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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-03-25] British Columbia. Supreme Court Mar 25, 1988

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 5043  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MARCH 2 5, 1988.  VANCOUVER, B.C.  THE REGISTRAR:  Order in court.  In the Supreme Court of British  Columbia, this Friday, March 25, 1988.  Calling  Delgamuukw versus Her Majesty the Queen at bar, My  Lord.  THE COURT:  Before we get on with the matter at hand, have  counsel been shown this petition that has been filed  in this action by Mr. Sterritt?  I forget his name.  Oh dear, I can't find the signature.  James Russell  Sterritt.  Have you seen it?  MR. RUSH:  I haven't, no.  MR. PLANT:  No, My Lord.  MS. KOENIGSBERG: Nor have I.  THE COURT:  Could you give it to counsel and perhaps at some  time tell me what I ought to do with it.  All right.  And I don't think that we need delay  ourselves to worry about that matter at the moment.  It certainly doesn't have to be dealt with today.  All right.  Mr. Plant, you have an application?  MR. PLANT: Yes, My Lord. I have some material, although it may  be that Your Lordship has most or all of it. I have a  copy of Rule 28, which I intend to refer to.  THE COURT:  Yes.  MR. PLANT:  I have a copy of the original Notice of Motion dated  October 13, 1987, which is probably buried so far in  the file that Your Lordship does not have that.  Does  Your Lordship have an affidavit of Mr. Goldie of March  15?  THE COURT:  Yes.  MR. PLANT:  Then perhaps I could hand up the —  THE COURT:  Yes.  MR. PLANT:  — the Notice of Motion of October 13, 1987 and Mr.  Goldie's original affidavit of October 13, 1987,  together with a copy of the rule.  Actually, Madam  Registrar, I have also added the March 15th affidavit,  which His Lordship probably has or does already have.  THE COURT:  Thank you.  MR. PLANT:  The application, My Lord, for an order under Rule 28  that Heather Harris be examined on oath on the matters  in question in the action.  Because I wish to examine  her in her capacity as an expert, the applicable sub  rules are 28 (2) and 28 (3).  And I propose to refer 5044  Submissions by Mr. Plant  1 to those, Rule 28 (2) -- well, perhaps beginning with  2 Rule 2 8 (1):  3  4 "Where a person, not a party to an action,  5 may have material evidence relating to a  6 matter in question in the action, the court  7 may order that he be examined on oath on  8 the matters in question in the action and  9 may, either before or after the  10 examination, order that the examining party  11 pay the costs of the person relating to the  12 application and the examination on a  13 solicitor and client basis."  14  15 Sub rule (2):  16  17 "An expert retained or specially employed  18 by another party in anticipation of  19 litigation or preparation for trial may not  20 be examined under this rule unless the  21 party seeking the examination is unable to  22 obtain facts and opinions on the same  23 subject by other means."  24  25 Then in sub rule (3) there are three prerequisites  26 for an application for an order, and those  27 prerequisites are required to be contained in the  28 affidavit material.  The first is:  29  30 "The matter in question in the action to which  31 the applicant believes that the evidence of  32 the proposed witness may be material"  33  34 Shall be in the affidavit.  And second, the  35 affidavit shall also show in the case of an expert  36 that the applicant is unable to obtain facts and  37 opinions on the same subject by other means.  And  38 thirdly:  39  40 "That the proposed witness has refused or  41 neglected upon request to give a responsive  42 statement, either orally or in writing ..."  43  44 And so on.  In sum, My Lord, an order under the rule  45 is discretionary, but Your Lordship's exercise of that  46 discretion does not arise until the prerequisites have  47 been met.  And as to those prerequisites I would ask 5045  Submissions by Mr. Plant  1 Your Lordship to refer firstly to Mr. Goldie's  2 affidavit of -- it's actually sworn October 9th and  3 filed October 13th, which is one of the affidavits I  4 just handed up to Your Lordship.  The second affidavit  5 is a supplemental affidavit.  6 Perhaps -- does Your Lordship have the affidavit?  7 The October 13, 1987 stamp on it.  I think that's in  8 front of you at the head of the table.  9 THE COURT:  Yes.  10 MR. PLANT:  The gist of this application arises out of the fact  11 that the plaintiffs' solicitors has delivered an  12 expert report by Heather Harris, and a copy of that  13 report is appended as Exhibit A to this first  14 affidavit.  15 I should say, My Lord, at the outset that there is  16 unfortunately an error in paragraph 5 of Mr. Goldie's  17 affidavit of October 13.  It's an over statement.  The  18 first sentence reads:  19  20 "The plaintiffs' solicitors claim to represent  21 all persons of Gitksan descent."  22  23 That is not correct.  The plaintiffs' solicitors  24 claim is to represent all Gitksan persons except the  25 Kitwancool chiefs.  2 6    THE COURT:  Yes.  27 MR. PLANT:  And I thought I had better get that straight.  28 Now, the subject matter of Miss Harris's report.  And  29 in this regard, My Lord, I am speaking to the first  30 prerequisite under the rule; that is, that the matter  31 in question as to which the witness's evidence may be  32 material.  33 The subject matter of Miss Harris's report is  34 Gitksan kinship and genealogy, and as set out in Mr.  35 Goldie's first affidavit in paragraph three the  36 relevance of those issues arises straight from the  37 pleadings.  38 THE COURT:  I don't think you need to get into those.  I would  39 be surprised, Mr. Plant, there will be argument on  40 that.  41 MR. PLANT:  There were basically three general ideas that I did  42 wish to leave Your Lordship with, three general  43 questions.  First, who are the Gitksan today, and  44 let's put it another way, identification of the  45 persons who are claiming the relief sought; secondly,  46 how does one become a Gitksan, how does one enter that  47 class; and thirdly, who are the Gitksan in the past? 5046  Submissions by Mr. Plant  1 That would be -- put it another way.  Identification  2 of the persons from whom the plaintiffs have acquired  3 the rights claimed by them.  4 Now, Miss Harris clearly claims to be knowledgable  5 concerning these matters, and I will take you to the  6 portions of her report which contain that claim.  7 Dealing under the heading now of the requirement that  8 I have to show that we are unable to obtain these  9 facts and opinions on these subjects by other means.  10 And if I could ask Your Lordship to turn to page  11 one -- well, turn to Exhibit A of the first affidavit.  12 The first page is the title page of the report, the  13 second page is the table of contents, and you will see  14 that Miss Harris's subjects are house, lineage,  15 related houses and clans, kinship, marriage,  16 inheritance, adoption, amalgamation and division of  17 houses and significance of the genealogies.  18 Moving to page one of the report under the heading  19 introduction.  20  21 "This report has been derived mainly from over  22 two years of genealogical research and the  23 related information on Gitksan social  24 structure which has been collected.  The main  25 product of her research is a set of 50  26 genealogical charts (See Appendix B for an  27 example) which name virtually all of the  28 living Gitksan and many of their ancestors.  29 The charts show how the living members of each  30 house are related".  31  32 And so on.  The next sentence:  33  34 "The genealogies demonstrate house  35 membership."  36  37 And then in the next paragraph:  38  39 "The genealogies are based primarily on  40 hundreds of interviews with Gitksan elders."  41  42 And indeed in her partial answer to the questions  43 which we submitted to her, Miss Harris lists, by my  44 calculation, approximately 228 interview subjects, and  45 says also in this report that many of these subjects  4 6 were interviewed by her many times.  47 Of course all of those persons are plaintiffs, or I 5047  Submissions by Mr. Plant  1 should say not all, because some may well be  2 Kitwancool people.  So I should say substantially all  3 of her interviews subjects are Gitksan persons, and  4 therefore unavailable to us as interview subjects.  5 Now, another way that you can do genealogy and  6 kinship research is on the basis of written records.  7 What Miss Harris says is insightful in this regard.  8 In the paragraph that I began reading a moment ago she  9 says:  10  11 "The written records usually corresponded with  12 the oral record as well, but they are not as  13 useful as the elders' information because the  14 written records never indicate house  15 membership which is the organizing principle  16 of the genealogies.  As well the written  17 records are time limited."  18  19 And so on.  Now, turning over to page 2, see the  20 large paragraph on that page begins:  21  22 "My research demonstrates ..."  23  24 And she goes on to say what it is that that  25 demonstrates.  26 Then on page three beginning she says:  27  28 "The matrilineal principle is the main  29 determinate of inheritance, of titles,  30 perogatives and temporal properties in Gitksan  31 society.  The genealogies clearly demonstrate  32 the pattern of inheritance."  33  34 And later on in that paragraph:  35  36 "The genealogies demonstrate the inheritance  37 of the chiefs' names of each house through as  38 many as six generations."  39  40 Carrying on to the next paragraph:  41  42 "The genealogies also provide important  43 information about adoption."  44  45 Now, if I could turn to page 5 under the heading  46 methodology and research methods, Miss Harris says:  47 504E  Submissions by Mr. Plant  1 "The genealogical research began in May  2 1984 and is ongoing.  It can never be  3 complete."  4  5 And so on.  And that paragraph that I relied on  6 quite heavily in support of my application, My Lord.  7  8 "I began the genealogical research in a  9 position which is fairly unique and somewhat  10 enviable in anthropologists.  In addition to  11 my formal training in anthropology I am a  12 member of the community I study.  I am a  13 member of the house of Niist.  I have a  14 minor chief's name in the seat in the feast  15 hall.  As a house member in my own right and  16 especially as the wife of a chief, I am  17 heavily involved in the feast system.  As well  18 I have learned a considerable amount about  19 Gitksan society from witnessing the rising  20 power of my husband Helx, who holds a  21 councillor's position and is heir to his head  22 chief 'Ts'iibasaa."  23  24 I should say Helx is H-e-l-x, and Ts'iibasaa is  25 T-s'i-i-b-a-s-a-a.  26  27 "Such involvement in the society diminished  28 for me one of the anthorpologists biggest  29 problems, which is rapport with the people  30 under study.  Being a community member has  31 afforded me opportunities for participant  32 observation in favour of anthoropological  33 methodology not usually available to outside  34 observers.  The result has been a deeper  35 understanding of the nature of Gitksan  36 society."  37  38 And then just one last reference on page 8 where she  39 says:  40  41 "The eventual results of her investigation was  42 the production of 50 genealogies and also I  43 have conducted hundreds of interviews with  44 house members, some people were interviewed  45 many times."  46  47 Now, My Lord, as I already said, her interview 5049  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH:  THE COURT  MR. RUSH:  MR. PLANT  subjects, that is to say the source of her facts, the  facts on which her report is based, are plaintiffs,  persons who by definition are not available to us.  Her opinions, based on her privileged position of  access, are therefore similarly untestable, if I can  put it that way.  There are no comparable published  genealogies.  There is literature on Gitksan kinship  but nothing of the depth and scale claimed by Miss  Harris.  And I should say, My Lord, that I am only aware of  three other scholars who have conducted and published  the results of field research into Gitksan kinship and  genealogies in recent times.  Excuse me, all of this that you just heard is not in  any of the affidavit material.  :  I'm sorry, all that I have heard you mean about --  Just in the last 30 seconds about what's available in  the literature and so on.  These are Mr. Plant's  observations, which aren't borne out in the affidavit.  :  Well, in fact I am relying on my friend's affidavit.  My friend's filed an affidavit -- delivered to me an  affidavit of Murray Adams, setting out the  bibliography which is attached to Heather Harris's  report, and the bibliography attached to John Cove's  expert report.  I have reviewed personally many of the  materials in that -- in both of those, and I don't  propose to do any more than leave it with you on that  basis, My Lord.  A review of the -- well, I will do this, My Lord.  A  review of the bibliography of Mr. Cove's report  indicates that Mr. Cove relies on works which appear  to deal with issues of kinship.  Mr. Cove is also an  expert retained by the plaintiffs.  As to two others persons, their names are Adams and  Kasakoff.  And I am now going to refer Your Lordship  to page 29 of Heather Harris's report, where she  says -- she comments on professor Adam's work and  Adams.  She says on page 29:  "Falsely assumed that House lineages are  biologically unrelated groups that came  together for corporate purposes.  This  assumption arose from ..."  And I think that should be "prefunctory"  "... genealogical research which did not reveal 5050  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. PLANT  the biological relationship between lineages.  My research has connected many lineages."  "My research ..."  That is based on the hundreds of interviews that she  has conducted of Gitksan elders:  "My research has connected many lineages which  seemed unrelated upon initial investigation  with the result that I find no reason ..."  And so on.  And then carrying on to page 30 of the  paragraph that begins:  "That Adams harbours misconceptions where  Gitksan genealogy is concerned is  probably not surprising in light of his short  period of research during which only a limited  amount of information could be obtained and  little rapport could be established with the  Gitksan elders.  As well, it seemed  that Adams has relied heavily upon the written  record which can be misleading at times."  So in my submission Rule 28 was tailor made for the  situation where a party has hired a researcher to  conduct an independent research project into facts and  opinions relating to their case, and in a situation  where the kind of research involved is unavailable to  us because of the subjects of the interviews.  As to the final requirement, and that is the refusal  to give a responsive statement, the background  generally or in some instant a request for an  interview is made and eventually there was a response  requesting that we deliver questions in writing, and I  deliver questions in writing to Miss Harris, and  sometime after that she delivered answers to some of  those questions.  And under cover of those answers was  a letter from Mr. Grant, which is set out as Exhibit C  to Mr. Goldie's affidavit.  And I am now referring to  the second affidavit.  Exhibit C is a letter of Mr.  Grant of February 2, 1988.  The list of questions, which is Exhibit B, is 31  pages long, My Lord, so Exhibit C follows that.  :  Do I need Mr. Grant's letter?  Yes, I have it now.  :  Basically it's an objection to the scope of our  questions. 5051  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  Yes.  MR. PLANT:  Now, My Lord, in Exhibit B, the list of questions, I  wish to refer Your Lordship only to four or five  questions that were not answered, to give Your  Lordship an indication of the -- some of the questions  that are particularly important to us.  Exhibit B is, as I said, is about 31 pages long, and  at the top of page 10, question 38:  "Please identify all the Gitksan houses which  your research has uncovered, naming each head  chief, the English name of the person  presently holding that position (or the most  recently known holder) and the Gitksan and  English names of the major sub-chiefs of  each house."  Question 46.  It's another question that was not  answered.  "Please identify each of the houses which fall  within your description at page 19 as 'clearly  distinct units with no confusion of  memberships'."  Then with sub B:  "Please identify all houses where such  confusion about membership does exist."  And sub C:  "What is the source or sources relied on for  the answer to these questions?"  Question 52A:  "What are the total number of marriages  disclosed by your genealogical research?"  "Are there different types of marriages?"  "How does one tell the difference between an 5052  Submissions by Mr. Plant  1 affair and a marriage?"  2  3 And other questions under that heading.  4  5 "How many occurred between persons of  6 different Gitksan villages?  7 How many occurred between Gitksan persons and  8 persons of:  Nisga; Coast Tsimshian origin".  9  10 Now, there is no question that that -- no doubt that  11 that is a fairly comprehensive question, My Lord.  But  12 both at the beginning and at the end of the list of  13 questions we inserted the following caveats.  14  15 "If you do not know the answer to any of the  16 questions listed above or if the answer would  17 require you to perform research not done at  18 the time of your report, please so indicate,  19 describing briefly, where applicable, the  20 nature of the research that would be required  21 for an answer."  22  23 So if she hasn't done the research, then a statement  24 to that effect would be a sufficient answer.  We  25 certainly are not asking Miss Harris and did not ask  26 Miss Harris to do any additional research.  27 Then question 63:  28  29 "Please describe the research undertaken to  30 the verify the assertion that the Gitksan have  31 a preference for cross-cousin marriage."  32  33 And I assume that because Miss Harris has several  34 pages in her report discussing this so-called  35 preference for cross-cousin marriage, that that is a  36 matter which is of some relevance to the plaintiffs'  37 case.  She said that they have that preference.  I say  38 that I am entitled to examine her to ascertain the  39 facts on which that opinion is based; what was the  40 research that she undertook to permit herself or to  41 permit the expression of that opinion.  42 And another example or the last example would be  43 question 75 under the heading.  44 THE COURT:  I'm sorry, can we go back a page and tell me -- you  45 referred specifically to question 38, 46.  And what  46 were the others, please, that you say have not been  47 answered? 5053  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  MR.  PLANT  COURT  PLANT  COURT  PLANT  THE COURT  MR.  THE  MR.  PLANT  COURT  PLANT  52.  52?  Yes.  Yes.  Actually I'm not sure what Your Lordship's question  is directed to, but in paragraph six of Mr. Goldie's  second affidavit there is a list of what I might call  the core questions.  Yes.  All right.  I just want a list of the ones  that you made specific reference to.  The last one I  have is 52.  38, 46, 52 and 63.  Yes.  There are follow-up questions of question 63, but  I -- for the purpose of my present submission, I am  trying to give Your Lordship just a flavor of the  kinds of questions that were asked, in order to obtain  some better understanding of the facts and opinions  expressed by Miss Harris.  And question 75 is the last  one I wanted to refer Your Lordship to.  75 A:  "Please identify all instances where a chief's  name has been inherited by someone other than  a House member."  "What was the relationship of the successor to  the predecessor?"  She has an entire chapter of her report on the  subject of inheritance, and focuses on inheritance of  chiefs' names and the rules that are said to regulate  inheritance.  There are also -- there are follow-up questions.  There were questions of a terminological nature --  used a term which may be well-known in the  anthopological literature, it may not.  What do you  understand that term to mean in order that I can  understand the balance of her opinions on that  subj ect.  So that's basically my submission, My Lord.  I say  that the prerequisites of the rule are satisfied and  that an order should be made because of the apparent  importance of the subject matter and the extensive  knowledge claimed by the proposed witness and the  unavailability to us of these facts and opinions by 5054  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. PLANT  THE  MS.  THE  MR.  THE  MR.  THE  MR.  other means.  All right.  Mr. Plant, where is this list you say of  questions that have not been answered?  Is it  paragraph six of Mr. Goldie's --  That is an edited list.  There were a great many  more questions to which objection was taken, but those  are, I might say, core questions.  Many of the other  questions are follow-up questions or questions of  terminology that I would say that if an order were to  be made, I would be entitled to ask those questions of  Miss Harris, but for the purpose of demonstrating  entitlement to an order, I can find the list to those  in paragraph six, because those questions are intended  to elicit the facts and opinions -- directly elicit  the facts and opinions which we are unable to obtain  by other means.  All right.  Thank you.  Ms. Koenigsberg.  KOENIGSBERG:  I certainly would support Mr. Plant's  application, but this is the Province's application  and we do not have anything to put forward.  Thank you. Mr. Rush?  My Lord, do you have the affidavit of Murray Adams?  Yes, I did have a moment ago.  Yes.  Fine.  Thank you.  I would ask you to look at some authorities that I  have prepared.  Would you please hand that to His  Lordship.  Thank you.  The first response I would like to make is in  reference to the last argument that was advanced by my  learned friend, and that is what he says to be the  apparent importance of the subject matter.  I take  that to mean that he feels that it's important to the  plaintiffs.  I take that it also must mean that it's  important to the defendants, at least to the Province,  because here we have the issue of kinship and social  organizations being placed squarely before Your  Lordship as a matter that my learned friend feels is  of sufficient importance that he needs to have further  disclosure, more disclosure than he already has.  So I  don't think there is any doubt to the Province that  this is a matter of considerable importance.  This application, My Lord, has as its purpose to  obtain pre-trial discovery of the expert opinion  report of Heather Harris.  That report, as has already  been mentioned, was appended to Mr. Goldie's affidavit  of October the 13th.  The introduction to that report  COURT:  COURT  RUSH:  COURT  RUSH:  COURT  RUSH: 5055  Submissions by Mr. Rush  1 describes the areas in which Miss Harris's expert  2 opinion will be tendered.  It states that there are 50  3 genealogical charts in various states of completion  4 which name virtually all of the living Gitksan and  5 many of their ancestors.  The charts show, she says,  6 how the living members of each of the houses are  7 related and their house memberships.  Miss Harris  8 describes what this research indicated to her in  9 respect of Gitksan kinship and social organization at  10 pages two and three of Mr. -- of her report, which is  11 found in Mr. Goldie's affidavit, number 1.  12 I would like you to refer to that, pages two and  13 three.  The bottom of page two, that's affidavit  14 number 1, October the 13th, where she says:  15  16 "My research demonstrates that the primary  17 principle of Gitksan kinship is matrilineal.  18 Descent is reckoned through females.  The  19 primary grouping in Gitksan social  20 organization is the matrilineal kin group  21 called the wilp or house.  The house is the  22 land owning unit and the main organizer of  23 economic relations.  Each Gitksan house  24 belongs to one of four clans, and house clan  25 memberships determines most social  26 relationships including marriage.  The most  27 important feature of Gitksan marriage is that  28 one is prohibited from marrying within ones  29 clan.  A preference is also expressed for  30 marrying into ones father's house called  31 cross-country marriage."  32 THE COURT:  Cross-cousin marriage.  33 MR. RUSH:  Excuse me, cross-cousin marriage.  And then at the  34 top of page three:  35  36 "The matrilineal principle is the main  37 determinate of inheritance of titles,  38 perogatives and temporal properties in Gitksan  39 society.  The genealogies clearly demonstrate  40 the pattern of inheritance, in particular of  41 chiefs' names.  The genealogies demonstrate  42 unequivocally that the chiefs' names are  43 inherited within the matrilineal kin group  44 house usually within the same lineage as the  45 previous chief and often from uncle to nephew,  46 from a man to his sister's son.  The  47 genealogies demonstrate the inheritance of the 5056  Submissions by Mr. Rush  1 chiefs' names of each house through as many as  2 six generations and often well back into the  3 19th century.  The possession of some other  4 names is known nearly 200 years back through  5 genealogies."  6  7 And then in the subsequent part of the introduction  8 she deals with the important subject of adoption.  9 Now, that's the focus, My Lord, of the expert opinion  10 which will be tendered of Miss Harris in the focus of  11 her report.  Her report goes on for 81 pages to expand  12 on her purposes and conclusions.  She explains in her  13 references the scholar re authorities which she has  14 referred to.  15 And in answer to one of the questions, that is  16 question 5 of the Rule 28 questions on methodology,  17 and this can be found appended to Mr. Goldie's second  18 affidavit, this is appended as Exhibit C, she says  19 that she utilized the works of Robin Fox, Roger  20 Keasing, Philip Drecker, Violi Garfield, Marvin  21 Harris, Edward Sapler and John Cove.  Despite this  22 disclosure, the defendant Province says that they were  23 unable to obtain facts and opinions by other means.  24 Now, I have two arguments in respect of this.  The  25 first deals with the material before you and what you  26 can rely upon.  Of the affidavit material filed in  27 support of this application, I say is insufficient to  28 justify your making any order under the appropriate  29 rule, and as has been cited to you, Rule 28(2)  30 states -- and I am not going to read the whole of the  31 rule, but the pertinent portion of that I want to  32 underscore is that the applying parties must show that  33 they are unable to obtain facts and opinions on the  34 same subject by other means.  28 (3) perhaps  35 underscores that again by saying that the affidavit  36 material must be supported -- that the application  37 must be supported by affidavit material.  And in sub  38 rule B, again the language where the applicant is  39 unable to obtain facts and opinions on the same  40 subject by other means.  So you must be assured, My  41 Lord, that the defendant Province can't get what they  42 say that they need by other means, that is on the same  43 subject area.  And I would ask you to keep in mind the  44 subject areas which the opinion report addresses.  45 Now, what does Mr. Goldie say in respect of his  46 ability to obtain this information.  And that can be  47 found in paragraph number 1 of Mr. Goldie's, which is 5057  Submissions by Mr. Rush  1 paragraph 4 and 5 on page 3.  And I am quoting.   He  2 says:  3  4 "It is apparent from a review of Miss Harris's  5 report that she has obtained facts and  6 opinions on these subject matters as a result  7 of extensive field research among the Gitksan.  8 In particular Miss Harris claims in her report  9 to possess advantage other experts of her  10 discipline do not enjoy."  11  12 And then in the paragraph he says:  13  14 "The plaintiffs' solicitors claim to represent  15 all persons of Gitksan descent."  16  17 And you have had a clarification of that this  18 morning.  As a result of the foregoing, he says, "I  19 believe" -- he says:  20  21 "I believe the defendant Province is unable to  22 obtain these facts and opinions by means  23 other than an interview with Miss Harris."  24  25 And I should say that probably the foregoing that he  26 refers to, refers back to paragraph three where  27 reference is made to issues of kinship and genealogy;  28 that is the three questions that were posed by Mr.  29 Plant in his argument.  Who are the Gitksan?  How does  30 one become Gitksan?  Who were Gitksan in the past?  31 Pretty basic subjects for the litigation.  32 Now, My Lord, Mr. Goldie does not depose as to why  33 he is unable to obtain these facts and opinions about  34 all persons of Gitksan descent about kinship and  35 genealogy.  He says, or at least my learned friend now  36 says, it is self-evident.  It's evident from the  37 material, that is to say her report, and it's evident  38 from the references.  But is it?  You are asked to  39 take that as an article of faith.  40 The fact that, My Lord, Miss Harris says in her  41 report that she is in a position that is enviable  42 perhaps by other anthropologists, does not mean to  43 say, I suggest, that the information could not and  44 cannot be obtained from other sources.  At least, My  45 Lord, I think you ought to know on what basis my  46 learned friend and Mr. Goldie say that it is not, and  4 7 you don't. 505E  Submissions by Mr. Rush  1 MR. PLANT:  With great respect, My Lord, the reason is in the  2 first sentence of paragraph 5 of Mr. Goldie's  3 affidavit.  We can't speak to the plaintiffs because  4 they are represented by my friends.  In fact my  5 friend -- well, I won't carry on that.  6 MR. RUSH:  So my friend says we can't speak to the plaintiffs.  7 So we should be able to interview the expert.  This is  8 the proposition I now take it to be.  But what about  9 the people who spoke to the plaintiffs in the past?  10 Are you assured that those people who spoke to the  11 plaintiffs, the Gitksan, the chiefs, are assured that  12 those people don't have the information or that the  13 information isn't available in the references that  14 have been cited by Miss Harris?  15 Of course the other thing that I think permeates the  16 whole of this application is that my friend is trying  17 to suggest that he isn't speaking to the plaintiffs  18 today.  And I say to my learned friend that he has  19 examined at great length the witnesses, many of whom  20 were the informants of Miss Harris, on the witness  21 stand, both in discovery, on questions of genealogy,  22 on questions -- these questions were raised on  23 commission and these questions have been exhaustively  24 canvassed in respect of this trial.  25 Now, I am going to come back to that in a moment,  26 but here I am simply dealing with what I think are the  27 requirements for my learned friend to obtain the order  28 that they seek, in terms of the prerequisites that  29 they must satisfy.  30 I think that there is some support for the  31 proposition that I am advancing here in Tab 1 of my  32 authorities, which is the First Capital City  33 Development case.  And, My Lord, in that case the  34 court at page 286 of the judgment, decision of the  35 Court of Appeal, second to last paragraph; here the  36 Court criticized a lower court judge who did not allow  37 an examination of a witness under rule 28(1).  So we  38 are not dealing with the same rule, but he did have  39 this to say at the bottom of the page.  Partway  40 through the last paragraph on page 286:  41  42 "Referring to the 30 questions, he said that  43 the material did not show that efforts had  44 been made to obtain the requested information  45 elsewhere or why the information is still  46 needed.  That sort of test, I think only  47 arises where it is proposed to examine an 5059  Submissions by Mr. Rush  1 expert witness and R. 28(2) applies."  2  3 And I suggest, My Lord, that that passage is  4 pertinent to your determination of whether or not you  5 can be satisfied in the material before you as to  6 whether the defendant Province here has made efforts  7 to obtain the material or obtain the requested  8 material elsewhere.  And I say the supporting  9 affidavits of Mr. Goldie do not set out that efforts  10 had been made to obtain the requested information  11 elsewhere, or why, in my submission, the Province was  12 unable to obtain by other means the same information.  13 Now, I say as well, My Lord, that the references  14 listed in the reports of Miss Harris and Dr. John Cove  15 set out source material on the issue -- issues of  16 kinship and genealogy.  They set out material on the  17 identification of Gitksan hereditary chiefs, Gitksan  18 culture, authority and laws, and the Gitksan  19 hereditary chiefs are the descendants of the Gitksan  20 hereditary chiefs --  21 MR. PLANT:  Is my friend guilty of the same sin of which he  22 accused me earlier, My Lord, explaining what the  23 authorities say.  24 THE COURT:  They are not before me.  25 MR. RUSH:  My Lord, what I am going to do is just refer you to  26 the subjects, the titles, and it is from that that I  27 suggest -- you see, my friend asked me if -- am I  28 guilty of this, but the onus is on my learned friend.  29 I simply ask you to refer to Exhibit D in Mr. Murray  30 Adams' affidavit, and look, if you will, to the  31 references there.  John Adams, the Gitksan potlatch --  32 MR. PLANT:  Where is that?  33 MR. RUSH:  This is in Exhibit D to Mr. Adam's affidavit.  34 THE COURT:  Yes.  35 MR. RUSH:  There is the article, John Adams and Alice Kasakoff,  36 anthropology, genealogy and history, 1986.  37 MR. PLANT:  Is that a publishd article, Mr. Rush?  38 MR. RUSH:  I have no reason to doubt that it is.  Do you doubt  39 that it is?  40 MR. PLANT:  It is not a published article.  But without  41 misleading the Court, I have read it, there are no  42 genealogies attached to that article.  43 MR. RUSH:  Well, it's interesting that my learned friend is so  44 prepared to give this information and not depose to  45 it.  The fact of the matter is, My Lord, you have to  46 be satisfied on affidavit material that efforts have  47 been made to obtain the information.  And what I say, 5060  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  My Lord, is this.  That these sources -- and my friend  asked whether this is published -- all of this  information was delivered to my learned friend upon  request last July.  And what I say, My Lord, is you  should know whether or not John Adams or Alice  Kasakoff have been contacted by my learned friend, and  if they have, were they -- was an inquiry directed at  the areas of their concern with regard to Miss  Harris's report.  Who are the Gitksan?  What is their  past?  How are names passed?  And I ask you also to  take into account Adams/Kasakoff PhD thesis, explicit  and implicit marriage rules among the Gitksan.  And I say, My Lord, and you can look at the other  subjects here, John Price, Indians of Canada; Ralph L.  Wirsing, The Health of Traditional Societies and the  Effects of Acculturation in Current Anthropology.  And  again I say, My Lord, that there is -- there are  anthropologists, there is sociology in the field of  Gitksan anthropology which you cannot be satisfied in  this material, or my friends assurances has not been  adequately canvassed to see if they can obtain this  information from other sources by other means.  And I ask you again to look at the references cited  in Dr. John Cove's citations, which are found at  Exhibit E of Mr. Adams' affidavit.  And there John  Cove's references include John Adams, the Gitksan  Potlatch, Marius Barbeau's work.  I don't ask my  friend to contact Marius Barbeau, but I do ask him to  look at the material that Marius Barbeau recorded in  the 1920's as a source for the very information which  is now being sought from Miss Heather Harris.  I ask you as well to take into account the article  by Marjorie Halpin, The Tsimshian Crest System; and  George McDonald, Kitwangak Fort Historic Site, The  Epic of Neqt; Ralph Maud, A Guide to B.C. Indian Myth  and Legend.  And I say on this point, My Lord, you  cannot be satisfied from any of the material in front  of you that in fact my learned friends from the  defendant Province have not been able to obtain the  same information from other sources.  :  Well, I have their baldest statement that they  can't.  You can't rely on that, My Lord, on the basis of the  authority of the Court of Appeal in First City.  I say  that, with respect, you have to make sure of that.  They have to -- by specifically under Rule 28(3) (b),  their material has to satisfy you that the applicant 5061  Submissions by Mr. Rush  1  2  3  4  5  THE  COURT  6  7  MR.  RUSH:  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  THE  COURT  23  MR.  RUSH:  24  THE  COURT  25  MR.  PLANT  26  MR.  RUSH:  27  MR.  PLANT  28  29  30  31  32  33  MR.  RUSH:  34  35  36  THE  COURT  37  MR.  RUSH:  38  39  THE  COURT  40  MR.  RUSH:  41  42  43  44  45  THE  COURT  46  47  is unable to obtain facts and opinions on the same  subject matter by other means; and I, with respect,  say that the bald assertion of that fact is not  sufficient.  : What you say there is that amounts can't -- would  have to negative every possible source of --  I don't say that.  That is putting my position on the  extremities of what I am arguing.  I am saying that  you have to know whether or not John Adams was  contacted; whether or not similar questions were put  to John Adams, who is a pre-emminent anthropologist in  the field of Gitksan anthropology; whether or not he  has information gathered from his research among the  Gitksan; whether it deals with questions of the -- of  who the Gitksan are; the nature of the Gitksan social  system in kinship relations.  I say there must be some  effort demonstrated to Your Lordship that efforts have  been taken on the basis of disclosed material.  Disclosed, I wish to point out.  On February 27th,  1987 these -- the references were disclosed to my  learned friends in July of 1987.  :  How did that disclosure come about?  Of the report or the reference?  :  The reference, Adams and Kasakoff.  :  Actually I think --  Because they were requested and we delivered them.  :  I think that Heather Harris -- my recollection may  not be that accurate, but my recollection at the  moment is that the bibliography of the list of  references in the list of Heather Harris's report was  attached to the report that was delivered in February  of '87.  I'm sorry.  What I meant to say was that the  documents in Appendix A -- you are quite right, the  references were disclosed in February of 1987.  :  Oh, yes.  But the documents that had been accumulated by Miss  Harris were disclosed in July.  :  Yes.  All right.  These were the written records, My Lord, and I should  point out were extremely voluminous.  And if they had  wanted to hire an anthropologist to go through that  material, it was open for them to do so.  Now --  :  Would it be fair to categorize your submission as  being that the plaintiffs -- the applicants in their  material should have negatived at least the usefulness 5062  Submissions by Mr. Rush  1 of the disclosed references as a source of  2 information?  3 MR. RUSH:  I say that the duty on the applicants in this case is  4 to demonstrate to Your Lordship that they have made  5 efforts to obtain the same material and to demonstrate  6 to you that they couldn't get it.  And I don't think  7 it's just a matter of looking at the references,  8 saying that they have read them and that they can't  9 get the material.  I don't think, with respect, that  10 that is an informed opinion.  Although my friend has  11 certain expertise in anthropology, I wouldn't expect  12 that he would be able to assure you that the same  13 information could not -- could not be obtained from  14 another anthropologist.  15 What I mean to say here, My Lord, is that Miss  16 Harris is not in divine solitude with respect to this  17 work.  The Gitksan have been studied by many people,  18 many of whom are still living, and in my submission  19 Your Lordship ought to be satisfied that those other  20 people could not provide them with that information.  21 I will go on to explain why, which is the second arm  22 of my argument.  Essentially we have been dealing with  23 what are the requirements here to satisfy Your  24 Lordship of the prerequisites for the granting of an  25 order under Rule 28(2), but the second arm of my  26 argument is this.  That 28(2) preserves, in our  27 submission, the privilege generally enjoyed by  28 experts, subject only to an exception, which could not  29 be often invoked.  30 And I am here citing the case of Bates and Stubbs,  31 and that's at Tab 2, and I want to refer you to that.  32 It's Mr. Justice Aikins, Court of Appeal.  This had to  33 do with the production of an application pursuant to  34 the then Rule 30 (1) or to Rule 30 (1).  And the issue  35 was whether the plaintiff was required to turn over  36 all of his medical reports or only those upon which he  37 proposed to rely on at trial.  38 Now, that really is simply material to the  39 observations made by the court on pages 68 and 69, and  40 I wish to refer you to the bottom of page 68 where Mr.  41 Justice Aikins had this to say:  42  43 "Counsel for the respondent argues that  44 there is no need under the rules for the order  45 the appellant seeks because of the provisions  46 of R. 27(22) and 28.  The argument here is  47 that under R. 27(22) a defendant may elicit 5063  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  from a plaintiff the names of doctors by whom  he has been examined, touching his alleged  injuries, as being persons who, in the words  of the subrule, 'reasonably might be expected  to have knowledge relating to any matter in  question in the action', and then having done  so he may, by invoking the provisions for  pre-trial examination of witnesses under R.  28, examine any doctor who has examined the  plaintiff."  Mr. Justice Aikins then says at the top of page 69:  "This line of reasoning, in my view, is  unsound because subr. (2) of R. 28, dealing  with experts, expressly preserves privilege  subject only to an exception which could not,  in my view, be often invoked."  Now, I say, My Lord, that that is the beginning  point of the analysis of where Rule 28(2) should  apply.  Now, one can conceive of examples in Fraser and  Horn, attempted to cull out of some of the authorities  some of these examples, and an example of an  appropriate circumstance under which an expert might  be compelled to submit to a pre-trial examination  include where a medical examination was conducted on a  person who had since died, or where testing procedures  used by an expert have altered or destroyed the  material tested.  I won't refer --  :  Isn't this argument?  I don't want to say unsound,  because that's so unkind, and I don't intend it in  that sense, but is privilege not destroyed for the  purpose of this argument the moment Miss Harris's  report was disclosed?  No.  The privilege isn't destroyed until she takes  the stand.  :  Why do you say that, because the information that --  the only information she can give is that which is  included in her report.  Well, unless -- but the report, in my submission, is  a report to counsel, and it's based on instructions  from counsel and responses to counsel.  :  I have no doubt that it's privileged up to the time  that it's disclosed.  Not a solicitor-client  privilege, but what I call solicitor's privilege. 5064  Submissions by Mr. Rush  1 Once you give it to your learned friend, surely that  2 privilege is gone.  3 MR. RUSH:  No, I disagree with that, My Lord.  I say that the  4 privilege isn't gone until the expert is called, and I  5 say that the difficult question here is whether, if  6 you did make an order --  7 THE COURT:  Yes.  8 MR. RUSH:  -- whether the privilege is still attached,  9 notwithstanding the order and notwithstanding the  10 requirements to answer the questions pursuant to the  11 order.  And on -- I rely on Mr. Justice Finch's  12 decision in the case of Vancouver Community College  13 and Phillips Barratt and others, who had to face the  14 issue of when the privilege is lost or waived.  And  15 what he said, in part -- and I'm only reading from the  16 summary -- once an expert witness is called in person  17 or through a report, any privilege pertinent to such  18 document is considered to have been prima facie  19 waived.  20 Now, My Lord, this report has been disclosed to the  21 other side because of your requirements of a timely  22 disclosure.  The report has not been tendered, the  23 witness has not been called, and until such time as it  24 is, I say that the privilege is not lost, and I would  25 rely on that authority.  26 THE COURT:  I don't think, with respect, Mr. Justice Finch had  27 that in mind when he used that language in this  28 situation, because there he was dealing with a case  29 where the witness was in the box and counsel asked for  30 his working papers -- in cross-examination for his  31 working papers.  Mr. Justice Finch was only dealing  32 with a question that was before him, which was a  33 witness who was already in the box.  But if you have  34 to deal with this on the basis of a Rule 28  35 application, surely the whole rule would be defeated  36 if the privilege could continue after the report has  37 been delivered.  It couldn't be the subject of -- I  38 wouldn't think it could be the subject of an  39 application under Rule 28 unless it was -- there was a  40 report from an expert.  41 MR. RUSH:  But, My Lord, suppose I chose not to use the report.  42 MR. PLANT:  I am a little confused in my mind at the moment,  43 because I recall that my friend gave Your Lordship  44 some reports at the end of June of last year to read  45 over the summer holidays, and I can't recall if that  4 6 was one.  47    THE COURT:  There was some discussion about it, but I don't 5065  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  think I ever got them.  There was discussion -- Your Lordship's recounting is  correct in my recollection, because there was  discussion that we were going to deliver them.  They  weren't delivered, and I would have advised my friends  had I done so.  :  I haven't read them, and I'm sure I would have had I  received them.  I haven't had anything else to read  since then.  Well, I say, My Lord, that the privilege can't be  lost if we chose not to, because it's disclosed, if we  chose not to tender the report.  I mean, that is --  right now, in my respectful submission, this report is  part of our brief.  :  Yes.  Well —  And that ceases to be so once we are required to  tender the report.  And this of course raises, I  think, another safeguard that my learned friends have,  that you yourself ordered last June, and that is there  will be 60 days prior disclosure of reports that are  going to be tendered in this case.  And I say, My  Lord, that any concern that my friends would have  about the report, its contents of what's being relied  upon will be saved by that 60 day disclosure  requirement.  And I would simply draw to your  attention Rule 27(22), which was the subject matter of  the comments made --  :  But how can your argument be squared with Rule  28 (2)?  "An expert retained or specially employed by  another party in anticipation of litigation or  preparation for trial may not be examined  under this rule unless the party seeking the  examination is unable to obtain facts and  opinions on the same subject by other means."  Clearly contemplates that the authors of reports are  within the reach of this rule.  I say if you look at Rule 28(8) it says:  "Rule 27(15), (20) and (22) to (26) apply  mutatis mutandis to an examination under this  rule. "  And 2 7(22) says : 5066  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  "Unless the Court otherwise orders, a person  being examined for discovery shall answer any  question within his knowledge or means of  knowledge regarding any matter not privileged  relating to a matter in question in the  action."  THE COURT:  Well, it seems to me that that can only be  reconciled by reaching the conclusion that the  privilege is gone when the report is delivered.  MR. RUSH:  Is tendered.  No, My Lord, not delivered, because if  my privilege is gone everytime I deliver a report,  now, over a year in advance, then it's the highest  level of inequity arises with regard to the  plaintiffs' briefs.  THE COURT:  I don't follow that, Mr. Rush.  It seems to me that  if you don't want to -- if you're ordered to deliver a  report, and you are not going to rely upon it, you  don't have to deliver it.  Surely there is no doubt  you have a privilege up to that point.  You are only  ordered to deliver reports that you are going to rely  upon.  And although you reserve the right not to call  that witness, surely, to make sense of these rules,  there has to -- it must follow that the report -- the  privilege attached to that report is gone when you  deliver it.  MR. RUSH:  Well, I say, with respect, My Lord, that can't be so,  because it then deprives me of the choice that I have  in the determination of the evidence and the way the  evidence falls as to whether or not to tender a  report, and that's up to me.  THE COURT:  No, you still have the right not to call the  witness, and you have the right not to tender the  report.  MR. RUSH:  No, I don't.  I don't have that option.  Your  Lordship's order was to disclose the report, thereby  what Your Lordship is saying --  MR. PLANT:  The reports on which the plaintiffs intend to rely  are the words that come to mind.  THE COURT:  I'm sure that's right.  MR. RUSH:  Excuse me.  THE COURT:  I'm sure that my order didn't go so far — if it  does, Mr. Rush, you should have stopped me -- from  precluding your right not to withhold a report, if you  didn't intend to rely on it.  MR. RUSH:  But in so doing I preserve my right not to have the  privilege breached; and that, it seems to me, is the 5067  Submissions by Mr. Rush  1 whole point of the 30 day or now 60 day rule for  2 disclosure.  3 MR. PLANT:  My Lord, I rise because I have this concern.  There  4 is a judgment of Mr. Justice Wallace that I don't have  5 with me, and I can find the citation fairly quickly.  6 It was a case in which one of the counsel was Duncan  7 Manson.  He acted for the plaintiffs.  He obtained an  8 expert report.  The defendant's counsel, Barnes,  9 obtained another report.  Mr. Manson didn't like his  10 report.  Mr. Barnes didn't like his report.  Mr.  11 Manson liked Mr. Barnes report and at trial Mr. Manson  12 tendered Mr. Barnes' report.  Objection was taken, and  13 my recollection of the report is that objection was  14 taken on the grounds of privilege.  Mr. Justice  15 Wallace held that the privilege had been waived by the  16 tendering of the report.  He went on to hold that Mr.  17 Manson could not cross examine his -- or examine  18 his -- the author of the report beyond the opinions  19 expressed in the report.  The privilege remained with  20 respect to, for example, communications between the  21 defendant's expert and the defendant's solicitor, but  22 the -- that report I don't have before you or with  23 me -- I submit are a relatively straight forward  24 answer to the problem that is occupying some time at  2 5 the moment.  26 I also have a judgment of Madam Justice McLachlin in  27 S and K Processors, which holds unequivocally that  28 although the disclosure of an expert's report under  29 the Evidence Act is involuntary and does not therefore  30 constitute waiver in a common-law sense, the privilege  31 is lost immediately upon delivery with respect to the  32 facts and opinions contained in that report.  And that  33 is, in my submission, the position that we are in  34 here.  35 THE COURT:  Well, perhaps we should take the morning  36 adjournment.  You can see if you can find that.  Mr.  37 Rush, perhaps look at that case, but it seems to me  38 that might support Mr. Rush's position that the most  39 you can do is examine on the report and not an  40 examination on what's not in the report --  41 MR. PLANT:  One of my problems is that the issue of privilege  42 had not been expressly raised until --  43 THE COURT:  I think we'll take the morning adjournment now  44 anyway, and resume in about 15 minutes.  Thank you.  45  4 6 (PROCEEDINGS ADJOURNED FOR A SHORT RECESS)  47 506E  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  I HEREBY CERTIFY THE FOREGOING TO  BE A TRUE AND ACCURATE TRANSCRIPT  OF THE PROCEEDINGS HEREIN TO THE  BEST OF MY SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICES LTD. 5069  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  THE REGISTRAR:  Order in court.  THE COURT:  Mr. Rush?  MR. RUSH:  Yes.  Well, I think I can be brief on this question.  It's a tangential issue and we ventured somewhat down  this path, but it's quite collateral to the argument I  made.  I will say this:  That the case referred to by  Madam Justice McLachlin in S & K Processors Ltd. at  page 222 there sets out that with regard to the  reports, she says:  "Disclosure of all the facts upon which the  inferences and conclusions contained in the  Laventhol and Horwath Report are based to be  finished by way of particulars as well as by  supplementation of the report insofar as it  fails to precisely" -- "insofar as it fails  to precisely set forth those facts."  That's her ruling.  But she does go on to add this:  "I may add that the foregoing comments are  confined to what must be disclosed upon the  pretrial production of the report, of an  expert's report, pursuant to Section 11 of  the Evidence Act, an expert who may or may  not be called as a witness."  In the event that the expert takes the stand at trial,  the situation respecting waiver may well be different  and, of course, what Mr. Justice Finch was faced with  was an issue of where the expert was called at trial.  THE COURT:  Yes.  MR. RUSH: So that was an issue of a different order, and there,  of course, that case, for the record, is the Vancouver  Community College Case.  Now, if I may return to the issue that I want to  put before your lordship on the second leg of my  argument is this:  That the scope and purpose of Rule  28(2), I think, is set out in two passages from  McLachlin and Taylor, which are to be found at Tab 4  at pages 28-6 and 3.  And the first passage I want  to cite to your lordship at 28 - 6 is this in the  discussion pertaining to Rule 28(2) .  The learned  authors say this: 5070  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  "It will be a rare case where a party will  be unable to obtain opinions on a subject  from someone other than an expert retained  by the adverse party, since in most fields  there exists more than one expert.  It is  more likely that Rule 28(2) will be employed  where the expert retained by the opposite  party has made an investigation which  allowed him to observe facts which may not  be discovered otherwise."  And I don't think that has been proved to you to be  the case.  But I think more telling is what appears at  pages -- at page 28 - 3, which is the purpose that the  authors -- and I recommend this to your lordship as  well -- that the learned authors see in respect of  Rule 28(2), and it is this:  "The purpose of Rule 28 is to provide"...  This is at the top of the page.  :  Yes.  "... 'a new investigative technique' to  facilitate full disclosure of the facts  before trial, thus avoiding a party being  taken by surprise at trial and ensuring that  all relevant evidence is brought before the  Court at trial."  Now, I think that it's clear then from -- if your  lordship accepts that proposition, which I invite you  to do so, that the question is will the defendant  Province be surprised at trial unless they have their  examination of Miss Heather Harris on her report?  And  it's our submission that Heather Harris' report  delivered to the defendants on February the 27th,  1987, together with her document list, the references  cited therein and the subsequently 18 genealogies that  have been disclosed, gives the defendants sufficient  notice of her opinions and her facts upon which she  relies such as to prevent any surprise at trial.  I  say the purpose of Rule 28, therefore, in these  circumstances has been satisfied by the delivery of  her report, by these references, by the documents and  by the genealogies. 5071  Submissions by Mr. Rush  1 Now, my lord, by -- as Mr. Adams deposes to in his  2 affidavit, there have been 10 Gitksan genealogies, six  3 Wet'suwet'en genealogies disclosed.  A further eight  4 Gitksan genealogies will be delivered on Monday of  5 next week with reference to Stanley Williams'  6 Commission, which will start on April the 11th.  7 The witnesses -- and I think this is a telling  8 fact.  The witnesses at trial have been exhaustively  9 examined on their house genealogies.  They've been  10 questioned on -- and I'm sure your lordship can  11 remember the detail of the questioning on numbers of  12 their houses -- numbers in their houses, descendancy  13 of the members according to the matriline, adoption  14 laws, inheritance of the chiefs' names, marriages, the  15 nature of Gitksan descent, family and house  16 relationships.  These are the important issues of the  17 kinship and genealogy referred to in paragraph three  18 of Mr. Goldie's affidavit of October the 13th, which  19 the defendant Province says justifies now their  20 bringing of this motion.  21 And I say, my lord, the defendants have had in  22 fact available the other means of obtaining the facts  23 and opinions of Miss Harris' expert report by being  24 able to examine the very informants of Miss Harris on  25 the witness stand.  These people, among others, are  26 those Ms. Harris referred to in answering question 16  27 of the Rule 28 questions that have been answered on  28 methodology and definition.  Thus, I say the defendant  29 Province has had the full opportunity to examine the  30 plaintiffs who are the very representatives of the  31 houses and the descendants of the hereditary chiefs  32 and the opinions expressed by Miss Harris and the  33 underlined facts which support her report.  In a sense  34 the defendants are in quite a unique situation here.  35 They have the opinions expressed by the experts and at  36 the same time they have access to the informants and  37 to cross-examine the informants directly on the very  38 same issues and, I submit, my lord, they've done just  39 that.  40 Rule 28, I say, does not give the defendants the  41 power to examine Heather Harris simply because she did  42 original research.  I say that's -- that simply is not  43 good enough to satisfy your lordship in the making of  44 an order under this rule.  I say it is common for  45 experts to do original research.  What is important  46 here is that we gave adequate disclosure of her  47 opinions and her facts and that, my lord, satisfies 5072  Submissions by Mr. Rush  1 the purpose of the rule.  2 Further examination of Miss Harris will no doubt  3 occur when other Gitksan witnesses known to my learned  4 friends will be called to testify, when other  5 genealogies will be produced and when Miss Harris  6 comes to the witness stand.  It is not the case that  7 the subject, that is Gitksan genealogy and social  8 organization, the subject of Miss Harris' report, is  9 so unique that other opinions will not have been  10 available to the defendants on the same area.  You can  11 understand, I think, such an application as this one  12 being made where there was a very specialized field or  13 a new field of science in which there were few  14 considered experts, perhaps something like space laser  15 technology or perhaps where no other expert had access  16 or could get access to the information, and that's not  17 been shown here to be the case.  18 As I've indicated in the first leg of my argument,  19 other experts have studied and written in the field of  20 Gitksan kinship and social organization.  There are  21 other experts with knowledge of the subject in the  22 field and this is not a subject area that cannot be  23 examined by experts retained by the defendants.  24 Now, I say, my lord, that the defendants have been  25 provided with sufficient information from Miss Harris  26 and from the subsequent genealogical disclosures and  27 from the subsequent examination of those informants on  28 the very genealogies that have been disclosed to  29 prevent the defendant from being taken by surprise at  30 the trial, and that, surely, is the only point of it.  31 And I say, with respect, that the Province's affidavit  32 material does not prove the contrary.  33 I say, in conclusion, we've disclosed the answers  34 as well, answers from Miss Harris with respect to  35 questions of methodology and definition, which they  36 might not have had access to, and that has been  37 disclosed to them in the answers that have been  38 provided them by Miss Harris.  39 And so I say, my lord, that any objective of  40 Section 28 with regard to the disclosure in the  41 pretrial process of information as to the facts and  42 opinions of Miss Harris' report has been amply  43 satisfied.  There should be no order here.  44 THE COURT:  Well, let me ask you, Mr. Rush, Ms. Harris in her  45 report refers to the main product of her research  46 being a set of 50 genealogical charts.  Have they been  47 disclosed? 5073  Submissions by Mr. Rush  1 MR. RUSH:  They have not been disclosed.  And the -- it's been  2 explained on a number of occasions where these charts  3 have been asked for that those charts were in the  4 process of preparation; that final charts were  5 prepared as each witness was called, and those charts  6 have been produced.  7 And your lordship made a further direction that in  8 respect of any witness who will testify with regard to  9 a particular territory or territories, such as Mr.  10 Stanley Williams, that those genealogical charts  11 pertaining to those territories be disclosed, and they  12 have been and will be.  And I think the concern that  13 we voiced back last June is a concern that Ms. -- that  14 the genealogical charts that had been delivered to  15 counsel were charts that had not been completed in a  16 final Court-ready form, and that it was our  17 submission, and remains to be the case, that what the  18 plaintiffs are obliged to do is to produce those  19 genealogies which can be examined on and which are  20 complete, and this we have sought and continued to do,  21 and I think that the difficulty, of course, that the  22 plaintiffs will face when we come to rely on Miss  23 Harris' report, that -- that we ensure that the full  24 body of genealogical reports in their completed form  25 be placed before the Court.  26 And the -- the point of my learned friends'  27 continual requests throughout last fall was that they  28 be given genealogical reports for those witnesses who  29 will be testifying, and they have been, and they've  30 indicated that the reason for that is that they seek  31 to use the genealogical reports to make the  32 connections that they want to make in order to  33 determine who's who on their documents lists, and  34 that's what they've done.  And, in my submission, my  35 lord, the reports are forthcoming as they're completed  36 and as we can get them in a form that is properly to  37 be put before the Court.  38 THE COURT:  Are you not -- are you not facing a request for  39 these charts if Miss Harris gives evidence anyway?  4 0    MR. RUSH:  Yes.  41 THE COURT:  If she doesn't give evidence, then you're not faced  42 with that request?  43 MR. RUSH:  Well, I think I'd have to concede that if she doesn't  44 give evidence and we don't call her report, we would  45 not be obliged to provide the charts, but if she does  46 not give evidence and we do call her report, she may  47 be required to give that -- produce those charts. 5074  Submissions by Mr. Plant  1 THE COURT:  All right.  Thank you, Mr. Rush.  Mr. Plant?  2 MR. PLANT:  I just have a few points in reply, my lord.  3 My friend, Mr. Rush, referred to the fact that we  4 have had the opportunity to examine some of Miss  5 Harris' informants in the witness box during the  6 course of our cross-examination.  I say that there is  7 no comparison between cross-examination at trial, wher  8 every word spoken is on the record, and the kind of  9 questioning which occurs under Rule 28, which is an  10 information-gathering process and in which I have the  11 right to make such use of the material that's produced  12 aslwish.  13 THE COURT:  It's not a very attractive argument to me, Mr.  14 Plant.  I'm beset with complaints about the cost of  15 litigation and complexity of written discovery is the  16 main culprit.  I am constantly being urged to cut out  17 that sort of foolishness that goes on in civil  18 lawsuits, that people never finish their inquiries.  19 We've had cases where there have been 75 days of this  20 sort of thing in a single case, and I must say I'm not  21 impressed with the suggestion that I should make an  22 order so that you'll have a free rein -- a free run of  23 the witness to collect the kind of information that  24 might go on in an investigation of this kind.  How  25 long would it take you to examine this lady if you're  26 examining to collect the kind of information that you  27 think you need in order to answer 50 genealogical  28 charts?  29 MR. PLANT:  Well, my lord, I don't know how many questions  30 she'll have the answer to.  I'm not contemplating an  31 examination that would last more than two or three  32 days.  33 But in response to your lordship's comments, may I  34 say two things:  Firstly, if Miss Harris were to  35 deliver to us the 50 genealogies that she says, and I  36 have every reason to accept the statement that she  37 makes, existed in January of 1987, this process would  38 not be necessary.  And, secondly, a logical  39 consequence of my friend's submission -- my friend's  40 principal submission as to access is that I should go  41 to each of the 228 informants of Miss Harris, many of  42 whom -- most of whom are plaintiffs, and irrespective  43 of those who are plaintiffs, to deliver  44 interrogatories or exam for discovery.  That would  45 indeed be an extremely tedious and time-wasting  46 procedure.  I do not seek that here, my lord.  I seek  47 to go to the person who's made the -- the collection 5075  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. PLANT  of that information in the compendious way and has  derived conclusions from that, and I seek to have  further information concerning her understanding of  the matters and how that understanding gave raise to  or supports her opinions.  And in that respect, I  would -- I would say, with great respect, that what I  am proposing is -- and seek in this application is  something that would save time rather than enlarge  upon it.  As it is, if I do not get this disclosure,  then I may be forced to conduct the kind of tedious  cross-examination of Miss Harris in the box that I do  not wish to conduct, but without the information that  I wish to obtain from her under Rule 28, then I'm in  the dark and I may be forced to try and bring light to  myself, if not to the Court, subject to whatever  constraints are imposed by testing some of the  conclusions during cross-examination in open court.  That may be unnecessary if I am entitled under Rule 28  to examine her and if having examined her and then  satisfied that her conclusions are sound, there may be  no need for cross-examination.  :  What are you saying to your friend's argument that  you should have explored this question of Mr. Adams  and Ms. Kasakoff?  :  It was part of my submission at the outset, my lord,  that other research exists.  It has been done by --  and I make that concession without reservation.  My --  the thrust of my submission is that Miss Harris claims  to be in an inviable and unique position by reason of  her extensive access over a long of time to persons  who I do not have direct access to.  I freely concede  that there is literature on Gitksan kinship and  genealogy and as to some of the persons listed in the  reference sections of both the reports.  Those  documents that are appended to Mr. Adams' affidavit,  those -- there are persons on that list who are still  alive and who have not been retained by the  plaintiffs, and it is certainly open to me to make the  inquiries which my friends has indicated.  The thrust  of my submission is that Miss Harris has that unique  position and that her research is ongoing today and  her research has been conducted in the community to  which I do not have direct access.  And as to Adams and Kasakoff, I have already  referred your lordship to the passage in her report  where Miss Harris says that those individuals are not  reliable, or at least I believe the source in that 5076  Discussion  1 case is Adams, and he says Adams is not to be relied  2 on because of his lack of extensive experience.  I can  3 only take that for the time being at face value.  I'm  4 not sure if your lordship wishes me to address the  5 issue of privilege.  6 THE COURT:  No.  I don't need to hear you on privilege.  7 MR. PLANT:  Well, then that is all the submissions I have in  8 reply, my lord.  9 THE COURT:  Thank you.  You have nothing further, Miss  10 Koenigsberg?  11 MS. KOENIGSBERG:  No, my lord.  12 THE COURT:  Well, the only serious hesitation I have is —  13 arises out of my inability at the moment to grasp the  14 full thrust of the questions that were posed to Ms.  15 Harris and the nature of the response she gave.  It  16 seems to me that that's a matter that I'm probably  17 going to have to do some reading on.  18 I can say that I am satisfied that the matter is  19 material.  That is, genealogical evidence is highly  20 material in this case, or at least it may be.  21 I am satisfied to the extent required on an  22 application of this kind that the plaintiffs are  23 unable to obtain facts on the same subject as Miss  24 Harris' report, because she stresses the importance of  25 her personal advantageous situation by reason of being  26 a Gitksan person herself and the many interviews she's  27 conducted, and because of the fact that the people  28 that she interviewed are plaintiffs, are plaintiffs by  29 representation, that it seems to me that no one else  30 employed by the defendants can -- can seek to obtain  31 that information.  32 But I am not sure whether -- whether the witness  33 has refused or neglected to give a responsive  34 statement.  It may be that the request was  35 unreasonable and that -- and I think reasonable has to  36 be read in as Rule 28(3) (c), where it says that the  37 applicant is to give a responsive statement.  I think  38 that means a reasonably responsive statement.  And I  39 think I have to reserve for the purpose of looking  40 into that question, and I think I'll have to do it as  41 a matter of impression.  I'll read the questions that  42 were posed to Miss Harris and the replies that she's  43 given and consider whether I think she's made a  44 reasonably responsive reply.  I think I'll do that as  45 quickly as I can and I'll try and get you an answer.  46 What is your plan, Mr. Plant?  That if you succeed  47 on this, would you expect to conduct this examination 5077  Discussion  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.  THE  MS.  THE  MS.  THE  MS.  during the three weeks that we're not sitting?  PLANT:  I would certainly prefer to, my lord.  COURT:  Yes.  You haven't discussed that with your friend?  PLANT:  No.  COURT:  I -- I think if I made an order, and I'm not sure I  will, that I would limit you to three days, maybe  two --  KOENIGSBERG:  My lord, can I —  COURT:  -- if I have the power to do that.  I don't know if  I do or not.  KOENIGSBERG:  Can I rise to deal briefly with the production  of genealogies again?  COURT:  Yes.  KOENIGSBERG:  In Mr. Adams' affidavit at paragraph 10 that  was produced in these proceedings, he advised that the  plaintiffs will produce on Monday, which would bring  him within compliance of your lordship's order that  there be at least 14 days for production of  genealogies before commission, and there is a  commission scheduled for the 11th of April, he lists  eight genealogies that would be produced.  And the  difficulty is that the order for production includes  three more genealogies, that Mr. Williams would be  speaking to those houses, and I just wanted to be sure  that we would be getting all of the genealogies that  relate to the territories that Mr. Williams is going  to give evidence on, and I'll name the three that are  missing.  It's Luulak -- I'm not going to do justice  to this -- Mool'xan, M-o-o-l-s-apostrophe-x-a-n, and  T'ewelasxw, T-apostrophe-e-w-e-1-a-s-x-w.  Now, your lordship may recall that --  MR. RUSH:  Perhaps before my friend goes on, I can just  elucidate on one issue anyway, and this may be the  case with regard to the other two.  Luulak is a member  of the House of Lelt, and I do know that Luulak is  under the Lelt genealogy, and that may well be the  case, because Mool'xan and T" ewelasxw may be under --  I believe T" ewelasxw is under Sakxum Higookx, but I  can't advise your lordship about Mool'xan.  COURT:  Yes.  RUSH:  And I suspect that the answer here is that these  other chiefs' houses are represented by the existing  genealogies.  THE COURT:  Well, I think you understand Miss Koenigsberg.  She's suggesting that she should have a genealogy for  those three houses to be represented by Mr. Williams.  MR. RUSH:  Yes.  I understood that, and I thought we were doing  THE  MR. 507E  Discussion  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  MS.  THE COURT  MR. PLANT  THE  MR.  THE  MR.  splendidly in getting these ones.  COURT:  All right.  That satisfies you, Miss Koenigsberg?  KOENIGSBERG:  Yes.  I look forward to hearing from my  friend.  Is it convenient to inquire how you think we're  getting along, whether you have any -- any prognosis  in the near or far term?  See, what is a great  question mark in my mind, and it may be that the  answer isn't readily available, but I understood, Mr.  Rush, that you were going to be calling a limited  number of witnesses, and I suspect you're -- of the  lay witnesses, and I suspect you're nearing the end of  that, although I don't know how many more there are.  But I -- I don't know where you stand on -- on  affidavits of -- of the internal boundaries of  nonwitnesses and I don't know whether a decision has  been made.  I don't know if the affidavits have been  delivered and I don't know if a decision is made about  cross-examination.  And that seems to me to be a -- a  wild card, if I can call it that, in this scenario.  Is there anything that I can be told about that?  Well, I will only say to at least to enlighten your  lordship that there has thus far been tendered only  one affidavit, territorial affidavit, that has not  been that of a witness, and that was the affidavit of  Art Mathews Senior, which was, as your lordship will  recall, adopted by Art Mathews Junior.  We gave some  consideration yesterday about -- through the question  of whether we would require Art Mathews Senior to be  called, and I -- as soon as we've reached a landing on  that, we'll be able to advise my friends and your  lordship.  That's the extent of my ability to assist  you at this time.  Yes.  Well, all I'm wondering about, do we have a  time-consuming storm cloud on the horizon or not?  I  don't know if you can answer that question, Mr. Rush.  I don't think I can.  I think I might be in a better  position at the end of the next three weeks.  Your  lordship knows that what we've been trying to do is to  prepare the affidavits for the witnesses who have been  called.  Yes.  And there is an affidavit including a considerable  number of territories of Stanley Williams.  He'll be  examined over the next two weeks, I guess.  Yes.  He's an elderly gentleman, is he?  He is an elderly gentleman.  THE COURT  MR. RUSH  COURT  RUSH:  COURT  RUSH: 5079  Discussion  1  THE  COURT  2  MR.  RUSH:  3  4  THE  COURT  5  MR.  RUSH:  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  THE  COURT  21  22  MR.  RUSH:  23  24  THE  COURT  25  26  MR.  RUSH:  27  THE  COURT  28  29  30  31  32  MR.  PLANT  33  34  35  36  37  38  39  40  41  THE  COURT  42  43  44  45  MR.  PLANT  46  THE  COURT  47  All right.  And also the next witness, James Morrison, will speak  to seven territories.  Yes.  And there will be another witness, Pete Muldoe, who  will come not immediately after but sometime after,  not too long, and he'll speak to a good number of  territories as well, so our priority has been to get  these affidavits done.  Now, I think I'll be in a better position to  advise the Court after the end of the break as to the  other nonwitness affidavits.  Other than that, I  cannot help your lordship.  It's true that we have a  fewer number of witnesses.  We have -- we're still  within the confined number of witnesses.  We're not  expanding the number, and I feel that we're probably  not going to get through these witnesses by the  schedule that we've been maintaining up till now until  June.  Yes.  And that's before you start any of your expert  testimony?  Yes.  But that bears on our expert testimony as well  and how many experts --  So.  November is looking a little bit dubious now as  a likely completion date, is it?  I'd be hesitant to say anything on that, my lord.  Yes.  All right.  Well, I think I get the sense of  what you're saying.  All right.  Well, I will look  forward to seeing you all again then in three weeks  time and I hope that you have a productive three  weeks.  I wonder if on that subject I just could ask one  thing.  The commission of Mr. Williams will be  starting, or at the moment it's scheduled to start on  the 11th of April.  That's the week before we resume.  In the extremely unlikely event that there should be  any objections to any questions asked by my friends or  vice versa that might require the intervention of your  lordship, may I inquire as to when your lordship will  be back, if at all, in that week?  I'll be back on the 15th, but I'm not sure what time  of the day, and I think it's unlikely that that will  be of much assistance to you.  That's the Friday of  that week.  Well, certainty is some assistance.  Mr. Rush, I believe all those documents over there  are yours, are they not? 5080  Discussion  1 MS. KOENIGSBERG:  No, my lord.  They're ours.  2 THE COURT:  And you'll remember that documents are to be removed  3 from the room, then, during the adjournment?  All  4 right.  Thank you.  5 THE REGISTRAR:  Adjourn until April the 18th at 10:00 a.m.  6  7 (PROCEEDINGS ADJOURNED)  8  9  10  11 I hereby certify the foregoing to be  12 a true and accurate transcript of the  13 proceedings transcribed to the best  14 of my skill and ability.  15  16  17  18 Kathie Tanaka, Official Reporter  19 UNITED REPORTING SERVICE LTD.  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

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