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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1987-07-20] British Columbia. Supreme Court Jul 20, 1987

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 1975  1 Vancouver, B.C.  2  3 20 July 1987  4  5 THE REGISTRAR:  Order in chambers.  In the Supreme Court  6 Chambers at Vancouver, this 20th of July, 1987.  In  7 the matter of Delgamuukw and others continuing, My  8 Lord.  9 THE COURT:  Ms. Mandell?  10 MS. MANDELL:  Thank you, My Lord.  With me today is Murray  11 Adams.  12 THE COURT:  Ms. Mandell, before you start, what is the nature of  13 the response that you seek in answer to these  14 interrogatories?  15 MS. MANDELL:  Well, My Lord, with respect to this first batch of  16 questions which I drew to your attention the -- what  17 we're really seeking is whether or not there is any  18 material, admissions or facts upon which the  19 defendant relies to support the denials which are  20 set out.  If I might, My Lord, address your  21 attention to the affidavit of Peter Grant, again the  22 last exhibit, there are questions which the federal  23 government has answered on the interrogatories which  24 are to our mind very satisfactory, and if the  25 answers could be modelled around other answers  26 they've given in response to other questions we'd be  27 very pleased.  For example, the exhibit, the last  28 interrogatory which is marked Exhibit E, there is  29 many examples of questions which we've asked where  30 although the defendant in some senses — in some  31 cases refuses to answer some of the question they've  32 given us an indication as to where the answer is.  33 If I could, for example, direct you to Page 6,  34 Paragraph 19.  35 THE COURT:  Of E?  36 MS. MANDELL:  Of E.  37 THE COURT:  I'm sorry, I'm looking at the wrong thing perhaps.  38 I'm sorry, this is E of Mr. Mackenzie's affidavit.  39 Where will I find this?  40 MS. MANDELL:  This is in the accumulated affidavit of Peter  41 Grant, the assembly of interrogatories which we were  42 working with on Friday.  And if you start from the  43 back -- I don't know if you have the affidavit yet.  44 THE COURT:  No.  That's not the right document, that's the other  45 application.  Yes, all right.  I have Mr. Grant's  46 affidavit.  47 MS. MANDELL:  If you can start from the back it's the last 1976  1 interrogatory and Page 6 of it.  I'll just give you  2 some examples.  3 THE COURT:  Yes, I have it.  4 MS. MANDELL:  Paragraph 19, for example, when was the first  5 Indian food fishing permit issued for the Bulkley,  6 the Skeena, and the Babine?  And the answer is, "The  7 first record of permits issued as found in available  8 documents was 1932 at Moricetown (see this  9 Defendant's document number 2980 at Page 33)" and so  10 on.  This is the kind of response which to us  11 answers the question.  Now, I could even direct you  12 to one where we didn't get the full answer, but we  13 certainly got an indication or a sense of the way in  14 which the answer could be -- could be known to us as  15 containing the case of the defendant.  On Page 8,  16 which is their Paragraph 23, "Please provide a list  17 of all Indian fishing equipment seized by the  18 Defendant in the Gitksan and Wet'suwet'en  19 territories" throughout these years.  Now, the  20 defendant the Attorney General of Canada refuses to  21 answer this question on the ground that it is  22 oppressive and improper and that no such lists are  23 available and would require this defendant to creat  24 such a list.  At present, this defendant has listed  25 documents dealing with seizure of equipment, and  26 then there's a number of numbers referred to at the  27 document list.  As any further such documents are  28 located they will be listed on this defendant's list  29 of documents.  Now, that's -- it tells us something.  30 It tells us, first of all, that although they're not  31 going to answer the whole question there are  32 references in their document list to what there is  33 available and if other things become known then  34 we'll hear about it.  And it's that kind of answer  35 which is helpful to us.  We know that there are  36 lists of equipment seized involving the territory  37 and where we can find what is available and the  38 extent to that.  And although we're not challenging  39 the fact now that there's a refusal on the basis of  40 oppressiveness we have a sense of what it is that we  41 were looking for.  42  43 And I think that in general what we'd like  44 from these denials is if, for example, the defendant  45 says that the Gitksan and Wet'suwet'en, they deny or  46 they own or exercise jurisdiction over their  47 territory because say 1934 or 1958 or 1970 the 1977  1 Nishka were there and not the Gitksan, then let them  2 say that that's what supports -- that's the fact  3 upon which their denial is based.  And if they can  4 conveniently refer us to their document list all the  5 better.  But we'd like the fact and not the source.  6 THE COURT:  Well, that's what troubled me at the moment is to  7 draw this distinction.  The questions that you  8 posed -- that were posed to the Attorney General of  9 Canada as you read them to me the other day and the  10 answers, it was obvious to me, I think it's obvious,  11 it was on Friday anyway, that the answers were quite  12 unhelpful.  On the other hand, it was also a problem  13 with me as to how the question would be answered  14 without writing an argument.  15 MS. MANDELL:  Well, I don't — I don't have the skill of  16 drafting my friend's answers, but I would say that  17 if the answer is, as I said before, that the fact is  18 that the Nishka were there and not the Gitksan, that  19 seems to me to be a fact which we could take some  20 sense from.  We would know then that the denial  21 isn't based on nothing.  It's not simply asking us  22 to be put to the strict proof, if it is we'd like to  23 know that too, but that there is some other fact or  24 some other body of fact which is part of the case  25 which we're going to have to prepare to meet.  It's  26 not -- it's not simply that there's a whole ream of  27 library materials which may or may not ultimately  28 disclose something which is prejudicial to our case.  29  30 Now, I don't -- the degree of specificity I  31 think is really a question of -- between us which --  32 how much knowledge can be disclosed which will give  33 us the facts.  And my friend is skilled and will, as  34 she's done in some of the answers, we see where they  35 can go and where they can't go and we take it from  36 there.  But some effort to grapple with the problem  37 in our submission hasn't been done yet.  We don't  38 even know what can be done on that in that respect.  39 THE COURT:  All right.  Because if it was — if we were talking  40 about pleadings it would not be necessary to make  41 these vast lists of documents that your questions  42 seem to call for.  43 MS. MANDELL:  Well, I don't —  44 THE COURT:  They would only have to plead the fact and not the  45 evidence by which the fact is proven.  4 6 MS. MANDELL:  That's what —  47 THE COURT:  But this isn't pleadings, this is interrogatories 197?  1 which is in one sense the equivalent of discovery.  2 MS. MANDELL:  Um-hum.  3 THE COURT:  But on the other hand, in discovery you can't send a  4 witness away to do a lot of research or to make  5 calculations or to formulate opinions, particularly  6 legal opinions.  7 MS. MANDELL:  Well, we're not asking for any legal opinion, but  8 it seems to me that these problems we don't expect  9 evidence.  We do expect some disclosure of the case,  10 the facts upon which the other case rests.  We are  11 not at the moment taking out an order to discover  12 the defendant.  We'd like that there be sufficient  13 disclosure of the case against us through this  14 process.  And it may very well be that if people  15 turned their mind to the problem of disclosing the  16 facts and doing it within the range of knowledge  17 that the law permits we don't -- you know, there is  18 a reasonable inquiry but we don't seek the law.  We  19 don't seek expert opinion.  We don't seek any of  20 those areas of answer outside the scope of  21 interrogatory, but we think even within the existing  22 rules there's much more that could be attempted and  23 provided than what we've got now.  24 THE COURT:  All right.  Well, I just wanted to get your views on  25 this problem that's troubled me.  I am going to have  26 to go through them seriatim and do the best I can to  27 understand what the question asks for and what a  28 reasonable answer might be.  29 MS. MANDELL:  Thank you, My Lord.  30 THE COURT:  All right.  Thank you.  31 MS. MANDELL:  My Lord, there's — that's the first area.  These  32 are questions which you've heard where the Attorney  33 General of Canada hasn't declined to answer the  34 questions, nor have they challenged the questions as  35 being improper --  3 6 THE COURT:  Yes.  37 MS. MANDELL:  -- but that they've answered them in this way  38 which in our view is unhelpful.  39  40 There's a second batch of questions which I've  41 grouped for convenience in the category as my friend  42 has in her letter to us.  And these are questions  43 which call for, according to the Attorney General of  44 Canada, either an expert opinion or legal argument.  45 These questions were declined to be answered and the  46 fact of them being declined to be answered is found  47 in Exhibit C.  And it's -- there's a set of 1979  1 questions found at Paragraph 1 where -- beginning  2 with Question 26 and ending with Question 90.  3 There's a list of questions here that the Attorney  4 General's declined to answer.  5 THE COURT:  I have Exhibit C now.  6 MS. MANDELL:  You'll see in the letter in Paragraph 1 there is a  7 long list of questions which they've declined to  8 answer on the basis that they're the subject of  9 expert opinion or legal argument.  10 THE COURT:  And those are the questions you want answers to, are  11 they?  12 MS. MANDELL:  Well, to be brief on these questions, we've  13 reviewed them all and we agree with my friend that  14 although I don't think that you decline to answer  15 interrogatory questions in this fashion, I think  16 there's a proper form to do it and this isn't it,  17 that all of those questions are ones which are not  18 properly the subject of interrogatories because they  19 do require historical opinion beyond the living  2 0 memory.  However, all of them in our view are  21 questions where we take it that there's been a  22 document disclosure with respect to them.  23  24 And in the reasoning of Mr. Justice Dohm on  25 April 8th, he indicated that at the point when the  26 document lists are to a point of reasonable, full  27 disclosure that at that point there'd be a better  28 time or the proper time to bring on an application  29 with respect to the grouping of documents.  And in  30 our view that should be done.  And what we would  31 like from our friend at this time is some indication  32 whether or not we're at that stage where there's  33 been a complete disclosure, at least in more or less  34 full -- as much as can be done at the moment with  35 respect to those questions on the issue of  36 documents, and if so we would renew our application  37 with respect to the categorization of those  38 documents and not at this point advance that those  39 questions ought to be answered by interrogatory.  40 THE COURT:  All right.  I have an accurate note, have I, that  41 you agree that these questions are not properly the  42 subject of interrogatories?  43 MS. MANDELL:  That's correct.  44 THE COURT:  But you say that alternatively you're entitled to  45 ask for a grouping of documents which will possibly  46 identify each of -- identify or associate each of  47 these questions with a documents. 1980  1 MS. MANDELL:  That's correct.  2 THE COURT:  Or set of documents.  3 MS. MANDELL:  That's correct.  When the questions were drafted  4 we were without guidance with respect to the  5 categorization of documents and the process which we  6 were involved with.  And at this point it seems  7 clear to us that all those questions ought to be  8 part of a categorization of document motion.  9 THE COURT:  All right.  Now, where do I find Judge Dohm's  10 reasons?  Are they conveniently located anywhere?  11 MS. MANDELL:  My Lord, I can make a copy of them available to  12 the court.  I've had now to borrow my friend's.  If  13 I can read you though the two passages which in our  14 view indicate as we're speaking regarding -- at Page  15 3 of the reasons, the last paragraph.  16  17 "As I indicated in my earlier reasons,  18 essentially the case involves a battle  19 between experts and their views on the  20 meaning and interpretation of a large  21 number of historical documents.  The  22 parties have exchanged many documents but  23 they continue to do so -- indeed, it would  24 seem that process will carry on after the  25 trial commences.  To date, the Crown  26 Provincial have prepared a chronological  27 list of the documents and in this regard,  28 I think they have met the obligation which  29 arises under Rule 26(1).  But whether that  30 is so or not, the point to be made is that  31 any order for categorization of the  32 documents according to issue or pleading  33 or whatever, is premature.  Until a final  34 exchange of documents has occurred between  35 the parties, no order in the nature  36 requested by the Plaintiffs can usefully  37 be made."  38  39 And then at Page 5 of the reasons.  40  41 "In the end, I think it is premature to  42 consider the process of categorizing  43 documents at this time.  Much, I think,  44 may be gained by such an order, provided  45 the exchange of documents is complete.  46 There really is nothing too radical in  47 this approach I am suggesting.  After all 1981  1 the expert reports (and this trial seems  2 to be bent in that direction) effectively  3 categorize the documents pertaining to the  4 issues."  5  6  7 The lengthy debate as to whether or not there was an  8 appropriate order to be made with respect to  9 categorization resulted in Judge Dohm acceding to  10 the submissions of the Province which is that  11 although the order was neither precluded or  12 unhelpful it was premature because the documents  13 hadn't fully been exchanged and left it for the  14 trial judge to consider a renewed motion.  15 THE COURT:  Is there any jurisdiction to require documents to be  16 categorized in any particular order?  17 MS. MANDELL:  Well, that point was debated.  We argue yes and  18 the Province will argue no.  19 MS. KOENIGSBERG:  And the Attorney General of Canada will argue  2 0 no.  21 MS. MANDELL:  And it's our view that when the document lists are  22 substantially complete that motion will be brought  23 back before Your Lordship and we will seek a ruling.  24 THE COURT:  I can understand it to be highly desirable and  25 exceedingly useful, but is there any -- is there any  26 authority, I don't know of any, that would say that  27 the court can tell a party how to organize his  28 disclosure?  29 MS. MANDELL:  Well, as argued before Judge Dohm, My Lord, there  30 are a number of cases, not a large number, but a  31 number of cases which have addressed this issue and  32 there have been cases where documents have been  33 ordered to be grouped.  34 THE COURT:  Well, I would like to have those authorities at some  35 convenient time.  I can certainly understand there's  36 lots of authority that says you can't say one  37 garbage bag full of -- green garbage bag full of  38 documents and another cardboard carton full of  39 documents and another large file folder full of  40 documents, they've got to be in some way itemized.  41 And I suppose in exercising its inherent  42 jurisdiction the court could prevent a party from  43 producing a hopelessly disorganized or shuffle their  44 list of documents, but to say they've got to be  45 grouped by issue?  46 MS. MANDELL:  Well, there's an Ontario High Court case which  47 said that -- which ordered that the documents be 1982  1 grouped according to pleadings, and it was a case  2 where there was a large amount of documents and a  3 complex litigation.  4 THE COURT:  Well, I would like to see those authorities because  5 it's a troublesome question as to what the  6 obligation is to put that sort of organization into  7 the case.  But --  8 MS. MANDELL:  We're very anxious to renew that application and  9 to hear full argument all the way around and to get  10 a decision, but I think given what Mr. Justice Dohm  11 said we ought not to trigger that application until  12 there's a reasonable understanding that the vast  13 range of documents have now to date been disclosed.  14 THE COURT:  Yes, all right.  15 MS. MANDELL:  My Lord, so what really we're seeking then at this  16 time is some statement from the Attorney General as  17 to the state of that disclosure.  18  19 My Lord, if I could turn you back to the  20 letter which is marked Exhibit C and there is a  21 convenient grouping of the next category of problem.  22 THE COURT:  Yes?  I have Mr. Grant's letter.  I'm sorry, Exhibit  23 C is Ms. Koenigsberg's letter; is that what you're  24 asking me to look at now?  25 MS. MANDELL:  Yes.  26 THE COURT:  Yes, all right.  This will be Category 3 then, is  27 it?  28 MS. MANDELL:  That's correct.  This is questions which the  29 defendant as set out in Paragraph 2 has declined to  30 answer on the grounds that they do not arise from  31 this defendant's pleadings.  32  33 My Lord, if I could turn you to Tab 4 of the  34 plaintiff's book of authorities, we rely on rule 29  35 sub 1 in answer to this objection, which says, "That  36 a party to an action may serve on any other party or  37 on a director, officer, partner, agent, employee, or  38 external auditor of a company interrogatories in  39 Form 20."  And the words which we take to your  40 attention is "relating to a matter in question in  41 the action."  It's our -- the questions which have  42 been objected to are ones which, although the  43 Attorney General of Canada didn't themselves  44 specifically deny, they are questions which were  45 part of the defence of the Province.  And we are  46 asking that the Attorney General of Canada answer  47 any question -- answer with respect to those 1983  1 questions any admissions of fact or facts upon which  2 they have in their possession relating to those  3 issues of the pleadings.  Now, some of those  4 questions are ones which fall into the Category 2 of  5 historical material.  These are questions with  6 respect to paragraphs, if I can recall to Your  7 Lordship, 18, 91, 24, 109, all the various -- some  8 of the historical paragraphs of the pleadings  9 relating to lists of statutes and proclamations  10 which are said to have extinguished title.  And so  11 for those generally we would group the objection in  12 the same manner as we've done with the historical.  13 But there are some answers to questions within that  14 range which have been denied and declined to be  15 answered on the basis that they don't relate to  16 matters within the pleadings which we think that the  17 Attorney General of Canada could answer.  And I  18 specifically draw to your attention what was our  19 Paragraph 49 and 50 of our questions to them.  And  20 these without -- without too much more to be said,  21 these relate to Paragraph 37 of the Province's  22 Statement of Defence and refer to a series of  23 statutes which were said to have extinguished title  24 through the process of the establishment of the  25 reserve.  And some of those statutes are as recent  26 as 1938.  And it's our view that there may very well  27 be with respect to those paragraphs, especially  28 since the defendant Attorney General of Canada was  29 part of the agreement which concluded those reserved  30 transfers, that there may very well be facts that  31 the Attorney General of Canada can reveal through  32 the interrogatory process within the living memory  33 of somebody within their department which could shed  34 light on the issues of the case.  And so we would  35 argue with respect to this category of answers  36 declined that there is an obligation to answer  37 questions with respect to any matter in the  38 pleadings whether they are specifically as a result  39 of pleadings arising by the Attorney General of  40 Canada, and that Questions 49 and 50 to the extent  41 that they fall within the potential living memory  42 situation ought to be answered.  43 THE COURT:  There was a refusal to answer those two questions?  44 MS. MANDELL:  Yes.  4 5 THE COURT:  Thank you.  46 MS. MANDELL:  My Lord, the next category of objections that I  47 could refer you to again are found in the letter of 1984  1 Exhibit C, and it's convenient to track the language  2 of the letter.  It's Paragraph 3 of the letter.  3 These questions were declined to be answered on the  4 basis they're not relevant to the issue in the  5 pleadings.  And then there's a number of questions  6 listed.  7  8 Now, the questions which at the moment we seek  9 to press are Questions 60 and 62 of that list.  We  10 say that if the defendant has any information which  11 they know about with respect to 61 and 63 so be it,  12 but particularly 60 and 62 is of interest to us.  13 And we think that Question 77 to 86, that block of  14 questions, are another block of questions that are  15 contained within the historical rubric of the second  16 objection.  17 THE COURT:  Well, Question 60, what do you understand the  18 defendant refers to there?  19 MS. MANDELL:  The Attorney General of Canada?  All of the  20 defendants here throughout the questions would then  21 refer to the Attorney General of Canada.  22 THE COURT:  Yes?  23 MS. MANDELL:  Now, in the Statement of Claim Paragraph 69, and I  24 won't refer you to it now, plead Section 35 is  25 affirming aboriginal title as pled by the  26 plaintiffs.  And we say that if the federal  27 government thought that they were including  28 aboriginal title as pled by the defendants -- or the  29 plaintiffs or in any other manner in 35, if that's  30 what they thought they were including in that  31 section, that we should know that, and it's an  32 extrinsic aid to the construction of that section,  33 and that we're entitled to the benefit of how the  34 federal government interpreted the meaning of that  35 section by its language.  36  37 I had mentioned earlier but I think you were  38 involved in the looking through at that example,  39 that Questions 77 to 86 which were those that were  40 declined to be answered as not being relevant to the  41 issues of the pleadings also within Category 3 all  42 involve discussions around Treaty 8.  We say that  43 those questions are probably best characterized  44 under the rubric of the historical discussion which  45 we had earlier talked about in Category 2 and we  46 would include those there.  It's now a matter of  47 pleading, and I don't think that the issue of 1985  1  2  THE  COURT:  3  4  5  MS.  MANDELL  6  THE  COURT:  7  8  MS.  MANDELL  9  THE  COURT:  10  MS.  MANDELL  11  12  13  THE  COURT:  14  MS.  MANDELL  15  16  17  18  19  20  21  22  23  THE  COURT:  24  MS.  MANDELL  25  26  27  28  29  30  31  32  33  34  35  36  37  THE  COURT:  38  MS.  MANDELL  39  THE  COURT:  40  MS.  MANDELL  41  42  THE  COURT:  43  MS.  MANDELL  44  45  46  47  relevancy is really a proper objection at this time.  Well, I'm sorry, Ms. Mandell, I thought you said you  were pressing for an answer to 60 and 62 at this  time.  :  That's right, we are.  Are you particularly pressing for an answer to those  and also for an answer to others or just 60 and 62?  :  No.  Just 60 and 62.  All right.  :  Although I might add with respect to 70 to 86  concerning treaty aid, if there's any living memory  possibility --  You mean 77 to 86?  :  77 to 86.  If there is any living memory with  respect to those we would press those answers as  well.  It's stretching it a bit because the treaty  was concluded at the turn of the century, but some  of the follow-up with respect to it, and especially  with respect to the setting aside of the reserves  pursuant to those treaties happened later, and it  may be a situation where living memory is still  capable of serving us.  All right.  :  Now, the next category of objection is again taken  from the letter, and it's taken from Paragraph 4.  And it's four questions with respect to the  questions seeking answers involving the reserves.  And we seek answers with respect to all four  questions.  The objection is that the terms  "accepted" and "additional lands" need to be  clarified.  And it's our submission that they have  been clarified on the pleadings and that those  questions should be answered.  My Lord, in the trial record, you have our  copy.  Yes, I do.  :  Tab 7.  I can't read whose name is written on there but --  :  It's probably Michael Jackson who writes the most  illegibly.  I never would have guessed.  :  Tab 7 Paragraph 34 is the province's paragraph  which pleads the pleading which gave rise to the  question.  You'll see that the language both  "accepted" and "additional lands" comes from their  own pleading. 1986  1 THE COURT:  It comes from the pleading of the Province.  2 MS. MANDELL:  The Province.  And then in the — at Tab 9 at  3 Paragraphs 5 and 6 there's been a demand for  4 particulars and the words have been further  5 particularized.  6 THE COURT:  Yes, all right.  7 MS. MANDELL:  We think that the questions could be answered at  8 this point.  9  10 Now, the last category with respect to the  11 letter is Category 5, unable to answer the questions  12 on the grounds that they cannot be understood as  13 they're presently worded.  And we think that  14 certainly Question 55 is easily understood not to be  15 answered and I'd like to direct you to it.  In our  16 case, as you know, the assertion is that by the  17 setting aside of Indian reserves and the accepting  18 of them that the aboriginal title throughout the  19 territory was in a sense impliedly extinguished.  20 And there are situations of which we're aware, and  21 the federal government would be more so, where  22 although reserves were set up treaties were then  23 later concluded with those same Indian nations.  And  24 we're asking within the living memory for them to  25 provide to us those examples.  Now, if that's not a  26 proper interrogatory question that's another  27 objection, but in our view it's certainly a question  28 which can be reasonably understood and in our view  29 ought to assist everybody if the answer were  30 provided.  31 THE COURT:  Without your explanation, Ms. Mandell, I wouldn't  32 have understood whether it referred to Gitksan,  33 Wet'suwet'en reserves or reserves somewhere else in  34 Canada.  35 MS. MANDELL:  Well, perhaps the question isn't clear.  We had  36 put for the benefit of any Indian band or nation  37 hoping that we would make the distinction between  38 Gitksan Wet'suwet'en and others, but if that isn't  39 clear then I hope my explanation has been helpful.  40 And certainly the question, if necessary, could be  41 reworded.  But I think it's a proper one and would  42 be of assistance if it were answered.  43 THE COURT:  How many treaties are there in Canada?  44 MS. MANDELL:  Well, there are many — there's well over 300  45 treaties and agreements.  There's a number of -- and  4 6             many of them are small agreements and we would say  47 that they were treaties, but the actual numbered 1987  1  2  3  4  5  6  THE  COURT:  7  MS.  MANDELL  8  THE  COURT:  9  MS.  MANDELL  10  11  12  THE  COURT:  13  MS.  MANDELL  14  THE  COURT:  15  16  MS.  MANDELL  17  18  THE  COURT:  19  MS.  MANDELL  20  21  THE  COURT:  22  MS.  MANDELL  23  24  25  26  THE  COURT:  27  28  29  30  31  MS.  MANDELL  32  THE  COURT:  33  MS.  MANDELL  34  35  36  37  38  39  40  41  42  THE  COURT:  43  MS.  MANDELL  44  45  46  47  treaties across the country which take up the  majority of the territory from Ontario west is 11.  There is another 12 or 13 on Vancouver Island.  And  Treaty 8 is the only numbered treaty which merges  into British Columbia through the northeast corner.  How many on Vancouver Island you say?  :  There's 13 on Vancouver Island.  And then there's Number 8 which includes --  :  8 is just -- it moves into the northeast corner of  British Columbia.  It takes in the Peace River  block.  Just the Peace River block?  :  Yes.  Aren't we going to have a trial in September about  Treaty 8 relating to the Cowichan Bay?  :  That's going to be one of the south Vancouver  Island treaties.  It's not Treaty 8?  :  It's not Treaty 8.  It's one of the Douglas  treaties.  So the 13 are the Douglas treaties.  :  Yes.  And then there's a large variety.  There's  many hundreds of treaties and agreements smaller in  nature which are part of the history of the eastern  seaboard.  All right.  Well, what you're asking your friends to  do then is to look at each of these treaties or  agreements and find out if there was a reserve  covering all or part of the land covered by the  subsequent treaty.  :  That's right.  All right.  That was Question 55.  :  That's right.  The second one which was  misunderstood or not capable of being understood was  89A, and I think that that's a question which again  is self explanatory and could be understood by a  simple yes or no answer.  If it's more complicated  than that and involves an expert opinion or  historical facts then we could hear about it, but I  think that it may be a straightforward yes or no  answer.  Yes, all right.  :  It's a small point, but the last question which  was declined to be answered was Question 46 which is  basically are there any other facts other than that  which has been stated.  And this question was  declined as an improper question.  And if I could, 19?  1 My Lord, refer you in the authorities to --  2 THE COURT:  Just let me look at Question 46.  Yes, all right.  3 MS. MANDELL:  To Tab 1 at Page 12, this is with respect to the  4 plaintiff's requirement to answer what we've had  5 categorized for us by Mr. Justice Locke as other  6 knowledge interrogatories.  And he says -- he's  7 referred to a large number of them.  The other --  8 I'm reading from the middle of the paragraph -- I'm  9 sorry, the middle of the page.  There are numbers 71  10 and then a long list thereafter.  11  12  13 "In every one of the above cases there is  14 a request for personal knowledge of the  15 topic which in each case I consider to be  16 relevant.  The other knowledge  17 interrogatories are objected to on the  18 basis that they are oppressive, broad,  19 ambiguous, vague or unanswerable.  I think  20 the question in each case could be more  21 happily worded to indicate what other  22 knowledge do you have means what other  23 knowledge after making due inquiry.  I  24 refer again to the statements of law set  25 out earlier in this judgment and repeat  26 that the duty is to make reasonable  27 inquiry.  I refer to some suggested bounds  28 of reasonable inquiry in which I have  29 previously said regarding interrogatory 70  30 to 77."  31  32  33 We were really looking for, as he put it, another  34 knowledge clause, and we don't think that it's  35 objectionable and ought to be part of the reasonable  36 inquiry which is made by the federal defendant.  37 THE COURT:  Was Mr. Justice Locke there dealing with  38 interrogatories delivered to the province?  39 MS. MANDELL:  From the province to the plaintiffs.  40 THE COURT:  From the province to the plaintiffs, all right.  41 MS. KOENIGSBERG:  Just if it's of any assistance, of course  42 those questions were what is the personal knowledge,  43 and then the second part was reasonable inquiry  44 knowledge, other knowledge.  45 MS. MANDELL:  No, that wasn't true for those questions.  Not all  46 of those questions were stated in that way.  It was  47 a broad question of what do you know about or what's 1989  1  2  3  THE  COURT:  4  5  6  MS.  MANDELL  7  THE  COURT:  8  MS.  MANDELL  9  10  11  12  13  14  15  16  17  18  THE  COURT:  19  20  21  MS.  MANDELL  22  23  24  25  THE  COURT:  26  MS.  MANDELL  27  THE  COURT:  28  MS.  MANDELL  29  30  THE  COURT:  31  MS.  MANDELL  32  THE  COURT:  33  MS.  MANDELL  34  35  36  37  38  39  40  41  42  43  44  45  46  47  the general knowledge of and then is there any other  knowledge or any other --  But the reason why Question 46 is not in that list  of document he's talking about is because he was  dealing with a different set of interrogatories.  :  Yes, that's right.  All right.  :  My Lord, the last category is with respect to the  second set of interrogatories involving the fishery.  And these are found at -- the answers to which,  which include the questions conveniently, are found  at Exhibit E to the affidavit.  The questions which  we're pressing are ones which are numbered as  follows:  It's one to nine and Question 11.  And  these are all questions which perhaps, My Lord, it  would be helpful if you scanned them and scanned the  answers at the same time.  Yes, all right. All right, I've read them. I'm  sorry I've read one to nine. I haven't read 11.  Yes, all right.  :  If I could, My Lord, now refer you back to Exhibit  D, which is the answer to interrogatories which were  contained in the first series of answers and take  you to Page 2 Paragraph 4 sub (b).  You want me to go to (b)?  :  Yes.  Yes, I have it.  Page 4.  :  4 sub (b) you'll see that under common laws the  Fisheries Act is pled.  I'm sorry, I have Exhibit B.  :  Exhibit D, sorry.  Yes, I have it, thank you.  :  And then at Page 2 Paragraph 4 sub (b).  In answer  to our general questions, some of which I can  paraphrase as to how it is that the defendant denies  that the plaintiffs from the time of memorial  maintain their institutions, exercise their  authority over their territory, continue to own and  exercise jurisdiction over their territory, and  continue to own and exercise jurisdiction over the  lands within their territory in accordance to their  laws, the answer which we see as the substantial  defence of the federal government is that among  other things we've atoned to the jurisdiction of the  Fiseries Act.  And that's in fact pled as part of  the list of laws which are being used in support of  the denial, and also it's no secret, and you'll see 1990  1 it when the federal government reveals its  2 interrogatories which it delivered to the  3 plaintiffs, that there's a long inquiry as to the  4 degree to which we've obtained Indian food fish  5 licenses and have in fact participated under the  6 regulatory and management scheme as set out in the  7 Fiseries Act.  And it's our view that if the defence  8 is that we've atoned to the jurisdiction of the  9 Fisheries Act that we're entitled to probe the  10 various ways in which that jurisdiction is exercised  11 by the federal government in its many components as  12 it affects the Gitksan within their territory and  13 the Wet'suwet'en within theirs.  And that when we  14 have answers to the way in which the federal  15 government manages its Fisheries Act then from there  16 we'll be able to create the arguments as to how it  17 is that we do or do not atone as it's impliedly, and  18 I think it will be eventually expressly, alleged.  19  20 And questions one to nine and 11 seek to probe  21 the fisheries management scheme as it has  22 application generally within the Gitksan  23 Wet'suwet'en territory.  And in our view that's to  24 the extent that it's within the living memory.  And  25 Mr. Gerrow, one of the people who I understand the  26 federal government seeks to advance to either be a  27 witness or to have commissioned, is a very old man  28 and it could be that within the living memory of  29 that person, especially since much of this is  30 current policy and also current practice, many of  31 these answers should be able to be answered in a  32 fairly straightforward and easy way.  And in our  33 view we're entitled to probe in those areas.  34 THE COURT:  All right.  35 MS. MANDELL:  My Lord, if I could just conclude then by stating  36 with respect to the fisheries interrogatory that  37 many of those answers, as I've mentioned earlier,  38 although they don't give us what we asked we found  39 them satisfactory and well framed and helpful in  40 their organization, and we'd ask that with respect  41 to the balance of the interrogatories to be answered  42 by the federal government the same kind of attention  43 be given to questions yet unanswered.  Thank you.  44 THE COURT:  All right.  Thank you.  Ms. Koenigsberg?  45 MS. KOENIGSBERG:  My Lord, with regard to the first category of  46 questions, I'm debated whether to say damned if you  47 do or damned if you don't.  It's our submission that 1991  1 the questions that we have attempted to answer, in  2 fact, are not proper interrogatories but rather than  3 make an issue out of it and the actual form an  4 attempt was made to at least indicate the areas or  5 the type of answer or the type of documentation that  6 we would expect we would be able to find something.  7 Now, the difficulty is this:  If you simply look at  8 the questions in the way they're framed, what in our  9 submission they're actually asking for is this  10 categorization of documents if you will.  They are  11 denials in some instances, and in some instances it  12 simply says that we don't admit.  Whatever  13 distinction can be made out of that, and for some  14 purposes one can make a reasonable distinction.  The  15 point is this:  That there's no way that it can be  16 answered the way it's framed except to go through  17 the exercise of reviewing every document and then  18 making a determination as to how one would argue the  19 document.  20  21 And in my submission, even in Mr. Justice  22 Dohm's wistful thinking as opposed to wishful  23 thinking as to how helpful it would be to have a  24 categorization of documents, in my submission even  25 in his reasons he's indicating why he is so hesitant  26 to order it and how difficult it's going to be.  We  27 actually went through the exercise in addressing  28 these interrogatories if there was a way that we  29 could somehow not categorize the documents which is,  30 I would submit to you, an impossible task and one  31 which is so far beyond what can reasonably be  32 expected of a party in litigation, any litigation,  33 that we would certainly argue strenuously that it  34 should never be ordered.  But what it gets you into  35 is this, and I think Mr. Justice Dohm actually hit  36 the nail on the head in his February 10th reasons.  37 On Page 4.  And it's in the first full paragraph  38 where he says --  39 THE COURT:  I'm sorry, I'm not sure that I have that.  40 MS. KOENIGSBERG:  Oh, okay.  You may not, but I'll just read it  41 to you and then I'll hand it up to you.  I neatly  42 have it underlined.  My friend Mr. Mackenzie has  43 kindly provided another copy.  4 4 THE COURT:  Thank you.  45 MS. KOENIGSBERG:  On Page 4 he says:  46  47 "Again, I think it a fair question to 1992  Submissions by Ms. Koenigsberg  1 ascertain of the Crown Provincial through  2 Mr. Borthwick what written material by way  3 of documents or other extrinsic evidence  4 does the Crown Provincial have to support  5 the allegation in the pleading.  But  6 having produced all of the written  7 material it intends to rely on," and he's  8 referring there to the list of documents,  9 "the Crown's obligation is complete.  10 There is no obligation to disclose how  11 that material supports the pleading.  To  12 go any further than to disclose it is to  13 have the Crown Provincial prepare the  14 plaintiffs' action for trial."  15  16  17 My friend Ms. Mandell is saying read the next  18 paragraph, and in my submission it's not a  19 question --  20 THE COURT:  I heard her and I'm read it go it.  21 MS. KOENIGSBERG:  Okay.  He goes on to say not only in these  22 reasons but in his next reasons in April how  23 terrific it would be if we would consider  24 categorizing the documents because it's a major  25 lawsuit, there are large numbers of documents, the  26 issues are complex, and it would be helpful if we  27 would categorize the documents.  I agree with him,  28 Your Lordship.  If it were possible and reasonable  29 to determine how you were going to argue your case  30 before you got to the end of it then you should  31 categorize your documents.  But with the greatest of  32 respect to Mr. Justice Dohm's reasons and Your  33 Lordship's indications that of course it would be  34 helpful and entertaining it, that is exactly what is  35 required.  There is no particularly helpful way to  36 categorize documents than to look at them and say it  37 goes to this argument or it goes to that argument.  38 If one -- because, if you start with a list of  39 documents, if it's helter skelter there's a way you  40 can deal with that, it should have some order to it.  41 It should be chronological or it should be by  42 subject matter and then chronological.  There should  43 be some sort of order to it.  44  45 Once you've achieved the order you're then  46 into, "How am I going to argue this document?"  47 Because the pleadings set out or should set out the 1993  Submissions by Ms. Koenigsberg  1 issues in varying degrees of specificity.  And how  2 one uses a document -- it can be used for five  3 reasons, it can be used for one.  You may think when  4 you first look at it, or even in the fifth time you  5 look at it that it supports a particular  6 proposition.  You go through the trial, you listen  7 to the evidence, you listen to the other side and  8 you think no, gees, it doesn't support that at all  9 it supports something else.  That happens so  10 frequently that it boggles my mind as to how we can  11 usefully do it.  12  13 And when I say usefully do it I mean two  14 things.  One, without misleading.  Two, without  15 being foreclosed on your argument and indicating the  16 direction in which you're going.  17  18 In my submission Mr. Justice Dohm sees those  19 difficulties when he gets over to Page 5 in his  20 April reasons.  He opines it.  He doesn't know where  21 the jurisdiction is, and I don't think there is any,  22 but there's of course the inherent jurisdiction of  23 the court.  And if it falls within that I say that  24 you won't find very many cases in which it's  25 ordered.  And I think it's for these reasons.  26  27 He says:  28  29  30 "Depending upon the timing of such an  31 order (if one were to be made) it seems to  32 me that it's affect should not tie the  33 hands of the party against whom the order  34 is directed.  I think the most that could  35 be expected from such an order is that  36 each party would use their best efforts to  37 produce all the documents pertaining to a  38 particular issue."  39  40  41 If you just stop there and start to think about  42 producing documents, particularly in a case like  43 this, the Attorney General of Canada, I don't say  44 have a larger problem on its hands in terms of  45 producing documents in this issue, but we cast a  46 very wide net because the issues are so broad and so  47 broadly cast, and in my submission in some instances 1994  Submissions by Ms. Koenigsberg  1 unknown to the law of Canada, that we have to  2 entertain the possible relevance, not just what in  3 our view is the probable relevance of a document,  4 and put it on our list.  And we are getting up close  5 to 10,000 documents.  Many of them, in our  6 submission, on certain views of the law, have no  7 relevance whatsoever, but I'm sure my friend would  8 argue with that and we have an obligation, in my  9 submission, on behalf of the government to produce  10 as many documents that could possibly be relevant as  11 we can.  Now we're put to the task of determining  12 their relevance in relation, my friend would argue  13 not only our pleadings but the plaintiffs' pleadings  14 and I suppose the Province's pleadings.  And in my  15 submission -- first of all we'd have to stop  16 everything else we were doing and devote ourselves  17 to that, and I suppose if we actually accomplished  18 it you wouldn't need us at all we could just hand it  19 in, we wouldn't have to argue the case.  20  21 So I say that Mr. Justice Dohm really has  22 started to address his mind to the difficulties.  He  23 goes on.  He says:  24  25 "If other relevant documents were to  26 surface later in the trial, those ought  27 not to be excluded because of  28 non-disclosure."  29  30  31 So obviously you can't have any sanctions because  32 it's a pretty difficult job in the first place.  33  34  35 "Regardless of the reason for an order for  36 categorization of documents, the result  37 ought not to be that a party is compelled  38 to 'etch in stone' the course they intend  39 to take at the trial."  40  41 In my submission the difficulty with categorizing  42 documents is exactly the same difficulty with  43 attempting to answer interrogatories or discovery,  44 because I don't really think -- we're not trying to  45 make really a real distinction between discovery and  46 interrogatories in this particular instance.  We're  47 being asked to interpret documents fundamentally and 1995  Submissions by Ms. Koenigsberg  1 how they would most reasonably be argued.  And in my  2 submission it simply will not work.  There is no way  3 that you can do it without coming to at least a  4 preliminary determination as to how you would argue  5 it.  6  7 That, I suppose in a nutshell, is the  8 difficulty with the framing of all of the questions  9 in this first batch of interrogatories to the  10 Attorney General of Canada.  The only limitation on  11 these interrogatories is the use of the word "on  12 what documents or other facts".  13 THE COURT:  Well, would it require categorization of all your  14 documents or only categorization of some of them?  15 Or do you say if you're going to categorize you've  16 got to look at them all.  17 MS. KOENIGSBERG:  Well, I would think so.  I mean theoretically  18 one is supposed to address the issue of relevance  19 before one puts a documents on the list.  Taking the  20 law, as I understand it at its widest in terms of  21 discovery of documents, and I think the context of  22 this case which requires extra effort from us all, I  23 don't know how to draw the line, My Lord.  And I say  24 that with all due respect to the ordinary skill as  25 to address to these issues.  26  27 Some of the documents are obvious, but let me  2 8 give you an example.  We have a very large number of  29 fisheries documents on our list.  There are, of  30 course, many millions of more fisheries documents  31 and so obviously we have limited the number of  32 fisheries documents that we have put on our list.  33 We have looked at the issue of relevance.  Now, some  34 of the documents, for instance, go to the issue of  35 the carrying out, if you will, of regulations under  36 the Fisheries Act that pertain directly to the  37 plaintiffs.  Those are in some instances referred to  38 in answering the interrogatories -- the second group  39 of interrogatories which we were given.  Now, should  4 0 we go the next step?  What do those documents mean  41 in relation to the pleadings as opposed to answering  42 a specific question?  We have a list of food permits  43 and they come in a variety of sizes and qualities.  44 They mean all kinds of different things.  They may  45 go to acquiescence.  They may go to extinguishment.  46 They may go to lack of enforcement.  They may go to  47 enforcement.  My Lord, until we actually know what 1996  Submissions by Ms. Koenigsberg  1 the plaintiffs' case is we can't determine the  2 outcome, and with the greatest of respect we don't  3 yet know in some fundamental ways exactly what the  4 plaintiffs' case is.  We don't know, for instance,  5 if they're pleading an aboriginal right to fish.  6 They're pleading ownership and jurisdiction, and so  7 we have pleaded, and we haven't pleaded it we put it  8 in our interrogatories, the Fisheries Act.  We say  9 well that's our jurisdiction.  10  11 So I'm trying to indicate that this is not  12 something we haven't grappled with, that we haven't  13 addressed our minds to, that we haven't really given  14 our best efforts to attempting to be helpful and not  15 to obfuscate, but that it's partly the form of the  16 question.  And I think we've been more than generous  17 in attempting to interpret the question so that it  18 could be answered.  I'm not saying well, it's  19 technically wrong, I'm saying what it's getting at  20 is not something which in my submission you can get  21 pretrial.  And for that reason I don't think much  22 more can be said in terms of the actual quality of  23 the answers.  24  25 But to perhaps -- and maybe it illustrates a  26 little more why the answers are not quite as  27 unhelpful as my friend would say.  But my first  28 submission is we don't have to answer them at all,  29 but given the kinds of answers that we're putting  30 here it demonstrates the difficulty that we have.  31 And you'll find it over in Tab D -- sorry, Exhibit D  32 which are the answers to the interrogatories of the  33 Attorney General.  And it's Number 3 where my friend  34 first -- well, I guess she complained about Number 2  35 too, but -- and I would submit it to you that these  36 answers come closer to being particulars than they  37 do answers to interrogatories, but in my submission  38 that's because what we're asked for is something  39 more in the nature of particulars than  40 interrogatories.  And you have to first look at the  41 question.  So if we look at Interrogatory Number 5,  42 which is in the second page of Exhibit A.  4 3 THE COURT:  Of A?  44 MS. KOENIGSBERG:  Yes.  This is all in Peter Grant's affidavit.  45 THE COURT:  Oh, yes.  Where do you want me to look?  46 MS. KOENIGSBERG:  Paragraph 5.  This is the question to which  47 Exhibit D is attempting to answer.  "On what 1997  Submissions by Ms. Koenigsberg  1 documents or other facts does the defendant rely in  2 Paragraph 5 in the Statement of Defence in answer to  3 Paragraph 52 of the Further Amended Statement of  4 Claim to deny that the Gitksan, other than the  5 people of the Houses of the Kitwancool Chiefs, share  6 a common territory?"  Your Lordship is probably  7 somewhat familiar to Paragraph 52 that is the  8 omnibus paragraph of our claim that the Gitksan,  9 except for the Kitwancool who are Gitksan, share a  10 whole lot of things including a common territory.  11 Now, in my submission we start off with that.  There  12 is no proper interrogatory answer to that question.  13 However, we have some knowledge, and I put that  14 advisedly, and particularly at the time that we  15 answered the interrogatory, that we couldn't admit  16 it because we attempted to go through the exercise  17 of was there something that we could admit.  But we  18 were aware as a result of some historical research  19 which was being done in the Barbeau documents, and  20 if you look back over at Exhibit D, in response we  21 say -- and remember this is why we deny that they  22 have a common territory.  That in the  23 anthropological notes and publications of Marius  24 Barbeau, and I say we -- and I don't even know if  25 that work is finished yet to tell you the truth, but  26 somebody's going through that for us as a historical  27 exercise, and identifies for you that there are all  28 kinds of houses that are not named in the  29 plaintiffs' Statement of Claim.  Now, I'm not quite  30 sure what the significance of that is, but it tells  31 me that there are other people there or have been  32 other people there that are not represented.  That  33 to my mind may go to denying.  But at the time that  34 we're answering this we don't know yet because the  35 analysis isn't finished.  We do know that the  36 plaintiffs are very aware of the Barbeau material.  37 They rely on them extensively.  So it isn't as  38 though we're saying well, you know, here's some  39 obscure piece of anthropological research that  40 you're probably not familiar with so go look.  That  41 is not the context in my submission.  And quite  42 frankly we can't be more specific.  And when we can  43 be more specific it's going to be historical  44 research.  45  46 Now we get to the discovery and commission  47 evidence of the plaintiffs.  In my submission what 199?  Submissions by Ms. Koenigsberg  1 we're indicating here is that we believe that some  2 of the evidence which we have read in the  3 transcripts undermines the assertion that they share  4 a common territory.  Now, my friend says, "Well,  5 that's not helpful enough.  You have to tell us  6 which one and exactly where."  In other words, how  7 are you going to argue it?  Because there's no doubt  8 that my friend's clients and counsel were present  9 when that evidence was being given.  It's a question  10 of interpretation.  But why leave them in the dark  11 that we will be looking at that material and that in  12 our submission there is material there that may very  13 well argue against their assertion.  The same, of  14 course, goes to B, the plaintiffs' answers to  15 interrogatories of the defendant Province of British  16 Columbia.  17  18 Now we get to C, the abstract of the reserve  19 general registry.  And my friend, I'm sure  20 facetiously, said, "Well, those cover all of  21 Canada."  And needless to say we don't mean all of  22 Canada, we mean the ones that pertain to the  23 reserves in the claim area.  And my friends have all  24 the particulars of those reserves.  My friend's  25 clients to a certain extent, of course, inhabit the  26 reserves, and where they don't they now have been  27 given the federal presence, documents and maps  28 showing every reserve in the area.  Now, at the  29 time, to be quite frank, that this answer was given,  30 we did not know of any specific reserve, but I can  31 tell Your Lordship that in the course of the trial  32 and the evidence being given as to certain reserves  33 and who is there and what territory they're in, a  34 very real issue arises as to who inhabits a  35 particular reserve.  And it's in Alfred Joseph's  36 territory.  And it goes to common territory.  Now,  37 we can't resolve that now.  Are we required to give  38 our interpretation of that in answer to an  39 interrogatory?  In my submission this just  40 illustrates why not.  But nevertheless, is it not  41 helpful to indicate the kinds of areas one would  42 look and that we are looking to support the denial?  43 And in my submission that is the function of an  44 interrogatory.  If you can -- if you're asked a  45 specific question you try and give a specific answer  46 and if you can't you don't answer it, but we really  47 are being asked for particulars here, and that these 1999  Submissions by Ms. Koenigsberg  1 answers, if I may, are more in a type of  2 particulars.  These are the areas where we  3 anticipate we will find documents or where we know,  4 in some instances, and where we've known  5 specifically we've been specific.  My friend says,  6 "Well indicate, for instance that if you think it's  7 'cause the Nishkas were there then tell us.  Well,  8 that's (d).  Claims filed with the Office of Native  9 Claims —  10 THE COURT:  I think, Ms. Koenigsberg, we'll take the morning  11 adjournment before you get into that.  12 THE REGISTRAR:  Order in chambers.  These chambers stand  13 adjourned for the morning recess.  14 (PROCEEDINGS ADJOURNED AND RESUMED PURSUANT TO SHORT  15 ADJOURNMENT)  16 THE REGISTRAR:  Order in chambers.  17 THE COURT:  I'm sure I told counsel I had to adjourn at twelve  18 o'clock today, did I, until two o'clock?  19 MS. KOENIGSBERG:  That's fine.  I'll try and shorten this up a  20 bit, My Lord.  21 THE COURT:  Well, speaking for myself there's no rush.  22 MS. KOENIGSBERG:  I won't possibly be finished before twelve  23 o'clock, and we still have the Attorney General's  24 motion to do.  25 THE COURT:  I understand.  26 MS. KOENIGSBERG:  We were dealing, I think —  27 THE COURT:  Well, the last note I have is that you were at (b)  2 8 and (c).  29 MS. KOENIGSBERG:  Going through the list.  30 THE COURT:  Yes.  I think you're at Exhibit D Page 1, Answers  31 3(a) (b) and (c).  You've covered (c) and you were  32 about to go to (d).  33 MS. KOENIGSBERG:  I was going to do (d) and (d) is quite simple.  34 My Lord has heard as my friends are well aware the  35 overlap claims.  There is actually a map published.  36 The Attorney General of Canada has put forward a map  37 outlining those claims and produced it.  There's no  38 secret as between the parties as to those claims and  39 that they overlap into the plaintiffs' claim.  In my  40 submission the plaintiff -- the Attorney General of  41 Canada should not be required to be more specific  42 and indicate that we will be looking at those claims  43 and advancing an argument where appropriate that if  44 the Nishkas say they were there, and of course that  45 goes into an interpretation of their actual claim.  46 But if the Nishkas are making a public claim to the  47 same land, that that surely is an area which the 2000  Submissions by Ms. Koenigsberg  1 Attorney General of Canada has to look at and would  2 support a denial that the plaintiffs have  3 exclusively used or have a common territory.  Other  4 than to get into the nitty-gritty of the  5 interpretation and how one would argue that I would,  6 in my submission, say that this answer is quite  7 specific.  And it makes reference to the  8 Carrier-Sekani Tribal Council and the other tribal  9 councils whose claims impinge.  And that is a  10 published document, My Lord.  It's actually a public  11 notice.  It's been posted all over Canada in a  12 particular form and it's been produced.  And the  13 actual map has been produced now.  14 THE COURT:  I don't think your friend is complaining about (d).  15 MS. KOENIGSBERG:  Okay.  Actually they did in the beginning, but  16 I'll skip right over that.  I don't think my friend  17 is probably complaining, and I would submit has no  18 complaint about the fact that we will be relying on  19 the Indian Reserve Commission and the McKenna  20 McBride Commission and the report to its members to  21 the extent that anything in those reports show  22 applications by other groups than the Gitksan in the  23 claim area.  And these documents are not only public  24 documents and archival documents, they're produced  25 by my friends as well as by the Attorney General of  26 Canada.  The analysis of those is something that our  27 research --respective researchers have been engaged  28 in and are still engaged in.  29  30 The Indian Band membership lists (f), of  31 course those lists have been produced, but aside  32 from that it seems to me that it's quite obvious  33 that to the extent that those Indian Band membership  34 lists show that Gitksan are members of bands that  35 are not in a claim area or would show that there are  36 persons who are registered in -- on membership lists  37 and not living in the claim area, that again goes to  38 a denial that they share a common territory.  How  39 you argue that and which way it goes is, of course,  40 a subject of argument.  It is a document, a source  41 of document and a named document that is relevant to  42 that issue.  I don't, with the greatest of respect,  43 expect that my friend would -- should expect the  44 Attorney General of Canada to go through the Indian  45 Band membership lists that have been produced and  46 indicate which one of them we say that shows that  47 somebody who they say is a Gitksan who shares their 2001  Submissions by Ms. Koenigsberg  1 common territory lives in Timbuktu that we have to  2 point that out.  3 THE COURT:  These are Indian bands membership lists not house  4 lists such as we --  5 MS. KOENIGSBERG:  That's correct.  But they contain information  6 as to where people are and what bands they belong  7 to.  8 THE COURT:  Okay.  But the bands and the houses may not entirely  9 dovetail.  10 MS. KOENIGSBERG:  That's right.  They may not.  11 THE COURT:  All right.  12 MS. KOENIGSBERG:  Now, if we just go on to — I'll try and hit  13 just the specific areas where my friend has made  14 specific mention.  I think that there was a  15 complaint in Answer Number 4 where we have indicated  16 the source of our denials again that they say that  17 all of the Gitksan share a common language.  And we  18 point out that we have statements made to this  19 defendant by present and former fisheries officials  20 and Indian Affairs officials.  Those, of course, are  21 ministry officials.  Those are, as my friend is so  22 fond of pointing out, part of counsel brief.  I  23 think we have to tell them that we, of course, in  24 the course of interviewing people get information  25 from them which gives us reason to deny their  26 assertion and that that's a source.  When we have  27 determined that we would call any of those people as  28 witnesses of course we'll tell them who they are.  29  30 Now, I don't know that it's -- I think my  31 general submission is that we are indicating sources  32 because to be more particular at this point is not  33 appropriate in an interrogatory and that most of  34 this has to do with historical research.  What's in  35 Hudson's Bay Archives which is indicated in further  36 ones is a matter of historical research, and perhaps  37 it would have been better if we hadn't even  38 mentioned it.  But the fact is that my friend has  39 produced expert reports relying on Hudson's Bay  4 0 documents that we would argue would -- may very well  41 be argued the other way, that is not in support of  42 my friend's case.  That's an area where we thought  43 we should indicate that we take a different view of  44 those documents.  45  46 Again, do we have to go so far as to say this  47 document is going to be argued in this particular 2002  Submissions by Ms. Koenigsberg  1 way.  Aside from the fact that of course it's  2 historical research?  And the most I can say about  3 it is that if putting a general answer like that,  4 which we don't have to, then forces us to be more  5 particular we'll certainly not be trying so hard to  6 be helpful.  7  8 I should say that a number of these areas have  9 now been canvassed more completely by experts and we  10 have, of course, produced those reports.  So to some  11 extent my friend has a greater definition of both  12 the issues and the documents that will be relied  13 upon and in producing the expert reports, for  14 instance, of Dr. Goot (phonetic), he does rely to a  15 great extent upon the Hudson's Bay archives.  All of  16 those documents have, by the way, been produced on  17 our list of documents and footnoted so that one can  18 tell which document on the list of documents goes to  19 what point in Dr. Goot's report.  And I don't think  20 that it would be the subject of legal opinion, and  21 we didn't say that in answer but in fact my friend  22 has -- should be in no further doubt as to the areas  23 that the Attorney General of Canada will be arguing  24 when it is the subject of legal opinion or expert  25 opinion.  26  27 Now, if I can move on from the general  28 inadequacy as alleged by my friend at the answers  29 given and on to what she referred to as the second  30 area.  31 THE COURT:  I can use the same numbering sequence that your  32 friend used?  33 MS. KOENIGSBERG:  Yes.  I think she used my letter which is C,  34 Exhibit C, to simply group the answers.  35 THE COURT:  Yes.  36 MS. KOENIGSBERG:  I think you have my submissions on what's not  37 in my letter, that is, I actually had as those areas  38 that we would be providing answers to and I'd like  39 to deal then first with the first one.  Well, in  40 fact I think I have dealt with the first one.  The  41 first one are those which we decline to answer  42 because it's the subject of expert opinion or legal  43 argument.  She agrees but says that we should  44 categorize the documents although that's for further  45 argument and -- oh, I'm sorry, maybe we should just  46 deal with that.  My friend says that she doesn't say  47 that we should categorize the documents, but rather 2003  Submissions by Ms. Koenigsberg  1 tell her where we are on the document list.  I think  2 we're at Number 8,000 and something and we would  3 anticipate a couple of thousand more.  We have not  4 completed all the historical research which will  5 result in further additions, although I would think  6 that of course the bulk has been produced.  We would  7 hope that we're better than 80 percent of the  8 documents.  And in any event, I think you have  9 everything that I should say and probably more on  10 the subject of categorization of documents.  11 THE COURT:  Well, Ms. Mandell's application wasn't really as I  12 understood you just to have stated, Ms. Koenigsberg.  13 You said that she doesn't say we have to answer the  14 question she says we should categorize.  I think her  15 application was to answer the questions, wasn't it?  16 MS. KOENIGSBERG:  Not with regard to Number 1.  At least my note  17 was that she agrees that they may be the subject of  18 expert opinion or of legal argument.  That's just  19 with Category Number 1 in my letter, but that they  20 should be grouped and that she was asking that we  21 advise at this point how far along we were on  22 listing documents so that they would then be in a  23 position to assess whether they should bring on a  24 motion consistent with the suggestions of Mr.  25 Justice Dohm.  Yes.  She's nodding her head.  I  26 think that's where we are.  27 THE COURT:  All right, thank you.  28 MS. KOENIGSBERG:  Now, with regard to grouping number 2 on my  29 letter, my note is that the two questions which she  30 presses are 49 and 50.  And maybe I can deal with  31 both the abstract and the concrete at the same time.  32 49 recites a particular paragraph of the Province's  33 defence dealing with extinguishment by specific  34 enactment and then asks the question what documents  35 or other facts are in the possession of this  36 defendant, the Attorney General of Canada, to  37 indicate that the intention of the makers of the  38 said laws was to extinguish the plaintiffs'  39 ownership of or jurisdiction of the territory by the  40 instruments listed in Paragraph 37.  I think I'll  41 give you in three lines what is in our submission  42 wrong with that interrogatory.  Number 1, it's  43 asking us to interpret the Province's pleading,  44 which in my submission is not appropriate on any  45 interrogatory or even probably in argument.  Number  46 2, it asks for a legal opinion.  And Number 3, it  47 asks for an interpretation of documents with 2004  Submissions by Ms. Koenigsberg  1 relation to the interpretation that we would make of  2 the Province's pleading.  And even if it weren't the  3 Province's pleading it's asking -- I mean, I would  4 have thought that nothing could be more startlingly  5 the subject of a legal opinion than the intentions  6 of the makers of the laws with regard to specific  7 legal concepts.  50 we would say is exactly the  8 same.  And to contrast that it might be of  9 assistance to see the one question, which although  10 framed in terms of the Province's pleadings we did  11 answer, and that is answer 65 -- I'm sorry, in  12 answer to 65, the question was, "In Paragraph 34 of  13 the Province's Statement of Defence the Province  14 alleges --" and it goes on for a very long paragraph  15 dealing with aboriginal title ownership and  16 jurisdiction and Indian reserves.  And then the  17 summary question, "Was what Indian reserves have  18 been set aside for the use and benefit of the  19 plaintiffs or their ancestors?"  And we answered  20 that by affidavit which you don't have in front of  21 you but which is an affidavit of Anne Biggs because  22 we could answer the simple question of what reserves  23 had been set aside for the use and benefit of the  24 plaintiffs or their ancestors, factually.  In other  25 words, we weren't necessarily legalistic in saying  26 well, you know, they're just asking us to interpret  27 the Province's pleading.  We sort of ignored the  28 pleading of the Province and answered the question  29 what Indian reserves.  And it's a relatively lengthy  30 answer and tells them what Indian reserves.  In  31 other words, it was possible to answer that question  32 without interpreting unduly either a group of  33 documents, that is a legal interpretation, or the  34 pleadings.  But of course we say in relation to 49  35 and 50 what is required is not within the ambit of  36 interrogatories.  37  38 Now, with regard to the next group where our  39 plea for not answering is that the questions are not  40 relevant, there are only two of those out of a  41 mighty number, I might say, that my friend presses,  42 and they are 60 and 62.  And in my submission, they  43 still are not relevant as it would be our submission  44 that the views and policy, whatever that means -- I  45 mean, I can figure out what policy means but I'm not  46 quite sure what views in this context means -- is  47 not relevant in our submission to the question 2005  Submissions by Ms. Koenigsberg  1 asked.  The questions asked for, in my submission, a  2 legal opinion, legal argument in any event.  But in  3 our submission it is for this court to determine  4 what the meaning of section 35 of the Constitution  5 Act of 1982 is.  And with the greatest of respect,  6 the views and policy may be the policy of the  7 defendant could be admitted by extrinsic evidence,  8 but it certainly is a question of legal argument,  9 and the documents would only, in my submission,  10 likely be found in legal opinions.  And I would  11 doubt very much if the views, if it's less than  12 different than policy, would be as admissible as  13 intrinsic evidence.  But nevertheless A, in our  14 submission it is not relevant because it is for the  15 court to determine on the wording in the context  16 what the meaning of the constitution is.  And it  17 calls for our interpretation of documents in  18 relation there to.  And 62 is the same, it's just  19 different sections of the constitution.  And I think  20 the very posing of the question indicates the  21 difficulty.  What documents or other facts do we  22 have which indicate the views and policy.  Well, if  23 there's been a policy put out by the government,  24 which I doubt, on this topic, aside from arguments  25 which may have been advanced in courtrooms, then  26 it's published.  And if we were to come across one  27 in my submission we would put it on our list of  2 8 documents.  My friends would have it.  I'm sure it  29 would be in the public domain.  If it's not then  30 surely a document of that sort would be privileged  31 by its very nature.  And I say that not because I  32 know that there are such documents and that we  33 haven't produced them because they're privileged,  34 but rather to indicate the type of thing, the type  35 of question that we've been getting at here.  In my  36 submission what we're getting at here is what is the  37 federal government, some representative of the  38 federal government's opinion, as to the meaning of  39 the constitution?  And of course that's very much in  40 issue in all lawsuits today in which the federal  41 government is a party, and sometimes even when it's  42 not, all over the country.  43  44 With regard to Question 77 through 86, they  45 all deal with Treaty 8, I think.  46 THE COURT:  Just a moment now.  Oh, yes, thank you.  47 MS. KOENIGSBERG:  And maybe I have to deal with them seriatim 2006  Submissions by Ms. Koenigsberg  1 here.  Originally, of course, at the time of the  2 interrogatories my friends had not pleaded Treaty 8.  3 They now have amended their pleadings and have now  4 pleaded it.  But in our submission if we just look  5 at Paragraph 77 or Question 77, Interrogatory 77,  6 "With respect to the Peace River Block, what Treaty  7 commitments did the Defendant make to settle the  8 issue of Aboriginal title with the Indian nations  9 throughout that territory?"  That calls, in my  10 submission, for a great deal of interpretation.  In  11 other words, it isn't just a question of producing  12 documents or saying a treaty was made or any other  13 factual questions, it's asking us to come up with  14 documents which answer issues.  Was it a settlement?  15 Did it deal with the issue of aboriginal title?  And  16 then Question 78, "When were those commitments made"  17 I assume goes back to 77 and falls on that wording  18 for the same reason.  If my friend is interested to  19 know the date of a treaty then that's a proper  20 question, although I'm sure that they wouldn't have  21 to ask us that question, but nevertheless we could  22 answer it.  Who were the parties to the treaty, et  23 cetera?  Those are factual questions which, if  24 they're relevant, although I have a great deal of  25 difficulty as to their relevance, but if they're  26 relevant then they're easy to answer.  In my  27 submission, this is not easy to answer.  This is a  28 question which begs as many questions as it asks for  29 answers.  30  31 Now, we get down to 83.  I mean, all of the  32 rest of them follow.  We get down to 83.  "Did the  33 Provincial Government honour the Federal  34 Government's commitment under Treaty 8 to the Indian  35 nations within British Columbia?"  Well, if there's  36 an issue there, and quite frankly I don't know that  37 this is, but if there's an issue there then I expect  38 there are reams of legal opinion on them, but none  39 of them would be producable or properly answered,  40 but what else could my friend be asking here but for  41 us to determine and answer the question.  42 THE COURT:  Maybe she wants an admission that no, they were not.  43 It wouldn't be an admission because they're asking  44 about somebody else, but a statement that no they  45 did not.  Maybe there's a clear assertion by the  46 federal government that they did not -- that the  47 Province did not honour Treaty 8.  Why wouldn't 2007  Submissions by Ms. Koenigsberg  1 that -- if it's relevant at all, you say it's  2 pleading.  3 MS. KOENIGSBERG:  With the greatest of respect, I don't see it's  4 relevance.  I have a great deal of difficulty with  5 the relevance of Treaty 8.  6 THE COURT:  Subject to relevance, if there was a series of  7 accusations by the federal government to the  8 Province saying, "You're not carrying out the terms  9 of Treaty 8," was the province a party to it?  10 MS. KOENIGSBERG:  I have no idea, My Lord.  I have never looked  11 at Treaty 8.  12 THE COURT:  Ms. Mandell says the Province is not a party to  13 Treaty 8.  But the Province theoretically could  14 frustrate Treaty 8, I suppose.  If the Province --  15 if the federal government has brought those  16 complaints home to the Province subject to relevance  17 should that not be answered?  18 MS. KOENIGSBERG:  Yes.  If one could answer it in that way.  But  19 here's the difficulty.  Your Lordship does say  20 subject to relevance, and I say I think it's agreed  21 among the parties here that there are no treaties in  22 claim.  There are no treaties with the Gitksan and  23 so how do we make dealings in regard to treaties  24 relevant to the issues?  If one wanted to speculate  25 one could speculate that treaties could extinguish  26 aboriginal title, and extinguishment of aboriginal  27 title is a relevant issue.  And therefore this was a  2 8             way that the federal government extinguished  29 aboriginal title.  Well, with the greatest of  30 respect, the law is very clear.  There is not only  31 one way to extinguish aboriginal title, and if there  32 are no treaties in the area --  33 THE COURT:  That's not one of them.  34 MS. KOENIGSBERG:  That's not a — I just don't know how it is  35 relevant.  36 THE COURT:  All right.  Sounds like Dunlop and Sulfer.  37 MS. KOENIGSBERG:  Do we need to stop now?  38 THE COURT:  Gentlemen, I'm afraid we have to.  39 MS. KOENIGSBERG:  Darn, I was having such a good time.  40 THE COURT:  So was I, but I only reserved Friday for this so I  41 made a commitment but we will continue on until  42 we've finished.  43 MS. KOENIGSBERG:  I think we will only be an hour and a half.  44 THE COURT:  I think they asked us to hear an application of a  45 bail order which shouldn't take longer than two  4 6             minutes.  47 THE REGISTRAR:  Order in chambers.  These chambers stand 200?  Submissions by Ms. Koenigsberg  1 adjourned till two o'clock this afternoon.  2 (PROCEEDINGS ADJOURNED AND RESUMED PURSUANT TO  3 LUNCHEON ADJOURNMENT)  4 (ANOTHER MATTER SPOKEN TO)  5 THE REGISTRAR:  In the matter of Delgamuukw and others versus  6 Her Majesty the Queen continuing, My Lord.  7 THE COURT:  Mr. Koenigsberg?  8 MS. KOENIGSBERG:  Yes, My Lord.  I think we're through.  9 THE COURT:  Number 4.  10 MS. KOENIGSBERG:  Yes.  Well, I guess we're on to Number 4 in my  11 letter, the general topic being requiring further  12 clarification of the terms "accepted" and  13 "additional lands".  14 THE COURT:  Yes.  15 MS. KOENIGSBERG:  And my friend refers us to, I think, the reply  16 to the demand for particulars by the Province.  And  17 perhaps if that's correct we can start there.  It's  18 in the trial record, My Lord, at tab --  19 THE COURT:  Well, your friend only asks for 60, 62, 77 to 86.  20 MS. KOENIGSBERG:  No, I'm sorry.  That's in the not relevant  21 category.  22 THE COURT:  Yes.  23 MS. KOENIGSBERG:  Sorry.  And I think I've given you all of our  24 arguments on that one.  2 5 THE COURT:  Yes.  26 MS. KOENIGSBERG:  Subject to that topic, especially 77 through  27 86 are, I think what we can call the Treaty 8  28 questions.  And I think the only thing that I hadn't  29 yet mentioned as a qualifier, I think that Ms.  30 Mandell may have said that they -- to the extent  31 that those require historical answers they're only  32 looking for living memory, and if we are required to  33 answer any of those questions then I'm assuming that  34 it would be only within living memory.  35 THE COURT:  That's all she asked for.  36 MS. KOENIGSBERG:  I think she did.  I couldn't tell from my note  37 whether that was my note or a note she said.  38  39 So then on to the next topic which is the  40 group of Questions 71 through 74 which we asked for  41 clarification on April 15th of the terms "accepted"  42 and "additional lands".  And maybe just to be sure  43 we're all on the same track we should look at the  44 questions first.  71 being, I suppose, the most  45 convenient one, asks, "Who from among the Plaintiffs  46 or their ancestors accepted the lands which were  47 referred to in paragraph 67(b)?"  And 67(b) is just 2009  Submissions by Ms. Koenigsberg  1 up at the top of the page there.  It says, "Which  2 from among those Indian Reserves referred to in  3 paragraph 65 were requested by the Plaintiffs or  4 their ancestors to be set aside?"  And I believe we  5 answered that question.  And then 71, "Who from  6 among the Plaintiffs or their ancestors accepted the  7 lands?"  And our problem was that there are a number  8 of interpretations one could give to the word  9 "accepted" and we were simply asking them to tell us  10 which one they wanted us to use.  And today Ms.  11 Mandell refers us to the particulars, that is the  12 reply to the particulars of the Province.  And I  13 have found those at Tab 9 in the trial record.  14 THE COURT:  Yes.  I think that's what she said.  15 MS. KOENIGSBERG:  And if I read that correctly we may substitute  16 for the word "accepted" what's on Page 5, and it's  17 5, 5(b), "The Plaintiffs or their ancestors  18 commenced or continued occupation or use of the  19 additional lands thereby accepting."  So I take it  20 that we can substitute "commenced or continued  21 occupation or use".  And if we do that we certainly  22 don't have any difficulty in defining that version  23 of accepted.  It may -- now, if we also limit that  24 to living memory, I don't know if we would have  25 difficulty answering it.  I was actually trying to  2 6 imagine just a moment ago what documents there might  27 be, because we're going to be talking documents,  28 we're not going to have persons who were probably  29 back in 1913 or something.  30 THE COURT:  Well, should the Attorney General of Canada be  31 allowed to rely on the limitation of living memory?  32 I imposed a living memory test on the plaintiffs in  33 the Mears Island case on a number of interrogatories  34 I dealt with because it seemed to me that the social  35 organization of that plaintiff or group of  36 plaintiffs was fitting that they should answer  37 within living memory, but when you're dealing with a  38 corporate sole like the Attorney General of Canada  39 is living memory a relevant consideration?  40 MS. KOENIGSBERG:  Well, My Lord, I think it poses two problems.  41 I don't think you can, quite frankly, impose it sort  42 of as an absolute, no.  On the other hand, I believe  43 that -- number one, I believe it's been imposed with  44 regard to Mr. Borthwick on behalf of the Province  45 that he need only answer those things that would be  4 6 within memory.  It has to do with when the  47 representative of the Attorney General of Canada 2010  Submissions by Ms. Koenigsberg  1 makes inquiries or needs to make inquiries in order  2 to answer it, then the living memory surely has  3 relevance.  After that it's a question of whether  4 you're into historical research or not.  5 THE COURT:  Well, if you have — if the Attorney General of  6 Canada has a report from some mysterious figure that  7 I'll call an Indian agent and he reports that the  8 day after some reserves were set up that continuing  9 to live on the reserve was A, B, C, D and their  10 families.  Now, is that not an interrogatory that  11 should be answered responsibly if you have that  12 information.  13 MS. KOENIGSBERG:  Yes, My Lord.  The difficulty is that my guess  14 is that most of the documents, including reports of  15 that sort, become archival.  They become archival, I  16 think, after 30 or 40 years.  17 THE COURT:  So you mean it becomes historical research because  18 you've got to go to archives to find them.  They're  19 not conveniently located in somebody's file in  20 Ottawa?  21 MS. KOENIGSBERG:  That's right.  When you can go to the Indian  22 agent, the Indian agent is still alive --  2 3 THE COURT:  Yes?  24 MS. KOENIGSBERG:  — even though he doesn't work for the federal  25 government any more.  I think reasonably you might  2 6 be able to make an argument you should have to go  27 and ask him.  If you go and ask him and say well  28 there's this document, even if it's archival, it's  29 been identified to you.  To me it becomes -- you're  30 getting technical to say that you don't have to go  31 and do it, even though maybe technically you don't.  32 But when it requires that you hire a researcher to  33 go and review documents and in the course of  34 reviewing those documents they have to make  35 decisions about what's relevant, and I suppose -- I  36 mean, to go and look for that document, that's not a  37 possible or a reasonable task.  You've got hundreds  38 of thousands of documents, or at the least tens of  39 thousands of documents which could be relevant  40 geographically.  You can always limit it  41 geographically.  You still have tens of thousands  42 which are relevant to the western region, and then  43 you've got probably tens of thousands that are  44 relevant to the claim area.  And we certainly have  45 researchers, as do the plaintiffs, combing the  46 archives for documents and they're being produced.  47 But you would have no way of easily going and 2011  Submissions by Ms. Koenigsberg  1 finding the answer to that question, for instance,  2 except if there are documents which record who was  3 on the reserves at a given time, a census type of  4 document.  Those may exist, and if they do then we  5 can identify them and tell the plaintiffs that it's  6 document number whatever it is and I have no  7 objection to doing that.  8 THE COURT:  All right.  9 MS. KOENIGSBERG:  The question is — and that's why sometimes  10 even though it's historical research we have  11 identified documents and said it's on our list  12 because we know it's there.  13 THE COURT:  All right.  14 MS. KOENIGSBERG:  Okay.  Maybe we just better quickly look at  15 the rest of these questions.  Question 73, "On whose  16 behalf did the Plaintiffs or their ancestors accept  17 the lands referred to in paragraph 67(b)?"  In terms  18 of that definition I have some grave difficulty in  19 interpreting that question.  It seems to me that  20 again we're into an area where we have to make  21 decisions of agency or --  22 THE COURT:  You've got to get inside the head of the acceptor.  23 MS. KOENIGSBERG:  Yes.  And even who's designated them and so  24 on.  And I think that's actually a legal question.  25 And if it's clear on the face of the documents my  26 friend has the documents.  My friend has access to  27 all of the documents.  I think our answers to most  28 of these came out of really an analysis of the  29 McKenna McBride and other reserve commissions.  30 THE COURT:  All right.  31 MS. KOENIGSBERG:  We have a difficulty again with 74.  It uses  32 the word "intended" again.  "What documents or other  33 facts are in the possession of the Defendant to  34 indicate that the Defendant or the Province of B.C.  35 intended that if the Plaintiffs or their ancestors  36 accepted additional land to be set aside as Indian  37 Reserves within their territory, that the Plaintiffs  38 or their ancestors voluntarily gave up to the Crown  39 their ownership of or jurisdiction to their  40 territory?"  We are into legal argument here, I  41 think.  If we are able to identify documents which  42 answer Question 71, then I would submit it would be  43 a question of argument when we get into 74 as to  44 what those documents mean.  So that's the difficulty  45 I have with 73 and 74.  46  47 Now, that takes us to the next category, and I 2012  Submissions by Ms. Koenigsberg  1 think we dealt with 55.  These are ones that we  2 could not understand as presently worded.  We didn't  3 deal with 55.  4 THE COURT:  Yes.  Your friend dealt with Question 55.  5 MS. KOENIGSBERG:  Yes.  Now I understand what my friend wants  6 and my submission would be that it's not relevant.  7 What happened in the rest of Canada, assuming for  8 the moment that a document actually existed which  9 cited examples of the kind that my friend has  10 suggested, then I can't see the relevance of that to  11 the Gitksan claim or the treaty.  At the very least  12 I would think that there would have to be some  13 limitation on a question of that.  If one could  14 imagine the relevance of it to the issues surely not  15 every treaty in Canada, I hate to use the word  16 oppressive, but I just can't imagine the project  17 that one would have to undertake to do this  18 analysis.  But if there -- one could make -- if  19 there were a nexus between that question and the  20 Gitksan facts and let's say someplace else in  21 British Columbia or with something connecting it  22 together to make it relevant, then I guess I'd say  23 that it's at least clear enough to answer.  But as  24 it is I can't see the relevance of it.  I don't  25 think I can say anything else about that.  26  27 89(a), I don't know how one answers yes or no.  28 As I look at it it refers us back to Paragraph 33 of  29 the Province's defence and agreements referred to  30 there, and I frankly don't see any agreements  31 referred to in Paragraph 33.  If there is another --  32 if it's there somewhere I'll be assisted by having  33 it pointed out, and if it's some other paragraph --  34 THE COURT:  Your friend says it can be answered yes or no.  35 MS. KOENIGSBERG:  Well, I don't think, with the greatest of  36 respect, as I look at Paragraph 33, and I'm looking  37 now at Tab 7 of the Province's defence, there is no  38 reference to agreements in that paragraph.  39 THE COURT:  In Paragraph 33?  40 MS. KOENIGSBERG:  Yes.  That I can find.  The question is, "Did  41 the defendant exercise authority for and on behalf  42 of the plaintiffs or their ancestors by the  43 acceptance and implementation of the agreements  44 referred to in paragraph 33 of the Province's  45 statement of defence and by the enactments and  46 passages of the Statutes of Canada and  47 Orders-in-Council of the Governors-in-Council 2013  Submissions by Ms. Koenigsberg  referred to in the said paragraph."  I don't think I  can solve this with a side conversation with my  friend.  I don't understand in the context of  Paragraph 33 what's being referred to.  I understand  the second part to be somewhat separate and to say,  "and by the enactments and passages of the Statutes  of Canada and Orders-in-Council and  Governor-in-Council as referred to in the said  paragraph."  There are paragraphs or enactments  referred to there, and if it weren't for that, with  the greatest of respect, I think that that's asking  for again a legal interpretation, a legal argument  if you will.  Well, let me get in on this. Ms. Mandell, what do  you say the agreements referred to in Paragraph 33  of the Province's defence are?  :  I'm afraid you've got my trial record.  Oh, sorry.  :  Well, I think the agreements which were being  referred to there were the constitutional  agreements.  What are they?  :  Well, the --  You mean constitutional provisions in —  :  Well, beginning with the Constitution Act 1982 and  1987 which were agreements of -- agreements between  the federal and provincial governments, and  similarly the British Columbia terms of union also  which were -- resulted finally in the constitutional  enactment.  The Constitutional Act, what years did you say?  :  1867, 1982 and the terms of union which were --  Well, that's part of the -- the terms of union are  part of --  :  1871, part of the Constitution Act 1867.  You're asking me to read agreements then -- to  substitute for agreements the word constitutional  statutes?  :  That would be right.  All right.  Does that help you, Ms. Koenigsberg?  41 MS. KOENIGSBERG:  Yes.  It, in my submission, assists my  42 argument that what's being asked for here is a legal  4 3 argument.  44 THE COURT:  All right.  Well, I think I have your joined issue  45 on this question.  46 MS. KOENIGSBERG:  Yes.  The last one was the, I think small  47 issue that my friend referred to, what I'll call the  1  2  3  4  5  6  7  8  9  10  11  12  13  14  THE  COURT:  15  16  17  MS.  MANDELL  18  THE  COURT:  19  MS.  MANDELL  20  21  22  THE  COURT:  23  MS.  MANDELL  24  THE  COURT:  25  MS.  MANDELL  26  27  28  29  30  31  THE  COURT:  32  MS.  MANDELL  33  THE  COURT:  34  35  MS.  MANDELL  36  THE  COURT:  37  38  39  MS.  MANDELL  40  THE  COURT: 2014  Submissions by Ms. Koenigsberg  1 basket clause, any other facts or documents that we  2 haven't already told them about.  And our answer to  3 that was that it wasn't a proper interrogatory, and  4 in my submission it is not.  And A, because in my  5 submission it's not necessary.  When you've asked  6 the question, if you've asked a proper one, then it  7 should be answered completely.  And the reference to  8 the reasons of Mr. Justice Locke in relation to  9 other knowledge parts of questions which were put by  10 the Province to the plaintiffs, I went back and  11 looked at a couple of them, not all of them, and I  12 understood both Mr. Justice Locke's remarks in that  13 regard to go to if it's not clear that when we say  14 personal knowledge that you need answer and make  15 proper inquiry.  As for other knowledge then it's  16 other knowledge.  And that's a very specific  17 question being asked by the Province.  And they're  18 asked for personal knowledge, and then specifically  19 in relation to that personal knowledge they're asked  20 for other knowledge.  Mr. Justice Locke simply added  21 that that would be understood to be inquiry,  22 reasonable inquiry.  Well, in my submission that  23 would have no application to the Attorney General of  24 Canada since all questions -- we are seeking to  25 answer all questions on usually other knowledge.  In  26 other words, it's inquiries and very rarely is it  27 personal knowledge.  28 THE COURT:  This basket question is where?  29 MS. KOENIGSBERG:  It's 46.  For some reason it's sort of stuck  30 in the middle instead of at the end.  Perhaps it's  31 meant to come just at the end of all the questions  32 which seem to arise out of denials, I'm not sure,  33 but it simply says on what documents or other facts  34 does it rely in Paragraph 1 of the Statement of  35 Defence, which is the general denial clause, other  36 than those allegations and denials already addressed  37 in the above-noted questions.  In my submission,  38 that's simply too broad.  It's true that there is  39 that kind of general denial which is a form of  40 pleading, but it's not really a question that one  41 can address an answer to.  I suppose that's the real  42 problem.  And I hardly think my friends are  43 prejudiced by our failure to answer it since they  44 can get at any lack in answering by being specific.  45  46 That ends our submissions with regard to the  47 plaintiffs' application. 2015  Submissions by Ms. Koenigsberg  1 THE COURT:  Well, I'm sorry, Ms. Koenigsberg, I have —  2 MS. KOENIGSBERG:  Oh, I'm sorry.  3 THE COURT:  There are two more categories.  4 MS. KOENIGSBERG:  Yes.  5 THE COURT:  No, I'm sorry there's just one more.  Question 46  6 was your friend's seventh point, as I have it, and  7 there's another question dealing with —  8 MS. KOENIGSBERG:  The next set.  9 THE COURT:  The next set, yes.  10 MS. KOENIGSBERG:  I'm sorry, I do have it here.  I just see  11 that.  That deals with the second set of  12 interrogatories which, generally speaking, were not  13 in the form of the first interrogatories, which if I  14 can begin on a preliminary note, my friend was much  15 happier with the answers that she got.  And all I  16 can say is we were much happier with the questions.  17 They tended, at least, to be much more specific and  18 easier to answer.  19  20 Now, with regard to one through nine and 11,  21 we declined to answer those on the basis that they  22 were not relevant to this action.  These are the  23 grounds upon which we say that they are not  24 relevant.  They pertain, if they pertain to anything  25 in this action, to first the appropriateness, if you  26 will, of the jurisdiction exercised by the federal  27 government.  In my submission, that's not an issue  28 in this lawsuit.  The issue in this lawsuit as posed  29 by the plaintiffs is that they had jurisdiction.  30 The federal government denies that they have  31 jurisdiction and says that the federal government  32 has jurisdiction with regard to the fisheries.  33 There is specific legislation in place.  And that's  34 the simple answer to it.  There's no issue, in my  35 submission, on the plaintiffs' pleadings that the  36 federal government does not have jurisdiction.  They  37 haven't pleaded that, and if they had my suspicion  38 is we'd be in federal court, but my submission is  39 that on their pleadings that isn't there.  40 THE COURT:  What is it precisely you say is not there?  41 MS. KOENIGSBERG:  That the federal government does not have  42 jurisdiction.  Further --  43 THE COURT:  That is it doesn't have the jurisdiction on fishing?  44 MS. KOENIGSBERG:  That's right.  In my submission it denies any  45 jurisdiction in the province in a number of areas  46 but does not deny or say that the federal government  47 does not have jurisdiction. 2016  Submissions by Ms. Koenigsberg  1 THE COURT:  Tell me just for a moment, who brought the federal  2 government into this lawsuit?  3 MS. KOENIGSBERG:  The Province, kicking and screaming.  4 THE COURT:  The Province had you added as a defendant?  5 MS. KOENIGSBERG:  Yes.  6 THE COURT:  Against the objection of the plaintiff?  7 MS. KOENIGSBERG:  Yes.  8 THE COURT:  All right.  9 MS. KOENIGSBERG:  Secondly, some of the questions, and we will  10 get to them -- some of the questions, in my  11 submission, might be relevant or at least are partly  12 only relevant to a pleading by the plaintiffs of a  13 traditional aboriginal right to fish, which in my  14 submission they have not pleaded.  And thirdly, what  15 follows from the previous two, and what clearly  16 these questions are aimed at or at least many of  17 them, is not whether the federal government does  18 have jurisdiction but whether it exercises its  19 jurisdiction prudently.  One can substitute a number  20 of words for prudently.  And in my submission that  21 is not an issue in this lawsuit.  Now, if we just  22 look at the questions, and they are at what I  23 called --  24 THE COURT:  Tab A, I think.  They're Exhibit A to Mr. Grant's  25 affidavit.  26 MS. KOENIGSBERG:  No.  At the very end.  They're the last  27 interrogatories referred to.  And the answers  28 contain the questions.  2 9 THE COURT:  Oh, yes.  30 MS. KOENIGSBERG:  I've got it marked as Tab F on mine.  I think  31 it is meant to be F, yes.  It looks like an I on my  32 stamp.  Do you have that?  33 THE COURT:  Yes.  I think isn't it —  34 MS. KOENIGSBERG:  It looks like a 1 or a F.  35 THE COURT:  That looks like — is that E or I?  36 MS. KOENIGSBERG:  His affidavit is an E and the answers are  37 attached at 1.  38 THE COURT:  All right.  We're looking at questions one to nine  39 and 11.  40 MS. KOENIGSBERG:  One, "Does the Defendant exercise its  41 jurisdiction over the sea coast and inland fisheries  42 based on the management priorities of conservation  43 first, Indian fisheries second and commercial and  44 sports fisheries third?"  45 THE COURT:  That sounds like it's coming out of Sparrow.  46 MS. KOENIGSBERG:  It certainly does.  It could even come out of  47 a by-laws case, but in my submission it doesn't come 2017  Submissions by Ms. Koenigsberg  1 out of this one.  In my submission it's quite clear  2 that it's simply not an issue in this lawsuit  3 whether the federal government is exercising its  4 jurisdiction right, wrong or indifferent.  If it  5 were pleaded it's whether it's exercising its  6 jurisdiction at all and what flows from that.  And  7 our submission is and will be that it has affect,  8 either it extinguishes or regulates the fishery.  It  9 certainly, it is our submission, that it exercises  10 exclusive jurisdiction, but what management policies  11 it's based on is simply not an issue.  12  13 We go on to Number 2.  "What are the  14 management priorities of the Defendant."  Well, if  15 that were in issue we could answer the question.  16  17 "What does the Defendant mean by  18 conservation?"  We don't use the word  19 "conservation".  That is in the plaintiffs' -- the  20 plaintiffs say that they conserved.  It would be an  21 appropriate question to ask of the plaintiffs, and  22 we'll get to that, but in my submission it is not an  23 appropriate question to ask of the Attorney General  24 of Canada.  25  2 6 And I think that four is just what do we mean  27 by the phrase "conservation purposes".  We didn't  28 use the phrase "conservation purposes", so even if  29 it was relevant, I don't know, we'd have to have it  30 in relation to something other than when it refers  31 to fishing closures for conservation purposes.  I  32 guess that does tell you.  33  34 And then the Defendant's management of the  35 salmon and steelhead fishery on the B.C. northcoast  36 and Skeena River reflect the management priorities.  37  38 All of the questions, in my submission, go to  39 either what are the management priorities or how  4 0 much money have you spent in carrying out your  41 authority and your jurisdiction under the Fiseries  42 Act.  Those are Questions 6, 7, 9, maybe 8.  43  44 Eight, "In the years '77 to '86 what were the  45 economic benefits provided by the Pacific salmon  46 fisheries to:  The Defendant, commercial fishermen,  47 processors and distributors."  We're getting again 201?  area if  Submissions by Ms. Koenigsberg  1 at what the management priorities are.  Now, I  2 should -- and 11 is again getting at the cost.  3  4 Now, I should say to Your Lordship that Mr.  5 Morrell's report, the infamous Mr. Morrell, and I  6 don't mean to be disrespectful, in that the often  7 heard about Mr. Morrell's report does address a  8 number of these issues.  That, in my submission,  9 does not make it relevant.  Mr. Palmer's report  10 addresses some of them because it is a response to  11 Mr. Morrell, if it should be found that we have to  12 respond to it, although Mr. Palmer's report seeks to  13 address other issues.  That does not make it  14 relevant.  Certainly the amount of money spent is  15 not relevant to this lawsuit.  16 THE COURT:  Just as a matter of interest, are the facilities at  17 Fulton River within the claim territory, claim area?  18 MS. KOENIGSBERG:  I don't think it is, but it —  19 THE COURT:  Close.  20 MS. KOENIGSBERG:  — but frankly, I think fisheries, and this is  21 the difficulty we get into and what's relevant and  22 what's not relevant, you have to look at watersheds  23 and you have to look at -- fisheries is divided up  24 not sort of the claim area but huge areas which will  25 impact directly.  26 THE COURT:  But the eastern boundary in that area looked to me  27 about 10 to 15, 16 miles west of Babine Lake and  28 Fulton River is within -- was due south of that area  29 actually, I thought, and I would have thought just  30 outside the claim area.  But I gather there's no  31 certainty in that question or is there?  32 MS. KOENIGSBERG:  Well, My Lord —  33 THE COURT:  Ms. Mandell seems to think it's within the claim  34 area.  35 MS. MANDELL:  No.  We don't think it is.  We think the  36 watersheds and enhancement programme at Fulton River  37 directly impacts on the runs claims area, but I  38 don't believe it is in the area.  39 THE COURT:  I see.  40 MS. KOENIGSBERG:  We do agree, and there's no question you have  41 to go sometimes quite far outside the claim  42 you're going to talk about what's going on inside  43 the claim area.  But my -- I think you have my  44 submissions on the questions -- on those questions.  45 THE COURT:  Yes, all right.  46 MS. KOENIGSBERG:  And I think those were the only questions  47 objected to. 2019  Submissions by Ms. Koenigsberg  1 THE COURT:  What happened again to Question 10?  Did you answer  2 it?  3 MS. KOENIGSBERG:  I think we must have answered it or my  4 friend's not pressing, but I'll just look at it  5 again.  I think we went from nine to 11.  6 THE COURT:  Yes.  All right.  Your friend didn't ask for it.  7 MS. KOENIGSBERG:  It was answered.  8 THE COURT:  Yes, all right.  9 MS. KOENIGSBERG:  I would just — as my final remark, I would  10 just comment that if we look at the questions that  11 are asked we don't have the kind of questions or the  12 format of questions that make it impossible to  13 answer in this set of interrogatories.  So it was --  14 the specific questions are being asked which make it  15 much easier to respond with answers to  16 interrogatories.  17 THE COURT:  Yes, all right.  Thank you.  Ms. Mandell?  18 MS. MANDELL:  My Lord, I'll be brief.  With respect to the first  19 category of questions, I think that my friend has  20 actually pointed the way to being able to respond to  21 the interrogatories without having to list source  22 material or get into extensive document disclosure  23 which isn't really what we're seeking with the  24 question.  The examples that she gave to us were new  25 news and all provided the kind of answer that we  2 6 would be very happy to receive.  For example -- and  27 if I could just site two examples of categories of  28 answers which she provided, the question which she  29 illustrated was the denial that the plaintiffs and  30 their ancestors don't share a common territory.  And  31 she says that the reason why they listed the Barbeau  32 Baynham anthropological material is to alert us,  33 although it didn't, to the fact that there are  34 possibly contained within the anthropological  35 material other houses who occupied the same  36 territory who are not named as plaintiffs or  37 represented by the named plaintiff.  Now, if that  38 were what was answered by way of answer to us she  39 certainly wouldn't have to even site Barbeau.  I  40 mean, she's given to us the fact that we need in  41 order to understand what the objection or the basis  42 for the denial will be.  Similarly with respect to  43 the commissions or the discoveries.  We don't need  44 to be pointed to a line or to a verse as to what  45 part of the commission may or may not alert the  46 defendant to an aspect of the plaintiffs' case which  47 appears prejudicial to the plaintiff and supportive 2020  Reply by Ms. Mandell  1 to the defendant, but she's looking for some fact  2 which in her view -- or some area which in her view  3 alerts the defendant to that kind of area.  And if  4 that could simply be stated again, we don't need to  5 know that this is taken from commissions or  6 discoveries or whatever.  And of course the same  7 applies with respect to her example that certain  8 statements were made to fisheries officers which she  9 may or may not call as witnesses which alert her to  10 the fact that the people don't share a common  11 language.  Well, we're not interested to know who  12 are those witnesses, or even that the information  13 comes from oral witnesses as opposed to documents,  14 but we would like to know what is it, what fact is  15 it that triggered her to the fact that there is  16 something here of importance which may be useful in  17 rebutting the question of common language.  And  18 there is obviously something or she wouldn't have  19 gone to the trouble of reviewing these statements  20 for witness disclosure.  And I think that the fourth  21 example is along the same lines where she sites band  22 lists and reserve registries for the potential  23 support for the denial that there were others who  24 are occupying Indian reserves within the Gitksan  25 Wet'suwet'en territory who are not themselves  26 Gitksan and Wet'suwet'en.  Well, again that's a very  27 useful statement to us.  If that's the basis upon  28 which the denial is based we'd be happy to hear  29 about it and we don't need her to go into the band  30 lists or the reserve registries and be so specific  31 so as to give us names, but that's the facts that  32 she's relying upon and we'll take it from there.  33 And I think that if all of the answers were provided  34 in that kind of detail that we would get somewhere  35 as opposed to nowhere with respect to the answers  36 provided.  37  38 Now, My Lord, there were a number of  39 objections taken both with respect to Group 2  40 Questions 49 and 50 and then later with respect to  41 Question 74, that when we asked for an intention,  42 that is what was the Crown's intention in doing one  43 thing or another, that that was a matter of legal  44 argument or it was a matter of historical note.  And  45 it's our submission that it's the federal  46 government's or the Crown's intention which is being  47 probed, not our own, and if there is facts which are 2021  Reply by Ms. Mandell  1 clearly indicating of such an intention that that  2 would be within the range of knowledge which could  3 be answered.  If the fact of it is that there's no  4 one clear intention which is part of the collective  5 position of the Crown, then they can say so, and  6 then it becomes a matter of either legal argument or  7 history.  But at the present time, and it's an  8 objection which I'm going to take for other of the  9 paragraphs mentioned by my friend, in the absence of  10 an inquiry on these points and certainly of a  11 judgment, it's our view that if an intention of  12 somebody who's being -- the subject of the inquiry  13 is being asked that it's not possible to simply  14 dismiss off the top that all of that is  15 automatically a matter of legal argument.  It's not  16 so.  And it may be so, but this is something which  17 would be determined upon a fair inquiry and a  18 reasonable effort to answer the question, none of  19 which in our submission was done.  20 THE COURT:  Well, with regard to section 35, who would you ask,  21 Mr. Romanow and Mr. Chretien?  22 MS. MANDELL:  I would ask Mr. Chretien.  23 MS. KOENIGSBERG:  You'd probably have better access to him than  2 4 we would.  25 MS. MANDELL:  I don't have any access to him.  26 THE COURT:  You see, as I understand the history, they made a  27 deal which didn't include sex 35, then there was  28 some screwing about and they put it in.  Now, it's  29 your submission, I take it, that they would -- the  30 plaintiff, Ms. Koenigsberg or her colleagues would  31 have to go and talk to whoever was responsible for  32 putting sex 35 in the constitution and ask them what  33 they had in mind when they did that.  34 MS. MANDELL:  There's two initiatives which I think ought to be  35 probed.  One is when the then section 34 was being  36 advanced by the federal government as part of their  37 federal initiative and was debated in front of the  38 standing committees and was being promoted to the  39 provinces the federal government had something in  40 mind as to what they intended to put in section 34.  41 Now, that was part of the November deal which was --  42 THE COURT:  Doesn't that confuse government with parliament?  43 MS. MANDELL:  You know, I think that there is obviously  44 something which parliament enacted, and that's  45 contained in the debates as to what various people  46 thought about it.  And that's going to be part of  47 what the court itself will be asked to determine, as 2022  Reply by Ms. Mandell  1 to what the actual meaning of that legislative  2 enactment is.  But the government, in our  3 submission, had a very clear -- it's our submission,  4 we don't know if it's true, the federal government  5 will be able to tell us, that there was a very clear  6 initiative taken by first the executive and then  7 later the executive as it was influential in  8 parliament as to what they thought the federal  9 government thought was going to be included in  10 section 35.  And it's those inquiries which we're  11 seeking to have made.  12 THE COURT:  My problem with all that is Parliament speaks with a  13 unified voice and generally speaking that intention  14 has to be extracted from the words they use rather  15 than what the members say in the debates, although  16 there are authorities that say you can look for the  17 under opinion, I suppose is what you're calling it.  18 MS. MANDELL:  Well, on constitutional sections especially.  19 MS. KOENIGSBERG:  I think it might be just of assistance.  The  20 Attorney General of British Columbia, this is the  21 Court of Appeal of British Columbia, and the  22 head-note says, "However, statements of a minister  23 of the crown as to the object and purpose of the  24 legislation are not admissible at trial as evidence  25 of the true intention of the legislature nor may a  26 minister of the crown be asked questions on  27 Examination for Discovery about the purpose of the  28 legislation."  I think I made reference to this  29 earlier that I didn't think it would be admissible  30 even if you could find out what the views were.  And  31 that's found at 63 DLR (3d), Page 282.  So I think  32 really that in that regard the law is complete.  33 MS. MANDELL:  Well, I think in this particular case there has  34 been much already said by the courts with respect to  35 the manner in which the constitution may be  36 interpreted with reference to the external debates  37 and the various intentions of all sides.  And the  38 Sparrow case, the court made reference and was  39 referred to the various debates which surrounded the  40 inclusion of 35 to try and determine what was the  41 purpose for which section 35 was intended to cure,  42 what was the wrong to be righted.  And in our  43 submission the -- if there is a statement which  44 allows the court to understand what the purpose of  45 the inclusion of that section was from the point of  46 view of the federal government, if it was to include  47 ownership and jurisdiction for the plaintiffs, if it 2023  Reply by Ms. Mandell  1 was to include aboriginal title as it's being  2 advanced, this is something which in our view we  3 have a right to know about.  4 THE COURT:  You have as much access to Mr. Chretien as your  5 friends do, don't you?  6 MS. MANDELL:  My friend has said that it's not relevant to the  7 pleadings.  I don't really know which one of us  8 would reach Mr. Chretien, but in our view it's part  9 of what the federal government itself has access to  10 within its framework to provide to us what the  11 federal crown's vision was in terms of section 35.  12 THE COURT:  I suppose Mr. Chretien didn't leave much of a paper  13 trail except his book.  14 MS. MANDELL:  Except his book.  15 THE COURT:  Fascinating reading.  What does he say in his book  16 about this or does it say?  17 MS. MANDELL:  It's more gossip than it's going to be evidence.  18 THE COURT:  All right.  Thank you.  19 MS. MANDELL:  With respect to Treaty 8, my friend says it's not  20 relevant.  I might --  21 THE COURT:  I think she puts it on geographic grounds and  22 contractual grounds that it's not relevant.  23 MS. MANDELL:  First of all, we've pled it so it's relevant to  24 the pleadings.  But further than that, it's the  25 overall view of the federal and provincial  26 government both that there has never been a  27 recognition of aboriginal title in the province, it  28 having been extinguished by a number of various acts  29 which go back long before Treaty 8 was concluded.  30 And in our view the activity of both the federal and  31 provincial crown and its conduct with respect to the  32 signing of Treaty 8 may provide evidence which is  33 contrary to the case of the crown.  In that case  34 there was a treaty concluded between the federal  35 government and the Indian people in British Columbia  36 after confederation, after 1871, and that in that  37 treaty and on the face of it the Indian people  38 seized, relieved, surrendered, and otherwise gave up  39 forever their title to vast amounts of land.  So  40 when my friend says that the word "aboriginal title  41 and commitments" and those vague expressions which  42 she refers to in 77 is all new news to the  43 government, it's all right on the face of the  44 treaty.  So I don't think it can properly be said  45 the words "commitment and aboriginal title" would be  46 something that's hard to interpret from the activity  47 of the treaty.  There was the seating of the title 2024  Reply by Ms. Mandell  1 and there were certain commitments spelled out in  2 the treaty which would be honoured by the federal  3 government.  And I think that is something that  4 could easily be addressed, and in the face of it it  5 flies against the denial by the federal government  6 that aboriginal title had earlier been extinguished.  7 Now, with respect to the Province, although they  8 weren't a party to the treaty as we understand it,  9 and the federal government will know better, the  10 Province honoured the the federal government's  11 requirements to fulfill the commitments of the  12 treaty, those commitments which required the  13 provincial government which was to set aside vast  14 amounts of -- fairly large amounts of reserved land,  15 larger at least than the reserved land which had  16 been set aside for non-treaty Indians.  And they  17 were doing this fully knowledgeable about the fact  18 that it was to fulfill a treaty commitment in  19 British Columbia.  20  21 Now, all of this in our submission is helpful  22 to the plaintiffs' case and it's contrary on the  23 face of it to the kind of impact of the defences  24 which are pled.  And this is information which in  25 our submission ought to be provided by the crown.  26 It's a notorious issue.  I'm somewhat surprised that  27 it's arising as if it's new.  It was addressed in  28 the Calder case, and in fact was one of the treaty  29 aids, and the inclusion of it was one of the  30 complexities which Mr. Justice Hall commented upon  31 as being inconsistent with the advancement of the  32 case being made by, in that case the crown, that all  33 the aboriginal title to British Columbia had been  34 extinguished before confederation.  So we say that  35 it's relevant and if we can make use of the answers  36 we will and if we can't then it's not for my friend  37 to say that it's not relevant at this stage.  38  39 My Lord, if I could address you on the  40 question of living memory for a moment.  It's a  41 blurry area.  We were aided by your first judgment  42 in the Martin case, and although Mr. Justice Locke  43 in his reasons appeared to adopt much of what you  44 said there were exceptions which crept into the way  45 in which he dealt with the question of living memory  46 as it affected the plaintiffs.  And I could for  47 convenience refer you to Page 9 of his judgment 2025  Reply by Ms. Mandell  1 which appears at Tab 1.  2 THE COURT:  This is Mr. Justice Locke's judgment?  3 MS. MANDELL:  Yeah.  This is under Interrogatories 47 to 49 at  4 the bottom of the page.  These are a few examples.  5 I'm not going to go into the whole point, but I'd  6 just like to bring to your attention the ways in  7 which the lines are getting blurred now on the  8 question of living memory.  Interrogatories 47 to 49  9 ask if any member of the plaintiffs' house or  10 predecessor made a submission to the Royal  11 Commission on Indian Affairs.  So it wouldn't be any  12 of our present plaintiffs it would be a generation  13 at least before that.  And if so what was the nature  14 of the evidence.  This is relevant to the questions  15 of acquiescence and should be answered within the  16 limits of the statement of law.  Perhaps the  17 defendant could speed the process by supplying a  18 list.  So we were asking our people to go back a  19 generation and deal with the submissions made to the  20 Royal Commission.  And then at Page 10 under  21 Interrogatory 56 and 57 relate to a named tribe  22 referred to in the McKenna McBride Commission.  "It  23 is indicated by the plaintiffs that the question may  24 be relevant but not in its present form.  The  25 difficulty appears to centre around the use of the  26 tribe.  This is a word from the document itself.  I  27 think plaintiffs' counsel has a duty to look at the  28 way the word is used in the proceedings of the  29 Commission and instruct his clients what he deduces  30 was meant and obtain their answers within the limits  31 previously stated.  It seems impossible to me that  32 with this or with the change of wording negotiated  33 between the parties that an important matter of  34 identity should go undiscovered."  And lastly, if I  35 could turn you to Page 11, "Interrogatory 65 to 68  36 deal with details of the earliest contact of  37 representatives of any European nation with any  38 ancestors.  The questions are relevant.  I agree  39 with Chief Justice McEachern in the Martin case  40 where he says the question has a historical  41 component but living memory may be on proper inquiry  42 disclose relevant information and I think it must be  43 answered appropriately.  It is the plaintiffs  44 themselves who have put this matter of time in  45 direct issue.  I do not suggest this is improper,  46 and indeed I think it is essential to their case,  47 and I would think that they would be glad to give 2026  Reply by Ms. Mandell  1 what information is now collectable.  I think it is  2 evasive to decline answering because one does not  3 know whether an itenerant trapper is a  4 representative of some European nation.  It is here  5 that counsel has a duty to assist his client."  And  6 so we were directed to answer questions which are  7 clearly beyond the conceivable living memory of our  8 front plaintiffs, and it was in keeping with the  9 direction in the Mears case that it was appropriate  10 that the plaintiffs probe their oral history to get  11 time and memorial answers, facts of which could be  12 brought up into the present interrogatories.  Now,  13 for the plaintiffs it is an oral history and the  14 collection of information which is capable of being  15 probed on a living memory situation probes the oral  16 history as it's been passed from generation to  17 generation.  And that's what will appear on the  18 interrogatory answer.  With respect to the defendant  19 it's a written history.  And when the same question,  20 if it's raised by the crown as in many cases their  21 defences are, are part of the collection of living  22 memory or, if you will, history which is left behind  23 by the crown in its documents that when they make  24 inquiries, and if they make inquiry of living  25 memory, they'll only get a very short period of time  26 addressed because the majority of their information  27 is stored on the face of documents.  Now, it's a  2 8 problem between our two cultures.  And when Mr.  29 Justice Dohm addressed the questions as to what Mr.  30 Borthwick ought to answer, he was particularly  31 influenced and guided by your reasoning in the  32 Martin case that the test of living memory was  33 really the test which ought to be applied in all  34 cases.  And in our submission, you having raised it  35 and us not -- and us wanting to comment as you did  36 that the test of living memory when it involves a  37 corporate crown and where the pursuit of the answer  38 may have them stumble across or even seek out  39 documents now presumably listed on their list of  40 documents, but all of which are part of the record  41 of the crown in making a fair inquiry, in our view  42 the test of living memory ought to be read in light  43 of the fact that if there are documents which are  44 known to the crown and which address the issue  45 although they're not part of the 30 or 40 year life  46 span of the deponent, that those documents ought to  47 be brought forward and disclosed in the normal 2027  Reply by Ms. Mandell  1 course of events.  Now, my friend has made  2 reference, and I appreciate it, to the tremendous  3 difficulty of going through everything in order to  4 do that.  We're not at this point asking for a  5 grouping of documents answer, but we do say that  6 with respect to living memory that the crown could  7 review its own record as it has it available at this  8 time and if -- as we do as we look through the oral  9 history of the people, that if something becomes  10 known to us that somebody knows we go and find it  11 out.  And I think the crown could do the same and  12 disclose it as part of the admissions which they  13 provide to us.  14 THE COURT:  If you're almost finished, Ms. Mandell I'll wait,  15 but otherwise I'll take the afternoon adjournment  16 now.  What do you propose?  17 MS. MANDELL:  I've got four minutes, just a few more points.  18 THE COURT:  Let's finish it then.  19 MS. MANDELL:  With respect to the questions as to why the --  20 what happened in the rest of Canada involving the  21 setting aside of the reserves and the treaties are  22 not relevant to the case or how many examples there  23 might be.  Most of the treaties, the broad number of  24 treaties across Canada happened after confederation,  25 and in our submission it's not a difficult job to  26 determine if any from among those Indian nations had  27 reserves confirmed to them prior to the making of  28 the treaty.  And as to its relevance, in our  29 submission the relevance isn't a question of as it  30 applies to the Gitksan Wet'suwet'en, but rather as  31 it applies to the position of the crown.  And this  32 I've mentioned in my earlier submission.  33  34 Finally, I only wanted to restate the point  35 that when my friend said that the issue with respect  36 to the Fisheries Act is not whether or not Fisheries  37 has properly managed the jurisdiction to which it's  38 exercised, but rather that the federal government  39 claims it has jurisdiction and not the Indian  40 nations, we say that the issue is in fact the  41 federal government's management of the fisheries to  42 the extent that the question of acquiescences being  43 argued in defence.  And if my friend is right that  44 the only issue is that the federal government itself  45 has jurisdiction and not the plaintiffs, if that is  46 the only issue, then I beg to see any relevance at  47 all for the many food fish permits and the various 202?  Reply by Ms. Mandell  1 interrogatory questions which you'll hear about  2 which have come to us from the other side which are  3 aimed at the -- and also for many of the questions  4 on cross-examination of the present plaintiffs, all  5 aimed to show that the plaintiffs themselves have  6 participated in the fisheries management scheme of  7 the defendant.  And it's our view that if that's the  8 issue then we'll address it.  It certainly has never  9 been stated to us that the issue is that the federal  10 government has passed an act and has managed the  11 fishery.  The issue has been that the plaintiffs  12 have acquisced to that jurisdiction and has  13 substituted its for its own.  And if that's the case  14 then in our submission we have a right to probe the  15 extent of the exercise of that jurisdiction by the  16 federal government.  17  18 Those are our submissions.  19 THE COURT:  All right.  Thank you.  I'll take a short  2 0 adjournment  21  22 (PROCEEDINGS ADJOURNED AND RESUMED PURSUANT TO SHORT  2 3 ADJOURNMENT)  24  25 (ANOTHER MATTER SPOKEN TO)  26  27 THE REGISTRAR:  In the matter of Delgamuukw and others versus  28 Her Majesty the Queen continuing, My Lord.  2 9 THE COURT:  All right.  Are you ready to proceed with your  30 application?  31 MS. KOENIGSBERG:  I believe Mr. Mackenzie wanted to make a  32 submission.  33 THE COURT:  I haven't heard Mr. Mackenzie on any of this.  34 MS. KOENIGSBERG:  Our rolls got reversed.  Usually we're  35 forgotten.  3 6 THE COURT:  Yes.  37 MR. MACKENZIE:  Thank you, My Lord.  The provincial crown, of  38 course, is not directly involved, but as a party and  39 certain other reasons I would like to make brief  40 submissions generally supporting Ms. Koenigsberg's  41 submissions.  42  43 My Lord, in summary, these questions or  44 similar questions have been argued in great detail  45 by Mr. Goldie and Mr. Plant and I've been present at  46 those arguments before several of your brothers over  47 the past year since last August where the plaintiffs 2029  Submissions by Mr. Mackenzie  1 in this case have sought to seek -- have sought  2 information on documents and other facts and have  3 tried to have a categorization of documents done by  4 Mr. Borthwick on his Examination for Discovery.  5  6 Now, with respect to this particular  7 application, My Lord, we are particularly concerned  8 about the plaintiffs seeking to require Canada to  9 comment on the Province's pleadings.  And Ms.  10 Mandell has restricted those questions, as I  11 understand it now, to Questions 49 and 50 in her  12 interrogatories.  13 THE COURT:  Yes.  14 MR. MACKENZIE:  Now, My Lord, the plaintiffs have been provided  15 with full particulars of the Province's Statement of  16 Defence.  They're contained in the trial record and  17 they've been referred to already before Your  18 Lordship.  My Lord, in our submission it would be  19 embarrassing, as Your Lordship I think has eluded  20 to, for one defendant to be expressing opinions  21 about another defendant's pleadings.  Ms.  22 Koenigsberg has made that point in answer to the  23 plaintiffs' Questions 49 and 50.  That's one of the  24 reasons she's advanced in addition to the fact that  25 it is seeking a legal opinion.  The plaintiffs say,  26 and they have said all year, that these questions  27 are not seeking opinions, that they're merely asking  28 for facts and documents.  But, My Lord, it has been  29 argued here today these are opinions.  What is being  30 asked is which facts and documents in the opinion of  31 the deponent, in our case it was Mr. Borthwick under  32 Examination for Discovery, in this case it's the  33 Attorney General of Canada's representative who is  34 being called upon to answer the interrogatories.  35 THE COURT:  Does the two judgments of Judge Dohm and the one  36 Judgment of Judge Locke complete the litany of  37 written pronouncements by judges on this sort of  38 thing?  39 MR. MACKENZIE:  Your Lordship, of course, dealt with similar  40 arguments in the Martin case.  41 THE COURT:  In Martin, yes.  42 MR. MACKENZIE:  So Your Lordship's judgment is included.  Yes.  43 Those are the three judgments in this case.  There  44 are reasons for judgment from Mr. Justice Cumming of  45 September 9 which dealt with a very extensive  46 application by the plaintiffs for disclosure of  47 documents which -- 2030  Submissions by Mr. Mackenzie  1 THE COURT:  In this action?  2 MR. MACKENZIE:  Yes.  3 THE COURT:  Yes?  4 MR. MACKENZIE:  And this chain of applications really starts  5 back then in August when this omnibus application  6 for disclosure of documents was commenced.  And then  7 from then on the same -- the plaintiff have been  8 trying to achieve the same purposes through these  9 other applications.  10  11 My Lord, the Questions 49 and 50 relating to  12 the Province's defence relate in large part to  13 matters beyond the memory of living man.  And we've  14 had a discussion here about that phrase, but Your  15 Lordship in your reasons for judgment in Mears  16 Island dealt with this question of historical  17 research and the requirement to express opinions on  18 documents and to apply judgment as being  19 inappropriate for interrogatories.  And Your  20 Lordship was referring to interrogatories being  21 delivered to the provincial government in that case.  22 So My Lord, when a person comes to look at documents  23 and the information of documents in the hands of  24 either the Provincial Attorney General or, I submit,  25 in the hands of the Federal Attorney General, we get  26 into the area of document disclosure.  And the  27 document disclosures in these cases have been  28 voluminous and they're continuing.  And no one, to  29 my submission, at the present time is complaining  30 that that is not ongoing and is not being done in a  31 proper manner.  So what -- in my submission what the  32 plaintiffs are asking for when asking for documents  33 and other facts in summary is they're asking for  34 opinions of those who have examined these documents,  35 historical documents, or alternatively have examined  36 the documents and have -- are being called upon to  37 express opinions as to the relevance as to the  38 issues in the case.  So opinion evidence and  39 speculation is not required in my submission, My  40 Lord.  And that is the position that has been taken  41 in response to the plaintiffs over the past year and  42 in my submission is also applicable to this  43 application.  44 THE COURT:  All right.  Thank you, Mr. Mackenzie.  Ms. Mandell,  45 do you want to reply to Mr. Mackenzie?  46 MS. MANDELL:  I don't think there's much to say.  I don't think  47 it's embarrassing if one defendant knows something 2031  Submissions by Mr. Mackenzie  1 about a matter in which they too are involved, and I  2 can't really see that.  It's true we have a  3 complaint about the document disclosure being  4 inadequate, it's so voluminous it's impossible to  5 find anything at this point.  6 THE COURT:  All right.  Thank you.  All right.  Ms. Koenigsberg,  7 do you want to start?  8 MS. KOENIGSBERG:  I've prepared a very brief written submission,  9 and you don't have to worry about the authorities  10 either because mostly they are what have now become  11 oldies and goldies in this case.  In the beginning  12 of the submissions of the Attorney General of Canada  13 with respect to our application for further and  14 better answers to the interrogatories to the  15 plaintiffs on Pages 1, 2, and the beginning of 3 I  16 have merely set out the general principals with  17 respect to interrogatories.  And I don't think I  18 need take Your Lordship through those.  They are the  19 simple ones.  I think that the -- and the obvious  20 ones.  I don't -- perhaps the only thing I would say  21 is that we do not take the position that whether  22 interrogatories are narrower than discovery is as  23 far as we're concerned in this matter a mute point.  24 We have taken the position that as far as the  25 interrogatories of the Attorney General of Canada  26 are concerned we look at them as though it were a  27 substitution for Discovery and we would ask that the  28 same rule be applied in our interrogatories of the  29 plaintiffs.  30  31 Beginning then on Page 3, what we've done is  32 to categorize the questions and answers, and we've  33 set out the questions that we would ask for further  34 and better answers.  And the first two questions are  35 Questions 2 and 3.  And they are, "Do the Plaintiffs  36 have any other traditional fishing sites; what are  37 the locations of the other sites?"  Just so Your  38 Lordship knows, the questions that we have asked in  39 these interrogatories have been, except where  40 specifically mentioned, restricted to the named  41 plaintiffs.  We attempted to be as reasonably  42 restrictive as we could so there could be some  43 practical hope that these questions could be  44 answered in a timely fashion.  And then we've asked  45 in this third question, "What stretch of the river  46 does each fishing site claimed by the Plaintiffs  47 encompass?"  The answer that we got was that a map 2032  Submissions by Ms. Koenigsberg  1 showing the location and ownership of all Gitksan  2 and Wet'suwet'en fishing grounds is in preparation  3 and will be submitted as part of the atlas.  This is  4 the atlas that Mr. Morrell mentions in his report.  5 And that was the answer.  In other words, we didn't  6 get an answer.  What we were told was that this is  7 in preparation.  We asked the question the way we  8 asked it so that we would be getting the knowledge  9 of the named plaintiffs and where -- in an area  10 where they should know the answer.  It isn't  11 something they should have to go and check about.  12 And it's our submission that it's simply not  13 sufficient to tell us that there's an expert working  14 on it and that we'll get it some day.  Basically  15 that is what we've been told.  16 THE COURT:  I take it you don't have it yet.  17 MS. KOENIGSBERG:  We don't have it yet.  18 THE COURT:  What was the date of the interrogatory?  19 MS. KOENIGSBERG:  March 6th.  2 0 THE COURT:  '87?  21 MS. KOENIGSBERG:  Yes.  Mr. Morrel, by the way, referred to this  22 at last in his report dated January 31st, '87, but  23 we've been told that it is in preparation, and I  24 don't doubt that, but frankly these are questions  25 which the plaintiffs, at least the named plaintiffs,  26 could answer of their own knowledge.  And that's  27 what we would like.  Their relevance, I think, has  28 been demonstrated in the lawsuit.  2 9 THE COURT:  Well, does it go beyond the evidence that Mrs.  30 Johnson or Mrs. Ryan gave?  31 MS. KOENIGSBERG:  Yes.  She gave it for several but not all.  32 And we would like it for each of the houses  33 basically what are your fishing sites.  Your  34 Lordship can see how helpful it would be to have  35 these answers before we get to trial.  Instead we're  36 spending time at trial exploring the answers to  37 these questions.  38 THE COURT:  All right.  39 MS. KOENIGSBERG:  Questions 8 and 9, the famous food fish  40 permits question.  I'll deal first with the issue  41 that my friend has raised that although they have  42 not claimed that they won't answer them because  43 they're not relevant, they obviously are relevant in  44 my submission.  They're relevant to the denial of  45 the exercise of jurisdiction and the living under  46 common laws in the plaintiffs' claim.  47 THE COURT:  What is your problem, Ms. Koenigsberg, that you 2033  Submissions by Ms. Koenigsberg  1 don't know or you want to get an admission?  2 MS. KOENIGSBERG:  We would like an admission.  3 THE COURT:  Why didn't you serve a notice to admit?  4 MS. KOENIGSBERG:  No.  We haven't served that notice to admit,  5 but frankly it should be a very simple -- well,  6 number one, it's not easy -- to say that these are  7 documents in our possession and control and that we  8 already have them is not really accurate.  Yes, we  9 should have them.  They don't go back very far.  10 We've certainly disclosed the ones that we do have,  11 and we have attempted to deal with it, but in our --  12 and we could do it by notice to admit, but we would  13 have to then list from the ones that we have and we  14 don't think that it's complete.  And frankly, I  15 don't see what the difficulty is for the plaintiffs.  16 It's not an answer to an interrogatory to say,  17 "Well, you know".  We're looking for their  18 knowledge.  And of course again --  19 THE COURT:  You want them to say it.  20 MS. KOENIGSBERG:  We're taking up the time in court to get this  21 kind of thing.  22 THE COURT:  When you say "named plaintiffs" do you say that  23 literally or do you mean the houses that they -- the  24 named individuals on the claim and the houses they  25 represent?  26 MS. KOENIGSBERG:  No.  We mean just the named plaintiffs because  27 we anticipated not that we weren't entitled to all  28 of them, but it was simply too big a job to get  29 those kinds of answers.  Instead we got no answers.  30 We'll be happy with just the named plaintiffs.  31 THE COURT:  Well, I suppose I have to say that I have tremendous  32 sympathy with both sides on this.  I'm sure it's an  33 awkward and difficult job for you to search your  34 files and find them.  When were food permits  35 invented?  36 MS. KOENIGSBERG:  I think the earliest one that we were able to  37 come up with we've answered in our interrogatories  38 and it's about 1932 maybe.  39 THE COURT:  I see.  So it's a very difficult job for you, but  40 it's an equally difficult job for the plaintiffs  41 just logistically.  I don't know whether they have a  42 mail service that they send bulletins out to all the  43 plaintiffs, but what, is there 74 of them?  No.  44 There's 74 houses but there's --  45 MS. KOENIGSBERG:  I think there would be close to 70 named  46 plaintiffs because each house has a head and that  47 would be a named plaintiff, or at least one assumes 2034  Submissions by Ms. Koenigsberg  1 that.  Frankly, we ask these questions -- we sent  2 these interrogatories out just before we were  3 advised in court that the plaintiffs would be  4 meeting with all the named plaintiffs, the  5 plaintiffs' counsel.  And we anticipated that that  6 would be an appropriate place to ask this kind of  7 question.  I do have sympathy with the plaintiffs in  8 this kind of thing, but here we are.  This is an  9 important issue as far as the fisheries jurisdiction  10 of the federal government and we're entitled to the  11 admission.  And in my submission we have made this  12 as narrow and as simple to answer as it would be  13 possible to make it.  They don't say that it's  14 oppressive or difficult, they just say, "You've got  15 the records and we don't have to tell it to you."  16 And that's, of course, not the point.  17 THE COURT:  Yes.  18 MS. KOENIGSBERG:  Aside from the fact that, of course, in every  19 instance we don't have the records.  Each of the  20 named plaintiffs at least ought to know whether  21 they've had a permit or not.  It isn't even -- they  22 don't have to produce the record.  It would be nice  23 if they did, but if they don't they can simply say  24 whether they have had a permit or not.  25 THE COURT:  All right.  26 MS. KOENIGSBERG:  Question 11, "Were any of the Named  27 Plaintiffs' food fish caught in tidal watters in any  28 year?"  They refuse to answer that one on the basis  29 it's not relevant.  They have pleaded a common  30 economy in the territory.  In my submission this  31 areas has been gone into at trial without successful  32 objection being taken to it.  It is clearly relevant  33 to the allegation that they have carried on a common  34 economy of their on-coast fishing and that will be  35 our submission.  And we're entitled to that  36 admission as well.  Again, it's something that is  37 known to the personal knowledge of the named  38 plaintiffs.  39 THE COURT:  I take it you would put this in the same category as  40 asking the witnesses if members of their houses went  41 to the coast to fish each year?  42 MS. KOENIGSBERG:  That's right.  And did they.  That's  43 important, and we get at that, but this one is even  44 did you catch your food fish there?  Now, we know  45 that in some instances they did, but we would like  46 to know for each of the named plaintiffs how many of  47 them did, because then they obviously weren't either 2035  Submissions by Ms. Koenigsberg  1 relying on their territories for all their food fish  2 either.  3  4 Question 12, "Which named Plaintiffs have been  5 issued any type of commercial fishing licence by the  6 Department of Fisheries and Oceans and when?"  Now,  7 this goes again to the exercise of jurisdiction by  8 the federal fishery, and as well to the common  9 economy question and the living off the territories  10 question.  They refuse to answer on the grounds of  11 relevance.  And I think the relevance is obvious  12 beyond peradventure.  13  14 Question 13, "Do any of the Named Plaintiffs  15 have an interest in the Northern Native Fishing  16 Corporation?"  The answer to this one is that it's  17 not relevant and all discussions relating to the  18 Northern Native Fishing Corporation were without  19 prejudice.  We are not asking for the discussions;  20 we are asking which of them have an interest in it.  21 Again it goes to the pleading of common economy,  22 common territory.  23 THE COURT:  What's the Northern Native Fishing Corporation; is  24 that the cooperative cannery?  25 MS. KOENIGSBERG:  On the coast, yes.  2 6 THE COURT:  At Fort Simpson?  27 MS. KOENIGSBERG:  Yes.  And again, I just can't see how they can  28 say that it's not relevant when they are pleading  29 that they have continued to live within their  30 territory and on their territory from the time of  31 memorial up till today.  And are unprepared, for  32 instance, to say that they're bound by the  33 Fisheries Act or bound by federal jurisdiction or  34 anything like that.  35  36 Question 15.  "Describe any fish enhancement  37 programs or conservation measures undertaken by or  38 on behalf of any of the Named Plaintiffs."  The  39 answer is as set out there.  40  41 "The opinion evidence of Mike Morrell  42 describes at some length the Gitksan and  43 Wet'suwet'en approach to fishery  44 management and conservation.  Since fish  45 are seen in the Gitksan and Wet'suwet'en  4 6 view as competent to reproduce themselves  47 as long as humans observe the rules and do 2036  Submissions by Ms. Koenigsberg  1 not abuse the fish, enhancement (in the  2 sense of the federal Salmonid Enhancement  3 Program) is not seen as a necessary part  4 of the partnership between fish and  5 humans."  6  7 Then they say:  8  9 "We have laws which relate to the  10 enhancement of fish.  For example, we have  11 always been taught to put the fish guts  12 back in the river.  These have the result  13 of providing the necessary feed for young  14 salmon and steelhead.  15  16 We also have other laws and detailed  17 evidence will be presented at the time of  18 the trial with respect to our laws  19 relating to conservation and protection of  20 the fish."  21  22  23 Well, our submission is we would like better answers  24 to this one in that it is simply not an appropriate  25 answer to refer us to general statements in an  26 expert's report.  We are interested in the  27 plaintiffs' answers and we are interested in what  28 the laws are which they say are conservation and  2 9 enhancement oriented.  Now, they've given us one  30 example and they say they're going to give the rest  31 to us at the trial.  And in my submission that's not  32 a proper answer to the interrogatory.  We are  33 entitled to the answer to the question before trial,  34 and since we are in the middle of trial we're  35 entitled to the answers before the next witnesses  36 comes on and give that evidence.  37 THE COURT:  What difference does it make whether they have fish  38 conservation measures or not?  39 MS. KOENIGSBERG:  They've pleaded that they do.  They've pleaded  40 that this is the way that they've provided their own  41 fish regulations.  42 THE COURT:  Does it say enhancements?  43 MS. KOENIGSBERG:  No.  It doesn't use that word, but I think  44 that's a context for conservation.  It's true if  45 fish enhancement programmes are not a form of  46 conservation then -- or if it doesn't fall within  47 harvested, managed, and conserved as is pleaded then 2037  Submissions by Ms. Koenigsberg  1 it doesn't have to be answered.  I would have  2 thought that it did.  3 THE COURT:  Harvested?  4 MS. KOENIGSBERG:  Managed and conserved.  I frankly would have  5 thought it would fall within one of those three.  6  7 My Lord, if we look at the example, if that is  8 the -- if that and similar laws are what they are  9 talking about then I think that we are entitled to  10 know that and that leads us in one direction.  If  11 there are all kinds of other programmes that they  12 say support, that they have had -- lived and  13 governed themselves and have harvested, managed and  14 conserved the resources within the territory, then  15 we're entitled to know what kinds of programmes  16 they're talking about.  17 THE COURT:  Well, I think there's a risk, and I don't say this  18 critically, Ms. Koenigsberg.  There is a risk that  19 the federal government, that they know everything  20 within programmes.  If it's in a programme they can  21 spend any amount of money, if it's not in a  22 programme they don't have a cent for it.  It seems  23 to me you can have harvesting just by fishing.  You  24 can have management and conservation merely by  25 saying this is your site and this is your site.  2 6 MS. KOENIGSBERG:  Yeah.  27 THE COURT:  And I'm not sure that that would be a fish  2 8 enhancement programme.  29 MS. KOENIGSBERG:  Might not be.  We don't know.  And maybe fish  30 enhancement doesn't fall within those, and if it  31 doesn't, if it's not clear to them whether it does  32 or doesn't, fine, then just tell us about the  33 conservation.  It was pointed out to me that we are  34 saying that to the extent that such enhancement  35 programmes and conservation measures are part of the  36 Gitksan Wet'suwet'en law relating to fisheries then  37 we're entitled to know about it.  If it's not then  38 it's not.  39 THE COURT:  I just have a feeling that you may be freight trains  40 heading at each other but on a different set of  41 tracks.  42 MS. KOENIGSBERG:  It may be.  I don't know how else — I mean, I  43 suppose we could rephrase the question to say  44 describe the harvesting, management and  45 conservation.  We're not really interested in every  46 single one they've got; we're really only interested  47 in this one in limiting it, and if that  includes a 203?  Submissions by Ms. Koenigsberg  1 fish enhancement programme then tell us about it.  2 THE COURT:  All right.  3 MS. KOENIGSBERG:  In fact, I think they could read it as  4 restricting the number of -- amount of information  5 they have to give us.  6  7 Question 20, "Which of the Named Plaintiffs  8 have ever executed a Will?"  They refuse to answer  9 that one on the grounds of relevance.  I don't know  10 if I need to go into that at this point in time,  11 we've certainly canvassed the issues of the  12 relevance of that issue at trial.  In my submission  13 it is relevant, and those are in fact documents  14 which should have been disclosed on the plaintiffs'  15 list.  I go a little more at length there into all  16 the ways in which it's relevant, but I won't go  17 through that now.  18  19 Those are all of the questions.  In my  20 submission they are specific.  They're not difficult  21 to answer though they -- with this number of  22 plaintiffs any question is time consuming, but I  23 think as we set out in our submissions, if it's not  24 oppressive to have to defend and deal with 70 some  25 odd named plaintiffs and houses for the defence it  26 surely can't be oppressive to ask the plaintiffs to  27 answer questions from each of those claimants.  28  29 Those are all my submissions.  30 THE COURT:  All right.  Thank you.  31 MS. MANDELL:  I'll be brief, maybe three minutes worth if I can  32 do it.  With respect to the first question, we agree  33 that it's a question which should be answered.  34 There is a map which my friend's aware of which has  35 been under production.  There's nothing to be gained  36 by going back and trying to repeat the various parts  37 of the plaintiffs' information which is in the map  38 and which is in the process of its being produced.  39 It's a long process.  It took many years, and as  40 soon as the map is ready it will be made available.  41 And I don't think that there's any refusal or any  42 denial on anybody's part.  It's a problem of  43 production and we're working as fast as we can.  I'm  44 advised, by the way, that that map is near  45 completion and you should be getting it within the  46 next very short period of time.  47 2039  Submissions by Ms. Koenigsberg  Submissions by Ms. Mandell  1 With respect to Questions 8 and 9, you'll see,  2 My Lord, that the questions are phrased were food  3 fish permits issued by the Department of Fisheries,  4 and for each of the above plaintiffs who were issued  5 food fish permits.  If I could direct you to the  6 answer, and I'll read it without asking you to turn  7 to it, to the Interrogatory Question 21 which the  8 plaintiffs delivered to the defendant.  The question  9 asked almost the same question really.  "Please list  10 and provide copies of all Indian food fish permits  11 or other permits or licences issued to Indian  12 people" for the various river systems between the  13 years 1977 to the present.  And included among the  14 answer was a list of the first few permits which  15 were available.  And then in answer to Interrogatory  16 21 the defendant the Attorney General of Canada says  17 that such question is improper and oppressive.  This  18 defendant says that the individual food fish permits  19 are listed on the defendant's list of documents.  20 And indeed we did get a very long list of documents,  21 I think it's Document List 10, where there were  22 some, my memory serves me, 20 odd full pages of food  23 fish permits listed which were issued by the  24 Department to the various named plaintiffs and other  25 Gitksan, the members of their houses, from I believe  26 1980 to the present.  Now, it's in our submission  27 exactly the question which is within the knowledge  28 of the defendant.  And my friend says that it's not  29 time consuming or difficult for us to provide a  30 similar kind of answer.  It's not so.  We have some  31 plaintiffs within the territory, some without, some  32 with phones some without, some that speak English  33 some without.  And to go through the process of  34 getting them to recall when they were issued permits  35 and if they were issued permits, do they know about  36 it, some of the permits were issued to the band and  37 not picked up by the named plaintiffs.  And in our  38 view the actual documentary record is a better  39 source of information and that's contained within  40 the defendant's camp and not ours.  41 THE COURT:  You say the Attorney General of Canada has produced  42 a printout or equivalents of a printout?  43 MS. MANDELL:  It's an extensive document list of all the food  44 permits issued to the Gitksan and Wet'suwet'en  45 people between 1980 to the present together with  46 some earlier permits which they were able to  47 identify from other years. 2040  Submissions by Ms. Mandell  1  2 Now, with respect to Question 11, and I can  3 deal with 12 in the same vein, and 13.  We say that  4 none of the -- that none of these questions are  5 relevant.  We pled that the -- that Gitksan and  6 Wet'suwet'en people within their territory share a  7 common economy.  We're dealing with the economy  8 provided in this instance through the non-tidal  9 watters which are part of the Gitksan Wet'suwet'en  10 territory.  That Gitksan or Wet'suwet'en people may  11 create income for themselves also outside the  12 territory in one form or another in our view has  13 nothing to do with the pleadings.  It's not part of  14 the action, and we don't ourselves plead it, and if  15 my friend finds that to learn that one of the  16 Gitksan people earns a living in Vancouver, whether  17 they go to school, if that's relevant to their  18 defence, then I suppose we'll hear about it.  But in  19 our view Questions 11, 12 and 13 are all aimed at  20 questions which have nothing to do with the  21 pleadings of the plaintiffs.  22  23 Question 15 regarding enhancement programmes,  24 Your Lordship hit the point that we were -- that we  25 don't plead fish enhancement programmes.  And as for  26 conservation measures, the major conservation  27 measure is -- and we say so in our pleading -- in  28 our answer, that we're not talking about  29 conservation measures.  We exclude it as something  30 which we're attaching importance.  And what we do  31 though is rely upon laws which are roughly along the  32 descriptive nature of the opinion of Mike Morrell,  33 being that there is a relationship between the  34 people and the fish to respect each other and from  35 that there will be proper conservation measures and  36 management.  If my friend wants further details,  37 that is, more examples of laws which are referred to  38 in Paragraph 4 -- that would be Paragraph 3, that is  39 of the answer, we have other laws and detailed  40 evidence.  If that's of assistance then we'd be glad  41 to provide it, or if she wishes that we foreclose  42 that programmes provided by the federal government  43 are part of our answer I can tell her that we can  44 provide that too.  But we're not at all dealing with  45 fish enhancements.  And I think that the examples  46 that are provided in the answer are very much along  47 the lines of other kinds of examples which would or 2041  Submissions by Ms. Mandell  1 could be enumerated, all of which deal with the  2 philosophy of the Gitksan to the fishery which are  3 reflected in various laws and practices.  4  5 We still say that the question of the will is  6 irrelevant.  We don't plead the will.  We don't  7 plead -- we don't know what pleading it's relevant  8 to.  My friend lists a number of paragraphs and  9 suggests that it's relevant to the exercise of  10 decendency of property as she puts it.  In our view,  11 we say that the issue of the will is really not  12 relevant.  And I don't think that she's established  13 it.  I certainly don't see how it's relevant if a  14 plaintiff executed a will in 1924 and changed it  15 again in 1935 and maybe it's in existence today.  16 Perhaps if there is some kind of de facto contrast  17 between an expression on a will as opposed to the  18 plaintiffs' system of matrimonial decent, that  19 contradiction is relevant, but in our view there is  20 a question which is on its face not the kind of  21 question which gives rise to either admissions or  22 the kind of inquiry which will have to be made to  23 support what is really a question before a question.  24 It's asking us to divulge to the defendant a way to  25 potentially probe whether or not there is anything  26 relevant on the face of any of these documents.  And  27 in our view that's not a proper question for an  28 interrogatory.  29 THE COURT:  Well, what about the evidence of the — I think it  30 was Mrs. Johnson who was Jeffrey, or the former  31 chief left a will giving her his totem pole and that  32 was explained as being done in a time when he  33 thought she would become -- or was that Mrs. Ryan?  34 MS. MANDELL:  It was Mrs. Ryan.  35 THE COURT:  In the time when he thought she would become  36 panamoos (phonetic).  That seems to me to become a  37 relevant matter because of the position taken by the  38 plaintiffs that the totem pole was a part of the  39 common property of the house and part of its  40 tradition and I was going to say in regalia but  41 that's not quite the right word, but part of its  42 symbols and crests and things like that.  In that  43 case, without prejudging what I'm sure is going to  44 be in the report in this case, there was a perfectly  45 sound explanation for it.  But what if that hadn't  46 been the case?  What if he had executed a will and  47 left his totem pole and all his crests to a 2042  Submissions by Ms. Mandell  1 stranger?  Would that not be relevant to test the  2 validity of the plaintiffs' proposition that these  3 things are common property belonging to the house?  4 MS. MANDELL:  My Lord, the example that you've cited is in our  5 view indicative of information which is relevant and  6 ought to be put to the witness, but so too would it  7 be had, for example, Mrs. Ryan written a letter to  8 somebody saying that, "My intention is to leave all  9 my house property to a Babine person," whether that  10 would also ride in the face of the system.  And  11 there's nothing magic about wills.  They're -- in  12 the same way as there's nothing magic about other  13 documents.  If there is a contradiction or a  14 document disclosure which is of assistance to the  15 defendant then they're entitled to go ahead and  16 search through our materials, we've disclosed our  17 documents, and they should be able to find it.  But  18 in our view what's really being asked is for all of  19 the plaintiffs, "Have you ever executed a will at  20 any time throughout your history?  And we are going  21 to use your answer to see whether or not throughout  22 all of that we can find anything on the face of it  23 which may or may not be contradictory."  And in our  24 view it's really a document -- at best it's a  25 document disclosure question where there's nothing  26 apparently relevant to the pleadings which follow  27 from the question, no more so than if they asked the  28 plaintiffs, "Have you ever written a letter to  29 anybody else which deals with the question of your  30 totem poles?"  It seems it's the same kind of  31 probing question which doesn't specifically relate  32 to the pleadings.  33 THE COURT:  Well, are you saying then that if there was such a  34 will, leaving the totem pole to a member of the  35 Babine band, for example, that that's a document you  36 would feel obliged to disclose?  37 MS. MANDELL:  Well, if we knew about it we would disclose it,  38 yes.  39 THE COURT:  Then it becomes a question of the extent of the  40 search that you're expected to make.  41 MS. MANDELL:  That's correct.  But I must say that for Indian  42 wills, as you're now well aware, all those wills are  43 in the hands of my friend.  They go through the  44 Department of Indian Affairs.  And my friend has  45 listed umpteen -- literally umpteen thousands of  46 documents which deal with the contents of those  47 estate files.  And they are in the same -- in fact, 2043  Submissions by Ms. Mandell  1 they're the ones that have disclosed those documents  2 to us because we don't have access to them any more.  3 And many of our plaintiffs complain about the fact  4 that the first time they were able to see those  5 files was not when they went to the Department of  6 Indian Affairs for them but when this litigation  7 commenced.  So in many cases, and in fact all the  8 ones which we're aware of, it would be through the  9 documents disclosure of the defendant that that may  10 or may not ever have come to light.  11 THE COURT:  Of course there may be wills that deal with totem  12 poles that didn't go through the Department of  13 Indian Affairs.  14 MS. MANDELL:  I don't think that that would be the case as a  15 general rule.  I think that there may be the rare  16 exception, but it's mandatory under the Indian Act  17 to go through the estates system of the Department  18 of Indian Affairs.  And if the --  19 THE COURT:  That's after the testator dies.  20 MS. MANDELL:  I'm sorry?  21 THE COURT:  After the testator dies.  There could be a will.  22 MS. MANDELL:  In existence that hasn't been probated.  23 THE COURT:  Well, fortunately, he hasn't yet died.  So it would  24 be in his possession.  25 MS. MANDELL:  Although there's no effect to be given to a will  26 which hasn't -- according to the Department which  27 hasn't gone through their system.  28 THE COURT:  I appreciate that, but it would be a statement  29 against interest or at least an admission providing  30 that might cast out on the witness' own case if he  31 happens to be a plaintiff.  32 MS. MANDELL:  Well, My Lord, that's then an area which possibly  33 should be probed in terms of a document search, but  34 it's certainly not a proper question for an  35 interrogatory.  36 THE COURT:  All right.  Thank you Ms. Mandell.  Mr. Mackenzie,  37 do you want to --  38 MR. MACKENZIE:  No, My Lord.  39 THE COURT:  All right.  Thank you.  Ms. Koenigsberg?  40 MS. KOENIGSBERG:  I don't really have any reply, My Lord.  I  41 think you've got our points.  42 THE COURT:  Well, I find these particularly difficult  43 applications because so much depends on the precise  44 wording of the question, and I sometimes have  45 difficulty following looking back and forth from  4 6 document to document that I think I should look at  47 it a little more carefully and I'm going to reserve. 2044  Submissions by Ms. Mandell  1 I think I should give you something in writing so  2 you will be able to have a better chance of  3 understanding what I'm saying.  But in addition, I  4 find that these things are always difficult because  5 very often, as in this case, there is much to be  6 said on both sides.  And for that reason I think I  7 better give it a little bit -- well, not a little  8 bit, but as much careful attention as I think it  9 requires.  And you will hear from me shortly.  Ms.  10 Mandell, I should return Mr. Jackson's trial record  11 to you, please.  All right.  Then I guess we have  12 nothing more then until the 31st.  13 MS. KOENIGSBERG:  No, we don't.  Except we had brought on an  14 application on Friday for production of documents,  15 and I don't believe that a time has been set for  16 that to be heard unless -- we're happy for it to be  17 put over to the 31st.  18 THE COURT:  All right.  19 MS. KOENIGSBERG:  But it hadn't been done.  20 THE COURT:  Is that convenient, Ms. Mandell?  21 MS. MANDELL:  Yes.  22 THE COURT:  We'll deal with that one on the 31st as well.  Does  23 anyone have any sense on how long we'll be on the  24 31st?  I think we picked a Friday, didn't we?  25 MR. MACKENZIE:  The Province has an application for disclosure  26 of documents relating to 12 to 15 privileged  27 documents and requests have been made to have those  28 documents brought in so that Your Lordship can look  29 at them to review the question of privilege.  That  30 may take a couple of hours --  31 THE COURT:  Yes.  32 MR. MACKENZIE:  — to go over those.  33 THE COURT:  We might reserve on that.  I guess no one can say  34 whether we can finish in one day then.  35 MS. KOENIGSBERG:  I would think our production of documents is  36 narrowed down to a fairly manageable matter.  We've  37 received some of them, and we have an affidavit that  38 we can try and narrow down the issues.  39 THE COURT:  All right.  We'll see what we can do on the 31st  4 0 then.  41 THE REGISTRAR:  Order in chambers.  These chambers stand  42 adjourned.  43  44 (PROCEEDINGS CONCLUDED)  45  46 I hereby certify the foregoing to  47 be a true and accurate transcript 2045  Proceedings  1 of the proceedings herein,  2 transcribed to the best of my  3 skill and ability.  4  5  6 DARLENE HORNING, CM,  7 Official Reporter,  8 UNITED REPORTING SERVICE LTD.


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