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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1987-07-17] British Columbia. Supreme Court Jul 17, 1987

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 1905  Proceedings  1 Vancouver, B.C.  2 July 17, 1987  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia, in  7 chambers.  Friday the 17th of July, 1987.  Calling the  8 matter between Delgamuukw against Her Majesty the  9 Queen in Right of the Province of British Columbia and  10 the Attorney General of Canada, my lord.  11 THE COURT:  Thank you.  Well, Mr. Rush, you're rushing to your  12 feet.  13 MR. RUSH:  I should explain why those of us on the Plaintiffs'  14 side are attired in this manner is because we thought  15 it was a continuation of the trial.  16 THE COURT:  Well it is, Mr. Rush.  You're properly — more  17 correctly attired than some of us, but if you're  18 comfortable this way I would be happy to go put my  19 gown on, if you prefer.  20 MR. RUSH:  I don't want to inconvenience my learned friends.  21 THE COURT:  We'll proceed this way then.  22 MR. RUSH:  There are a number of items of business that we had  23 discussed on the last day of the trial.  2 4 THE COURT:  Yes.  25 MR. RUSH:  As items that would be put over to today's date for  26 consideration.  I have a list of these, and it  27 constitutes, if you will, somewhat of an order of  28 business.  First is the question of argument on the  29 draft reasons with regard to hearsay, and we have a  30 submission to make to you on that.  31 THE COURT:  Yes.  32 MR. RUSH:  Secondly, there are two interrogatory motions, if I  33 may put them that way.  There is the one introduced by  34 Miss Mandell at the last day of the hearing to compel  35 answers to interrogatory questions put to the Federal  36 Defendant, and since that time there's been an  37 application by the Federal Defendant of the Plaintiffs  38 to respond to interrogatory questions, and we are  39 prepared to deal with both of those motions today.  40 Thirdly, there is the question of the trial  41 organization, and we have some further submissions to  42 make to you which represents a more developed thinking  43 on the part of the Plaintiffs and their counsel as to  44 how the trial would proceed, and what form of evidence  45 the trial would proceed on.  46 Fourthly, there is the question of the production  47 of expert documents.  There is an application by the 1906  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  Federal Defendant for the production of certain of  these documents, and we are prepared to deal with  that.  Fifth, there is the item of commission evidence.  You may recall that there was a question raised by the  Federal Defendant about what their rights were given  the fact they were not present during some of the  commission testimony, and we have a proposal to make  in respect of that.  I hope we can sort out which of  those commissions they were present at and which they  weren't.  I think we can.  And we can make a proposal  to you today on that.  COURT:  All right.  RUSH:  And finally regarding expert reports.  There are some  expert reports which the Plaintiffs are suggesting  your lordship look at, and we'll submit these to you,  if this is agreeable to you and the rest of our  friends.  Those are the items that we want to raise,  and subject to that --  All right.  Perhaps my friends have something to say about their  issues.  If not I would like to proceed on the basis  of these.  And in that order?  Yes.  Yes.  All right.  KOENIGSBERG:  Far be it from me, my lord, to reorganize my  friend's list, but it might be of assistance if we  dealt with the trial organization and whatever  proposals there might be with regard to that before we  went on and dealt with either the hearsay issue or  even the interrogatories for the reason that if the  trial organization proposals as we had previously  anticipated might alter either the understanding of  the framing of the actions or the matters which are  actually in issue and are to be focused upon, and that  would, in my submission, alter at least the order and  the focus of the submissions on both hearsay and  interrogatories.  We haven't seen our friends  submissions on the trial organization, but if it's  anything along the lines that we discussed in Smithers  then I would ask that they reconsider the order.  Other than that we are prepared to deal with all of  the matters.  THE COURT:  Yes.  Mr. Goldie.  MR. GOLDIE:  My lord, I agree that Ms. Koenigsberg's suggestion  is a sensible one, and I would support that.  THE  MR.  THE  MR.  THE  MS.  COURT  RUSH:  COURT  RUSH:  COURT 1907  Proceedings  1 There is a motion returnable today brought on by  2 my client for the production of documents, and it is  3 in respect of certain documents for which privilege is  4 claimed.  My friend has advised me that Mr. Grant is  5 dealing with that matter, and that he would wish it to  6 be adjourned.  I'm not sure precisely what date he has  7 in mind, but obviously we would like the matter to be  8 resolved before the resumption of the trial.  I would  9 suggest, subject to your lordship's convenience, that  10 it be either the 30th or 31st of July that that motion  11 be heard, and to whatever date it is put over to that  12 there be an understanding today that the documents  13 will be available in court for your lordship's  14 inspection.  That, I think, is the expeditious and  15 useful way of resolving the question of privilege in  16 respect of a number of these documents.  We don't wish  17 to prolong the question, and I think it can most  18 easily be dealt with by your lordship viewing the  19 document.  Otherwise I'm quite happy with the proposed  20 list of -- budget list of things discussed this  21 morning.  22 THE COURT:  You're seeking an adjournment of Mr. Goldie's  23 motion, Mr. Rush?  24 MR. RUSH:  Yes.  That's right.  To allow Mr. Grant's input on  25 this.  26 THE COURT:  What do you say about Mr. Goldie's suggested dates?  27 MR. RUSH:  Are these the beginning of a week or the end of a  28 week?  That's my only consideration.  29 THE COURT:  July 30th and 31st is Thursday and Friday.  30 MR. RUSH:  Well, I think the 31st would be fine.  I have no  31 difficulty with that.  32 THE COURT:  All right.  July 31st.  33 MR. RUSH:  And I have no difficulty with the other proposal that  34 the documents be available for your inspection.  35 THE COURT:  Yes.  All right.  What do you say, Mr. Rush, about  36 your learned friend's suggestion that we deal with  37 your third item of trial organization before we get  38 into --  39 MR. RUSH:  I don't really have any opposition to that, but I  40 don't want my friends to think that in going ahead  41 that there's going to be any difference in terms of  42 the framing of the action, because there isn't at this  43 stage.  However, I'm content to go ahead with that.  44 THE COURT:  All right.  45 MR. RUSH:  I have no difficulty with proceeding with the issue  46 of trial organization right now.  47 THE COURT:  All right.  What do you want to suggest in that 190?  Submission by Mr. Rush  1 connection, Mr. Rush?  2 MR. RUSH:  Let me make this submission to you.  We have been  3 working on a method of organizing the evidence to  4 economize on the amount of time needed for the  5 presentation of the Plaintiffs' case, and in  6 particular in respect of the oral evidence of the  7 native witnesses.  And you will recall that we made  8 suggestions to you on the 24th and 26th of June as to  9 what we felt we could do to expedite the presentation  10 of certain of our evidence and still prove the case  11 which we feel needs to be proved on behalf of the  12 Plaintiffs.  Now, as we said on the 26th, we envisage  13 presenting our evidence in the form of a mixture of  14 oral and affidavit evidence.  We now see a third  15 ingredient in this mix, thanks to your lordship.  This  16 is the use of the pretrial commission procedure to  17 advance some of the evidence we wish to see advanced  18 orally, but would not be required for in court  19 presentation.  And this is an option which you  20 identified in your memorandum on trial venue of the  21 3rd of July.  22 Now, we see by the use of these three methods of  23 presenting the evidence a way to meet the concerns of  24 the court on the question of how long the trial is  25 taking, and how long it might take, and as well to  26 ensure that the Plaintiffs' case is adequately placed  27 before the court.  28 Now, let me break down these components for you,  29 if I may.  Firstly, the oral evidence of the native  30 witnesses.  It's our intention to identify six houses  31 and territories to be the focus of the evidence of the  32 remaining outstanding non-territorial, if I can put it  33 that way, issues in the case.  And this will address,  34 for example, the chief's decision making and  35 jurisdictional authority in respect of house decisions  36 and decisions about the territory and fishing sites.  37 This evidence will be in detail and will apply as  38 common evidence to all of the Gitksan and Wet'suwet'en  39 Plaintiffs.  This evidence will present many facits of  40 the houses ownership and jurisdiction which you have  41 not heard up to now.  At least two of the houses and  42 their territories already referred to in the evidence  43 will be among the houses identified for this form of  44 evidence.  And this evidence will be directed, as  45 well, at proving in respect of those houses the  46 ownership of the subject house's territory as well as  47 other territories about which the witness has specific 1909  Submission by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  COURT  RUSH:  COURT  RUSH:  MR.  MR.  MR.  THE  MR. RUSH  knowledge.  Now, what we see in terms of the oral evidence  here for the presentation of this we see between 12  and 15 further witnesses being called.  That's in connection with these six houses?  Yes.  12 to 15, yes.  Yes.  And we see this reducing the number of trial  days .  Now, the second component of this is the  commission evidence.  Now, there has been up to now  eight witnesses commissioned.  We see additional  evidence taken by commission for some of those  witnesses where there is other territorial evidence to  be called.  For example, you may remember that Bazil  Michell was one of those witnesses referred to by  Alfred Joseph in his evidence, and it seems in our  view that the most convenient way to deal with his  evidence would be by further commission on those  territorial issues.  We see further evidence of this  kind being presented in respect of some of those other  witnesses already commissioned.  We also envisage  using the pretrial commission procedure as a way of  calling evidence of a territorial nature.  And where  this evidence might otherwise be called by affidavit,  but where the witness has more to add about the  territory say, for example, how resources were managed  and harvested on that territory.  Or it may be that  the witness has some other aspect of evidence to  contribute to the evidence by the in court oral  testimony.  Now, at this point as to this type of  evidence we see about five more witnesses giving their  evidence by commission in addition to some of those  witnesses who have already been commissioned.  GOLDIE:  In addition?  RUSH:  In addition, yes.  GOLDIE:  Thank you.  COURT:  And have you in your plan, or are you able to state  now when you anticipate or propose taking this  commission evidence?  I haven't really considered that.  There's a whole  question of timetabling, of course.  And finally, or thirdly, rather, the affidavit  evidence which is the third proponent of this  proposal, and this is where we propose to tender the  bulk of the evidence as to territorial ownership by  affidavit.  This evidence would be directed at proving 1910  Submission by Mr. Rush  1 the boundaries and salient geographic landmarks of the  2 Plaintiffs' territories.  It would be directed at  3 showing the Plaintiffs' ownership of land territories  4 and fishing sites.  It would also be evidence about  5 the damage and loss sustained by the Plaintiffs and  6 their houses in respect of the use by others of their  7 territories.  Now, our best estimate of the number of  8 affidavits that would be required is that we see we  9 would be calling the evidence of about 50 witnesses by  10 affidavit.  And we are assuming here that the direct  11 evidence of ownership of the territory is necessary.  12 With respect to the court's concern about the  13 limitations to the exception of the hearsay rule in  14 this proposal we accept that, and we consider this  15 evidence to be important to our case, and we intend to  16 call it in this manner.  And we believe calling it  17 directly in this form is the best way of tendering the  18 testimony.  By calling the evidence by affidavit from  19 the Plaintiffs' perspective we see that there will be  20 a tremendous saving in court time on the issues of  21 territorial ownership and proof of territory issues  22 which were directly placed before your lordship in the  23 evidence that's already been called.  24 THE COURT:  But you would tender these witnesses for  25 cross-examination if required?  26 MR. RUSH:  Well, we understand that is part and parcel of the  27 affidavit proposal.  2 8    THE COURT:  Yes.  29 MR. RUSH:  That we see that the rule requires that subject to  30 some considerable exceptions that the witnesses would  31 have to be available for cross-examination, and if it  32 were we accept that.  We also see that this proposal  33 would assist the court and counsel in terms of the  34 proper spelling and description of Gitksan and  35 Wet'suwet'en words.  So, in effect, there would be a  36 double time saving, we think, by proving ownership in  37 this matter and assisting in terms of the words.  38 Now, finally, the final or fourth component of our  39 proposal, our submission here is that we -- we have  40 some 23 expert opinion reports.  We have not made a  41 decision to call all of the experts who provided us  42 with opinions, although it looks at this point as  43 though we'll call most, if not all of them.  Some of  44 this evidence may be tendered without the necessity of  45 calling the expert.  It may be sufficient either for  46 the Plaintiffs or for the Defendants that the report  47 speak for the opinion.  And I say that that will 1911  Submission by Mr. Rush  1 depend on the position of the Defendants to some  2 degree, and how we see best presenting the evidence of  3 some of the experts.  4 At this time we cannot determine with any  5 precision how long it will take to call the expert  6 testimony.  And I should say that the other  7 contingency there is just how long it will take in the  8 cross-examination.  I know that the evidence of some  9 of the experts is considerably more contentious and  10 will invite, I think, lengthy cross-examination than  11 others.  And no doubt that together with which of the  12 expert reports will speak for themselves are factors  13 that make it difficult for us to determine with any  14 great precision just how long this testimony will  15 take.  16 That, my lord, is the totality of the way in which  17 we intend to proceed.  I should advise your lordship  18 that we have considered what you have said in previous  19 statements from the bench during the course of the  20 trial, and we have already embarked upon a pattern to  21 invoke this method of organizing the remainder of the  22 Plaintiffs' evidence, and we think that this will both  23 meet the concerns of the court as well as allow us to  24 present to the fullest what we think is the necessary  25 evidence to prove the issues that we have raised in  26 our case.  So that's what I have to say about trial  27 organization.  And, of course, I'm interested in your  28 lordship's responses to that.  2 9    THE COURT:  All right.  Well, thank you, Mr. Rush.  May I  30 inquire whether you're in a position to say now which  31 six houses you propose -- I don't know if that will  32 help your friends or not.  Your friends not know that?  33 Are you able to state which are the six houses?  34 MR. RUSH:  I cannot state with absolute certainty.  That's my  35 difficulty.  I can say that the House of Gisday wa and  36 the House of Hanamuxw are two of the houses --  37 THE COURT:  Yes.  38 MR. RUSH:  -- That we have already dealt with in the evidence  39 that fall into the category of four.  4 0    THE COURT:  Yes.  41 MR. RUSH:  And I can also advise your lordship that it is likely  42 that one of the remaining four will be the House of  43 Wah tah kwets, but I think that's as far as I can go  4 4 at the moment.  45 THE COURT:  All right.  I think I should withhold any comment,  46 except to say that I am encouraged by what I have  47 heard, until I've heard what your friends say. 1912  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:  Submission by Mr. Rush  Submission by Mr. Goldie  Submission by Ms. Koenigsberg  MR. RUSH:  Thank you.  THE COURT:  I'm sorry.  Before your friends start, Mr. Rush, do  you have any sort of an outside estimate of how long  you think this trial will take?  If you had to pick a  month when you think the evidence might be completed  what month would it be?  What month and year.  I think that looking at the Plaintiffs' evidence I'd  prefer to deal with it in terms of trial days.  Yes.  I think I'm trying to evaluate it in terms of actual  time we get in a trial day, and all exigencies  involved in putting a date together, and it is my view  that we would be in the balance of the Plaintiffs'  case something in the order of 70 to 80 remaining  days .  THE COURT:  Yes.  MR. RUSH:  And, again, I think that that's a very, very loose  estimation because I think much of this depends on  what happens with the expert testimony and the extent  to which our estimate of the necessary oral  evidence --  Yes.  -- Can be trimmed, because I don't want your lordship  to be left with the view that we aren't also  considering further assessments of the oral testimony.  Oh, yes.  I should tell you that we were of the view that if at  least one witness complies with all of the  requirements of necessity and reputation, and so on,  that would allow him to testify in respect to more  than one territory, and so I think given that fact  it's another factor that we would look at to determine  the length of the trial.  THE COURT:  All right.  MR. RUSH:  Thank you.  THE COURT:  That's helpful to know.  All right.  Ms. Koenigsberg  or Mr. Goldie, who wants to go next?  MR. GOLDIE:  I don't think there is anything I can say, my lord,  at this point.  I'm hearing what my friend is saying  for the first time and I wish to consider the  implications of it.  There are some features of it  that I want to give some thought to.  THE COURT:  All right.  Thank you.  Ms. Koenigsberg.  MS. KOENIGSBERG:  I'm, of course, in the same position.  Perhaps  I could usefully say two things, and one is that the  choosing of the six houses, I think we indicated when  we were in Smithers, is of some interest to the  THE COURT  MR. RUSH:  THE COURT  MR. RUSH: 1913  Submission by Ms. Koenigsberrg  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:  Attorney General of Canada in that for it to work, in  our submission, they will have to be chosen at least  with a view to addressing the issues that may not  affect every house territory, but do affect some.  As,  for instance, I think we alluded to what's referred to  as the overlap issue.  Without knowing which houses  are to be chosen, of course, we can't address our  minds very helpfully to that issue.  The concept of  choosing six we certainly agree with.  The use of commission evidence, additional  commission evidence and going back and using the  persons who have already been commissioned for  additional evidence is probably going to assist in  resolving the area of commission evidence where we  have difficulty with regard to cross-examination.  I  think that's excellent, and that we will be able to  work something out.  Other than that I, like Mr. Goldie, will want to  consider the suggestions in the light of the issues as  we now see them.  The one major problem, I guess, that  remains, and this really goes to estimates of time,  and I don't mean to comment upon my friend's estimate  of time, and that's completely within their area, but  the one area that seemed to me to be left somewhat  unresolved, and that I'm not sure is addressed here,  is whether the Plaintiffs' case includes an  alternative plea for ownership.  I mean, for a use and  occupation type of claim.  And if it does then that  has some major impact on the length of the defence  witnesses and our ability to assess the proposals that  we're looking at.  It would seem to me that the -- if  we are only looking at ownership and jurisdiction and  that any aboriginal use or rights are only within that  context in the claim that makes a lot of difference to  the necessity for cross-examination or even how you go  about determining what the relevant issues are that  you have to address with a given house.  So that is an  area that if we could get some further clarification  of that would certainly shorten up our ability to deal  with the proposal.  :  All right.  Thank you.  Well, I don't know, Mr.  Rush, whether you're prepared to say now.  I'll ask  you whether you're prepared to say whether there's  likely to be an alternative claim advanced?  The short answer to your lordship's question is no.  I should advise you that this is a matter of  deliberations among the Plaintiffs and counsel. 1914  Proceedings  1 THE COURT:  Yes.  2 MR. RUSH:  And we're, of course, conscious of what your lordship  3 said on the 26th.  4 THE COURT:  Well, I don't think I've ruled that there isn't an  5 alternative claim already in the pleadings.  I think  6 I've indicated that I have some difficulty locating  7 it, or extracting it from the language I suppose is a  8 better way to put it.  But that matter is at large, I  9 think.  And I understand the force of what Ms.  10 Koenigsberg says, as I'm sure you do, but we're not  11 here today to commit anybody to any -- a deadline  12 either for this sort of thing, or an end date for the  13 completion of the evidence, so that matter can  14 peacefully be left at large I think.  15 MR. RUSH:  Thank you.  I think in terms of our present view of  16 the pleadings it is the best way to proceed.  17 THE COURT:  Yes.  All right.  Well, I think, Mr. Rush, and to  18 all counsel, I think I can only say that generally  19 speaking I find the Plaintiffs' proposals to be, as I  20 said a moment ago, encouraging and helpful, positive  21 and constructive.  I would certainly look with favour,  22 subject of course to what counsel says, on any  23 application that might be made to take further  24 commission evidence.  I think such an order must,  25 however, specify the names of the deponent to be.  I  26 don't think -- it may be legally permissible, but I  27 think it would be better not to make a blanket order  28 that you can take commission evidence of anybody you  29 want.  I think it is a matter that should be specific.  30 And I will be glad to hear applications on that behalf  31 at any convenient time during vacation and so that  32 this matter can be pursued.  33 Similarly, I think that I should say that subject  34 to what counsel may say another time I would look very  35 favourably towards having the evidence of some 50  36 witnesses or so taken in chief by affidavit.  Again, I  37 think this probably will have to be attended by some  38 specificity, but I think I would merely say that I  39 look very favourably upon what you have suggested, Mr.  40 Rush, and perhaps leave it at that.  41 I have to say that I do not find an estimate of 70  42 court days to finish the Plaintiffs' case surprising  43 or unreasonable in any way.  It's more or less what I  44 anticipated you'd be saying.  It's a long time, but I  45 don't find that to be a particularly unhappy answer  46 that you gave me.  I was prepared for something  47 perhaps greater than that, and I don't expect that 1915  Proceedings  Submission by Mr.  Jackson  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's going to be a goal -- anything more than a goal  to aim for.  I would hope that it might be much less  than that, but we'll see.  And I wouldn't find it to  be -- I don't find it surprising that you've estimated  7 0 remaining court days to complete your evidence.  All right.  MR. GOLDIE:  My lord, before we leave that subject.  THE COURT:  Yes.  MR. GOLDIE:  As your lordship pointed out applications have to  be made with respect to the taking of commission  evidence, and they have to be made with respect to  named individuals.  I would urge my friends to  consider the date of July 31st, which we already have  for an adjourned motion, for at least some of those  applications.  I'm sure Mr. Rush will take that into consideration  and deal with it then if he can.  I'll be glad to hear  him at that time, or sooner if it's convenient.  I would prefer to leave it on the basis of a  suggestion.  I intend to be specific about the  suggested names, and for that reason it's not going to  be straight forward about when I can bring the  applications forward, but I'm certainly mindful of my  friend's suggestion.  COURT:  Yes.  All right.  Thank you.  then to hearsay?  RUSH:  Yes, I do.  And, my lord, Mr.  you on the subject.  COURT:  Now, I have a confession to make.  I didn't bring a  copy of my reasons.  Is there another copy available  while I get them.  Perhaps I won't need them.  My lord, I have a copy which I will take my little  stickies off of, and it's somewhat marked but there  are no --  GOLDIE:  Here's a clean copy.  COURT:  All right.  Thank you, Mr. Goldie.  Yes, Mr.  Jackson.  MR. JACKSON:  My lord, at the end of your draft reasons of May  the 28th on the hearsay issue you invited counsel to  seek to organize their case within the parameters of  your reasons, and if that posed unsuitable problems to  make further submissions to you.  As you've heard from  my friend Mr. Rush we have made some considerable  efforts to rethink and restructure the trial  organization, and in the context of that thinking we  have pondered the question of whether your draft  reasons do, in fact, give rise to concerns for the  THE  MR.  THE  MR. RUSH  MR.  THE  Do you wish to turn  Jackson will address 1916  Submission by Mr. Jackson  1 nature of our evidence.  2 The principal concern which we have is the  3 distinction your lordship draws in dealing with the  4 admissibility of the Indian oral history between what  5 your lordship refers to as truly historical as opposed  6 to anecdotal facts.  And our submission broadly  7 stated, my lord, is that the basis upon which your  8 lordship has drawn this distinction is not well  9 conceived.  And we say that principally for two  10 reasons.  The first is that it precludes the  11 Plaintiffs from giving evidence of their oral history  12 in the only form which gives it meaning and coherence  13 within their system of communicating knowledge about  14 the past.  And second, we say, my lord, that the basis  15 upon which your lordship has drawn this distinction is  16 contrary to how historians have approached the issue  17 of the facts of ancient history.  18 Now, before turning to your lordship's distinction  19 and our problems with it there was some preliminary  20 points which I want to make regarding the nature of  21 the reliance of the Plaintiffs on oral history, and  22 the extent of the evidence on oral history which we  23 intend to tender before the court.  Now, on the  24 question of the purpose of the evidence Mr. Rush in  25 his original submission to you went through this in  26 some detail.  In your draft reasons at page 11, page  27 11 and 12, under heading of Evidence of Origin your  28 lordship has given an example of historical facts  29 within this general category.  On page 12 from line 16  30 you have specifically mentioned the origin and  31 significance of totem poles and crests and evidence of  32 the genealogy by reputation of a living person.  Now,  33 we do not take those references to be exclusive,  34 but —  35 THE COURT:  That's right.  36 MR. JACKSON:  But we feel it is important to understand that  37 under this head of Evidence of Origin must be included  38 A, the origin of the Gitksan and Wet'suwet'en houses  39 and clans.  40 THE COURT:  I'm sorry.  A is the origin?  41 MR. JACKSON:  Of the Gitksan and Wet'suwet'en houses and clans.  42 B, the origins of the chiefs' names and the nature of  43 their authority.  C, the origin of the feast system.  44 D, the origin of Gitksan and Wet'suwet'en laws.  E,  45 the origins of songs, masks and regalia.  F, the  46 origins of the distinctive Gitksan and Wet'suwet'en  47 world view.  And G, the origin of the connection or 1917  Submission by Mr. Jackson  1 links between houses, clans, chiefs' names and  2 territories.  And I should also say, my lord, and  3 again I don't take your reasons as limiting this, but  4 out of abundant caution I want to make it clear that  5 it is our view that the historical evidence goes under  6 the general rhetoric of origin to the issue of  7 evolution and development of these concepts and these  8 connections.  9 Now, my lord, it is these elements which make up  10 the distinctive nature of the organized societies of  11 the Gitksan and Wet'suwet'en.  And it is our position  12 that it is within the context of these elements that  13 the Plaintiffs have exercised their authority and  14 their jurisdiction over their territories.  The  15 evidence of the oral history is adduced to prove that  16 these connections, that these elements have existed  17 for a long, long time, predating the presence of  18 Europeans.  19 Now, my lord, this is not a peripheral issue in  20 the case.  Your lordship on a number of occasions has  21 referred to the ambiance of the case, and that this  22 evidence gives your lordship some understanding of  23 many of the matters with which your lordship has  24 ultimately to grapple and to rule.  The question of  25 the antiquity, the question of the time depth of these  26 elements of Gitksan Wet'suwet'en society, these  27 elements of their jurisdictional authority is  28 something which is critical to the case.  It is  29 something which issue has been taken by the  30 Defendants.  31 Without going into any detail, summaries of expert  32 reports have been filed both by the Defendant Province  33 and the Attorney General of Canada which suggest and  34 express the opinion that certain of these key concepts  35 are of relative recent origin and indeed may post-date  36 white contact.  We wish at the end of the day, my  37 lord, not simply to be in a position to argue and to  38 have an evidentiary record that a decade before fur  39 traders or explorers entered the region the Gitksan  40 and Wet'suwet'en having got advanced word of the  41 advance of Europeans got it into their heads that  42 perhaps they should organize, develop a few laws, get  43 a feast system together so they would be in a good  44 position to defend their rights in the event of their  45 being denied.  We intend, and it is our purpose in  46 leading the oral history, to demonstrate to you that  47 the societies were in place.  That they were not 191?  Submission by Mr. Jackson  1 static.  That they changed.  But the fundamental  2 elements upon which we rely for our rights of  3 ownership and jurisdiction are ancient.  4 Now, in terms of the extent of the evidence, and  5 clearly the court has expressed that this is an  6 important consideration, we agree, my lord, that the  7 court is not a sponge to absorb everything which we  8 feel it would be interesting for the court to hear.  9 As your lordship yourself says in the reasons it is  10 not necessary for you to understand and to know all  11 the details of Gitksan Wet'suwet'en history.  It has  12 never been the Plaintiffs' intention to use the court  13 case to build a body of evidence which can be recycled  14 as the complete history of the Gitksan Wet'suwet'en.  15 In this connection your lordship should be aware of  16 the extent to which the witnesses you've heard so far  17 have limited their evidence of the oral history.  The  18 adaawk, A-D-A-A-W-K, which were given by Mrs.  19 McKenzie, Mrs. Johnson and Mrs. Ryan are abbreviations  20 of what is in fact a part of a much longer adaawk.  21 Those histories if they were told in anything like  22 their fulness would have occupied many hours, and  23 indeed possibly days of the court's time.  The  24 abbreviation was done in order to place before the  25 court that which we deemed relevant and necessary for  26 the court's understanding.  It is my understanding  27 that it is only in their original language that one  28 gets anything like the quality of what the oral  29 histories express.  30 At the risk of pressing the sore point, my lord,  31 one of the reasons why we pressed you on the question  32 of the song which Mrs. Johnson sang was not to impose  33 upon the court.  It was to try in a very limited way  34 to give your lordship a sense, a glimpse, albeit oral,  35 of the quality of the history.  We'll be leading  36 evidence, my lord, which we hope to demonstrate that  37 that song is over 3,000 years old.  Now --  38 THE COURT:  I don't think she even gave me the words of the  39 song, did she?  40 MR. JACKSON:  No.  I think she just gave you a paraphrase.  41 THE COURT:  A brief summary.  42 MR. JACKSON:  As I say, it was our attempt, my lord, to not  43 burden you with days of evidence.  The evidence was  44 given in English.  It was not given in Gitksan, which  45 it should have been given if it was to be faithful to  46 the original.  My point only is to say, my lord, that  47 we have attempted to confine the evidence to what we 1919  Submission by Mr. Jackson  1 deem to be relevant, and to expedite matters.  2 Now, we do not intend to be adducing very much  3 more evidence relating to the oral history.  Many of  4 the oral histories, at least in part, have been  5 collected by anthropologists over the years and have  6 been written down and they are available in a variety  7 of collections.  Some of our experts will in fact be  8 relying upon some of those in expressing their  9 opinions.  We will in fact be presenting one expert  10 whose principal purpose is to give your lordship an  11 overview.  A sense of the broad sweep of the history  12 relying principally upon the oral history of the  13 people.  14 In constructing the reliance on the oral evidence,  15 my lord, we, and in approaching the question of how we  16 balance the oral evidence of the Indian witnesses  17 themselves and integrate that with the evidence of  18 non-Indian experts, we have been advised by how other  19 courts have dealt with this issue.  And I can refer  20 your lordship to the Bear Island decision just  21 briefly, perhaps, since I don't think anyone else  22 probably has their list of authorities we relied upon.  23 The question is whether I do.  I'll just very briefly  24 refer your lordship to Mr. Justice Steele in that case  25 who made this comment, and specifically in relation to  26 oral history and Indian evidence, and it's tab 5 of  27 the Plaintiffs' book of authorities --  2 8    THE COURT:  Thank you.  29 MR. JACKSON:  — On the original hearsay matter.  And I quote  30 from Mr. Justice Steele, page 27.  31  32 "I felt obliged to comment on how disappointed I  33 was that there was so little evidence given by  34 Indians themselves.  Chief Potts was the principal  35 Indian witness to give oral history.  There was a  36 few other Indians who gave minimum amounts of oral  37 history, some of which conflicted with that given  38 by Chief Potts."  39  40 Over on page 28.  41  42 "In a matter of this importance I expected that all  43 of the older people in the Temagami Band who are  44 able to give useful evidence would have been  45 called.  Throughout the trial I had an  46 uncomfortable feeling that the Defendants in  47 presenting their case did not want the evidence of 1920  Submission by Mr. Jackson  1 the Indians themselves to be given except through  2 the mouth of Chief Potts."  3  4 On page 29.  5  6 "I also note that practically all of the evidence  7 of place names, canoe routes, folklore sites, rock  8 arts, settlements and canoe styles came from  9 non-Indians rather than from Chief Potts or any  10 other Indian.  The acknowledged old people who  11 knew the most about the oral history were  12 inexplicably not called to give any such  13 evidence."  14  15 Now, my lord, it's not our sense that that is the  16 judgment you will draw in this case.  17 THE COURT:  That's been foreclosed already.  18 MR. JACKSON:  But I want to ensure your lordship that what we  19 have endeavored to do, and what we'll continue to  20 endeavor to do is to select wherever a vast array of  21 material is spanning, and this is a matter of  22 argument, but we say many thousands of years that  23 which we feel is important, which is relevant and  24 which is probative.  25 Now, in your judgment -- perhaps I should also  26 say, my lord, you made a special reference to the fact  27 that you could rely upon the good sense and  28 responsibility of counsel not to press for the  29 admissibility of evidence which will not assist this  30 court or any other court in adjudication of the  31 issues.  We are cognizant of that responsibility and  32 we intend to exercise it maturely.  33 Now, turning, my lord, to the distinction which  34 appears in the body of the reasons as between truly  35 historical as against anecdotal facts.  This  36 distinction seems to hinge in the examples that you  37 have given as to what are truly historical as opposed  38 to anecdotal and inadmissible facts is the  39 supernatural or mythological character of some of the  40 events described by the Indian witnesses.  And perhaps  41 I can illustrate this best by one of your lordship's  42 own examples.  In relation to the oral history related  43 by Mrs. Johnson in which she described how the ancient  44 village of T'am lax amit -- that's  45 T-'-A-M-L-A-X-A-M-I-T.  How the ancient village was  46 destroyed by the intervention of the madeek.  That's  47 M-A-D-E-E-K.  The madeek being a supernatural grizzly 1921  Submission by Mr. Jackson  1 bear.  And how this event flowed as a consequence of  2 young women showing disrespect for the bones of the  3 fish.  Now, at page 11 of your lordship's reasons you  4 separate the account of Mrs. Johnson into that which  5 is a truly historical fact and admissible in evidence,  6 the destruction of T'am lax amit, but under your  7 ruling the reference to the madeek is an anecdotal,  8 inadmissible fact.  9 My lord, I think it's important to understand for  10 what purpose the oral history of the madeek was  11 tendered, because I think that will give your lordship  12 some sense of the problem we have with that particular  13 classification or dichotomy.  The oral history related  14 by Mrs. Johnson of the madeek is tendered to prove  15 that T'am lax amit was an ancient village of the  16 Gitksan, to prove that there was an act of disrespect  17 for the animals, to prove that there was an  18 extraordinary or supernatural event that led to the  19 destruction of the village.  But it is tendered for  20 more than that, my lord.  It is also tendered as proof  21 of the origin of certain principles, the fundamental  22 principles of Gitksan law.  And those principles, we  23 say, not only originate from that time long ago, but  24 that they continued to animate and to inform the  25 exercise of Indian authority in terms of their  26 territories.  27 Now, the question of Indian law, it's something  28 which we have specifically pleaded.  I refer your  29 lordship to paragraph 57 of the Statement of Claim in  30 which we plead that without restricting the generality  31 of paragraph 56 since time immemorial the Plaintiffs  32 and their ancestors have, and C is governed themselves  33 according to their laws, and D is governed the  34 territory according to their laws and spiritual  35 beliefs and practices.  36 Now, Gitksan and Wet'suwet'en law clearly must be  37 proved as a fact without going into the question of  38 whether it is a foreign law within conflict of law  39 terms.  Clearly we have the onus of proving a legal  40 system which we say is the fulcrum upon which  41 jurisdictional authority is exercised as a matter of  42 fact.  Now, my lord, in the absence of a court system,  43 in the absence of a written constitution of law  44 reports, of the normal and accustomed source materials  45 which your lordship and counsel use as a matter of  46 daily practice to prove law and its original sources  47 where that is important in a case is not available to 1922  Submission by Mr. Jackson  1 the Plaintiffs.  That is why in tracing the origin of  2 their laws we turn in part to the oral history.  3 THE COURT:  Well, let me ask you then, Mr. Jackson, why can't I  4 merely be told what the law is rather than the  5 anecdotal, if I can use that term, source of the law?  6 MR. JACKSON:  Well, let me —  7 THE COURT:  The law I take it that you're advancing is one of  8 respect for all living creatures.  9 MR. JACKSON:  Well —  10 THE COURT:  Do I —  11 MR. JACKSON:  It's more that that, my lord.  When Mrs. Johnson  12 gave her evidence --  13 THE COURT:  Yes.  14 MR. JACKSON:  — She was asked by Mr. Grant having gone through  15 not only the oral history relating to the madeek, but  16 you remember also she gave evidence of how T'am lax  17 amit was buried under a terrible snow storm --  18 THE COURT:  Yes.  19 MR. JACKSON:  -- After some young people waived sticks used in  20 the preparation of salmon at the mountain.   After  21 that evidence she was asked whether any laws emerged  22 from those oral histories, and she mentioned  23 specifically the importance of treating the bones of  24 animals in appropriate ways.  She mentioned the first  25 salmon ceremony.  A whole body of practice relating to  26 the animals.  27 Now, my lord, we are saying that those particular  28 laws are fundamental.  They're not subsidary rules of  29 the Gitksan.  They are important fulcrums under which  30 they exercise their particular stewardship and  31 responsibility for their territories.  So it's  32 important for us not simply to demonstrate that these  33 are amongst many of the Gitksan and the Wet'suwet'en  34 laws.  We are seeking to establish that these hold an  35 especial importance in the legal structure.  Now, my  36 lord, it is the dramatic and extraordinary  37 intervention of the madeek.  It is the unseasonal and  38 dramatic snow storm that rivets these events in the  39 collective memory of the Gitksan.  It is the  40 circumstances under which those events came about that  41 give rise to the view that these are fundamental laws.  42 Now, perhaps the best way to illustrate this, my  43 lord, is by way of example which is more familiar, and  44 in terms of costing about for some more familiar  45 analogies the one which comes to mind, and I commend  46 it to your lordship as the one which I think is most  47 appropriate, is that if an issue were to arise in a 1923  Submission by Mr. Jackson  1 court of law in which the origins of Jewish society  2 and nature and origin of their laws were in issue in  3 the courts, and evidence was tendered regarding the  4 giving of the ten commandments, and under your ruling  5 as to truly historical as opposed to anecdotal facts I  6 would suggest, my lord, the truly historical facts  7 would be that the Jews left Egypt, that they wandered  8 around in the desert for a number of years, that they  9 found some tablets with some laws written on them and  10 hence forth determined that they would govern  11 themselves according to those laws.  The references to  12 Moses' journey up to Mount Sinai, his dialogue with a  13 devine or supernatural presence, and the God given  14 nature of those laws would be anecdotal.  15 Now, my lord, it would be sufficient presumably to  16 limit the evidence in accordance with your lordship's  17 ruling if all one wanted to do was to say well, there  18 are some laws which the Jews have, but would anyone  19 have regarded those laws as having the fundamental  20 quality they have having formed not only Jewish  21 society but most of western civilization were it not  22 for those circumstances which have infused that event  23 in the collective memory of mankind.  And, my lord,  24 without, you know, taking the analogy too far it is  25 because of the charged circumstances under which many  26 of the events took place in the oral histories which  27 in fact give rise to their especial significance.  28 Now, my lord --  29 THE COURT:  Well, let me ask you this then, Mr. Jackson.  Are  30 you saying that if it is -- if it was necessary in  31 some common-law court to prove Jewish law that a court  32 would permit an issue to develop between contesting  33 experts or historians about the source of Jewish law?  34 Would the court not say tell us -- tell me what the  35 law is?  36 MR. JACKSON:  Well, my lord, if the issue were in relation to a  37 present matter, normally speaking the issue what is  38 law now, what's the origins of it --  39 THE COURT:  I expect we have all given evidence in foreign  40 courts about British Columbia law.  I know I have.  I  41 didn't find it a very pleasant experience, especially  42 the cross-examination.  But it seems to me that I was  43 confined to stating what I understood and believed  44 under oath that the law in British Columbia was at the  45 time I was giving my evidence.  I wasn't expected or  46 allowed to go back and trace the history of law  47 through a number of gyrations of the House of Lords 1924  Submission by Mr. Jackson  1 and end up with an essay on the development of law.  I  2 was confined to what is the law in British Columbia  3 today.  4 MR. JACKSON:  And quite probably, my lord, I presume given the  5 issue in the cause was the law of British Columbia at  6 whatever the relevant time was.  7 THE COURT:  Yes.  Quite right.  8 MR. JACKSON:  That is not the sole issue in this case.  We are  9 not adducing evidence of Gitksan law solely for the  10 purpose of showing what is Gitksan law today.  We are  11 seeking to prove that there was a system of law under  12 which authority and jurisdiction was exercised long  13 before whites came into the area.  And, therefore, the  14 origin of those laws is a matter of fundamental  15 importance to this particular case.  In most other  16 cases it would be irrelevant, and for that reason  17 alone evidence about the origins of laws ought not to  18 be heard.  In our case, my lord, we submit that  19 evidence of origins, and that was one of the reasons  20 why I went to some pains to, as it were, chart the  21 kinds of origins which we are seeking to prove.  22 There is another point, my lord, which arises out  23 of your lordship's distinction.  When you were dealing  24 with the evidence of Mrs. McKenzie, and on page 11 in  25 referring to that evidence you, applying your  26 lordship's classification, indicate that the battles  27 of the warrior Suuwiigos -- that's  28 S-U-U-W-I-I-G-O-S — those battles which were told as  29 part of Mrs. McKenzie's oral history would be  30 admissible as being historical facts, but that the  31 reference to the giant in the trees, and as I recall  32 Mrs. McKenzie's evidence it was that in the course of  33 these battles a giant in the trees was encountered.  34 Suuwiigos over came the giant and out of that event a  35 crest was taken.  My lord, that evidence was tendered  36 again in part to demonstrate the origin of the crests  37 which are part of the property, part of the patrimony  38 of Mrs. McKenzie's house, the House of Gyolugyet.  39 That's G-Y-O-L-U-G-Y-E-T.  My lord, in your judgment  40 you concede that the origin and significance of crests  41 may be proved as a matter of fact, but you caution and  42 you qualify that not all of the anecdotal  43 circumstances with which they are connected ought to  44 be given.  My lord, there is no way in which Mrs.  45 McKenzie could have explained how it is that her house  46 comes to have a crest the name of which is the giant  47 in the trees without referring to it.  And in going 1925  Submission by Mr. Jackson  1 over the transcript, my lord, I notice that that  2 particular reference was very limited.  It's not a  3 matter of taking up undue amounts of time of the  4 court.  It was a very small part of it.  But without  5 giving that explanation her description of the account  6 of how she came as Gyolugyet to receive as part of the  7 property of the house not only the territory, but  8 crests cannot be divorced.  It has no meaning, no  9 coherence unless that reference is referentially  10 incorporated in some kind of way.  11 In the same way, my lord, in the same way that  12 without being able to refer to those circumstances her  13 claim to the crest lacks validity, there is no way  14 without making those references that the claim can be  15 validated.  It is the points of reference for its  16 repetition and its validation in the feast system, and  17 although this is not a feast system, this court is not  18 being asked to perform the function of a feast, when  19 Mrs. McKenzie is asked to demonstrate through evidence  20 the nature of her rights to house property we submit  21 that the particular form in which your lordship has  22 dealt with the matter poses intolerable problems.  23 Now, my lord, I note that in your reasons you make  24 the point that no -- Mrs. McKenzie's evidence is in,  25 Mrs. Johnson's evidence is in, and I take it your  26 lordship has found it helpful for the purposes for  27 which it was adduced.  But, again, while telling your  28 lordship that we do not intend to present much more  29 evidence like this it is an important issue of  30 principle because there are other cases, there will be  31 other occasions in which cases in which oral history  32 is being adduced in which this distinction could  33 preclude Indian people from describing their history  34 in the only way they know how.  It divorces that  35 description from what they understand to be the  36 animating forces underlying those events, forces which  37 give meaning to those events, and which result in them  38 becoming embedded in part of the history.  39 THE COURT:  With respect, Mr. Jackson, is that really the point?  40 I'm not in this case in any way seeking, nor do I have  41 any interest in limiting the right of these people to  42 make their history known as they understand it.  That  43 is an enterprise that is open to them outside the  44 context of this case.  All I'm concerned with is to  45 try and obtain such evidence that meets the test of  46 necessity and trustworthiness as I need to decide this  47 case, and it doesn't -- nothing that I decide in this 1926  Submission by Mr. Jackson  1 case is in any way going to impede these people from  2 making their history known.  3 MR. JACKSON:  No.  That's — I take your lordship's point.  But  4 perhaps again by way of demonstrating why it is that  5 evidence is being tendered in a particular way if I  6 might refer to the evidence of the witness who came  7 after your lordship's ruling, Mrs. Ryan.  And Mr.  8 Grant, I think, raised initially before Mrs. Ryan was  9 asked to give evidence of some of her oral history the  10 problem which we face when we went through with Mrs.  11 Ryan what she was going to say, and we sought to be  12 guided by your lordship's rulings, and to separate out  13 from that history that which was truly historical from  14 anecdotal, and we found, my lord, that it was  15 impossible.  That Mrs. Ryan could not give evidence in  16 any way which made any sense to her or, and this is of  17 course more important from the court's point of view,  18 or any sense to the court in terms of why it was being  19 adduced.  Mrs. Ryan, you may recall, my lord, one of  20 the oral histories she dealt with, again it is one of  21 the T'am lax amit oral histories, related to the death  22 of all of the villagers save for one when some young  23 people again demonstrated disrespect, in this case to  24 mountain goats, by teasing and torturing them.  And  25 the people of the villages were invited to a feast.  26 Once in the feast hall the feast hall collapsed and  27 everyone except for one boy who tried to protect the  28 animals was saved.  29 Now, my lord, that was not adduced because it's an  30 interesting story.  It was not adduced because Mrs.  31 Ryan wanted to give evidence about it.  It was adduced  32 because in that evidence not only do you have again a  33 reference to T'am lax amit, again a reference to the  34 origins of these laws.  If that were the only reason,  35 my lord, it might well be objected to not on the basis  36 of admissibility but on the question of repetition.  37 It was chosen, and why it was adduced is because it  38 is -- a reference is made in that oral history to the  39 feast system as being in place at the time of T'am lax  4 0 amit.  We will be endeavoring through evidence to  41 establish that that is in the order of three  42 millenniums ago.  43 Now, it is important for the Plaintiffs to be able  44 to adduce that sort of evidence.  Mrs. Ryan being  45 asked is the feast of antiquity, and receiving the  46 answer yes is evidence.  My lord, we submit that that  47 is not very probative.  It is more probative to find a 1927  Submission by Mr. Jackson  1 reference to the feast system including, if you will  2 recall, my lord, the reference to the very words used  3 today for sending out individuals who invite people to  4 the feast.  That to be able to show a connection  5 between the time of T'am lax amit and today in the  6 feast system is important for us, and that oral  7 history was led to do that.  8 Now, my lord, without our being able to go into  9 those circumstances, without the reference to the  10 invitation, the reference to the feast hall, that  11 piece of evidence utterly lacks probative weight for  12 the point we wish to adduce it for.  The event, my  13 lord, is charged with supernatural events.  I mean,  14 the mountain goat in the adaawk are envisaged as  15 having appeared in human form.  If for that reason the  16 reference becomes a mere anecdote then we are  17 precluded from adducing evidence which we say is  18 relevant and which we say is probative.  19 THE COURT:  Okay.  Mr. Jackson, I'm going to take a short  2 0 adjournment, if you don't mind.  21 THE REGISTRAR:  Order in chambers.  Chambers stands adjourned  22 for a short recess.  23  24        (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING SHORT RECESS)  25  26 THE COURT:  Thank you, Mr. Jackson.  27 MR. JACKSON:  My lord, the problem which we have so far pointed  28 to regarding this distinction between historical and  29 non-historical facts which appears on the face of your  30 reasons to refer to the supernatural character,  31 florelogical character of the events is in fact, my  32 lord, as we understand your reasons, one which at an  33 earlier point you yourself recognized as one which  34 ought not to be drawn.  Indeed which could not  35 properly be drawn in the circumstances of this case.  36 And you recall in your reasons, my lord, that when you  37 were dealing with the distinction which Mrs. McKenzie  38 drew between oral history, something which is owned by  39 the house, something which is repeated at the feast,  40 which is validated through the sifting process of  41 repetition again and again with each new generation,  42 each succession of the chief, that in trying to  43 understand it is, I concede, a difficult distinction  44 to make.  But in grappling as your lordship did with  45 exactly what the nature of that distinction was if I  46 may refer your lordship to your reasons at page seven  47 where you indicate at the bottom of the page. 192?  Submission by Mr. Jackson  1 "I have made some unsuccessful efforts to classify  2 evidence in accordance with my own concepts of  3 what might reasonably be expected to be an adaawk  4 and what is more likely to be just a story.  On  5 this basis for example I would classify the legend  6 of the supernatural grizzly as a story while the  7 dispersal of the houses would be history.  On  8 reflection however I must reject any such  9 arbitrary classification because it does not  10 recognize or give sufficient weight to the  11 possible spirituality of the history of these  12 people, and as miracles feature predominantly in  13 many systems of belief there is no reason why a  14 belief, even supernatural beliefs should not also  15 be part of the adaawk."  16  17 Now, my lord, having recognized, and we say  18 appropriately, the necessarily arbitrary nature of  19 drawing these kinds of lines, some four pages later  20 those lines seem to have become rarefied as the legal  21 test for the admissibility of evidence.  22 THE COURT:  Well, what I'm trying to  — I shouldn't say what  23 I'm trying to do.  I'm really just stroking underwater  24 and trying to find the surface, is to question the  25 evidentiary value of the adaawk as such.  I'm not sure  26 the adaawk is the test as the evidence seemed to be  27 pointed at in the early part of the trial it was, I  28 took it and this may -- this may be an unfair and  29 perhaps inaccurate generalization, but it seemed to me  30 to be almost Mr. Grant's position if it was in the  31 adaawk it is admissible, and I'm doubting that  32 proposition because I think the adaawk, as you have  33 said, may be days and days in telling, and I don't  34 think just because it's in the adaawk it's necessarily  35 going to be relevant, admissible or even helpful at  36 this trial.  What I have to find is some basis other  37 than an inclusion in the adaawk as the test for  38 admissibility.  Now, maybe that's not helpful, but I  39 can tell you that's the process that I'm trying --  40 that at the moment that's where I am.  41 MR. JACKSON:  My lord, I appreciate your lordship's concern.  As  42 you've expressed in the judgments you don't want to be  43 in the position in which something comes in just on a  44 witness' say so for this is the part of the adaawk so  45 it's in.  4 6    THE COURT:  Yes.  47    MR. JACKSON:  You refer to that as the bootstrap approach to 1929  Submission by Mr. Jackson  1 admissibility.  2 THE COURT:  Scholars would call it on the ipse dixit of the  3 witness.  4 MR. JACKSON:  That's right.  My lord, in the course of your  5 reasons you in fact sought to identify what you regard  6 as being the hallmark of an adaawk.  Page eight you  7 talk about it's something that's told and retold.  8 Sometimes infrequently on formal occasions, usually at  9 feasts under traditions that require a dissenter to  10 object then and there or not at all.  11 THE COURT:  I may overstate that, but I don't know.  12 MR. JACKSON:  My lord, it is our position that oral history  13 where it meets the tests of necessity and  14 circumstantial probability of reliability, then  15 subject to relevance and subject, of course, to weight  16 it goes in.  We have tried to assuage your concern  17 that we do not intend under that rule to bring in  18 everything which in fact is admissible.  We are  19 seeking to ensure that relevance is the, as it were, a  20 lone star which shines on every piece of evidence we  21 look at in terms of oral history, and we ask the  22 questions how will this advance the case.  How will  23 this help the court resolve those issues.  But the  24 common-law test of admissibility it seems to me  25 provide a framework for inquiring.  The adaawk is a  26 shorthand way of meeting those tests, but it should,  27 and of course counsel for the Defendants are at  28 liberty to do this, to explore the authenticity of  29 whether in fact an event is part of the adaawk.  30 Whether in fact it has been repeated.  Whether in fact  31 it has been through the sifting process.  So we say  32 that it's the common-law test you should be applying  33 to oral evidence.  It's the test which we are applying  34 in advance before we seek to present oral history.  It  35 is not simply fragments of disconnected information  36 which have come down to someone through a circuitous  37 route.  It is information which has been passed on, as  38 Mr. Rush pointed out, through a process in which there  39 was a custodian of transmittal and a custodian of  40 receipt.  And the adaawk is a particularly formalized  41 way in which that is done.  42 My lord, I think with respect that what your  43 lordship has tried to do to avoid a bootstrap approach  44 is not to have been content to rely upon the  45 common-law tests which can be applied to the oral  46 history and has sought to interject some other  47 threshold or perimeter of distinction.  And with 1930  Submission by Mr. Jackson  1 respect we suggest that that causes more problems than  2 it solves, and it conflicts and precludes the  3 admissibility of what we say is important and relevant  4 evidence.  5 Now, my lord, in your judgment you make reference  6 to the fact that this distinction between what is real  7 history and what is anecdotal circumstance necessarily  8 gives rise to gray areas, and that on page 12 you say,  9 "Such questions must be resolved on policy grounds by  10 the judge deciding" -- I'm reading from the top of the  11 page.  "Such questions must be resolved on policy  12 grounds by the judge deciding as best he can whether a  13 fact may be a fact of history or something less than  14 that."  15 Now, in relation to what I've said so far we  16 submit that if indeed it is a policy question the  17 policy should be to permit Indian witnesses to give  18 evidence in the only way which gives their evidence  19 coherence.  But we also say, my lord, that if it is a  20 policy question then your lordship should be guided in  21 making that determination by what historians  22 themselves have written and how they approach the  23 facts of history, and particularly the facts of  24 ancient history.  And, my lord, I have put together a  25 body of authorities which while they look a little  26 different than the authorities with which your  27 lordship is normally provided, we suspect in the  28 circumstances of this, as you said, extraordinary case  29 giving rise to issues which have not yet before been  30 considered by a court that they provide some guidance  31 and provide a measure of informed judgment as to how  32 your lordship should approach this question of what is  33 history.  And, again, in struggling myself with what  34 is an unusual question, one which lawyers are not  35 normally called upon to resolve, it seemed that there  36 are two -- analogies is the wrong word.  There are two  37 bodies of history, information, facts which are  38 charged with an extraordinary quality which some  39 people would regard as mythical, some people would say  40 a supernatural, some people would say a legendary  41 which have been the subject of consideration by  42 historians.  And those two bodies, my lord, are the  43 writings of Homer regarding ancient Greece, and  44 references in the Bible itself to the history of the  45 Jews.  And without belabouring the issue, my lord,  46 what I want to do is just make some references to that  47 because I think it is helpful for your lordship in 1931  Submission by Mr. Jackson  1 resolving this issue.  And, again, I make the point  2 that it is an issue which has come before your  3 lordship, and it is likely to come before other judges  4 before the issue of aboriginal rights in British  5 Columbia is put to rest.  6 Now, the first reference, my lord, is to the  7 Pelican History of the World by Professor Roberts.  I  8 confess that until I started doing some research on  9 this I wasn't aware that anyone had dared to write a  10 history of the world.  I can tell your lordship that,  11 and you'll see from the front cover that it is  12 regarded as a distinguished work by very eminent  13 historians, it does not get the Gitksan Wet'suwet'en  14 history book of the year award.  15 THE COURT:  No.  16 MR. JACKSON:  And your lordship probably will well understand  17 why.  Like almost every other standard reference book  18 the Indians are a footnote.  They appear -- I made a  19 point of looking through the index to make sure that  20 nothing incriminating was said regarding the Gitksan  21 Wet'suwet'en, and of course I need have no concerns  22 over that.  There is the barest reference to Canadian  23 Indians.  But my point of course is not that your  24 lordship should take the book to heart as the  25 authority of history of the world.  That's not an  26 issue in this case.  There are references in the book  27 by a conservative historian operating within the  28 mainstream of history on these kinds of questions of  29 how do you deal with the Odyssey and the Iliad, how do  30 you deal with the Bible.  As an historian you simply  31 say well, they're mythical legendary.  They are to be  32 put to one side and we will get on to talk about the  33 real facts of history.  34 THE COURT:  I'll tell you how Chief Justice Laskin used to deal  35 with it.  He said the trouble with historians is they  36 never throw anything away, whereas he said judges have  37 to deal with things that -- they have to throw some  38 things away and confine themselves to what as he said  39 is the universal test of relevance subject to  40 exceptions of course.  41 MR. JACKSON:  My lord, I would be having something to say  42 regarding what your lordship would be throwing away --  4 3 THE COURT:  Yes.  44 MR. JACKSON:  -- If the classification in your draft reasons is  45 applied in a way which we understand it --  4 6 THE COURT:  Yes.  47 MR. JACKSON:  It is meant to be applied. 1932  Submission by Mr. Jackson  1 Now, the first reference I wish to make, my lord,  2 is at page 181, and this is to Professor Roberts'  3 Pelican History of the World, and it is to a book  4 which I -- perhaps as your lordship read as a young  5 man and which I never at that time imagined that it  6 would be the subject of legal argument, but Professor  7 Roberts in addressing the question of how do you deal  8 with the writings of Homer makes this point.  9  10 "The Iliad and Odyssey have already been touched  11 upon because of the light they throw on  12 prehistory; they were also shapers of the future.  13 They are at first sight curious objects for  14 a people's reverence.  The Iliad gives an account  15 of a short episode from a legendary long-past war;  16 the Odyssey is more like a novel, narrating the  17 wandering of one of the greatest of all literary  18 characters, Odysseus, on his way home from the  19 same struggle.  That on the face of it is all.  20 But they came to be held to be something like  21 sacred books.  If, as seems reasonable, the  22 survival rate of early copies is thought to give a  23 true reflexion of relative popularity, they were  24 copied more frequently than any other text of  25 Greek literature.  Much time and ink have been  2 6 spent on argument about how they were composed.  27 It now seems most likely that they took their  28 present shape in Ionia slightly before 700 BC.  29 The Greeks referred to their author without  30 qualification as 'the poet' (a sufficient sign of  31 his standing in their eyes) but some have found  32 arguments for thinking the two poems are the work  33 of different men.  For our purpose, it is  34 unimportant whether he was one author or not; the  35 essential point is that someone took material  36 presented by four centuries of bardic transmission  37 and wove it into a form which acquired stability  38 and in this sense these works are the culmination  39 of the era of Greek heroic poetry.  Though they  40 were probably written down in the seventh century,  41 no standard version of these poems was accepted  42 until the sixth."  43  44 This is important, my lord.  45  46 "By then they were already regarded as an  47 authoritative account of early Greek history, a 1933  Submission by Mr. Jackson  1 source of morals and models, and the staple of  2 literary education.  Thus they became not only the  3 first documents of Greek self-consciousness, but  4 the embodiment of the fundamental values of  5 classical civilization.  Later they were to be  6 even more than this: together with the Bible, they  7 are the source of western literature."  8  9 Now, my lord, if you turn the page, on page 182  10 and page 183 Professor Roberts on the basis of what we  11 know, and all we know about early Greece through these  12 writings, makes a series of statements, judgments on  13 the nature of Greek society.  What it looked like.  14 And I'm not going to burden your lordship with reading  15 it all.  There is just one passage which I find  16 helpful, and I commend to your lordship.  Starting  17 from the stop of page 182.  18  19 "The literary record and accepted tradition also  20 reveal something if nothing very precise, of the  21 social and (if the word is appropriate) political  22 institutions of early Greece.  Homer shows us a  23 society of kings and aristrocrats, but by this day  24 this was already anachronistic."  25  26 Further down in that paragraph, my lord.  27  28 "Such ruling elites rested fundamentally on land;  29 their members were the outright owners of the  30 estates which provided not only their livelihood  31 but the surplus for the expensive arms and horses  32 which made leaders in war.  Homer depicts such  33 aristrocrats behaving with a remarkable degree of  34 independence of his kings; this probably reflects  35 the reality of his own day."  36  37 And it goes on in like vein to draw judgments.  38 And I don't think Professor Roberts takes the position  39 that the record is finished on the nature of early  40 Greece.  He makes specific reference to archeological  41 discoveries which have in some cases confirmed, shed  42 more light.  The point is that these writings which  43 are the later writing down of an oral tradition  44 reflect a reality, and it is a reality which  45 historians can't comment on intelligently.  It is not  46 the only source, but in many ways it is our best  47 source until something else comes along. 1934  Submission by Mr. Jackson  1 He deals, my lord, in the same way with references  2 to the Bible.  And, again, without making too much ado  3 about it, I will refer your lordship to page 120 of  4 the same book.  And I'm reading from the middle of the  5 page, the paragraph starting;  6  7 "For many people during many centuries, mankind's  8 history before the coming of Christianity was the  9 history of the Jews and what they recounted of the  10 history of others.  Both were written down in the  11 books called the Old Testament, the sacred  12 writings of the Jewish people, subsequently  13 diffused world-wide in many languages by the  14 Christian missionary impulse and the invention of  15 printing.  They were to be the first people to  16 arrive at an abstract notion of God and to forbid  17 his representation by images.  No people has  18 produced a greater historical impact from such  19 comparatively insignificant origins and resources,  20 origins so insignificant indeed that it is still  21 difficult to be sure of very much about them in  22 spite of the huge efforts and attention directed  23 to their uncovering."  24  25 Now, I'm not going to read the next section, my  26 lord, but you see in it specific reference to Abraham,  27 Isaac and Jacob, and the statement that there do not  28 seem -- and I'm reading from the middle of that next  29 paragraph.  30  31 "There do not seem to be good grounds for denying  32 that men who were the origins of these gigantic  33 and legendary figures actually existed."  34  35 And on over on page 121 you have further  36 references to Joseph, the story of Joseph, the  37 attempts to corroborate this from Egyptian sources,  38 and the statement is made halfway down page 121.  39  40 "It may be so, but there is no evidence to confirm  41 or disprove it."  42  43 This is in reference to Jacob's Egyptian origins.  44  45 "There is only tradition, as there is only  46 tradition for all Hebrew history until about 1200  47 BC.  This tradition is what is embodied in the Old 1935  Submission by Mr. Jackson  1 Testament."  2  3 My lord, the only other point I want to make, and  4 again I should perhaps go to the end of that paragraph  5 as evidence, and he's talking about the Bible.  6  7 " stands in something like the relation to  8 Jewish origins in which Homer stands to those of  9 Greece.  10  11 Now, on page 123, and this is the last passage  12 I'll refer you to, at the very top of the page  13 Professor Roberts expresses this view.  14  15 "Later Jewish tradition placed great emphasis on  16 its origins in the exodus from Egypt, a story  17 dominated by the gigantic and mysterious figure of  18 Moses.  Clearly, when the Hebrews came to Canaan,  19 they were already consciously a people, grouped  20 round the cult of Yahweh.  The biblical account of  21 the wanderings in Sinai probably reports the  22 crucial time when this national consciousness was  23 forged.  But the biblical tradition is again all  24 that there is to depend upon and it was only  25 recorded much later.  It is certainly credible  26 that the Hebrews should at least have fled from  27 harsh oppression in a foreign land."  28  29 At the end of that paragraph, at the beginning of  30 the next one you have Professor Roberts' opinion as it  31 were on the opinion of the Bible.  32  33 "Yet though the biblical account cannot be accepted  34 as it stands..."  35  36 This, I think, refers to some of the chronolgy.  37  38 "It should be treated with respect as our only  39 evidence for much of Jewish history.  It contains  40 much that can be related to what is known or  41 inferred from other sources.  Archaeology comes to  42 the historians' help only with the arrival of the  43 Hebrews in Canaan.  The story of conquest told in  44 the book of Joshua fits evidence of destruction in  45 the Canaanite cities in the thirteenth century  4 6 BC."  47 1936  Submission by Mr. Jackson  1 My lord, it is our submission that the oral  2 history of the Gitksan Wet'suwet'en is entitled to  3 no less respect.  4 THE COURT:  That may be so, Mr. Jackson, and I wouldn't dispute  5 that for a moment if we were talking history, but  6 we're talking law.  And I wouldn't disagree with  7 anything that Professor Roberts has said.  What my  8 problem with your submission at this point is is that  9 he's not operating in an adversarial system where  10 there's another side that says we don't accept  11 anything that you're saying.  It's a matter of on what  12 basis a level of credibility can be attached to it,  13 and I don't see what else historians can do.  They've  14 got to go on the best version or best evidence that's  15 available to them.  But we have a different test, do  16 we not?  17 MR. JACKSON:  Well, my lord —  18 THE COURT:  If we don't it seems to me that these Plaintiffs can  19 repeat anything they have ever heard however mystical,  20 however vague and uncertain and indefinite it may be,  21 and not only -- it seems to me that if I allow it to  22 be spoken in testimony then I have to -- I have to  23 give it some weight, I suppose.  If it's in then it  24 has to be refuted.  How can it be refuted?  How does  25 it meet the test of trustworthiness?  26 MR. JACKSON:  My lord, the test of trustworthiness as I  27 understand the issue of history, and I would refer --  28 THE COURT:  The historical trustworthiness seems to me to be a  29 matter almost of faith.  30 MR. JACKSON:  Well, my lord, one of the other references I'll be  31 referring your lordship to in a moment goes through  32 the question of how do historians translate from a  33 fact about the past into a fact of history.  34 THE COURT:  M'hm.  35 MR. JACKSON:  And that, I think, when you see the test you'll  36 see, my lord, it bears a remarkable similarity between  37 the test of historians looking at the facts of history  38 and the test of Professor Wigmore in his attempt to  39 define and contain that which a court should hear by  40 way of history.  And it may be appropriate just to  41 refer your lordship to that.  It's in our book of  42 authorities.  43 THE COURT:  I didn't bring it here.  44 MR. JACKSON:  Perhaps I'll read it for your and my friends'  45 benefit.  46 THE COURT:  There are several.  47 MR. JACKSON:  It's volume 2 of the book of authorities, tab 18. 1937  Submission by Mr. Jackson  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.  Thank you.  MR. JACKSON:  And it is dealing with the exception to the  hearsay rule not under reputation in relation to  boundaries but events of general history.  And it's  not long, my lord, so it may be that I'll just go  through it.  THE COURT:  Okay.  MR. GOLDIE:  What page is it, please?  MR. JACKSON:  This is page 561 under the heading Events of  General History.  My friend has a spare clean copy, my  lord, which will assist you.  THE COURT:  Thank you.  MR. JACKSON:  "The general principles of the branch of exception  covering the events of general history do not  differ materially from those of preceding ones,  but the line of precedents is a separate one and  the scope of application is in some respects  broader.  So it seems more profitable to regard it  as a distinct branch of the exception for  reputation.  The principle necessity is the same  as that that are examined.  The matter as to which  the history or other treaties is offered must be  an ancient one or one as to which it will be  unlikely that living witnesses could be obtained.  In other words, it must be a matter concerning a  former generation."  I don't think we have any problem with that.  Over  on page 564.  "When a treatise on history..."  And, of course, all these rules, my lord, are  conceived in the context of proof usually through a  work of history which is published.  "When a treatise on history is offered as embodying  a reputation of the community upon the fact in  question the treatise in the first place cannot be  regarded as more than the statement of the  individual author unless it is a work so widely  known and so long used and so highly respected  that it could be said to represent the assenting  belief of the community.  In the next place the  facts for which an opinion or reputation can be  taken as trustworthy must be such facts as have 193?  Submission by Mr. Jackson  1 been of interest to all members of the community  2 as such and therefore have been so likely to  3 receive general and intelligent discussion and  4 examination by competent persons that the  5 community's received opinion on the subject cannot  6 be supposed to have reached the condition of  7 definite decision until the matter had gone in  8 public belief beyond the stage of controversy and  9 had become settled with fair finality."  10  11 That is the comments Wigmore makes.  And, my lord,  12 it seems to us that that provides all that your  13 lordship needs to resolve this issue.  We have  14 attempted to lay an evidentiary ground work for Indian  15 oral history in this process of transmission, receipt,  16 validation, obligation to descent, repetition, again  17 and again and again.  On our submission over many  18 centuries.  And I say that because some of the oral  19 histories are more recent than others, and one of the  20 purposes of our leading some expert evidence is to  21 give your lordship a sense of that time depth, as I  22 said.  But that is the test, my lord, to say that,  23 because there is nothing else which the Plaintiffs can  24 point to except the Indian history.  To refute the  25 Indian history in a sense is as much a bootstrap test  26 to get evidence inadmissible as would be a statement  27 that it's Indian history therefore it's admissible is  28 a bootstrap test for admissibility.  And we suggest  29 that this question of probing the probity, the  30 trustworthiness, is something which my friends can  31 explore.  It's something which is something they can  32 cross-examine on.  It is something which in any event  33 goes to weight.  34 Your lordship no doubt will hear argument at the  35 end from my friends perhaps that this is not very good  36 history.  I recall Mr. Plant when we were dealing with  37 this matter before in relation to Mrs. Ryan and the  38 question of whether or not the Province objected to  39 her telling the full adaawk, his position, I don't  40 think I'm misrepresenting it, was that Mrs. Ryan  41 should give her evidence and it was a question for  42 argument as to whether this was history, whether it  43 was bad history, good history, the weight to be given  44 it at the end of the day in the scheme of things.  And  45 I think, my lord, the debate as to whether it's  46 mythological, the debate as to whether it is real  47 history, as your lordship imagines real history to be, 1939  Submission by Mr. Jackson  1 and I say that not disparagingly, but in terms of  2 someone like myself who has a view of what history  3 looks like, at the end of the day hopefully informed  4 by more evidence that issue will have to be addressed.  5 My submission is that it is not an issue which should  6 be addressed at the stage of admissibility of the oral  7 history.  That should be a question of does the  8 evidence meet the legal tests, and is it relevant.  9 And that, it seems to me, is the compass within which  10 the debate and the disputation should take place.  11 My lord, in an attempt to suggest to your lordship  12 that what you have heard, and what you will hear as I  13 say to a limited extent is real history, are facts of  14 history properly admissible.  I would also refer your  15 lordship to the second authority, and this is an  16 American historian, Professor Kamada (phonetic), who's  17 an eminent American historian, and a collection of  18 essays on the nature of history, philosophy of history  19 and under the title of an essay Is There a 'Philosophy  20 of History', and I'm quoting here from page 307.  21 THE COURT:  I'm sorry.  Page 307?  22 MR. JACKSON:  307.  23 THE COURT:  Yes.  Thank you.  2 4 MR. JACKSON:  25 "In a broad way we can discern two persistent and  26 overarching uses history from the beginning of  27 that study to our own time."  28  29 I notice just by way of parenthesis, my lord, Mr.  30 Goldie at one point took some objection to the use of  31 the word overarching.  I don't know whether you can  32 attribute --  33 MR. GOLDIE:  I still do.  34 MR. JACKSON:  This may be the author.  35 THE COURT:  I've never known what it meant.  36 MR. GOLDIE:  That was my objection.  37 THE COURT:  It's used all the time.  It's one of the those words  38 gaining great --  39 MR. JACKSON:  My friend suggested perhaps you have to be an  40 American to understand.  41  42 "In a broad way we can discern two persistent and  43 overarching uses history from the beginning of  44 that study to our own time.  The first and  45 incomparably the longest, the largest, the most  46 distinguished, is that which we associate with  47 Dionysius of Halicarnassus and with Bolingbroke: 1940  Submission by Mr. Jackson  1 It is that history is philosophy teaching by  2 examples.  The second, which has had champions for  3 some centuries and which is very much in the  4 ascendancy in the past century, is history as the  5 scientific and comprehensive reconstruction of the  6 past."  7  8 Now, I jump to the next paragraph, my lord, and  9 starting with;  10  11 "Let us then consider what has been the prevalent  12 and persistent use of history: history as  13 philosophy teaching by examples.  This was the  14 argument of Thucydides and of Tacitus, Plutarch  15 and Livy.  'What chiefly makes the study of  16 history wholesome and profitable,' says Livy, 'is  17 this, that you behold the reasons of every kind of  18 experience set forth as on a conspicuous monument;  19 from these you may choose for yourself and for  20 your own state to imitate, from these marks for  21 avoidance what is shameful in the conception and  22 shameful in the result.'"  23  24 The bottom of the page starting with the  25 paragraph;  26  27 "The purpose and end of history was to discover  28 those grand moral laws that man should know, and  29 knowing, obey.  This was the search that sent the  30 great eighteenth-century historians back to the  31 Ancient World and persuaded them to reflect on the  32 rise and decline of empires; this was what  33 persuaded them to study the Orient, Europe,  34 America, and even the islands of the Pacific.  All  35 particular histories were like tributaries, each  36 one carrying its own sediment of truth, pouring it  37 into the main stream of history, where the  38 historians could dredge it up."  39  40 My lord, it is our submission that the oral  41 histories of the Gitksan and the Wet'suwet'en are also  42 tributaries of truth which if they are artificially,  43 and on your own lordship's own analysis, arbitrarily  44 dammed or diverted will be reduced to rivulets of  45 disconnected facts without significance, without  46 coherence.  And it is our submission that in the  47 exercise of judicial policy in determining what are 1941  Submission by Mr. Jackson  1 facts of history your lordship should not direct  2 judicial policy to that end.  3 Now, the only other reference to a professional  4 historian which I think might be of help to your  5 lordship, and I got this book the other day, my lord,  6 in a second-hand book story.  I must say I had not  7 read it before, and that probably is a fault on my  8 part, but your lordship may be interested in it.  It  9 is entitled What is History.  It's by Professor Carr,  10 and it was delivered as the Trevelyan Lectures at the  11 University of Cambridge in 1961.  And this is what  12 Professor Carr says, and at page 12 this is the  13 reference to which I averted to sometime ago, my lord,  14 as one in which it seems historians do much the same  15 thing as Professor Wigmore suggests we as lawyers and  16 yourself as a judge must do in determining whether  17 evidence is -- whether facts are real facts or  18 something less.  Page 12.  19  20 "Let us take a look at the process by which a mere  21 fact about the past is transformed into a fact of  22 history.  At Stalybridge Wakes in 1850, a vendor  23 of gingerbread, as a result of some petty dispute,  24 was deliberately kicked to death by an angry mob.  25 Is this a fact of history?  A year ago I should  26 unhesitatingly said 'no'.  It was a recorded by an  27 eye witness in some little known memoirs; but I  28 have never seen it judged worthy of mention by any  29 historian.  A year ago Dr. Kitson Clark cited it  30 in his Ford lectures in Oxford.  Does this make it  31 into a historical fact?  Not, I think, yet.  Its  32 present status, I suggest, is that it has been  33 proposed for membership of the select club of  34 historical facts.  It now awaits a seconder and  35 sponsors.  It may be that in the course of the  36 next few years we shall see this fact appearing  37 first in footnotes, then in the text, of articles  38 and books about nineteenth-century England, and in  39 that twenty or thirty years' time it may be a  40 well-established historical fact.  Alternatively,  41 nobody may take it up, in which case it will  42 relapse into the limbo of unhistorical facts about  43 the past from which Dr. Kitson Clark has gallantly  44 attempted to rescue it.  What will decide which of  45 these two things will happen?  It will depend, I  46 think, on whether the thesis or interpretation in  47 support of which Dr. Kitson Clark cited this 1942  Submission by Mr. Jackson  1 incident is accepted by other historians as valid  2 and significant.  Its status as a historical fact  3 will turn on a question of interpretation.  This  4 element of interpretation enters into every fact  5 of history."  6  7 Now, my lord, as I read that it seemed to me that  8 what Professor Carr was referring to was a process of  9 sifting, of requiring validation, confirmation,  10 authentication of a fact by a peer group who are in a  11 position to comment, to dispute, to do further  12 research on the issue.  That seems to me to parallel  13 very closely the kind of process of disputation which  14 goes on in the development of Indian oral history.  It  15 is not every fact about the past which finds its way  16 into the Indian oral history.  It is only those which  17 are charged with a special significance, which have  18 been assented to by members of the community not only  19 in one generation, but over many generations.  And it  20 seems that is the hallmark therefore not only of the  21 legal test, it's the hallmark of what historians  22 themselves view as the facts of history.  23 THE COURT:  The authentication, it surely doesn't mean that  24 history rests in the pen of those who write it.  2 5    MR. JACKSON:  I would hope not, my lord.  26 THE COURT:  No.  The authentication or the acceptance of that  27 fact as a historical fact will depend upon the  28 interpretation historians and persons of good repute  29 place upon the source of the information.  They will  30 be looking at the record.  It was recorded by an  31 eye-witness in some little known memoirs.  Now, surely  32 the weight put upon those memoirs will decide whether  33 that fact emerges as a historical fact or as a  34 forgotten and unfortunate incident within the last  35 century.  What's the parallel here?  It seems to me  36 that the parallel here is that one has to look at the  37 chain of repetition and form an entirely subjective  38 assessment, does one not?  39 MR. JACKSON:  Well, my lord, I think Professor Carr's thesis as  40 he develops it is that the question of interpretation  41 which he articulates as the key issue for  42 historians --  4 3    THE COURT:  Yes.  44 MR. JACKSON:  -- In recording the past is one which is very much  45 informed by who they are as much as the source of the  46 original material which they review, and he has  47 something to say about this point as to how does a 1943  Submission by Mr. Jackson  1 historian exercise his process of interpretation to  2 create history as opposed to the reconstruction of the  3 past in ways which lack the coherence of history.  And  4 the last piece I want to refer you to is on page 24.  5 I think it addresses your lordship's point to some  6 extent.  And as I said the question here is one of how  7 one interprets the facts as they come to you.  And in  8 that context you'll see at the top of page 24 he is  9 dealing with his second point.  The first point, and  10 perhaps I should have given this passage to your  11 lordship, but on page 22 his first point is that;  12  13 "In the first place the facts of history never come  14 to us pure since they do not and cannot exist in a  15 pure form.  They are always refracted through the  16 mind of the recorder."  17  18 Now, having made that point he continues.  19  20 "The second point is the more familiar one of the  21 historians' need of imaginative understanding for  22 the minds of the people with whom he is dealing,  23 for the thought behind their acts:  I say  24 'imaginative understanding', not 'sympathy', lest  25 sympathy should be supposed to imply agreement.  26 The nineteenth-century was weak in medieval  27 history, because it was too much repelled by the  28 superstitious beliefs of the Middle Ages, and by  29 the barbarities which they inspired, to have any  30 imaginative understanding of medieval people.  Or  31 take Burckhardt's censorious remark about the  32 Thirty Years War: 'It is scandalous for a creed,  33 no matter whether it is Catholic or Protestant, to  34 place its salvation above the integrity of the  35 nation.  It was extremely difficult for a  36 nineteenth-century liberal historian brought up to  37 believe that it is right and praiseworthy to kill  38 in defence of one's country, but wicked and  39 wrong-headed to kill in defence of one's religion,  40 to enter into the state of mind of those who  41 fought the Thirty Years War."  42  43 He then goes on to deal with his own work in terms  44 of the Soviet Union and concludes -- perhaps I should  45 read it as a point of some importance.  46  47 "Much of what has been written in English-speaking 1944  Submission by Mr. Jackson  1 countries in the last ten years about the Soviet  2 Union, and in the Soviet Union about the  3 English-speaking countries, has been vitiated by  4 this inability to achieve even the most elementary  5 measure of imaginative understanding of what goes  6 on in the mind of the other party, so that the  7 words and actions of the other are always made to  8 appear malign, senseless, or hypocritical.  9 History cannot be written unless the historian can  10 achieve some kind of contact with the mind of  11 those about whom he is writing."  12  13 Now, my lord, what this suggests to me, and I  14 submit it for the consideration of the court, is that  15 interpretation, as I say it goes to the question of  16 how you exercise your judgment as to the policy of  17 what is history and what is not, interpretation is  18 critical to the process of understanding what are  19 facts of history.  And an understanding of what goes  20 on in the minds of the people whose society you are  21 analyzing is critical to avoid distortion, nay  22 exclusion of the facts of their history.  23 My lord, in our opening statement we addressed a  24 number of challenges to your lordship, and we suggest  25 that those challenges speak to the need for  26 imaginative understanding of the kind Professor Carr  27 mentions.  And I just want to refer you to one short  28 passage in our opening in which appears at page 93 in  29 which we said.  30  31 "The difficulty we in the western tradition have is  32 seeing the nature of facts in another different  33 kind of cultural arrangement.  If one culture  34 refuses to recognize anothers facts in the other  35 culture's terms then the very possibility of  36 dialogue between the two is drastically  37 undermined. The challenge that this court..." --  38  39 THE COURT:  That's true for dialogue, Mr. Jackson, but are we  40 concerned with dialogue here?  41 MR. JACKSON:  Well, my lord, it was framed in that way in the  42 opening.  4 3    THE COURT:  Yes.  44 MR. JACKSON:  And I am prepared to reframe it for the purpose of  45 the submission in terms of the admissibility of  4 6 evidence.  47 1945  Submission by Mr. Jackson  1 "The challenge for this court is understanding the  2 nature of Gitksan and Wet'suwet'en validation of  3 facts, and accepting Gitksan and Wet'suwet'en  4 history as real is part of the court's task in  5 treating Gitksan and Wet'suwet'en societies as  6 equals, and we submit that adopting a view of  7 history which seeks to separate the way your  8 lordship does based upon a line of the assessment  9 your lordship brings to its mythological or  10 supernatural quality is not well calculated to  11 provide the court with the evidentiary basis which  12 it needs to resolve these complex and contentious  13 issues."  14  15 My lord, I wish to end this submission -- you'll  16 be conscious of the fact I referred to a European  17 historian -- in fact, two European historians, both of  18 whom I think are English, and an American historian.  19 THE COURT:  I agree.  20 MR. JACKSON:  It seems appropriate that we should have some  21 authoritive information from Canadians, and in  22 searching for something which I could place before  23 your lordship to form your lordship's judgment I  24 decided that the most appropriate thing was to use the  25 writings of the man who is well-known to your lordship  26 in his public capacity, Mr. Bill Reid, who's a man of  27 letters, who is a historian, who is a great artist  28 whose works adorn the public buildings in Vancouver,  29 and I'm sure your lordship has seen them.  I find that  30 he too has addressed this issue.  And he has addressed  31 it not from Professor Carr's position, not from the  32 perspective of European or American historians, he's  33 addressed it from the Indian perspective.  And I  34 commend what he says, my lordship.  And it's in a  35 volume entitled Indian Art of the Northwest Coast, and  36 in the prolog to it Mr. Reid in a sense throws a  37 challenge, and it is not unlike the challenge which we  38 urge your lordship to grasp and to wrestle with, and I  39 think your lordship is seeking to do that.  Mr. Reid  40 gives, as it were, an Indian perspective on what is  41 history.  42  43 "In the world today, there is a commonly held  44 belief that, thousands of years ago, as the world  45 today counts time, Mongolian nomads crossed a land  46 bridge to enter the western hemisphere, and became  47 the people now know as the American Indians. 1946  Submission by Mr. Jackson  1 The truth, of course, is that the Raven found our  2 forefathers in a clamshell on the beach at Naikun.  3 At his bidding, they entered a world peopled by  4 birds, beasts and creatures of great power and  5 stature, and, with them, gave rise to the powerful  6 families and their way of life.  7  8 At least, that's a little bit of the truth.  9  10 Another small part of it is that, after the flood,  11 the Great Halibut was stranded near the mouth of  12 the Nimkish River where he shed his tail and fins  13 and skin, and became the first man.  Thunderbird  14 then took off his wings and beak and feathers to  15 become the second man, and helped Halibut build  16 the first house in which mankind spent his  17 infancy.  18  19 And the Swai-huay rose out of the Fraser.  Needing  20 a wife, he created a woman from the hemlock on the  21 bank, and she, in time, gave birth to the children  22 who became the parents of all men.  23  24 There is, it can be said, some scanty evidence to  25 support the myth of the land bridge.  But there is  26 an enormous wealth of proof to confirm that the  27 other truths are all valid.  28  29 We invite you see some of this proof - some of  30 this wealth."  31  32 Now, my lord, we also invite you through the  33 vehicle of your draft reasons to take a position that  34 properly authenticated and validated oral history is  35 admissible whether it refers to the events which Mr.  36 Reid refers to, to the events which Mrs. Johnson, Mrs.  37 McKenzie and Mrs. Ryan refer to, and if it meets that  38 test it is admissible.  We come at the end of the day  39 to a question of arguments, a question of weight, but  40 we submit that it is a mark of this court's respect  41 for the Gitksan and Wet'suwet'en societies as equals  42 that at this point in time their properly  43 authenticated -- not simply their say so, but their  44 properly authenticated history is accepted in evidence  45 as history.  46 THE COURT:  I'm sorry.  What do you mean by properly  47 authenticated? 1947  Submission by Mr. Jackson  Submission by Mr. Goldie  1 MR. JACKSON:  I'm referring there to the process of being  2 transmitted.  3 THE COURT:  Oh, yeah.  I understand.  4 MR. JACKSON:  It's the process of authentification I'm referring  5 to, my lord.  6 THE COURT:  Yes.  7 MR. JACKSON:  And that is —  8 THE COURT:  Telling and re-telling.  9 MR. JACKSON:  The telling and re-telling before witnesses in a  10 context in which there is an obligation to dispute,  11 before people who are in a position to comment and to  12 confirm, and to as it were put their imprimatur, the  13 imprimatur of the community on this as the authentic  14 history of the people.  15 That is all I had to say at this point, my lord,  16 and perhaps also the only other point that should be  17 made is that your lordship in the reasons does  18 specifically refer to the fact that particular issues,  19 of course, will come up and while we have tried to  20 scan the horizon, so to speak, to see if our trial  21 organization gives rise to particular problems, as we  22 get closer to the details of that it may be that some  23 other issues will present themselves to us and of  24 course we will in a timely fashion advise the court of  25 that and make whatever further submissions may be  26 appropriate.  27 THE COURT:  All right.  Thank you, Mr. Jackson.  Mr. Goldie and  28 Ms. Koenigsberg, are you able to respond to what Mr.  29 Jackson has said now or presumably this afternoon?  30 MR. GOLDIE:  I can do it now, my lord.  I'll be very short.  31 THE COURT:  Well, we have to come back anyway, do we not?  It is  32 12:30.  33 MR. GOLDIE:  I thought it was 28 minutes after, and that might  34 leave me time.  35 THE COURT:  If we have to come back anyway should we not do it  36 at two o'clock?  37 MR. GOLDIE:  I'm content, my lord.  38 THE COURT:  Yes.  Thank you.  39 THE REGISTRAR:  Order in chambers.  Chambers stands adjourned  40 until two o'clock.  41  42       (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING LUNCHEON RECESS)  43  44 THE REGISTRAR:  Delgamuukw against her Majesty the Queen, my  45 lord.  4 6 THE COURT:  Mr. Goldie.  47 MR. GOLDIE:  My lord, I understood Mr. Jackson to have made two 1948  Submission by Mr. Goldie  1 submissions.  First, that the distinction which  2 appears at page 11 of your draft reasons ought not to  3 be made.  That is to say the distinction between what  4 he described as historical fact and anecdotal.  The  5 second submission I understood him to make was a more  6 generalized submission on the nature and admissibility  7 of oral history.  8 My lord, I agree with him with respect to the  9 first.  As to the second it is largely irrelevant at  10 this stage and is better directed to the argument at  11 the end of the trial as to the weight to be given oral  12 history.  Your lordship has already stated that oral  13 history of a people based upon successive declarations  14 of deceased persons may be given in evidence, so I  15 take it that that issue is going to be one that will  16 be dealt with on a case by case basis.  17 The reason that I agree with Mr. Jackson's  18 submission on the first point is that in my submission  19 your lordship ought to have the assistance of experts  20 such as anthropologists who have made a study of  21 societies in which oral history is a feature, and who  22 are able to be of assistance when it comes to the  23 question of determining the reliability and  24 trustworthiness.  In my submission the evidence  25 tendered as oral history ought to be received on a  26 reserved basis so that the final submissions can be  27 made in the light of all of the evidence.  28 Now, the distinction that your lordship was  2 9 grappling with may have to be made at some point.  My  30 submission is that it shouldn't be made now.  To make  31 it now might result in the exclusion of evidence which  32 ought for some other reason perhaps or for some other  33 purpose be admitted.  I referred to that in the  34 submissions I made during the course of the trial.  35 The narrow point that we are talking about here is  36 admissibility as an exception to the hearsay rule, and  37 of course if something is admitted as an exception  38 then it is proof of the truth of the matters therein  39 asserted.  That's the narrow point.  And with respect  40 to that I say that the distinction which your lordship  41 makes ought not to be made now for the reason that I  42 gave.  43 In the end some, all or none of the oral history  44 may be admitted.  I think with respect to Mr. Jackson  45 that he has overlooked to some extent the problem of  46 the result of admitting evidence as an exception to  47 the hearsay rule.  Your lordship noted at page 11 of 1949  Submission by Mr. Goldie  1 your reasons, and the last two lines would not be, and  2 I'm quoting, "Would not be admissible, at least not  3 under this head."  That implies for me that there may  4 be issues of admissibility finally decided in the  5 light of experts' assistance which let it in not as  6 proof of the matters therein stated, but as proof of  7 the existence of a belief.  8 Now, it is not a question of treating the history  9 of the Plaintiffs on a different footing than the  10 history of other peoples.  There is, I say with  11 respect, nothing extraordinary about oral history.  It  12 is not unique.  It has been dealt with in other  13 situations.  But we are not dealing with the  14 admissibility of history generally.  A written history  15 is no more admissible as an exception to the hearsay  16 rule than an oral history if the tests in the case of  17 the written history of primary evidence or best  18 evidence, in the case of oral history the tests of  19 reliability and trustworthiness are met.  So the  20 examples that my friend was using, which I take it to  21 be in support of what I call his generalized  22 submission on the admissibility of oral history, are  23 at this stage of the game not particularly helpful.  24 In the end all of this is going to have to be tested  25 according to necessity and trustworthiness.  It will  26 either be in part or whole or not at all.  Your  27 lordship will have had the advantage of experts'  28 assistance to determine whether there is a distinction  29 to be made in part of the oral history, or whether it  30 all goes in and if so for what purpose.  My submission  31 at this point is at this point the distinction made is  32 premature.  33 THE COURT:  Mr. Goldie, you say then there is no limit on what  34 can be adduced under the rubric of historical  35 evidence?  36 MR. GOLDIE:  Oh, I do.  I do.  But if it is tendered as oral  37 evidence I think it ought to be accepted subject to  38 objection.  39 Your lordship has not yet heard, and I'm sure the  40 Plaintiffs' experts are going to have to address this,  41 of how oral history has been dealt with in the study  42 of other societies.  There are books written about  43 this.  The issue of what is -- what will satisfy the  44 question of trustworthiness is not one which in my  45 submission can be adequately dealt with at this time.  46 Necessity, yes.  That is clear and was dealt with in  47 the Malerpin (phonetic) case. 1950  Submission by Mr. Goldie  1 THE COURT:  No problem about necessity.  2 MR. GOLDIE:  But it is primarily the question of trustworthiness  3 and reliability.  4 THE COURT:  Is there not another question entirely, and that is  5 it history?  Is that not an issue that has to be dealt  6 with at this point, otherwise it seems to me that it's  7 open ended.  There is no limit to what a witness can  8 be asked and no limit upon which the matter can be  9 kept within reasonable bounds except of course the  10 responsibility of counsel.  Is that the only test?  11 MR. GOLDIE:  Yes.  I would sooner have more let in to be thrown  12 out later than to exclude something at this stage  13 which should have been let in.  14 THE COURT:  Of course that's the same with every rule of  15 evidence.  It seems to me that's common to all legal  16 problems.  17 MR. GOLDIE:  There are some things which appear immediately.  18 The man who says he went through a red light, how do  19 you know, because somebody who had his back turned to  20 the intersection told me so.  But when we are talking  21 about oral history it may not appear, not just at the  22 end of the cross-examination, but it may not appear  23 until there has been evidence with respect to the  24 nature of this society generally that this is going to  25 meet the test of trustworthiness and reliability.  26 THE COURT:  I would have no problem with that submission or that  27 proposition at all if I could be satisfied on the  28 question of what is it that we are dealing with.  We  29 are dealing with history.  And what I'm struggling to  30 find is whether there is a definition that has to be  31 met before you get to this question of conditional  32 acceptance dependent upon trustworthiness and being  33 established at a later date in light of all the  34 evidence.  But you and Mr. Jackson seem agreed that  35 there is no threshold requirement.  36 MR. GOLDIE:  I don't think there is an objectively defined  37 threshold requirement.  And your lordship will  38 appreciate when I say objectively defined one that  39 permits one to put a template or a blueprint up  40 against it.  I think that will become more evident as  41 we go along.  I'm making an assumption based on the  42 reading that I have done that there will have to be  43 developed evidence through such people as  44 anthropologists of how they have evaluated what we  45 here call oral history, but I don't think it can be  46 done in a completely objectively defined way.  47 THE COURT:  All right.  Well, that's very helpful.  Thank you. 1951  Submission by Ms. Koenigsberg  1 Ms. Koenigsberg.  2 MS. KOENIGSBERG:  I don't know if I can throw any more light on  3 it, my lord, other than to say this.  I think perhaps  4 the hallmark of the test is for what purpose is the  5 oral history or story tendered, and it's at that point  6 that one runs into the difficulty that I perceived  7 your lordship to have as you put on page 11 when you  8 contrast what I could call the more traditional  9 historical evidence in the adaawk that was being told  10 from that which we would otherwise think of as  11 mythical.  12 I agreed with my friend Mr. Jackson almost  13 completely until he got to the part where he said that  14 the supernatural or myth could be tendered, and he  15 listed a series of purposes and one of the purposes I  16 understood him to say was to prove that the  17 supernatural event took place.  And it's at that point  18 that I have difficulty with its admission, never mind  19 its weight.  In my submission it is not admissible for  20 the truth of it.  It is, however, and this is the  21 difficulty in the way in which I believe we are posing  22 the question, it may I should say be admissible for a  23 myriad of other purposes, and I think that's  24 illustrated by the kinds of analysis that Mr. Jackson  25 was alluding to.  Even if you look at the excerpt from  26 Wigmore that we were looking at at tab 5 dealing with  27 historical evidence the matter must be of general  28 interest, and it refers to;  29  30 "When a treatise on history is offered as embodying  31 a reputation of the community upon the fact in  32 question the treatise in the first place cannot be  33 regarded as more than the statement of the  34 individual author unless it is a work so widely  35 known, so long used and so highly respected that  36 it could be said to represent the assenting belief  37 of the community."  38  39 And it's that treatment of history and its  40 admissibility in a courtroom, it doesn't go usually to  41 proving a specific legal point but rather it will --  42 it will make it in and be admissible because it  43 represents a reputation and meets that test.  And the  44 kind of evidence we are talking about may very well go  45 to beliefs in the community.  They may be relevant to  46 proving the kinds of things that the Plaintiffs have  47 set for themselves to prove, such as the origins of 1952  Submission by Ms. Koenigsberg  1 their laws, and the time depth, if you will, of their  2 laws.  And each myth or legend may or may not be  3 relevant to demonstrating those concepts.  4 THE COURT:  Why can't I be — why can't the witnesses tell me  5 what their beliefs are, if that's the point, without  6 going into the possibly doubtful authenticity of the  7 underlying facts.  Why do I have to get into all the  8 underlying facts which may not meet the test of  9 trustworthiness.  Every people has a Baron von Clauss  10 in his closet, or every people has some good  11 historians and some bad historians.  Why do I have to  12 get into the underlying or the perceived or believed  13 underlying facts, if these are beliefs?  14 MS. KOENIGSBERG:  I think the reason that it's very difficult to  15 draw the line at this point, and why I would support  16 Mr. Goldie's submission that it is simply too  17 difficult at this point to rule out any particular  18 evidence, is because it isn't necessarily only  19 relevant to prove what I'll call the mythological  20 evidence, is not necessarily only relevant to prove  21 the truth that there really was a giant grizzly bear  22 with super kind of supernatural powers who did certain  23 things, and one can't really think -- I don't wish to  24 get into that particular example.  For instance, I  25 understand what your lordship is saying.  For instance  26 when Mr. Jackson used the illustration of Moses I  27 could follow him up to a certain point, but one could  28 prove if one had the task of proving the origin of  29 Jewish law one might make reference to a journey in  30 Sinai, one might make reference to a number of things,  31 but it would be in my submission irrelevant in proving  32 the origins of the laws of the Jewish people.  Whether  33 they believed that God or some supernatural being  34 handed the tablets to Moses, and that has nothing in  35 my submission to do with whether there are Jewish laws  36 and their antiquity.  37 THE COURT:  Or what they are.  38 MS. KOENIGSBERG:  But certain things about the antiquity of  39 those laws might be relevant, as it is in fact in my  40 submission in an aboriginal rights case.  How old up  41 to a certain point laws are to the Plaintiffs' case,  42 as I understand they're pleading it, is relevant, and  43 so a legend may or may not contain evidence which an  44 expert would be able to assist your lordship in  45 evaluating to give it some sense of time, for  46 instance.  And the difficulty is in determining that  47 beforehand.  And so then we're put in the position of 1953  Submission by Ms. Koenigsberg  Submission by Mr. Jackson  1 perhaps excluding evidence which in fact could be  2 given interpretive meaning, and it has also, I might  3 say, the difficulty for -- it poses a somewhat minor  4 difficulty for the defence, and that is that it is  5 better and easier to test that evidence as it goes  6 through the actual Indian speakers than it is to hear  7 it only after it's been interpreted by an expert who  8 will be brought into the court to interpret it.  And  9 in my submission I shouldn't like to be left with only  10 being able to test it at what will be at best third  11 hand as opposed to the court having heard the evidence  12 from the witness who is the authority as the carrier  13 of that story, and then the interpretation which in my  14 submission is the methodology of the anthropologist,  15 if that is the expert, as they apply it to that  16 evidence.  But I say I wouldn't wish at this point to  17 get into what might be my interpretation of an adaawk  18 and how one could argue that it gives us some evidence  19 for testing time.  But certainly when I think of  20 things that I know more about in history I can  21 certainly see the relevance.  But it is interpretive,  22 my lord, and it doesn't make it a fact.  And in my  23 submission we do have to worry about the admissibility  24 for saying that it's admissible for the truth of the  25 supernatural event, then in my submission I would  26 object.  But I understand that we can leave all of  27 that to argument at the end, and where it -- if it  28 should ever matter that it was meant for the truth of  2 9 it we can have argument on it at that time.  30 THE COURT:  All right.  Thank you.  Mr. Jackson.  I'm not sure  31 you've got much to reply to.  32 MR. JACKSON:  No, I don't think I do, my lord.  33 In relation to my friend Mr. Goldie's comments we  34 do not think it's appropriate that the evidence at  35 this stage exist in some kind of legal limbo.  We say  36 for the reasons I have pointed out that the evidence  37 where it meets the common-law tests it ought to go in.  38 I agree with Mr. Goldie that at the end of the day  39 having heard a variety of evidence, having heard from  40 a variety of experts your lordship in the fullness of  41 your judgment will have to decide how much weight it  42 attaches to particular pieces of evidence as that  43 relates to specific heads of the Statement of Claim  44 and the declaration of relief.  And we say that Indian  45 oral history goes in, and is entirely a question of  46 weight at the end of the day and clearly you will be  47 hearing some considerable argument on that. 1954  Submission by Mr. Jackson  1 THE COURT:  Well, it would assist me if you could -- if you  2 could address this question.  How does it prove  3 antiquity for a witness today to say my grandmother  4 told me that something happened, or put it more fairly  5 my grandmother told me that her grandmother told her  6 that something happened many, many hundreds of  7 thousands of years ago.  8 MR. JACKSON:  Well, my lord —  9 THE COURT:  That you — that — the authenticity or the  10 trustworthiness or the reliability of that only goes  11 back one or two generations.  Where it came to beyond  12 that isn't -- doesn't meet any test of trustworthiness  13 at all.  Now, if it does I see much more force to your  14 submission than I am at the moment prepared to  15 concede, although I'm anxious here not to lean on an  16 open door.  I'm not looking for difficulty, but I want  17 to be satisfied that I'm not just opening the door  18 wide open.  Is there any probative force on the time  19 depth question in having the witness not only tell me  20 what she believes based on what she has been told, but  21 to actually go through the details of what somebody  22 said somebody else said happened thousands of years  23 earlier or hundreds of years earlier or not just in a  24 previous generation.  25 MR. JACKSON:  My lord, one of the reasons why we have sought to  26 as it were buttress or support, parallel perhaps is a  27 better word, the Indian evidence of oral history by  28 other evidence, and I referred to on a number of  29 occasions to the archeological work, and work which  30 seeks to put a time dimension to the madeek adaawk,  31 one of the reasons for that is in a sense to give you  32 assistance with reference points so in the full sweep  33 of history you have a sense -- Mrs. Johnson alluded to  34 this when she was asked what do you mean in the  35 ancient times, and she used a word for that.  There  36 are, as I've mentioned, oral histories which speak to  37 a more recent past, and in some sense you have to hear  38 more evidence before your lordship I think will have a  39 sense of the ability of Indian witnesses as it were to  40 separate out into time periods not with the kind of  41 accuracy that it was in 1762 --  42 THE COURT:  Yeah.  43 MR. JACKSON:  -- Which, of course, would be a very nice  44 coincidence before the world proclamation.  We have  45 not been able yet to have an Indian witness pinpoint  46 with the precision we would like certain critical  47 points in history, nor do we expect to do so.  But it 1955  Submission by Mr. Jackson  1 is not that kind of measure or precision which I think  2 is the test of probity.  I agree with Mr. Goldie to  3 this extent, that expert evidence I think will inform  4 your lordship on the extent to which Indian societies  5 which do not have written cultures, there is an  6 imperative if people are to remember what has gone on,  7 there is an imperative to develop techniques, to  8 develop experts, to develop custodians whose duty it  9 is, and who are appointed to perform that duty.  And  10 in many ways the hereditary chiefs are the prime  11 examples of that.  I think you can find in the  12 evidence already, particularly in terms of Mrs.  13 McKenzie, the demonstration of obligations imposed on  14 individuals at a very young age to receive  15 information, and it is that kind of obligation imposed  16 in the context of a society which has to keep alive  17 that which it wishes to carry forward in collective  18 remembrance that I think provides some of the basis  19 for confidence.  20 THE COURT:  I suppose to put it another way you'd say, Mr.  21 Jackson, that I should read Chief Justice Dixon's  22 comment that oral history can be proven, I should read  23 that as being oral -- orally preserved cultures can be  24 proven.  25 MR. JACKSON:  I think that's a more appropriate way to look at  26 it.  27 THE COURT:  You would suggest -- or you would suggest that I'm  28 wrestling with a false concept when I -- when I try  29 to -- or when I ask myself what is history.  You say  30 that's not the point.  31 MR. JACKSON:  I think the question is, my lord, when you ask  32 what is history it gets down to really a different  33 question.  Through whose perspective do you judge what  34 is history.  I think what we are asking you to do is  35 to recognize that perspectives may be different.  If  36 for example we go back to the madeek, my lord, if we  37 were there together however many years ago it was and  38 we observed whatever it was that happened I suspect  39 the two of us might well think that what it was was a  40 land slide.  The Gitksan view, their account of what  41 happened is different.  In some ways the common  42 denominator is that if either you or them sought  43 insurance damage for what happened we would both be  44 met with a common answer of an act of God.  I suspect  45 that demonstrates that at least at some levels there  46 are some common assumptions here.  The question is one  47 of interpretive imagination as to what is history. 1956  Submission by Mr. Jackson  Submission by Ms. Mandell  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  And what we are asking you to do is to accept where  Indian people come forward with a process for  preserving their recollections of those events which  are memorable and have demonstrated through a test of  fire, as it were, whether in the feast hall or  elsewhere the ability to survive that should come in.  A wait another day as to how you evaluate that  evidence in terms of the claims in light of other  evidence you may hear, whether it's evidence from our  experts or evidence from the Defendant Crown's  evidence.  THE COURT:  All right.  Well, I have an understanding of what  you've been saying, and I will give it some further  consideration.  I can say now that I'm almost certain  that I will be persuaded to broaden the ambit of  admissibility somewhat.  Whether I'll go quite as far  as counsel urge is a matter I want to think about.  I'm partly troubled.  I suppose I shouldn't be too  troubled, but I'm troubled in what judges in  subsequent cases will say about me if I impose this  burden on them, because there are other cases pending  and I think we have to try and keep things within some  reasonable bounds, and I'm just at the moment more  troubled by that than I am by anything else that I've  heard.  It's contrary to conventionalism to have no  rules, no limits.  We are almost at that stage.  It  seems to me I have to see -- at least I want to give  it some thought before I open the doors wide, but I  promise it to be a most useful exercise, and one for  which I'm most grateful, and I'll let you have  something as quickly as I can.  Thank you.  All right.  MR. RUSH:  My lord, there was the question of the  interrogatories.  THE COURT:  Yes.  MR. RUSH:  And Miss Mandell will address you.  THE COURT:  All right.  Whose interrogatories are we arguing  about, Miss Mandell?  MS. MANDELL:  Well, my lord, we begin by arguing with respect to  the interrogatories which were delivered by the  Plaintiffs to the Federal Defendant and their answers  with respect to those, and there's also a motion which  I understand that my friend Ms. Koenigsberg will be  addressing where interrogatories which were delivered  by the Federal Defendant to the Plaintiffs were also  answered, and there are questions which are at issue  with respect to those answers.  THE COURT:  All right.  This is — is this your notice of 1957  Submission by Ms. Mandell  1 motion?  2 MS. MANDELL:  This is our notice of motion.  3 THE COURT:  Dated the 2 6th?  4 MS. MANDELL:  Yes.  5 THE COURT:  Incidently, would it be helpful if I made an order  6 that Vancouver and Smithers could both be registries  7 for filing?  8 MS. MANDELL:  Yes.  9 THE COURT:  Do you want me to make that order?  Do you want to  10 think about it?  11 MS. MANDELL:  That's what we have been doing.  12 THE COURT:  All right.  I notice yours is filed in Smithers.  13 MS. MANDELL:  We were still up there.  14 MS. KOENIGSBERG:  We were in Smithers at the time, my lord.  15 THE COURT:  Yes.  I suppose motions can be filed here now, can't  16 they?  17 MR. RUSH:  The practise of the parties is we have been filing in  18 the two registries.  19 THE COURT:  All right.  20 MR. RUSH:  I don't think there is any real objection.  21 THE COURT:  Let's leave well enough alone then.  Thank you.  All  22 right, Miss Mandell.  23 MS. MANDELL:  My lord, I'm going to deal with the notice of  24 motion on the affidavit.  There's a number of  25 questions which the Plaintiffs have asked of the  26 Federal Defendant for answers.  In summary, my lord,  27 you'll find within the affidavit filed by Peter  28 Grant —  2 9 THE COURT:  Yes.  30 MS. MANDELL:  — Dated the 26th of June, that there's two sets  31 of interrogatories which are contained within that  32 affidavit.  The first is a fairly lengthy set of  33 interrogatories which you'll find at the beginning of  34 the -- at the beginning of the enclosures of Exhibit  35 A.  3 6 THE COURT:  Yes.  37 MS. MANDELL:  And the second document is the second set of  38 interrogatories which were -- which were filed which  39 is marked Exhibit B.  4 0 THE COURT:  Yes.  41 MS. MANDELL:  Following that is a letter from Ms. Koenigsberg to  42 myself of April 15th where -- this is in respect to  43 the first set of interrogatories.  She is indicating  44 the answers which will be declined to be granted for  45 the reasons.  And then following that there are the  46 answers to the first set of interrogatories, that's  47 marked Exhibit D, which the Federal Government 195?  Submission by Ms. Mandell  1 provided.  2 THE COURT:  D is answers to A?  3 MS. MANDELL:  That's right.  D is answers to A.  And then  4 there's an affidavit of Gus Jaltema, which is Exhibit  5 E, and those are answers to Exhibit B.  6 Now, if you can, my lord, follow with me I'm going  7 to essentially be referring to Exhibit A and Exhibit D  8 for the first part of the submission.  I'll be  9 referring first to the question and then to the  10 answers.  11 THE COURT:  Yes.  All right.  12 MS. MANDELL:  My lord, the first set of objections, if I can  13 state it in a single -- in a single sentence, there  14 were a number of questions to which the Federal  15 Government responded which the answers were not given  16 by way of admissions of fact or in any way statements  17 of fact, but rather what was provided was essentially  18 source reference material as from as specific as  19 answers to discoveries to as general as you'll find  20 that answer somewhere in the Hudson Bay archives.  And  21 I'd like to take you through those questions and  22 answers.  It's our submission with respect to this  23 whole range of answers that they're inadequate as  24 failing to provide any admissions of fact or any basis  25 upon which the Plaintiff could understand better the  26 basis for the denials which were given in the  27 Statement of Defence.  28 I might mention prior to beginning this point,  29 although I haven't referred to it in the -- in the  30 book of authorities, that before Mr. Justice Dohm on  31 February 6 the Plaintiffs and the Province were at  32 that time discussing the range of answers which ought  33 to be given with respect to examinations for  34 discovery, and at issue the Province for at least some  35 of the questions had refused to answer on the basis  36 that the questions were asking to probe denials.  And  37 Mr. Justice Dohm agreed with the Plaintiffs that it  38 was proper to probe denials.  And I'm going to read to  39 you the section of his judgment.  It's not entirely  40 inclusive of all the issues of denials, but the issue  41 was broadly canvassed before him.  He said at page  42 five -- I can provide copies of this to my friends and  43 the court.  44  45 "The next area of dispute concerns paragraph 8, 10  46 and 14 of the Crown Provincial's defence.  Those  47 paragraphs deal with denials and the questioning 1959  Submission by Ms. Mandell  1 by the Plaintiffs' counsel was whether there were  2 any facts known to the Crown Provincial to support  3 the denials and the objection has been taken that  4 you don't have to provide facts to support the  5 denials.  The Plaintiffs argue if there are no  6 facts to support the denials and Crown Provincial  7 is simply putting the Plaintiffs to the strict  8 proof that it ought to say so.  I agree with the  9 Plaintiffs."  10  11 Now, as your lordship is aware the Statement of  12 Defence which is filed by the Crown Federal is largely  13 a statement of denials, and it's on that basis that  14 the Plaintiffs seek to probe through interrogatories  15 the admissions of fact which might be contained  16 therein.  I might say at the outset we have taken out  17 no appointment to examine for discovery the Crown  18 Federal.  We had hoped to avoid it.  It may be that we  19 can.  20 If I can begin, my lord, I'm going to take you to  21 paragraph 4 first of the -- of the interrogatories.  I  22 think rather than to read aloud all of the paragraphs  23 to which I'm going to refer it may be easier, my lord,  24 if I ask you yourself to read the paragraphs as such  25 and then I'll read you --  2 6 THE COURT:  Yes.  All right.  27 MS. MANDELL:  -- the answers and make my arguments thereafter.  2 8 THE COURT:  What is it you want me to read?  29 MS. MANDELL:  Paragraph 4.  30 THE COURT:  Of page two?  31 MS. MANDELL:  Of the questions on page two.  32 THE COURT:  Yes.  33 MS. MANDELL:  And then the answer is found on Exhibit D,  34 paragraph 2.  35 THE COURT:  Yes.  36 MS. MANDELL:  And we say that it's not enough to tell us that  37 there's going to be reliance on the anthropological  38 notes and publications of Mr. Barbeau and the evidence  39 of the Plaintiffs at discovery and taken at  40 commission.  Those are the sources which my friend  41 will draw whatever conclusions or admissions of fact  42 which might support the denial, but we say that it's  43 insufficient to simply draw us to a broad range of  44 anthropological notes and to the evidence of which  45 Plaintiffs at which discovery or which commission and  46 on what point.  And those we say ought to be provided.  47 My lord, if I could take you to paragraph -- 1960  Submission by Ms. Mandell  1 THE COURT:  This refers back to paragraph 5 of the Statement of  2 Defence?  3 MS. MANDELL:  That's correct.  Would you like a record?  4 THE COURT:  I suppose we don't have the trial record here, do  5 we?  6 MS. MANDELL:  I have a copy.  The Federal Government's defence  7 is at the last tab.  8 THE COURT:  This is the defence of the Provincial Crown.  9 MS. MANDELL:  And the Federal Crown is —  10 THE COURT:  Afterwards.  11 MS. MANDELL:  The last half.  12 THE COURT:  Oh, I'm sorry.  All right.  I have it.  Yes.  All  13 right.  14 MS. MANDELL:  All right.  My lord, if I could ask you to read  15 paragraphs of the interrogatory; paragraphs 5, 11 and  16 24.  All of them are answered by the same response in  17 the Federal answers, and if I could turn you first to  18 the questions.  19 THE COURT:  The questions again are?  20 MS. MANDELL:  Five, 11 and 24.  21 THE COURT:  Five, 11 — yes.  22 MS. MANDELL:  And 24.  2 3 THE COURT:  Yes.  24 MS. MANDELL:  My lord, all of those questions are answered by  25 paragraph 3 of Exhibit D.  2 6 THE COURT:  Yes.  27 MS. MANDELL:  And we say about that to the extent that comments  28 have already been made in terms of the generality and  29 the unreliability of finding out anything from the  30 anthropological notes and the interrogatories and  31 commission evidence which is referred to, when you  32 have references such as the abstracts from the Reserve  33 General Registry, volumes of abstracts, we have no  34 idea where to start or where to finish with a  35 statement such as that.  And F, Indian Band membership  36 lists.  Well, I don't know how that is meant to relate  37 to the fact that there's a denial that the Gitksan  38 share a common territory.  There is no linkage even  39 with what may appear apparent to the Defendant about  40 why this is relevant.  There is certainly no linkage  41 which is apparent to the Plaintiffs as to why that  42 reference ought to disclose any facts which are to be  43 admitted or to be known to us.  4 4 THE COURT:  Yes.  45 MS. MANDELL:  My lord, if I can take you to the next batch of  46 questions.  Prior to moving on, my lord, just for your  47 own record, on Exhibit D answers 7 and 15 will link 1961  Submission by Ms. Mandell  1 questions 11 and 24 to answer 3.  2 THE COURT:  Yes.  All right.  3 MS. MANDELL:  All right.  My lord, the next is the largest body  4 of answers, and I'm going to give you a list of the  5 questions, and my suggestion to this list is that you  6 need not refer to all the questions.  I will refer you  7 to the ones which I think probably illustrate what's  8 being driven by the Defendant, but there are some 16  9 questions which are all answered by paragraph 4 on  10 page two of the answers, and I'll give you the list of  11 those questions.  12 THE COURT:  By paragraph 4 of D?  13 MS. MANDELL:  That's correct.  14 THE COURT:  And the questions again are?  15 MS. MANDELL:  Six, 8, 10, 12, 13, 14, 15, 16, 21, 22, 23, 25,  16 28, 38 and 40.  17 THE COURT:  All right.  18 MS. MANDELL:  All of those questions are set out — I'll refer  19 you perhaps to one of them.  Paragraph 6, on what  20 documents or other facts does the Defendant rely in  21 paragraph 5 of the Statement of Defence in answer to  22 paragraph 52 in the further Amended Statement of Claim  23 to not admit that the Gitksan together share a common  24 language, common laws, common religion, common  25 culture, economy and common authority.  And then  26 question 8 is the same question for the Wet'suwet'en.  27 And question 10 is probing why the Defendants denied  28 that the Plaintiffs owned and exercise jurisdiction  29 over the lands described.  These are right to the  30 heart of the pleadings back and forth.  Question 12  31 happens to probe the denial that the Plaintiffs from  32 time immemorial harvested resources within the  33 territory.  Question 13 is to probe the denial that  34 the Plaintiffs from time immemorial exercised  35 spiritual beliefs within the territory.  Question 14  36 is to probe the denial that the Plaintiffs from time  37 immemorial governed themselves according to their  38 laws.  Question 15, to probe the denial that from time  39 immemorial the Plaintiffs governed their territory  40 according to their laws, spiritual beliefs and  41 practices.  My lord, I could go on through the rest,  42 but you have an example of the kinds of the questions  43 which are being asked and probed.  44 Now, in response to this the Federal answer is  45 this.  Under common language the Plaintiffs' evidence  46 on discovery -- well, I've commented on that.  47 Statements made to this Defendant by present and 1962  Submission by Ms. Mandell  1 former Fisheries officials and Indian Affairs  2 officials.  Now, we say that that's certainly living  3 memory of some statements were made to the Defendant  4 which they know which is illustrative of some facts  5 which they are going to be relying upon, and we ought  6 to be able to know what those facts are.  Under common  7 laws the pleading is the Indian Act and the Fisheries  8 Act.  9 If I could go down to 4, reports by Indian agents.  10 Well, Indian agents have been making reports since the  11 turn of the century.  That's almost a hundred years  12 worth of reports.  13 Under 8, Sessional Papers of British Columbia and  14 Canada.  Well, that's another many, many, many, many  15 volumes of Sessional Papers, and providing British  16 Columbia and Canada it's really a point hardly worth  17 taking that there's going to be something in there  18 relating to a denial that the Plaintiffs exercised  19 ownership.  20 The next one, records held in the archives of the  21 Hudson's Bay Company.  That's a whole library in  22 another province.  23 The discovery and commission evidence of the  24 Plaintiffs.  Answers given by interrogatories.  25 The next, all other Federal or Imperial statutes  26 having application to the Plaintiffs and their  27 ancestors or the claims area.  Another very broad and  28 unspecific admission of fact.  2 9 If I can go down to common economy.  Documents  30 concerning the commercial fishery in coastal waters.  31 Well, that's broad to be impossible even to find a  32 source material reference on that.  33 THE COURT:  That will keep Peter Pearce busy for three or four  34 years.  35 MS. MANDELL:  He's already had quite a bit of time on this.  36 Documents relating to the canneries on the Skeena.  37 Well, I would like to know what those are.  38 Sessional Papers of British Columbia and Canada.  39 That's another volume series.  40 Documents relating to packing.  We don't know even  41 what packing is.  I would be interested to know what  42 that ranges, even the source material for that.  43 Grand Trunk Pacific and Canadian National Railway  44 archival documents and Government of Canada documents  45 relating to the construction of the above - mentioned  46 railways.  47 THE COURT:  All right.  Miss Mandell, can you tell me has — 1963  Submission by Ms. Mandell  1 have your questions been judicially approved or  2 pronounced upon?  3 MS. MANDELL:  These particular questions?  4 THE COURT:  Yes.  5 MS. MANDELL:  Well, my lord, I don't — we haven't taken them to  6 court to ask whether they're proper, but nor then has  7 my friend brought an application under subsection 7 of  8 the Rules to say about them that they're not necessary  9 for disposing fairly of the action.  So the questions  10 themselves have never been put to the test.  Although,  11 if they're objectionable for reasons either they're  12 not necessary for disposing fairly of the action, or  13 privilege is claimed, or they don't relate to a matter  14 in issue this is something which to a degree we can  15 debate today, but we've been faced only with this kind  16 of answer.  17 THE COURT:  The reason I asked, I don't have a view one way or  18 the other, but I find it useful and convenient to know  19 whether I'm dealing with a legal certainty or whether  20 the matter is at large.  21 MS. MANDELL:  Well, my lord, I can — if my friend wants to  22 raise the fact that the questions are objectionable,  23 this has been done for some of those other questions,  24 and there's going to be a whole round of questions  25 which I'm going to draw to your lordship's attention  26 where it was that objection which was taken; either  27 the question was improper or it falls outside of  28 discovery for one reason or another.  But these are  29 not the questions for which that objection is being  30 taken.  These are answers which have been provided.  31 THE COURT:  All right.  Thank you.  32 MS. MANDELL:  My lord, for your own reference the questions and  33 the answers which tie the questions which I gave you  34 to the answer contained in paragraph 4 of exhibit --  35 Exhibit D are as follows; the answers are found in the  36 paragraph 6 --  37 THE COURT:  I'm sorry.  These are answers to your collection of  38 questions that you gave me a moment ago?  39 MS. MANDELL:  That's right.  All these answers tie the question  40 back into paragraph 4 and 5 of the interrogatory.  41 THE COURT:  All right.  42 MS. MANDELL:  It's 6, 8, 9, 14.  43 THE COURT:  These are answers?  44 MS. MANDELL:  These are answers, that's right.  Six, 8, 9 and  45 14.  4 6 THE COURT:  Yes.  47 MS. MANDELL:  My lord, if I could turn you to question 17 of the 1964  Submission by Ms. Mandell  1 Plaintiffs' questions.  2 THE COURT:  Seventeen of A?  3 MS. MANDELL:  That's right.  The answer is found at page five on  4 paragraph 10 of D.  5 THE COURT:  Yes.  6 MS. MANDELL:  And, again, I would wish to draw to your attention  7 the kind of problems which we have with the answers  8 given.  10(a), statements made to this Defendant by  9 former and present fisheries and government officials.  10 Again, that's the kind of living memory answer which  11 could be reduced to an admission of fact which we  12 ought to be entitled to.  13 Reports and historical accounts made by government  14 officials.  It's another one which is too broad to be  15 of any help whatsoever.  16 Historical accounts of exploration and activities  17 of Hudson's Bay Company employees found in the  18 Hudson's Bay Company archives.  Well, that's most of  19 what's found in the Hudson Bay Company archives, so  20 it's hard to know where you would look.  21 History of construction of the Grand Trunk and  22 Pacific Railway.  Again, another reference to  23 Sessional Papers.  The same problems would apply with  24 respect to that answer.  25 My lord, paragraph 37 of the statement -- the  26 Plaintiffs' questions, that's found at paragraph 16,  27 page six of the Exhibit D.  This is of a different  28 quality, and maybe my friend can help us with it now.  29 In answer to the denial the documents to support the  30 denial that no part of the territory or resources was  31 ever ceded to or purchased by the Federal Government.  32 The answer is in response to that.  This Defendant  33 relies on reports of federal presence and in a claim  34 area including maps and supporting documentation to be  35 produced prior to commencement of trial.  Now, there  36 were some maps which were produced to us prior to the  37 commencement of trial and the question is whether or  38 not these are the maps which are referred to in  39 paragraph 16, and is that all?  40 THE COURT:  You're asking your friend if she has produced all of  41 the supporting documentation --  42 MS. MANDELL:  That's right.  43 THE COURT:  — That's referred to in paragraph 16?  44 MS. KOENIGSBERG:  Yes, as far as I know.  I don't — of course  45 we will be arguing that we can't be held because of  46 the form of the interrogatories to being precluded  47 from finding something that we don't know about, but 1965  Submission by Ms. Mandell  1 to the best of our ability we feel we have attempted  2 to map the federal presence in the claim area.  3 THE COURT:  These wouldn't be the alienation maps that Mr.  4 Goldie —  5 MS. KOENIGSBERG:  They are the federal maps which would fall  6 within -- which have the same format as the alienation  7 project of the Province.  8 THE COURT:  Have they been produced yet?  9 MS. KOENIGSBERG:  Yes, they have.  They were produced, I think,  10 all just prior to trial.  11 THE COURT:  No.  I'm sorry.  Have they been tendered at trial  12 yet?  13 MS. KOENIGSBERG:  No.  14 THE COURT:  I haven't seen them?  15 MS. KOENIGSBERG:  No.  It didn't look auspicious, my lord.  16 THE COURT:  So you say produced -- you say just produced to your  17 friends.  18 MS. MANDELL:  My lord, I'll read you question 46 to avoid you  19 having to refer to it.  It's a problem of a different  20 nature, but if you could turn to Exhibit D, paragraph  21 30 on page six.  The question -- we have been talking  22 about reserves in the previous paragraphs.  76.  For  23 what purpose did the Defendant set aside Indian  24 Reserves for the Plaintiffs in their territory?  And  25 in response the Defendant says the Province set aside  26 lands for reserves.  Such land was set aside for the  27 use and benefit of Plaintiffs and their ancestors, in  28 answer to various B.C. Indian bands' claims or  29 requests for lands.  Before such setting aside, the  30 land was either unoccupied Crown land or land held by  31 various persons in fee.  32 We say that that is a fairly unresponsive answer  33 to the question and that's the kind of problem that we  34 are asking -- the question was for what purpose did  35 the Defendant set the land aside, and the answer  36 tracks the language of the Indian Act and says it was  37 taken from unoccupied land, the Province set it aside,  38 and that's not the kind of answer that the question  39 was seeking to evoke.  40 And if I could just draw to your attention  41 paragraph 31, page seven of Exhibit D, which is the  42 last in the series of problems.  In further answer to  43 all these various answered questions now this  44 Defendant will in addition rely on such other facts  45 and documents as may come to his attention during  46 preparation for trial and trial.  And we say that that  47 too is an unhelpful clause.  We presume that if facts 1966  Submission by Ms. Mandell  Proceedings  1 or documents which should add to the answers come to  2 the attention of the Defendant that we would be so  3 advised rather than to leave it in that way that  4 there's a kind of reservation of taking us by surprise  5 if new things come to light.  So that's the first  6 round of questions to which we have objection.  7 THE COURT:  All right.  I'm going to take a short adjournment,  8 Miss Mandell, but before I do that it doesn't appear  9 to me that we are going to get through this agenda  10 today.  11 MS. MANDELL:  Well, Mr. Rush talks fast.  12 MR. RUSH:  Not that fast.  13 THE COURT:  There are several more items.  You haven't finished  14 yours.  I'm at your disposal.  If counsel wish we  15 could carry on on Monday.  16 MR. RUSH:  I'm not available on Monday.  17 THE COURT:  No.  18 MR. RUSH:  I would like to carry on if need be, but not Monday.  19 MS. KOENIGSBERG:  Actually, I was going to suggest that we might  20 put off the interrogatories because I anticipated we  21 would not get done, and I know there are a couple of  22 other items on the agenda that it might be a good idea  23 to finish.  They're short, I believe.  The commission  24 evidence issue, and may be one other.  25 THE COURT:  Well, the only reason I raise it now is I committed  26 myself for an argument on Monday and I would be glad  27 to cancel it.  28 MS. KOENIGSBERG:  I'm available.  29 THE COURT:  I should let counsel know in the other case if we  30 are going to be engaged here.  I take it we are not  31 going to be engaged here on Monday?  32 MS. KOENIGSBERG:  I'm available and would be happy to do the  33 interrogatories matter if Miss Mandell is available to  34 do that, and perhaps we could even finish -- stop this  35 motion and finish the agenda if other counsel are not  36 available, and it's important to get through those,  37 but I'm in your hands.  38 THE COURT:  Well, what do you say about that, Miss Mandell?  39 MS. MANDELL:  My lord, I can finish my submission, I believe,  40 within -- I know everyone's going to gulp -- I think  41 it will take 20 minutes to half an hour to finish my  42 submission, and I believe the items Mr. Rush has to  43 follow could certainly be done in the half hour, and  44 maybe if we could --  45 THE COURT:  Mr. Goldie has a long motion too.  At least it looks  46 like a long motion.  47 MR. GOLDIE:  No.  That's the one that's been adjourned. 1967  Proceedings  Submission by Mr. Rush  1 THE COURT:  Well, all right.  I don't think at the moment I will  2 cancel the other commitments I have for Monday.  You  3 people talk about what you want to do and we can  4 resume.  I can still cancel the other matter later in  5 the afternoon if necessary.  We will take a short  6 recess now and resume this matter in a moment.  7  8 (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING SHORT RECESS)  9  10 THE COURT:  Well, are we going to stand this down or carry on?  11 MR. RUSH:  I think perhaps stand it down to deal with two other  12 shorter issues.  13 THE COURT:  Yes.  All right.  All right.  Are they yours, Mr.  14 Rush?  15 MR. RUSH:  Well, I'm prepared to speak to them.  16 THE COURT:  Yes.  17 MR. RUSH:  This is the issue of the commission testimony.  You  18 will remember that evidence of eight of the witnesses  19 has been taken by commission.  These include Fred  2 0 Johnson, Emma Michell, Martha Brown, Johnny David,  21 Jessie Sterritt, Thomas Wright, David Gunanoot, and  22 Bazil and Josephine Michell.  Now, so far as the  23 wishes of the Attorney General of Canada to  24 cross-examine certain of these commission witnesses, I  25 understand that no issue was taken in respect of Fred  26 Johnson and Emma Michell, so that we essentially are  27 of one mind on these two.  The counsel for the  28 Attorney General of Canada was present at the  29 commissions, or were given an opportunity to be there,  30 so no problem there.  31 In respect of Thomas Wright, Bazil and Josephine  32 Michell, and David Gunanoot it is our understanding  33 that by letter of May 5th the Attorney General of  34 Canada was notified of these commission hearings, and  35 Mr. Irving attended as agent for the Attorney General  36 of Canada.  It is our view that counsel had an  37 opportunity to examine the transcripts and to be  38 prepared for the purposes of cross-examination.  Mr.  39 Irving who attended at these commissions, and I was  40 counsel in respect of one, that is David Gunanoot, Mr.  41 Irving declined to exercise his rights of  42 cross-examination.  Now, I understand it will be the  43 position of the agent for the Attorney General of  44 Canada that Mr. Irving was there only as an observer  45 and was apparently not under instructions to  46 participate in the proceedings.  Be that as it may it  47 is our submission that there was an opportunity to 196?  Proceedings  Submission by Mr. Rush  1 participate, and Mr. Irving was present and could have  2 participated.  There was so far as I can see no  3 reason, certainly none indicated to counsel for the  4 Plaintiffs for him not to participate.  He elected not  5 to do so.  And in my submission there can be no  6 complaint by the Attorney General of Canada about the  7 admissibility of this evidence.  8 THE COURT:  What sort of notice did he have?  What sort of  9 notice was given?  10 MR. RUSH:  Well, I unfortunately don't have the letter, but it  11 was a letter --  12 THE COURT:   Is that the May 5th letter?  13 MR. RUSH:  Yes, that's right.  Tab 1.  My learned friend  14 prepared a short book of authorities or documents, and  15 you'll see a letter addressed by myself to Mr.  16 Macaulay indicating that the commissions of Michell --  17 Mr. Michell, Mr. Wright and David Gunanoot will  18 recommence on the dates indicated.  19 THE COURT:  Yes.  So he had —  20 MR. RUSH:  And you'll notice —  21 THE COURT:  If this was delivered it was received on the 7th it  22 says.  So four days notice for the 13th.  23 MR. RUSH:  Well, that would be -- well, there were seven days  24 notice of one, seven of another.  25 THE COURT:  Yes.  All right.  26 MR. RUSH:  Yes.  Now, I would point out, my lord, that no --  27 there was no indication from counsel that they wanted  28 to adjourn these commissions for the purposes of  29 effecting cross-examination.  Essentially there was no  30 indication one way or the other as to what would  31 happen during the course of these commissions.  And  32 it's my submission they had their opportunity to  33 examine, and they elected not to exercise it, and I  34 say that so far as those three commission witnesses  35 goes they cannot now insist upon any further rights of  36 examination of those witnesses.  37 Now, that is not the case, however, with the  38 evidence of three other commission witnesses, those  39 being Jessie Sterritt, Johnny David and Martha Brown.  40 Now, in respect of these three we agree that the  41 Attorney General of Canada did not have an opportunity  42 to cross-examine the witnesses, and that is simply  43 because they at that time had not yet been added as a  44 party Defendant.  45 Now, it should be obvious to your lordship that we  46 the Plaintiffs want this evidence tendered in trial,  47 and to the extent that this is evidence that impacts 1969  Proceedings  Submission by Ms. Koenigsberg  1 upon the Federal Defendant it's our view that they do  2 have an entitlement to examine these witnesses, and if  3 the Federal Defendant wishes to exercise its right of  4 cross-examination of these witnesses it should say so  5 now, and should declare that it wants to do so or  6 within a short period of time, and an order should be  7 made for continuation of this commission evidence and  8 they should be allowed to cross-examine.  I would only  9 add that in respect of these three witnesses two of  10 the people are extremely old, elderly people, and one  11 has spent seven months of last year in hospital and so  12 they are either infirm or quite aged, and I would like  13 any -- I'm interested in having a very soon  14 declaration statement of intent as to whether or not  15 these are going to proceed so that we can get on with  16 it and make sure our learned friends have their rights  17 of examination.  So to that extent I concur that if  18 they choose to do so they can continue on with their  19 examination.  20 THE COURT:  You're not offering the other three.  Is it Thomas  21 Wright -- no, other four.  The two Michells and --  22 you're not offering them for cross-examination?  23 MR. RUSH:  Well, it's interesting actually now that you raise  24 that question.  It is -- it was our intention to  25 suggest Bazil Michell at least for the continuation of  26 commission testimony along the lines of the trial  27 organization I suggested this morning.  2 8 THE COURT:  I see.  29 MR. RUSH:  So given that extent I of course have no difficulty  30 of cross-examination, but I should point out that I  31 suggested his continued commission for the purposes of  32 leading territorial evidence.  33 THE COURT:  Yes.  34 MR. RUSH:  And to allow my friends to examine at large I think  35 would be inappropriate unless there is some right that  36 they establish to do so that they had otherwise been  37 denied their opportunity of examination, and my  38 submission is here that they have not been denied that  39 right.  4 0 THE COURT:  All right.  Ms. Koenigsberg.  41 MS. KOENIGSBERG:  It's a brief point, my lord, on the three  42 witnesses who are tendered, and Mr. Irving did in fact  43 attend.  It hinges on the issue of whether that really  44 was an opportunity to cross-examine.  45 It's our submission that that is not a real  46 opportunity to examine, and for the reasons that the  47 Attorney General of Canada had very recently been 1970  Submission by Ms. Koenigsberg  1 added.  In fact the appeal from the order adding them  2 which was February 24th, 1986, came down April 25th,  3 1986.  There had been no formulation, much less a  4 filing of a defence in this action, and it was at the  5 time of these continued commissions.  And in our  6 submission there was no way that a meaningful  7 cross-examination could take place.  Your lordship is  8 aware of the complexity and the difficulty of  9 appreciating the issues in this case, and the factual  10 background, and in my submission to on four to seven  11 days notice of commissions having been ongoing, and I  12 suppose the transcripts might have been available if  13 we had asked for them at that time and had a chance to  14 read them.  My suspicion is that they're rather  15 voluminous even at that time, and to have figured out  16 what would be fruitful cross-examination is to play  17 havoc with the word opportunity to cross-examine.  And  18 it's on that basis, and that basis alone, that we say  19 we should have the opportunity, and a meaningful  20 opportunity to cross-examine these witnesses.  21 I would point out that at the cross-examination of  22 Thomas Wright, Mr. Grant was counsel for the  23 Plaintiffs on that one, and noted at the outset, and  24 you can find this at tab 2 in the submissions that  25 have just been handed up to you, and I'll just read  26 out what he said.  27  28 "MR. GRANT:  This is a continuation of the  29 cross-examination with the same parties  30 here as were here last time with the  31 addition of John Irving who was counsel for  32 the Attorney General of Canada, who I  33 understand is sitting in to observe.  He  34 will not take part by questioning the  35 witness.  36 MR. IRVING:  I do not believe so."  37  38 In my submission it was understood at that time  39 that he would be there to observe and attempt in fact  40 to get the Attorney General of Canada acquainted with  41 what this case was all about.  If we had exercised a  42 right to ask questions in my submission we undoubtly  43 would have been accused of not having the slightest  44 idea of what we were asking questions about and  45 lengthening the proceedings with questions that  46 couldn't possibly be helpful.  47 It's true, as far as I know, in answer to one 1971  Submission by Ms. Koenigsberg  Submission by Mr. Rush  Ruling by the Court  1 other point that my friend made we did not request an  2 adjournment, as far as I know, and frankly I don't  3 think it would have been well looked upon if we had at  4 that point in time.  I don't think at that time we  5 were by not asking for an adjournment saying that we  6 were precluded forever of asking questions of this  7 witness.  8 THE COURT:  All right.  I guess you have no part to play in  9 this, Mr. Goldie?  10 MR. GOLDIE:  No, my lord.  11 THE COURT:  All right.  Mr. Rush.  12 MR. RUSH:  Just one brief point.  Irving told Grant that he was  13 coming as an observer, and what that was supposed to  14 have meant in his mind certainly nothing is to be  15 implied as to what it meant in Mr. Grant's mind.  16 THE COURT:  No.  17 MR. RUSH:  He was also present during the commission I was  18 there, and I took nothing more from it than he was  19 choosing to observe the proceedings, and what he  20 decided to do was entirely up to him.  I do think  21 however that it is a very telling point that today my  22 learned friend, or at the time of this motion my  23 learned friend wants to exercise rights of  24 cross-examination, the very rights of  25 cross-examination they did not choose to preserve for  26 themselves at the completion of those commissions back  27 in whenever it was, and I don't know how long these  28 various commissions went on for.  They went on over  29 many, many days, and we had to organize times and  30 schedules with all counsel.  And it seems to me that  31 had they been serious about wanting to preserve those  32 rights they would have said so on the record, and they  33 didn't.  Thank you.  34 THE COURT:  Thank you.  Ms. Koenigsberg, are you able to respond  35 to Mr. Rush's inquiry about whether you want to  36 cross-examine Jessie Sterritt and Johnny David and  37 Martha Brown?  38 MS. KOENIGSBERG:  We have been looking quite closely at that and  39 quite frankly we likely would like to.  I would like a  40 few more days, and I would like the opportunity,  41 perhaps have the chance to discuss with my friend the  42 state of their health and whether it's really going to  43 be productive.  In looking at some of the transcripts  44 that has been a question mark.  I don't want to do it  45 unnecessarily, and I think we can certainly come to a  46 decision and advise them before the end of next week.  47 THE COURT:  Your friend has conceded that there was no 1972  Ruling by the Court  Proceedings  1 opportunity to examine, and I think he concedes that  2 you should have the right to cross-examine if you  3 wish, and I think that order should go.  4 As to the other four that Mr. Irving was involved  5 with I don't think there's any way of being right or  6 wrong in a thing like this unless you take a  7 legalistic approach, or different kind of approach.  I  8 don't think it's a case for a legalistic approach.  I  9 think that declining to examine when a party has been  10 so recently added should not be considered conclusive.  11 Nor do I think the magic words are necessary to  12 preserve the right.  I think if the evidence is going  13 to be tendered there should be a real opportunity, and  14 I think that the Federal Crown should have the right  15 to cross-examine those four witnesses if they -- if  16 they are so advised.  17 I don't think there is any others that I have to  18 concern myself with, are there?  19 MS. KOENIGSBERG:  No.  That's all.  2 0 THE COURT:  All right.  All right.  Next.  21 MR. RUSH:  Could we just establish —  22 THE COURT:  Yes.  23 MR. RUSH:  -- A date within which my friends are to advise us as  24 to whether or not they are going to proceed with which  25 of these?  26 THE COURT:  Yes.  What do you think is reasonable?  27 MS. KOENIGSBERG:  I think we could advise them by the end of  28 next week, and I would just make the condition that  29 before we make that decision out of -- I would like  30 the opportunity to speak with my friend about the  31 state of their health.  32 THE COURT:  I give you leave to speak to your friend.  33 MS. KOENIGSBERG:  I don't know if he is available.  34 MR. RUSH:  I will give leave to speak to me.  35 THE COURT:  All right.  Is the end of next week all right, Mr.  36 Rush?  37 MR. RUSH:  Yes.  All right.  38 THE COURT:  All right.  Thank you.  39 MR. RUSH:  I guess the other question is this question of the  40 expert reports.  We indicated to your lordship that we  41 thought that you should be provided with certain of  42 our expert reports to consider over the summer months.  4 3 THE COURT:  Yes.  44 MR. RUSH:  We have looked at the reports and we think that you  45 should be provided with the full reports of certain of  4 6              the experts, and reports about which we have made a  47 firm decision to lead in evidence, and we are 1973  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  suggesting that you be provided with the reports of  Dr. John Cove.  THE COURT:  Cove.  MR. RUSH:  Cove, C-O-V-E.  THE COURT:  Yes.  MR. RUSH:  Dr. Gottesfeld,  Heather Harris.  Dr. Tony Amels (phonetic)  THE COURT  MR.  THE  MR.  COURT  RUSH:  MS.  THE  G-O-T-T-E-S-F-E-L-D.  Dr. Mathews and  We're suggesting that we can provide  your lordship with copies of those through the  registry if you --  All right.  Well, if your learned friends agree I  would be glad to have them, and I would be glad to  read them.  I take it there's no objection to that?  GOLDIE:  I'm not sure whether they're all complete, my lord.  I think the Heather Harris report is lacking some  material.  I have no objection to these people as  such, but your lordship ought to know that if these  are not all complete, that they are in fact  incomplete.  Yes.  Well, Mr. Goldie's right.  In one aspect Heather  Harris' report is incomplete.  She is the person who's  providing us with genealogical reports, and the  genealogical -- the genealogical -- genealogies have  not been complete, and they will not be complete until  into August.  So to that limited extent you would not  be getting a full report.  In other words, you won't  be getting all the genealogies that goes with the  report.  I believe there is a sample genealogy that  goes with them, and your lordship has received  genealogies in respect of that.  Mr. Goldie didn't object that I should read the  report, just that I should know it is incomplete.  GOLDIE:  That's correct.  COURT:  Well, if you would be so good as to have them sent  up to me sometime, Mr. Rush, I'll be glad to read  them.  Now, is that all we can do today?  All right.  We  are set then for Monday morning to resume the  interrogatories.  KOENIGSBERG:  Yes, my lord.  That's fine with me.  COURT:  Yes.  I have to say that I have a commitment to open  a seminar on criminal law at the university at nine  o'clock, but I've been put under a time constraint so  I'm only to speak for ten minutes, but it may take me  another ten minutes to get out of there and back here.  I may be a couple minutes late.  I have to say  unfortunately I have a twelve o'clock lunch  THE COURT  MR.  THE 1974  Proceedings  1 appointment.  Can we finish in two hours, because I  2 would be happy to adjourn the other matter I have in  3 the afternoon if --  4 MS. KOENIGSBERG:  Well, maybe we can resolve it this way.  We  5 also have a motion on production of documents.  My  6 friend has just provided us with some material.  I  7 don't know if we are going to be able to resolve it.  8 We may be able to.  If not I don't know if that can  9 follow.  I don't know if we can do it in two hours.  10 THE COURT:  All right.  Well, then I think I'll take advantage  11 of that and adjourn the family matter.  It's a matter  12 that's been hanging for some time, and I don't think  13 it's -- if it wasn't the fact that it's a member of  14 the bar and is a personal entitlement I wouldn't even  15 consider it.  I think they've taken some time to get  16 themselves together so that this should have priority.  17 So we will resume this on Monday afternoon if  18 necessary.  All right.  Thank you.  19 THE REGISTRAR:  Order in chambers.  Chambers stand adjourned  20 until July 20, 1987 at ten o'clock a.m.  21  22 (PROCEEDINGS ADJOURNED)  23  24 I hereby certify the foregoing to be  25 a true and accurate transcript of the  26 proceedings herein to the best of my  27 skill and ability.  28  29  30 Peri McHale, Official Reporter  31 UNITED REPORTING SERVICE LTD.  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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