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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-11-30] British Columbia. Supreme Court Nov 30, 1989

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 23100  Discussion Re:  Exhibits  1 30 November 1989  2 Vancouver, B.C.  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 30th day of November, 1989.  In the  6 matter of Delgamuukw versus Her Majesty the Queen at  7 bar, my lord.  8 THE COURT:  Ms. Koenigsberg.  9 MS. KOENIGSBERG:  While we are fresh, my lord, I think I will  10 try and tidy up some exhibits.  11 THE COURT:  Think of yourself in that regard, Ms. Koenigsberg.  12 MS. KOENIGSBERG:  All right, I will, my lord.  While I am fresh.  13 I have some additional Loring reports to go in the  14 Loring report binders.  There are three, I have them  15 all tabbed.  16 THE COURT:  Three reports?  17 MS. KOENIGSBERG:  Yes, three additional ones.  18 THE COURT:  Yes.  19 MS. KOENIGSBERG:  And I can advise my friend and the court that  20 these transcripts of the Loring materials will be  21 completed tomorrow and will be delivered tomorrow.  22 THE COURT:  Well, you will find it lonely up here tomorrow, Ms.  23 Koenigsberg, but you are welcome to come up if you  2 4              wish.  25 MS. KOENIGSBERG:  My friends may be more interested right now  26 than -- first then the tabs, they are or should be in  27 the binders 268A, 283A and 320A.  2 8 THE COURT:  Thank you.  29 MS. KOENIGSBERG:  And then we have the newest updated exhibit or  30 index to the Loring reports which include just  31 tendered additions.  32 THE COURT:  What is the exhibit number for —  33 THE REGISTRAR:  1209 has been reserved.  34 THE COURT:  1209.  35 THE REGISTRAR:  Yes, my lord.  36 MR. GRANT:  I will await the transcripts, my lord, before -- so  37 that I can complete my review of those and that's --  38 THE COURT:  That's a very sensible idea.  39 MS. KOENIGSBERG:  The second item on my clean-up agenda here has  40 to do with the map 29 booklets.  They were marked or a  41 number was reserved as 1222, I believe.  42 THE REGISTRAR:  Yes, that's right.  43 MS. KOENIGSBERG:  And we agreed to remove all references to  44 tribal councils, and we have done that.  45 THE REGISTRAR:  Will they become Exhibit 1222?  4 6 MS. KOENIGSBERG:  Yes.  47 MR. GRANT:  Could I look at those please? 23101  Discussion Re:  Exhibits  1 MS. KOENIGSBERG:  Sorry, I don't know what happened to the copy.  2 I am sorry, here it is.  3 MR. GRANT:  I just want to see the exhibit.  4  5 (EXHIBIT 1222 - BOOKLET RE MAP 29 - CANADA LANDS  6 WITHIN THE LAND CLAIM AREA)  7  8 MS. KOENIGSBERG:  The second item, another part of the booklet  9 or rather the bound volumes of documents in support  10 and I will ask madam registrar, was it 1223 for map  11 29, the volumes?  12 THE REGISTRAR:  Map — the title documents for map 29?  13 MS. KOENIGSBERG:  Yes.  14 THE COURT:  1223 is map 5.  15 THE REGISTRAR:  No, 1220A, B, C, and D.  16 MS. KOENIGSBERG:  Okay.  These are new indices for those because  17 the indices had the reference to tribal councils on  18 it.  19 THE COURT:  So these booklets are reserved number 1220, are  20 they?  21 THE REGISTRAR:  No, they are actual exhibits, my lord.  22 THE COURT:  They are actual exhibits, 1220A, B, C, and D.  23 THE REGISTRAR:  And this is an index.  24 MS. KOENIGSBERG:  Yes, and just handing up a new index for those  2 5 volumes.  2 6 THE COURT:  Oh, I see.  27 MS. KOENIGSBERG:  Which has removed the reference to tribal  28 councils.  29 MR. GRANT:  So my understanding then is that -- I am not sure if  30 my friend has deleted the indices but the indices from  31 these four should be deleted and these are to replace  32 them.  That's my understanding on the exhibit copy.  33 THE COURT:  Well, are the only references to tribal councils in  34 the indices?  35 MS. KOENIGSBERG:  Yes.  36 THE REGISTRAR:  I will put this index in 1220A volume 1.  37 MR. GRANT:  And I am not certain if my friend had previously  38 tendered Exhibit 1222.  If so, I take it that this --  39 what she has now tendered is replacing 1220-2 or she  40 just reserved.  41 THE REGISTRAR:  1222 had only been reserved.  It is now an  42 exhibit proper.  43 MS. KOENIGSBERG:  The next item deals with the index and/or  44 exhibit list to the railways project which was Exhibit  45 1225-1 to 1225-38 and this is a re-listing, I didn't  46 remove anything, it was really, if I can put it that  47 way, an administrative matter of listing the exhibits 23102  Discussion Re:  Exhibits  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  which have been tendered.  THE COURT:  What was the last tab number, 28?  MS. KOENIGSBERG:  38.  THE COURT:  All right.  THE REGISTRAR:  We were going to make this exhibit —  MS. KOENIGSBERG:  Yes, and could it be marked as an exhibit so  it makes it very easy for the court to keep track.  THE COURT:  All right.  THE REGISTRAR:  Exhibit 1239, my lord.  MR. GRANT:  Possibly it should be 1225 capital A or something  like that because it is an index at 1225.  THE COURT:  1225A.  MS. KOENIGSBERG:  Okay.  I hope that's right.  I am advised that  the binders were 1225A and these are the lists of the  maps so I don't think it can be 1225A.  THE REGISTRAR:  That's right, 1225A.  THE COURT:  1225X.  (EXHIBIT 1225X - INDEX RE ROLL PLANS & TUBE PLANS RE  MAP 5 - CNR GRAND TRUNK PACIFIC RAILWAY)  MS. KOENIGSBERG:  I think we are safe there, my lord.  MR. GRANT:  Look forward to your numbering each day, my lord.  MS. KOENIGSBERG: The next item is, yesterday Mr. Macaulay  tendered a trapline file, it was -- a number was  reserved, Exhibit 1232.  MR. GRANT:  I wanted to review that file, my lord, and it asks  that a number only be reserved.  I have had an  opportunity to review the file and subject to your  lordship's ruling of October 12, 1989 that is where  you allowed all of the certified documents -- in fact  this didn't happen yesterday, I believe it happened a  couple of days ago, my lord, during the direct.  THE COURT:  What's the number?  MR. GRANT:  1232.  THE COURT:  Yes.  MR. GRANT:  So —  THE COURT:  It was Tuesday.  MR. GRANT:  Yes, so as your lordship commented when we dealt  with 20 volumes of trapline files from the province  that there was no need to spend court time arguing  over something that may not ultimately have to be  argued so with the reservations of the October 12,  1989 ruling when it is open to us to argue the  admissibility of relevant contents if my friend relies  on them, I have no objection to this going in.  THE COURT:  How would you describe it again? 23103  Discussion Re:  Exhibits  1 MS. KOENIGSBERG:  It is a trapline file, it's Federal Defendant  2 number 11166.  3 THE COURT:  Just one volume.  4 MS. KOENIGSBERG:  It's one file, my lord, it is Charlie William  5 and Company.  6 THE REGISTRAR:  Exhibit 1232.  7  8 (EXHIBIT 1232 - TRAPLINE FILE:  CHARLIE WILLIAM AND  9 COMPANY)  10  11 MS. KOENIGSBERG:  Lastly on this particular clean-up agenda, my  12 lord, I am advised that during the examination and  13 cross-examination of Mr. Mclntyre the base map which  14 your lordship referred to as the Macaulay map was  15 referred to in the evidence and evidence was given in  16 relation to it.  We would ask that that map, just the  17 base with the line on it, be marked as an exhibit as  18 that map which was referred to.  19 THE COURT:  Is the external border on the base map or is it on  20 one of the --  21 MS. KOENIGSBERG:  Yes, it is.  22 THE COURT:  On the base map, yes, all right.  23 MS. KOENIGSBERG:  It is the line which was taken and put on from  24 the plaintiff's Exhibit 5 but I am also advised that  25 Mr. Grant cross-examined and evidence in relation to  26 that map was during cross-examination.  27 MR. GRANT:  I certainly have a submission.  This comes as a  28 complete surprise to me, my lord.  29 THE COURT:  How can it be a surprise, Mr. Grant, we have been  30 talking about this map for a year?  31 MR. GRANT:  No, not the map.  32 THE COURT:  I see.  33 MR. GRANT:  My friend is now adducing it as an exhibit.  As you  34 may recall, I think when Mr. Macaulay first brought  35 this in, there was some discussion about it and we  36 never had it reviewed or compared because it was  37 agreed or it was discussed at that time as an  38 aide-memoire.  Now, the only reference I made to the  39 overlay in the cross-examination of Mr. Mclntyre was  40 as referring to the overlay of the reserve, of the  41 reserves, and some evidence of the overlay of the  42 reserves.  I was informed the other day by my friends  43 that the reserve overlay on the aide-memoire which Mr.  44 Macaulay or Ms. Koenigsberg introduced the map as an  45 aide-memoire again that that reserve overlay was a  46 reduction of exhibit -- of I believe it would be  47 Exhibit 1221A.  The reserve map that you may recall 23104  Discussion Re:  Exhibits  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  COURT  GRANT  COURT  MR. GRANT  THE COURT  MR.  THE  MR.  GRANT  COURT  GRANT  was tendered and rather than asking madam registrar to  pull the large map I used the smaller within, but the  evidence, the exhibit is the large map.  And the only  statement -- the reason I am saying this, my lord, is  that I am not -- now my friend wants to put that base  in.  I did not expect -- I understood that it was  always being used as an aide-memoire so we didn't  undertake to do the investigation that we said we  would do if it was going to be an exhibit.  To that, I  say I oppose it.  I am not in a position to agree or  disagree whether that parallels Exhibit 5, and that  was -- because I --  Isn't this a non-issue, Mr. Grant, a hurricane in a  hiccup, really?  We have Exhibit 5 and we have Exhibit 1221, the  large map.  Yes.  But we have this overlay which has to go on  top of Mr. Macaulay's map as it's been called from  time to time.  What is the trouble?  What possible  harm could it do having it now made part of the  convenient reference?  I agree with it, we have to  deal with.  It is very clear that the external  boundary came from Exhibit 5 and if there is a  distinction between the two, and I can't imagine who  would be looking for such a distinction or a  difference, we'll be governed by map 5 because that's  said to be the source of this black line.  Other than  that, it is an unoffensive map, is it not?  Well, if it is clear -- I mean, I take your  lordship's point.  It is Exhibit 5.  I mean, there was  no indication by my friends since the map was  introduced that they intended to introduce it as an  exhibit.  Now my friend is latching on to me using it  instead of the larger map and Mr. Macaulay used it and  there was no suggestion that he was going to tender it  as an exhibit.  Well, wasn't it apparent that it had to be an  exhibit when the overlay was admitted as an exhibit?  The overlay is not an exhibit, my lord.  I thought it was.  That's the point.  My friends introduced the overlay  as a convenient aide-memoire the other day and it was  a matter of convenience and Mr. Macaulay referred to  the aide-memoire rather than the large map.  That's  the point.  I agree if the overlays had been marked as  exhibits we would have dealt with it at that point,  but that's why I say there is no harm in leaving it as 23105  Discussion Re:  Exhibits  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  MS.  MR.  THE COURT  it's always been understood by all parties as to what  it was.  THE COURT:  Except when this case goes to the Supreme Court of  Canada and the learned judges of that court won't have  the advantage of it as I have had in quickly finding  the many references that are more easily located on  that map than on the others which have been used.  MR. GRANT:  To this extent it may be — I assumed that the  aide-memoires were going to flow along in some form or  other.  THE COURT:  I wouldn't think so.  MR. GRANT:  Well —  THE COURT:  Counsel could produce them again at that time I  suppose.  And I am sure that counsel is going to produce them  at that time.  I mean --  KOENIGSBERG:  Over your protestations.  GRANT:  If my friends had wanted to do this, why hadn't they  advised me that they intended to mark this as an  exhibit so I would be in a position --  Mr. Grant, they said the same thing so many times  that you said in your case so there is no advantage to  finger pointing at this stage.  I can think back now  to many occasions when Mr. Goldie or Mr. Macaulay was  saying you people were giving things in the morning of  the trial that they have never seen before, and you  have been saying the same things about them and they  have been saying the same things about you.  MR. GRANT:  I operated on a certain basis last week.  Last week  when these maps were put in what was done was the  large maps were introduced as an exhibit.  Ms.  Koenigsberg explained them all and she said here is an  aide-memoire, so I assumed everything was going on as  it was.  Even if on Monday I had known that, then I  would have been in a position to take instructions  very quickly and deal with it quite quickly but I have  always operated on the basis that this is an  aide-memoire and nobody has ever suggested otherwise.  COURT:  Well, I understand the sound but not the theory.  PLANT:  My lord, there is one thing that I -- subject to a  question of when it is appropriate to hear from me,  I'd like to add to this debate.  KOENIGSBERG:  Well, my lord, I don't like to get into this  kind of thing but, you know, we tendered it to my  friends I don't know how long, how many months before  January when it was then asked to be for your lordship  to be able to look at it and then it was said okay,  THE  MR.  MS. 23106  Discussion Re:  Exhibits  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  you can look at it as an aide-memoire.  That had been  I don't know how many months that we had asked our  friends to please let us know if they had any  objections to it.  THE COURT:  It was in the early spring of 1988.  MS. KOENIGSBERG:  We did not then put it in as an aide-memoire  forever.  It was repeatedly suggested that my friends  please look at it.  They have put it off and put it  off, I understand that, the same way that they have  put off and put off every other aspect of the Federal  Government's case since May of 1987.  That is what  they have done with this.  It is a hiccup in a  hurricane.  THE COURT:  No, it is a hurricane in a hiccup.  MS. KOENIGSBERG:  Well, couldn't it — in any event, it is a  very minor matter.  I have no objection to this map  being marked as an exhibit on the understanding, as I  think I already stated, that the black line is taken  from the plaintiff's Exhibit 5.  It states that on the  map, and of course if there were any difference  because somehow that black line got moved somewhere, a  millimetre of an inch, of course the evidence would  come from Exhibit 5.  THE COURT:  Well, what about these other overlays?  MS. KOENIGSBERG:  They have not been tendered as exhibits or  marked but we had intended actually to go back and  assemble the entire group and discuss with our friends  if they had any objection to them going in on the  understanding that they are reductions of map --  copies of maps that have already gone in or that are  copies of maps that the plaintiffs have put in.  THE COURT:  Well, why don't you all have those discussions and  see what you can --  MR. GRANT:  Now that I know my friend's intention to mark it as  an exhibit, I say that it's not a question of putting  it off.  Now I know what they want to do and I can  deal with it through discussion out of court and my  friends can come back to it.  MR. PLANT:  It would be of some assistance to know what my  friend, Mr. Grant's, complaint is.  If his complaint  is the complaint of surprise, ambush, so on, then I  can put that into one box but, if there is some  suggestion that this map which he has had for an  awfully long time is inaccurate in some way that will  be material to the outcome of the case, then I would  like to know that because it would be my submission  that when you are dealing with an area as big as the 23107  Discussion Re:  Exhibits  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.  MR.  PLANT  GRANT  THE COURT  MR.  MS.  GRANT  area claimed by the plaintiffs, it's got to be of some  assistance to your lordship to have a map or maps of  this scale which summarize in effect the evidence  which is contained elsewhere, and I can't foresee a  situation where someone would say because, you know,  Telkwa is a half inch further south of Smithers on  this map than on some other map, that your lordship  ought to accept the so-called aide-memoire map in  preference to the other evidence.  I can't conceive  that I would ever want to rely on the aide-memoire map  for that kind of proposition, but I want to add to  that, that I have provided to my friends and intended  to provide to your lordship overlays which summarize  all of our alienation project which are at the same  scale and which are suitable for use on this map  series that your lordship has before you, and again it  would be my contention that ultimately if it is a  question of whether the boundary of a district lot is  on the south side or the north side of Main Street or  the east or west side of Main Street in Smithers, if  that becomes an issue, then your lordship is going or  someone is going to have to go to source documents.  But if it is a question of locating the relative  position of Smithers and Telkwa, then I would say your  lordship would get considerable assistance from having  virtually all of this alienations material presented  in a convenient format at one scale and so I come back  to my original point.  I want to know whether my  friend's concern is simply the surprise/ambush concern  or whether there is something significantly wrong here  with this material that I should be told about now in  order that steps might be taken to fix it.  Well, I am afraid what you have just done, Mr.  Plant, is give your friend notice that there is a  whole new series of maps coming in.  He knows that.  They were sent to me last week by my friend and I  knew they fit on this and he indicated they were not  one of the matters that he left as an open issue and  he advised me by letter that they were part of the  aide-memoires, so once again I was reinforced that  both defendants were dealing with this as an  aide-memoire and I dealt with it accordingly.  I think for once I am right, this matter should be  discussed between counsel.  Thank, my lord.  KOENIGSBERG:  I think that on my agenda brings me to the 2310?  Discussion Re:  Exhibits  1 exhibits which have been marked for I.D. of the  2 Federal Government's exhibits and my friend, Mr.  3 Grant, advised me this morning that he was in a  4 position to deal with these matters.  5 THE COURT:  He is or isn't?  6 MS. KOENIGSBERG:  He is.  Mr. Grant will deal with that as soon  7 as he locates his list.  8 MR. GRANT:  Yes.  My friends had asked firstly for Exhibit 603  9 capital A-3A and Exhibit 603 capital A capital 3B to  10 be marked.  Now, this was also requested by the  11 Provincial Defendants and I believe it has been marked  12 but what I had done was these were two pages from an  13 interview with Joshua McLean and what I had requested  14 of Ms. Sigurdson and confirmed with the Provincial  15 Defendant was that the whole interview, and I  16 shouldn't say it's two pages, 603A-3-A and 603A-3-B  17 are all part of this same interview between Joshua  18 McLean and Neil Sterritt on January 5, 1987.  My only  19 concern was that the entire interview go in and Ms.  20 Sigurdson had agreed with that and so I was just going  21 to put -- give the four pages and I think they could  22 be marked as Exhibit 603 capital A-3 because they  23 comprise both 3A and 3B and therefore I have no  24 objection to the identification taken off of that as  25 my friend suggests.  26 THE REGISTRAR:  Just a moment.  603A, that's in, and this is  27 going to be part of it.  28 MR. GRANT:  Yes.  Capital A-3.  29  30 (EXHIBIT 603A-3 - STERRITT'S NOTES - INTERVIEW WITH  31 MCLEAN - 2 SKETCH MAPS OF TRAPLINE - MCLEAN)  32  33 MR. GRANT:  The Federal Defendant has also requested that  34 Exhibit 901-2, Exhibit 901-3 —  35 MR. PLANT:  I am sorry, there is one matter just to clarify my  36 own notes here.  Going back to the 603A-1, I am  37 looking at our own notes here of our own exhibit list  38 and I don't have to hand the transcript references  39 here, but my understanding is that there is an extra  40 page over and above those which were originally marked  41 or tendered and perhaps Mr. Grant could identify for  42 the record or describe for the record which of those  43 pages is the extra page, that's all.  4 4 MR. GRANT:  Just a moment.  45 MR. PLANT:  May be quite clear from the original transcript but  46 it may not be and I don't want to lose this  47 opportunity to clarify that. 23109  Discussion Re:  Exhibits  1  MR.  GRANT  2  MR.  PLANT  3  4  MR.  GRANT  5  6  7  8  9  MR.  PLANT  10  11  12  MR.  GRANT  13  MR.  PLANT  14  15  MR.  GRANT  16  17  MR.  PLANT  18  MR.  GRANT  19  20  21  22  23  24  25  MR.  PLANT  26  MR.  GRANT  27  28  29  30  THE  COURT  31  32  33  34  35  36  37  38  MR.  GRANT  39  40  41  42  43  44  45  46  47  :  Exhibit 603.  :  Just a question of which of the four pages is the  new one.  :  This is part of the cross-examination of Joshua  McLean.  Exhibit 603-3A was page 1 of the note,  Exhibit 603-3B was page 3 of the note, and I have  incorporate -- there are two pages of sketches which  are part of the note.  :  So it is the first page -- the first sketch that  appears in the collection of four pages that is the  addition to the pile.  :  Or it may be the last page.  :  Well, our note here is that there was a two-page  interview note.  :  Okay.  So it would be the first page of the sketches  then.  :  Thank you.  :  I had requested -- the reason I raised this again is  only because the Federal Defendant raised it but I had  requested that we agreed that this go in last week  when the Provincial Crown asked that it go in on  condition that the entire interview go in and I am not  sure if it was Mr. Plant but Ms. Sigurdson certainly  had confirmed that with me at that stage.  :  That's fine.  :  If I can go to the next exhibits that the Federal  Defendants wish to go in, Exhibit 901-2, Exhibit  901-3, Exhibit 901-4.  We have no objection to the  removal of the identification with respect to that.  :  All right.  (EXHIBIT 901-2 - TAB 2 - GITKSAN CARRIER CENSUS 1979)  (EXHIBIT 901-3 - TAB 3 - CENSUS 1979 PHASE I RESULTS)  (EXHIBIT 901-4 - TAB 4  LIST OF TABLES)  Now, Exhibit 901-23 is a Census of 1881.  Now, I had  objected to it because my friends have put in an index  to that Census and the Census -- but the Census they  have put in was quite illegible.  Since then the  Federal Defendant has delivered to me a marginally  better Census which they have informed me is the best  they can do or get, and subject to them tendering  rather than the entirely illegible one, if they tender  the one that is enlarged and larger than -- more  easily readable so that it is a legible document, then 23110  Discussion Re:  Exhibits  1 I do not object but I did object to -- I do object to  2 the one that is presently in the record because I  3 think it's -- the only thing that's legible on it is  4 the index.  Subject to my friend's filing, I do not  5 object to that.  My friends also had requested Exhibit  6 901-21, 9012-22 --  7 THE REGISTRAR:  They are already in as exhibits.  8 MR. GRANT:  Yes.  I will speak to it because there is a comment  9 on them.  They are marked as exhibits proper but there  10 was some comment and -- 901-21, -22, -24, -25, and -27  11 that the documents went in on the basis of some of the  12 published records to which Mr. Daly had been exposed  13 but they are archival.  We don't object to those  14 documents going in within the archival ambit, my lord.  15 I think on a review that they certainly are.  16 THE COURT:  All right.  17  18 (EXHIBIT 901-23 - TAB 23 - 1881 CENSUS)  19  20 MR. GRANT:  Exhibit 814, and this applies I think to my friends,  21 the Provincial Defendant.  22 THE COURT:  I am sorry, exhibit number?  23 MR. GRANT:  814, this is a request of both the Federal and  24 Provincial Defendant, and we don't object to that  25 document going in as an exhibit proper.  26  27 (EXHIBIT 814 - LETTER DATED JAN. 6, 1940 TO MR. S.  2 8 MALLINSON FROM CHARLES PATSEY)  29  30 MR. GRANT:  Now, okay.  There are some other materials that I  31 think I am not going to -- that is --  32 MS. KOENIGSBERG:  How about 969-4?  33 MR. GRANT:  Now, the only matter that, before my friend wishes  34 to speak to the matter, she raised was a coloured  35 photograph, my lord, and I do object to that, and she  36 wants that to go in as Exhibit 60A.  Now, I want to  37 explain why.  Way back on June 18 of '87 in Smithers  38 Mr. Macaulay referred to a guide, a photocopy of a  39 guide of the Museum of Anthropology and he put a  40 photocopy of the picture in that guide of the doors to  41 Mrs. Ryan and he questioned her on it.  Then he asked  42 at page 1441 for that guide to be marked as an  43 exhibit, and the court says:  44  45 "Well, yes.  I think just for the purpose of  46 identifying it, it doesn't prove anything  47 except to the extent that the witness has 23111  Discussion Re:  Exhibits  1 agreed in a very general way with the  2 description of a part of the adaawk."  3  4 And:  5  6 "MR. GRANT:  I say for identification.  I wonder  7 if my friend, if there is an opportunity to  8 provide the court with the photograph, I don't  9 know how good the photograph is in the guide  10 but if there is another photograph that has  11 been provided."  12  13 And the Court said:  14  15 "I don't think it is a very good photograph.  16 MR. MACAULAY:  I will arrange for one."  17  18 Now, that's the end of the discussion.  There is no  19 more discussion of Exhibit 60A.  It is not a matter  20 that we raised, it is not a matter I think of great  21 import, but I will say why I am concerned that it go  22 in.  It may -- I think at this point to mark this  23 photograph as an exhibit in light of the  24 cross-examination of her on the guide, it may be  25 confusing at some future time in some other court as  26 to what Mrs. Ryan was reacting to, and at this point I  27 had really sought to have a chance to look at this and  28 deal with it at the time, that this photograph which  29 is much nicer than the guide and much more attractive  30 to anybody that wants to look at the exhibits, is -- I  31 say it is misleading and of course at this stage we  32 are very far down the road and I don't think there is  33 any necessity to mark this photograph as an exhibit.  34 THE COURT:  Well, is the guide an exhibit or is it just for  35 identification?  36 MR. GRANT:  It is an exhibit for identification as I recall.  37 THE REGISTRAR:  No, it is an exhibit proper.  38 MR. GRANT:  Madam registrar said it is.  I guess it did become  39 an exhibit proper, and I don't object to the guide,  40 even if it was -- had only been an exhibit for I.D.  41 because it was certainly a document that he put to  42 Mrs. Ryan and he questioned her at length about it and  43 what it goes to, you know, is set out in the evidence.  44 But I think Exhibit 60A should not be marked as an  45 exhibit.  46 THE COURT:  Did I understand correctly that Mr. Macaulay was  47 asked by your side to get a coloured photograph of 23112  Discussion Re:  Exhibits  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE  MR.  COURT  GRANT  THE COURT  MR. GRANT  THE  MR.  THE  COURT  GRANT  COURT  this item?  Yes.  Yes, he was asked to get it, my lord, and  nothing further was said about it.  I had anticipated  being able to put a proper photograph to the witness  but it's this week, the very beginning of this week  when I received my friend's requests is when I -- I  must confess, my lord, it was something that certainly  had escaped my mind.  I am concerned though now the  court record -- that this photograph -- that the court  record is -- it will be confusing to the record to  have the photograph in as an exhibit.  Not after this discussion it won't be.  Well, if that's clear then, my lord, it can go in  with all those concerns.  I think counsel having request a photograph be  obtained and it having been obtained and the  discussion make it abundantly clear that there is --  there are two items, there is the one the witness  identified and now a coloured photograph of the same  item which latter photograph was not shown to the  witness that there can be no confusion and the  photograph may be 60B.  I think 60A my friend had proposed.  The guide is  Exhibit 60 so she had proposed to me Exhibit 60A and  in light of all those comments I think my concern is  clear on the record and your lordship has made it  clear.  All right.  It will be 60A.  That resolves it.  Can I see it?  (EXHIBIT 60A - PHOTOGRAPH OF MUSEUM OF ANTHROPOLOGY)  MR. GRANT  My friend has a few other matters and I think that,  given what she wishes to do with them, I will leave it  to her to explain how she wants to deal with them.  All right, thank you.  This is at the Museum of  anthropology at UBC?  Yes.  Thank you.  Ms. Koenigsberg.  KOENIGSBERG:  Excuse me, my lord, just one second.  My lord,  there is an exhibit, it is Exhibit 446-8, and it is a  copy of a letter from David Wells to Mathias Wesley,  yes, it has been marked as an exhibit proper, and we  have the original of that letter which came from  file -- it's called E5828 Doris Morrison and we would  like first of all to tender the original because the  THE COURT  MR. GRANT  THE COURT  MS 23113  Discussion Re:  Exhibits  1 copy is ambiguous with regard to matters.  2 THE COURT:  If the copy is ambiguous, must the original be  3 ambiguous also?  4 MR.GRANT:  I would suspect so.  5 MS. KOENIGSBERG:  No, because you can't see the bottom writing  6 very well.  7 MR. GRANT:  I'd like to look at the original.  8 MS. KOENIGSBERG:  So we would tender the original and we would  9 like to tender the entire file of which it is a part  10 in the order in which it appears, and I can advise  11 your lordship as I have already advised my friend that  12 this file, all documents in this file but five I think  13 are 30 years old.  One of the documents which is not  14 30 years old is the letter that's already been marked  15 and I had asked my friend if he had any objections or  16 was going to object to two maps which are in that file  17 that happen to be in colour in the original.  18 MR. GRANT:  Sorry, I did not — these ones?  19 MS. KOENIGSBERG:  Yes.  20 MR. GRANT:  I didn't — my friend didn't indicate in her letter  21 that they were in colour.  I looked at my copies of  22 the maps she sent me.  I didn't realize that so I will  23 have to have a chance to take a look at those two  24 maps.  I have no objection to the original of the  25 letter going in.  26 THE COURT:  You mean in place of the copy that's in now?  27 MR. GRANT:  Oh, I think it can go in addition to —  2 8 THE COURT:  All right.  29 MR. GRANT:  — as Exhibit 446-8.  30 THE COURT:  Capital A.  31 MR. GRANT:  We don't have a capital A on that one, I think,  32 that's fine.  33 THE COURT:  All right.  34  35 (EXHIBIT 446-8A - ORIGINAL LETTER FROM DAVID WELLS TO  3 6 MATHIAS WESLEY - UNDATED)  37  38 MR. GRANT:  I have no problem with the original.  I certainly  39 will want an opportunity to look at the coloured maps.  40 I didn't lead my friend's letter in that way so I will  41 have to take a look at them because I looked at the  42 photocopies.  43 MS. KOENIGSBERG:  Perhaps my friend could do that maybe over the  44 break because the original file with the original of  45 the letter is clipped together and should in my view  46 for clarity sake, what little clarity we may have  47 left, should all go in together as it's clipped 23114  Discussion Re:  Exhibits  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  MS.  THE  MS.  together.  I will have my friend look at it.  I of  course did send a copy of the entire file to my  friend.  GRANT:  It is just the fact that these maps are coloured.  COURT:  I understand.  GRANT:  I will look at them at the break.  KOENIGSBERG:  The other exhibit for I.D. which my friend has  not dealt with, I am not quite sure what his position  is on it, is Exhibit number 969-4, it is a letter from  Scott dated November 12, 1867.  COURT:  What's the date again?  KOENIGSBERG:  It's November 12, 1867, and is obviously an  ancient document.  I don't know if my friend has any  objection to it or not.  MR. GRANT:  My lord, I was dealing with both the Provincial and  Federal requests and it appears I missed that one or  wasn't aware where I looked at it and I wanted to look  at the document before and I am going to try to deal  with that and quickly sort it out before the morning  is over.  THE COURT:  Okay, thank you.  MR. GRANT:  I want to be sure my friend agrees with my condition  of Exhibit 901-23, that she'll tender the larger copy  of that Census.  MS. KOENIGSBERG:  Oh, certainly.  MR. GRANT:  In place of the other one.  MS. KOENIGSBERG:  I believe those — I think I have mentioned  the ones that my friend hadn't mentioned that are  included here.  THE COURT:  All right, thank you.  MS. KOENIGSBERG:  I believe next on our agenda was an argument  on the pleadings and perhaps it would be most  appropriate --  MR. GRANT:  My lord, I thought my friend had something else and  Mr. Guenther just stepped out to try to get that  exhibit for me.  I thought my friend had a few other  things.  If I could just be excused.  THE COURT:  Can you do something else or do you want to adjourn  for a minute?  MS. KOENIGSBERG:  Well, I have — I wanted to check on something  else but maybe my friend has something else.  THE COURT:  Here is Mr. Guenther.  MS. KOENIGSBERG:  Since the Federal Government was in the  position of tendering evidence, I will make this my  application that the evidence that the Federal  Government has tendered and is still tendering be  accepted on the basis that it is within the pleadings 23115  Submissions by Ms. Koenigsberg  1 and so I will make this my application and if that's  2 agreeable to everyone I will begin.  3 THE COURT:  Yes.  I wish you would because I don't understand  4 what you just said.  5 MR. PLANT:  I think she is saying she doesn't want me to start.  6 MS. KOENIGSBERG:  Or anyone else.  I want to be first.  7 My lord, what I was trying to say was this should  8 be on my application strictly speaking although it has  9 arisen in a confused way.  10 THE COURT:  What are you giving us?  11 MS. KOENIGSBERG:  This is just a book of argument if you will in  12 support of the argument.  13 THE COURT:  Yes, all right.  What is the argument about?  14 MS. KOENIGSBERG:  About the pleadings, my lord.  15 THE COURT:  Yes, all right.  What particular about the  16 pleadings?  17 MS. KOENIGSBERG:  That the pleadings of the Federal Government  18 are either insufficient or inadequate to ground the  19 evidence that has been tendered and your lordship let  20 in the evidence on one point, reserved as to -- I am  21 not sure if you actually reserved, but I think you  22 reserved as to whether the balance, any other use  23 could be made of the evidence being led by the Federal  24 Government although you did indicate some reservations  25 or concern about whether the Federal Government needed  26 to more particularly plead such things as  27 extinguishment, and it was left that evidence was  28 coming forward to your lordship over the objections of  2 9              my friends.  30 THE COURT:  I thought that I had ruled that the evidence is  31 admissible at least on a ground and that I didn't  32 think that I was required or if there was any need for  33 me to give what I have conveniently described as a  34 judicial warning required for any particular purpose.  35 In argument I have to decide what use can be made of  36 it.  Do you think you are entitled to some kind of a  37 declaratory ruling that evidence that's admissible and  38 has already been admitted into evidence can be used  39 for some other purpose?  40 MS. KOENIGSBERG:  Well, I frankly found myself somewhat  41 confused, my lord, at the end of the last session on  42 this subject as to whether there was any restriction  43 on the Federal Government as a result of an alleged  44 insufficiency of the pleadings.  Your lordship  45 certainly did allow in the evidence and I thought had  46 left till later if there was any restriction on the  47 use of that by the Federal Government. 23116  Submissions by Ms. Koenigsberg  1 THE COURT:  That's right, but I had in mind later being after  2 all the argument was in and I am off by myself  3 thinking about this.  I did not think I would be  4 expected to give some kind of a definitive ruling at  5 this point in an argumentative vacuum.  6 MS. KOENIGSBERG:  Well, I don't know how to address the point.  7 THE COURT:  I would be glad to hear what you say.  8 MS. KOENIGSBERG:  I know that my friends certainly anticipated  9 that they were going to be addressing your lordship on  10 this topic as it is I believe their position that it's  11 not available to the Federal Crown to either lead  12 evidence or lead it in certain ways or argue from it  13 based on their view of the pleadings, and I am  14 prepared to make submissions that, in my submission,  15 will be that that restriction should not be there.  16 THE COURT:  Well, I don't think at the moment that there is a  17 restriction.  It may be in some one sense that it is  18 more the nature of an intellectual reservation about  19 the question and I resile or I would like to resile  20 from giving counsel a legal opinion, and I would say  21 to counsel if I were -- if your argument doesn't  22 persuade me otherwise that it is your problem to  23 figure out whether your pleadings are sufficient for  24 any particular purpose and that -- and that the  25 evidence already being in, it is singularly a case for  26 counsel, not for the court, to pronounce on that  27 question at this stage but I have never found  28 discussions with counsel about pleadings to be  29 unhelpful because it lets us all know what everyone  30 else is thinking and we get insights that we might not  31 otherwise have enjoyed, so I will be glad to hear what  32 you say, Ms. Koenigsberg, and your friends in reply  33 but I say now that I am of a generation in mind-set  34 that doesn't lend itself to the kind of declaration  35 that you may be seeking.  36 MR. GUENTHER:  My lord, if I might just step in.  I had not  37 understood your ruling on the admissibility of that  38 particular evidence to be other than as you stated,  39 that is, I took it that you admitted the evidence,  40 however, the point being raised now is one that was  41 raised in the course of that and the concern of the  42 plaintiffs here is that with respect to what we now  43 identify as matters raised in the Federal opening not  44 pleaded, and the concern that we raised earlier I  45 think was that we take the position that absent  46 pleadings, a number of matters raised or apparently  47 raised in the Federal opening because that opening was 23117  Submissions by Ms. Koenigsberg  1 not free from ambiguity as to the Federal position,  2 nonetheless that the Federal Crown ought not to be  3 entitled to rely on evidence nor to argue certain  4 points that they have not pleaded.  The particular  5 concern that your lordship raised was one that was not  6 particularly pointed at whether in fact those matters  7 had not been pleaded but whether in fact the Federal  8 Crown could rely upon the Provincial Crown's pleadings  9 in defence for those purposes, and our position on  10 that is that they may not.  Consequently, in our view,  11 there is an unresolved question of pleading here that  12 we submit ought to be resolved before the Federal  13 Crown closes its case that we submit is appropriate to  14 deal with at this time because it -- in fact there is  15 a concern about an amendment to reply here that may be  16 appropriate depending on what the Federal Crown's true  17 position is or the position that they intend to  18 advance.  19 THE COURT:  Well, you both persuaded me but I should hear what  20 you have to say and I have given you notice of my bias  21 in this regard and I will do my best to be persuaded  22 otherwise so you go ahead, Ms. Koenigsberg, it's your  23 pleadings and you can go first.  24 MS. KOENIGSBERG:  My lord, putting it shortly, it is our  25 position for reasons that I will attempt to develop  26 that our pleadings as it is and in the context of the  27 development of the evidence in this case is sufficient  28 by itself to allow the Federal Government to lead  29 evidence and to argue from that evidence both whether  30 the plaintiffs have ownership and jurisdiction in the  31 claimed area, whether they have aboriginal rights  32 which are something less than ownership and  33 jurisdiction, what is left if anything of the  34 aboriginal rights which the plaintiffs may have in the  35 claim area, and by saying what is left that it may  36 have, if it existed before, have been extinguished,  37 diminished, abandoned, or any other word.  38 THE COURT:  What were the three you said, extinguished --  39 MS. KOENIGSBERG:  Extinguished, diminished, abandoned, and in my  40 submission those are all words which embrace the facts  41 of the impact of European civilization on the  42 plaintiffs from contact.  I don't say that there might  43 not be something else included in these claims but I  44 think this is the focus.  4 5    THE COURT:  Yes.  46 MS. KOENIGSBERG:  I point out to your lordship and it's that the  47 Statement of Claim itself claims ownership and 2311?  Submissions by Ms. Koenigsberg  1 jurisdiction.  2 THE COURT:  Are you looking at tab 1 now?  3 MS. KOENIGSBERG:  No.  I unfortunately didn't put in the  4 Statement of Claim but I think it's clear that the  5 Statement of Claim was one, and I do have your  6 lordship's reasons in here, but I don't think it's  7 really -- I hope there is not too much doubt at this  8 point about this, their claim is one for ownership and  9 jurisdiction and the incidents of that ownership and  10 jurisdiction are set out in the claim.  And they  11 include, for instance, in I believe it's still  12 paragraph 57 that the plaintiffs have lived within the  13 territory, harvest, managed and conserved the  14 resources within the territory, governed themselves  15 according to their laws, governed the territory  16 according to their laws and spiritual beliefs and  17 practices, maintained their institutions and exercised  18 their authority over the territory through their  19 institutions, protected and maintained the boundaries  20 of the territory, expressed their ownership of the  21 territory through their regalia, adaawks, kunga, and  22 songs, confirmed their ownership of the territory  23 through their totem-poles and asserted their ownership  24 of their territory by certain claim.  Then in 58 they  25 say the plaintiffs continue to own and exercise  26 jurisdiction over the territory to the present time,  27 they do go on with other things like that, the right  28 to own and exercise jurisdiction is in the chiefs of  29 the two nations as I guess as they are referred to.  30 Now, the Federal Defendant specifically denied  31 certain of those incidents and did not admit specific  32 others of those particular incidents thereby drawing a  33 distinction which I think is understood in pleadings  34 that you don't deny something that -- you don't deny  35 something that you have some knowledge of or some idea  36 about that you don't know if it exists or not, and you  37 deny that what you have some reason to believe is not  38 so.  Now, to the more specific, the matter in the  39 pleadings at paragraph I believe it's 21 and 22 of the  40 claim.  41 THE COURT:  Are you going to tab 1?  42 MS. KOENIGSBERG:  Not yet.  It is — I am sorry, it is, I am  43 sorry, at tab 1.  It's 74 and 74(A) of the claim which  44 is in tab 1.  The plaintiffs pleaded that the  45 aboriginal title, jurisdiction and ownership of the  46 plaintiffs has not been and cannot be extinguished or  47 diminished without their consent.  Just taking that 23119  Submissions by Ms. Koenigsberg  1 one, there is a specific denial of that and you will  2 see that on the next page, by the defendant, where  3 this defendant says:  "This defendant specifically  4 denies the allegations as set out in paragraph 74".  5 THE COURT:  Where are you, 74?  Yes, 21.  6 MS. KOENIGSBERG:  Yes.  And 74(A) is also relevant here wherein  7 again the plaintiffs have pleaded that:  8  9 "Further, or in the alternative, no notice  10 thereof was ever given by the Imperial, Federal  11 or Provincial Crown, or any person on behalf of  12 any Crown, to the Plaintiffs or their  13 ancestors, that the aboriginal title,  14 jurisdiction and ownership of the Plaintiffs  15 had been extinguished or reduced by the Crown."  16  17 And again there is a specific denial of that  18 allegation in paragraph 22 of the Federal defence, and  19 it denies specifically the allegations of fact and law  20 contained in paragraph 74(A).  Since we seem to be  21 caught on what is I think fairly described as a  22 technical point of pleading here, it is my submission  23 that my friends need not have pleaded and in fact  24 inappropriately pleaded that there had been no  25 extinguishment.  And I refer you to tab 2.  I am  26 sorry, I am looking for the rules.  Tab 2, it looks  27 like.  Yes, sorry, I think it was a last minute shift  28 of binders.  Rule 19 on Pleadings provides in sub rule  29 (1) :  30  31 "A pleading shall be as brief as the nature of  32 the case shall permit and shall contain a  33 statement in summary form of the material facts  34 on which the party relies, but not the evidence  35 by which the facts are to be proved."  36  37 Idem 3:  38  39 "A party need not plead a fact if it is presumed  40 by law to be true or if the burden of  41 disproving it lies on the other party."  42  43 There is no issue between the parties that  44 extinguishment, diminishment or whatever other word  45 applies, the onus of proving it lies on the party  46 saying it.  47 THE COURT:  I am sorry, I didn't understand what you said. 23120  Submissions by Ms. Koenigsberg  1 There is no issue between the parties.  2 MS. KOENIGSBERG:  That's right, we all understand that the law  3 is --  4 THE COURT:  There is no issue —  5 MS. KOENIGSBERG:  — extinguishment is to be proved by the  6 Crown.  7 MR. GUENTHER:  There is issue on the broader concept, my lord.  8 THE COURT:  All right.  9 MS. KOENIGSBERG:  I take your lordship to tab 4 and to Odgers on  10 the Principles of Pleading and Practice in which he  11 has a charming description of this principle at page  12 91, it is the second page in, of:  13  14 "Do not leap before you come to the Stile".  15 But the pleader should never allege any fact  16 which is not material at the present stage of  17 the action, even though he may reasonably  18 suppose that it may become material hereafter.  19 It is sufficient that each pleading in turn  20 should contain in itself a good prima facie  21 case, without reference to possible objections  22 not yet urged.  It is not necessary to  23 anticipate the answer of the adversary; to do  24 so, according to Hale, C.J., is 'like leaping  25 before one comes to the stile'.  26 It is no part of the statement of claim to  27 anticipate the defence and to state what the  28 plaintiff would have to say in answer to it.  29 That would be a return to the old inconvenient  30 system of pleading in Chancery, which ought  31 certainly not to be encouraged, when the  32 plaintiff used to allege in his bill imaginary  33 defences of the defendant and make charge to  34 reply to them.  Too, it is quite unnecessary  35 for the defendant to excuse himself from  36 matters of which he is not yet accused, or to  37 pleade to cause of action which do not appear  38 in the statement of claim."  39  40 In my submission, the plaintiffs pre-empted the  41 defendants from positively pleading by pleading that  42 which was for the defence.  We joined issue with our  43 friends and in my submission that is the key to  44 whether these pleadings are sufficient for the  45 purposes of the leading of evidence.  I would ask your  46 lordship to turn to tab 2.  Wait a minute.  Yes, it's  47 tab 3 in your book, to some extracts from Sopinka and 23121  Submissions by Ms. Koenigsberg  1 Lederman on The Law of Evidence in Civil Cases where  2 he had little but something to say about pleadings.  3 At page 14 he states what he understands to be the  4 first general rule is that evidence may be given of  5 any fact in issue.  6 THE COURT:  Where are you now?  7 MS. KOENIGSBERG:  It is the bottom of the first full — well,  8 before Facts In Issue, my lord.  9 THE COURT:  Oh, yes.  10 MS. KOENIGSBERG:  It is the first line just before that heading.  11 He is really dealing with relevancy but he makes that  12 statement and in my submission, because it's such an  13 obvious statement, it's hard to find any place else  14 and that's where I found it.  But over on page 18  15 under Limitation Of Pleadings, and that's I believe  16 the second page in your extracts, he says, about the  17 second -- third full sentence under Limitation Of  18 Pleadings:  19  20 "Brief mention must, however, be made of the  21 role of pleadings in controlling the  22 admissibility of evidence.  It has been stated  23 previously that evidence is admissible which  24 relates directly or indirectly to the facts in  25 issue.  These facts are established by the  26 pleadings."  27  28 In my submission, regardless of whether the issue of  29 whether there had been extinguishment or not went in  30 backwards or forwards, it's in.  And it is joined  31 issue on, and all parties who have not pleaded in any  32 contradictory way may avail themselves of leading  33 evidence in regard thereto.  34 THE COURT:  Ms. Koenigsberg, did you use that archaic expression  35 that the parties join issue with the Statement of  36 Claim or the Defence?  37 MS. KOENIGSBERG:  The parties have joined issue by means of the  38 Statement of Claim in defence is what I meant to say.  39 THE COURT:  There isn't a specific pleaded joinder as there used  40 to be.  41 MS. KOENIGSBERG:  I don't believe any of us did but I haven't  42 combed to see if those words were used.  I can  43 remember them being used in replies.  44 THE COURT:  There used to be an archaic document called reply  45 and joinder of issue.  46 MS. KOENIGSBERG:  It is so arcaic that I used it in my practice,  47 although not for a while. 23122  Submissions by Ms. Koenigsberg  1 THE COURT:  In this case as the defendant you wouldn't have been  2 filing a reply.  3 MS. KOENIGSBERG:  That's correct.  4 THE COURT:  You don't use the words join issue in your defence,  5 do you, or do you?  6 MS. KOENIGSBERG:  No, I say that the —  7 THE COURT:  By operation of law.  8 MS. KOENIGSBERG:  The meaning of the positive assertion by the  9 plaintiffs and the denial of that or let's say the  10 material facts, if we are going to call it a material  11 fact of non-extinguishment by the plaintiffs met by  12 the denial of the material fact by the -- simply joins  13 the issue and makes it clear that we -- that's an  14 issue in this case.  15 THE COURT:  You say there is a joinder by operation of pleadings  16 and law?  17 MS. KOENIGSBERG:  Yes.  18 THE COURT:  Yes, all right.  19 MS. KOENIGSBERG:  Now, I'd like to deal — I'd like to say and  20 make it clear that on the pleadings, although I agree  21 that it is not only the practice, it seems to me  22 common sense that one defendant may rely on the  23 pleadings of another defendant if they have not  24 pleaded inconsistently but we do not have to rely on  25 that in order to lead the evidence and make the  26 argument which we say are available to us on our  27 pleadings.  I would ask your lordship to recall that  28 and you heard this last time we began to argue this  29 about the February 1988 motion which resulted in your  30 lordship's reasons, and Mr. Grant was saying to the  31 court that the plaintiff's claims of ownership and  32 jurisdiction, and I emphasize that, because that is  33 what their pleading is about, was superior to any  34 rights enjoined by Canada at that time, that's what he  35 said, in or to any lands in the territory.  And Canada  36 said you haven't pleaded that -- Canada's -- that your  37 rights are paramount to Canada's jurisdiction, and  38 your lordship ruled that they had not pleaded that and  39 they could not lead any evidence on it and Canada need  40 not lead any evidence on it.  Indeed the jurisdiction  41 of the Federal Government in the claimed area as a  42 constitutional right is not an issue in this lawsuit.  43 But the Federal presence as a fact has been an issue  44 from the beginning and has continued as an issue in  45 the beginning -- from the beginning, and the  46 plaintiffs have led evidence directly about things  47 that the Federal Government has done both on railways 23123  Submissions by Ms. Koenigsberg  1 and airports and fisheries because of the impact on  2 the way of life of the plaintiffs.  And I ask your  3 lordship to recall why we are concerned about the way  4 of life of the plaintiffs.  It's because of the plea  5 that they own and have jurisdiction, did and still do.  6 Now, I would ask you to look at your reasons for  7 judgment which are at tab 5.  8 THE COURT:  Before we start on something as unpleasant as that,  9 Ms. Koenigsberg, let's take the morning adjournment.  10 THE REGISTRAR:  Order in court.  Court stands adjourned for a  11 short recess.  12  13 (PROCEEDINGS ADJOURNED AT 11:15 a.m.)  14  15 I hereby certify the foregoing to be  16 a true and accurate transcript of the  17 proceedings herein, transcribed to the  18 best of my skill and ability.  19  20  21  22  23  24 TANNIS DEFOE, Official Reporter  25 United Reporting Service Ltd.  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 9    THE COURT  10 MR. GRANT  11 THE COURT  23124  Submissions by Ms. Koenigsberg  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Ms. Koenigsberg.  5 MS. KOENIGSBERG:  I interrupt my argument, my lord, very briefly  6 to say that Mr. Grant has now advised me that Exhibit  7 For Identification 969-4 can go in as an exhibit  8 proper.  Thank you.  That's correct, my lord.  Thank you.  12  13 (EXHIBIT 949-4: "Alaskan Boundary Tribunal" - R.  14 Scott)  15  16 THE COURT:  All right.  We are about to start on some unpleasant  17 subject.  18 MS. KOENIGSBERG:  Your lordship's reasons are at tab 5.  Yes, I  19 didn't mean for that to follow so directly.  Your  20 lordship was dealing with a number of matters in these  21 reasons, one of which was whether the Federal  22 Government's jurisdiction was in issue.  One was what  23 was the nature of the plaintiffs' claim, and whether  24 it was ownership and jurisdiction solely, or ownership  25 and jurisdiction and use and occupation rights.  I use  26 that term as sort of a general aboriginal rights type  27 claim.  28 I note that in dealing with this matter on page 5  29 your lordship had been dealing with objections to some  30 evidence of loss.  And it had to do in part with loss  31 caused by third parties.  And I'm sorry to ask you to  32 go back one page.  Maybe we should start on page 4.  33 And here your lordship says:  34  35 "Thus...",  36  37 in the middle of the page,  38  39  40 "...it appears that the claim against the  41 Province for damages is for wrongful  42 appropriation and use of territory by that  43 defendant or by its servants, agents or  44 contractors.  There is no similar claim  45 against Canada and indeed it is common  46 ground that any claim for damages against  47 Canada would have to be pursued in the 23125  Submissions by Ms. Koenigsberg  1 Federal Court.  2 My judgment therefore is that while  3 evidence of activities by third parties is  4 admissible on the question of  5 governance..."  6  7 and that was governance by the plaintiff,  8  9  10  11 "...no evidence of lost caused by them is  12 admissible unless it is established that  13 they are servants, agents or contractors of  14 the Province."  15  16 You then go on to page 5:  17  18 "It follows that, absent an appropriate  19 amendment, (and no application in that  20 behalf is before me), evidence of loss  21 caused by the federal presence in the  22 territories or loss caused by its agents is  23 not relevant.  Evidence of direct or  24 indirect federal activities is only  25 admissible in relation to some issue other  2 6 than damages."  27  28 And I simply highlight that because we've had a lot of  29 crossing of concepts here.  There has been no question  30 from day one that the Federal Government was going to  31 lead evidence of its presence in the claim area.  32 There was confusion about what that could be used for  33 until these reasons in which your lordship said to the  34 extent that evidence would be evidence that the  35 Federal Government doesn't have jurisdiction in the  36 claim area that the plaintiffs rights are paramount to  37 fisheries or railways or whatever, that evidence is  38 not relevant.  39 But the fact of the federal presence, its  40 impact -- even the exercise of the jurisdiction, its  41 impact on the plaintiffs is an issue.  And the only  42 thing that can't arise from it is a claim for damages.  43 I'm not going to go through all the transcripts.  44 Numerous times we have heard evidence from the  45 plaintiffs even about damage caused by fisheries  46 activity, for instance.  And your lordship has ruled,  47 well, it is not in for the damages.  But if it has an 23126  Submissions by Ms. Koenigsberg  1 impact on their way of life then it's in.  2 Now, I had quoted earlier what Mr. Grant's  3 position had been up to the end of this argument in  4 your reasons.  And that's set out in the next section  5 under The Nature of the Plaintiffs' Claim.  And just  6 to put in context how the evidence began to go in, it  7 is instructive, I think, to look over at page 6 where  8 your lordship at the top of the page says:  9  10  11 "Mr. Grant says some of aboriginal rights which  12 are open to the plaintiffs are particularized  13 in paragraph 57 of the Statement of Claim.  Mr.  14 Grant also says that the plaintiffs' claims are  15 superior to any rights enjoyed by Canada in or  16 to any of the lands within the territories."  17  18 You then go on to say:  19  20 "Mr. Goldie, on the other hand, says that this  21 is not a Calder type case and that both the  22 Statement of Claim and Prayer for Relief are  23 framed as claims only for ownership and  24 jurisdiction and for damages against the  25 Province for wrongful appropriation and use.  26 He says paragraph 57 is a plea in support of  27 ownership and jurisdiction and that Sections 3  28 and 6 of the Prayer for Relief indicate that  29 Calder type claims are included in but are not  30 independently asserted apart from ownership and  31 jurisdiction.  32 Mr. Macaulay says the Statement of Claim  33 does not support claims against Canada  34 described by Mr. Grant."  35  36  37 And those, again, are the rights superior to rights of  38 the plaintiffs.  39  40 "He mentions particularily that paragraph 69  41 alleges paramountcy of the plaintiffs' rights  42 over past and present enactments of the  43 Province but no similar allegation is made  44 against Canada.  45 In my view it is highly doubtful if the  46 plaintiff has sufficiently pleaded Calder type  47 or other alternative claims to aboriginal 23127  Submissions by Ms. Koenigsberg  1 rights additional to the claim of ownership and  2 jurisdiction.  Such claims are pleaded, if at  3 all, obliquely such as in paragraphs 57 and 75  4 and by reference to aboriginal rights in  5 paragraph 74, 74(a) and in Prayers for Relief 6  6 and 9.  7 It is not for me to suggest or require  8 amendments and it may be that the course of the  9 trial, including the clear statement made by  10 Mr. Grant on February 12, 1988 will be  11 sufficient to permit the plaintiffs to assert  12 alternative claims additional to ownership and  13 jurisdiction.  I leave that question for the  14 time being to counsel.  15 But I agree with Mr. Macaulay that the  16 Statement of Claim does not sufficiently allege  17 the 'paramountcy' of the plaintiffs' alleged  18 rights over federal legislation such as that  19 relating to fisheries and transportation.  I do  20 not think, in the present state of the  21 pleadings, that the plaintiffs, even if  22 entirely successful against the Province, would  23 be entitled to a Judgment that would not be  24 subject to federal legislation relating to such  25 matters as fisheries, railways, airports and  26 other activities authorized by federal  27 legislation."  28  29  30 Now, trying to put ourselves back to where  31 people's minds were when we were pleading, and then  32 subsequently marshaling evidence before we got to  33 February '88, both defendants, but I am not speaking  34 for the Province here, I am speaking for the Federal  35 Government, the Federal Government was pleading on the  36 proposition that it was an ownership and jurisdiction  37 claim.  And that the incidents of the ownership and  38 jurisdiction while in our view may have been incidents  39 which looked and sounded like some of them, at least,  40 would base a claim factually for use and occupation  41 type rights, we did not plead to those specifically.  42 Now, to demonstrate and I think meet the point  43 which in my submission is the only important one on an  44 issue as to pleadings and sufficiency of pleadings,  45 and that is surprise.  But I don't want to deal with  46 it at large.  I wanted to take your lordship through  47 some parts of the course of this trial and the 2312?  Submissions by Ms. Koenigsberg  1 evidence.  The plaintiffs have said that they were  2 taken by surprise that the Federal Government takes  3 the position that the rights as alleged were denied  4 and that the Federal Government was going to lead and  5 or rely on evidence that there was extinguishment,  6 diminishment or abandonment or anything like that, and  7 that they didn't know until the opening that we were  8 going to do such a thing.  In my submission that is  9 just not so.  Not only was there no surprise to the  10 plaintiffs about the character of the evidence to be  11 led, it is a surprise to the Federal Government that  12 the plaintiffs would take this position.  13 I refer your lordship to the interrogatories.  14 Those are found at tab 11.  The interrogatories from  15 the plaintiffs to the defendant, the Attorney General  16 of Canada, are set out at tab 11.  And if you look at  17 paragraph 42 and 43, for instance -- I'm sorry, I am  18 going to put the cart before the horse here.  Let's  19 begin on page 4, paragraph 14.  And I can tell your  20 lordship or remind your lordship, I'm sure you don't  21 remember, although this was argued, the  22 interrogatories issue, the sufficiency of answers and  23 so on, was argued in front of your lordship at length  24 in July of 1987.  These are questions which pretty  25 much are the same for every paragraph of the Statement  26 of Defence.  27 Paragraph 14:  28  29 "On what documents or other facts does the  30 Defendant rely in paragraph 10 of the Statement  31 of Defence, in answer to paragraph 57 of the  32 Further Amended Statement of Claim, to deny  33 that the Plaintiffs from time immemorial  34 governed themselves according to their laws."  35  36 Now, we have got -- if you look at 15, 16, 17, 18, 19  37 and 20, these are all the denials of the specific  38 incidents of ownership and jurisdiction claimed in  39 paragraph 57.  I think the balance were not admitted.  40 But these were specifically denied.  And the ones that  41 were denied were that they govern themselves according  42 to their own laws; that they govern the territory  43 according to their laws, spiritual beliefs and  44 practices; maintained their institutions; maintained  45 and protected their boundaries and confirmed their  46 ownership through various acts.  47 If you look at tab 12 beginning on page 2, 23129  Submissions by Ms. Koenigsberg  1 paragraph 4, this is the answer --  2 THE COURT:  I'm sorry?  3 MS. KOENIGSBERG:  These are the answers of the Federal  4 Government.  5 THE COURT:  I'm sorry, you are going to tab 12?  6 MS. KOENIGSBERG:  Yes.  7 THE COURT:  Yes.  8 MS. KOENIGSBERG:  You might keep your hand in the question or  9 the interrogatory.  But these are the answers of the  10 Federal Government.  It says:  11  12 "In reply to Interrogatory #6 of the  13 Plaintiffs, this Defendant relies on the  14 following facts and documents to support the  15 denials contained in paragraph 5 of this  16 Defendant's Statement of Defence."  17  18 Answer, that they share a common language.  We list  19 some things.  2 0 THE COURT:  I'm sorry, I haven't found —  21 MS. KOENIGSBERG:  I'm sorry, I'm on page 2.  22 THE COURT:  I have that.  But I am trying to get the drift of  23 this.  24 MS. KOENIGSBERG:  These are —  25 THE COURT:  This is Canada's replies.  26 MS. KOENIGSBERG:  On the following facts and documents to  27 support the denials.  28 THE COURT:  Yes, to support the denials.  Yes, all right.  2 9 MS. KOENIGSBERG:  And we list some things under common language.  30 When you get to common laws, we list the Indian Act;  31 the Fisheries Act; files and documents relating to the  32 administration of Indian estates; grants and transfers  33 of Certificates of Possession on Indian reserves;  34 reports by Indian agents; documents referred to in the  35 summary of the report of R.N. Palmer; reports to  36 authorities, Victoria, British Columbia by Messrs.  37 Roycraft and Fitzstubbs concerning certain incidents  38 in 1888 at and near Hazelton, B.C.; Sessional Paper of  39 British Columbia and Canada; records held in the  40 archives of the Hudson's Bay Company; discovery and  41 commission evidence of the Plaintiffs, and so on.  42 Again, that they don't have a common economy, the  43 denial.  And that's on page 3 under (e) documents  44 concerning the commercial fishery and coastal waters;  45 documents relating to the canneries on the Skeena;  46 documents referred to in the summary of the report of  47 R.N. Palmer, and so on. 23130  Submissions by Ms. Koenigsberg  1 Another interesting one on page 5 is the answer to  2 10.  It's number 10 in response to Interrogatory #17.  3 And that was, on what did we rely to deny that they  4 protect and maintain their boundaries.  We relied on:  5  6 "(a) statements made to this Defendant by  7 former and president fisheries and government  8 officials;  9 (b) reports and historical accounts made by  10 government officials;  11 (c) historical accounts of exploration and  12 activities of Hudson's Bay Company employees  13 found in the Hudson's Bay Company archives;  14 (d) historical accounts of the construction of  15 the Collins' overland telegraph;  16 (e) history and construction of the Grand Trunk  17 and Pacific Railway;  18 (f) Sessional Papers of British Columbia and  19 Canada;  20 (g) Jenness."  21  22 There are other references to anthropological material  23 in here.  24 Now, when we got to the denial of the  25 extinguishment plea which is in their interrogatories,  26 it is question or paragraph 42 and 43.  It asks:  27  28 "On what documents or other facts does the  29 Defendant rely in paragraph 21 of the Statement  30 of Defence, in answer to paragraph 74 of the  31 Further Amended Statement of Claim, to deny  32 that aboriginal title, jurisdiction and  33 ownership of the Plaintiffs has not been and  34 cannot be extinguished or diminished without  35 their consent?"  36  37 Our answer --  38 THE COURT:  That was paragraph 42, was it?  39 MS. KOENIGSBERG:  Yes.  4 0    THE COURT:  Yes.  41 MS. KOENIGSBERG:  And 43 is the similar one.  Sorry, my lord,  42 I've lost a page here.  To tell your lordship what it  43 says is that we refuse to answer on the grounds that  44 it is the subject of legal opinion.  I will find it in  45 a second.  And a legal argument and expert opinion.  46 I'm sorry, I'm told that it has inadvertently been  47 left out.  But I can tell your lordship that I can get 23131  Submissions by Ms. Koenigsberg  1 it.  The answer is that we refuse to answer on the  2 grounds that it is the subject of legal argument and  3 expert opinion.  4 At that time, my lord, among other reports that  5 had been given to my friends, one of which was not put  6 forward by the Federal Crown because the essential  7 fact was agreed in the evidence by the time we got to  8 it, we had a legal opinion -- or I'm sorry, an expert  9 opinion on the assertion of sovereignty by Britain and  10 its stages and when it actually happened.  Now, that  11 evidence was, in fact, given by Barbara Lane.  We  12 didn't disagree with it that 1846 was the date.  And  13 so that hasn't been before your lordship.  But that  14 certainly was one of the major items that we relied on  15 to deny that the plaintiffs' assertion of ownership  16 and jurisdiction in the claim area had not been  17 extinguished or could not be extinguished because we  18 were going to argue, as it was obvious to our friends  19 from that report, that Britain asserted sovereignty  20 and the two couldn't live together.  21 Now, why legal argument -- and this was argued  22 before your lordship and you upheld us.  But why legal  23 argument in the context of what we are talking about  24 here is the denial of -- that you can't -- we are into  25 double negatives.  Why is it that the -- what we would  26 say in support of a denial that there had been no  27 extinguishment and couldn't be any extinguishment or  28 diminishment.  In my submission it is simple.  It is  29 because under the incidents of the pleadings where we  30 are denying that you govern, we are asserting that we  31 govern.  That's the only evidence that there -- that  32 we know of.  And we have set that out for our friends.  33 And I might say that there were objections that we  34 weren't complete enough, that we didn't itemize our  35 list for them.  But there was no objection that it was  36 irrelevant or that we didn't have the right to lead  37 that kind of evidence.  Now, that's interrogatories.  38 In my submission, those interrogatories gave the  39 plaintiffs, if they didn't know before, very clear  40 notice of what kind of evidence the Federal Government  41 was looking at.  I don't think we had to tell them how  42 we were going to argue.  43 The second aspect of this, the Federal Government  44 from the beginning of the trial in May of 1987 not  45 only served our friends with the maps of the federal  46 presence and the description of the back-up material,  47 but we also began cross-examining each and every 23132  Submissions by Ms. Koenigsberg  1 witness on a variety of subjects which went to the  2 following.  And this is just a -- I mean it was much  3 more complete than this, but we certainly covered  4 these points:  That the plaintiffs don't live  5 according to their laws; that if the plaintiffs lived  6 according to their own laws before, before the  7 assertion of Britain sovereignty, that our laws had  8 displaced theirs in key areas like fisheries and law  9 and order, criminal law.  10 We cross-examined each and every witness, where  11 relevant, on evidence of dramatic change in the way  12 the plaintiffs lived.  No objection was ever taken to  13 our cross-examinations, or to our leading evidence,  14 positively putting evidence in.  We cross-examined on  15 fishing according to fisheries legislation.  We asked  16 about permits.  We put in permits.  We led evidence in  17 cross-examination about where Indians fish and where  18 they don't.  We led evidence and cross-examined on  19 their going to the coast during the fishing season.  20 We cross-examined on the area and led evidence on the  21 area of where other native people than the Gitksan or  22 Wet'suwet'en and white people fish, for instance, in  23 their claimed territory without their consent.  Never  24 was this objected to.  25 And so I say again the surprise, if there is any,  26 is now that the plaintiffs are coming forward and  27 saying they can't lead evidence on these subjects.  28 They didn't plead it sufficiently.  In my submission,  29 there is no need for an amendment.  The issues are  30 clear.  The issues are joined in the pleadings.  The  31 plaintiffs have known from the beginning of our  32 participation in this trial, which I might say was  33 some two years after everybody else was in so we had a  34 little running to do to catch up.  But we have  35 consistently, one way or another, demonstrated the  36 evidence on which we would be relying.  It is true  37 that we have never said how we were going to argue  38 this case.  And in my submission there is no  39 insufficiency in the pleadings, and there is nothing  4 0 to ground a complaint that my friends are making.  41 THE COURT:  Well, Ms. Koenigsberg, this seems like a  42 straightforward point.  There must be authority on it.  43 I am never ceased to be amazed to find that there is  44 authority on what I thought was clear, and that is the  45 question that I posed the other day.  Can one  46 defendant rely on the pleadings of the co-defendant?  47 MS. KOENIGSBERG:  Well, my lord, I looked for authority on it. 23133  Submissions by Ms. Koenigsberg  1 I didn't find any in simple places to look, textbooks  2 and so on.  Maybe Mr. Guenther has found something.  I  3 had a chat with him, and he hadn't at that time.  4 THE COURT:  Okay.  5 MS. KOENIGSBERG:  But my suspicion is that it is not there  6 because it's obvious for the reasons that -- of the  7 way one conducts a trial.  I could certainly see that  8 you couldn't rely on a co-defendant's pleading if you  9 pleaded in anyway inconsistently with it.  10 THE COURT:  Well, you might be able to if he pleads an  11 alternative.  12 MS. KOENIGSBERG:  Yes, you might be able to.  But my point is  13 this, my lord, the point about pleadings, the main  14 point of pleadings is to, A, prevent surprise and to  15 give us a guide to admissibility.  And sometimes it's  16 a strongly adhered to guide, and I might say sometimes  17 it isn't.  And at the end of a long trial or even a  18 short trial the evidence is in and it is admissible or  19 it isn't admissible.  One of the ways it is or isn't  20 admissible is in relation to the pleadings.  21 But, of course, if there is co-defendant evidence  22 that hasn't been pleaded one usually doesn't say,  23 well, you didn't plead it so it doesn't go in unless  24 it is a simple matter.  There is adjournments given  25 and costs thrown away or something if parties are  26 going to be prejudiced.  But once the evidence is in  27 then all parties can argue that which is advantageous  28 to them, that which they think logically flows from  2 9 the evidence.  30 And in my submission there -- there never should  31 have been any mystery as to what the Federal  32 Government would argue in general, that is that we  33 would argue the general patchwork theory of aboriginal  34 rights, if you will.  That's the basis of the way in  35 which we pleaded and the way in which we led evidence,  36 exploring the basis for use and occupation aboriginal  37 rights.  Because, in our submission as in our  38 pleadings, sovereignty which in our submission is what  39 ownership and jurisdiction means is in law not  40 available.  That will be our submission.  There is no  41 mystery about that.  And factually we would say the  42 evidence supports that.  And that we would be  43 looking -- exploring where aboriginal rights may or  44 may not be within the claimed area.  That it is to be  45 proved site specifically and demonstrated not to exist  46 site specifically.  And that's been the sole basis of  47 all of the cross-examination and the leading of 23134  Submissions by Ms. Koenigsberg  1 evidence from the Federal defendant's point of view.  2 That leaves aside the Province's specific pleading  3 and the leading of evidence that there was a general  4 before confederation extinguishment.  We didn't plead  5 that, and we haven't led any evidence on it.  And, I'm  6 sorry, I can't help your lordship about the law in the  7 Code about whether we can ride on the coattails or be  8 under the umbrella of our co-defendant's pleading.  In  9 my submission, you obviously can because evidence is  10 at large when it is admitted unless it -- I mean for  11 whatever purposes admitted.  12 THE COURT:  Well, if in a libel action brought against two  13 defendants, if one pleads justification and the other  14 doesn't, is justification an issue at large or is it  15 just -- is only one defendant pleading that it is  16 justified?  17 MS. KOENIGSBERG:  Well, I hate to step into the troubled waters  18 of libel.  19 THE COURT:  Well, that's where pleadings are important.  2 0 MS. KOENIGSBERG:  Yes, they are important.  And they are  21 specifically provided for because I know enough to be  22 very careful about pleadings because you know that you  23 have to plead specifically all kinds of things that  24 you don't have to plead in general cases.  But to  25 answer that question, supposing that there is no  26 specific statutory or even practice, or in the  27 rules --  2 8 THE COURT:  Yes.  29 MS. KOENIGSBERG:  — the reason why you have to plead  30 justification, if the evidence is in led by the party  31 who pleaded it, it seems to me beyond co-adventure  32 that the other party if that was the evidence it could  33 argue or support the argument.  I mean why they would  34 say it again, I don't know.  But that they could  35 support the argument on the evidence that there was  36 justification.  I can't imagine not being able to  37 stand up in a courtroom and address the facts.  38 THE COURT:  Well, what about in a motor vehicle accident case  39 against two defendants.  One defendants pleads  40 contributory negligence and the other one doesn't.  41 Can the defendant that does not plead contributory  42 negligence get the benefit of the diminution of  43 responsibility that is found against the plaintiff on  44 the pleadings of the co-defendant?  45 MS. KOENIGSBERG:  I can't imagine why they wouldn't.  If it is  46 found by the trial judge that there was contributory  47 negligence, it would seem to me to be immaterial 23135  Submissions by Mr. Plant  1 whether --  2 THE COURT:  Of course that might arise from the Negligence Act  3 which provides the party only be found responsible for  4 the portion that he is at fault.  5 MS. KOENIGSBERG:  Yes.  If they lead no evidence on contributory  6 negligence or there was no evidence that could show --  7 THE COURT:  Well, let's say they didn't lead any evidence at all  8 and just rode on the coattails of the other defendant?  9 MS. KOENIGSBERG:  Well, then they are subject to what the  10 evidence is.  If the evidence is that -- that it comes  11 out in the course of the other parties leading it that  12 helps them, of course in my submission they would be  13 helped.  And I don't know if I can help your lordship  14 further.  15 THE COURT:  All right.  Thank you.  Mr. Plant.  16 MR. PLANT:  I think, given what I am going to say, it is  17 probably my turn to speak.  And to say firstly that  18 the Province supports the application, if that's what  19 it is, of the Attorney General of Canada.  And  20 supports the proposition that on the basis of the  21 pleadings that the Attorney General has filed, the  22 Attorney General should be allowed to call such  23 evidence and make such argument at the end of the day  24 as he wishes.  25 I would add by way of comment perhaps on your  26 lordship's concerns as you've expressed them in the  27 context of examples from libel cases to contributory  28 negligence cases, I say here that there are special  29 circumstances.  Canada was brought into this  30 litigation in order to be bound by the evidence called  31 in it.  It was -- this was done recognizing that this  32 case before this court might be the first stop on a  33 route that would take us to another court where the  34 issue of responsibility for the plaintiffs' claims  35 could be litigated as between the Province and Canada  36 without the hurdle of a jurisdictional problem.  37 And I say that given that Canada is here to be  38 bound by the evidence, in order to avoid a re-trial of  39 this enormous volume of evidence in another court,  40 that it would not be in the interests of justice here  41 or anywhere to limit Canada's right to call the  42 evidence or make the arguments which Canada thinks  43 ought to be made here, the forum where we hope the  44 primary and perhaps final determination of the  45 relevant evidence will be made.  46 I would say that when your lordship has to  47 consider the application of any jurisprudence that 23136  Submissions by Mr. Guenther  1 might exist with respect to C's right to call evidence  2 when it is riding on the coattails of the defendant B  3 in an action brought by A that your lordship ought to  4 have in mind the special circumstances that I have  5 outlined.  And I say that there are really two aspects  6 to those special circumstances.  That is that the  7 circumstances under which Canada became a party in  8 this litigation and the larger jurisdictional or  9 constitutional issue, if you will, that colours and  10 gives context to Canada's participation here.  11 I would only make this other comment, my lord,  12 that Ms. Koenigsberg has made certain submissions with  13 respect to Canada's construction of the pleadings of  14 the plaintiff.  And I would not wish her submissions  15 to plague us in any argument that we might want to  16 make when the time is appropriate on the nature of  17 effect of the plaintiffs' pleadings and the  18 plaintiffs' obligations at law with respect to the  19 proof of their claim.  That is not a matter that need  20 concern your lordship with -- that your lordship need  21 be concerned with now, but I wished to put that on the  22 record.  23 THE COURT:  Thank you.  Mr. Guenther.  24 MR. GUENTHER:  Well, my lord, I intend to put before you special  25 circumstances here, including perhaps those mentioned  26 by my friend Mr. Plant.  But the reason why I  27 indicated earlier that it seemed appropriate to deal  28 with the issue at this stage was because of what Mr.  29 Plant raises, and that is that one does not want to be  30 in the position of having a case founder on pleadings  31 in a case of this sort.  32 However, the plaintiffs' position is that the  33 rules of the pleadings should require Canada, in a  34 case such as this, to state its position clearly on a  35 number of issues.  And in that regard, and I will  36 address specifically the particular point of practice  37 of whether Canada could rely on the defendant  38 Province's pleadings.  But, in particular, in this  39 regard I would refer your lordship back to Rule 19(15)  40 which was not carried in the book that my friend put  41 before you.  42 THE COURT:  Is that the surprise section, surprise?  43 MR. GUENTHER:  Yes, surprise.  But the point is that there is  44 more than just surprise.  The rule divides and deals  45 with separately what a party shall plead.  And, in  46 particular, says:  47 23137  Submissions by Mr. Guenther  1 "In a pleading subsequent to a Statement of  2 Claim a party shall plead specifically any  3 matter of fact or point of law that.  4 (a) he alleges makes a claim or defence of the  5 opposite party not maintainable,  6 (b) if not specifically pleaded, might take the  7 party by surprise, or  8 (c) raises issues of fact not arising out of  9 the preceding pleading."  10  11 Now, the point that I wish to make is that Canada with  12 respect to its position on -- as my friend puts it,  13 extinguishment, diminishment, abandonment or any such  14 similar term, ought to plead so.  Now, it may well be  15 that at law, and as I say I will get back to it, that  16 Canada could rely on the Province's pleadings.  But I  17 noted that Ms. Koenigsberg was very careful not to put  18 Canada into the cloak room of the Province's pleadings  19 for the purpose of riding on their coattails, and  20 there is good reason for that.  Both my friend Mr.  21 Plant and Canada, counsel for Canada, have indicated  22 the positions of those two defendants are not the same  23 on issues arising on this trial, that there may be  24 significant differences.  So, for instance, should  25 Canada ultimately wish to rely on the Province's  26 pleadings that touch specifically on extinguishment  27 and the like, they may well not want to be in that  28 position.  29 However, generally put the position of the  30 plaintiffs is that they ought to be entitled on the  31 basis of 19(15) and the general law to know Canada's  32 position specifically at this stage of proceedings  33 before the close of the trial for a number of  34 purposes, not only to govern the admissibility of  35 evidence.  One is to be able to be in a position  36 perhaps of seeking to file an amended reply or reply  37 to that position.  And, in particular, I am thinking  38 here of the manner in which Canada's position has been  39 outlined, for instance, in opening.  And with respect  40 to its position, may well open the way for the  41 plaintiffs to plead estoppel or something similar.  42 And this relates to, as well, the type of evidence  43 that the plaintiffs may well seek to tender or may  44 consider tendering in reply which relates to Canada's  45 position taken with respect to this issue as disclosed  46 by some correspondence.  Right now I am thinking of,  47 for instance, the Crombie letter that was discussed 2313?  Submissions by Mr. Guenther  1 yesterday or the day before where Canada seems to take  2 a position that rights exist.  And without any  3 reference to any concept such as is raised by Canada  4 now that is extinguishment, abandonment, diminution of  5 rights, Canada never says anything to the plaintiffs  6 about that sort of thing.  The evidence seems to  7 indicate that Canada never seems to say anything of  8 the like to any Indian in Canada.  But Canada seeks to  9 plead now ambiguously at best, and I submit not at  10 all, those very issues.  11 Now, simply put, Canada ought to plead its  12 position in accordance with the rules.  I go back now  13 to the position raised by your lordship, and that is  14 what can defendants do in reliance on other  15 defendant's pleadings.  And it seems clear on my  16 reading of various authorities, although there are not  17 many, it appears that certainly a co-defendant that  18 has not pleaded a particular proposition in defence  19 that was indeed pleaded by another defendant and that  20 is ultimately successful for the defendant who so  21 pleaded may take advantage of the judgment.  22 That, however, and I will refer your lordship to  23 some -- one authority in particular.  That, I submit,  24 does not go so far as removing the obligation of the  25 defendant who has not so pleaded to plead if put to  26 the proposition that they should plead during the  27 course of trial for various acceptable purposes.  The  28 point, as I understand it, is that where defendants  29 have -- where multiple defendants have raised amongst  30 them by the pleadings of, one, an issue in defence  31 that would be a life issue in defence for all that the  32 courts will not generally allow the defence of one to  33 be so pleaded and allow judgment to be entered against  34 the others.  35 My reading of it, and I am extrapolating somewhat,  36 but I also take this from one particular authority, is  37 the necessity of avoiding inconsistent judgments.  38 That is not as big a concern I submit here, of course,  39 because the plaintiffs seek no judgment against  40 Canada.  I am -- having said that, of course, any  41 judgment here would presumably bind Canada because of  42 its participation.  But I do draw a distinction  43 between that and the case where specific claims had  44 perhaps been made against Canada.  45 However, again, that proposition does not  46 necessarily, I submit, relieve Canada from the general  47 obligation of notifying the plaintiffs of its 23139  Submissions by Mr. Guenther  1 position.  And particularily with respect to those  2 matters of fact or points of law that Canada alleges  3 makes a claim or to a defence that is inapplicable  4 here, a claim of the defendants not obtainable.  And  5 this is with respect to general denial of ownership  6 and jurisdiction.  And, in particular, with respect to  7 the assertion here that Canada will be arguing  8 extinguishment, diminishment or the like.  9 In particular, I would like to refer you to your  10 judgment at tab 13 of the book that my friend passed  11 up which related to the interrogatories.  And I note  12 in this regard, and I'm sorry, before I refer you to  13 that let me refer you to the interrogatories again at  14 tab 11.  At page 9 of the interrogatories, paragraph  15 number 42.  And here the -- here the plaintiffs raised  16 a question with respect to paragraph 21 of the  17 Statement of Defence which was the general denial of  18 paragraph 74 of the Statement of Claim asking only:  19 On what documents or other facts the defendant relied  20 to deny that the aboriginal title of jurisdiction and  21 ownership of the plaintiffs has not been and can not  22 be extinguished or diminished without their consent.  23 Unfortunately, perhaps for the purposes of  24 clarity, there are two things rolled up into that  25 pleading and into the question based upon the  26 pleading.  One is the question of whether consent is  27 required or not.  And the other is, what are the facts  2 8 upon which extinguishment could be argued.  As my  29 friend Ms. Koenigsberg pointed out, there was a  30 refusal to answer the question.  But it is now clear  31 on the position stated by Canada that they are all  32 along, as Ms. Koenigsberg put it, from the outset  33 there were matters that Canada relied on.  34 THE COURT:  I think she told me that there was an answer.  And  35 it is not here, but it was that no specific answer be  36 given because its grounds depended upon legal argument  37 and expert opinion.  I think that response was  38 communicated.  39 MR. GUENTHER:  Yes, she said that.  I don't deny that.  But I  40 simply characterize that as a refusal to answer.  Not  41 that no answer was conveyed, but simply that there  42 wasn't an answer as to material facts.  43 THE COURT:  Yes, all right.  44 MR. GUENTHER:  And that's the point I'm making now.  45 MS. KOENIGSBERG:  That's not true.  We referred you to expert  46 opinion which you had.  47 MR. GUENTHER:  Well, I refer now — I am referring now to 23140  Submissions by Mr. Guenther  1 Canada's position that there are various bodies of  2 evidence here.  I go back to Mr. Macaulay's opening  3 wherein he said that Canada has always acknowledged  4 these rights.  And I pause to say that that's a point  5 of difference that is quite obvious as between Canada  6 and the Province's position here in terms of  7 pleadings.  And he referred to extinguishment and  8 abandonment and the passage of time with respect to  9 abandonment, and then moved into Mr. Loring's reports  10 and spoke of the dramatic changes to Indian society.  11 These are factual allegations.  12 And the whole question of the reliance by Canada,  13 for instance, on, if I can characterize it this way,  14 the move of the plaintiffs away from their own system  15 of law into the federal system, for instance, through  16 wills and administration of estates and the like,  17 fisheries licenses and the like, these are matters of  18 factual allegation.  These are not questions of legal  19 opinion.  These are factual allegations upon which  20 Canada now says it wishes to argue extinguishment or a  21 like concept, abandonment or diminishment.  22 And again I can only go back to rule 19(15) and  23 submit that these are matters of fact or points of law  24 that Canada now alleges make a claim or claims of the  25 plaintiffs not maintainable and require a specific  26 pleading.  I refer you to page 9 of your judgment at  27 the time on the interrogatories.  And with reference  28 to that, you said --  29 THE COURT:  Page 9?  30 MR. GUENTHER:  Page 9 at the top.  The first sentence at the end  31 of the first line wherein you say:  32  33 "The bottom line, however, is that the Attorney  34 General must plead the facts on which he relies  35 or he will not be heard, but I do not think any  36 of the foregoing requires a party, by answers  37 to interrogatories, to support a denial."  38  39 THE COURT:  I haven't found that, I'm sorry.  40 MR. GUENTHER:  I'm sorry.  It is at the top of page 9.  In fact,  41 it is the sentence that begins at the end of the first  42 line at the top.  43 THE COURT:  Yes.  The Attorney General there is the Province,  44 isn't it?  45 MR. GUENTHER:  I believe so.  No, that is with respect to  4 6 Canada.  47    THE COURT:  Is it? 23141  Submissions by Mr. Guenther  1 MR. GUENTHER:  This is dealing with Canada's position on the  2 interrogatories.  There obviously are questions of an  3 argument and law bound up in the interrogatories as  4 they are framed.  But what I am saying here is that  5 the comment that I refer to at the top of page 9 is  6 one that points out the distinction between pleadings  7 and answers to interrogatories.  And to put that in  8 context, I ask you, my lord, to go back to page 7 in  9 the middle paragraph, at line 19 or line 18, I  10 suppose:  11  12 "In addition, however, I can say I agree with  13 Ms. Koenigsberg that one is not required to  14 analyze evidence in accordance with pleadings  15 for the purpose of interrogatories and these  16 questions need not be answered."  17  18 What I am submitting here, simply put, is that  19 whatever the position on interrogatories was, Canada  20 is not, with respect, relieved from the burden or the  21 obligation of pleading its case properly in defence in  22 accordance with the rules.  23 I wish to go sideways, I suppose, for a moment, my  24 lord.  Actually, before I do that -- well, I can deal  25 with that, at least put this before you.  I suppose  26 that the bottom line of what the plaintiffs'  27 submission is here, my lord, is that when one takes  28 into account the purposes of the rules with respect to  29 pleadings, and the general law with respect to  30 pleadings, and the particular complexities of this  31 particular litigation, Canada's position ought not  32 only to be stated ultimately in argument, but ought to  33 be seen to be stated.  That is that they ought to  34 plead the matters upon which they wish to found their  35 argument.  And I say that they have not done so here.  36 And the appeal to the Province's pleadings that was  37 raised initially by your lordship is not taken up by  38 Canada.  And I take that --  39 MS. KOENIGSBERG:  I don't rely on it solely.  I am quite happy  40 to take the benefit of it.  But I say I don't have to.  41 MR. GUENTHER:  Well, if that is so, then the plaintiffs, I say,  42 are entitled to take the benefit of knowing which part  43 of that Canada incorporates into its position.  44 Because we have heard both defendants say that their  45 positions aren't the same on many issues.  And from a  46 practical point of view in terms of identifying the  47 position of the defendant whose position apparently is 23142  Submissions by Mr. Guenther  1 somewhat different in some respects from the other,  2 should not a plaintiff be entitled to look at the  3 pleadings and say this is where the two depart?  We  4 cannot know that if Canada simply is entitled to rely  5 on the entire gamut of pleadings of the Province  6 without identifying that which they rely upon, for  7 instance.  8 And I would submit that the point is somewhat made  9 to the obligation to plead initially by the Province  10 who, in fact, did plead specific matters of fact  11 alleged upon which they found their claim that there  12 has been extinguishment or other like concepts.  Why  13 should Canada not do the same so as to both identify  14 their position and identify points of departure from  15 the Province in this regard because ultimately the  16 plaintiffs have to meet the positions of both  17 defendants in this litigation.  18 There are some outstanding issues, as well, with  19 respect to evidence that the admissibility of which,  20 of course, is governed by the pleadings.  In  21 particular, here I refer to -- well, for instance, the  22 matter that was raised yesterday with respect to the  23 balance of the office of native claims documents  24 surrounding the documents that were tendered, in fact,  25 by Canada.  It is not only in that regard relevance of  26 those documents must be measured not only against the  27 purpose for which Canada tendered those documents  28 presumably with respect to their allegation of overlap  29 and the like, but also to what those documents may say  30 about the Federal Crown's position communicated to  31 Indian people over the years with respect, for  32 instance, to extinguishment, diminishment or the like.  33 And this is an area I pointed to earlier.  It appears  34 from the evidence that that's a position that Canada  35 is not inclined to communicate anywhere except  36 apparently now in this litigation.  37 If so, there may be arguments that arise and  38 evidence made relevant with respect to positions taken  39 by Canada.  In particular, those positions may well be  40 stated by Canada in the documents that surround those  41 comprehensive claims made through the office of native  42 claims.  Where else would they appear but there  43 because that seems to be a place where Canada's  44 position ought to be communicated.  45 I say that, for instance, the Gitksan Wet'suwet'en  46 submitted a comprehensive claim it is evidenced by  47 some of the documents here.  Those documents evidenced 23143  Submissions by Mr. Guenther  1 here do not indicate that Canada conveyed to the  2 Gitksan Wet'suwet'en some years ago that they felt  3 that their rights were all extinguished.  4 MS. KOENIGSBERG:  We don't say that here, either.  My lord, it  5 has been made abundantly clear that we don't take that  6 position here either.  7 MR. GUENTHER:  It is not clear to the plaintiffs that that is  8 abundantly clear here.  9 MS. KOENIGSBERG:  Read your correspondence.  10 MR. GUENTHER:  They say, and I take this from the opening,  11 support, for instance, to a claim of abandonment of  12 rights.  But they do not say what facts, in  13 particular, they rely upon to say that there has, for  14 instance, been abandonment in particular areas.  And I  15 refer here to the material facts this they rely upon  16 in that regard.  Do they say there has been  17 extinguishment of all of the plaintiffs' rights?  My  18 friend says no.  And, of course, Mr. Macaulay said in  19 his opening, Canada has always recognized these  20 rights.  How can you plead extinguishment on the one  21 hand and recollection and confirmation without  22 identifying which rights you say have been  23 extinguished, abandoned or diminished?  24 THE COURT:  Well, what do you say about confining Canada to  25 those matters that it particularized in its response  26 to your demand for particulars?  27 MR. GUENTHER:  It par — well, it was dealt with by  28 interrogatories.  They said nothing.  In response to  29 the denial of no extinguishment, they said nothing.  30 They said that is a matter of legal argument.  Well, I  31 am say now that for the purposes of pleading it is not  32 entirely a matter of legal argument.  It is a matter  33 of legal argument founded upon material facts which  34 the rules require be pleaded which Canada has not done  35 here.  And the pleadings as framed by Canada are not  36 very amenable to demands for particulars unless --  37 unless it be said that the plaintiffs could simply  38 demand particulars of the denials which is not  39 particularily appropriate.  One would like to frame  40 ordinarily a demand for particulars in fairly specific  41 terms so that the particulars relate, for instance, to  42 a particular aspect.  But the plaintiffs have not been  43 allowed to do that by these pleadings.  44 The alternative is should, in fact, in a situation  45 such as this the plaintiffs demand particulars from  46 Canada relating back to the Province's pleadings when  47 the plaintiffs have no particular way of knowing which 23144  Submissions by Mr. Guenther  1 of the Province's pleadings, if any, Canada depends  2 upon.  3 THE COURT:  Mr. Guenther, I'm going to adjourn now.  I will be  4 glad to hear the balance of your submission after  5 lunch.  But I want to leave this with you for your  6 consideration and for your assistance.  Plaintiffs  7 claim in this action against the Province.  The  8 Province defends but says:  We want a declaration if  9 we are liable we want to be indemnified or made whole  10 or to recover our liability, if any, from Canada.  And  11 in that scenario Canada's liability being contingent  12 upon the Province's, should Canada be allowed to  13 defend the action on any ground that is open to the  14 Province?  15 Now, that may be just another way of stating the  16 problem of reliance upon each other's defences as  17 between co-defendants.  But I am wondering if it makes  18 any difference in the sense that in this case it is  19 not just a question of relying on advancing some  20 defenses and relying on others that have been pleaded.  21 It is the case where Canada's whole exposure here  22 depends upon the liability of the Province.  And if  23 the Province can successfully defend itself or  24 successfully be defended, then Canada has no -- has  25 nothing to answer for.  And I would be happy to have  26 your views and comments and assistance on that  27 question of law.  2 o'clock.  28 MR. GUENTHER:  Thank you, my lord.  29 THE REGISTRAR:  Order in court.  Court stands adjourned until 2  30 o'clock.  31 (PROCEEDINGS ADJOURNED UNTIL 2:00)  32  33  34  35 I hereby certify the foregoing to  36 be a true and accurate transcript  37 of the proceedings herein to the  38 best of my skill and ability.  39  40  41    42 LISA FRANKO, OFFICIAL REPORTER  43 UNITED REPORTING SERVICE LTD.  44  45  46  47 23145  Submissions by Mr. Guenther  1 (PROCEEDINGS RESUMED AT 2:00 p.m.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Guenther.  5 MR. GUENTHER:  Thank you, my lord.  If I might answer I think  6 fairly quickly the question that you posed just before  7 the break, and I took that to be a characterization of  8 the issues between the parties defendant as rather  9 creating something that could be characterized as a  10 third party situation.  I would refer only to Rule 22,  11 the third party procedure which requires the third  12 party in that situation if a proper third party to  13 plead the defences that would be -- that could be  14 raised by the defendant before being entitled to take  15 part as a defendant, and the rule is 22(10) which  16 follows the rules that deal with the situation whether  17 third party wishes only to defend against the  18 defendant, and this rule reads:  19  20 "Where the third party has entered an appearance  21 he may file and deliver a Statement of Defence  22 to the plaintiff's Statement of Claim raising  23 any defence open to the defendant and then he  24 shall be in the same position with respect to  25 the conduct of the action as though he were a  2 6 defendant."  27  28 It seems to me that that is -- and I would submit that  29 that's consistent with my earlier submissions that  30 there is no relief here for Canada from the general  31 rules of pleading, whether they be characterized as a  32 third party or with respect to that special issue.  33 And my submission is that they nonetheless must plead  34 that which they -- they must plead the positions that  35 they take.  If I could deal briefly -- there was one  36 point that I wish to add, my lord.  I refer to 19(15)  37 of the Rules which requires a defendant to plead any  38 issue of fact or law that would make the claim of the  39 plaintiff non-maintainable.  I wish to refer as well  40 to Rule 21 which again is in the general pleadings  41 rule that reads as follows:  42  43 "Where a party in a pleading denies an  44 allegation of fact in the previous pleading of  45 the opposite party he shall not do so evasively  46 but shall answer the point of substance."  47 23146  Submissions by Mr. Guenther  1 And in my submission that would be -- that -- well,  2 given the ambiguity of Canada's position, and I say  3 ambiguity as arising from some of the exchanges, Mr.  4 Macaulay in opening in part said this:  5  6 "Your lordship will be asked to provide a much  7 more comprehensive definition because of the  8 multifaceted character of the claim.  Your  9 lordship will be asked to decide who holds them  10 and where are they, in a geographic sense I  11 mean, territorially.  Which ones have been  12 extinguished, and what is required to  13 extinguish, and who has the power to extinguish  14 at any given time?  Your lordship will be asked  15 to decide which of the aboriginal rights have  16 not been used for so long that they may be  17 considered as abandoned.  That, by the way, my  18 lord, is an aspectof aboriginal rights that has  19 received practically no attention in the courts  20 up to now.  Perhaps because the evidence didn't  21 require it.  But it will be something that will  22 be raised by the Attorney-General of Canada  23 here, because as I'll -- and I'll come in a  24 minute to that -- there are village sites and  25 fishing stations, for instance, which have been  2 6 long abandoned."  27  28 In addition, I would submit that while my friend  29 Ms. Koenigsberg rules that the defences together of  30 extinguishment, abandonment, diminishment and like  31 terms, they do have different meanings in law with  32 respect.  They are -- extinguishment has a special  33 meaning in this context as does abandonment and  34 diminishment and they are not simply all the same.  35 MS. KOENIGSBERG:  I wasn't suggesting that they were, my lord.  36 MR. GUENTHER:  Well, the point is that they should then be  37 pleaded as to which points are taken and which facts  38 form the foundation for those assertions.  And that on  39 the pleadings as they stand of Canada those pleadings  40 and those denials firstly as I have submitted do not  41 support the position now taken by Canada but also can  42 be taken to be evasive in that regard because in  43 essence my friend has argued that the simple denial of  44 a pleading by the plaintiffs which she says was not  45 necessary is sufficient.  Well, it is nothing more or  46 less with respect than evasive in that regard.  47 Mr. Macaulay in opening says that extinguishment 23147  Submissions by Mr. Guenther  1 will be argued, abandonment will be argued, the same  2 has I think been said by Ms. Koenigsberg in the course  3 of this argument, yet in the course of my argument  4 before the lunch break she stood to clarify that  5 Canada will not take the position that all rights have  6 been extinguished.  The point is simply this, there is  7 ambiguity there that should be clarified in the  8 pleading.  9 I wish to draw one case to your attention, my  10 lord, because it touches on the point raised  11 specifically by you.  I must say that I don't think  12 that it particularly supports the plaintiffs' position  13 taken earlier but, on the other hand, I submit that it  14 does not stand in the way of our position taken today.  15 This is a decision of Perry and Richardson (ph.) in  16 the King's Bench division, I believe, it is in the  17 Court of Appeal in fact.  This -- it is referred to at  18 the first extract of Bolin and Leak (ph.).  19 MS. KOENIGSBERG:  Which one are you at?  20 MR. GUENTHER:  I will start with Bolin and Leak for the  21 references and then move to the decision, Bolin and  22 Leak under the heading of Form of the Defence at the  23 last page of that extract, page 77.  Last paragraph on  24 that page the editors said this:  25  26 Where there are two or more defendants they may  27 at their discretion either join in one defence  28 or serve separate defences.  If separate  29 defences are served in an action in which the  30 plaintiff has but one and the same cause of  31 action against all the defendants then as a  32 rule the defence of one defendant is available  33 to the other defendants.  34  35 And it goes on.  There is two points that I wish to  36 make, my lord.  The reference in the second sentence  37 that I read Perry and Richardson, but I would suggest  38 that the comment is framed rather as an exception to  39 the general rule and that is that where a defendant --  40 separate defendants choose to sever their defences  41 they must plead separately.  And that of course is the  42 effect of our rules as well.  Perry and Richardson is  43 commented as well in Hallsbury's (ph.) volume in  44 volume 9, fourth edition, which is the next extract at  45 page 428 under the heading "Discharge" the paragraph  46 numbered 3 and the last sentence in that paragraph  47 where this appears: 2314?  Submissions by Mr. Guenther  1  2 Where an action is brought against joint  3 promissors and one of them becomes entitled to  4 judgment in his favour by reason of a defence  5 which the others might have pleaded, the others  6 are also entitled to judgment notwithstanding  7 that they did not plead that defence.  8  9 And the situation as I indicated earlier seems to have  10 arisen from a case in which joint contractors, three  11 of them were sued, the head note of Perry and  12 Richardson outlines the facts and these are those:  13  14 The plaintiffs sued the defendant R for damages  15 for breach of a contract entered into by the  16 plaintiff with a firm in which R was at the  17 time a partner.  The partnership had been  18 dissolved before the issue of the writ.  The  19 former partners...  20  21 And these are the second and third defendants:  22  23 ...E and P were subsequently added as  24 defendants and each put in a separate defence.  25 P pleaded and proved that the plaintiff had not  26 on his part complied with the conditions of the  27 contract and as against P the action was  28 dismissed.  R and E did not in their defences  29 raise the plea upon which P was successful.  30 The trial judge refused leave to R and E to  31 amend and gave judgment against them jointly  32 for the sum claimed.  On appeal held that  33 inasmuch as the three defendants were joint  34 contractors the plaintiff had but one in the  35 same cause of action against them all, but the  36 fact established by P which was common to the  37 whole contract and fatal to any claim upon it  38 the near to the benefit of the other joint  39 contractors whether they had pleaded it or not.  40 Accordingly, judgment must be given dismissing  41 the action against R and E also.  42  43 However, it is a case that deals with the nature of a  44 joint contract in which there is a single cause of  45 action and the judgment is founded upon the peculiar  46 rule of law that only one judgment could be had on  47 such a contract and that appears on page 451 of the 23149  Submissions by Mr. Guenther  1 extract at the bottom of the page in the judgment of  2 the Master of the Roles, starting about five lines up:  3  4 I regret that the attention of Mr. Justice  5 Grier was not called to the point which is  6 this:  that under the principle established in  7 King and Hoar and Kendall and Hamilton where  8 there is a joint contract there but one cause  9 of action and the agreed party may sue all the  10 joint contractors or he may sue one of them but  11 for the purpose of that decision they all stand  12 on the same footing.  13  14 THE COURT:  These aren't joint parties, are they, or are they?  15 I wouldn't have thought so in that case.  16 MR. GUENTHER:  That's the point I wish to make, my lord, is that  17 they are not at all joint in this case and in fact one  18 of the points that I wish to make is that the  19 plaintiffs here may have a reply to Canada's position  20 that may not be available against the Province, and  21 that arises from the question that arises in  22 Garoness (ph.) to the fiduciary relationship between  23 the Federal Government and Indian people and raises a  24 particular question of whether the Federal -- well,  25 whether a fiduciary may ever serve to extinguish the  26 rights of those for which he acts as fiduciary.  But  27 there is -- and it's a point I made earlier as well --  28 my friends have all indicated that there is disparity  29 of positions in the two parties.  There is a disparity  30 in the claims against the parties in that claims are  31 made against the Province but not against the Federal  32 Government.  This is not the same sort of situation  33 which seems to have given rise to the principle that a  34 defendant who's not pleaded the defence that is common  35 may nonetheless rely on the judgment.  And there is a  36 reference in the judgment of the Master of the Roles  37 at page 452 to the judgment in a case Inri Robinson  38 settlement (ph.), and I will start from the last  39 paragraph on 452:  40  41 In the course of the trial attention was drawn  42 to the fact that the plaintiff had failed to  43 establish a liability because he had failed to  44 show that he had performed his part of the  45 contract.  No doubt one defendant alone raised  46 that issue but does that prevent the other  47 defendants from taking advantage of it?  Is the 23150  Submissions by Mr. Guenther  1 court entitled to give effect to what is  2 against one joint contractor and shut his eyes  3 as against the other joint contractors?  4 According to the Inri Robinson settlement  5 effect ought to be given to the matters which  6 are brought to the attention of the Court which  7 can be made available by all parties to show  8 that the plaintiff's claim fails.  I think that  9 what Lord Justice Buckley says is of  10 importance.  Order 19 rule 15 provides that the  11 defendant must...do various things but it names  12 no consequence if he does not do those things.  13 It is not confined to a case where the statute  14 is pleaded, it applies to all cases of grounds  15 of defence or reply which if not raised would  16 be likely to take the opposite party by  17 surprise or raise issues of fact not arising  18 out of the pleading.  Where the defendant ought  19 to plead things of that sort the rule does not  20 say that if he does not the Court shall  21 adjudicate upon the matters of the ground...did  22 not exist which does exist.  23  24 And I pause to say that this was an issue which arose  25 at the conclusion of argument in the case at trial,  26 and the question was whether the other -- the  27 defendants who had not pleaded the defence ought to  28 have the benefit of the judgment.  I do not dispute  29 that conclusion, I simply attempt to distinguish it,  30 my lord, whereas here we are raising the question of  31 pleading in the course of trial late in the day but  32 not so late in the defendant's case with respect for  33 the purpose of being in a position to properly reply  34 both by way of pleading and by way of evidence.  Lord  35 Justice Scruttin (ph.) at page 455, and I simply refer  36 to that, makes a comment about the foundation of the  37 rule is that you can only have one judgment on a joint  38 contract.  And moving to the point at the bottom of  39 the page the last sentence:  40  41 In my view it is merely an application of the  42 principle of King and Hoar that there cannot be  43 two contradictory judgments on a joint  44 contract.  45  46 That was the point that I made earlier.  The last  47 passage from the decision that I wish to refer to, my 23151  Submissions by Mr. Guenther  1 lord, and this is in the judgment of Mr. Justice Romer  2 (ph.) at page 457, the middle paragraph, referring  3 again to the pleading rule:  4  5 That rule has been considered by the Court of  6 Appeal in Inri Robinson settlement where Lord  7 Justice Buckley says:  The effect of the rule  8 is I think for reasons of practice and justice  9 and convenience to require the party to tell  10 his opponent what he is coming to the Court to  11 prove.  If he does not do that, the Court will  12 deal with it in one of two ways.  It may say  13 that it is not open to him, that he is not  14 raised it and he will not be allowed to rely  15 upon it or it may give him leave to amend by  16 raising it and protect the other party if  17 necessary by letting the case stand over.  The  18 rule is not one that excludes one from the  19 consideration of the Court the relevant subject  20 matter for decision simply on the ground that  21 it is not pleaded, it leaves the party in  22 mercy.  23  24 And that is the point that I referred to earlier and  25 that is that where the issue is raised as here in the  26 course of trial and there is a practical purpose to be  27 served, that the party that has stated its position as  28 Canada has in opening and in the course of argument,  29 that party, if its pleadings do not at that point  30 support the assertions, ought to be put to the test of  31 seeking to amend its pleading.  And that's the only  32 point that we take here.  33 We are not saying that Canada could not take the  34 benefit of the judgment here, if there be benefit from  35 such a judgment that arose from the Province's  36 pleadings; rather simply that Canada ought to be held  37 at this point to the rules for the purpose of allowing  38 the plaintiffs to properly respond.  Those are my  39 submissions, my lord.  40 Oh, I should say that really what the plaintiffs  41 are seeking here is an order that, if Canada wishes to  42 rely on those defences that they have now indicated by  43 opening and through comments of counsel that they wish  44 to argue, that they simply ought to seek to amend  45 their pleadings to accord with Rule 19(15) and that  46 the plaintiffs be at liberty to reply to that, having  47 not filed a reply to Canada's defence and presumably 23152  Submissions by Ms. Koenigsberg  1 also allowing for demand for particulars if those  2 amended pleadings were not sufficiently  3 particularized.  That would be speculative at this  4 point, but allowing for that right.  Thank you.  5 THE COURT:  Thank you.  Ms. Koenigsberg.  6 MS. KOENIGSBERG:  Well, I strongly resist my friend's suggestion  7 that we should amend; as I say, that the purpose of  8 amending is not served here and my friend has  9 basically, as I understand his argument and I don't  10 mean to summarize it unduly, he's not really saying  11 that they are taken by surprise; he is not really  12 saying that they haven't been told what it is Canada  13 will rely on in its position that says that there has  14 been extinguishment or diminishment, however with a  15 double negative.  He says that it shouldn't be in the  16 interrogatories or some other place; it should be in  17 the pleadings, and with the greatest of respect the  18 only reason why my friend would want to suggest that  19 is that he wishes to at this point reply, and I would  20 ask your lordship to consider that if the need to  21 reply is to assert such doctrines as estoppel based on  22 some notion of the fiduciary obligation of Canada not  23 to extinguish, which is an interesting novel notion.  24 With respect there were two separate propositions --  25 I was going on to the second one.  26 MR. GUENTHER:  No, rolled up into that sentence I think that was  27 two propositions.  28 MS. KOENIGSBERG:  Or that as far as that, they might want to  29 argue that we are estopped from denying their  30 aboriginal rights because in some other context or  31 some other time somebody of Canada, somebody  32 representing Canada, they say, may have not said that  33 their rights were extinguished.  Let's assume that's  34 so.  Surely that is then an estoppel assuming that  35 such would apply to the denial that Canada made in the  36 pleadings.  Surely if Canada is supposed to have taken  37 a contrary position to extinguishment, it is estopped  38 then from denying what it denied and which again only  39 points up the fact which I repeat one last time.  The  40 issue was joined and to the extent that it could be  41 necessary or that my friends are in some way  42 prejudiced because the pleading does not contain what  43 I would say is evidence as to the nature of the  44 extinguishment, I say that my friends had the  45 characterization of the categories of things in the  46 interrogatories and the best illustration of that is  47 that my friend said, well, they didn't plead 23153  Submissions by Ms. Koenigsberg  Ruling by the Court  1 abandonment, that they are suggesting that they will  2 argue from the facts, and I can tell your lordship we  3 didn't know until we had seen the evidence, read the  4 Loring documents and heard the evidence.  We did not  5 know that fishing and other villages were abandoned so  6 there was no possibility that we could have pleaded it  7 and there is no possibility that it would have been on  8 any particulars and that's because it is evidence.  9 Those are all my submissions.  10 THE COURT:  Thank you.  My present view, and I start that way  11 because I am unpersuaded that it is necessary at this  12 stage for the court to pronounce finally on what use  13 may be made of evidence already admitted until --  14 already admitted without special qualifications until  15 the end of the trial.  My present view is that the  16 pleadings, the interrogatories, and the responses to  17 them in the course of the trial leave no doubt that  18 Canada's position is generally speaking that the  19 plaintiffs' aboriginal rights if any have been  20 extinguished in whole or in part or at least  21 diminished or modified to some extent.  That much I  22 think is clear from Canada's defence and from the  23 procedures I have mentioned, including the course of  24 the trial and I do not think there is any possible  25 question of surprise or prejudice up to this point.  I  26 think the plaintiffs have by affirmative pleas in  27 their Statement of Claim where they allege that these  28 rights have not been extinguished and Canada's denial  29 puts these questions in issue and I believe Canada is  30 entitled to call evidence on these questions and to  31 advance arguments.  I would not therefore put Canada  32 to any election to amend as a condition to relying on  33 evidence for the purpose of such defences or of  34 advancing arguments.  35 By having said that, it is also my view that there  36 is ambiguity in the position Canada has taken with  37 respect to the question of extinguishment or  38 modification of aboriginal rights or there may be some  39 such ambiguity and there may also be a difference on  40 this question between the Province and Canada.  And I  41 think that the plaintiffs are entitled to a clear  42 statement, either by way of some further answer to the  43 plaintiffs' interrogatories or by giving additional  44 particulars or by counsel making a specific statement  45 of the extent to which it says aboriginal rights if  46 any have been affected or modified.  I would prefer to  47 see it done in writing because I think those -- I 23154  Ruling by the Court  Discussion  1 think such important matters should be in form where  2 there can be careful examination of scrutiny.  And if  3 it is necessary in order to see that this is done, I  4 would be prepared to entertain an application for some  5 particulars.  I do not think that the plaintiffs are  6 prejudiced by reason of being unable to plead by way  7 of reply.  I think they, having filed the first  8 pleadings in this regard, are entitled to reply now  9 and I think the defence pleadings are sufficient for  10 that purpose.  11 And so I am not able to give effect to Mr.  12 Guenther's submission with regard to the question of  13 reply.  I think, however, that I have said as much as  14 need be said and I will leave it to counsel to  15 determine how this matter may be clarified so that the  16 plaintiffs will know while preparing their argument  17 what they must expect by way of argument from Canada  18 on this important issue of this case.  19 MR. GRANT:  I am not certain if Ms. Koenigsberg has other  20 matters.  There are, with respect to the Federal case  21 and flowing from the issues raised by Mr. Guenther in  22 which you have just directed, there are two other  23 matters that flow from that that I wish to raise at  24 some point with respect to the Federal case but I am  25 not certain --  26 THE COURT:  Ask Ms. Koenigsberg if she has anything else.  27 MR. GRANT:  Yes, she may have something else, I am not sure,  28 with her housekeeping.  29 MS. KOENIGSBERG:  I would like to tender the historical  30 documents, to reserve a number, so that my friend can  31 review them.  There are three volumes and they are  32 entitled The Historical Document Collection so if we  33 could reserve a number and then I guess they would be  34 1, 2, and 3.  35 THE COURT:  Well, we have been using A, B, and C.  36 MS. KOENIGSBERG:  Oh, I am happy with A, B, C.  37 THE COURT:  I think it is 1239.  38 THE REGISTRAR:  Yes, my lord.  39 THE COURT:  1239A, B, and C reserved.  40 MS. KOENIGSBERG:  And I can advise your lordship that there are  41 159 tabs and a few tabs contain several documents if  42 they came from one source and they span a wide variety  43 of topics and sources from Hudson's Bay, archival  44 materials which I guess missed some other people's  45 net, to I think some archival correspondence relating  46 to a great variety of topics which have been  47 canvassed.  The intent here was to include documents 23155  Discussion Re:  Exhibits  1 which add to or clarify in our position -- it would be  2 our position, add to or clarify topics which have been  3 canvassed, and to our surprise in all of these there  4 are many important documents in our submission which  5 were left out, left out or skipped over.  There are a  6 number of the few Loring documents of this collection  7 which didn't make it into the other ones because they  8 weren't reports of the currents, a few petitions of  9 the plaintiffs', some -- a couple of treatises, a  10 number of documents from missionary archives, and I  11 think that will suffice until my friend has a chance  12 to look at it and see if he has any response.  13 THE COURT:  All right.  You take the view that they are all  14 admissible as archival or ancient documents or --  15 MS. KOENIGSBERG:  Treatises or — yes, one way or another.  16 THE COURT:  Yes.  17 MS. KOENIGSBERG:  Now, I guess I should mention — I don't think  18 I have to bother the court.  I can tell my friends  19 about the other matter.  20 There is just one other document which I would  21 tender at this time which seems to stand alone simply  22 because it's a court document which I believe is  23 admissible on its face and it is the Statement of  24 Claim of the Gitwangak for a declaration as to  25 aboriginal rights.  26 THE COURT:  In the Federal Court?  27 MS. KOENIGSBERG:  Yes, my lord.  And I have an original here.  28 THE COURT:  I hope it has a gold seal on it, has it?  29 MS. KOENIGSBERG:  Yes, it does.  30 THE COURT:  Very impressive.  All right, 1240.  31 THE REGISTRAR:  As an exhibit proper, my lord.  32 THE COURT:  Yes.  Anything with a gold seal on it there can't be  33 a question about it.  34 MR. GRANT:  Just one point with this.  She's asked that it be  35 marked 1240?  3 6 THE COURT:  Yes.  37 MR. GRANT:  I wish to reserve the relevance but I don't wish to  38 argue it now.  39 THE COURT:  How can there be any question when it has a gold  40 seal on it?  41 MR. GRANT:  And it is a Federal Court of Canada trial division,  42 I agree, my lord, it is hard to argue relevance.  It  43 flows it's all part of how we'll deal with the issues  44 as a result of your lordship's ruling here and that  45 may not need to be argued.  46 THE COURT:  Are these people serious about this?  The plaintiff  47 is Gitwangak. 23156  Discussion Re:  Exhibits  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  MS.  MR. GRANT:  My lord, my friends also -- of course we may wish to  file and I believe this matter was discontinued, prior  to, I recall, I think the commencement of this action  and counsel on this action here, that is on the action  that my friend has filed, was not the same counsel,  and I think as your lordship points out we can start  with the style of cause which goes to -- it says  Gitwangak.  THE COURT:  Is this a full Statement of Claim, one page?  MR. GRANT:  I think you have the whole thing, my lord.  But I am  sure that in the particulars my friend will provide me  we might clarify how they are going to use this in  terms of relevance.  THE COURT:  I wouldn't —  MR. GRANT:  I mean, the issue of what this goes to -- goes to  the same issue as the ONC documents, that's what I am  saying, and I have asked to reserve on that argument  of relevance as well.  Yes.  I don't mind it being -- the number being just  reserved at the moment.  It seems to me to be prima  facie admissible as a possible inconsistent statement  to a claim to title based upon oral history.  KOENIGSBERG:  Well, my lord, the nature of the bringing of  the action, I would have actually thought that the  relevance of it was obvious on its face and I just --  one of -- at least one of the reasons, I don't say  this is the only reason, this is an action which is  brought by Gitwangak which among other things is a  village or reserve.  THE COURT:  Well, said to be a body politic.  MS. KOENIGSBERG:  Yes, body politic, and it says it claims the  aboriginal rights to the region in question and that  region in question is claimed by house chiefs today  and I think that we have said before, we have said in  our opening that we think that one of the issues that  your lordship is going to have to determine in that we  will have submissions to make on it as a result of our  analysis of all of the evidence, are the right parties  before your lordship.  I mean, as do are they the  parties that hold whatever the rights are.  That's  all.  THE COURT:  Trying to look at this map and see.  MR. PLANT:  The map's already an exhibit, my lord, I think the  number --  THE COURT:  Are there different pages of maps?  MR. PLANT:  The map is Exhibit 352 capital A-l.  THE COURT:  Oh, yes, I am sorry, I was misreading it.  It says 23157  Discussion Re:  Exhibits  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  Skeena crossing, I thought it said Skeena landing.  The Skeena crossing is just up the river of the  village of Gitwangak, is it not?  MR. GRANT:  No, the Skeena River is just up -- it is where the  railroad crosses.  Yes, where the railroad crosses.  But it's upstream of Kitsegukla, my lord, not  Gitwangak.  You can see Kitsegukla right below the  word Nass.  Oh, yes.  Yes, I see it.  And that helps you to place it.  I can't find Gitwangak.  Gitwangak actually is on the second page as well if  you see Andimahl going down river.  Oh, I see it.  Then you can see Gitwangak and you see Highway 37.  Yes, all right.  Well, I will hear you in due  course.  It seems to me that it's probably admissible  for whatever value it may have.  Yes.  I believe my friend is finished --  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  MR.  MS.  MR.  MR.  MR.  MR.  MS.  MR.  MS.  THE  MR.  GRANT  KOENIGSBERG:  Yes.  GRANT:  — her matters.  PLANT:  I do —  GRANT:  I have a matter to raise vis-a-vis the Federal  Crown.  PLANT:  All right.  It —  KOENIGSBERG:  I am sorry.  PLANT:  If I may just for a moment.  KOENIGSBERG:  We don't know if it's marked or not.  COURT:  It's 1240 reserved only at the moment.  Mr. Plant.  PLANT:  It's only a small complaint that anyone trying to  make sense of the record of this case is going to have  to go to at least two places in the record to find out  whether a document which is so transparently relevant  to the issues of this case can be marked as an  exhibit.  It just -- it defies comprehension that  there should be the slightest issue of relevance with  respect to this document and that somehow we have to  reserve decision on it is with respect a difficult  proposition for me to understand but be that as it  may.  THE COURT:  That's just the way they talk in Cambridge, Mr.  Plant.  They don't know how complicated we can make it  out here.  MR. GRANT:  My lord, a couple of points and this goes to the  issue of --  THE COURT:  I must say I tend to agree with what Mr. Plant said 2315?  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  GRANT  COURT  GRANT  MR. PLANT  MR.  THE  MR.  GRANT  COURT  GRANT  THE COURT  MR.  THE  GRANT  COURT  MR. GRANT  but even though --  You say you do tend to agree?  I tend to but that may be --  I think there is a flaw in my friend's thesis as to  the relevance of that kind of document for the  argument they wish to make and I --  I'd like to know if it is.  That would be wonderful  to see how this document could possibly be relevant.  Well —  We will hear in due course.  Thank you, my lord.  There is some matters that I'd  like to deal with that I think have to be dealt with  today in the sense that in order to keep us on track,  and the first matter is with respect to the issue that  was raised yesterday of Miss Simon, and I am asking  your lordship now to grant leave for the discovery of  Mrs. Simon at this point and that would alleviate the  problem that I raised yesterday.  There is of course  authority for that proposition that the court can --  discovery is not a matter of right at this point.  There was no discovery of any Federal witness.  The  interrogatory process is what was used but of course  at this stage of the trial it is a question of  discovery with leave, and that issue is the question  of the right of discovery was set out by Mr. Justice  Wootton in the A & D Logging case and that of course  was a case where he found it was a discretionary  matter and that the right of discovery in that case,  he allowed an examination for discovery after judgment  on the quantum of damages and, at page 444, he says  that the course -- the third paragraph down, "The  course of the proceedings must to some extent dictate  the discretion", and this was when the --  Mr. Grant, isn't your application premature?  Surely  an examination of this lady could not be helpful until  the question is resolved regarding the relevance of  the documents of which you spoke yesterday.  Well, that in part --  If for example -- if I may continue.  If for example  I conclude at the end of whatever learned argument I  am going to receive that there are no documents that  need be produced on the grounds of relevance, well  then, what earthly good would an examination do?  I think you have confused two batches of documents,  my lord.  I see what you are directing your mind to.  Mrs. Simon -- there were two arguments yesterday.  Mrs. Simon was the estates officer or is the estates 23159  Submissions by Mr. Grant  1 officer responsible for the Hazelton office with  2 respect to the wills collection, they have been  3 reserved as Exhibit 1237 capital A, subject to the  4 cross-examination of Shirley Peters.  5 THE COURT:  Oh, I see.  6 MR. GRANT:  You are thinking I believe of the ONC documents and  7 the relevance there.  8 THE COURT:  All right, thank you.  9 MR. GRANT:  Now, what is the -- why should we have a right of  10 cross-examination?  Well, I think it bears -- it flows  11 directly from the concerns raised by Mr. Guenther in  12 his argument and the responses thus far by Ms.  13 Koenigsberg and that's this:  That the conduct of  14 Canada in accepting or relying upon Gitksan or  15 Wet'suwet'en laws in the administration of the estates  16 is as relevant in terms of a reply to their pleading  17 now that their pleading is incorporated the issues of  18 extinguishment, abandonment and diminishment as is any  19 conducts of a chief in making a will and of course the  20 context of that document; in other words, how the  21 house group or the chief or the chief's descendants  22 deal with that document is certainly relevant and  23 probative evidence to defend against or take into  24 account I should say how the will should be relied  25 upon and it's not merely the document.  And it is for  26 that reason I say it is relevant now to -- for us to  27 examine this witness for discovery and that it would  28 be appropriate for us to have that examination prior  29 to -- and not only appropriate but necessary for us to  30 have that examination for discovery prior to our final  31 reply and I say that that's a more appropriate method  32 in the circumstances at this stage than to get -- go  33 into the question of calling her on reply, and it's  34 more practical, if I may be blunt about it, and the  35 issue is raised directly by the province or the  36 Federal Crown now, the tendering of these documents  37 has -- and the introduction by Mr. Macaulay yesterday  38 as to how he saw them being used for by Canada, it  39 makes all of that relevant.  And yesterday I asked to  40 have Miss Simon, the true custodian of the documents,  41 tendered for cross-examination instead of Miss Peters  42 and you commented on it but found of course that under  43 the section they were referring to you couldn't do  44 that, but here is a provision, here is the  45 alternative; in other words, what I am saying to you  46 is that that could be scheduled in the context of the  47 examinations of the -- out of court examinations of 23160  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  MS.  MR.  the other witness as well.  THE COURT:  Well, is there any suggestion, and I must apologize  when I say that I can't remember what purpose Mr.  Macaulay said he was going to -- that he had in mind  for the wills, but I thought it was for the purpose of  showing that the testators conducted their affairs  other than in accordance with Gitksan law.  GRANT:  But he wants —  COURT:  Did he go beyond that?  GRANT:  He says that what the -- that the testators  transferred crest or house property in a manner  different than Gitksan law.  KOENIGSBERG:  Expressed the intention to.  GRANT:  Expressed the intention to and he said it doesn't  matter what happened, don't see what happened, but  what we say is that the testators were not isolated  individuals; the testators were members of house  groups and descent groups and everything else and if  my friends want to use these wills in that way, if  that's the ambit where they are opening up, we say  what in fact happened, not what the testator wrote or  had -- had an Indian agent write for him but what in  fact happened with respect to house and crest  properties not among the Nuutsenii, not among some  other group, among the Gitksan and the Wet'suwet'en.  PLANT:  Yes, a year and a half of that evidence.  GRANT:  And that I say is that we should have a right of  discovery of this -- of the witness that would be  knowledgeable about that and that is the issue and  that is probative to what -- my friends can't just put  the bare document before you because I say that  that -- I dare say that that is ultimately misleading.  It is misleading because it's not -- does not set out  all the facts that relate to that very narrow issue  and that's the issue that we wish to cross swords, if  I may say, with my friends on respecting these wills.  My friends say by putting in these pieces of paper  this is going to mount their argument, that this is  what happened and we say fair enough but there is a  response to that and that response is in the  knowledge -- in the knowledge of the Federal Defendant  and it's in the knowledge of the persons who they have  so far cloaked and protected by making sure that they  have a person as far away from these files as possible  swear to the custodial issues.  So I would ask that we  be granted leave to examine Mrs. Simon for discovery  with respect to these issues.  As I say, we have not  MR.  MR. 23161  Submissions by Ms. Koenigsberg  1 examined any Federal witness thus far.  2 THE COURT:  Thank you.  I suppose I should hear Mr. Plant.  3 Maybe I have heard your submissions.  4 MR. PLANT:  I have no submission to make on my friend's  5 application, my lord.  6 MS. KOENIGSBERG:  My lord, this is a terrific attempt to split  7 the case of the plaintiffs'.  8 MR. GRANT:  That's not correct.  9 MS. KOENIGSBERG:  I didn't think you'd agree with it.  Let's  10 start from the proposition that these documents, the  11 production of these documents by the Federal  12 Government at this time in this form has precluded my  13 friend from looking at the files which have been  14 available to him for over two years, and from looking  15 at the files when we gave him notice that we were  16 going to produce these documents out of these files  17 and that we had them in our offices probably two  18 months ago and, if there were -- is anything else in  19 those files that he wanted to see, there they were.  20 Now, if my friend still thinks that there is something  21 in those files that is relevant to the point that a  22 testator who in most instances turns out to be a  23 hereditary chief has made known his or her intention  24 at one point in time, and we will argue that that has  25 a meaning, then he is still at liberty to look at the  26 files and say, well, that isn't the whole story, after  27 all somebody in the family complained or it didn't get  28 administered or I don't care what, whatever it is that  29 is relevant, what Mrs. Simon can give evidence about  30 is in the file.  The documents are there.  31 Now, if my friend wishes to argue his case through  32 Mrs. Simon somehow that's not related to the documents  33 that are in the file, he will meet with strong  34 objection.  There can be no purpose in Mrs. Simon  35 being called to agree or disagree with my friend's  36 interpretation of the activities of the plaintiffs in  37 relation to the Hazelton office for the last 15 or so  38 years, I don't know how long Mrs. Simon was there, but  39 I know she wasn't there when probably half of these  40 wills were made because I don't think she's that old.  41 In my submission, it is totally irrelevant what  42 happened to the wills after the testator made them.  43 They are an expression of the testator's view at that  44 time, and that in our submission is all they can go in  45 for and all the use that can be made of them.  But as  46 I say, my friend doesn't require a discovery of Mrs.  47 Simon in order to unearth documents that are relevant 23162  Submissions by Ms. Koenigsberg  Reply by Mr. Grant  1 to those wills.  He's had availability since the  2 Federal Crown has had availability if he didn't have  3 it before.  And, furthermore, I would point out that  4 the facts are that my friends seem to think would be  5 relevant to any of these wills surely must be known to  6 the plaintiffs.  They are the plaintiffs' ancestors'  7 estates.  That's number one.  8 Number two, since sometime in May of 1987, the  9 issue of plaintiffs' ancestors or relations making  10 wills has been put forward by this defendant and it  11 has been cross-examined on.  And my friend has had the  12 opportunity and has availed himself of it of entering  13 whatever evidence he thought was important and we have  14 heard lots of evidence as Mr. Plant perhaps not very  15 eloquently put and perhaps not at the right time, we  16 have spent at least a year and a half listening to the  17 plaintiffs' evidence about how their laws are  18 governed.  Now, all that has happened is that Canada,  19 who did not necessarily have available to them a  20 witness put up by the plaintiffs who would have  21 knowledge of a particular will and of course we were  22 obstructed from doing so half the time in any event,  23 puts those wills forwards and they are put forward  24 properly and I would say, my lord, they are not put  25 forward technically.  The fact that we are calling  26 custodial witnesses is because my friend will not  27 admit that documents he knows come from the Hazelton  28 office come from the Hazelton office.  That's all  29 that's required to make those documents admissible.  30 And their admissibility and the use that can be made  31 of them is from the face of the document itself.  It's  32 an admission against interest if nothing else.  33 And so I think that my friend's suggestion of the  34 discovery of Mrs. Simon is nothing short of an attempt  35 to, not only split his case, but to put forward some  36 kind of evidence which in my submission in the light  37 of day would not make relevant.  38 THE COURT:  Thank you.  Mr. Grant.  39 MR. GRANT:  Well, I am not asking to examine Mrs. Simon with  40 respect to documents.  I agree with my friend if it is  41 a question of the documents that I -- and that we may  42 well do, we may well as part of our reply file  43 response of documents to the wills and there is no  44 need to ask for discovery on that.  My friends have  45 now made it clear and it is clear now that  46 extinguishment -- that the Provincial -- the Federal  47 Crown's position is relying on all of these points and 23163  Reply by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  also that we are at liberty to reply.  One of our  replies that I anticipate, and what this goes to is  estoppel on the part of the Federal Crown to -- and  the estoppel issue here is that the Federal Crown not  only acquiesced or accepted but the Federal Crown  conducted itself.  THE COURT:  Mr. Grant, estoppel surely is not an issue in this  case.  MR. GRANT:  I am sorry?  THE COURT:  Estoppel can't be an issue in this case, can it?  MR. GRANT:  Well, my lord — well, that, my lord — first of all  I am going to wait until I get -- until we frame up  the particulars and get the particulars from the  Federal Crown to clarify this issue.  THE COURT:  That's not going to be surprising I am sure.  I am  just -- I don't think estoppel is a live issue.  It's  not in the pleadings.  It's never been mentioned until  now and we are on the 307th or 8th day of the trial  but it's --  MR. GRANT:  The conduct of the Federal Crown and the Federal  Crown's -- the Federal Crown's continued -- it's not  one or two statements.  Continued recognition for at  least 18 years of aboriginal rights certainly is going  to be.  THE COURT:  But there has been so much talk about aboriginal  rights, Mr. Grant, that nobody knows what it is,  nobody knows what they are talking about, and estoppel  has to be something that's unequivocal.  MR. GRANT:  Well, that's right, and that is where I think that  the whole question of the Federal Government's -- with  respect very specifically, with respect to the Gitksan  and Wet'suwet'en, the way the Federal Government has  dealt with the wills of the Gitksan and Wet'suwet'en  has been in a way in support of accepting the Gitksan  and Wet'suwet'en laws of descendancy, and that's the  issue that I wish to be able to examine this witness  on and the issue comes to a head when my friends put  in the wills as exhibits for that very purpose.  That's all it is.  I am not talking about some broad  ranging discovery, my lord, perish the thought, I  don't want to do a discovery at this stage.  I don't  want that but we have no choices in the situation.  THE COURT:  I think with great respect it seems to me that's an  exaggeration.  MR. GRANT:  Well, we have a choice but I say —  THE COURT:  You know there were all kinds of choices and the  choice has been made as the case progresses but 23164  Ruling by the Court  1 nothing has happened that changes the face of the  2 complexion of this lawsuit.  I have already held that  3 the pleadings of Canada join issue with the -- in the  4 question of aboriginal rights.  You haven't made any  5 misapprehension in that regard except as to a matter  6 of degree, but I am not going to deal with your  7 application, I am sorry, Mr. Grant.  I am going to  8 think about it.  I hope you will think about it, too.  9 I do not think estoppel is a part of this case.  It  10 may in reflection lead me to think otherwise but, if  11 you want to look at those documents that are in the  12 custody of this lady that you want to examine, if  13 something is done so you want to renew your  14 application, I will be glad to hear what you have to  15 say but I am not persuaded at this time if there is  16 anything in that at all and you will have to pursuade  17 me otherwise.  18 MR. GRANT  19 THE COURT  2 0 MR. GRANT  21 and examination of the documents,  22 THE COURT  2 3 MR. GRANT  2 4 THE COURT  2 5 MR. GRANT  Well —  After looking at the documents.  We will proceed with the examination of Mrs. Peters  You have the order for Mrs. Peters.  We may get to where we wish to be.  All right.  There is something more to do, is there?  I am not certain if there is anything more on the  26 Federal side.  I just want to -- I had hoped myself to  27 be able to leave a bit early.  Mr. Rush wished me to  28 call him at the break if there are some other matters.  29 THE COURT:  I only need to break now because madam reporter is  30 obviously weary as we all are.  Do we need to adjourn  31 or do we need to come back or what do counsel say we  32 should do next?  33 MR. GRANT:  Well, maybe we should have the adjournment now, my  34 lord.  35 THE COURT:  All right.  36 MR. GRANT:  Yes, thank you.  37 THE REGISTRAR:  Order in court.  Court stands adjourned for a  38 short recess.  39  40  41  42  43  44  45  46  47 23165  Proceedings  1 (PROCEEDINGS ADJOURNED AT 3:05 p.m.)  2  3 I hereby certify the foregoing to be  4 a true and accurate transcript of the  5 proceedings herein, transcribed to the  6 best of my skill and ability.  7  8  9  10  11    12 TANNIS DEFOE, Official Reporter  13 United Reporting Service Ltd.  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 23166  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE REGISTRAR  THE COURT  MR. GRANT  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  Order in court.  Mr. Grant.  My lord, just to -- there was an outstanding matter  with the province relating to exhibits for  identification.  And I can advise Madam Registrar in  the court on these.  My friends have requested that  Exhibit 1062 which was reserved for a copy of the  Marvin George planometric mylar be marked as an  exhibit.  And we have now -- that has been resolved.  And the copy my friends want to tender as that exhibit  can be so marked.  I don't believe -- I believe that  it is --  MS. SIGURDSON:  I can provide a copy to the court.  THE COURT:  Thank you.  (EXHIBIT 1062:  Marvin George Planometric Mylar Marked  as Exhibit Proper)  MR. GRANT  THE  MR.  THE  MR.  THE  MR.  MR.  COURT  PLANT  COURT  GRANT  COURT  GRANT  PLANT  Exhibit 514, these are exhibits that I understand  were exhibits for identification.  And these we  withdraw any objection to them being marked for  identification.  They can be marked as exhibits  proper.  Exhibit 514, 611 capital A-2, Exhibit 814  that I already agreed to this morning.  Exhibit 661-1,  and exhibit --  Is that 661-1 For Identification?  No, capital I.  Yes.  No, my lord, capital I.  Yes.  It is one of the commission witnesses, I believe.  It was marked as an exhibit on the Richard Benson  commission, my lord.  (EXHIBIT 514:  Crown Grant and plan to Stephen  Morrison dated February 22, 1928 Marked as Exhibit  Proper)  (EXHIBIT 611A-2:  Extract from AGBC Doc #3939 re  Amos Williams and Phillip Johnson Trapline Dispute  Marked as Exhibit Proper)  (EXHIBIT 814:  Letter dated January 5, 1940 from  Charles Patsey to Mr. S. Mallison Marked as  Exhibit Proper)  (EXHIBIT 661- I:  Map Schedule "B" Marked as  Exhibit Proper) 23167  Proceedings  1  2 THE REGISTRAR:  Are these all provincial?  3 MR. GRANT:  These are all provincial exhibits, as I understand.  4 Exhibit 265B can be marked.  Now, there are three  5 exhibits that are subject to my reservations on  6 October 12th and your lordship's ruling.  They are  7 trapline files.  And that is Exhibit 90 capital C, 292  8 capital B, and Exhibit 462.  Subject to the  9 reservation that I made on October 12th, and subject  10 to your lordship's ruling on October 12th those -- the  11 identification can be removed from those exhibits.  12 There remains two matters that I -- because there  13 is a matter that Mr. Rush and Mr. Plant wish to deal  14 with, I think we can deal with them at another time.  15 And we will object to the tendering of Exhibit 505 and  16 Exhibit 568-A.  The only issue on that one that we  17 will object to is an issue of relevance at this  18 juncture in light of subject rulings.  But those two  19 exhibits can be argued later, my lord, between  20 plaintiffs and the Provincial Crown.  21  22 (EXHIBIT 265B:  Marked as Exhibit Proper)  23 (EXHIBIT 90-C:  Will of Matt Michell Marked as  24 Exhibit Proper)  25 (EXHIBIT 292-B:  Marked as Exhibit Proper)  26 (EXHIBIT 462:  Marked as Exhibit Proper)  27  28 MR. PLANT:  And 103 B.  My friend told me he was going to speak  29 to the admissibility of 103B.  30 MR. GRANT:  Yes, thank you.  Exhibit 103B can also be removed.  31 It is the notes of a Burns Lake Overlap Feast.  Of the  32 Burns Lake Overlap Feast.  And that note is not  33 identified as to authorship.  My friend suggested an  34 authorship.  I can't confirm that.  But I think that  35 that meets my friend's concern.  36 THE COURT:  I am not sure that I should be hearing all of this.  37 This is hardly a matter that should be taking up the  38 time of the court.  39 MR. GRANT:  The only other exhibit —  40 THE COURT:  If it is necessary, fine.  But I must say I am  41 getting terribly weary of this constant repitition of  42 removing exhibit numbers that seem to be going by  43 consent.  44 MR. PLANT:  No.  What Mr. Grant meant to say was that Exhibit  45 103B having been previously marked as an exhibit for  46 identification can now be marked as an exhibit proper.  47 He used the word "removed", but I think I have 2316?  Proceedings  1 characterized his intention.  2  3 (EXHIBIT 103B:  Long Document Containing  4 Handwritten Notes Marked as Exhibit Proper)  5  6 THE COURT:  Well, that isn't the source of my concern at the  7 moment.  I just don't think this is being handled  8 properly.  9 MR. PLANT:  Well, my lord, I made a submission in regards to  10 that a few minutes ago.  11 THE COURT:  I know, Mr. Plant.  I am just saying that these  12 things should be done out of court.  13 MR. GRANT:  I have no problem with that, my lord.  That ends  14 this matter, in any event.  15 THE COURT:  All right.  Thank you.  16 MR. PLANT:  Well, it doesn't quite.  I have to say one thing  17 about it.  My friend talks about my characterization  18 of 103B.  It was my friend's characterization of 103B.  19 My friend described it as Victor Jim's notes of the  20 Burns Lake Overlap Feast.  During the break my friend  21 advised me that he was uncertain as to the authorship  22 of the notes and wished that part of the description  23 to be removed.  But it was certainly never my  24 suggestion that they were Victor Jim's notes.  That's  25 how they were described originally on the plaintiff's  26 list of documents.  And, my lord, I must --  2 7 THE COURT  2 8 MR. PLANT  2 9 THE COURT  3 0 MR. PLANT  31 MR. GRANT  Do we need to know this?  I must say with great respect --  I'm sorry, do I need to know all of this?  Well, all right.  I said to my friend I would just advise which  32 exhibits should be marked.  33 MR. PLANT:  I asked my friend for a letter, and I didn't get it.  34 THE COURT:  Well, this is certainly going to be interesting  35 transcript to read, I must say.  All right.  Thank  36 you.  What's next?  37 MR. GRANT:  There was one matter, my lord, that a file that my  38 friend asked me to look at that she wanted the whole  39 file marked as an exhibit.  I don't object to that  40 file being marked as an exhibit as long as I will be  41 able to get a colour copy of the two maps in due  42 course, subject to the October 12th, '89 ruling.  43 MS. KOENIGSBERG:  I believe this was marked — it was not  44 marked.  It was described as a file numbered 4603  45 which contained the original letter of David Wells.  4 6    THE COURT:  Yes.  47    MS. KOENIGSBERG:  This is the original. 23169  Proceedings  1 THE COURT:  Is this the one we talked about yesterday?  2 MS. KOENIGSBERG:  No, this morning, my lord.  3 THE COURT:  This morning?  4 MS. KOENIGSBERG:  This morning.  And my friend was going to look  5 at it because the copy that I had given him do not  6 have the colours.  7 THE COURT:  Is that item now to be marked as an exhibit?  8 MS. KOENIGSBERG:  Yes, if it could, please.  9 THE REGISTRAR:  The whole file?  10 MS. KOENIGSBERG:  Yes.  It is it the Doris Morrison trapline  11 file.  12 THE REGISTRAR:  George Morrison?  13 MS. KOENIGSBERG:  Doris, D-O-R-I-S.  14 THE COURT:  All right.  That will be 1241.  15  16 (EXHIBIT 1241: Doris Morrison Trapline File)  17  18 MR. GRANT:  I would be asking to be able to remove it at some  19 time to copy the coloured maps, my lord.  20 THE COURT:  I'm sure that's not objected to.  21 THE REGISTRAR:  The original letter in here has been marked  22 446-8A as an exhibit proper.  23 THE COURT:  446-8-A?  24 THE REGISTRAR:  No, 446-8A.  25 THE COURT:  All right.  Thank you.  So Exhibit 1241 includes  26 446-8 A.  Nothing wrong with that.  All right.  Thank  27 you.  Next?  28 MS. KOENIGSBERG:  I think I turn this over to my friend.  I  29 frankly lost track of what's outstanding and what  30 isn't, and what is reserved and what isn't.  So I  31 can't close the Federal Crown's case except to say  32 that it is closed subject to all the things that have  33 been reserved.  34 THE COURT:  All right.  Yes, thank you.  It sounds like it is  35 not closed at all.  Mr. Plant or Mr. Rush, who has a  36 problem?  37 MR. PLANT:  Well, I have one matter that I had spoken about once  38 or twice already.  It is the issues that arise out of  39 the Boys cross-examination documents.  I had at one  40 point -- it was my understanding that Mr. Guenther or  41 Mr. Grant were going to consider the general  42 admissibility of the documents which are -- were  43 marked on our cross-examination of Mr. Boys.  And that  44 arose after your lordship's apostrope ruling with  45 respect to the cross-examination of Mr. Boys.  Now,  46 I -- we have given further thought to this situation.  47 And the prospect that regardless of what submission or 23170  Proceedings  1 admission my friends might make, the admissibility of  2 these documents would be subject to various rulings  3 that your lordship has given with respect to ancient  4 documents or business records or trapline records.  5 And in all of those cases, there are some limitations  6 which in our submission ought not to apply in respect  7 of the documents identified by Mr. Boys because he  8 simply identified them.  And they ought to be really  9 admitted without qualification.  And with that in  10 mind, and also having regard to our general interest  11 in the subject matter of Mr. Boys' evidence, it is our  12 view now and my request to your lordship that we be  13 given leave to examine Mr. Boys, that he be produced  14 on commission for the purpose now of having his  15 evidence taken by the Province, and, therefore, not  16 subject to the strictures or the limits of your  17 lordship's earlier ruling.  18 His evidence in sum, my lord, is just too  19 important for us to lose.  And what I am saying  20 amounts to, in effect, seeking leave not only to  21 examine him, but also to the extent that it is  22 necessary to do so to re-open the Province's case for  23 that purpose.  Mr. Boys was examined a year ago at the  24 age of 79.  His examination took place out of court by  25 agreement between the parties having regard to his age  26 and his fatigue level or the ease at which he became  27 fatigued.  We have not yet made contact with Mr. Boys  28 to establish that he is still fit to give evidence,  29 but we're in a position to do that.  30 We are not in a position to rush into this to  31 produce him for an examination next week because we  32 haven't discussed this with him yet.  But it is a  33 matter that we wish to speak -- I wish to speak to now  34 before too much more time elapses because we regard it  35 as of signal importance that his evidence which is  36 material to issues as between the plaintiffs and the  37 Province ought not to be lost.  And we ought to have  38 the opportunity to take that evidence on commission,  39 obviously subject to my friends, the plaintiffs',  40 right of cross-examination at that time and such other  41 directions as your lordship might see fit to give.  42 But at this point while I would, if it were  43 necessary, speak to the admissibility of the documents  44 marked on Mr. Mackenzie's cross-examination of Mr.  45 Boys in order to determine which of them are business  46 records or ancient documents or whatever, it is now  47 our considered view that that's not good enough for 23171  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  our purposes, if I can put it that way.  And nor do I think your lordship -- would your  lordship be assisted by that kind of an argument at  this stage when the more direct and more helpful  course would be simply to get Mr. Boys' evidence.  GUENTHER:  If it's of any assistance, my lord, with respect  to the documents that the Province was seeking to  mark, we have looked at those carefully and will, in  fact, not object to them being marked proper.  We have  not in consideration been advised that an application  would be made today with respect to Mr. Boys being  commissioned again.  All right. Well, let's take it one bite at a time.  The documents can now be marked. So I will make that  order.  Have they been given numbers?  GUENTHER:  It is 1202 tabs.  I have them here, my lord.  Tabs 83 to —  COURT:  Is it 1202?  GUENTHER:  Yes, 1202.  COURT:  Tabs 1 to 81.  GUENTHER:  I'm sorry, my lord.  82 to 103.  batch.  THE COURT  MR.  THE  MR.  THE  MR.  THE  THE  MR.  THE  MR.  It was the last  (EXHIBITS 1202-82 to 103:  Marked as Exhibits Proper)  COURT:  All right.  They will now be given those numbers.  And when you are ready to speak to the matters of  commission, Mr. Guenther, let Mr. Plant know and we  will arrange a time to speak to it.  I don't think I  can deal with it today.  Mr. Guenther,  I understand  not having had any previous notice of this?  MR. GUENTHER:  I believe we haven't heard of this application.  THE COURT:  You are not pressing to have an argument on it  today, are you?  MR. PLANT:  Well, I would like to, but I am happy to acknowledge  that this is my friend's first notice of our --  COURT:  Yes, all right.  PLANT:  -- desire to proceed in this way.  COURT:  Thank you.  PLANT:  I should say, because it may come to pass that not  all of the matters which my friend Mr. Rush and my  friend Mr. Guenther and I had perhaps originally hoped  would be dealt with today will be dealt with, that I'm  going to be suggesting on the matter of scheduling  that we meet again some time before what I understand  to be the anticipated commencement of the plaintiffs' 23172  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  rebuttle evidence, if any, on the 18th of December.  There still are some outstanding matters.  For  example, I know my friends at one point wanted to read  in some more examination for discovery of some people  that we examined.  I would like very much to deal with  all of those things, if possible, before Christmas.  THE COURT:  Have I got it wrong again that we are not sitting  the week of the 11th?  KOENIGSBERG:  I thought we were, too.  MS.  MR.  THE  MR.  THE  MR.  PLANT  COURT  PLANT  COURT  PLANT  MR.  THE  MR. RUSH  RUSH:  COURT  I may have leaped over something.  It is the 11th?  Well, I am happy to sit on the 11th, but I received  correspondence --  I assume the rest of us are.  But I have received correspondence from my friends  that I —  Well, my lord, if a fresh voice would be of  assistance at 15 minutes before the end of the day.  A moment of silence would, I think, be more  appreciated.  We won't allow any dead air in the courtroom at any  time.  The question of whether or not we sit December  the 11th or December the 18th is a question that my  friend obviously has raised concerning the question of  rebuttal.  We are not in a position to go with  rebuttle on either the 11th or the 18th.  And while we  don't oppose sitting on the 11th or the 18th weeks for  matters related to questions which I had hoped to get  to today, and it doesn't look to me as though we are  going to, that is some documents I sought to tender as  exhibits, really housekeeping questions ultimately.  The fact of the matter is, my lord, that we are  not going to be in a position to be able to present  rebuttle evidence in either of those two weeks.  We  don't really see at this point that we would be in a  position to do so until some time in January.  I can  tell your lordship, and I can advise my friends, that  the nature of the rebuttal evidence we feel that will  be less than a week in length, probably no more than  three days.  We are considering calling one oral  witness, and on one small issue.  And that issue we  are going to approach our friends to speak to  agreement on the question.  If there is agreement that  can be achieved on that question, we don't anticipate  calling any other viva voce evidence.  The nature of the rebuttal will be in the form of  document area filings.  And we are -- like our learned 23173  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  friends from Canada, we are endeavouring to keep that  number to a respectable minimum.  But I can tell your  lordship that our view is that we feel it necessary to  file a number of documents.  We're assembling them.  We are trying to give notice to our friends in a  timely way.  I think that really it's going to amount  to a question of tendering these documents within a  fairly limited time frame.  And I am not sure what  your lordship's schedule is in the new year, although  I had heard from Mr. Grant that you weren't available  in the first two weeks.  THE COURT:  No.  MR. RUSH:  In which case, my proposal would be that the third  week of January or a portion of that third week,  whenever the court is available and my friends are  available, that we set a portion of that week  available for the reply evidence.  THE COURT: Well, I was hoping to do this on the 11th. But if  it's in the range of time you are talking about, Mr.  Rush, subject to the convenience of your friends, I am  scheduled in the Court of Appeal the first two weeks  in January. And the first time we could do it would  be the 18th or the 22nd. If that's convenient, I  think we should decide to do it then.  MR. RUSH:  That would be convenient to us, my lord.  MR. PLANT:  Could we then arrange some time before Christmas for  housekeeping?  THE COURT:  Well, we have the week of the 11th.  Would that be  enough?  PLANT:  That would be fine by me, my lord.  COURT:  Shall we start on the 11th to clean up our houses?  MR.  THE  MS.  THE  MS.  THE  MS.  KOENIGSBERG:  11th.  COURT:  Yes,  KOENIGSBERG:  COURT:  Yes.  KOENIGSBERG:  My lord, I am happy to clean house on the  all right.  Here, if not at home.  THE  MR.  MS.  THE  I am concerned, however, and would simply like  to raise with your lordship and my friends at this  time if leaving the rebuttal until what really is the  third week of January if we can have some  understanding that that's not going to impact on the  schedule which we now have in place, as best I  understand it, more or less on oral argument.  COURT:  Well, no one is suggesting that that be changed.  RUSH:  We are certainly not suggesting that.  KOENIGSBERG:  That's great.  COURT:  All right.  Well, then is there anything else that 23174  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH  THE  MR.  THE  MR.  THE  COURT  RUSH:  COURT  RUSH:  COURT  THE  you want to do this afternoon?  Well, my lord, I had two issues that I wanted to  raise.  I don't think that either of them can be  raised in the time that we have.  They can certainly  be raised.  They can't be dealt with.  Well, do your friends know what they are?  Oh, yes, I think they do.  Well, then I think we should hear you on the 11th.  Thank you.  I understand that counsel know that this room may  have to be used for another trial tomorrow and all of  next week.  I understand that the trial division is in  serious difficulty with shortage of rooms.  They may  have to use this room.  I am sure that is terribly  inconvenient, but I see no escape from it.  All right.  Thank you.  REGISTRAR:  Order in court.  Court stands adjourned until 10  o'clock, December 11th.  (PROCEEDINGS ADJOURNED TO DECEMBER 11, 198 9)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein to the  best of my skill and ability.  LISA FRANKO, OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD.

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