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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-07-04] British Columbia. Supreme Court Jul 4, 1988

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 7540  Submissions by Mr. Goldie  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  Vancouver, B.C.  4 July 1988  THE REGISTRAR:  Order in court.  In the Supreme Court of British  Columbia, this Monday, July 4, 1988.  Calling  Delgamuukw versus Her Majesty the Queen at bar, my  lord.  THE COURT:  Mr. Goldie.  MR. GOLDIE:  My lord, there is one matter that I'd advised my  friends I wished to speak to this morning and that  has to do with the Band Council resolutions and  documents.  Unless there is some other matter to be  dealt with, I propose proceeding with that.  THE COURT:  All right.  MR. GOLDIE:  My lord, this originated in a Notice of Motion  which was spoken to on May 5.  The Notice of Motion  called for production of Band Council resolutions  and other documents in the possession or control of  the named Band Councils, relating to the B.C.  Special Fund and Resource Management within and  outside reserves in the land claims area including  fisheries, traplines, logging and forestry.  The  disposition made by your lordship at that time is  found in transcript volume 92, page 5836, beginning  at line 47 and this I should say relates to the B.C.  Special Fund.  At line 47, your lordship said this:  "Well, I am going to make an order for  production, under the B.C. Special, category  of this application, but I am going to follow  the practice that used to prevail in the  Provincial Court".  And I needn't go into that, it was to withhold the  Order, and the purpose of that was to see whether  there were admissions that the plaintiffs would be  prepared to make.  And then at 5840, lines 33 to 40,  with respect to the second branch which is the  documents relating to resource exploitation, your  lordship says at lines 33 to 40:  "I think that's what I would like to do.  I  think the defendant Province is entitled to  some assistance in this regard, but I think  Mr. Grant's concerns have to be recognized.  And I hope that that can be done by narrowing 7541  Submissions by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  the scope of the inquiry and, again, counsel  can raise the matter again at any time on  reasonable notice to the other side.  Is it  useful to suggest that it be spoken to a week  Monday?"  Now, if I may interject there, the recognition of  Mr. Grant's concern was that without some  clarification of what was required, the search would  be too extensive or would be -- might be time  consuming and extensive.  Now, it wasn't however  until May 27 that I was able to write to Mr. Grant  with respect to that matter and perhaps I should  hand up to your lordship a copy of my letter, May  27, and I started off by saying:  "I said that I would try to provide you with an  indication of the documents that should be  produced by the various Bands.  All documents relating to the B.C. Special  Fund, of course, have been referred to and  I ask for their production in respect of all  Bands."  That was the first part of the Order.  "With respect to resource management the Order  is for production of documents relating to  resource management within and outside  reserves in the Land Claim Area including  fisheries, traplines and logging and  forestry."  Now, my lord, I say, "the Order".  I should not have  used that word.  It's -- your lordship made a  certain interim direction --  THE COURT:  Indication.  MR. GOLDIE:  An indication.  And then I go on to say:  "An example of the particularity that I have in  mind with respect to fisheries would include  all applications for and correspondence in  respect to food fishing permits, fishing  by-laws, issuance of permits by Bands  thereunder, disallowance of fishing by-laws  and correspondence with respect to the same.  Of course, any Band Council resolutions 7542  Submissions by Mr. Goldie  1 referring to fishery resources are producible.  2 With respect to traplines, in addition to  3 resolutions relating to registration and  4 transfer, I would expect production of all  5 correspondence and documents relating to  6 trapline disputes including correspondence  7 with other Bands or members of other Tribal  8 groups.  9 With respect to logging, I would expect  10 production of applications for and  11 correspondence with respect to woodlot  12 licences, whether on or off-reserve, including  13 any internal decisions with respect to which  14 members of the Band would be responsible for  15 Exploiting the rights.  I would expect to see  16 production of any correspondence or records  17 relating to claims of the hereditary chiefs  18 with respect to woodlot licences or  19 utilization of forest resources."  20  21 My friend, Mr. Grant's, reply to that is dated  22 June 3, and I hand up to your lordship that.  Mr.  23 Grant said:  24  25 "In response to your letter of May 27th, 1988,  26 I wish to advise that this letter was received  27 in my office by telefax at 5:15 on Friday, May  28 27th..."  29  30 and so on and so forth.  31  32 "In your third paragraph..."  33  34 and so on.  Mr. Grants says:  35  36 "I am unaware that any Order has been made.  I  37 was under the impression that this matter had  38 been adjourned generally in order for you to  39 provide us with more particularity."  40  41 Then he goes on to say that a copy had not been sent  42 to Mr. Rush's office and:  43  44 "He and I shall be discussing it and shall get  45 back to you with respect to your proposal in  46 due course".  47 7543  Submissions by Mr. Goldie  Submissions by Mr. Macaulay  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  And so far as I am aware, my lord, that is the  extent of my friend's reply.  Now, he was written -- further letter was sent on  June 29 by Ms. Sigurdson who said:  "I refer to Mr. Goldie's letter of May 27.  We  have not received a response to the proposals  made and stating we wish to raise the matter  at the conclusion of Mr. Sterritt's evidence."  I did draft an Order with respect to the production  of Band Council -- I am sorry, with respect to  resolutions relating to the B.C. Special Fund, and  of course that Order has not been presented for  entry having regard to your lordship's directions.  I have received no proposal with respect to either  branch of the motion, no suggestion with respect to  what admissions could be made on the Special Fund  and no response to my letter of the particularity of  the documents that we seek.  And my submission, my  lord, is that the Order with respect to the Band  Council resolutions in these terms, that the  plaintiffs produce documents within the possession  and control of the named Bands and Band Councils  relating to the B.C. Special Fund, and that an Order  go with respect to the second branch in the terms of  my letter of May 27th.  That is my submission, my  lord.  Mr. Grant, perhaps I should hear from Mr. Macaulay  first.  GRANT:  Yes.  MACAULAY:  My lord, we made submission regarding the fishing  by-laws and correspondence regarding that submission  that those were irrelevant to the issues before your  lordship having regard to the stated pleadings in  this action, the issues they raised by them, and we  repeat that submission.  At the time your lordship  did not make an Order.  It would have the effect of  preventing the plaintiffs from using some of that  correspondence, this is by-law correspondence, in  their examination of the witness.  That's Mr. Glen  Williams, I believe.  But, in fact, to my delight  and perhaps to the satisfaction of the court, that  material wasn't used and I don't think the  plaintiffs are in any worse position for not having  used it.  I have to oppose any order that would  compel the plaintiffs to produce that irrelevant  THE COURT  MR.  MR. 7544  Submissions by Mr. Macaulay  1 material which is the subject of other litigation.  2 I believe my learned friend, Mr. Goldie's, firm is  3 acting on that other litigation and must have other  4 means of obtaining any correspondence regarding the  5 by-law that he may want to have for whatever  6 purposes.  We do not act in that action -- that is  7 any of the plaintiff's correspondence.  8 Your lordship indicated though -- I thought your  9 lordship had indicated that your lordship agreed in  10 general with my submission, that it had nothing much  11 to do with this action.  I don't think an Order  12 should be made dealing with that.  There may be an  13 enormous amount of correspondence of practically no  14 value to this action, unless my learned friend knows  15 something about the correspondence that I don't.  16 THE COURT:  You are talking now about the by-laws?  17 MR. MACAULAY:  Yes.  18 THE COURT:  Just the by-laws?  19 MR. MACAULAY:  Yes, I am.  20 THE COURT:  Not the food fishing licences, and things of that —  21 MR. MACAULAY:  I take no position on that.  We have produced  22 many, many food fishing licences and all the ones we  23 can find.  2 4 THE COURT:  Yes.  25 MR. MACAULAY:  The licence themselves, I don't recall whether we  26 produced correspondence to produce fishing licences.  27 I think we have.  If we had some, we produced them.  28 So my only submission on this application is to the  29 extent that it affects these fishing by-laws, no  30 Order should be made in that regard.  31 THE COURT:  Well, is there a distinction, Mr. Macaulay, to be  32 made between documents relating to fishing by-laws  33 prior to the commencement of the action?  34 MR. MACAULAY:  I am not aware of any correspondence about  35 fishing by-laws before the action commenced.  If  36 there is, it's still -- oh, yes, I am sorry, some of  37 it is before the action.  It still addresses an  38 issue that I can't imagine would be relevant to this  39 litigation.  There is various Bands tried to -- or  40 the Tribal Council on behalf of Bands tried to get  41 various drafts of by-laws approved by the -- these  42 are by-laws made pursuant to -- under the Indian  43 Act, approved by the Minister, and it appears from  44 the evidence that was given by the witness that none  45 of that succeeded until quite recently, 1985.  46 THE COURT:  But does activities in relation to fishing by-laws  47 prior to the commencement of the action not bear on 7545  Submissions by Mr. Macaulay  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  the issue raised by the plaintiffs regarding  management and conservation of resources from the  time presently up to the time the action relates?  MR. MACAULAY:  It relates to the management of one resource and  that resource is under Federal jurisdiction and that  resource -- the issues relating to that resource and  the statutes and the schemes don't -- aren't raised  in this action.  THE COURT:  But surely, if native people were managing the  resource -- managing resources, it might not be a  matter of any moment or concern to them whether they  were either Federal or Provincial jurisdiction.  That's a white man's distinction that they wouldn't  necessarily regard with importance and might  therefore bear on the plaintiff's allegation in  their case against the Province.  MR. MACAULAY:  Well, we have the evidence of what they were  doing.  I didn't object to the evidence generally.  It was the minutia, all the letters back and forth  that I objected to as simply being not relevant, not  of any assistance to the court.  And we have the  evidence of what the Tribal Council and/or the Bands  were doing.  They were trying to obtain control of  the fishing in and near -- in the reserves or around  the reserves, using the Indian Act regulatory  scheme.  That's evidence the plaintiffs led in  chief.  My concern again is it's opening the flood  gates kind of argument, I suppose.  I suspect there  is a tremendous amount of correspondence.  THE COURT:  Well, we have to be very cautious.  MR. MACAULAY:  I understand that that may be — your lordship  may draw one inference or another from the fact that  the Bands or Tribal Council were busy in doing that,  but you heard that evidence.  They say this is what  we were doing.  MR. GOLDIE:  My lord, I wonder if I might, before Mr. Grant  speaks to the matter, I should say first the fact  that my firm is acting in another matter is quite  irrelevant.  I don't think it would be proper for me  to accept that as an avenue of communication.  COURT:  You think that's a herring rather —  GOLDIE:  That's -- not only a herring, it is one that is  ripened to a red colour.  The more important point  is my friend's concern that the wording of my letter  is aimed at the particular by-law that was the  subject of so much correspondence and now  litigation.  Actually, this matter really arose, so  THE  MR. 7546  Submissions by Mr. Goldie  1 far as I am concerned, with Mr. Michell's evidence  2 of a by-law passed by the -- or resolution perhaps  3 passed by the Band which purported to control  4 fishing, and I don't recall -- I mean, he mentioned  5 a series of them and, of course, the last was the  6 one that was the subject matter of disallowance, but  7 there was at least one in which the Band, the  8 Moricetown Band, was purporting to deal with a  9 fishing resource.  10 Now, Mr. Macaulay says that's a Federal matter.  11 Regulation is with the proprietory right and the  12 fish is a Provincial matter, and I am quite happy to  13 say what I am interested in is anything purporting  14 to relate to supervision or exploitation or  15 regulation, if you want to put that word in, of the  16 fishery resource up to October 23, 1984.  The rest  17 of the evidence has been given but that's not really  18 my concern, and I hope that might clarify the extent  19 of my interest.  2 0 THE COURT:  Thank you.  Mr. Grant?  21 MR. GOLDIE:  Excuse me.  The reference that I had in mind was  22 Mr. Michell's evidence in chief in volume 61, page  23 3701, and my friend, Mr. Rush, was leading the  24 witness, and he referred to a by-law for the  25 preservation, management, conservation and use of  26 fish on reserves and traditional lands, rivers and  27 waterways of the Moricetown Band dated February 28,  28 1983.  That was introduced in chief.  29 THE COURT:  Was that by-law produced?  30 MR. GOLDIE:  Yes.  31 THE COURT:  So what you are specifically looking for is  32 surrounding or related documents?  33 MR. GOLDIE:  Yes, and from other Bands as well as from the  34 Moricetown Band.  35 THE COURT:  Thank you.  Mr. Grant?  36 MR. GRANT:  I'd like to deal firstly with the number of matters  37 here, my lord, involved and canvassed before you  38 today and previously.  39 First of all, my reading of the transcript and  40 the Order that my friend drafted from May 5 refers  41 to the B.C. Special, but he sort of put a hold on  42 it, and I have endorsed that Order and forwarded it  43 to the Federal Crown that the B.C. Special documents  44 have been referred to.  In order for the plaintiffs  45 to properly be able to canvas where they can locate  46 these, we must have production of the list from the  47 Federal defendants and that list -- we asked for 7547  Submissions by Mr. Grant  1 that by Order last week and they advised us they  2 would produce such a list by the end of last week,  3 and the Provincial defendant said they would like to  4 review that list before they could respond.  That  5 list hasn't been produced and so I would ask today  6 that there be an Order as sought last Monday to the  7 Federal defendants for disclosure of all documents  8 relating to the B.C. Special  9 MR. MACAULAY:  I don't think that's necessary.  I recall  10 reviewing a list and signing it.  If it hasn't  11 reached my friend, I don't know what the reason is.  12 THE COURT:  You say it is in the mail?  13 MR. MACAULAY:  The Province — my friends representing the  14 Province say they received it Thursday.  15 MR. GRANT:  Their mail system, I guess, is better than ours.  16 But we haven't received it, neither me or Mr. Rush.  17 MR. MACAULAY:  I don't think any Order is needed.  It is out  18 there.  I will get another copy this morning.  19 THE COURT:  Thank you.  20 MR. GRANT:  Now, I mean, with respect to that, the B.C. Special,  21 my lord, is that I have no difficulty and have  22 commenced the investigation with the Bands for the  23 disclosure of those documents and will respond.  24 Now —  25 THE COURT:  That's with respect to the Specials only?  26 MR. GRANT:  That's the Special Fund.  Now, regarding the  27 particularity that my friend raised.  First of all,  28 I would suggest that regarding these other documents  29 that this —  30 THE COURT:  Can't we get rid of the Special Fund?  In view of  31 the fact that your investigations are underway and  32 Mr. Macaulay says that the list that might be of  33 some use to you as an index or otherwise is in the  34 mail, should I not get rid of that problem by now  35 making the Order which has to be on a best efforts  36 basis anyway that --  37 MR. GRANT:  But, my lord, basically my question is this:  The  38 question that comes to my mind is this, is that if  39 Mr. -- a week ago Mr. Goldie says we are making our  40 best efforts; today and a week ago Mr. Macaulay said  41 we are making our bets efforts, and I am saying we  42 are making our best efforts.  There is no need for  43 an Order against the plaintiffs on that.  We are  44 making those inquiries.  We have already disclosed  45 all documents relating to Moricetown, Hagwilget and  4 6 Gitwangak.  47 THE COURT:  On the Special? 754?  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GOLDIE:  MR. GRANT:  MR. GOLDIE:  MR. GRANT:  On the B.C. Special, on the other Bands we are  making the inquiries of.  There is no necessity for  an Order against the plaintiffs because we are in  the same position against the Provincial and Federal  defendants.  Excuse me, my lord.  I thought my friend said he  had endorsed the Order and sent it to the Federal  Crown.  Well, yes.  If that's so, the Order is a very simple one and  the last paragraph said it may not be entered until  May 16.  Well, that's gone by the board.  But so far  as I am aware, the matter is now mute if my friend  has endorsed the Order.  MR. GRANT:  Well, the position I take, my lord, is given that  was prior to the circumstances of last week and of  this week is that basically I am saying it is not  necessary to make the Order against the plaintiffs  when -- because we are in exactly the same position  as the defendants.  I mean, we have sought the same  Order against the defendants.  They say we are  making our best efforts and it is adjourned and we  are going to deal with that.  We have actually made  better disclosure on the B.C. Special than either  defendants up to date and now we are going to other  Bands up to date.  THE COURT:  I take it you didn't find any particular difficulty  with Mr. Goldie's Order and your endorsement.  The  only question is whether it is still to be in that  Provincial court practice state that it is being  held for the time being?  MR. GRANT:  Yes, and I have no problem if it is held for the  time being because we are making our efforts and I  don't think the Order effectively will be necessary.  So I ask that that matter be extended -- the May 16  deadline be extended.  THE COURT:  All right.  MR. GRANT:  Now, relating to the other documents, and my friend  really relates to three resource areas in his  letter; fisheries, traplines and the  logging/forestry, I take it, is one category.  With respect to applications in respect of food  fishing permits, my lord, the evidence of the  application for food fishing permits has been  disclosed or is in the process of being disclosed by  the Federal defendant.  They have one office in  Hazelton which deals with all of the bands in the 7549  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. GRANT:  THE COURT:  MR. GRANT:  THE COURT:  district.  It is much easier for them to deal with  that type of disclosure than for the defendant --  the plaintiffs to deal with it through eight offices  or seven offices.  And so I ask that the Order not  be made with respect to applications for  correspondence respecting food fishing permits.  And  I should say at the outset, my lord, I am going to  ask that the court, as you say, that there be some  extension of any Order that's made because I am in  the process on these areas -- certain of these areas  of making inquiries as well, but the area of the  food fishing permits, I would say that any Order  should be directed to the Federal defendant.  They  are the ones in correspondence with the Band and  that's come out amply in evidence and in their list  of documents.  With respect to the fishing by-laws, that  material is in the public domain and it is as easily  available to the Provincial defendant.  It is not  just a matter of Mr. Goldie going to his colleague  in the office.  It is in the appeal books in the  Court Of appeal in the H.A.B.C. versus Wale of which  Mr. Harvey was counsel and -- but it is in the  public domain and I ask there not be an Order of  disclosure to that.  It is as readily available to  the Provincial defendant as it is to the plaintiffs  or any other party.  Well, is there some level of confidence that what is  in the appeal books in the Wale case is all there  is?  Well, those appeal books deal with the history of  the four Bands that have by-laws and they deal with  the history going back and the case of Moricetown  which is the only Band -- it wasn't a Band Council  resolution, it was a by-law.  But the appeal book would only contain the documents  that found their way into evidence.  The list of  documents in that case may be larger than the number  of documents that were actually used at trial.  Well, that was an interlocutory injunction  application.  There has been no list of documents  and it is before the Supreme Court of Canada.  There  is extensive affidavits dealing with the history of  those four Bands and the correspondence both back  and forth between the Federal and Provincial  defendant.  Is that W-a-l-e or W-a-h-1-e? 7550  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE COURT:  MR. GRANT:  W-a-l-e.  Thank you.  Now, the issuance of permits by Bands thereunder --  I presume that this is with respect to the fisheries  by-laws.  Now, as you know from the evidence and you  have heard from the evidence, my lord, the passage  of by-laws, except for the Moricetown by-law of 1964  I believe it is, the other by-laws was all in 1986,  and I would say that the issuance of permits by  Bands thereunder is not relevant given the comments  that you made a week ago, and it is known there  should be no necessity to disclose those.  With respect to the Moricetown Band by-law which  was extended I should say before 1984, I have no  difficulty in inquiring with respect to any permits  being issued under that by-law.  And I would make  such an inquiry and ask the court not to make an  Order.  I agree that that would come within the  category.  The correspondence relating to the disallowance  of fish by-laws.  Again, that is -- and  correspondence with respect to the same, that is all  within the H.A.B.C. v. Wale material, and that's  extensive.  That's of course what the issue was.  Not only in the H.A.B.C. v. Wale case but there were  earlier cases the factums which are in H.A.B.C. v.  Wale dealing with earlier disallowances.  With respect to Band Council resolutions  referring to fisheries resources, I have no  difficulty with making inquiries with respect to  those, and I would ask that an Order is not  necessary.  As I -- just so that you can appreciate, my lord,  as I indicated in my correspondence to Mr. Goldie  that he referred you to, I did receive this letter.  There was some crossover of my coming down and Mr.  Rush and I were dealing with Mr. Sterritt's  evidence, and that's why there was a delay in  responding so I have not yet delivered this  correspondence to our clients or I should say to the  Bands.  These Band Council resolutions relate to fish?  Well, I will be quite honest.  I don't think there  are any but there might be.  I am going to have to  make inquiries.  My friend says at the bottom of the  first page: 7551  Submissions by Mr. Grant  1 "Of course, any Band Council resolutions  2 referring to fishery resources are  3 producible."  4  5 I have no difficulty with making such inquiries as  6 to Band Council resolutions.  Now, Band Council  7 resolutions and fisheries by-laws are two different  8 things, and I understand what my friend is saying  9 what is Band Council resolutions and I will make  10 inquiries with respect to those.  My recollection is  11 this is with respect to the seven Bands and does not  12 include Kitwancool?  13 MR. GOLDIE:  That's right.  14 MR. GRANT:  Now, going to the secondary that Mr. Goldie raises  15 and that's regarding traplines.  My lord, a week  16 ago -- no, last Wednesday, we received  17 correspondence from the Provincial defendant  18 disclosing a number of trapline files from the  19 Hazelton office of Fish and Wildlife branch.  These  20 have been ongoing since the beginning of the trial  21 and, as I say, only a few days ago we received a  22 list that they had not yet known of its existence.  23 Any resolutions relating to registration and  24 transfer of traplines would be delivered to the  25 Provincial defendant through the Fish and Wildlife  26 branch and those would be in their -- they are the  27 ones who could properly disclose those, and I would  28 ask that, on the terms of any Orders that they make,  29 a full disclosure now of the balance of the trapline  30 files, rather than having this piecemeal approach  31 that we have had.  This may be their problem that  32 they are unable to get the files, I don't know what  33 their problem is, but all of the resolutions  34 relating to registration of transfer of traplines or  35 copy to the Provincial defendant that's become  36 obvious through the evidence.  37 The second arm of what Mr. Goldie asks is  38 internal correspondence -- I am sorry, all  39 correspondence relating to trapline disputes  40 including correspondence with other Bands or members  41 of other Tribal groups.  Now, this category, it  42 appears to me, may not conveniently -- may not be  43 within the Provincial trapline files; in other  44 words, they may not have possession of it, and I do  45 not oppose making inquiries about that and if there  46 is any such correspondence to disclose it.  47 The third category is the category of logging and 7552  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GOLDIE:  MR. GRANT:  THE COURT:  MR. GRANT:  forestry and, once again, the first area sought by  the Provincial defendant is production of  applications for/and correspondence with respect to  woodlot licences.  Now, again, my lord -- and  whether on or off reserve.  With respect to on  reserve woodlot licence, those would be in the  possession of the Federal defendant under the Indian  Act Timber Reserve Regulations as I recall and the  Federal defendant would have all of those.  However,  and I would ask that if the court put any terms that  thought this was relevant that they would seek  direct to the Federal defendant as well to make  disclosure of those.  With respect to woodlot  licences off reserve, any applications and  correspondence regarding woodlot licences would be  in the hands of the Provincial defendant because  through the Ministry of Forests, by the very  definition of woodlot licences, I am interpreting  that to mean what my friend is talking about the  whole gambit of licensing -- the licensing regime  carried on by the Provincial defendant, and I would  say that it would be better handled within the  Provincial regime than to disclose those that --  those documents are in their custody and for us to  go to eight offices would be difficult, onerous and  unnecessary.  The secondary is any internal  decisions regarding members of the Band would be  responsible for exploiting rights.  Now, in this category, my lord, I question the  relevance and I say is it in this way:  At first  face, it may be relevant but what does it mean to  have a Band Council say Joe Smith is going to cut  trees on our reserve or Joe Smith is going to have  the logging contract to fall outside of here?  I  raise that question but I am not raising that to  oppose it but say that I will investigate that to  see if there are any documents that are relevant in  that category.  Now --  I am sorry, I didn't -- would you repeat that,  please?  I didn't follow that.  I raise the question of relevance with respect to  that but I am not saying that I would not make those  inquiries.  I will make the inquiries.  Isn't irrelevant.  As I said before, you have  pleaded that from time immemorial, your clients have  managed and conserved and preserved resources.  Mm-hmm.  Well, on the global side, that's right.  I 7553  Submissions by Mr. Grant  1 am saying the minutia, whether Joe Smith does the  2 falling or John Smith does the falling, does this  3 really matter?  4 THE COURT:  Legal truth is only found in the details.  5 MR. GRANT:  Well, as I say, I am not opposed to making  6 investigations on it and there may be something  7 that's greatly relevant.  8 Now, with respect to any production of  9 correspondence or records relating to the claim of  10 hereditary chiefs regarding woodlot licence or  11 utilization of forest resources, I don't oppose an  12 investigation of that area and I would make such an  13 investigation.  14 Now, my lord, what I would say regarding forestry  15 is that any Order to be made should also respond to  16 the demand by the plaintiffs of the defendants for  17 production of documents regarding -- and I  18 paraphrase from my friend's last paragraph,  19 regarding any internal decisions with respect to  20 which the defendant is responsible for exploiting  21 the forest resources.  In other words, if this is  22 relevant, the administration by the plaintiffs and  23 the management and conservation of the resources by  24 the plaintiffs which the plaintiffs plead, it is  25 equally relevant that the defendants plead the  26 management and conservation of the same resources  27 and the administration of the same resources and on  28 the same basis those documents will be relevant and,  29 in particular, the one they have notice of is that  30 area of the territory which is now referred to as  31 Sustut Takla, and which has had numeral  32 administrations made about it not only post 1984 but  33 pre 1984.  I would ask that that Order which I  34 sought a week ago be part of this Order.  35 Now, I also asked for an Order for disclosure by  36 the Province of all trapline files and, again, this  37 would aid in terms of any request they make of the  38 plaintiffs.  But the area I see where they may have  39 difficulty is this correspondence between the Bands  40 and third parties not with the Provincial defendant  41 but, my lord, we are on a very, very serious paper  42 chase over the next few months if we are going to  43 dig up exactly what is either through the fisheries'  44 files, in the hands of the Federal defendant, or in  45 the traplines to the Provincial defendant.  I expect  4 6 and urge upon you it would be much more worth while  47 if the focus of this was narrowed to those areas 7554  Submissions by Mr. Grant  Submissions by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. GOLDIE:  where it is not reasonable that the Provincial  defendant has access to the documents and in those  areas I have no difficulty with making the inquiries  and the investigations.  And again, I would ask that  there be some time frame for the implementation for  the Order on these areas because, as I have said, I  am not objecting to making the inquiries and I  should have an opportunity to make them before any  Order is made.  And I say it is not through -- it is  the question of making those inquiries is something  that I was intending to deal with subsequent to  today, but -- so those are my submissions on those  points, my lord, and I would ask that you firstly,  consider adjourning the application so we can make  the inquiries; secondly, narrowing it to the areas  as I have defined and, if you see fit that you  should make an Order, that there be an Order -- a  parallel Order on the areas of logging and trapping  against the Provincial defendant and in the area of  fishery with respect to Federal defendant.  It is  only in that way, and I have already asked there be  an extension of the B.C. Special Order so I can  properly respond to my friends, because we are not  refusing to respond to that Order.  Thank you.  Mr. Goldie?  My lord, we are here because I wrote a letter on  May 27 to which I have received no reply and, if my  friend says he intended to respond to it, he's had  over a month to consider it.  As I understand it, there is no issue with  respect to the B.C. Special Fund.  It has been  suspended in its operations since May 5.  It has  been endorsed by the plaintiff and the Order I  propose entering as endorsed.  With respect to the others, my lord, the food  fishing -- first I should say that these  applications arise out of the introduction in the  evidence in chief of matters relating to Band  Councils.  The fishery by-law that I referred to was  introduced in chief and I have already said that I  am anxious to know whether any other Band has done  the same thing as was done with the Moricetown Band.  I don't understand my friend to say that he refuses  to use that.  There really is no point in relying  upon other sources unless my friends are prepared to  admit the authenticity of documents provided from  other sources which on their face disclose the fact 7555  Submissions by Mr. Goldie  1 that they have been sent to the defendants.  What we  2 are asking for is documents in the possession of the  3 Band Councils, the Band Councils having been  4 identified by the plaintiffs as the agents of the  5 hereditary chiefs.  I have said with respect to the  6 fishing by-law in the Wale matter, that was  7 disallowed after the beginning of this action, and  8 what I am looking for are comparable by-laws passed  9 by other Bands to that which my friend introduced in  10 chief and in Mr. Michell's evidence.  Now --  11 MR. GRANT:  Well, I can resolve that, my lord.  I know if my  12 friend is focusing on the 1963 or '64 Moricetown  13 by-law, that, through a search that I have done,  14 including of the Federal regulations which deals  15 with the listing of by-laws which is a matter of  16 public record, that is the only by-law relating to  17 the fisheries that was passed by any of the seven  18 Bands prior to October of '84; that is, I shouldn't  19 say was passed, was allowed and was -- had the form  20 of a by-law under the Indian Act, was not  21 disallowed.  If that's what my friend is concerned  22 about, that is the only one.  23 MR. GOLDIE:  I don't know what I am concerned with except in  24 general terms and, if that's going to be the list  25 prepared by my friend, so be it.  But we are not --  26 I am being told here today that, oh, that's the only  27 one that's been passed.  The proper way to respond  28 to it is to respond with a list.  29 Now, my lord, my friend referred to traplines and  30 he referred to the fact that we have found  31 discarded -- additional discarded files and we  32 are -- we are disclosing those.  What I am looking  33 for are documents in the possession of the  34 plaintiff's agents.  Your lordship well knows the  35 difficulty we have had in introducing trapline  36 documents and the fact that they are in the  37 possession of the Bands is of equal significance  38 with respect to trapline documents.  Now, Mr. Grant  39 said he would make inquiries with respect to  40 trapline disputes.  Well, once again, we find  41 through the evidence of the plaintiffs, maybe  42 perhaps not characterized as disputes, but matters  43 are resolved internally.  They introduce that and  44 they make reference to the Band Councils.  With  45 respect to -- and my friend acknowledges that he is  46 prepared to make inquiry.  I can't understand why  47 these inquiries weren't made upon receipt of my 7556  Submissions by Mr. Goldie  1 letter, May 27, but be that as it may.  2 The question of the relevance, now turning to  3 logging, Mr. Grant said that he could not see what  4 significance internal documents were.  Once again  5 that was introduced --  6 MR. GRANT:  That's not what I said.  I said that I could not see  7 the relevance of who was authorized to cut a  8 piece -- a tree or which member of the Band was  9 authorized to cut a tree.  I was not saying, and I  10 wish to correct if my friend misunderstood, I did  11 say that any internal documents relating to claims  12 hereditary chiefs should be investigated and I will  13 do so, and I would also investigate the other area.  14 MR. GOLDIE:  I point out that this arose in the examination in  15 chief of Mr. Michell who said, well, we are cutting  16 wood for the sawmill on Weiget's territory and he  17 gave permission for that.  Well, that's -- and  18 that's the Band Council which is doing this.  So  19 that's how this sort of thing arose, not by virtue  20 of anything that the Province has introduced.  21 Now, my friend now says he is prepared to make  22 those inquiries.  I can see no reason why the Order  23 should not go in the terms that have now been put  24 before your lordship which is substantially the  25 terms of my letter of May 27.  26 Mr. Grant makes reference to parallel Orders.  27 There is no application to your lordship for any  28 parallel Order and, if he is going to wish to have  29 his motion with respect to the Sustut adjourned into  30 open court, I will be prepared to debate that but,  31 on the pleadings, on the pleadings, there is no  32 relevance of that.  But the pleadings are that the  33 plaintiffs have exercised ownership and jurisdiction  34 that the Band Councils are their agents and that the  35 Band Councils have been involved in this kind of  36 thing.  Now, that's the simple fact of the matter  37 and your lordship stated on May 5 that you wished to  38 provide some sort of direction but the matter was  39 left over so that I could provide some  40 particularity.  41 In my submission that has been done and in my  42 submission my friend has not really challenged the  43 particularity of my letter of May 27, with the  44 exception, and I am quite prepared to clarify this,  45 with the exception of the disallowance of the by-law  46 which is the subject matter of the Wale action.  47 That disallowance occurred after this action was 7557  Submissions by Mr. Grant  1 commenced and I am not interested in that.  But that  2 was not the subject matter of the by-law that was  3 introduced in chief in Mr. Michell's evidence.  4 MR. GRANT:  Just one point, a clarification, and that is with  5 respect to my friend's categorization of the Band  6 Council as with the agents of the plaintiffs.  I  7 cannot sit and be quiet on that.  I don't agree that  8 this is it.  I think that the Band Councils operated  9 in that capacity with respect to certain matters.  10 For example, when he says that Mr. Michell referred  11 to them getting permission from Weiget, clearly, the  12 Band Council was acting not as Mr. -- as Weiget's  13 agent, the chief Weiget's agent, but was acting as a  14 Band Council and dealing with the hereditary chiefs  15 of the -- and with respect to those types of  16 internal decisions.  I am not opposed to making  17 the -- any further inquiries regarding to that --  18 regarding that.  Weiget in that case was a Gitksan  19 chief, and Moricetown is a Wet'suwet'en Band.  I am  20 only asking, my lord, when I say not to make the  21 Order now, I am only asking to have the same basic  22 understanding as was dealt with with respect to the  23 Federal -- that the Federal Crown says and with  24 respect to the B.C. Special and the Provincial  25 defendant said with the B.C. Special.  We are making  26 our investigations, we are doing our best, and we  27 are going to make the inquiries, and I have said  28 that and I've put it on the record, and that's what  2 9 we intend to do.  30 MR. MACAULAY:  May I make a submission, my lord?  31 THE COURT:  Yes, Mr. Macaulay.  32 MR. MACAULAY:  This may be drawn in, although application for an  33 Order that we produce anything.  First, the food  34 fish permits and alike.  We have so many documents  35 that we have to adopt systems, and one of the  36 systems involves names.  For instance, many of the  37 Federal files are listed under individual names as  38 genealogies appear.  Then we have a whole lot of  39 names that we can do searches on.  But if we don't  40 know that Mr. John Jones is a Gitksan or  41 Wet'suwet'en, then it's a little more difficult to  42 search out the relevant documents.  43 Second, so far as relevant fishing documents are  44 concerned, we have listed everything we have found  45 and we thought was relevant.  Same with trapline  46 files, and the same with woodlot licence on  47 reserves.  But in no case has either of the other 755?  Submissions by Mr. Macaulay  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. GRANT:  THE COURT:  parties had to resort to seeking an Order against  us.  The plaintiffs recently told us that they  wanted us to produce statements of policy by the  government regarding land claims and recognizing  that there is a big difference between a document in  their possession than a document in our possession,  a distinction that's been drawn by Mr. Goldie.  We  are responding.  They don't need an Order.  The same  with the B.C. Special and the Province has asked us  to produce documents from time to time and we  responded willingly, but I point out that the sooner  we get the balance of the genealogies, the sooner we  will be able to complete the task that we have.  We  don't -- it's not -- these files aren't necessarily  organized on a territorial basis, but rather on an  Indian basis and a Band basis, on any basis.  I might add this:  That excellent map your  lordship had for sometime shows a yellow area over  here.  Now, that had been excluded in May 11, 1987  from the claim area and so we didn't produce  documents concerning that area, trapline files  particularly.  Now it is back in just recently and  we are looking for the necessary files.  So it's  never complete, won't be complete until we get the  last map and last genealogy.  That's my submission,  my lord.  Thank you.  Just one point, and that is on the food fishing  permit, my lord.  If food fishing permit system is a  system that applies to Indians.  If my friends  disclose all food fishing permits that are issued  out of the Hazelton District Office which covers in  its entirety the area within the claim, that is not  all the claim area but the Hazelton area office  covers pretty well all of its area within there.  I  suspect that without the aid of genealogies, they  would be able to be pretty sure that 95 and 99  percent of them are the Gitksan and Wet'suwet'en.  They have a different problem out of the Smithers  office but not out of the Hazelton office.  I have the sense that we are trying to categorize  grains of sand by size and that this is another  example of how this kind of litigation fits so badly  into the usual processes of the court.  I think a  lot of the problems do arise because there are  differences of treatment of documents in the  possession of one party as compared to the treatment 7559  Ruling by the Court  1 of that same document in the possession of another  2 party.  And it is true as Mr. Goldie has said this  3 morning that the fact that he has a document isn't  4 necessarily the end of the story because it is far  5 more significant to him if the same document is in  6 the possession of the other side, then he can do  7 something with it and doesn't have the same  8 evidentiary problems that arise if he only has  9 certainty within the rules that it is in his  10 possession.  I have the feeling that many of the  11 things we are debating probably won't be of very  12 much significance in this case and that we might get  13 along pretty well if we did nothing further from  14 this point forward in this connection, but that's  15 not the rules of the game and I have no authority to  16 suspend the rules and to try and play the game in  17 some less formal or less structured way.  I am  18 almost reminded of the famous Australian rugby story  19 when the ball being kicked exploded in mid air and,  20 when it landed, one of the players said, never mind  21 the blank ball, let's get on with the game.  And  22 they probably did fine without the ball.  But I  23 can't proceed quite that way and I have to try and  24 ensure that the traditional or customary structure  25 is maintained.  26 I think on the Special Fund, I think that I  27 should fix the time when the Order that's apparently  28 all been -- has apparently been processed so that  29 there will be some certainty.  I think that Mr.  30 Goldie should be free to enter that Order after the  31 end of this week unless the matter is spoken to  32 again and some reason is shown why it should not be  33 entered.  34 With regard to food fishing permits, the  35 documents are said to be all in the -- or  36 substantially in the office of the Federal  37 department at Hazelton but, as I have said, that  38 doesn't do Mr. Goldie much good as against the  39 plaintiffs, yet, I think there is an advantage  40 arising out of that fact if we take character to  41 build on that reality.  I don't think that I am  42 going to make an Order on food fishing permits right  43 now but I think that the extent of the documentation  44 on the food fishing permits should be disclosed by  45 the Federal Crown to the Province and to the  46 plaintiffs and the plaintiffs should then seek an  47 admission from the defendants and, if that isn't 7560  Ruling by the Court  1 forthcoming, then a fairly firm Order will have to  2 be made.  I would have to have an indication from  3 Mr. Macaulay when that disclosure would be made.  4 How soon can that be done, Mr. Macaulay?  5 MR. MACAULAY:  It was done a year ago approximately, my lord.  6 We have listed hundreds and hundreds of food fishing  7 permits.  We have the copies, we have the carbons,  8 the originals are in the hand of the permitees, and  9 I doubt very much if a permitee keeps them,  10 individual persons, and not necessarily Gitksan.  We  11 have gone through -- we took a lot of trouble with  12 that, gone through the list of names.  What we have  13 to have is individual names and, when we get  14 individual names through genealogies or through  15 evidence, then we can go through the lists.  They  16 are not always in Hazelton; there are some in Prince  17 Rupert.  They are all over the place and we have  18 done that and we continue to do that.  I can't think  19 of anything more in that particular category we can  20 do.  I believe that when we were on the last  21 application, my friend Mr. Grant's application  22 concerning documents, I understood him to complain  23 about the prolixity of our food fishing permit list  24 because there were so many, individually listed by  25 name.  And we have never heard from the Province  26 that they didn't have enough disclosure -- or from  27 the plaintiffs that we didn't have enough disclosure  28 on that.  If we find another source, we will list  29 it.  I can't think of what we can do right now that  3 0 we haven't done.  31 THE COURT:  All right.  Well, I am going to adjourn this party  32 application to some date towards the end of July  33 when the matter could be spoken again and, Mr.  34 Goldie, I think you can take immediate steps, based  35 on what Mr. Macaulay has said and if you haven't got  36 what you think you need from the plaintiffs by that  37 time, then I may have to make an Order that I would  38 prefer not to make.  39 On the fishing by-laws, I think we have reached  40 the point in this trial where we recognize, at least  41 I do and I hope counsel do, that what has happened  42 since the commencement of the action is not going to  43 generally be relevant and I am going to Order that  44 within 14 days the plaintiffs make -- furnish a list  45 of pre-writ fishing by-law documents that relate to  46 fishing by-laws by any of the Bands within the  47 Gitksan or Wet'suwet'en people.  Mr. Grant says that 7561  Ruling by the Court  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE COURT:  MR. GRANT:  THE COURT:  MR. GOLDIE  THE COURT  MR. GRANT  THE COURT  Grant has said  I am disposed to  will only be one, that is Moricetown by-law, and  therefore I think that that list should be furnished  by the 14 days from today and that will put that  matter out of the way.  My lord, can I have clarification on that?  Yes.  Can I try and be clear in what I said?  The fishing  by-law process as you know, it is passed by the Band  and it's got 40 days; if not disallowed, it becomes  law.  I just wanted to be sure as to what you are  saying with respect to the fishing by-laws that have  gone through that 40 day process and have not been  disallowed.  Yes.  I think you must make a list of all those  by-laws.  Which have not been disallowed?  And documents relating to them.  Whether they have been disallowed is irrelevant.  I think whether allowed or --  Pre October 1984 I understand.  Yes, that's right.  Next subject I have mentioned  was permits under by-laws, and Mr.  that those will all be disclosed,  make that Order but I won't this morning.  I will  probably make it on the presumption of the matter I  mentioned a moment ago on some day towards the end  of July when these matters can be spoken to again.  I think Mr. Grant's indicated willingness to  disclose.  That makes that into an issue which is  not particularly adversarial and I hope that can be  resolved, but I think keeping in mind the structure  to which I referred to a moment ago, I think I  should make that Order if it isn't otherwise  resolved.  I do not think it is sufficient to refer  except possibly by reference in a formal list to  documents in the Wale's action, if that's a  convenient way to describe documents, then I see no  reason why it shouldn't be done.  But I think there  must be a separate disclosure in this action as  compared with some other action.  Now, the next item was the Band Council  resolutions.  Mr. Grant said there was no difficulty  regarding fish and he would make inquiries of the  seven Bands not including the Kitwancool Band, and  seems to me that there should be a list furnished,  and I hope that that can be done by July 31.  If  not, the matter may be spoken to then. 7562  Ruling by the Court  1 With regard to traplines, Mr. Grant says the  2 registration of all traplines is in Provincial  3 Government offices but that raises the question of  4 the proof I mentioned a moment ago and admissions,  5 and I think that there has to be some resolution  6 between counsel as to how that can be done.  I think  7 that the province is entitled to have the security  8 of knowing that it may adduce in evidence the  9 documents in its possession relating to traplines or  10 if need not.  Before the plaintiff -- before the  11 Provincial Crown can use those documents, it must of  12 course have disclosed them.  I am assuming therefore  13 that those documents have been disclosed by the  14 Province by way of list or by way of supplementary  15 list yet to be produced and, with the matter of how  16 the province is to prove those documents not  17 resolved by the end of this month, then I will have  18 to try and fashion an Order that will solve that  19 problem.  I want to avoid if I can requiring endless  20 searches but there may be no alternative.  21 Mr. Grant said that there was no difficulty with  22 respect to Band resolution of disputes, and I think  23 that the end of July will be an appropriate time for  24 the disclosure of documents relating to that matter  25 and, while I will make no Order now, I will say that  26 I think I should take advantage of Mr. Grant's  27 assurance that there will be no problem in that  28 connection and say that I will probably make that  29 Order in the end of July if that matter is not  30 otherwise resolved.  31 In logging and forestry, Mr. Grant says that  32 woodlot licences for logging on reserves are all in  33 the possession of the Federal Crown and woodlot  34 licences for logging off reserve are in the  35 possession of the Provincial Crown and that is  36 probably true but raises the same problem again as  37 how are these documents to be proven.  I think the  38 same disposition should be made as what I have said  39 previously.  I think that should be resolved between  40 counsel and can be spoken to again on the 28th of --  41 I am sorry, not the 28th of July, at some date at  42 the end of July.  43 Internal documents relating to logging is a  44 subject Mr. Grant said that he would investigate.  I  45 think with respect that it may be relevant if a Band  46 Council has passed on the right of a member of the  47 Band to undertake cutting or logging operations 7563  Ruling by the Court  Submissions by Mr. Macaulay  1 either within the reserve or within the area of a  2 hereditary chief, Mr. Grant has said he will  3 investigate that and I will leave it to him to do  4 so, giving leave to the Provincial Crown to raise  5 the matter again later this month if it is necessary  6 so to do.  7 Mr. Grant has asked for permission or for  8 disclosure by the Provincial Crown of pre 1984 or  9 pre-writ documents relating to the Sustut Takla area  10 and also disclosure of all Provincial Government  11 trapline files.  At first blush it appears to me  12 that Mr. Grant is entitled to that, the plaintiffs  13 are entitled to that, but there is no application  14 before me and, if there is a continuing problem  15 between counsel, then it seems to me that it should  16 be brought on when the other matters are spoken to  17 in July -- later in July and it can be resolved.  I  18 would hope that Crown would not have to engage in an  19 endless search of documents relating to an area as  20 large as the Sustut Takla area and that the matter  21 could be brought into some more narrow compass and I  22 think that Mr. Grant should formulate his specific  23 request in that area; that is, an area and those  24 documents for that area quite shortly so that the  25 issue will be more precisely joined if it has to be  26 argued later this month.  I think that concludes  27 everything that's been spoken about this morning.  I  28 have however to adjourn now to attend to another  29 brief matter and I will be glad to hear from counsel  30 in matters I have discussed when we resume in a few  31 minutes.  Thank you.  32 THE REGISTRAR:  Order in court.  33 THE COURT:  Counsel may also think of a date later in July that  34 might be convenient.  35  3 6 (PROCEEDINGS ADJOURNED AND RESUMED PURSUANT TO AN  37 ADJOURNMENT)  38  39 THE REGISTRAR:  Order in court.  Ready to proceed, my lord.  40 MR. MACAULAY:  May it please your lordship, I have a copy of  41 the -- of the admissions regarding the  42 photographs -- all those photographs.  43 THE COURT:  Oh, yes.  44 MR. MACAULAY:  A number have been reserved for the Attorney  45 General of Canada's notice.  The Province's  46 admissions have been marked and I ask that -- it's  47 659 was reserved for ours. 7564  Submissions by Mr. Macaulay  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  THE  MR.  THE  MR.  RUSH:  I'd be grateful for an opportunity to review this  before --  COURT:  All right.  Yes, I have 659 noted reserved for Mr.  Macaulay's admission.  MACAULAY:  Perhaps I can hand it to the Registrar and if  there is some objection made then.  REGISTRAR:  I will make some copies.  COURT:  We will hold marking it for the moment.  Unless we  hear otherwise from Mr. Rush, it will eventually be  659.  MACAULAY:  I just handed a copy to my friend.  COURT:  Thank you.  Mr. Grant?  GRANT:  Yes, my lord.  I raised one matter in terms of the  time-tabling of your Order and that is, I am not in  a position to know exactly how this will work out  but I am concerned with your time-tabling of this  over the month of July.  I do know the practice in a  number of Bands that the Band Administration takes  one month off, either July or August, so it's quite  feasible and I would say even probable at least in  some of the Band situations that, with the  time-tabling that you have set, that the people that  would be able to best assist in this process will be  gone the entire time between now and the time that  you have asked for a return.  I am not suggesting  that I would delay in my requests and follow up on  those inquiries, but I would ask that this matter in  terms of speaking to it be dealt with in the later  part of August -- in the last half of August, but I  am not saying that I don't want the court or anyone  to assume that that's because there will be a delay  in the demand request but only that I am concerned  that it is not going to be possible if the Band  manager or administrator, or whoever deals with  these matters -- sometimes it will be different  people -- are not available, which is generally the  case in the summer months.  So if I had 'til late  August, then I would be able to deal with it.  I am  not suggesting that necessarily deals with all the  matters that you raised but at least with respect to  my matters to the Bands and I understood that that  was the terms of the request, a request to the  Bands, and I would ask for that in terms of time  table.  Well, Mr. Grant, I think I will leave it as I said a  while ago. While you make your inquiries and if you  are still of the view at that time that the end of  THE COURT 7565  Ruling by the Court  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  MR.  GRANT:  12  13  THE  COURT:  14  15  MR.  GOLDIE  16  17  18  19  20  21  THE  COURT:  22  MR.  GOLDIE  23  24  THE  COURT:  25  MR.  GOLDIE  26  27  THE  COURT:  28  29  30  MR.  RUSH:  31  THE  COURT:  32  33  MR.  GRANT:  34  35  THE  COURT:  36  MR.  GRANT:  37  THE  COURT:  38  39  40  MR.  PLANT:  41  42  43  44  45  46  47  July is unrealistic, then I will be glad to hear  from you again about that.  I would think that you  and your friends could have a discussion about it  and, if you are unable to agree, then I will be glad  to hear you sometime in July if it should be put off  further.  I hope that you could agree -- I would  hope that you could get it done by the end of July  so that there wouldn't be serious further delay but  if you find that's not possible, I will be glad to  hear from you further in due course.  Yes.  I am just not sure of the scope of the job  that it entails.  I think it is appropriate you should bring it to our  attention now rather than later.  Thank you.  :  Your lordship asked about dates.  The last working  day in July, I believe, is the 28th, and when Mr.  Grant spoke to me about his difficulties, I was  going to suggest that a week after that would be the  3rd or 4th of August which -- either of which would  be satisfactory to the Provincial defendants.  Friday, the 29th of July is the holiday.  :  No.  I think it is the 1st of August that's a  holiday.  That's a Monday.  :  I am sorry, I said the 28th was the last working  day, I meant the 29th.  Well, as far as I know, that's convenient to me, but  I'll -- any reason why I shouldn't fix that  tentatively?  None.  Convenient to us.  All right.  July 29th, thank you.  All right.  Are  we ready to proceed?  Yes, my lord.  If I may, I am going to excuse  myself?  Thank you, Mr. Grant.  Have a pleasant month.  Yes.  You have a pleasant vacation as well, my lord.  And perhaps madam registrar mentioned that I don't  think we need to gown for the further viewing of the  video after this morning's session.  My lord, one matter that perhaps I should raise that  doesn't have to do with the video.  Some time ago  your lordship referred to a paper by Murray Smith on  the -- well, it's called, "When Does The Previous  Statement Of The Witness Become An Exhibit".  I have  had an opportunity to obtain a copy of this paper  from Mr. Peck who had it, and I don't think it  advances the discussion much beyond the principles 7566  Submissions by Mr. Plant  Submissions by Mr. Grant  1 which were the basis of the submissions addressed to  2 your lordship at the time that we discussed the  3 question of whether or not that affidavit of Glen  4 Williams ought to be marked as an exhibit.  But  5 that's something that in some sense is outstanding  6 and I thought I should indicate to your lordship my  7 view that the paper doesn't alter the principles  8 that were the basis of earlier discussion.  In  9 effect, your lordship has a discretion as to whether  10 or not the statement should be marked, and that  11 discretion having been exercised is probably an end  12 of the matter there, but I didn't want to leave the  13 thing hanging after your lordship's reference to  14 that paper and your suggestion that we ought to go  15 and have a look at it.  16 THE COURT:  Have you any submission to make, Mr. Grant?  17 MR. GRANT:  Yes.  I have reviewed the paper as well and I think  18 that the only -- there was a reference to the paper,  19 where a witness has signed the statement, that  20 statement can go in as evidence.  And of course this  21 was a sworn affidavit and he had signed it.  I think  22 that that is the only -- to that extent that the  23 paper can go in.  But I do take a point that when my  24 friend raised it, if I cross-examined or, I am  25 sorry, re-examined Mr. Williams as to what else he  26 had said in the paper, I may have introduced the  27 facts -- the content of the paper independently.  28 THE COURT:  Well, I would think that would still apply to what  29 else he said in connection with the same subject  30 matter surely.  31 MR. GRANT:  Oh, yes.  Not generally, but the fact that he would  32 have said --  33 THE COURT:  Yes.  Well, I am not persuaded that  34 cross-examination on a long affidavit --  35 cross-examination on one paragraph of a long  36 affidavit makes the balance of the document  37 admissible as proof of the truth of what it states.  38 I think that the parts that were cross-examined upon  39 and those that are sort of closely related to it  40 should be part -- should on the application be  41 marked as evidence but not beyond that, and I think  42 I would not change the ruling in view of what  43 counsel said of what I made earlier.  I don't know  44 what that requires.  45 MR. GRANT:  I interpret what you have now just said which is  46 what I think probably is the only -- I concede that  47 that's the only scope it could go in.  I will review 7567  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  the affidavit and correspondence with Mr. Plant or  he can review and correspond with me and deal --  consider which parts of the affidavit we can try to  work out.  What parts of the affidavit, if any, are  so connected to what he cross-examined that they  should be part of it.  I think referred to two or  three paragraphs.  MR. PLANT:  I can assist your lordship and my friend.  There are  no other parts of the affidavit in my submission  which are not interconnected with those parts that I  referred to that they have to be marked.  In any  event, they could not be marked for any other  purpose than to go to the credibility of the maker  of the statement.  They cannot be -- at least on my  view of the opinions expressed by Mr. Smith, they  cannot be marked as evidence of the truth of their  contents.  They merely support the other --  Unless they have been adopted.  Yes.  Well, I want to review the affidavit.  I appreciate  my friend's efforts to assist but I'd like to review  it and we can deal with it at the end of July.  All right, thank you.  Are we going to proceed with  the video now?  I think that's the next order of the --  Do counsel agree with the previous practice of not  having these video sessions reported by madam  reporter?  Yes.  You are excused then.  Thank you, madam reporter.  THE COURT  MR. PLANT  MR. GRANT  THE COURT:  MR. RUSH:  THE COURT:  MR. RUSH:  THE COURT:  (REPORTER EXCUSED)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein,  transcribed to the best of my  skill and ability.  TANNIS DEFOE, Official Reporter  United Reporting Service Ltd.


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