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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-07-29] British Columbia. Supreme Court Jul 29, 1988

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 7582  Proceedings  1 JULY 29, 198 8  2 VANCOUVER, B.C.  3  4 THE REGISTRAR:  Order in Chambers.  In the Supreme Court of  5 British Columbia, at Vancouver, on Friday, the 29th  6 day of July, 1988, in Chambers.  My Lord, in the  7 matter of Delgamuukw versus Her Majesty the Queen.  8 THE COURT:  Mr. Rush.  9 MR. RUSH:  My Lord, I have two matters that I want to raise with  10 the Court today.  One is a follow-up to two directions  11 given by Your Lordship on July 4th with regard to the  12 Band Council documents.  You will recall the argument  13 that occurred at that time, directions made by Your  14 Lordship with respect to the search and disclosure of  15 certain documents, and I think there was quite a  16 considerable list of them.  I can tell you that as a  17 result of that direction by Your Lordship, Mr. Grant  18 wrote to the Bands, all of the Bands on July 8th  19 regarding the disclosure of the Band documents.  To  20 date the Bands which have applied to the -- to  21 counsel, to myself and Mr. Grant, have indicated a  22 number of things.  23 Firstly, that the task is a considerably large task,  24 and for them the timeframe within which they were  25 being asked to search and find the documents was  26 unrealistic, given particularly the fact of their  27 summer staff holiday schedules.  The upshot of it is  28 that they were not able to conduct completely, if at  29 all in some cases, the searches until their staff's  30 return, I guess, to their normal complements.  31 The situation that I am in at the moment is to  32 advise you that in respect of all of the categories  33 that I can't -- I have not received responses with  34 respect to what the Bands have been able to find, and  35 I suggest that -- I agree, frankly, with the response  36 of one of the Bands, Hagwilget, I think, that the  37 timeframe was unrealistic, and that given the size and  38 nature of the task, that really Your Lordship ought to  39 consider extending the timeframe within which to  40 produce -- to search and to produce and disclose the  41 documents for a further month.  So my -- I have  42 discussed this with Mr. Goldie briefly and with Ms.  43 Koenigsberg briefly, and it's my recommendation at  44 this point that little would be served to making the  45 orders that were being sought of you.  46 Efforts are being made to obtain the documents.  I  47 think there are real reasons why up to now they 7583  Proceedings  1 haven't been able to muster the forces to find and  2 disclose the documents, if they are there, and I think  3 it would be in everyone's interest if the matter were  4 to be put over for a further month, and for us at that  5 time to review what the success has been, and  6 hopefully it will be considerable at the end of a  7 further month.  8 I should tell Your Lordship that a couple of the  9 Bands indicated that their staff would be away 'til  10 mid-August and into the third week of August, so I  11 think that what we're facing is a real summer holiday  12 situation.  So my recommendation is that so far as the  13 directions given by Your Lordship concerning the Band  14 Council documents, that this matter be put over for a  15 further month for us to review it at that time.  16 I'll speak to the other motion, I suppose, after.  17 THE COURT:  All right.  Thank you.  Mr. Goldie.  18 MR. GOLDIE:  Well, My Lord, if the Bands can't do it, they can't  19 do it.  I'm not sure that the appropriate direction is  20 to adjourn it a month for review.  I would hope that  21 it might be adjourned a month for the purposes of  22 complying with the directions given July the 4th.  If  23 in a month's time there are specific reasons why the  24 order can't be complied with, then we would have to  25 review that, but I think to just put it over a month  26 for further review doesn't comport with the nature of  27 the direction that Your Lordship gave on July the 4th.  28 THE COURT:  Well, I have already made a direction that there be  29 a search made and the Band Council resolutions  30 recovered in that search be produced, and therefore  31 it's really semantical, isn't it, as to what we do in  32 a month's time.  I have made the order all right, have  33 I not?  34 MR. GOLDIE:  I think Your Lordship's direction was that the  35 orders be -- that an order was made and, for instance,  36 at page 7561, line 41.  37  38 "Now, the next item was the Band Council  39 resolutions.  Mr. Grant said there was no  40 difficulty regarding fish and he would make  41 inquiries of the seven Bands not including  42 the Kitwancool Bands, and seems to me that  43 there should be a list furnished, and I hope  44 that that can be done by July 31.  If not, the  45 matter may be spoken to then."  46  47 And in the next page Mr. Grant said at line 21: 7584  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  "... there was no difficulty with respect to  Band resolution of disputes, and I think that  the end of July will be an appropriate time  for the disclosure of documents."  That's what I meant.  THE COURT:  Yes.  All right.  Well, I think that I will just —  well, I'm sorry, I haven't heard from Ms. Koenigsberg.  MS. KOENIGSBERG: I have nothing to add.  THE COURT:  I am not going to make any further order this  morning, and I am going to leave it to counsel to  bring the matter on again, either towards the end of  August or at the resumption of the trial, as they may  be advised.  MR. GOLDIE:  I am going to make a suggestion with respect to  another matter of a -- to set aside a time towards the  end of August, and if it is convenient and we agree on  that time, I would assume that we would bring that  matter up.  THE COURT:  Yes.  All right.  Thank you.  Mr. Rush, you have  another matter?  MR. RUSH:  Yes.  The other matter is a motion that we filed on  the 22nd of July.  THE COURT:  Yes.  MR. RUSH:  And this is an application that the plaintiffs be  relieved from paying the fees, Crown fees.  THE COURT: Excuse me a moment, Mr. Rush.  Mr. Registrar, would you go and speak to my  secretary and ask her for the dates that I am going to  be in the east in August.  Sorry, Mr. Rush.  MR. RUSH:  Yes, My Lord.  Since the trial started there has been  an amendment to the rules providing for, in our view,  substantial payment of Crown fees for continuation of  a trial beyond, I think it is five days, and the  plaintiffs have to date been assessed for the trial  under those rules a sum of $6,950, which they cannot  afford to pay.  There are two affidavits that have been filed.  Basically both of them address the fact that there was  a budget.  The budget called for the allocation of  monies to certain activities.  The fact in existence  of a Crown fee of this nature was not a matter of  consideration at that time.  The real hard reality is,  My Lord, that there is no money to pay for these Crown  fees.  It was not contemplated or known at the time 7585  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  that budgets were drafted.  The financial picture of  the plaintiffs, as a result of a further six months of  trial, is not good, and the payment of additional  costs as at that time, with the cost of the payment of  the original transcript, which was the point of Mr.  Glen Williams' affidavit that was filed in late  December of 1987, will cause extreme financial  difficulty with the plaintiff.  THE COURT: What is this $6,950?  What is the tariff?  MR. RUSH:  It's a hundred dollars a day.  MR. GOLDIE:  The old tariff was $50, and the new tariff is a  $100, My Lord.  MR. RUSH:  I have appendix one of the amended rules which sets  out the tariff and as well the provision, and I am  asking Your Lordship to look at.  That's a photocopy  of the first few pages.  THE COURT:  Yes.  MR. RUSH:  And the assessment appears -- or at least the  provision provides -- is provided for under item 9 on  schedule 1, page 1 and A and B.  So there is the fifty  and a hundred dollars a day, depending on the length  of the day activity.  The provision that I am asking  Your Lordship to consider this application under is  the omnibus paragraph at the end of the schedule on  page 3.  THE COURT:  Yes.  MR. RUSH:  Yes.  And Your Lordship has a discretion where you  can find that the applicant in the case is indigent,  and in my submission in the circumstances of the  plaintiffs trying of this case and the material that's  been before you, that there -- that with respect to  this fee and in respect of the plaintiffs, they are  indigent to the purposes of this section.  And I am  asking that Your Lordship make an order both with  respect to the outstanding fees of $6,950, and really  in futuro to be relieved of fees payable to the Crown  under this section as they might arise.  Those are my  submissions.  THE COURT:  I have to find — I have to find that the plaintiffs  are indigent.  RUSH:  Looks that way.  COURT:  Yes.  Not that they are indigenous.  I can certainly  find they are indigenous.  Re-spell the word.  All  right.  Thank you Mr. Rush.  Mr. Goldie.  GOLDIE:  My Lord, I think it would be, with respect,  impossible to make a finding of indigence in this  case.  My friend speaks of the budget, and I assume  MR.  THE  MR. 7586  Proceedings  1 the budgets provided for the legal fees originally,  2 and indeed as I calculate the $6,950, it is for $100 a  3 day, which includes, of course, the original 50 plus  4 the new 50.  In my submission, My Lord, the material  5 is far too sparse to make a finding of indigence.  6 More realistically, the budget that my friend speaks  7 of is a budget which the Federal Government of Canada,  8 as we have been told, approves, and there is nothing  9 in the material that indicates that anybody has gone  10 back to the Paymaster and said the hearing fee which  11 must have been in their budget for the original figure  12 has been doubled, and we would ask you to now pay it.  13 I have a suggestion which would save my friends that  14 trouble.  If Your Lordship has the new schedule, item  15 9 is in place of the old item 2 under schedule 1.  16 Item 2 under the original rules read:  17  18 "Hearing fee for any matter in Supreme Court  19 or Court of Appeal (other than in Chambers),  20 for each additional day or part thereof  21 after the fifth day, $50."  22  23 The new one reads:  24  25 "For hearing a proceeding set down on the  26 trial list, payable by the party who files the  27 notice of trial or hearing, unless the Court  28 orders payment by another party, for time  29 spent after the first day.  (a) per half day  30 or less, $50.  Per day or any period less than  31 a day but more than a half day, $100."  32  33 And as I say, my calculation of the $6,950 is for  34 the trial this year at a $100 a day or $50 for half  35 day.  My suggestion, My Lord, is that since the  36 Federal Government pays these things anyway, and is  37 another party, that Your Lordship can save us all time  38 and trouble by ordering payment by another party,  39 namely, the Government of Canada.  If that is not an  40 order which my friends will consent to, then I find it  41 extremely difficult to see how on the material before  42 Your Lordship and with the best will in the world that  43 these plaintiffs could be found to be indigent.  44 THE COURT:  Well, I don't suppose you want to respond to that,  45 do you, Mrs. Koenigsberg?  46 MS. KOENIGSBERG: I have a few things I could say.  But first of  47 all, My Lord, I certainly have no instructions to 7587  Proceedings  1 consent, not having anticipated that, since Mr. Rush  2 had not suggested that the other parties pay.  But I  3 think I can't go without noting at this juncture that  4 the Federal Government is a party in this lawsuit,  5 reluctantly, and at the instance of the Provincial  6 Government; and secondly, that I can seek instructions  7 as to a sharing or some other aspect of doing  8 something about the costs in that regard, but I don't  9 believe that there is in fact any authority in this  10 Court to make an award that amounts to an award of  11 costs against the Federal Crown.  12 I understand there is a body of authority on that  13 subject, and should it be necessary, I can collect it  14 and make the appropriate submissions.  But if my  15 understanding of the law is correct in that regard,  16 the appropriate way to deal with this problem, in my  17 submission, would not be for a Court to make an award  18 against the Federal Government, against the Federal  19 Crown under this rule, but rather to seek to deal with  20 the matter in another way.  21 THE COURT:  Thank you.  Mr. Rush.  22 MR. RUSH:  Well, of course I appreciate the Province's largess  23 with the Federal Government's money, and I'm looking  24 for any remedies.  25 MR. GOLDIE:  It's largess with my money too.  26 MR. RUSH:  My submission is, My Lord, that there is sufficient  27 material before you to make a finding for the exercise  28 of your discretion under this particular provision.  29 Your Lordship cannot be unmindful of the difficulties  30 which the plaintiffs have had in the past with regard  31 to the funding of this case, and the fact of the  32 matter is that the evidence that is before you now  33 indicates that this is an item for which the  34 plaintiffs did not have a budget, cannot pay it, and  35 the bill will -- is and will remain unpaid in this  36 circumstance.  I think that the Canadian Bar  37 Association will act swiftly to raise the Bar's  38 complaints about these fees, certainly mine  39 personally, and I would ask, notwithstanding their  40 efforts, that Your Lordship consider the financial  41 circumstances of the plaintiffs, and in my submission  42 the plaintiffs are indigent in respect of the payment  43 of these fees, and they cannot pay them.  44 THE COURT: Well, I am uneasy to make a finding of being  45 indigent.  The budget is one thing.  For all I know  46 the plaintiffs have large cash balances on deposit in  47 Swiss banks or elsewhere, which I think is highly 75?  Proceedings  1 unlikely, but it's possible.  2 What I am really saying is I don't think the fact  3 that there is not a budget item for this, can be  4 translated into indigent -- into being indigent.  I am  5 satisfied, however, that it is not in the interests of  6 the proper administration of justice in this case or  7 in the public interest that this further cost be  8 burdened on the plaintiff, and I am going to reserve  9 on the application.  10 I am going to suggest, Mr. Rush, that you not pay it  11 for the time being at least, and I would be grateful  12 if counsel would -- the two governments would see what  13 instructions they can get that will solve this  14 problem.  It just seems to me to be a burden that -- a  15 further burden that ought not to be thrown on the  16 plaintiffs in all of the circumstances of this case,  17 and so I am hopeful that counsel will solve the  18 problem.  If they can't, I think in the absence of  19 other information, I think the -- Mr. Goldie's  20 proposal suggests the direction that it might go, but  21 not necessarily the final destination.  I think the  22 use of the -- ordering some other party to pay may be  23 the answer, but may be that the Provincial Government  24 should absorb it.  They would be receiving it -- some  25 set-off should be ordered.  But I would hope that the  2 6 two Governments can resolve that problem without my  27 having to deal with language that wasn't obviously  28 intended for a situation like this, and I will leave  29 it to counsel to do what they can to work it out, and  30 if not, the matter can be rearranged at any convenient  31 time.  32 MR. GOLDIE:  I would be quite happy to suggest to my client that  33 it set up a contingency account which would offset our  34 counter-claim for damages.  35 THE COURT:  Something along that line.  All right.  Mr.  36 Registrar, what -- when am I away?  37 THE REGISTRAR: You are away Monday, August the 22nd, and you  38 will be returning to Vancouver on Sunday, August 28th.  39 THE COURT:  What's that again?  I leave on the 28th?  40 THE REGISTRAR: 22nd, and you will be returning on the 28th.  41 THE COURT:  So counsel should keep that in mind.  I will be here  42 for all of August, except for those -- that period,  43 August 22nd to August 28th.  All right.  Thank you.  44 THE REGISTRAR: Order in Chambers.  45 THE COURT:  I wish all counsel to have a happy continuation of  46 their vacation.  Thank you.  47 7589  Proceedings  1  2 (PROCEEDINGS ADJOURNED)  3  4 I HEREBY CERTIFY THE FOREGOING TO  5 BE A TRUE AND ACCURATE TRANSCRIPT  6 OF THE PROCEEDINGS HEREIN TO THE  7 BEST OF MY SKILL AND ABILITY.  8  9  10 LORI OXLEY  11 OFFICIAL REPORTER  12 UNITED REPORTING SERVICE LTD.  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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