned about here,  17 that there is -- there is no valid reason to sustain  18 that argument, given the number of documents that have  19 been tendered in this trial, and the capacity of the  20 various sides to deal with those documents and to deal  21 with them in some responsive way.  22 In my submission, my lord, your lordship has  23 created the very principle that permits us to tender  24 these documents.  And I say that this is a principle  25 that applies to all sides, and that is, if there are  26 relevant documents that should be tendered, that the  27 parties clearly have the ability and ought to in a  28 case of this kind, to tender those documents in the  29 course of the trial.  And it's with that in mind that  30 I am tendering these documents.  31 Now, the -- my friends, Mr. Plant, of course,  32 placed me at the election of, "Well, is this a  33 rebuttal form of tendering or is this something under  34 another provision such as the collections rule?"  And  35 my lord, my response to that is, "What does it  36 matter?"  37 THE COURT:  Oh, I think it might matter a great deal.  38 MR. RUSH:  Yes, it would matter a great deal because no doubt  39 what my learned friends want to do is to go through  40 each of the documents to determine whether or not this  41 is a proper form of rebuttal.  If that's the case, my  42 lord, then there is only one option that remains to  43 the plaintiffs, and that's to apply to reopen the case  44 as my learned friend Mr. Plant did with Mr. Boys'  45 evidence.  And I say that that -- that those courses  46 of action are not necessary in circumstances such as  47 the -- that present themselves here, where you have a 23241  Submission by Mr. Rush        1 general principle that  your lordship has been applying  2 that -- where there are relevant documents, those  3 relevant documents link to the evidence of witnesses  4 that have been called, ought to be permitted to be  5 tendered.  And that's what we are seeking to do with  6 these documents.  7 Now, I say -- I say this, and perhaps this  8 argument will have some more force when you -- when  9 Mr. Guenther discusses or raises the question of the  10 response to our request for particulars of the  11 position of Canada in terms of these proceedings and  12 in respect of their statement of defence.  But the  13 current land claims agreements speak directly, in my  14 submission, to the position taken by the federal  15 defendant in these proceedings, which you will hear  16 shortly, no doubt, that they take the position that in  17 many instances, in relation to the use and occupation  18 rights claimed by the plaintiff, that they have been  19 extinguished, diminished or abandoned.  And I say that  20 the present agreements in principle, that the federal  21 government has been negotiating with other native  22 peoples around this country, act as statements against  23 interest of the federal defendant.  And there is no  24 way -- you would have to be an ostrich with your head  25 in the sand to --  26 THE COURT:  No, no, no, Mr. Rush, that's unfair.  That's unfair,  27 Mr. Rush.  You don't have to be an ostrich.  You can  28 be a lawyer.  29 MR. RUSH:  Perhaps that's putting it at even a higher --  30 THE COURT:  They are entitled to take a position in one case in  31 one way and take a position in another case another  32 way, aren't they?  33 MR. RUSH:  Case by case perhaps, but not consistently.  34 THE COURT:  Well, who said the defendant has to be consistent?  35 MR. RUSH:  That's my -- my lord, that's what I'm going to argue.  36 THE COURT:  Wait a minute.  What principle of law says that a  37 defendant has to be consistent?  A defendant facing a  38 number of claims can settle some and fight others.  39 MR. RUSH:  Well, I -- of course it can.  But I am saying that  40 what will be evident from the presence of these  41 treaties is that there is a policy to deal with native  42 people on a so-called "without prejudice" basis.  43 THE COURT:  That's fine.  You can have that kind of a policy and  44 still fight a lawsuit that's brought against you.  45 MR. RUSH:  That may be so.  But I say, my lord, that there are  46 statements you make against your interest that are  47 relevant to the positions you take in the litigation. 23242  Submission by Mr. Rush        1 And I say that those  statements against interest are  2 relevant considerations for the determination by your  3 lordship of the federal defendant's position in the  4 litigation.  5 THE COURT:  Well, lawsuits aren't -- sorry, land claims aren't  6 site specific.  7 MR. RUSH:  The claims are, of course, yes.  8 THE COURT:  And one can say, "I have a policy of settling but I  9 am -- I am going to settle what I can."  But I am not  10 able to look behind the scenes and say whether  11 those -- you people may be on the verge of a  12 settlement for all I know.  I can't speculate about  13 these things.  Or you might be saying let's -- "Let's  14 see what the judge is saying and then we will  15 negotiate from there."  There is all kinds of  16 possibilities.  17 MR. RUSH:  My lord, the plaintiffs will be asking you to draw  18 certain inferences from the pattern -- the recent  19 pattern of the federal defendant to negotiate land  20 claims agreements with native peoples in Canada under  21 certain established policies and principles.  22 THE COURT:  But Canada can't negotiate a claim for territory and  23 jurisdiction.  24 MR. RUSH:  It can't?  I -- in my submission, my lord, it can.  25 THE COURT:  Well —  2 6 MR. RUSH:  And does.  27 THE COURT:  I would be happy to know -- no, I mean -- I mean  28 land within the Province of British Columbia.  29 MR. RUSH:  Well, my lord, in my submission, that's the point.  30 THE COURT:  It can easily do it in the Yukon or the Northwest  31 Territories, but how do they do it in British  32 Columbia?  33 MR. RUSH:  Well, they've endeavoured to do it and they've  34 established a process by which they can do it and  35 they've entered into and gone through that process in  36 the case of the Nishga people.  And how that relates  37 in particular to the positions advanced by the Nishga  38 must be seen within the context of what is a policy  39 that exists -- is extended throughout the rest of  40 Canada.  But I say to that extent, those agreements  41 are relevant to permit plaintiffs to ask your lordship  42 to draw certain inferences.  43 Now, your lordship may be -- judging from your  44 immediate response, you may not be warm to that  45 submission.  But we hope to be able to persuade you by  46 reference to some of these documents why your  47 lordship's position on that is not -- is not 23243  Submission by Mr. Rush  Ruling  1 consistent -- or at least it's not sympathetic to what  2 is the policy or the underlying principles from which  3 the federal defendant moves in respect of those  4 negotiations.  And I say that they are relevant and,  5 with respect, I say that I think the federal defendant  6 thinks that they are relevant.  And I think that's  7 evident by their position on the O.N.C. document.  8 But in all, my lord, in my submission, these --  9 I'm tendering these documents on the principles that I  10 have indicated.  And in my submission, they are --  11 they are properly receivable by the court and ought to  12 be received as relevant documents in the proceedings.  13 THE COURT:  All right.  Thank you.  14 Well, I have not any doubt that there is room for  15 the plaintiffs to supplement their collection with  16 documents of like kind or a character to those already  17 put in evidence.  And I would not hesitate to allow  18 the plaintiffs to reopen their case for the purpose of  19 that supplementing process if it were necessary so to  20 do.  I think, in view of the course of this trial, it  21 is not probably necessary, technically, to reopen the  22 case, because this question of supplementing  23 collections has been with us for most of the course of  24 this trial.  25 At the moment, I am not sure that I can properly  26 categorize the areas where I think supplementing  27 collections would be unobjectionable.  I can think of  28 collections of documents which actually or  29 potentially -- or might is a better word -- explain  30 the historical background for the Royal Proclamation,  31 both in Britain's North American possessions in what  32 is now Canada and in what is now the United States.  33 I can categorize further, documents that might  34 record treaties made in obedience to or in view of the  35 Royal Proclamation, leaving it open for later  36 determination regarding the actual breach of the  37 Proclamation.  38 I can categorize further and say that the  39 documents connected with matters already in evidence  40 would be a proper subject of supplementing the  41 collection.  And I think I agree with Mr. Rush that we  42 are not, as I have said before, entitled in this case  43 to be overwhelmed by volumes of material, using  44 volumes in its larger and more restricted sense.  45 I think we may be in some difficulty on this  46 point because of the unpredictable consequences of  47 treating these collections of documents as evidence. 23244  Ruling        1 We might have been better off dealing with  them in  2 some other way, and I have in mind, for example, the  3 renowned brief of Mr. Brandice, as he then was.  And  4 it may be that some of these documents, even if not  5 tendered in evidence, could usefully be referred to in  6 argument.  7 So I tend to think that the plaintiffs' attempt  8 to -- or put it -- that sounds almost pejorative, and  9 I did not intend it that way.  The plaintiffs'  10 application at this stage to supplement its collection  11 is one that I would regard generally with favour.  I  12 am troubled about the category that has been most  13 recently debated this afternoon, being a land claims  14 case relating to, in some cases, other provinces, and  15 in all other cases, at least to other -- or to other  16 areas of the province.  And when I say "province", I  17 include in this context, the territories.  18 I am conscious of the site specific nature of  19 these proceedings, and I am not persuaded that any  20 real significance flows from consistency or  21 inconsistency in this connection, particularly when  22 regard is had for the fact that these negotiations or  23 arrangements arise out of negotiations for settlement,  24 not necessarily with an admission that there is any  25 responsibility, if such is the case, and I haven't  26 studied the matter enough to know that that is so or  27 that it is not so.  28 But the plaintiff is not making any claim against  29 Canada here and it is my view that Canada can be  30 negotiating with generosity -- if I can put it that  31 way for descriptive purposes -- on one claim and  32 fighting another one tooth and nail.  The facts and  33 circumstances may be different and I do not wish to  34 litigate more than just the claim of the plaintiffs in  35 this case.  36 Therefore, I am in the position where I think that  37 some of these documents are ones which I should admit  38 into evidence although, as I have said, I am not sure  39 that it is -- it now -- I am not sure that it now  40 appears wise that they be treated as evidence, but it  41 is far too late in the day to go back on that course.  42 I think some of them, however, are probably not ones  43 which should be admitted into evidence, and I am  44 disposed to mark them all now for identification,  45 giving them a number for that purpose, and to ask  46 counsel to let me know which ones they think fit into  47 the categories I mentioned or any other categories 23245  Ruling  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  that they might develop on their own, and I will have  to deal with them when -- I will have to deal with the  residue when the time comes.  Keeping in mind, as I  have said, that I am not sure that I would not hear  argument, particularly where it is to be given in  writing and advance the argument based upon some  document that is not in evidence, if the fact of the  document is -- has any significance.  My ruling was really intended -- my rulings have  really been intended to obviate the necessity of  proving underlying facts.  And it may be that  documents can be useful in argument for one purpose,  although they might not be admissible in evidence for  another purpose.  But I do not want to get too far  ahead of myself by saying any more than that just at  this moment.  And I am not sure that what I have said  now is going to be sufficient, but I think that I have  said as much as I can usefully say at this point.  But  I will be glad to be assisted further by counsel with  whatever additional submissions they wish to make to  supplement what they have already submitted.  MR. RUSH:  My lord, I would therefore tender this volume 1 as  the next exhibit for identification.  COURT:  There is two volume ones, are there not?  RUSH:  No, no, my lord.  COURT:  Yes, there are.  RUSH:  Well, I'm going to propose that with regard to the  two -- the set simply marked volume 1 and 2, that  will -- I will not proceed with those today, because  there are some documents among them that my friends  have not seen.  All right.  And it may be that -- well, I would like to hear  their position on the whole of this set.  It hasn't  been accumulated before today.  Yes.  So I would prefer not to deal with those just now,  but to deal with the set that's marked --  1244 I think is the next number?  REGISTRAR:  Yes, my lord  RUSH:  That would be volume I, Roman one, tabs 1 to 74, and  volume II, tabs 1 to 19 would be the next one for  identification.  THE COURT:  All right.  That would be 1244 Roman one and Roman  two and Roman three.  MR. RUSH:  My lord, I wonder if it might be more convenient to  mark them separately, if you would do that?  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  THE  MR.  COURT  RUSH:  COURT:  RUSH:  COURT: 23246  Submission by Mr. Plant  1  THE COURT:  All right.  1244, 45,  46.  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.  (EXHIBIT 1244 - Plaintiffs' Book of Documents:  Treaties & Law, Vol. I, Tabs 1-74)  (EXHIBIT 1245 - Plaintiffs' Book of Documents:  Treaties & Law, Vol. II, Tabs 1-17)  (EXHIBIT 1246 - Plaintiffs' Book of Documents:  Treaties & Law, Vol. Ill, Tabs 1-4)  KOENIGSBERG:  How many tabs involved here?  RUSH:  Four.  COURT:  Mr. Rush is going to take those two volumes back.  RUSH:  Yes, my lord.  I think what I'll do, I'll tender  these on another occasion when my friends have had an  opportunity of considering the four documents that are  not -- hadn't been briefly disclosed to them.  THE COURT:  All right.  MR. RUSH:  I think that makes more sense rather than  anticipating an objection on that one  MR. PLANT:  My lord, I understand that Mr. Rush is withdrawing  for later consideration the two volumes containing the  treatises which I have not made submissions about.  THE COURT:  Yes, all right.  MR. RUSH:  And I will retender those, my lord, probably if it's  convenient, on Friday.  THE COURT:  Well, I want to speak about Friday.  I'm afraid it  isn't convenient.  I thought it was, but Monday or any  day next week almost.  RUSH:  Yes.  Well, the next convenient date then.  COURT:  Yes.  We should set it now, shouldn't we.  KOENIGSBERG:  Yes, if we could.  COURT:  Monday is the 18th.  KOENIGSBERG:  Yes.  COURT:  Well, any day that week is -- except Friday the  22nd.  RUSH:  Well, I propose the Tuesday, my lord.  COURT:  That's the 19th.  Is that convenient?  KOENIGSBERG:  That's fine with me.  MR.  THE  MS.  THE  MS.  THE  MR.  THE  MS.  MR.  THE  MR.  PLANT  COURT  PLANT  Yes, my lord.  Yes, all right.  I think at this point there is one item left on my  list and one item left on Mr. Macaulay's list.  The  item left on my list, if I can proceed with it, is  item 12 on the list of matters to be spoken to, which  I handed up earlier.  And it is described as, "Tender  judge's series overlays."  And what I am referring to  here, my lord, is a box that contains more of the 23247  Submission by Mr. Plant  compatible with the base map  1  plastic overlays that are  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. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  can just find my  I'm not too  and the overlays that Mr. Macaulay handed up earlier  and have been the subject of much discussion during  the course of the trial.  Yes.  I -- what I have in this box -- if I  note here -- are a series of overlays  sure how I can do this.  Any way it's convenient, Mr. Plant.  I beg your pardon?  Any way that's convenient.  Yes.  Well, perhaps I can just start by saying that  each of the overlays in the series was given an  overlay number.  The series contains numbers that  pertain to alienations or presence maps that are part  of the evidence of both the province and the federal  government.  Mr. Macaulay has already provided your  lordship with those overlays that come from the  federal part of the series.  I have here in this box  the -- those overlays which reproduce the information  in the provincial alienations mapping project that was  the subject of the custodial affidavits.  Some of  those -- some of the affiants of those affidavits were  cross-examined some time ago, with one or two  additional overlays that I can explain and will  explain.  How many do you have?  How many are there?  Well, unfortunately the numbers don't follow in  sequence.  I would say there are over two dozen.  I take back what I said about being overwhelmed.  Well, what are these things?  Surely you can't handle  that many on one of these maps, can you?  No.  The object is to put up one at a time or  perhaps one or two at a time.  All right.  I am no longer overwhelmed.  And the idea is that this is a more convenient way  of getting access to the information that now exists,  for the most part, on those six foot by three foot  maps that were marked some time ago as the provincial  alienation mapping project.  What the box has in it, in addition to the  overlays themselves, and room for the base map, is a  table that lists the titles of the overlays  alphabetically, giving both -- giving two references;  a reference to what is called here the judge's series  or overview number, and that is the number that  appears on the little plastic tab that sticks out on 2324?  Submission by Mr. Plant  each of these sheets, and also  1  the right-hand side of  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  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  what appears as a map number.  That number, the map  number, refers to the original map number assigned in  the provincial government's alienation mapping  project.  What this table does not give your lordship  yet, because I haven't -- it hasn't been prepared yet,  is an exhibit concordance that would relate the  overlay to the map which is already an exhibit.  And I  am going to see that that concordance is prepared.  There are a couple of wrinkles in what I've just  said.  The first is that the overlays which have the  judge's series number --  What is the judge's series?  Well, we called this the judge's series.  It was a  name that should have been explained.  The intent was  to create this series of maps at a smaller scale for  ease of reference, and just to give it a name we  called this the judge's series.  All right.  So that the map that your lordship has had sitting  beside you for a long time is a map that forms part of  something that we have called the judge's series and  is identified here as -- with the word "judge's".  And it's in no respect separate in its state from  Exhibit 647, is it?  I don't know what the numbers are, I'm afraid, my  lord.  Which is this one?  It's a different scale and it's a different series.  Yes, all right.  As I recall, the plaintiffs' map series is at  something like the 1:700,000 scale, whereas the  so-called judge's series is 1:35,000 scale.  Yes, all right.  So -- okay.  Here -- this collection of overlays  with the two exceptions that I'm about to relate to  your lordship, reproduce in a more convenient format  the information which is in the provincial alienations  mapping project.  Now, the wrinkles are these:  The three overlays  that are identified as numbers two, three and four,  depict mineral, placer and coal tenure.  They do so on  a large scale.  When we provided your lordship with  the alienations mapping project information for mining  tenure, we did so in the form of smaller books because  we were -- we weren't able to produce accurately a map  that at the large scale that showed the location of 23249  Submission by Mr.  Submission by Mr.  Submission by Mr.  Plant  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  THE COURT  MR.  THE  MR.  THE  MR.  COURT  PLANT  COURT  PLANT  THE  MR.  THE  MR.  THE  MR.  mineral claims with sufficient accuracy that we could  hold it out as being a credible product.  The maps -- the overlays which are now numbered  two, three and four are a reproduction of the  original,maps.  They are only tendered for the purpose  of giving your lordship the most general indication of  where mineral tenure activity is located.  The next wrinkle is --  Let me ask you about a wrinkle that's worrying me  more than what you are saying and that is, what does  the plaintiff say about all these overlays?  GUENTHER:  We were overwhelmed at first, my lord, until we  realized the box had a nice carrying handle, and  consequently we have no objection.  All right.  That saves a lot of wrinkles.  The word "wrinkle" may not be as appropriate as  others, I don't know.  Saves wrinkles in the manuscript of life.  The overlay which has the tab 65 is identified as  N.T.S.  Now all this is a reproduction of the National  Topographic Series grid system itself.  So that if  your lordship is using the judge's series base map and  wishes to find on an N.T.S. map which is a much more  accurate scale, which, if your lordship wishes to know  which N.T.S. map to go to, this key will tell you.  The last —  The key is where?  On the cover?  It's on -- the key is on the overlay sheet.  All right.  Tab 65 which is marked N.T.S.  All right.  And the last item is the overlay sheet marked tab --  with tab number 66.  That tab says "Plan Index".  That  formed the same function that I just described of  acting as a guide or a key, but in relation to the  mineral tenure maps that were earlier as part of the  alienations mapping project.  So if your lordship wishes to relate an  alienations mapping project mineral tenure map to the  claim area at large, there is a map reference, a grid  reference on the map that's part of the alienations  mapping project and that will connect to this plan  index, tab 66.  Now, so far as I'm aware, the balance of the  overlays in this box, with the exception of one which  I'm just removing, are all encompassed by the  statements I have just made and the admissibility of  COURT  PLANT  COURT  PLANT  COURT  PLANT 23250  by the pi  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  Submission by Mr. Plant  aintiffs.  THE COURT  1  them has been agreed to  All right.  And how would you describe them?  We'll  call the box Exhibit 1247 -- or the case, rather.  The  very attractive case.  MR. PLANT:  The box containing the judge's series overlays.  THE COURT:  All right.  And you don't know how many there are?  MR. PLANT:  I can't tell your lordship just how many overlays  are in the box right now.  I can tell your lordship  that the tab numbers that are in the box, if your  lordship wants to make a note, are 2, 3, 4, 7, 8, 9,  10, 11, 12, 13, 17, 21, 31, 37, 44, 46, 47, 48A, 48B,  49 to 51 — well, 49, 50, 51, 58, 59, 60, 65, 66, and  69.  And those numbers have a description that appears  on the table that's glued into the cover of the box.  THE COURT:  Yes.  All right.  Thank you.  That will be the next  exhibit then.  THE REGISTRAR:  Exhibit 1147.  (EXHIBIT 1147  Overlays)  Box containing Judge's Series  THE COURT  MR. PLANT  THE  MR.  COURT:  MR.  MR.  THE  And I guess the only question is whether these  various tab numbers you described should be given  separate numbers?  I am not sure I see any particular  need for it.  I don't think they need to, my lord.  I am going to  provide your lordship with a list that will correlate  the tab numbers to the exhibit numbers, that -- in  respect of the tab numbers that do correspond to maps  in our alienations mapping project that have already  been made exhibits.  Yes.  Mr. Guenther.  GUENTHER:  Yes, my lord.  I was just going to say that I  would submit it should be marked as an exhibit --  single exhibit.  It's my understanding, and the  understanding of the plaintiffs is that these truly  are aids to be marked as an exhibit, and that the true  evidence is the evidence from which they flow.  And  with that proviso, we have no problem.  MACAULAY:  My lord, the numbers on our overlays are part of  the numbering system that was just referred to by Mr.  Plant.  It was a numbering system that's been  abandoned because there are gaps in it.  Some overlays  were struck out and some weren't, so there isn't a  consecutive number.  As a practical matter, it's --  PLANT:  Your lordship will have 64A and B, and those are --  COURT:  Yes. 23251  that app  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. PLANT  THE COURT  MR. PLANT  THE COURT:  MR. PLANT:  THE COURT:  Submission by Mr. Plant        1  MR. PLANT:  Yes, those are numbers  ear in the same  series of numbers.  THE COURT:  Yes.  I think you only have three overlays, don't  you, Mr. Macaulay?  MR. MACAULAY:  Four, my lord.  THE COURT:  Yes.  There is one hidden here.  You have got 64A,  B, 62 and 35.  Yes, my lord.  All right.  Thank you.  Now, my lord, I was hoping that I could speak on the  subject of the three overlays that your lordship did  have.  Excuse me, Mr. Plant.  We are going to have to be  here tomorrow, aren't we?  I was about to say I am going to be a few minutes on  this subject.  Yes.  Well, I have another matter I have to attend  to at four o'clock, so I think we will have to  adjourn.  It's of no particular consequence except for  personal planning, but are we going to be all day  tomorrow or are we going into Wednesday or what does  the future have for us here?  GUENTHER:  Aside from the matter that Mr. Plant just  mentioned, I have three items remaining, two of which  relate to the federal case, and I wouldn't think that  that could possibly take all, but it could take a fair  chunk of the morning.  Yes, all right.  Well, we -- we have all week so  it's just a matter of letting people know as much as  we can what's likely.  We can finish everything that's  on the table now, can we, tomorrow?  GUENTHER:  Yes.  But for the matter that Mr. Rush was  addressing that you put over to the 19th.  THE COURT:  Oh yes.  All right.  Thank you.  Ten o'clock.  THE REGISTRAR:  Order in court.  Court stands adjourned until  ten o'clock tomorrow.  (PROCEEDINGS ADJOURNED AT 4:00 P.M.)  MR.  THE COURT:  MR.  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability.  Toni Kerekes, O.R.  United Reporting Service Ltd.

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