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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1987-07-31] British Columbia. Supreme Court Jul 31, 1987

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 2045  1 July 31, 1987  2 Vancouver, B.C.  3 THE REGISTRAR:  Order in chambers.  4 (ANOTHER MATTER SPOKEN TO)  5 THE COURT:  Where are your learned friends, Mr. Goldie?  6 MR. GOLDIE: Well, they were here.  7 MS. KOENIGSBERG:  My Lord, they had just stepped out and I just  8 went out to see them, but I don't see them in the hall  9 and I'm not quite sure where they are.  10 THE COURT:  All right.  11 MR. RUSH: I apologize for the late arrival, My Lord.  12 THE COURT:  All right.  I only have one motion before me, is  13 that —  14 MR. GOLDIE: There may be two, My Lord.  There's the motion that  15 was adjourned from the 17th of July, that is my  16 client's motion --  17 THE COURT:  Yes.  18 MR. GOLDIE: -- and is intended to deal with some questions of  19 privilege, but I believe also there was another  20 motion.  21 THE COURT:  I forgot about Miss Koenigsberg's. What was that  22 about?  23 MS. KOENIGSBERG:  Production of documents motion which will be  24 brief.  It was filed I believe for July 17th and then  25 put over.  26 THE COURT:  All right.  Is it convenient to proceed with Mr.  27 Goldie's motion first?  28 MS. KOENIGSBERG:  Certainly.  Ours will be quite brief.  29 MR. GOLDIE: My Lord, as I indicated, this motion was adjourned  30 from the 17th of July and a blue book has been handed  31 up in which the motion papers are found and it is with  32 respect to -- in two parts, with respect to certain  33 numbered documents on the plaintiff's lists and  34 secondly with respect to documents arising out of an  35 event which is referred to in paragraph two on page  36 two of the notice of motion.  37 My friends have agreed that certain documents --  38 if Your Lordship can perhaps turn to page two of the  39 notice of motion where the -- paragraph one, where  40 there are numbered documents.  My friends a couple of  41 days ago agreed to the production of document 3328 in  42 line 1, 1778 in line 2, and 1771 and 1769 in line 3 of  43 the numbered sequence, and I was just handed a letter  44 a minute ago by Mr. Grant indicating that the claim  45 for privilege in respect of 3334, that's in line 1, is  4 6 dropped.  47 Loose in Your Lordship's book are extracted pages 2046  1 from the plaintiff's lists of documents and I will  2 refer to those to indicate the description given to  3 the documents.  And I say first as a general  4 proposition, but not anything that I have relied upon,  5 that all of these documents were included in the lists  6 of those in respect of which no objection to  7 production was taken, but I think to be fair the  8 understanding has been in this case that a claim for  9 privilege or indeed a claim with respect to relevance  10 can be raised at any time.  11 If Your Lordship would turn to the list of  12 documents number three, it's got a facing page on it  13 and the number three is just below the style of cause,  14 list of documents, plaintiff, number three.  15 THE COURT:  I'm sorry I don't — that's in the loose documents?  16 MR. GOLDIE:  Yes, in the loose documents.  They're simply page  17 numbers taken from -- in case it hasn't been --  18 THE COURT:  I don't think it's here.  Oh, thank you, I'm sorry,  19 I have that.  I was looking in the wrong place.  Thank  2 0           you.  21 MR. GOLDIE:  Now, page 131 of that list is appended to the title  22 page and on that page Your Lordship will see document  23 number 1722.  2 4 THE COURT:  Yes.  25 MR. GOLDIE:  The date "July 31, 1979, Neil J. Sterritt to Mr. T.  26 F. Glynn, D.I.A."  My understanding is that is  27 Department of Indian Affairs.  "re: G.T.C.T."  That  28 would be Gitskan-Carrier Tribal Council "Activity  29 Report".  My submission is that from its description  30 it is not a privileged document.  31 Then over the page, two pages -- or the last page  32 I should say is 1783, second item on the list.  The  33 date is "September 4, 1980, Neil J. — "  34 THE COURT:  Is that 1783?  35 MR. GOLDIE:  1783, yes.  3 6 THE COURT:  Yes.  37 MR. GOLDIE:  The second item down.  The description is  38 "September 4, 1980, Neil J. Sterritt to Mr. T.F.  39 Glynn" on it.  It appears to be the same Mr. Glynn and  40 it would appear that he -- that this is something  41 addressed to an official in the Department of Indian  42 Affairs and the subject matter is "re: Promissory  43 Note".  44 THE COURT:  Is this a list of documents where privilege is  45 claimed?  46 MR. GOLDIE:  No, no, these are all documents in respect of which  47 no claim was made -- 2047  1 THE COURT:  Yes?  2 MR. GOLDIE:  -- until a request for production was made.  3 THE COURT:  All right.  Yes.  Thank you.  4 MR. GOLDIE:  So my submission is that on its face it cannot be  5 privileged.  It's written to a stranger to the  6 proceeding or perhaps even an official of the second  7 defendant.  8 Now, turning to the next extract which I -- is  9 identified on its face as "Supplementary list of  10 documents, number 1 --  11 THE COURT:  Yes?  12 MR. GOLDIE:  — of the Gitksan-Wet'suwet'en Tribal Council."  On  13 the first page, document 1897, no date, "Marvin  14 George, External Boundaries of Gitksan-Wet'suwet'en  15 Territories."  16 My submission is that it's on its face relevant.  17 We have heard the name Marvin George as an employee of  18 the Tribal Council and who does the council's mapping.  19 We have made many requests for maps and I am not aware  20 of any position -- of any basis upon which privilege  21 could be claimed.  22 1898, the description is the same.  There is no  23 author.  1900, again, the description is "External  24 boundaries", no date, "including Kitwancool  25 Territories".  26 Over the page at 3169, "February 8th, 1979,  27 Gitksan-Wet'suwet'en Tribal Council Trapping and  2 8 Hunting Grounds, Concerns and Recommendations."  I  29 know of no basis from that description for a claim to  30 privilege.  31 And then finally on the last list --  32 THE COURT:  Supplementary number two?  33 MR. GOLDIE:  -- supplementary number two.  Page one, 3326 is  34 described as a letter of "August 7th, 1984. Neil J.  35 Sterritt of the Gitksan-Wet'suwet'en Tribal Council  36 (letter), of the council to the Minister of Indian  37 and..." -- I must assume that that is Indian and  38 Northern Affairs.  That on its face cannot be  39 privileged.  40 Over the page, the second item was the one  41 produced this morning.  Item 3335, "Mike Morrell,  42 Fishery Management Opinion", the date is 1986.  On its  43 face there would not appear to be a basis for  44 privilege.  Item 3339, the Moricetown Fishery Report  45 of Mr. Victor Jim, who's one of the plaintiffs in the  46 action.  3342 —  47 THE COURT:  I'm sorry, 3339 is one of the documents in issue 2048  1 this morning?  2 MR. GOLDIE:  Yes.  3 THE COURT:  All right. Yes.  4 MR. GOLDIE:  And then the last is the last one on the page 3342,  5 "April 1986, David F. Hatler, History and Zoogeography  6 of some selected mammals in Northern British  7 Columbia."  And if the document is relevant, as would  8 appear from its inclusion in the list, then I know of  9 no basis for privilege.  10 My Lord, with respect to those documents I have  11 suggested to my friend that they be available for Your  12 Lordship's inspection and that would seem to be --  13 with whatever submission my friends wish to make, that  14 would appear to be an expeditious way of dealing with  15 the matter, but I'll continue with the reference in  16 paragraph two, which is stated in the notice of motion  17 as documents, writings, video tapes, photographs,  18 transcripts, and other materials relating to the  19 second All-Clan Feast hosted by the Carrier-Sekani on  20 April 4th and 5th, 1987, as are referred to in the  21 letter dated June 18th, 1987, from Mr. Stuart Rush,  22 counsel for the plaintiffs.  23 The background of that, My Lord, is found in the  24 exhibits which are under Tab 2 and I will go directly  25 to Exhibit I, which is a letter dated June the 17th.  26 The relevant provisions in that letter are contained  27 in the last two paragraphs, and I quote:  28  29 "One further request I note in the transcript  30 of the All-Clan Feast, a reference by Mr. Edward  31 John at page 37 that a complimentary Feast would  32 be called in the future.  If such occurred I  33 asked for production of all documents,  34 photographs, videos, et cetera, relating to that  35 Feast."  36  37 The background of that is this, My Lord, the  38 Carrier-Sekani would appear to have a substantial  39 overlap in their land claim, virtually the south-east  40 corner of the Gitksan-Wet'suwet'en claim in the  41 proceedings.  There were produced, on the defendant's  42 request from the plaintiff, a video tape and a  43 transcript of a feast given by the Wet'suwet'en people  44 for certain chiefs of the Carrier-Sekani with -- its  45 purpose appeared to be to inform the Carrier-Sekani of  46 the diligence that the plaintiffs had shown in  47 demonstrating the scope of their claim.  There was no 2049  1 attempt to reach a settlement, at least from the video  2 and the transcript.  It was what I'll call an informal  3 meeting.  The transcript, however, contained a  4 reference to a future meeting and it appears that that  5 was held and the reference, My Lord, is found in Mr.  6 Rush's letter of June the 18th which immediately  7 follows this Exhibit J.  8 The last paragraph on that first page reads, and I  9 quote:  10  11 "I can advise that there was a second All-Clan  12 Feast hosted by the Carrier-Sekani on April 4th  13 and 5th, 1987. We are not in possession of any  14 video tapes or transcripts of this Feast.  I do  15 not know if there are any photographs of the  16 Feast, if there were, and as to any documents that  17 might be in possession of the Gitksan-Wet'suwet'en  18 participants in this Feast, we claim privilege for  19 these."  20  21 I have indicated the obvious importance of any  22 documents relating to that second Feast.  I'm unaware  23 of any basis for claiming privilege with respect to  24 such documents and my -- the order I seek is the  25 production of the -- the listing and production of the  26 documents, subject to any ruling made with respect to  27 privilege.  28 THE COURT:  What was the date of the first Feast?  29 MR. GOLDIE:  About a year before.  30 THE COURT:  In April '86?  31 MR. GOLDIE:  '86, yes.  32 THE COURT: All right.  33 MR. GOLDIE:  The Edward John referred to in my letter is the  34 president of the Carrier-Sekani Tribal Council and a  35 chief of the Carrier-Sekani.  36 THE COURT:  Mr. Goldie, did you say the overlap was in the  37 south-east corner or south-west corner?  38 MR. GOLDIE:  South — well, it's substantially south-east  39 extending right across to the west.  4 0 THE COURT:  Yes.  All right.  Thank you.  41 MR. GOLDIE:  It's a large part of the territory that Mr. Alfred  42 Joseph was describing in his evidence.  43 THE COURT:  Yes.  All right.  Thank you.  Mr. Rush or Mr. Grant?  44 MR. RUSH:  I'll address you on this, My Lord.  4 5 THE COURT: Thank you.  46 MR. RUSH:  We've prepared an affidavit, and part of the reason  47 for our late arrival was the inevitable problems of 2050  1  2  3  4  5  6  7  8 THE  9  10 MR.  11 THE  12 MR.  13  14 MR.  15  16  17 THE  18 MR.  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41 THE  42 MR.  43  44  45  46  47 THE  COURT  RUSH:  COURT  GOLDI  RUSH:  COURT  RUSH:  COURT  RUSH:  COURT  technological production.  The library here assisted  us a little more so and it's an affidavit of Mr. Grant  and it's been -- it's not filed, but it is sworn and  I'll pass it up to you now, and I apologize to my  friends for not getting it to them sooner.  I just had  it prepared.  I also have a book of authorities that  may be of some help.  : Well, I suppose the first thing I have to resolve is  when did Mr. Goldie get this, just now?  Yes, he did.  :  Shall we take a moment to read it?  E: I may ask Your Lordship for a moment, but I assume  my friend is going to go through it.  I'm going to go through it item by item.  Now, My Lord, I have a copy of a notice of motion.  You have that in front of you.  : Yes.  I intend to go through the documents as they're listed  in the notice of motion, and I'm relying on the  sequencing as indicated by Mr. Goldie in his  application so I'm going to begin response by  reference to document number 3326.  Now, I should tell Your Lordship that what I have  here are some of the documents.  For the grand  majority of the documents, and in some of the cases  here, there's a cover page which is the notation of  the librarian and in other cases there's just  notations with numbers and so on on the face page of  the document, but I have the documents here and as we  go through them I'm quite happy to pass them up to  Your Lordship so you can peruse the document as we go  through them.  The first point I'd like to emphasize, however, is  the point that was made by Mr. Goldie at the beginning  of his submission and I hope Your Lordship appreciates  that informally between counsel it was understood that  we would list as the documents that came into the  possession or control of the plaintiffs, and that  subsequent to that objections could be taken to  relevance and to privilege.  :  All right.  And this is -- on the basis of that is why the  privilege claims were subsequently made.  So I want to  first deal with document number 3326, the first  document that's referred to in Mr. Goldie's notice of  motion, and I have that document here.  :  Thank you. 2051  1 MR. RUSH: And if Your Lordship turns to paragraph number six --  2 THE COURT:  Six of?  3 MR. RUSH: — of Mr. Grant's unfiled affidavit?  4 THE COURT:  Yes.  5 MR. RUSH: Your Lordship will see that Mr. Grant deposes as  6 follows:  7  8 "Document 3326 is described in the  9 plaintiff's list of documents as:  10 'August 7, 1984,  Neil Sterritt, Neil  11 J./Gitksan-Wet'suwet'en Tribal Council (letter)  12 1984 August 7, Gitksan-Wet'suwet'en Tribal  13 Council, Hazelton, B.C., (2) Minister of Indian  14 and...'  15 In fact, this document is a letter between  16 myself as legal counsel and Stuart Rush with  17 respect to the litigation in question herein.  18 Attached to our letter is a draft form of letter  19 prepared by myself..."  -- that is, Mr. Grant --  20 "...for review of Mr. Rush.  That draft form of  21 letter is addressed to the Minister of Indian and  22 Northern Affairs from Mr. Sterritt.  As document  23 3326 is correspondence between legal counsel for  24 the plaintiffs in this action and relates to the  25 matters in this action, privilege is claimed for  2 6 them."  27  28 What the case is here, My Lord, is that the  29 document in the list is misdescribed and what you see  30 is in fact communication between counsel in respect of  31 a matter that is in relation to the litigation, and  32 there is annexed to that a document which is sought to  33 be reviewed by one of the counsel.  So in our  34 submission it's a question of solicitor and client  35 communication and communication between counsel which  36 communication is a privileged communication and I'm  37 not sure of the extent to which Your Lordship wishes  38 reference.  39 MR. GOLDIE: I can save my friend that.  The document is  40 misdescribed, as my friend says.  It implies or it  41 suggests that there was an original letter sent to the  42 Minister.  I don't press for item 3326, but I would  43 like to know if the original -- if there was a letter  44 sent to the Minister, and if so, has it been produced?  45 THE COURT:  Yes, I was going to ask Mr. Rush the same question.  46 I would prefer not to read the correspondence between  47 counsel if I can avoid doing so. 2052  1  MR.  RUSH:  2  THE  COURT  3  4  5  6  7  8  9  MR.  GOLDI  10  11  12  13  14  MR.  RUSH:  15  16  17  18  THE  COURT  19  MR.  RUSH:  20  21  22  23  THE  COURT  24  25  MR.  RUSH:  26  27  28  29  30  31  32  33  THE  COURT  34  35  36  MR.  RUSH:  37  38  39  THE  COURT  40  41  42  43  MR.  GOLDI  44  45  46  47  I would appreciate that as well.  :  Well, you have it here.  I haven't uncovered the  document itself and I was going to ask the same  question.  If there's a -- if as a result of your  conferences with Mr. Grant by correspondence a draft  was settled and sent to the Minister, then it seems to  me that's the same question Mr. Goldie's just asked  and that's a different question --  E: My Lord, if it turns out that these are -- they're  really misdescriptions, then perhaps it would be  useful too if we did indeed now have a brief  adjournment so that I can go through this.  It may  well be that there's nothing here --  No, I don't think they're all misdescriptions.  There  are some misdescriptions.  There is some flawed  descriptions, but they're certainly not all  misdescriptions and --  :  All right.  And unless you'd like to take a moment and just read  the affidavit -- but I do believe there are  contentious issues here so -- and that will become  obvious.  :  Well, are you going to answer Mr. Goldie's question  about whether there was a letter sent?  I can't say that there was or wasn't.  I believe that  there was.  What I can't say is whether or not the  letter isn't elsewhere disclosed in the document list.  We can ascertain whether a letter was sent and if it  was we can list it on the document list.  My sense of  it is that a letter was sent.  Whether it's on the  document list and whether it's available to my friends  I can't say.  :  It wouldn't bear the date of August 7th presumably  because that's the date of the exchange between  counsel?  It would not bear the date of August 7th because the  letter that is attached to the August 7th letter is a  draft.  :  Well, would it suffice if I was to merely order that  the letter referred to in this item to the Minister,  if written and sent, be produced, if not already  produced?  E: Yes.  I think -- given the background of this, I  think the onus is on the plaintiffs to properly  identify the documents and in this case to inform us  if there was a letter sent and I'm content with that  order. 2053  COURT  RUSH:  1 MR. RUSH: Well, My Lord, my preference would be that no order be  2 made, but that we undertake to investigate whether or  3 not such a letter was sent and we'll disclose this if  4 it was.  I don't -- it's completely speculation at  5 this point.  6 THE COURT:  All right.  All right.  Well, I think that's  7 satisfactory and I will then return the document to  8 Mr. Rush.  Now, My Lord, just carrying on with the chronological  listing in Mr. Goldie's notice of motion -- 3328 I  think has been disposed of --  : Yes.  -- as has 3334.  Both of those documents have been  disclosed.  The next document which is in issue is 3335, and  this is a document that pertains to an opinion, a  draft opinion of one of the experts, and it's dealt  with in paragraph number 7.  And document 3335, as is  deposed to in the affidavit, is entitled in the  plaintiff's list of documents as "1986 Morrell, Mike  Fishery Management Opinion".  And this is a memorandum  of one of the experts prepared for legal counsel for  review prior to the preparation of the final opinion  and forms part of the counsel's brief, and it is on  that basis that privilege is claimed.  And I -- again  I have the document here for Your Lordship to review,  but we stand on our claim for privilege in respect of  a draft report by one of our experts for submission to  counsel and it is a draft prior to the submission of  the final report.  :  Well, what do you say the law is, Mr. Rush, with  respect to that sort of document?  If Mr. Morrell has  produced an expert's report can he be required to  produce drafts, or if he's called -- if not, if he's  called as an expert, can he in cross-examination be  required to produce his drafts?  I confess to some  fuzziness in my understanding of what the present  state of the law is in that regard.  RUSH: Well, I say those are two very distinct issues and one  certainly is not for resolution today, that is,  whether or not on cross-examination Mr. Morrell is  required to produce drafts, but as to the law, I take  the position that the draft report forms part of the  counsel's brief and is submitted for the purposes of  review and instruction to counsel and as such it is  not disclosable for the reasons of privilege.  Now, I take support for that from the -- I have a  9 MR. RUSH  10  11  12 THE  13 MR.  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31 THE  32  33  34  35  36  37  38  3 9 MR.  40  41  42  43  44  45  46  47  COURT 2054  1 number of cases that I want to refer you to.  The  2 Susan Hosiery case, which is at Tab 1, and it's at the  3 bottom of page 33 that I would ask you to turn to.  4 Beginning with the paragraph "Turning to the 'lawyer's  5 brief..."  -- I should perhaps begin somewhat earlier  6 on that page about midway through.  It's a  7 sub-indented paragraph about which makes reference to  8 "all papers and materials created or obtained  9 specially for the lawyer's 'brief for litigation,  10 whether existing or contemplated, are privileged."  11 THE COURT:  Yes.  12 MR. RUSH: And then at the bottom:  13  14 "Turning to the 'lawyer's brief rule, the  15 reason for the rule is, obviously, that, under our  16 adversary system of litigation, a lawyer's  17 preparation of his client's case must not be  18 inhibited by the possibility that the materials  19 that he prepares can be taken out of his file and  20 presented to the court in a manner other than that  21 contemplated when they were prepared.  What would  22 aid in determining the truth when presented in the  23 matter contemplated by the solicitor who directed  24 its preparation might well be used to create a  25 distortion of the truth to the prejudice of the  26 client when presented by someone adverse in  27 interest who did not understand what gave rise to  28 its preparation.  If lawyers were entitled to dip  29 into each other's briefs by means of the discovery  30 process, the straightforward preparation of cases  31 for trial would develop into a most unsatisfactory  32 travesty of our present system."  33  34 And continuing into the next paragraph.  35  36 "What is important to note about both of these  37 rules is that they do not afford a privilege  38 against the discovery of facts that are or may be  39 relevant to the determination of the facts in  40 issue.  What is privileged is the communications  41 or working papers that came into existence by  42 reason of the desire to obtain a legal opinion or  43 legal assistance in the one case and the materials  44 created for the lawyer's brief in the other case."  45  46 And it's my submission that on this authority that  47 the report that is prepared by way of a draft for the 2055  1 assistance of counsel for the production of an opinion  2 that would be of assistance to the court is just the  3 kind of document that is the contemplated material in  4 the lawyer's brief upon which the lawyer makes his  5 judgments.  6 Now, I'd ask you to refer as well to the  7 Bombardier case at Tab 3.  Again a decision of the  8 Federal Court, this time Mr. Justice Cattanach, and I  9 cite it only for the -- in this case there were a  10 number of disputed memoranda, disputed in the sense  11 that some claims to privilege were made in respect of  12 documents which were disclosed but were said to be in  13 counsel's brief.  The pertinent part of this case is  14 to be found at page 253 beginning there at the third  15 to last paragraph.  16  17 "During the course of his testimony counsel  18 for Bombardier requested that the witness produce  19 certain documents but counsel for the Director  20 objected to that production.  21 Basically those documents were the contract  22 for services of Dr. Rosenbluth and 'as well as all  23 subsequent letters, memoranda or notes relating to  24 the subject of his terms of reference or mandate  25 exchanged between them.'"  26  27 And then on page 254 there are listed items (a) to  28 (i) which form part of the body of material in the  29 lawyer's brief for which objection to production was  30 taken on the basis of privilege.  The Director was  31 compelled to disclose items (b), (c), and (i) from  32 that listing, but I ask you to turn to page 255 at the  33 top.  These are the comments of the trial judge:  34  35 "On their face these documents appear to me to  36 be privileged..." -- and he's here referring to  37 (a), (b), and (i), the disputed ones -- "...as  38 being material prepared for the purpose of  39 litigation, either when contemplated or in  40 existence and that is not limited to  41 communications between the client and his lawyer  42 but extends to communications from third parties  43 which are to be used by counsel in preparing the  44 case for him, the classic example of which is  45 written opinions of experts who have been asked to  46 formulate an opinion on given facts."  47 2056  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17 MR.  18  19  20  21  22  23  2 4 MR.  25  26  27  28  2 9 THE  30  31  32  33  34  35 MR.  36  37  38  39  40  41 THE  42 MR.  43  44  45  46  47  And I say, My Lord, that that applies to the draft  written opinions or drafts or comments or exchanges of  communication between counsel and experts.  And I  should go on to say that the decision of the learned  trial judge was reached on page 261 and it's  interesting -- I should point out at the bottom of  page 260 it is interesting that the learned trial  judge notes that:  "Counsel agreed, and I join in their  agreement, that all documents listed in the letter  of April 24th, 1980, itemized as (a) to (i) are  privileged including items (b) (c) and (i) which  the Commission ordered produced in its letter  dated May 1, 1980. "  GOLDIE: Well, My Lord, I'm not challenging that law.  What  my concern was was we never got an adequate  description of the claim for privilege and that's made  very clear in the correspondence.  If my friend had  ever told me that this was a draft of Mr. Morrell's  opinion which was going to be placed in evidence, I  wouldn't be pressing that.  RUSH: Well, I'm grateful to my friend for that, and I accept  your point that we may have been somewhat less than  fully explanatory.  We maybe have been remiss in this,  but this is what this document is about and it's in  relation to one or two of the other documents there.  COURT:  Well, I don't have any doubt at all about the law.  What my -- Mr. Goldie's partner Mr. Steves always  referred to as solicitor's privilege as opposed to  solicitor and client's privilege, and the documents  the solicitor has are obtained -- were treated for the  purpose of litigation and --  GOLDIE:  I certainly didn't ever want to introduce the  subtleties that seem to plague the American system of  solicitor work product and things of that order.  If  my friend -- if the description which now appears in  this affidavit had been given me, this application  would not have been made.  COURT:  All right.  RUSH: Now, My Lord, if I may just move to the next document  on the notice of motion, this is the Moricetown  Fishery report.  It is document 3339.  Now, the  reference I direct you to is at paragraph 8 of Mr.  Grant's affidavit: 2057  1 "This document 3339 is entitled:  '1986, Jim  2 Victor, Moricetown Fishery Report:  Summer 1986.'"  3  4 And Mr. Grant deposes to the fact that:  5  6 "In June 1986, I was instructed by the  7 Moricetown Band to assist in the preparation of a  8 defence against an ex parte injunction against a  9 fisheries by-law prepared by the Moricetown Band.  10 Victor Jim..." -- who's a member of the band  11 council -- "...instructed me on behalf of the  12 Moricetown Band and provided me with information  13 which was formed part of an affidavit sworn by  14 Victor Jim in June, 1986.  In the course of the  15 preparation of that affidavit, I was advised by  16 Victor Jim that a questionnaire had been prepared  17 by the Moricetown Band in order to implement a  18 1986 fishery by-law.  I requested Victor Jim to  19 provide me with a report of the results of that  20 questionnaire.  He requested permission to  21 distribute that report to members of the  22 Moricetown Band so that he could confirm the  23 results of the report and also to write the report  24 in a manner in which it could be used to stimulate  25 discussion amongst the Moricetown Band members.  I  26 agreed that he could do this so long as the report  27 was solely disclosed to Moricetown Band members  28 who were my clients for further discussion.  29  30 Document 3339 is the copy of the report  31 prepared by Victor Jim at my request.  I required  32 that report for the preparation of a case on  33 behalf of the Moricetown Band in the Attorney  34 General of British Columbia v. Wale et al. which  35 case is still before this court."  It should  36 not -- well, yes, it is before this court at the  37 trial level, but is before the Supreme Court of  38 Canada in terms of interlocutory proceedings.  "I  39 intend to claim privilege with respect to document  40 3339 in Attorney General of British Columbia v.  41 Wale on the basis that it was a report prepared at  42 the request of counsel."  43  44 Now, I have that -- again, My Lord, I have that  45 document here for you to peruse.  In my submission,  46 although not prepared in respect of this litigation,  47 it was prepared in respect of extant litigation 205?  1 between the Attorney General of British Columbia and  2 four bands and their members in respect of the  3 application of certain fisheries by-laws to waters  4 adjacent to their rivers.  In my submission this too  5 is a document which forms part of counsel's brief and  6 for which there is a just claim for privilege, and  7 although I didn't fully canvass the authorities to  8 which I had referred Your Lordship, but I do rely  9 again on the cases of Susan Hosier, Bombardier, and  10 the Voth case, which is at tabulation 5 of my brief of  11 authorities.  12 THE COURT: All right.  13 MR. RUSH: Now, if I can direct Your Lordship's attention to  14 document number 3342, this is described in paragraph  15 nine of Mr. Grant's affidavit as "April, 1986, Hatler,  16 David F. History and Zoogeography of some selected  17 mammals in Northern British Columbia."  This, like the  18 draft report of Mr. Morrell's, is a draft of an expert  19 report of Dr. Hatler which was prepared for the review  20 of plaintiff's counsel in this action and since the  21 production of this list the final report of Professor  22 Hatler has been produced and tendered to counsel for  23 the defendants as this draft was prepared on the  24 instructions of counsel it forms part of counsel's  25 brief in this action.  26 And I make the same submission in respect of Dr.  27 Hatler's draft report as I did in respect of Mr.  28 Morrell's.  29 Now, the next grouping of documents, if I may put  30 it that way, are — there is 1897, 1898 and 1900.  And  31 I -- these documents I do not have here.  I requested  32 maps from our library and the wrong maps were sent to  33 me.  What I can say, however, My Lord, is that these  34 are described as -- generally, as the external  35 boundaries of external territories with markings  36 there. Paragraph number 5 is the paragraph in which  37 Mr. Grant refers to these documents, and he deposes to  38 this:  39  40 "From a review of these documents and from my  41 knowledge as counsel in this case, all three  42 documents were prepared for legal counsel and form  43 part of counsel's brief.  These documents are all  44 draft maps which were marked by researchers for  45 the assistance of legal counsel in the preparation  46 of this case.  For example, I specifically  47 requested a map of Gitksan and Wet'suwet'en 2059  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  territories which included the territory of  Kitwancool for my own preparation of this case."  Regrettably these maps aren't here for you to see,  and of course I would like you to have been able to  see them and if it -- if you're not persuaded by the  deposition, then Your Lordship will have to adjourn  this portion of the case, if you would, so that you  can review these maps.  I simply got the wrong tube.  In any event, our submission in essence is similar to  that made in respect of Mr. Morrell's reports, that  counsel requested draft maps to be prepared for  counsel's use in respect of the determination of the  boundaries and features of the Gitksan and  Wet'suwet'en territories.  These are part of those  draft maps and they are maps that were prepared by one  of the people, Marvin George, that we have indicated  to our friends we intend to call as an expert  cartographer and so it is for this reason that we say  that these maps too are part of our brief and in our  submission ought not to be disclosed.  Mr. Grant advises me further that there are  markings on these maps which were made by other  experts who -- for the assistance of counsel, advisors  and experts who may not be called at trial.  Now, if I may address --  MR. GOLDIE: Excuse me, is Marvin George the author of all three  of them?  MR. RUSH: Yes.  Mr. Grant advises me to be more specific in  this.  Mr. George is the author of the base map of  each of these but not the markings on all of them.  THE COURT: Yes.  MR. RUSH: Now, if I may direct you to document 3169 next in line  on this notice of motion, Mr. Grant deposes in  paragraph 4 of his affidavit that a document numbered  3169 is described in the list of documents as:  "February 8, 1979, Gitksan-Wet'suwet'en Tribal  Council trapping and hunting grounds, concerns and  recommendations.  This document is a copy of a brief for a  meeting in which I participated as legal counsel  and advised certain Gitksan and Wet'suwet'en  Chiefs as well as representatives of the Gitksan  and Wet'suwet'en Tribal Council with respect to  possible legal remedies of concerns regarding  trapping and hunting grounds.  The minutes 2060  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 THE  2 8 MR.  29  30  31  32  33  34 THE  35  3 6 MR.  37 THE  38  39  40  41 MR.  42  43  44  45  4 6 THE  4 7 MR.  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  concluded with recommendations which were made to  me as legal counsel.  In February, 1979, I was the  lawyer at U.S.C.L.A.S...." -- which is the Upper  Skeena Community Legal Assistance Society under an  associate body with the Legal Services Society of  the province  -- "...and references in the  document to U.S.C.L.A.S. are references to  recommendations made to myself.  At the time of  this meeting, litigation was contemplated by my  clients specifically with respect to the hunting  and trapping grounds and that was part of the  reason for the meeting.  Privilege is claimed on  the basis that document 3169 includes legal advice  and instructions to legal counsel to such a degree  that those sections of document 3169 cannot  be..." -- I think he means "...excised.  Appendix  "B" to document 3169 has already been disclosed to  the defendants and is separately listed as 1707 on  the plaintiff's list of documents."  Now, in my submission privilege is claimed here on  the dominant purpose theory, if I may put it that way,  that the dominant purpose for which the communication  was generated was the purpose of -- was the  contemplation of litigation in respect of hunting and  trapping grounds.  :  I'm not sure from this who prepared the document.  It is one of -- it's not clear from the document  either I can tell you, but one of the persons that  participated in the meeting, there were a number of  Gitksan and Wet'suwet'en chiefs and their advisors  were present at this meeting.  I have the document  here for you if you would like to peruse it.  :  I take it from this that this is not a brief  prepared by Mr. Grant for a meeting?  That's right.  :  But it seems to be a document, if I'm reading this  right, it's a document that was prepared something in  the nature of minutes, recording of recommendations  made?  That's right.  It is a summary of the meeting and what  occurred at the meeting and instructions to counsel.  It is a communication of the participants of that  meeting to counsel instructing further action to be  taken by him.  :  And recommendations to be made?  And recommendations to be made for further legal 2061  1 action.  And I say that this is not in the -- if I may  2 use the Susan Hosier division of solicitor and client  3 communication and lawyer's brief -- this, in my  4 submission, falls into the category of  5 solicitor-client communication and here there were  6 directions given by the persons attendant at that  7 meeting to Mr. Grant as counsel, as attending counsel,  8 to take further action.  And I say that there's little  9 difference between that and the presence of a client  10 in the lawyer's office giving instructions to a  11 solicitor to take further steps on his behalf, and it  12 matters little it seems to me whether it is committed  13 to writing or the instructions were taken verbally.  14 Now, My Lord, if I may direct you to the next  15 document in this list which is at 1783, this is dealt  16 with in Mr. Grant's affidavit at paragraph 11.  17  18 "Document 1783 is listed as:  'September 4,  19 1980, Neil J. Sterritt to Mr. T.F. Glynn re:  20 Promissory note.'.  21 This document is correspondence to Mr. Glynn  22 of the Office of Native Claims with respect to the  23 agreement referred to in paragraph 10 of this  24 affidavit.  It was inadvertently included in the  25 list of documents and bears no relevance to this  26 action.  The first defendant would not normally  27 have access to this document as it concerns a  28 private agreement between the Gitksan-Carrier  29 Tribal Council Association and the government of  30 Canada.  Neither this document nor document 1722  31 shall be referred to or relied on in any way by  32 the plaintiffs and bears no relevance to the lis  33 between the parties herein."  34  35 For matters of clarification this is not a claim  36 to privilege, this is a claim to say that this is a  37 document that lacks relevance in the lists of the  38 litigation between the parties.  It is, in effect,  39 correspondence between Mr. Sterritt on behalf of the  40 Tribal Council and the Office of Native Claims with  41 regard to the funding of the activities of the Tribal  42 Council and the Gitksan and Wet'suwet'en Chiefs.  And  43 in my submission it is not a document that we are  44 obliged to disclose and it ought not to be disclosed  45 at this time.  Again I have that document for you to  46 look at if you wish.  47 With respect to the next document, which is 1778, 2062  1 that is dealt with at paragraph 10.  2 THE COURT:  Mr. Goldie said it was agreed that it had been  3 produced.  4 MR. RUSH: Yes, that's right.  You're quite right about that,  5 1722, that's correct.  This is dealt with at paragraph  6 10.  It's listed as:  7  8 "'July 31, 1979, Neil J. Sterritt to Mr. T. F.  9 Glynn D.I.A. re: G.C.T.C. Activity Report.'  10 This document is correspondence to the Office  11 of Native Claims of the government of Canada  12 regarding funding by the Gitksan-Carrier Tribal  13 Council.  This document was inadvertently listed  14 on the plaintiffs' list of documents and is not at  15 all relevant to the case at bar.  Furthermore, the  16 first defendant would not normally have access to  17 this document as it concerns a private agreement  18 between the Gitksan-Carrier Tribal Council  19 Association and the government of Canada."  20  21 And it bears no relation to the litigation between  22 the parties.  It in fact deals with the funding of the  23 Tribal Council, and in my submission it's -- my  24 friends are no more entitled to documents of that  25 order than I'm entitled to documents of the provincial  2 6 government as to how the provincial government is  27 funded in respect of its activities.  28 Now, I think that deals with all of the disputed  29 documents.  I'd like to turn to the second category of  30 matters.  31 THE COURT:  Unfortunately, Mr. Rush, I have to deal with a  32 matter about getting what I understand is a Bill 19  33 application heard sometime today, so can we take just  34 a very short adjournment here, please?  35 MR. RUSH: Thank you.  36 THE REGISTRAR: Order in chambers, chambers stands to recess.  37 (PROCEEDINGS ADJOURNED FOR A SHORT RECESS)  38  3 9 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT)  40 THE REGISTRAR:  Order in chambers.  41 THE COURT:  Could I interrupt you for a moment, Mr. Rush, to say  42 to Mr. Goldie in connection with the application you  43 and Mr. Giles made this morning to move that trial, I  44 never thought to ask you about other parties.  45 MR. GOLDIE: Oh, we've canvassed them.  4 6 THE COURT: They've been covered?  47 MR. GOLDIE: Yes.  I think there's only one — 2063  1 THE COURT:  So they all know —  2 MR. GOLDIE:  -- who had not advised us, and without disparaging  3 its importance, it's right at the tail end.  4 THE COURT:  All right.  Well, I was just giving instructions to  5 the Registry and I thought are there third parties or  6 something.  7 MR. GOLDIE:  There are a number of third parties and I should  8 have mentioned that to Your Lordship.  9 THE COURT:  Fine, thank you.  Thank you, Mr. Rush.  10 MR. RUSH:  The final matter to be dealt with is the second part  11 of Mr. Goldie's application dealing with the  12 disclosure of certain documents pertaining to the  13 All-Clan's Feast of April 4th and 5th of 1987.  I can  14 advise Your Lordship that we are not pressing our  15 claim for privilege as a general claim to privilege in  16 respect of these documents.  I say that there were  17 certain persons in attendance at that meeting who were  18 there on instructions of counsel and we have not  19 canvassed with them whether they have any information  20 to communicate to us or not, but should there be such  21 documents, we may well claim privilege in respect of  22 that, but I told my friend that we are canvassing with  23 others, who we believe were present at the meeting, to  24 find out if there were other documents, photographic  25 documents or notes taken, and should we find that  26 those documents are available and in the possession  27 and control of our clients, which is about something  28 we can't say for certain, we will disclose those on  29 the list.  The short of it is that we withdraw our  30 general claim to privileges indicated in my letter to  31 Mr. Goldie.  32 THE COURT:  All right.  Thank you.  Mr. Goldie, I'm sorry, I  33 should hear from your learned friends.  34 MS. KOENIGSBERG:  We have nothing to add.  35 THE COURT:  Thank you.  36 MR. GOLDIE: My Lord, I think, as Your Lordship gathered, if I  37 had been aware of the nature of the claims I would not  38 have raised these at all, some of them anyway.  The  39 only document that I would ask Your Lordship to look  40 at is that described in paragraph four of Mr. Grant's  41 affidavit.  42 THE COURT:  3169?  43 MR. GOLDIE:  3169.  The reason I ask Your Lordship to look at it  44 is that if in the minutes, for instance, of a  45 director's meeting that are otherwise relevant, a  46 statement is made and the lawyer should look into  47 this, that doesn't immunize the document as a whole or 2064  1 even that particular statement.  And if this is -- if  2 the nature of the minutes in their general context is  3 relevant to the issues at bar, and I'm assuming that's  4 the case, then I ask Your Lordship to consider whether  5 it -- its overall flavour is an instruction to the  6 lawyers in which case the question of dominant purpose  7 is not truly relevant, it's really whether the  8 communication taken reasonably is a solicitor-client  9 communication.  So that is one that I would ask Your  10 Lordship to --  11 THE COURT:  Well, my problem with that, Mr. Goldie, is that if I  12 concluded that Mr. Rush's position is sound and that  13 it is indeed a -- that the dominant purpose of the  14 meeting was to give legal advice and it includes  15 counsel's recommendations on a course of action and  16 instructions from the client to proceed, I'm not sure  17 as trial judge I'd want to see that.  18 MR. GOLDIE: Well, I'm not so much troubled by that because the  19 statement is made in Mr. Grant's affidavit that the  20 legal remedies are not in relation to this action at  21 all.  He says "...with respect to possible legal  22 remedies of concerns regarding trapping and hunting  23 grounds." I don't take that to be instructions with  24 respect to this action, so that I don't think there is  25 a possible ground of embarrassment for Your Lordship.  26 THE COURT: Well, it was a meeting of the plaintiffs in this  27 action or their Tribal Council and "...with respect to  28 possible legal remedies regarding trapping and  29 hunting.", it may be that it was legal remedies  30 outside the confine of this lawsuit, I don't know.  31 MR. GOLDIE: I would say that when I brought this motion on and I  32 asked my friends to have the documents present I had  33 in mind that Mr. Justice Macdonald did this in the  34 Northern Power case, which involved a great many  35 documents, and both parties were content to have as an  36 expeditious way of determining it, and if His Lordship  37 said I -- that's privileged, the trial took so long  38 that anything -- any residual impression that was left  39 in his mind was long removed.  4 0 THE COURT:  Yes.  41 MR. GOLDIE: But when I read this affidavit, the question is left  42 in my mind whether taken as a whole the documents can  43 be immunized by virtue of the references to the  44 solicitors.  45 THE COURT:  What is your position now, Mr. Goldie, with respect  46 to the other matters?  47 MR. GOLDIE: Well, I'd say only this, My Lord.  I take my 2065  1 friend's statement that documents which arose as a  2 result of the All Clan Feast will be listed or we will  3 be notified of them.  4 THE COURT:  Right.  5 MR. GOLDIE:  If my friend claims privilege with respect to some  6 aspect of them, I would like nevertheless that it be  7 listed in the claim made because I'm by no means  8 convinced at this point that if somebody goes to a  9 meeting at which there are strangers and takes down  10 notes that that becomes part of the work product or  11 part of counsel's brief.  12 THE COURT:  Yes, all right.  13 MR. GOLDIE: I should say also that there appear to be other --  14 there appear to be other feasts that we may not be  15 aware of at this time, and I make reference to Mr.  16 Macaulay's affidavit and a motion brought by the --  17 I'm sorry, a motion with respect to interrogatories  18 and Mr. Macaulay annexes or exhibits the  19 interrogatories that he wishes and some of the answers  20 and the one question was "Describe the last ten feasts  21 that have occurred in the claim area involving any of  22 the named plaintiffs which involved a purpose other  23 than the passing of a name?" And the answer makes  24 reference to "All Clan Feast of the Wet'suwet'en on  25 February 1987, Moricetown re: Settlement of boundary  26 claim with the Carrier-Sekani."  If that is not the --  27 that appears to have occurred in February and the one  28 that I was writing my friend about was with respect to  29 April and I would like my friend's assurance that as  30 to that one, as well as to the April one, the same --  31 the same searches would be made.  32 THE COURT:  But are you now — apart from the All Clan's Feast,  33 are you pressing for production of any other documents  34 except this one that doubles in paragraph four of Mr.  35 Grant's affidavit?  36 MR. GOLDIE: The only other one about which there is a question  37 is referred to in paragraph eight of Mr. Grant's  38 affidavit.  That's 3339.  3 9 THE COURT: Yes.  40 MR. GOLDIE: The difficulty is that there appear to be a number  41 of documents lying below the simple description of  42 Moricetown Fishery report, summer 1986.  4 3 THE COURT:  Yes.  44 MR. GOLDIE:  One of them is a questionnaire, another appear to  45 be the questions -- the answers to the questionnaire,  46 and finally there is Mr. Victor Jim's report in  47 respect of which the privilege is claimed.  Accepting 2066  1 for the moment that the final document is -- bears the  2 characterization that my friend has given it, I would  3 like to see the documents that are -- precede this  4 report.  5 THE COURT:  The questionnaire?  6 MR. GOLDIE:  The questionnaire and the answers to the  7 questionnaire.  8 THE COURT:  All right.  9 MR. GOLDIE:  I should make comment about the documents 10 and  10 11 -- I mean the documents referred to in paragraphs  11 10 and 11.  These are apparently related to funding.  12 My Lord, I'm not going to ask for the document's  13 production, but in my submission they are properly  14 listed and for which no privilege can be claimed.  15 This is no privilege arising out of a private piece of  16 correspondence between A and B to which, without  17 litigation, C is not entitled to receive.  That's a  18 claim of confidentiality or something of that order.  19 THE COURT:  But it's also a claim in this context arising out of  20 relevance, is it not?  21 MR. GOLDIE: Well, I don't know whether it's going to be  22 relevant.  If the proposition is that the issue of  23 funding can never be relevant, I'd like to reserve my  24 position on that point.  I'm not going to call for  25 their production.  My submission is the documents  26 should remain properly in the list at this time  27 because I see no claim for privilege arising out of  28 the submissions made.  29 THE COURT:  Isn't that the awkwardness, that if you list  30 something that isn't relevant then because there's no  31 claim to privilege you've got to produce it?  32 MR. GOLDIE:  If called upon.  33 THE COURT: You hadn't listed it, and it didn't have to be  34 listed, then there would be no obligation to produce  35 it that seems to be the --  36 MR. GOLDIE:  Well, when I say I'm not going to call for the  37 production because as far as I'm concerned at this  38 point I've got no interest in that.  What I want to  39 avoid being fixed with is the proposition that  40 anything relating to funding is either automatically  41 privileged or irrelevant.  It may become -- at some  42 aspect of this trial, the issue of funding may become  43 of relevance, but --  44 THE COURT:  But I suppose if somebody said in a report "We have  45 no case, but we want funding anyways.", just to give  46 you an example, even then I'm not sure that that would  47 be relevant because then who's making the statement, 2067  1 the person making the statement may not be aware of  2 all the facts.  3 MR. GOLDIE: Well, I'll give Your Lordship one other example  4 which may be a little closer to the mark in this case.  5 The province has a counter-claim which asserts that  6 the second defendant is liable if the province is  7 found liable.  There may be admissions with respect to  8 the final responsibility of the government of Canada  9 for these claims in that kind of thing, but I -- my  10 submission at this time is limited to the proposition  11 that there is no privilege and the documents are there  12 and if they come to be called for there may be a fight  13 over relevance, but --  14 THE COURT:  All right.  15 MR. GOLDIE:  — that's my position at this point.  16 THE COURT:  All right.  Thank you.  Well, I don't think I need  17 to hear you, Mr. Rush.  I'm going to try and dispose  18 of this now, but if there's something that hangs over  19 residually, well, then I'll hear you again on it.  2 0 Having said that I've just changed my mind.  I do need  21 to hear you Mr. Grant on the question of  22 questionnaires. Why should the questionnaires not be  23 produced?  24 MR. RUSH: We don't have any problem with that.  25 THE COURT:  All right.  Well, then I'm going to make no order  26 with respect to documents 3326 and 3335, I don't think  27 they're producible.  3339 I'm going to direct that the  28 underlying documents such as the questionnaire and any  29 others in the same category should be listed and  30 produced.  I don't think document 3342, on the basis  31 of the information in Mr. Grant's affidavit, is  32 producible.  The same applies to 1897, 1898 and 1900.  33 I'm going to come back to 3169.  34 With regard to 1783 and 1822, I'm not going to  35 presume on this application to determine the question  36 of whether funding could ever be relevant, but on the  37 description that I had been given with respect to  38 document 1783 and 1722 I'm not going to order that  39 they be produced.  40 With respect to the All Clan Feast I accept Mr.  41 Rush's assurance that he will search out and list  42 documents that relate to the All Clans Feast held in  43 April of this year and I will leave it to him to  44 advance a proper claim for privilege, if any, with  45 respect to those documents.  And it seems to me that  46 other feasts of the same category should also be or  47 should similarily be researched and documents 2068  1 disclosed with or without a claim for privilege.  2 That leaves only this question of looking at this  3 document 3169.  I'm reluctant to do that.  I want to  4 look at as little as possible at documents that might  5 be privileged.  I recognize a precedent made by Mr.  6 Justice Macdonald in the Moricetown case, but that was  7 a commercial case without the overtones that -- well,  8 perhaps Mr. Goldie doesn't remember it that way, but  9 it was a commercial case and this is more than a  10 commercial case and I think it's more important that I  11 should not look at a document for which it's said that  12 it contains instructions to counsel and  13 recommendations of counsel, even if it's with relation  14 to another subspecies of litigation.  It's within the  15 same general description of the action that -- or  16 within the same classification of action as this one  17 and for that reason I don't want to look at it.  If  18 you want to pursue it, Mr. Goldie, I think I'd like to  19 have some other judge hear the matter and I would  20 refer your application regarding 3169 to another  21 judge.  I don't think today's a very good day to hear  22 it though.  23 MR. GOLDIE: Well, Your Lordship will appreciate that this was  24 one of a substantial number.  It's the only one left  25 and we wish to consider whether it's worth pursuing.  26 THE COURT:  Well, I think if you want to pursue that one I will  27 be glad to assist you in arranging for some other  28 judge to hear it without waiting for chambers on any  29 date convenient to counsel in this case.  I think that  30 disposes of all the matters in the application.  31 What is the other application?  It's yours, Miss  32 Koenigsberg?  33 MS. KOENIGSBERG:  That's correct, production of documents  34 application.  35 THE COURT:  All right.  Who's involved in that application, just  36 Mr. Grant and Mr. Rush or is Mr. Goldie and his group  37 involved in that as well?  38 MS. KOENIGSBERG:  Well, some of it I suppose may be of interest  39 to them, but they're not directly involved.  40 MR. GOLDIE: If Your Lordship is going to be kind enough to  41 excuse us then --  42 THE COURT:  Well, that's why I raised it, yes, I don't think  43 it's necessary for you to stay, but before you do  44 leave there is a problem.  I want to play the role of  45 the judicial busybody for a moment, now that I have  46 you all here, and to throw out for your consideration  47 a question I have that -- for which there may be a 2069  1 very simple answer, and I don't require it or expect  2 anyone to give an answer today, but I want to explain  3 to counsel this question I have in my mind.  4 I think it's something that I might address to  5 you, Mr. Rush, as a question that you can take as  6 notice, and that is simply, why is it necessary for  7 the plaintiffs in this case at this trial to prove by  8 evidence the internal boundaries?  I'm assuming at the  9 moment that the plaintiffs are agreed or can resolve  10 any conflicts amongst themselves regarding internal  11 boundaries.  What I had in mind is a series of  12 possibilities such as if the plaintiffs win they could  13 either resolve their internal boundaries themselves or  14 they -- those boundaries could be litigated separately  15 as between the plaintiffs, but -- and I don't say this  16 in any critical sense at all, but I assume that there  17 isn't a conflict between the plaintiffs on internal  18 boundaries, or maybe there is and everyone's been  19 agreed that they'll be represented by the same  20 counsel, but if the plaintiffs were to win and the  21 action is one, as presently stated, for aboriginal  22 title and jurisdiction, it is a question in my mind  23 why it's necessary for the plaintiffs to prove the  24 internal boundaries.  25 I concede that the plaintiffs would want to show  26 an attachment, an association, use and occupation and  27 all those things with territory, but I'm wondering if  28 it's necessary that they show that association in the  29 detail required to prove the internal boundaries.  30 Alternatively, if the plaintiffs were not to succeed,  31 then it still wouldn't be necessary, it seems to me,  32 but if they should not succeed on the question of  33 ownership and jurisdiction, then it seems to me it  34 wouldn't be necessary in that event to prove the  35 internal boundaries.  36 And so I'm throwing out to counsel this question  37 invented by necessity, or desperation perhaps, is  38 really is it necessary that you prove the internal  39 boundaries or could that question be conveniently and  40 without prejudice to anyone left to subsequent  41 judicial treatment if required.  I don't know if  42 anybody wants to even respond to that at the moment,  43 but it's been running through my head for the last  44 week or so and I thought I'd expose my failure to  45 understand some of the subtleties to counsel for  46 whatever assistance they can give me.  47 MR. RUSH: Well, I would prefer to take this as a notice of 2070  inquiry.  Yes.  And if Your Lordship would allow us we'll consider  answering in due course.  I should say that it also is  included within a question Your Lordship posed about  the character of the claim as being joint or several.  Right.  And we've been looking at that as well.  We, of  course, were interested in further illuminating the  process by our answer so I would prefer to leave it on  that basis.  I'm happy with that and if you think that there  would be a useful purpose in having a discussion about  that, the question I just posed or the other one,  between now and the resumption of the trial, I'd be  glad to accommodate counsel and we could deal with it,  but it is a matter that I would like to have counsel  consider and see if it is necessary that that very  difficult in detail kind of evidence is really  necessary.  I'll say no more than that at the moment  and we can hear further from counsel in that regard.  My Lord, your reference to the resumption of trial  reminds me that notice has been given of an  application for leave to appeal from the direction  that the trial resume in Vancouver on September 8th.  What sort of leave is required -- oh, I'm sorry, you  mean leave to the Court of Appeal?  That's correct.  2 9 THE COURT:  All right.  30 MR. GOLDIE: I'm assuming, and I will -- I ask my friends to  31 comment if the contrary is the case that the trial  32 will commence -- resume in Vancouver on September 8th  33 and Mr. Alfred Joseph will be on the stand to complete  34 his evidence and be subject to cross-examination, and  35 that on the basis of our present information he would  36 be followed by a witness of whom we have been given  37 notice, I think it's Madeline Alfred.  Beyond that  38 there had been no indication, but there are some  39 directions with respect to that.  4 0 THE COURT:  All right.  41 MR. GOLDIE: And that's our -- that's the basis upon which we're  42 proceeding at this time.  43 THE COURT:  Are you able to respond to that, Mr. Rush?  44 MR. RUSH: I can say little more than that our instructions  45 have -- are unchanged in respect of the continuation  46 of the trial and resumption of the trial and it's  47 present date, although, as I indicated yesterday, that  1  2  THE  COURT:  3  MR.  RUSH: ,  4  5  6  7  THE  COURT:  8  MR.  RUSH: ,  9  10  11  12  THE  COURT:  13  14  15  16  17  18  19  1  20  21  22  MR.  GOLDIE  23  24  25  26  THE  COURT:  27  ]  28  MR.  GOLDIE 2071  1 I think with the filing of the leave application with  2 the Court of Appeal that my clients may view that that  3 has certain implications in terms of the resumption of  4 the trial, but I can advise Your Lordship that we have  5 no present instructions to change the present course,  6 although again I say that that too is a matter of  7 consideration of the plaintiffs.  They're obviously  8 considering their position all the time.  9 THE COURT:  Well, I can just say that I'm expecting to resume  10 the trial on -- what was the date?  11 MR. GOLDIE: September 8th.  12 THE COURT:  September 7th.  If somebody wants to change that I  13 have no doubt they'll take such steps as may be  14 necessary to bring that on.  15 MR. RUSH: The second part of my friend's question, as I took it,  16 was the question of the resumption of Mr. Joseph's  17 examination and I told him yesterday, and I will  18 advise the court now, that it's our intention on the  19 resumption of the trial to continue with the direct  20 examination of Mr. Joseph, which will not be lengthy,  21 and the cross-examination.  22 THE COURT:  All right.  23 MR. GOLDIE: My only comment, My Lord, is that when we were here  24 last on July the 17th and my friend outlined the  25 changes that he is having regard to, my comment was  26 that I had no comment until the necessary motions were  27 made in which we would be given specifics of those who  28 would be examined on commission and those whose  29 evidence would be forthcoming on affidavit, and I  30 simply repeat what I said at that time that the sooner  31 we have those applications, the better we'll be able  32 to deal with them.  33 THE COURT:  Well, as I said before, I will be basically be here  34 for the month of August and can be -- I can be brought  35 here on short notice.  If counsel find the need, I'll  36 be glad to see them.  All right.  Thank you.  We'll  37 proceed with Miss Koenigsberg's application then and  38 you're excused Mr. Goldie if you wish.  39 MR. GOLDIE: Thank you, My Lord.  40 THE COURT:  Not that, as I have said many times, I don't think  41 it's the court's right to require counsel to stay if  42 their clients don't think there's any need for them to  43 be here.  44 MS. KOENIGSBERG:  My Lord, the material that I think you can  45 have regard to is the notice of motion and Mr.  46 Macaulay's affidavit.  This was filed on July 13th and  47 on July 17th my friend filed an affidavit in response 2072  1 and I just want to deal with part of that.  2 THE COURT:  Well, I have to tell you that we're having a  3 terrible time collecting together all the various bits  4 and pieces of paper and I don't have your --  5 MS. KOENIGSBERG:  My friend has given me another copy of Mr.  6 Adams' -- and I'm sorry I don't have another copy of  7 my notice of motion, but I'm going to abbreviate it in  8 any event so I don't anticipate you'll have much  9 difficulty.  10 I would preface my motion with two background  11 points.  The object of what I'm going to refer to as  12 our omnibus production of documents motion, which is  13 before you now, is to attempt to obtain documents  14 already in existence, and I want to be very clear that  15 we do not intend with this motion to attempt to get  16 orders for documents to be created faster, only those  17 which are in existence.  And the object of it --  18 THE COURT: The documents are already in existence, but not yet  19 produced?  2 0 MS. KOENIGSBERG: That's right.  And documents — and the  21 purpose, in our view, is to attempt to obtain these  22 documents before witnesses are called.  23 THE COURT: Before any more witnesses are called?  24 MS. KOENIGSBERG: Yes.  In our material, which you don't have and  25 so I'll just refer you to it in Mr. Macaulay's  26 affidavit, he simply deposes to that which I believe  27 Your Lordship is already familiar, that there was a  28 difficulty at trial, and it's listed in paragraph two  29 and three the instances in which either during  30 examination in chief, and I believe in at least one  31 instance during cross-examination, material involving  32 either maps or interviews with witnesses became  33 available only at that late date.  It's because of  34 that that we seek production now and in this form.  35 Now, in the motion we've asked for all the things  36 in our submission we would be entitled to in any  37 event, but I would like really only to deal with those  38 documents, specifically interviews, which certain of  39 the experts make reference and which we understand are  40 in existence.  Now, in my friend's affidavit, the one  41 that I've handed up to you, it's an affidavit of  42 Murray Adams, he has deposed that -- sort of  43 seriatim -- that certain documents would be available  44 by last week or today and that certain other documents  45 would be available hopefully by the end of August, I  46 believe in most instances, and in one instance 60 days  47 before the witness is called. 2073  1 I want to deal with these things in categories.  2 In paragraph -- first the ones that should be produced  3 or were said to be available and would be produced  4 either before today or today.  Paragraph 11 is the  5 first of those and that is a document from Wilson Duff  6 which is on the plaintiff's list of documents and it  7 is -- it's said that it would be available July 24th,  8 1987.  Now, I can tell Your Lordship that Mr. Grant  9 has advised me today that they're looking for it.  10 Again, paragraph 16, there's no time limit on this  11 one, but this deals with documents relied upon by  12 Barbara Lane, which have been listed, and in this  13 affidavit are said to be available.  Some of them are  14 available, some of them are not.  15 THE COURT: When you say "not available", you mean you haven't  16 been able to get them?  17 MS. KOENIGSBERG: That's right.  The plaintiffs can't locate them  18 or haven't been able to get them to make them  19 available to us.  I'm advised that we now have been --  20 now available to us are some of the documents on those  21 lists, some of them are not available to us and I  22 assume Mr. Grant, and I want to put that to this  23 category of things which I would like an order for in  24 the fairly near future.  25 Paragraph 17, appendices to Susan Marsden's  26 report, were said to be available by the end of July.  27 Paragraph 18, interview notes of Antonia Mills were  28 said that they would be available by the end of July.  29 No doubt some of these things are more likely to  30 appear sooner than others.  In our submission there's  31 only one recourse that we have to push up the list of  32 authorities of these things on the list of priorities  33 and that is to ask for an order that they be produced  34 and made available by August 6th.  That gives my  35 friend one more week to get them together.  I ask for  36 that order because --  37 THE COURT:  Are you saying August 6th for everything up to and  38 including paragraph 18th?  39 MS. KOENIGSBERG: Everything said to have been available already  40 or by the end of July.  41 THE COURT:  Yes.  42 MS. KOENIGSBERG: And I just come back to the point that the  43 trial date is to be resumed September 8th and I don't  44 know of any other way to be sure that we have some  45 chance of getting this material so that we can  46 properly prepare.  47 Now, there's the other category of things.  In 2074  1 paragraph 10, Mr. Brody's material is referred to and  2 it's said that it will be available by the end of  3 August. Mr. Daly, in paragraph 12, his material is  4 said to be available by the end of August, and Miss  5 Harris' material, that's the genealogical charts, a  6 particular form of them, which is referred to in  7 paragraph 15, and we have received some of the  8 material.  I assume that we have received all of that  9 which is referred to as being available by July 16th  10 because we did receive some.  The genealogical charts  11 are said to be available four weeks after the  12 plaintiffs receive funding for it and I don't know  13 what category to put that in, but dealing with those  14 things which were said --  15 THE COURT:  Excuse me, Miss Koenigsberg.  Sorry, Miss  16 Koenigsberg.  17 MS. KOENIGSBERG: Okay.  Dealing then just with Mr. Brody's  18 material which is said to be hopefully available  19 August 30th, and Mr. Daly's material which is said to  20 be hopefully available August the 30th, I would ask  21 for an order that it be made available by August 30th.  22 The balance of the material referred to, I believe  23 counsel can hopefully deal with.  If we can't, then we  24 can deal with it later.  25 THE COURT:  Well, the balance — the only one I know of in the  26 balance is the four weeks for Heather Harris.  27 MS. KOENIGSBERG:  Well, there's Marvin George.  2 8 THE COURT:  Where do I find that?  29 MS. KOENIGSBERG:  Sorry, it's really a different category of  30 things. It's paragraph 14 and they say that we'll  31 receive those maps 60 days before Mr. George testifies  32 and I think we simply have to deal with whether there  33 are any interviews and I will deal with my friend on  34 that.  35 THE COURT:  All right.  36 MS. KOENIGSBERG: And the same for Mr. — I believe we probably  37 received everything from Neil Sterritt, but I just --  38 I'll again deal with that.  That's paragraph 21.  39 THE COURT:  Yes, all right.  40 MS. KOENIGSBERG:  So the balance I believe we can deal with  41 without an order and I would ask that you make the  42 order in the circumstances that we've been before you  43 numerous times and my friends no doubt are making  44 efforts, but somehow orders have a tendency to make  45 those efforts a little more efficient or productive.  46 THE COURT:  I think Miss Russell wants to speak to you.  47 MS. KOENIGSBERG:  Thank you. 2075  1 THE COURT:  Thank you.  Mr. Rush or Mr. Grant?  2 MR. RUSH: My Lord, I address you again on this subject.  Mr.  3 Adams' affidavit I think canvasses what we say to be  4 the history of the question of the applications for  5 production of documents.  Our general submission is  6 this, that when in the course of the trial a proposal  7 was made by Mr. Goldie that there be 60 days prior  8 notice of the production of an expert report agreed to  9 by Mr. Macaulay, I would point out that that in fact  10 was sufficient prior notice to insulate the defendants  11 in this case from surprise at the further production  12 of the final reports of those experts.  And in my  13 submission it should be sufficient in the -- in  14 respect of the defendant's concerns that they have the  15 reports, together with the appended references and the  16 additional footnotes, whatever else comes in with  17 these final reports, within that time frame.  18 What we've tried to do, however, is to give --  19 despite that, is to give my learned friends an  20 indication of when they could expect to receive this.  21 Now I, in my submission, see no point whatsoever in  22 making an order of the kind that my friend has  23 indicated.  We've basically worked on the best efforts  24 principle and I can see that in some cases it hasn't  25 worked to the -- in the best possible way and in other  26 cases I say that it has.  In my submission there's no  27 point in making an order at this juncture when we've  28 tried to commit ourselves to a schedule within which  29 these documents and notes are going to be produced.  30 Most of the information that is required by my  31 learned friend, that is, in respect of Barbara Lane,  32 Miss Marsden, and I think Mr. Daly and Mr. Brody,  33 these are expert reports, the final version of which  34 has not been prepared.  We do not have the final  35 report.  Summaries for the most part have been  36 delivered.  We feel that the present order as it  37 stands now permitting the -- or requiring the  38 plaintiffs to deliver the reports within 60 days of  39 use is sufficient notice to my learned friends.  40 Having said that, however, we want to -- and we've  41 been advised that reports such as the form of the  42 appendices will be available.  43 Now, I can tell Your Lordship that with respect --  44 if I can just deal with these items one by one because  45 if they need to be dealt with individually I can  46 address them individually.  The Wilson Duff document,  47 we're looking for it.  Both Mr. Grant and I have seen 2076  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 THE  35 MR.  36  37  38  39  40  41  42  43  44  45  46  47  COURT  RUSH:  the document, it's putting our hands on the document.  We have no problem in delivering it to my friends as  soon as we have it.  It's a short letter.  I can  advise my friend it's a short letter which, as far as  I can see, would have no bearing on anything that's  going to come up in the trial in the next ensuing  period of the trial and I'm sure that they will see  that when they see the letter.  However, they're  entitled to the letter and we want to get it to them  as soon as we can.  We've asked our librarian to try  to locate it for us.  So far as Barbara Lane's documents go, we have  listed all of her documents and to my knowledge they  had been produce to us and listed upon production on  our document list.  If that is not so, then we will  certainly obtain the ones that we do not have in our  physical possession, whether it's because they did not  find their way to our library or whether Dr. Lane was  unable to give us copies.  I don't know what the  glitch is there, but it had been my impression they  were produced to our librarian, they were listed, and  were available.  Now, if there's a problem we'll  certainly try to find out what that is.  In terms of Susan Marsden's report, yes, we've  said we want to produce her appendices by the end of  July.  It's not yet the end of July.  We're very close  to it, I concede, and I'm hoping that mountains will  be moved to produce this document by the end of the  day, but My Lord, I know that Miss Marsden when we  canvassed this subject with Mr. Overstall, who's  endeavouring to co-ordinate this for us, gave that as  her deadline for the production of those appendices.  We would like them and --  :  What is her specialty?  She's an anthropologist, a Gitksan anthropologist.  And so we would, of course, like those -- to obtain  those documents as well and expected them at the end  of today's date.  We don't -- I'm unable to advise  Your Lordship as to what the current status is.  The  status that we were aware of is indicated in Mr.  Adams' affidavit.  I see no purpose in making an order of the kind  that my friend has indicated.  We've tried to committ  ourselves to a deadline.  I would ask that you not  make an order in that respect.  It would serve no  useful purpose, if for some reason through illness or  whatever, Miss Marsden was unable to produce the 2077  1 balance of her appendices.  2 In terms of paragraph 18 of Mr. Adams' affidavit,  3 my friend is asking for the Antonia Mills notes and I  4 indicated that these would be available by the end of  5 July.  I can tell Your Lordship that I have the notes.  6 I've reviewed them.  I'm in the process of reviewing  7 them, and I'm trying to get them fully reviewed before  8 I pass them over to my friends.  I had expected, it is  9 true, to have them by the end of today's date.  Again,  10 I'm using my best efforts to get them done.  I hope to  11 have them ready for her next week.  12 So far as Mr. Brody's notes, Mr. Daly's notes, the  13 information that we were given by both of these  14 experts, both of whom are out of the country, was that  15 they would be able to produce their material -- their  16 reports at the end of August, and I take it that they  17 would be able to produce all of the notes and  18 references which they have made in their reports.  I  19 see no reason why that would not be forthcoming.  I  20 say that it would be premature to make any order in  21 respect of that and if the end of August, when it  22 comes around, my friends and I are not both in  23 possession of these reports, then I think it would be  24 propitious for my friends to reassert their claim.  25 So far as Heather Harris' genealogical --  26 THE COURT:  I think I'll stop you, Mr. Rush.  I'm going to  27 propose this.  I'm reluctant to make an order.  It's  28 easy to -- easier sometimes to play the role of the  29 tough guy and make an order, but it doesn't have much  30 of a practical application.  I'm going to adjourn this  31 matter for a status report to see how you're getting  32 along.  I have to -- I'm going to be presiding at a  33 pre-trial conference in a case involving Mr. Giles and  34 Mr. Goldie on the Monday the 10th.  If there's not  35 some overwhelming reason not to fix that date, I'd  36 like to hear counsel on this matter before I embark on  37 Mr. Goldie's matters on the 10th; is that a convenient  38 date?  39 MR. RUSH: If you'll just excuse me for a moment?  4 0 MS. KOENIGSBERG:  That's fine with me.  41 MS. RUSH: Yes.  42 THE COURT:  All right.  And then if counsel can work out their  43 problems between them, a phone call would suffice.  It  44 wouldn't be necessary to make an appearance.  45 MS. KOENIGSBERG: I would like to make it clear to Your Lordship,  46 and to my friend, I'm not asking for the reports.  47 MR. RUSH: I understand. 2078  1 THE COURT: All right.  Then if there's nothing else we'll  2 adjourn then and I have to say to counsel that if they  3 need to have access to the file in this matter I'm  4 trying to get them all collected together and the file  5 hasn't yet come down from Smithers and there are bits  6 and pieces.  I'm trying to collect them all together  7 and the best place to make inquiries is to my chambers  8 for the moment.  I'll set up some kind of a place  9 where they can be more conveniently -- where the file  10 will be more convenienty available.  All right.  Thank  11 you.  12 THE REGISTRAR:  Order in chambers.  Chambers is adjourned.  13 (PROCEEDINGS ADJOURNED)  14  15 I hereby certify the foregoing to be  16 a true and accurate transcript of the  17 proceedings transcribed to the best  18 of my skill and ability.  19  2 0    21 Tanita S. French  22 Official Reporter  23

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