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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-11-16] British Columbia. Supreme Court Nov 16, 1988

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 9733  Proceedings  1 November 16, 1988  2 VANCOUVER, B.C.  3  4 THE REGISTRAR: Order in court.  In the Supreme Court of British  5 Columbia this Wednesday, November 16th, 1988, in the  6 matter of Delgamuukw versus Her Majesty the Queen at  7 bar, my lord.  8 MR. WILLMS: My lord, I wonder if I might just clean up Exhibit  9 784 in accordance with your lordship's judgment.  10 THE COURT:  Yes.  11 MR. WILLMS:  And then the exhibit will be complete.  And  12 starting with tab 2 of Exhibit 784, you may recall  13 that what your lordship decided on this is that the  14 financial information in the paragraph "my invoice"  15 should be disclosed, but that the paragraph before  16 starting with "I have spent", did not need to be  17 disclosed.  18 THE COURT:  Yes.  19 MR. WILLMS:  And so I've prepared a replacement 784-2 which  20 deletes the portion referred to by your lordship and  21 leaves in the portion which is to be disclosed.  And  22 I'd ask that that be marked 784-2 and that the  23 other -- I think that the other documents can be  24 removed from the exhibit completely.  25 THE COURT:  All right.  26 MR. WILLMS:  Now —  27 THE COURT:  Is there a copy for my book or —  28 MR. WILLMS:  Yes, there is, my lord.  29 THE COURT:  784-2.  Yes.  Thank you.  30 MR. WILLMS:  The next one is 784-3 and what your lordship did on  31 784-3 was, in effect, sustained the objections in  32 respect of the first page and then in respect of the  33 second page Miss Mandell conceded that it should be  34 disclosed during argument.  35 THE COURT:  Yes.  36 MR. WILLMS:  And so what I'm suggesting is that the blacked out  37 first page that's already there --  3 8 THE COURT:  Yes.  39 MR. WILLMS:  -- remain as the first page, and the clear second  40 page be the second page of the letter.  41 THE COURT:  All right.  So the first page stays as it was.  42 MR. WILLMS:  Yes, with the blacking out.  43 THE COURT:  Yes, and the clear second page is inserted.  44 MR. WILLMS:  And yes, the second page is, and then I'd ask, as I  45 did with the -- with dash 2 that the other portions be  4 6 removed from the exhibit.  47 THE COURT:  Yes.  That becomes 784-3. 9734  Proceedings  1 MR. WILLMS:  If you take the last page of that one and attach it  2 to the first page of the other one, that then accords  3 with the judgment.  4 THE REGISTRAR:  Okay.  Got it.  5 MR. WILLMS:  Then the final one, my lord, is tab 6, and in  6 respect of tab 6 the portion that was in dispute was  7 ruled to be disclosed by your lordship.  Miss Mandell  8 conceded the other part that was blacked out should be  9 disclosed because it was financial and so the complete  10 clear -- the unblacked out document would then be  11 part -- would then be the exhibit and I'd ask that the  12 blacked out portion be removed.  13 THE COURT:  Yes.  All right.  14 MR. WILLMS:  The last thing, and this is just administrative, my  15 lord, I do not propose to add any more tabs or any  16 more documents, although there were 31 tabs, and so  17 this will be the complete 784.  18 THE COURT:  Yes.  19 MR. WILLMS:  Now, there won't be anything else added to it.  2 0 THE COURT:  All right.  21 THE REGISTRAR: I removed tab 31 from yours my lord.  22 THE COURT:  Would you give those back to Mr. Willms or whoever  23 they belong to?  24 MR. GRANT:  My lord, I want to say Mr. Willms advised me this  25 morning, apparently he and Miss Mandell consulted  26 about it, I just understand they have an agreement, so  27 I have no comment on any of these changes because I  2 8 didn't make the comparison between your judgment and  29 these documents.  30 THE COURT:  All right.  Now, what about that collection of  31 documents which were used in the argument?  Should  32 that —  33 MR. WILLMS:  My suggestion there —  34 THE COURT:  That's not an exhibit.  35 MR. WILLMS:  It's not an exhibit, my lord.  It was simply handed  36 up for your lordship to make your rulings.  37 THE COURT:  Should it not be returned to counsel?  38 MR. WILLMS:  I think that it should be.  39 MR. GRANT:  It should be returned to plaintiffs' counsel.  4 0 THE COURT:  I wonder where it is.  I think that it's down in my  41 chambers, but --  42 THE REGISTRAR: Yes, it is.  It's not there, my lord.  Does it  43 include the black book?  44 MR. WILLMS:  No, no.  Those authorities will be referred to  45 again with respect to future witnesses.  4 6 THE COURT:  Yes.  All right.  All right.  I'll arrange to have  47 that book of documents returned to Mr. Grant or Miss 9735  Submission by Mr. Grant  1 Mandell.  I think they furnished it and probably I  2 shouldn't have it.  There are documents there that I  3 think are not exhibits now.  All right.  Thank you.  4 MR. GRANT:  That's agreeable.  One other item was regarding  5 Exhibit 784 was with respect to an excerpt of the  6 Hatler report, I think it's 784-25, and I had  7 requested at the time my friend tendered that that the  8 entire document be put in and I believe my friend has  9 agreed that he will do that.  10 MR. WILLMS:  My lord, what I'm proposing there is, and it's  11 being copied in total, I was going to send it to my  12 friend and if he still wanted it all in, I don't think  13 it's very interesting or relevant, but if he still  14 wanted it in then I'm agreeable to putting it in.  But  15 I thought I'd make one copy first and send it to my  16 friend.  17 MR. GRANT:  Now, my lord, there's a series of housekeeping  18 matters and I think the two primary ones relate to --  19 relate to the cross-examination scheduling and  20 scheduled for the -- commencing the 28th of November  21 and also relate to the spring schedule.  But there's  22 another series of matters that Mr. Rush requested that  23 I just advise the court of these matters.  Apparently  24 they were left outstanding at the time of Mr.  25 Sterritt's examination, and I would like to just  26 briefly advise the court of the status of that.  27 The documents -- there was a request by Mr. Goldie  28 for -- just a moment -- on September 21st for a  29 listing of documents obtained from the Department of  30 Indian Affairs by Miss Maureen Cassidy on behalf of  31 the Tribal Council, and that is referred to at page  32 8099 of the transcript.  Mr. Rush had responded on  33 page 8523 of Volume 137.  I just wish to advise the  34 court on behalf of Mr. Rush that that listing has been  35 now delivered to -- was delivered yesterday to the  36 defendants.  37 There was also a request for a large series of  38 documents of transcripts and my understanding is that  39 a hundred and eleven transcripts have now been  40 delivered.  This comprises, on my instructions, all of  41 the transcriptions that were requested, I believe, by  42 the federal defendant and then also by the provincial  43 defendant.  They have all been delivered.  44 THE COURT:  What kind of transcripts are these?  45 MR. GRANT:  These are transcripts of a combination of  46 transcripts, many of which privilege was relied on for  47 them.  The privilege has been waived on all of the 9736  Submission by Mr. Grant  1 transcripts and on the totality of the content of the  2 transcripts.  They were interviews with Gitksan and  3 Wet'suwet'en persons in 1980 to '83.  4 THE COURT:  I see.  5 MR. GRANT:  They involved -- they were not exclusively, but they  6 did include interviews in anticipation of litigation,  7 this litigation, other litigation, on the instructions  8 of counsel.  But we have waived all of the privilege  9 and delivered all of them.  Forty-nine of those  10 interviews had already been delivered in the summer of  11 1987 and in September of '87, so that completes that.  12 There is another request that my friend Mr.  13 Mackenzie raised with me yesterday which is  14 interviews, and I will speak to it in more detail,  15 interviews of Mr. Marvin George who we anticipate will  16 be an expert witness, but whose evidence will not be  17 led for some time until later in the spring.  And they  18 have indicated they wish to keep open  19 cross-examinations of Wet'suwet'en witnesses if -- in  20 case of any of the interviews of him deal with those  21 witnesses, and our position is that we will deliver --  22 that we're not obligated to deliver his notes at this  23 time, but we will deliver in order to complete the  24 cross-examinations of witnesses any notes of  25 interviews with any of the witnesses who are to be  26 cross-examined.  I advised my friend that I was  27 working on that when I was not in court this week and  28 I anticipate being able to deliver those before the  29 end of this week to my friend.  30 Now, I'd like to deal with the cross-examination  31 scheduling and I have prepared for your lordship a  32 list or actually two lists of our proposed schedule  33 which have already been delivered to my friends.  The  34 cross-examination schedule goes to -- we are  35 endeavouring and all parties are endeavouring to  36 comply with this schedule and the timing and the  37 length of time, my lord, is a reflection of my  38 proposed times and the responses of both the federal  39 and provincial defendant's counsel, and so this length  40 of time is a time agreed by all parties at this stage  41 as all of our best estimates.  I've advised Mr.  42 Mackenzie that if any of -- any of these are extended  43 that it may impact on the out of court examinations  44 because we have lawyers both in court and out of  45 court, but we're hoping to try to complete.  46 Now, the objective here is that by December 9th we  47 will have completed 28 cross-examinations.  There will 9737  Submission by Mr. Grant  1 be outstanding six more and our proposal -- which I  2 have not heard from the federal defendant but from Mr.  3 Mackenzie, he agrees with it by letter this morning --  4 our proposal is that the completion of those  5 cross-examinations would be in the week of January  6 16th to the 20th, my lord, and that we would -- that  7 would occur in Smithers, but it could be done out --  8 we're assuming it would be done out of court the two  9 weeks that you wouldn't be there.  10 Now, my lord, our --  11 THE COURT:  Can the trial continue down here during that week?  12 MR. GRANT:  Well, that goes to another matter of the scheduling  13 and it goes to my proposed scheduling, which is that  14 the trial would not continue here.  And there's some  15 problems of counsel with respect to the Court of  16 Appeal, plaintiffs' counsel in the Court of Appeal in  17 the week of 16th and in the week of the 30th, and  18 those are problems in terms of scheduling that we're  19 concerned about in terms of our schedule.  But in any  20 event counsel, as I've said, at least Mr. Mackenzie,  21 and I'll leave it to the federal government to say  22 what they wish to say, have agreed they don't object  23 to that.  We have problems in the week of December  24 12th in determines of plaintiffs' counsel, that's the  25 main problem, to go on into that week, and of course  2 6 if we --  27 THE COURT:  December 12th?  28 MR. GRANT:  Yes.  I had at one stage proposed that we would have  29 three weeks.  30 THE COURT:  Yes.  All right.  31 MR. GRANT:  But I've stopped -- we've stopped there.  And any of  32 these witnesses that we're not finished, that we  33 didn't get to in this two-week period, we would also  34 do the 16th to the 20th.  35 Now, this is quite simply the problem, my lord:  36 When you see these witnesses, for example, the first  37 witness, Steve Robinson, counsel for the defendants  38 have indicated they need one and a half days.  Mr.  39 Robinson speaks to four territories in his affidavits.  40 We have had experience with five witnesses already.  41 The defendants -- and in the notice of particulars,  42 reply to demands for particulars of the defendants,  43 they have indicated quite clearly that they rely on  44 cross-examinations to prove part of their case, all of  45 which they're entitled to do.  And they've also made  46 it clear that on their cross-examinations they wish  47 them to be as broad and wide-ranging as possible and 973?  Submission 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  that they can examine on anything.  Now, the difficulty we have is that a very small  part -- our experience is a very small part of the  cross-examination relates to the affidavits.  In order  for us to properly prepare, we need some sense, if  we're going to prepare -- have all of the 28 witnesses  prepared to go ahead, of the material upon which the  defendants rely.  We've had this experience in the  commission evidence of Jeff Boys where the federal  defendant has disclosed 450 documents that they  would -- they may put -- may have put to Mr. Boys.  I  think they relied on about 40 of them, but what it did  was it narrowed the focus of this document request. We  are now in a position where the provincial defendant  has disclosed 4,000 documents to us, many of which of  course are huge file boxes, a hundred and forty page  documents, things like that.  The federal defendant  has disclosed approximately 13,000 documents to us.  :  Are you talking about total disclosure or disclosure  for the purposes of these cross-examinations?  :  Total disclosure.  There has been no disclosure for  the purposes of these cross-examinations, so we are --  we requested this in August with respect to the other  witnesses and the defendants refused to provide us  with a listing of documents, and what happened then is  that on the Monday or on the Friday immediately before  a list of documents of the provincial defendant was  delivered and they intended to rely on those.  Now  we've received yesterday another list of documents of  the provincial defendant, but also we've received a  letter saying that they've just discovered a bunch  more documents that may be relevant to  cross-examination.  Now, it is a practical impossibility for us to  properly prepare the witnesses unless we get a minimal  of disclosure of the documents for the witnesses, and  what we're proposing and proposed to our friends was  that they provide us with that listing 10 days in  advance of each witness.  In other words, they don't  have to do it all at once.  They can do it  sequentially or whatever way is most convenient to  them.  From our experience with Jeff Boys this is not  a problem for the defendants because the federal  defendants did this and were able to do this.  This is  something they have to do for themselves in any event.  Now -- because when the defendants start to rely  on all of these documents of course they are in a 9739  Submission by Mr. Grant  1 situation of -- they're using that to prove their  2 case.  And that's fine, but the rule has been that we  3 provide 14-day notice of the areas of  4 cross-examination and we say that in this circumstance  5 in order to get this properly dealt with that this  6 should be done because the problem, my lord, is this:  7 If they put 200 documents to Steve Robinson, for  8 example, or a hundred documents, then it comes up to  9 the problem of redirect.  It's not a question of  10 course of preparing the witness at that time, but it's  11 a question of counsel reviewing the documents and  12 considering whether or not there should be redirect.  13 And we don't want that kind of postponement of  14 redirect.  We want it to go ahead.  We want to move  15 from one witness to the next and complete each  16 witness.  17 Now, I submit that this does not adversely affect  18 the defendants because I submit that the objective of  19 this cross-examination certainly cannot be that  20 evidence is developed through ambush.  I mean at this  21 stage of the trial I don't think that that's really  22 realistic.  There are, for example, trap line matters,  23 as an example, that they cross-examine the  24 defendant -- the witnesses on and "Did you register  25 this trap line and why did you do that?"  Those kinds  26 of things.  Well, the witness is going to give an  27 explanation and he's either done it or he hasn't done  28 it and that's -- and my friends will be able to rely  2 9 on what he's done and why he's done it.  But it's our  30 submission that it's reasonable -- it's entirely  31 unreasonable for us to have no area of understanding  32 as to where our friends are going on these  33 cross-examinations because it makes --  34 THE COURT:  All right.  Well, I understand that, Mr. Grant.  35 What do you say about that, Mr. Mackenzie?  I'm sorry,  36 one thing that you said that I wasn't sure I  37 understood, Mr. Grant, you said you have to give 14  38 days notice of cross-examination.  39 MR. GRANT:  We have to give 14 days notice of areas of direct  40 examination of each witness.  41 MS. KOENIGSBERG: Commission, my lord.  On the commission evidence.  And on witnesses at trial.  Yes, I see.  All right.  And -- which was a direction you made.  Yes.  All right.  And we're asking in this circumstance with these  42 THE COURT  4 3 MR. GRANT  4 4 THE COURT  4 5 MR. GRANT  4 6 THE COURT  4 7 MR. GRANT 9740  Submission by Mr. Mackenzie  1 cross-examinations of 28 witnesses for the same  2 direction to be made.  We're saying shorten it down to  3 10 days.  4 THE COURT  5 MR. GRANT  6 THE COURT  Yes.  All right.  And a listing of documents.  All right.  Mackenzie?  7 MR. MACKENZIE: Well, my lord, just in summary, all the  8 references that Mr. Grant made of course were to  9 examination in chief which is a much different  10 situation than cross-examination.  11 My lord, perhaps I could just summarize my  12 response in five headings.  There's no rule requiring  13 disclosure of cross-examination documents.  There is  14 no precedent in this case.  Mr. Grant refers to the  15 Boys case -- the Boys commission.  We cannot say with  16 finality now what documents we're going to be using  17 during -- or putting to the witness during the  18 cross-examination.  Fourth, this would cause serious  19 interference with preparation for cross-examination.  20 We're preparing for 28 witnesses in Smithers away from  21 our documents to accommodate -- and our references --  22 to accommodate the plaintiffs, and already we're  23 having difficulty digesting the several hundred pages  24 delivered to us this week.  And it's my submission  25 finally, the fifth point, my lord, the purpose of this  26 is to restrict our cross-examination.  It's intended  27 to give an illusion of finality, and Mr. Grant will  28 then object to any other references.  This is our  29 experience.  It will be a fruitful source of delay and  30 it will prevent us from testing the credibility of  31 these witnesses by, for example, previous inconsistent  32 statements.  33 That really summarizes the point that I -- points  34 that I wanted to make, my lord, but just referring to  35 Mr. Grant's comments in more detail, Mr. Grant  36 referred to the Boys commission.  Now, that was a  37 commission and as a matter of courtesy, as I  38 understand it, the federal defendants -- I'll let Miss  39 Koenigsberg speak about this -- provided some  40 documents to the plaintiffs in advance of the  41 examination in chief.  Of course someone handling an  42 examination in chief is able to do that with more  43 certainty than a person trying to deal with a  44 cross-examination.  I don't have to tell your  45 lordship, of course, cross-examination develops  46 according to the answers that the witness gives and  47 you decide during the cross-examination whether you're 9741  Submission by Mr. Mackenzie  1 going to put documents, whether you're going to hold  2 back your documents.  3 If Mr. Grant stops and thinks he'll realize that  4 we have not put as many documents to the witnesses in  5 these out of court affidavit examinations.  He will  6 remember that most of the documents we use are  7 plaintiffs' documents in the sense that they're from  8 the plaintiffs' list or alternatively in the sense  9 that they're produced by the plaintiffs.  And that  10 takes me back to the several hundred page disclosure  11 we've just had this week and a further disclosure that  12 Mr. Grant's going to make of Marvin George's notes.  13 Those are Mr. Grant's documents.  He can see which --  14 he can prepare his witnesses with respect to those  15 types of documents.  16 We've also produced a substantial notice to admit  17 containing trap line documents specifically relating  18 to the territories and the witnesses.  Mr. Grant can  19 see that if he wants to see what sorts of trap line  20 documents we're going to be referring to.  All the  21 documents that we will use are listed or will have  22 been disclosed well in advance of the  23 cross-examination.  So that's the point.  We cannot  24 say with finality now or 10 days before which  25 documents we're going to use in cross-examination.  26 The fourth point that I made, my lord, is the  27 serious interference with preparation.  What Mr. Grant  28 is asking us to do, in my submission, is to make a  29 list of all documents which we might consider putting  30 to the witnesses.  We're preparing now for 28  31 witnesses, to cross-examine 28 witnesses in Smithers.  32 It's a very tough job to try and get those  33 cross-examination preparations particularly in view of  34 the document disclosure difficulties we've been having  35 with these several hundred interview documents and the  36 Marvin George documents still to come.  He's asking  37 for also, as I understood my friend yesterday, a list  38 of areas of cross-examination as well as the documents  39 for every one of those 28 witnesses.  That would be an  40 immense task.  41 And the fifth point that I made, my lord, is in  42 our submission what the plaintiffs -- what Mr. Grant  43 and the plaintiffs are trying to do here is to  44 restrict us, restrict our right of cross-examination,  45 on these territorial affidavits.  The experience,  46 contrary to Mr. Grant's assertion, is that we do not  47 use an extensive number of documents in these 9742  Submission by Mr. Mackenzie  1 cross-examinations because we're limited.  The  2 experience has been that if we refer to a document  3 other than the ones we've listed, we get a strenuous  4 objection.  The illusion of finality is relied upon to  5 prevent us from following the flow and the development  6 of the cross-examination.  It's a fruitful source of  7 delay and, as I said, my lord, in my submission  8 it's -- it makes it virtually impossible for us to  9 test the credibility of affidavit witnesses as we have  10 to do by relying on inconsistent statements and trap  11 line documents signed by these witnesses.  For  12 example, if Mr. Grant -- if we hand the document to  13 the witness before we ask the question, trying to rely  14 on a prior inconsistent statement, it makes it very  15 difficult to achieve the objective.  16 THE COURT:  The prior inconsistent statement's already been  17 made, hasn't it, in the affidavit?  18 MR. MACKENZIE:  Well, my lord, the affidavit — we're cross  19 examining on affidavits.  That's correct.  20 THE COURT:   I'm talking about the prior inconsistent statement.  21 You know what the evidence of the witness is now.  22 MR. MACKENZIE:  Yes, we do, my lord.  It's in the affidavit.  23 THE COURT:  So you're not giving anything away by telling them  24 what documents you're going to ask about because  25 they've already made the prior inconsistent statement,  26 if such is the case.  27 MR. MACKENZIE:  Well, I'm sorry, my lord, I'm speaking about the  28 statements prior to the swearing of the affidavits.  2 9 THE COURT:  Oh —  30 MR. MACKENZIE:  For example, in these interviews which Mr. Grant  31 is disclosing.  32 THE COURT:  All right.  33 MR. MACKENZIE:  And in other litigation, for example, other  34 testimony, and other correspondence -- yes,  35 correspondence and documents with which the witnesses  36 have been involved.  Those are all available to Mr.  37 Grant from his own documents and from the defendant's  38 list of documents.  39 THE COURT:  But if the prior inconsistent statement is in these  40 documents, well then it's already been made.  41 MR. MACKENZIE:  That's correct, my lord.  42 THE COURT:  It's a matter of challenging the witness on "Did you  43 say this?"  44 MR. MACKENZIE:  Well, my lord, the point is we're putting the  45 document to the witness after cross-examining the  46 witness on his evidence as contained in the affidavit,  47 and then when you put the -- when he's said that, you 9743  Submission by Mr. Mackenzie  Submission by Ms. Koenigsberg  1 put the prior inconsistent statement to him.  That's  2 the point at which he has to respond.  If he's been  3 prepared in advance to rationalize -- I'm not saying  4 this would necessarily happen, but if he's prepared in  5 advance to rationalize that prior inconsistent  6 statement, you don't get the testing that you would  7 get for a witness under cross-examination before your  8 lordship or out of court and before the -- as recorded  9 in the transcript.  10 So I say it's unlikely that we would be putting  11 200 documents to Steve Robinson when we only have a  12 day to handle him, and I would -- well, we're going to  13 have problems with one and a half days because of the  14 scheduling and I would say that our experience in the  15 past has been this has been used to stop us and to  16 restrict our cross-examinations.  17 THE COURT:  Thank you.  Miss Koenigsberg?  18 MS. KOENIGSBERG: My lord, if what's being relied upon is the  19 Boys commission co-operation, it doesn't make a very  2 0 good example.  What was demanded of us was that we  21 provide to Mr. Rush well in advance of the beginning  22 of the Boys commission every document that we had  23 pulled out of the variety of sources of documents that  24 we might consider putting to Mr. Boys.  In other  25 words, if we did a computer search and we isolated the  26 areas that we thought we should ask Mr. Boys about, we  27 should provide that to the plaintiffs, and we declined  28 to do so.  However, by the time we had assembled the  2 9 documents upon which we felt confident that we were  30 going to rely in the examination in chief, we provided  31 a copy to our friends and we did so, I can tell your  32 lordship, the Friday before the Tuesday when Mr. Boys  33 was to be examined because that was the first bunch of  34 documents that we had sufficiently winnowed out, and  35 then we gave some more to them on the Monday.  That's  36 about, with the time scheduling that we've got, the  37 best we can do, and that's for examination in chief.  38 We're all dealing with this case under the same  39 handicaps.  We all have time pressures.  We all have  40 limited facilities related to this case.  It's a huge  41 undertaking for any of us to prepare either  42 examination in chief or cross-examination.  In my  43 submission, what the plaintiffs are asking us to do is  44 to do the research for them in preparing their  45 witnesses.  They have our list of documents in exactly  4 6 the same form that we have it.  They have their own  47 list of documents and even easier in terms of 9744  Submission by Ms. Koenigsberg  1 preparing a witness they have the witness.  They can  2 do exactly the same computer search, because they have  3 a computer too, that we do in winnowing out from all  4 of the listed documents those which might be relevant  5 to a witness, and then after one does that, and we all  6 have exactly the same facilities to do that, one  7 exercises one's -- counsel's judgment on what is going  8 to make a reasonable concise point in  9 cross-examination.  10 My friends are now asking us to provide them that  11 in advance.  There are two practical problems with it,  12 in my submission.  The first and insurmountable one is  13 it is highly unlikely that the federal defendant at  14 least is going to have that level of preparation of  15 any one witness ten days or even five days before we  16 begin to cross-examine.  It has been Mr. Grant's  17 experience that if we have isolated for certain files  18 or documents that we may put to a witness in  19 cross-examination on commissions, for instance, that  20 we do provide those the day before or the morning of a  21 cross-examination in the afternoon.  We may be down to  22 that short a period of time in determining that this  23 is the file that we'll put instead of that file, and  24 we have of course provided copies of that material to  25 my friend.  We will continue to do so.  To suggest  26 that the plaintiffs are under any greater handicap  27 than the defendants in preparing for  28 cross-examinations of these witnesses because we've  29 produced so many documents is to ignore the fact that  30 probably close to 50 per cent -- this is off the top  31 of my head -- of the federal defendant's list of  32 documents are documents which should be or have at one  33 time been in the possession of the plaintiffs.  34 And there's been much correspondence and backing  35 and froing in this court asking for production from  36 the plaintiffs.  We eventually end up chasing around  37 and trying to find those documents, if they're in the  38 files of the federal department, and listing them.  39 We're talking about whether it's minutes of the  40 Gitksan Wet'suwet'en Tribal Council or correspondence  41 from and to individual plaintiffs, wills, or trap line  42 applications of individual plaintiffs.  Surely, my  43 lord, those are things that are in the knowledge of  44 the individual plaintiffs and my friend is at liberty  45 to interview their witness as, in my submission,  46 that's what one normally does to determine if they've  47 had any dealings in these areas. 9745  Submission by Ms.  Submission by Mr.  Koenigsberg  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  At this point in the litigation there is no secret  about the areas to be cross-examined on.  We --  repeatedly each of us cross-examined in the same areas  and all of the information and topic areas is  available to all parties.  So, in essence, what we're  talking about is should the defendants be put to the  task of assisting the plaintiffs in the preparation  for the cross-examinations by paring down the amount  of research that they have to do.  And it's not as  though we know in advance.  We've had to do it first  in order to arrive at the point of having categories  and then documents within those categories.  It amounts, as another way of going at this idea  to categorizing by topic the lists, and that's been  before your lordship and you've ruled on it.  And I  don't think I can usefully comment on any other  matter, but to assist your lordship there is no rule  for obvious reasons on producing the kind of thing  that my friend is asking for in relation to  cross-examination for the very reasons, many of which  Mr. Mackenzie has outlined, but more importantly in  this instance, in my submission, it's not a practical  proposition.  At best all we could say is we'll do our  best and our best in some instances might be a few  documents ten days before and our best in other  instances is going to be the day before or the day,  and it's simply asking to shift the burden in my  submission.  The plaintiffs have access to the  witnesses, they have access to the documents, have had  for months and in some cases years, and it doesn't  advance the case or the scheduling at all.  Mr. Grant?  My first question, Mr. Grant, is what is  my -- what is my authority for making the order that  you seek?  Well —  Where do I get the right to order this to be done?  Well, my submission is that the authority is within  your inherent jurisdiction to govern the conduct of  the trial, and I refer as an example, of course, under  the rules of Rule 15 that the rules are to secure the  just, speedy and inexpensive determination of --  I know that if there was a rule that I could apply  that language to I'd be glad to do it, but that rule  doesn't give me any jurisdiction. I have  considerable -- well, your argument has considerable  attractions. I'm not sure that it isn't possible to  fashion some kind of a combination between what you 9746  Submission by Mr. Grant  1 say and what your friends have said, but the problem  2 is what's my authority?  I didn't bring a copy of my  3 rules, but what is the -- even if I got into the --  4 assumed this is a pre-trial conference.  It's a little  5 bit late to be a pre-trial conference.  6 MR. GRANT:  Of course you have —  7 THE COURT:  That doesn't -- that doesn't give me any authority  8 to do this.  It's always a matter of regret when we  9 find ourselves not able to do what we want to do, but  10 we are limited by various actual and subtle intentions  11 not to do whatever we want to do.  12 MR. GRANT:  Well, I mean, I take the position that — I agree,  13 of course, it's late for a pre-trial conference, but I  14 mean, it's a question of --  15 THE COURT:  I don't think that matters because I don't think  16 there's anything in the Pre-Trial Conference Rule  17 either that would let me order this.  18 MR. GRANT:  Well, the agenda of course under 35(3) is that  19 the -- you should consider "any other matters that may  20 aid in the disposition of the action or the attainment  21 of justice", and then at the Pre-Trial Conference Rule  22 4, "the judge may, whether or not on the application  23 of a party, order that...", and it goes A to G, and  24 "on making an order under this subrule, the judge may  25 give such other additional directions as he thinks  26 just."  27 Now, what's happened in this case is that you have  28 made an order that we could prove the territories  29 through territorial affidavits.  30 THE COURT:  There's a specific rule that says I can do that?  31 MR. GRANT:  Yes.  And you have made a rule, an order, that's the  32 Rule 40 -- 41 I believe it is, and then you have -- it  33 says "unless the court otherwise orders, the deponent  34 is subject to cross-examination", and you made it  35 clear in that order that the deponent is subject to  36 cross-examination.  37 Now, we're -- what I say is that you can, under  38 the Pre-Trial Conference Rule, you can give additional  39 directions.  For example, of course, in evidence at  40 trial -- we're dealing here, of course, with evidence  41 at trial.  You've already given directions, which of  42 course no one has challenged, that 14 days ahead of  43 time we were to provide a summary of the evidence.  44 THE COURT:  That's provided for in the Pre-Trial Conference Rule  45 isn't it?  46 MR. GRANT:  Yes.  Yes.  And we're in a similar situation here  47 and of course you did that during the course of the 9747  Submission 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  trial.  You made that rule during the course of the  trial after your appointment as a trial judge.  THE COURT:  I don't think I've limited it.  I don't think I'm  limited to making orders under that rule up to and  only up to the commencement of the trial.  I think  that jurisdiction continues.  What is it you're  saying, Mr. Grant, that because I have the power to  order cross-examination -- firstly I have the power to  order that something be proven by affidavit, then you  say I have the power to order cross-examination?  MR. GRANT:  Well, no.  THE COURT:  I thought I was —  MR. GRANT:  It goes unless you order otherwise.  THE COURT:  Yes, there is a power of cross-examination.  MR. GRANT:  Yes, and unless the court otherwise orders the  deponent is subject to cross-examination.  I mean, you  made it clear in your ruling that yes, subject to  cross-examination.  There was a question raised with  you about whether or not the cross-examination could  be limited to the affidavits and you held that the  cross-examination could be generally in the cause.  THE COURT:  Yes.  MR. GRANT:  And the issue here is that -- what I'm submitting is  that you can -- the combination of -- as the trial  judge of course you have the -- let us put it this  way.  You directed -- you have the authority and you  have directed that the witness -- we would give  summaries of the evidence of the witnesses on direct.  There's nothing in -- now what we have is 28 witness  to be cross-examined.  THE COURT:  Yes.  MR. GRANT:  Sixteen thousand documents, all of these facts, and  that there's nothing to prevent you from making a  similar direction on the cross-examination than you  made on direct.  I mean, nobody raised with you that  you had no authority to make that direction.  It was  quite clear you could make it.  THE COURT:  I think I had the authority under the Pre-Trial  Conference Rule.  MR. GRANT:  Yes, but now you see the effect of the  cross-examination -- if my friends said "Look, all  we're doing is cross-examining this witness on his  affidavit.  That's all we're interested in.", there'd  be no necessity for me to make this application, and  then that is questionable.  But the question is the  terms upon which they can cross-examine in this kind  of a scheduling, and of course the obvious example -- 974?  Submission by Mr. Grant  1 the absurdity of, with all due respect, of my friend's  2 position regarding the surprise is this:  In a normal  3 case, let's say a motor vehicle accident where a  4 person gives a statement to an adjuster and then gives  5 a contradictory statement later, or to a  6 police-officer, there may be a hundred documents.  Of  7 course there's no direction for a listing of the  8 documents.  There may be a hundred documents and both  9 sides can look at the hundred and it's obvious that  10 you said A then and now on the stand you're going to  11 say B and the lawyer leading that witness is going to  12 have to clarify that.  13 That's not, unfortunately, the luxury that we have  14 in this case.  There'd be no need to list the specific  15 documents, and the lawyer preparing the witness for  16 cross-examination would say "Look you said exactly the  17 opposite to this police officer, and the first thing  18 the other lawyer's going to do is put that to you.  19 Now, how do you explain that?"  And the statement is  20 there.  It's in writing and the report is there and  21 the witness is going to have to explain it on the  22 stand, but it's not some magic that comes out of the  23 hip pocket of the lawyer and drops it on them.  That's  24 not the strategy that I submit is appropriate and it  25 isn't the strategy in normal cases.  Unfortunately  26 because we have the enormous volume of material it is  27 the strategy in this case, and that is very  28 problematic.  29 I can -- the question about the purpose of this,  30 is that if -- you know, my friend has already  31 indicated there's other documents that he's reviewing.  32 I mean, if other documents come to his attention  33 that's one thing, but the question -- the reason I  34 objected to certain documents was they didn't have  35 them until they put them to the witness.  They hadn't  36 listed them until immediately before and I had no  37 opportunity, nor had Mr. Rush, nor had any other  38 counsel to review them.  And I said "Look, I can't  39 agree that you should put a document to the witness  40 when it's never been listed or disclosed and we don't  41 even know -- I don't even know what it is."  But that  42 was -- hopefully that was a situation that I certainly  43 hope will not happen again and that was not -- and it  44 is not our objective at all to frustrate this.  It's  45 our objective to complete these cross-examinations.  46 And with respect to Miss Koenigsberg's comments  47 that oh, well, we have the lists as does the 9749  Submission by Mr. Grant  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  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  provincial and federal defendant.  We do not have, the  provincial and federal list computerized in a way that  we can access those or edit out.  In fact, we can't  even do that with the plaintiffs' documents, but  that's our problem and it's not theirs, but the  question is regarding the listing is that that is very  accessible to them and they can do it and they have  done it.  In order for the counsel for the plaintiffs to  prepare these witnesses to be ready to have it all  completed on these schedules, this is the -- this is  the quid pro quo for the general cross-examination.  For example, my lord --  Well —  Is Steve Robinson going to be cross-examined?  There is a repetition of your argument, isn't it?  Yes. Okay.  Okay.  The problem is we now have, for  example, we have Neil Sterritt's evidence and we have  all of these other witnesses' evidence that we've  heard since.  Is Mr. Robinson going to be  cross-examined on Mr. Hatler's evidence?  If we don't  have any indication, then we have to technically  prepare them on 156 volumes of evidence that's already  been heard, as well as the 16,000 or half of the  16,000 documents, let's say, because half of them are  historical documents.  But I submit that you do have  the authority under a combination of the Pre-Trial  Conference Rules and it certainly will facilitate the  processing or the completion of these witnesses  because I'm very worried about the adverse impact if  we don't work to this schedule what we're going to  face subsequently, and I think all counsel on all  sides want this completed if we can get it done and  that's why everybody has agreed to the rigorous  schedule.  Thank you.  Cross-examination in our adversarial  system is as close to being sacred as anything in law.  It's been described in many ways and always in terms  which emphasize the importance of witnesses being  tested.  When those weighty and authoritative  pronouncements were made, the speakers or authors, as  the case may be, were not talking about a case like  this, but they have established an approach to  litigation which I would not depart from lightly.  I think, with respect, that I am without  jurisdiction to make the order Mr. Grant seeks.  I  think that the power to make further and incidental 9750  Ruling by the Court  1 orders under the Pre-Trial Conference Rule is limited  2 to making orders with respect to the matters  3 authorized in the Pre-Trial Conference Rule itself and  4 does not constitute a general authority to make an  5 incidental rule with respect to anything else that may  6 be in the rules.  7 I think further that the power to order evidence  8 to be given by affidavit which carries with it the  9 right to cross-examination unless otherwise ordered is  10 a useful rule, but is one which I do not think permits  11 me to do more than either order otherwise or not order  12 otherwise.  13 I am not aware of any authority, nor have counsel  14 been able to refer me to any authority, which would  15 permit me to do what Mr. Grant has asked.  Having said  16 that, and while I must therefore decline to make the  17 order he seeks, I wish to say that I find much good  18 sense in what he proposes within certain limitations,  19 which I will mention in a moment, and for whatever  20 good it may do, I wish to say that I think counsel  21 should provide as much notice as they can of those  22 documents which they propose to put to the witness in  23 cross-examination.  I would not put a ten day time  24 limit on it, nor even a five day time limit on it, but  25 I think that if I had power five days in these  26 circumstances might be more attractive to me than ten  27 days.  28 As I do not have authority, it is not something  29 that I can speak authoritatively about, but I think  30 that defendant's counsel in preparing their  31 cross-examinations must have in mind at some point the  32 number of documents that they will probably put to the  33 witness, and while I would not preclude counsel from  34 reserving to themselves the adversarial advantage of  35 springing something on a witness if it's that sort of  36 problem, I think there must be many many areas of  37 intended cross-examination by use of documents where  38 no harm whatsoever would be done to the adversarial  39 process or to the skills of counsel by giving notice  40 of those documents so that they may be examined and  41 the witness may have his memory refreshed so we're not  42 faced with long and tedious delays while the witness  43 reads and has to think about a document which he has  44 either forgotten about or hasn't seen for a long time  45 and/or both.  46 I think that I would not stop counsel from  47 cross-examining if notice hasn't been given on the 9751  Ruling by the Court  Submission by Mr. Grant  1 particular document because I think I have no  2 authority to do that either, but I think I have said  3 enough to convey to counsel my view that they should  4 attempt to accommodate the plaintiffs in the  5 preparation of the substantial number of witnesses  6 whose evidence is to be given in such a short space of  7 time so that the time that we have dedicated to this  8 purpose can most advantageously be used.  I am sorry  9 to say that I do not think that I can say any more  10 about that and I hope counsel will be governed  11 accordingly.  12 All right.  What else?  13 MR. GRANT:  A couple of other matters, my lord.  The next one is  14 a further problem -- well, it deals with the  15 scheduling, if I can speak to that now.  I have  16 delivered a letter to my friends relating to that.  17 Mr. Rush has already advised you that we propose that  18 we would start on January 9th.  19 THE COURT:  Yes.  20 MR. GRANT:  We propose that we would call the evidence on  21 January 9th through to, and my letter indicates the  22 12th, but in brief discussion with Mr. Willms I think  23 I intended the 13th, which would be one week, Sylvia  24 Albright, an archaeologist.  Now --  25 THE COURT:  Will she take all week?  26 MR. GRANT:  She will take all week, from my brief discussion  27 with Mr. Willms, and I haven't discussed it with Miss  28 Koenigsberg, but I anticipate that that's probably in  29 order of the ballpark and Miss Koenigsberg will advise  30 me if there's something wrong.  31 Now, in terms of plaintiffs' counsel, Miss Mandell  32 apparently is scheduled for a one week hearing in the  33 B.C. Court of Appeal January 16th to the 20th and both  34 Miss Mandell and myself are scheduled in the Court of  35 Appeal on January 30th and 31st and, as I have  36 proposed, we propose to complete the  37 cross-examinations of witnesses January 16th to the  38 20th.  Effectively, the most serious problem for us  39 for the balance of January is counsel's own schedule  40 in the Court of Appeal and in these cross-examination  41 completions, and there are other problems as well, my  42 lord, which I will allude to, but that in terms of  43 that period of time is the serious problem.  We --  44 therefore we propose to adjourn from the 13th and  45 commence again on February 6th and lead the evidence  46 of Jim Kari, the linguist, in the week of February 6th  47 to the 10th. 9752  Submission by Mr. Grant  1  THE  COURT  2  MR.  GRANT  3  THE  COURT  4  5  6  7  8  9  MR.  GRANT  10  11  12  13  14  15  16  17  THE  COURT  18  MR.  GRANT  19  20  THE  COURT  21  22  MR.  GRANT  23  24  THE  COURT  25  26  27  MR.  GRANT  28  THE  COURT  29  MR.  GRANT  30  31  THE  COURT  32  33  34  35  36  37  38  39  40  41  MR.  GRANT  42  43  44  45  46  47  What's wrong with the week of January 23rd?  Just one moment, my lord.  As I have in a very preliminary way examined the  calendar starting January 9th, three weeks would mean  we would sit the weeks of January 9th, 16th, and 23rd.  Now, I haven't decided anything about the 16th because  I haven't heard your friends, but what's wrong with  the week of the 23rd?  Okay.  Well, we -- as I said it's a question of  difficulties of counsel.  We have had to split counsel  up because of these other matters and the -- Mr. Kari  will be led by Miss Mandell, who's in the Court of  Appeal through the entire week of the 16th, for one  week sitting and is -- of course she's preparing in  the first two weeks of January.  She would have no  opportunity to prepare Mr. Kari and what happens --  What about --  -- is the interlocking of the experts and the  counsel's schedule --  Why can't Miss Mandell prepare him on the week of  the 23rd?  I'm sorry, I thought you indicated that's the week  you were proposing to go ahead with him.  Well, no, I wasn't limiting myself to going with  him, but somebody.  See, Mr. Grant, the hounds are at  our heels.  Well, that's —  We've got to get on with this.  There's three problems here, and the -- I appreciate  that the hounds are at our heels, and one --  When I say that, I refer not just to the fact that  we're way off into the next year to finish this case  anyway, but I'm not sure how long the other cases that  are waiting to be heard can be held off and we may  find ourselves in this case being lapped by some other  case that's going to decide issues at law that are  going to bind us and I think that would be a tragic  thing to happen at this stage.  If we don't get on  with this case, they can't be held off.  I'm not sure  that they can be held off anyway.  Well, the other aspect of this, and this is the  question of our clients -- I mean, we're pressing with  our clients this problem, but our clients have been in  a serious financial situation since September and  we've been proceeding along and this is only going to  be aggravated as of the beginning of January, but  we're very very concerned about that and -- but we're 9753  Submission by Mr. Grant  1  2  3  4  5  6  7  THE  COURT  8  MR.  GRANT  9  THE  COURT  10  MR.  GRANT  11  12  THE  COURT  13  MR.  GRANT  14  THE  COURT  15  MR.  GRANT  16  17  THE  COURT  18  19  MR.  GRANT  20  21  THE  COURT  22  MR.  GRANT  23  24  25  26  THE  COURT  27  28  29  30  MR.  GRANT  31  32  33  THE  COURT  34  35  MR.  GRANT  36  37  THE  COURT  38  39  MR.  GRANT  40  41  42  THE  COURT  43  MR.  GRANT  44  45  46  47  trying to -- I mean, both the plaintiffs and counsel  for the plaintiffs want to move this case along, and I  want to be very clear about that, my lord, and the  difficulty we have in the January session is the  difficulties of these other matters in the Court of  Appeal. That's the difficulty.  Are they related to this case?  Pardon?  They're not related to this case.  Well, yes and no.  The 16th to the 20th is the case  known as the Saanichton Marina case.  Yes.  It's a treaty right case.  Yes.  And on the 30th and 31st is an appeal brought by  Westar against an injunction.  Well, that's not a problem because we wouldn't  normally be sitting that week anyway.  Right.  No, there's only a problem of the  preparation for that.  That's all.  I don't —  What we would have is two counsel in the week of the  16th to complete these cross-examinations in Smithers,  so we would be utilizing the week of the 16th to  complete the cross-examinations.  Well, I haven't heard from your friends about the  week of the 16th, but that doesn't seem to me to touch  the week of the 23rd.  Surely some other witness can  be made ready for the week of the 23rd.  Well, I mean I can't -- I can go back on that point,  my lord, and I can't -- I will not propose -- I can't  propose here on my feet who that witness will be.  Yes.  All right.  Well, let me hear what your  friends say about the week of the 16th.  Do you wish me to complete what I was saying in terms  of later on or just dealing with January?  If you prefer I suppose.  Maybe your friends should  hear what you say about the rest of the schedule.  Okay. What we had proposed then would be Jim Kari  in the week of February 6th to the 10th, and again I  anticipate he would take a week.  And then --  What's his specialty?  Linguist.  He's a linguist.  And I believe there is,  although I haven't reviewed the correspondence  recently, some agreement that we would only call one.  There's two persons that are authors of the report,  Professor Rigsby as well, but he's in Australia, and I 9754  Submission 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  MS.  MR.  THE  MR.  think my friends have agreed that --  COURT: Wasn't there a question about whether Mr.  be called?  KOENIGSBERG: No, it was Mr. Rigsby.  Kari would  GRANT  COURT  GRANT  THE  MR.  COURT  GRANT  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  Mr. Rigsby was the one.  Yes.  All right.  Then the next witness is a substantial witness upon  whom all -- and this was our anticipation.  We are  hoping to have all of these witnesses completed before  this witness is called and he will -- we will need  some -- we will need -- he will be out of the country,  this witness, until the end of January and the lawyer  that's leading him anticipates he's going to need two  weeks to prepare him.  He's a major witness, and  that's Richard Daly.  So what we would ask is we would  not go the week of the 13th of February, but we would  go the week of the 20th for a two-week session with  Richard Daly, and then the following -- actually a  three-week session.  The following week we would come  to another witness.  So Richard Daly would commence on  the 20th, go through the week of the 27th right  through to March 3rd.  Now, my friends have certainly indicated this  morning that they don't disagree that two weeks is  necessary, and in fact Miss Koenigsberg made some  allusion that maybe that's not even sufficient time.  But then what we would do is if he had to be completed  we would go into that first week of -- the week of  March 6th to complete him.  If he was finished in the  week of March 3rd, hopefully we'd have a good sense of  that by the end of the first week, if he was finished  that week of March 3rd, then we would lead another  witness and we would go back into our scheduling --  for that three-week session we would have our  scheduling on the three-week session.  Well, your three weeks, you mean weeks of the 13th  and the 20th?  No, we would go the -- we would go for one week with  a witness on February 6th, take a week, and then go  three weeks the 20th, the 27th and March 6th -- I'm  sorry, I thought you said -- I was thinking February  6th.  Yes.  Yes.  That's right.  Well, it's February 6th and March 6th.  Yes, February 6 and March 6th, and then we would  take the week off which would be March 13th. 9755  Submission by Mr. Grant  1 Now, as I say, there is extreme financial problems  2 and we're not in a position now to really -- which we  3 are -- we've been discussing with our clients in  4 trying to sort out how we can deal with those  5 problems, and we're -- really that's as far as I can  6 go at this stage with the scheduling for your  7 lordship.  8 THE COURT:  You're not able to speak about the week of the 20th  9 and the 27th of March if we take the 13th off?  10 MR. GRANT:  Well, what I'm hoping — no, I can't speak to them  11 now, but let me -- what I wish to advise the court is  12 though I'm hoping that we would go the week of the  13 20th -- I mean, I'm hoping we would be into a  14 three-week system, but that's going to depend on  15 factors beyond our control, very much so beyond  16 counsel's control, and in fact beyond our clients'  17 control, and we're very worried about that, but that's  18 certainly our objective.  We would like that to  19 happen, as would our clients.  And that's -- those are  20 my comments on the scheduling.  21 My lord, we're concerned -- I should say this too  22 because my friends may wish to answer -- to deal with  23 it.  We're quite concerned about how this expert  24 witness process has gone, and in fact in retrospect we  25 could have led -- we think we could have got through  26 at least Albright, if not Albright and Kari.  Now we  27 also think we could have, instead of that, we could  2 8 have got through Richard Daly.  We would have not had  29 these three short witnesses, but we'd have gotten  30 through one major witness.  31 And I just want to advise you of the background  32 and something that's come up and it's a mixed  33 blessing, if I may say, and that is regarding the map  34 atlas that we were dealing with over the last week,  35 which is really all of what the evidence is you've  36 heard about to get that map atlas in.  A notice to  37 admit was sent by us to the provincial and federal  38 defendants on June 28th and the provincial defendant  39 made a proposal which was a saw-off saying that on a  40 without prejudice basis -- they made this on June  41 30th -- they would admit certain of those maps if we  42 admitted certain of their alienation projects, some of  43 which we could not do, so that agreement did not come  44 through.  Then there was correspondence between the  45 province and ourselves regarding a number of these  46 witnesses and throughout we'd asked if they could  47 admit the map and they couldn't admit the map. 9756  Submission by Mr. Grant  1 Last Tuesday Mr. Chilton took the stand and after  2 his qualifications, and with some qualification on the  3 map, my friend indicated for the first time that that  4 map could be admitted.  We had prepared him to prove  5 the entirety of the map.  I'm talking again here about  6 the provincial defendant.  On Wednesday morning, Mr.  7 Hatler -- and Dr. Hatler was being challenged by  8 correspondence on history, archaeology, palaeontology  9 and climatology, and as a result I prepared all of the  10 background material, five two-inch binders, for the  11 court and my friends on all of his background on these  12 areas so that they could cross-examine -- we could  13 deal with it and the facts on which he relied would be  14 before the court.  Ten minutes after he took the stand  15 last Wednesday, my lord, my friend leaned over to me  16 and advised me that he would admit his qualifications  17 on all areas except -- and his reliance on everything  18 except archaeology and he would admit all of his maps.  19 Once again it happened.  20 And so I raised with my friend about Miss  21 Haeussler and I asked Mr. Willms on Wednesday  22 afternoon "Can you admit her maps?"  and he said he  23 could not say and he would come back to me on  24 Thursday, and then Thursday he advised me that he  25 doubted very much if he could make a similar admission  26 to Dr. Hatler.  As a result, Miss Mandell and Miss  27 Haeussler prepared on the basis that all of the maps  28 would have to be proved through her.  29 On Monday morning a letter was handed to us at ten  30 a.m. saying that with certain qualifications we -- in  31 the letter from Mr. Willms, "We have no objection to  32 the marking of maps 2 through 10 as exhibits at trial  33 with the following paragraphs either being stated as  34 assumptions made by Miss Haeussler or as being deleted  35 from the maps."  36 And those were paragraphs in the summary.  I think you're going too fast again, Mr. Grant.  I'm sorry.  I'm making Miss Haeussler look slow.  That you'll not accomplish.  In any event, so what's happened is that an enormous  41 amount of -- and if we had known any of this in  42 advance we could easily have arranged to call at least  43 one other expert and to deal with it and it's -- we've  44 dealt now -- now we've dealt with a large part of  45 these maps, but it's really a problem from our side,  46 and this scenario of what is going on with how it  47 happens that we put the expert in the stand and at  37 THE COURT  3 8 MR. GRANT  3 9 THE COURT  4 0 MR. GRANT 9757  Submission 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  that time we are told for the first time of an  admission that we sought four months ago.  Now, of course, ultimately we can raise these  matters and argue out whether or not there should be  any consideration of the court on that, but  practically for the prosecution of the trial, it's not  satisfactory because what's happening is that we're  being advised by the other side they have these  objections, these concerns.  We're taking those at  face value and we're dealing with them in our  preparation of the witnesses.  We're preparing all of  the substantial back-up documentation, and then we  find that it's all to naught, it's all unnecessary,  and that in fact there's a very narrow point that our  friends wish to raise.  And here of course I'm not asking for them to  disclose what they've raised on cross of these  witnesses, but I'm just saying that this is why we  have -- I want to advise your lordship that with  respect to Miss Albright, which my friends now agree  to, with respect to Mr. Kari, we are putting longer  periods of time on these witnesses than we originally  had anticipated because the witnesses Mr. Gottesfeld  and Dr. Mathewes took substantially longer than we had  anticipated originally and we realize that -- but  there can be a shortening if my friends would hone in  on these -- whether they're prepared to admit a little  bit earlier, and Miss Mandell and I have both tried to  deal with the witnesses focusing on what the other  side is not admitting.  And if there's admissions to  be made regarding these reports, we would ask that  they look to those admissions earlier so that we can  shorten and revise because if we get enough advance  notice, then we can pull in another witness as well.  And I'm not -- neither our clients nor we are happy  that we've ended up with the three extra days or two  and a half extra days by the time I'm finished talking  this week and we think that this is a very  unsatisfactory method of proceeding with expert  witnesses, my lord, because from June until November  14th the Sybolle Haeussler maps were there for them to  admit and November 14th when she's on the stand is the  first time we're advised of it and --  :  Well, that's all spilled milk under the bridge  though, isn't it, Mr. Grant?  :  Well, I'm saying that that affects our previous --  I'm raising this now to advise your lordship.  I mean, 975?  Submission by Mr. Grant  1 we were in a dilemma last week and that's why I said  2 to Mr. Willms "Well, can we deal with Ms. Haeussler in  3 the same way in any regard?"  And he was very clear to  4 me last week from his discussion that he didn't  5 anticipate that because he saw a large number of other  6 problems with her, and I'm just saying that I don't  7 think this should happen in the future because if we  8 get advance notice of these admissions we can pull in  9 a witness.  I don't really like, and plaintiffs'  10 counsel doesn't like, two days down time when we don't  11 need it.  We're trying to keep the schedule tight so  12 we complete them.  13 THE COURT:  Well, all right.  Mr. Grant, I'm going to take the  14 morning adjournment now, but I want to point out that  15 what you're proposing would really get us three  16 witnesses, Sylvia Albright, Jim Kari, and Robert Daly,  17 in three months.  That just isn't good enough.  18 MR. GRANT:  Plus the completion of cross-examinations, my lord.  19 THE COURT:  Well, out of court.  In court we'd get three  20 witnesses in three months and I just have the  21 gravest -- what is it that Lord Palmerston used to  22 say?  Her Majesty's government deals with grave  23 disquietude in the progress that is being suggested,  24 or lack of it, and I agree with grave disquietude,  25 spending three months to get through three witnesses,  26 and I'll review that with you shortly.  Thank you.  27 THE REGISTRAR: Order in court.  Court will recess.  28  2 9 (PROCEEDINGS ADJOURNED FOR MORNING RECESS)  30  31 I hereby certify the foregoing to  32 be a true and accurate transcript  33 of the proceedings herein to the  34 best of my skill and ability.  35  36  37 Tanita S. French  38 Official Reporter  39  40  41  42  43  44  45  46  47 (PROCEEDINGS RECONVENED PURSUANT TO THE MORNING BREAK) 9759  Submission 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  THE  MR.  REGISTRAR:  Order in court.  COURT:  Mr. Grant.  GRANT:  Well, your lordship can appreciate sometimes your  comments are timely before a break and gives counsel  time to think about it.  I just want to comment on  this, that, as an alternative to what I have proposed,  rather than utilizing the week of the 16th for cross-  examination of the remaining territorial witnesses,  dealing with that at some other time, we could -- we  could arrange to lead a witness, either Mr. Kari or  another witness, in the week of the 16th in court and  thereby deal with -- in January we would then have in-  court weeks of January 9th for Albright, January 16th  for Kari, and then adjourn over to February 6th.  Now,  that's the week I had proposed to you for Mr. Kari.  And then the week of February 6th it would not be Dr.  Daly, but it -- but we would utilize that week for  another witness that I would advise you of, and we  would retain Dr. Daly in the position he's in.  And --  Dr. Daly would then be February 20th?  February 20th through to March 3rd and etcetera.  Now, the other -- the other thing I wish to say is  that we could either in the week -- well, as I say,  utilize two weeks in January.  Yes.  I don't want to understate the problem, my lord.  I  want to be very clear that a significant aspect of  this problem in the spring scheduling is the  financing.  It is very serious.  And counsel -- the  plaintiffs' counsel simply will not be able to carry  on with business as usual if that matter isn't  resolved, but we're trying to press through with our  clients a method to press through as close as we can.  But that's a very significant factor, and -- and we  had held off advising my friends of the schedule until  we had hoped there would be some clarity or clarification on all -- on that problem.  Unfortunately,  there is not.  But we see that there is no point -- we  cannot delay any longer hoping for clarity, so we're  trying best to -- to continue with the case.  But we  cannot -- you know -- if that problem isn't resolved,  we're going to have more serious problems later on in  the spring, and I just want to advise your lordship of  that.  THE COURT:  Well, what you're saying, Mr. Grant, is that we will  sit the weeks of January 9th and 16th?  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT 9760  Submission by Mr. Grant  1  MR.  GRANT  2  THE  COURT  3  MR.  GRANT  4  THE  COURT  5  MR.  GRANT  6  THE  COURT  7  MR.  GRANT  8  THE  COURT  9  MR.  GRANT  10  THE  COURT  11  MR.  GRANT  12  THE  COURT  13  MR.  GRANT  14  15  THE  COURT  16  17  MR.  GRANT  18  19  20  THE  COURT  21  22  23  MR.  GRANT  24  25  26  27  28  THE  COURT  29  30  MR.  GRANT  31  THE  COURT  32  33  MR.  GRANT  34  THE  COURT  35  MR.  GRANT  36  37  THE  COURT  38  39  MR.  GRANT  40  THE  COURT  41  42  MR.  GRANT  43  THE  COURT  44  MR.  GRANT  45  46  47  it would be March 6th,  no, I'm not sure  Yes.  We would not sit the 23rd or the 30th?  Yes.  We would sit the weeks of February 6th --  Yes, and February 20th through to March 7th.  Not the 13th?  No.  But we would sit the 20th?  To March 7th.  And the 27th?  Yes.  And March —  And the week of March 6th?  I'm sorry, I'm looking.  Yes,  yes .  All right.  And then you said  what you said about the week of March 13th.  We would not sit the week of March 13th.  We would  then have done three weeks in a row.  We would not sit  the week of March 13th.  Yes.  All right.  The trouble with reconvening then  is that there is the week of the 20th and the 27th,  but that's a four-day week, as I understand it.  Yes.  We are hopeful that we would be able to sit  the week of the 20th and the 27th and April 3rd, and I  say that with the proviso that there must be some  resolution of this financial problem before then in  order to.  All right.  Well, I have a problem with the week of  April 3rd.  Oh, yes.  I have to be in Ottawa on the 6th, 7th, and 8th, but  that's a little ways away.  Yes.  Well, possibly that can be lapped --  That would still leave --  That witness would go into the next week starting  the week of the 10th.  That would still leave the week of the 20th and the  27th of March.  Yes.  And we would --  And then we'd be off the week of the 3rd, and then  we'd presumably start again on the 10th.  Yes.  Okay.  From our perspective, I think -- yes.  And from our  perspective, then what that would mean would be we  would just put the week -- whatever plan we have the  week of the 3rd into the 10th and then continue with 9761  Submission by Mr. Grant  Submission by Mr. Willms  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 17th and the 24th of April.  THE COURT:  Yes.  But what I would propose then would be we  would sit the weeks of April 10th, 17th, 24th; we  would be off the week of May 1st; we would sit the  weeks of May 8th, 16th, and 22nd; we'd be off the week  of the 29th; and we would sit the weeks of June 5th,  12th, and 19th.  I'm sorry, in May it was May 8th, 16th, and?  22.  22.  And then?  June 5, 12, and 19.  finished the experts.  MR. GRANT:  We can all go home for a relaxing summer.  MR.  THE  MR.  THE  GRANT  COURT  GRANT  COURT  By that time I'm sure we'll be  I just  all I say, I -- I appreciate that, and we'll build  that into our plans and -- but I just really -- I must  emphasize that problem.  THE COURT:  Well, my problems are minor compared to yours, Mr.  Grant, but other people do have rights that I have to  consider.  MR. GRANT:  Yes.  THE COURT:  And I have to set some five-judge courts, and I have  to know what days I'm going to be sitting and which  days I'm not going to be sitting.  Yes, I appreciate that.  I appreciate that, my lord.  I wish that we -- I wish this other matter was  resolved, but we've got serious concerns about it.  Unfortunately or otherwise, I'm no longer a judge of  the Supreme Court, and for now I can't sit anywhere  else either, unless I've arranged a special panel, and  that's a lot of --  GRANT:  In the?  COURT:  In the Court of Appeal, which is -- it takes a lot  of arranging.  GRANT:  Yes.  COURT:  If I get five judges and counsel and fit those  with -- I really have to have as much certainty as I  can.  All right.  Mr. Willms.  WILLMS:  My lord, just on the territorial affidavits, the  cross-examination, that could be done in December.  It's out of court, so it doesn't really impact the  trial schedule at all.  COURT:  I'm leaving that to counsel.  WILLMS:  And so what I thought might -- might work is to  have Ms. Albright the week of January the 9th and then  Mr. Kari the next week.  COURT:  Yes, that's what your friend is now proposing.  WILLMS:  And then if they had another witness to fill in the  MR. GRANT  THE COURT  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR. 9762  Submission by Mr. Willms  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.  MR.  MR.  THE COURT  MR.  MR.  THE  MR.  week of the 23rd, instead of having a two-week break  then there would be a one-week break, and then start  Dr. Daly on the 6th of February and -- and run him for  three weeks --  GRANT:  Well —  WILLMS:  — in that section.  GRANT:  That's not possible, my lord.  It's simply -- I  mean -- and I take exception to my friend setting our  schedule of our witnesses.  I don't think he's doing that.  He's suggesting  which weeks we sit.  GRANT:  Okay.  WILLMS:  I suppose the short of it, my lord, is that -- that  three on, one off starting on January the 9th --  COURT:  Yes.  WILLMS:  -- is perfectly acceptable to Her Majesty so -- so  long as we get notice from my friends of who the  witnesses are.  And I should say that the three  witnesses that my friend has listed are the only ones  that we've had notice of within the 60-day rule, and  I'm anticipating getting some notices fairly shortly  on some other witnesses to find out who's next or who  fills in where.  COURT:  Yes.  WILLMS:  But -- but that's up to my friend, and as long as  we have the notice of when the witnesses are going to  be called, we'll be ready to proceed with the  witnesses.  What do you say about your friend's suggestion that  we sit the weeks of January 9th and 16th, and the  weeks of February 6th, 20th -- February 6th, 20th, and  27th?  No, I'm sorry, I think your friend -- you said,  Mr. Grant, that you would not sit the week of the 27th  of February?  MR. GRANT:  Yes.  It would be — you just said February 6th, the  20th of February, and the 27th of February?  Yes.  Yes, and March 6th.  Yes.  Well, that's -- yes, you're right.  That's three  weeks.  That would be three weeks.  Yes.  Yes.  Those are the weeks I was proposing.  Off the 13th, and then March 20th and 27th.  What do  you say about that, Mr. Willms?  WILLMS:  My lord, whenever my friend has the witnesses  available, we're ready.  THE  MR.  THE COURT  THE  MR.  THE  MR.  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT 9763  Submission by Ms. Koenigsberg  1 THE COURT:  All right.  Thank you.  Miss Koenigsberg.  2 MS. KOENIGSBERG:  I suppose I would say the same, my lord.  We  3 would be very concerned that we not utilize more of  4 the weeks that are available in the spring, and we  5 have -- the one week we have in the schedule as it's  6 now proposed, as I understand it, is two weeks off in  7 January, not having started until January 9th, so I  8 understand we're off the week of the 23rd and off the  9 week of the 30th.  10 THE COURT:  Yes.  11 MS. KOENIGSBERG:  That certainly would not be our preference,  12 but that -- it is a matter, I suppose, of -- of the  13 plaintiffs to determine what, if anything, they can  14 slide in there.  It's -- as I look at this, I'm  15 wondering again -- Mr. Grant advised the court I think  16 in the last couple of weeks that he anticipated at  17 this point, as he had told another judge in another  18 court, that the plaintiffs' case would be finished,  19 they anticipated a couple of weeks ago, by the end --  20 the middle of March, I think, or the end of March.  21 THE COURT:  Yes.  22 MS. KOENIGSBERG:  And as we're looking at this schedule, I don't  23 think -- we're not halfway through the expert  24 witnesses, and I would -- I think we've been advised  25 that all of the 22 that we've been given notice could  26 be called will be called, and I would appreciate  27 knowing, as your lordship may appreciate knowing, what  28 is the best estimate that the plaintiffs have now of  29 when this case from their perspective might -- might  30 come to an -- to an end.  We're -- it looks to me like  31 we're not going to finish the plaintiffs' case in --  32 in the spring if this -- even if we fill in the weeks,  33 because it would be my understanding, from what we  34 have received, that we've got some witnesses, several  35 witnesses, who would be at least a week.  So I would  36 appreciate some -- some assistance, if my friend can  37 give us any, on that.  38 I have a grave concern about not sitting the third  39 week in December out of court to finish whatever of  40 the witnesses could be finished.  Our concern is this,  41 that it's quite expensive for all parties to move  42 everything up to Smithers to do these witnesses, and  43 what's now being proposed is that we move up for two  44 weeks, come back, go back maybe a month later,  45 although now that would be shifted around, and do some  46 more.  And that's a very expensive proposition, and if  47 it can be avoided, in my submission, it should be 9764  Submission by Ms.  Submission by Mr.  Koenigsberg  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  avoided.  And that's against what all of us would  wish.  We all would wish to be home in that week, but  I don't think that within the cost of doing this and  in attempting to bring this case a little closer to  completion a little faster that we should let a week  go by that -- if it's possible to -- to complete it.  I don't -- I'll be surprised if we get through the 28,  so I -- and I certainly hope we do, and I'm sure we'll  all be trying very hard to do that, but I think there  probably will be a few left over and that -- and we've  got six more to do, and I -- I certainly don't --  didn't agree and don't agree with the proposal that we  not sit -- that we not attempt to do those witnesses  in the third week of December.  THE COURT:  Mr. Grant, why can't you finish those other  witnesses in Smithers in the last week in December?  MR. GRANT:  On that third week?  THE COURT:  Yes.  MR. GRANT:  Well, I would say this, I -- what happened is when I  had proposed that, we had anticipated -- we're going  to have four counsel to do these witnesses.  That's  the only way we see we can get through them.  And I  had anticipated the availability of at least three of  the four counsel, and it's turned out that from the  plaintiffs' side only one of the counsel will be  available.  I must say this, and I'm prepared to  discuss it with co-counsel, that I'm not opposed to  doing what we can do in that week, but, in fact, it's  not -- we're not going to end up doing lateral, two at  a time, or anything like that in that week.  And I've  got the comments of Ms. Koenigsberg now on that point,  and given that we'll only do one at a time, in our  experience, I'm certain we wouldn't complete them in  that week, but I'm going to go back with her response  to that point now.  THE COURT:  I understood from earlier discussions that that was  what was intended.  MR. GRANT:  That's what was proposed, and then I had raised it  with Mr. Mackenzie, and I had understood that a letter  went from Mr. Rush's office to both Mr. Mackenzie and  Ms. Koenigsberg, and she advised me this morning that  she hadn't seen that letter proposing the other date.  Mr. Mackenzie concurred with the January scheduling,  but I have -- yes, it was -- at that time that was  scheduled, I was operating under certain assumptions  that now are wrong.  THE COURT:  Well, it's easy for me to say, but I think those 9765  Submission by Mr. Grant  1  2  3  4  5  MR.  GRANT  6  7  8  9  THE  COURT  10  11  12  MR.  GRANT  13  14  15  16  THE  COURT  17  18  19  MR.  GRANT  20  21  22  THE  COURT  23  24  25  26  27  28  MR.  GRANT  29  THE  COURT  30  31  32  33  MR.  GRANT  34  THE  COURT  35  MR.  GRANT  36  37  38  39  40  41  42  43  THE  COURT  44  45  46  47  MR.  GRANT  examinations -- well, let me put it this way.  I think  that week should be utilized, but even if that's  done -- well, if that were to be done, would that free  up the week of January 23rd?  :  Well -- well, no.  No, because -- just a second.  I  mean, what we come into is a combination of two  factors in the month of January and February, and that  is the factor of -- of counsel availability and --  :  Well, I know, Mr. Grant.  I've tried not to say  this, but -- you know -- this case really should have  priority over other cases.  :  Well, it has priority over every other case, except  where -- where counsel on a related matter -- two  other matters are in the Court of Appeal, and counsel  on related matters are in the Court of Appeal.  :  But surely there is enough flexibility to rearrange  things so that this trial can continue notwithstanding  the absence of one counsel in the Court of Appeal.  :  Well, if we were in the position of my friends, my  lord, I would say that.  We're not in the position of  my friends.  :  I understand that, and I wish I could be more  helpful in that area.  I can't.  But on the other  hand, we started this trial with 12 counsel.  That was  probably -- that was probably extravagant.  But it  doesn't seem to me that the whole operation should  come to a halt because of the absence of one --  :  No.  :  -- of those counsel.  But I gather from what you  have said and what Ms. Koenigsberg has said that we're  not going to finish your case in the middle of March,  are we?  No, that's --  Or even close to it.  That is a real problem, and that is the -- the  financial problem of our clients and what we've been  trying to grapple with and come up with a schedule  which would do that, and that -- when I stated that,  that's what we were operating on the assumption of.  In this schedule there is some week slippage.  I mean,  I see that the effect of this is going to be that our  case will go into May.  Well, it will go beyond that, won't it?  If we  only -- if we only get through those few witnesses by  the Easter break, we've only got six weeks in April,  May, and June.  You will have then had the largest of the anthropo- 9766  Submission by Mr. Grant  1  2  3  4  5  THE  COURT  6  7  MR.  GRANT  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  THE  COURT  24  25  26  MR.  GRANT  27  THE  COURT  28  MR.  GRANT  29  30  THE  COURT  31  MR.  GRANT  32  THE  COURT  33  MR.  GRANT  34  35  THE  COURT  36  37  MR.  GRANT  38  39  40  41  42  43  44  THE  COURT  45  MR.  GRANT  46  47  logical witnesses, and hopefully before Easter we'll  have had most of the -- nearly all of the anthropological evidence you will have heard, which is the  largest of these expert witnesses.  Well, I'm not sure there's much profit in talking  about this.  All I'm saying, my lord, is that I appreciate your  point.  We -- I want to be clear.  We don't want to be  cutting back the weeks.  We -- we're between a rock  and a hard place.  Our clients are in a desperate  financial situation.  We've got those problems, and  that impacts on the schedule, but we still want to  push ahead and try to get through as many witnesses as  we can.  I think that out of court we can sort out  this cross-examination of these witnesses.  I'm going  to discuss it with co-counsel about the December 9th  week, to get more of them done, hopefully all of them.  But -- and we then take two weeks in January, deal  with two week-long witnesses in January, and then that  frees up that first week in February, the week of  February 6th, which we would retain, and we would plug  in a witness then.  And then have three weeks followed by a one-week  break, and then two weeks, and then we're into the  April break.  Just a second.  Yes.  We would go -- we would have one week in February,  then a week break, then we would lead Mr. -- Dr. Daly.  Three weeks --  There would be three weeks.  -- one week off, and then two weeks off.  Yes.  Yes.  And -- that's right, that schedule of  yours on the 3rd.  All right.  Well, I don't know that we can do  anything different than that.  And what I would say is -- now is that it's our  intention that if there's any slippage on other  witnesses, because I don't want the misunderstanding  that we've had already with Dr. Daly, that we would  lead his evidence on the 20th no matter what else  happens because that is a witness who we -- we want to  block that time.  Yes.  And so my friends are under no illusion that he  would slip down later, we would like to block his  time. 9767  Submission by Mr. Mackenzie  1 THE COURT:  All right.  No one's opposing it.  All right.  Well  2 then, do I need to state it again?  We will be sitting  3 the weeks of January 9th and 16th; the week of  4 February 6th; the weeks of February 20th, 27th, and  5 March 6th; and the weeks of March 20th and 27th.  And  6 we won't plan beyond that.  But I would like to plan  7 for the period after the week of April 3rd at some  8 early date in January so that we can have some  9 certainty in life.  All right.  10 Now, next I'd like to discuss with counsel what do  11 I have to send up to Smithers?  12 MR. MACKENZIE:  My lord, we have discussed four or five house-  13 keeping matters related to the cross-examinations in  14 Smithers, including that which your lordship has just  15 raised.  16 THE COURT:  All right.  17 MR. MACKENZIE:  I wonder if it would be convenient for us now to  18 discuss those.  19 THE COURT:  Yes.  20 MR. WILLMS:  My lord, if I might be excused.  21 THE COURT:  Yes.  Thank you.  22 MR. MACKENZIE:  There are five matters, my lord, and one of them  23 I've already -- I'll just list the five matters, my  24 lord, perhaps, and then we can run through them  25 quickly.  The first is the current state of the  26 plaintiffs' document disclosure relating to these  27 cross-examinations.  The second is the cross-  28 examination scheduling.  We've done -- we've discussed  29 quite a bit of that, but there is another item  30 opening -- left open.  The third is this list of  31 documents we've just disclosed.  The fourth is  32 translation.  And the fifth is the court materials for  33 cross-examination, and that's the item to which your  34 lordship just referred.  35 THE COURT:  Yes.  36 MR. MACKENZIE:  This first point on the document disclosure has  37 already been referred to briefly, my lord, and may I  38 summarize in this way.  Your lordship will recall that  39 there was an extensive -- that Mr. Sterritt gave  40 extensive evidence about the preparation of the  41 affidavits, and on September 15th he also indicated  42 that Mr. Marvin George had followed a similar process.  43 And Mr. Grant and we have been in correspondence, and  44 this matter has been raised in court several occasions  45 since September 21.  We must have early disclosure of  46 those Marvin George documents.  We cannot complete the  47 Wet'suwet'en cross-examinations if there is -- if 976?  Submission by Mr. Mackenzie  1 there is a question of further Wet'suwet'en documents  2 undisclosed.  Mr. Goldie has said that in correspon-  3 dence with Mr. Grant and his colleagues.  We're under  4 considerable strain now as a result of these recent  5 disclosures.  We have been doing our best efforts, but  6 we cannot guarantee that we can complete the  7 Wet'suwet'en cross-examinations.  That concludes my  8 comments on that first point, my lord.  9 MR. GRANT:  Do you wish me to reply?  10 THE COURT:  Yes.  11 MR. GRANT:  Yes, my lord.  I have indicated to my friend that in  12 fact I am completing the review of those -- these  13 notes, and I have informed him that we -- I anticipate  14 within the next day that I will deliver to him any  15 notes of Mr. George which are notes of interviews with  16 any of the witnesses to be cross-examined.  With  17 respect to the content of the George file, which we  18 view should be dealt with in the context of your  19 ruling, that, we say, is different, and to the extent  20 that that includes notes with persons who are not  21 persons who have sworn affidavits, we would be --  22 we're saying that we're not -- we take a position that  23 we're not obligated to disclose, of course, any of  24 this material until 60 days before, but we are  25 intending to disclose at this early stage any notes  26 that Mr. George has of those witnesses.  If it can be  27 of any solace to my friend, those notes are in no way  28 of the quantity of the Sterritt notes, that is,  29 they're much briefer, but -- and I -- I have completed  30 about three quarters of the review of that, and I'm  31 arranging for copying and delivery.  But I have  32 advised my friend that I understand their concerns,  33 and we're going to get them to them this week.  34 THE COURT:  That's your requirement, Mr. Mackenzie?  35 MR. MACKENZIE:  Yes, my lord.  It goes some way to meeting those  36 requirements.  We're asking for complete disclosure of  37 those George notes, but we'll try and digest the ones  38 Mr. Grant is giving to us, and when the rest come, we  39 can't foreclose the possibility of reopening cross-  40 examinations if there are relevant documents.  Mr.  41 Rush referred to that possibility with respect to Mr.  42 Blackwater, for example.  That's what we're concerned  43 about.  But that completes my comments on that, my  44 lord.  I don't know whether --  45 THE COURT:  Anything you wish to say, Miss Koenigsberg?  46 MS. KOENIGSBERG:  Well, yes, only in that I assume that my  47 friend, Mr. Grant, will provide copies to us. 9769  Submission by Mr. Mackenzie  1 MR. GRANT:  Of course.  2 MS. KOENIGSBERG:  We require them for exactly the same reasons  3 at exactly the same time.  4 Perhaps we should advise the court what will  5 become apparent.  The normal course of this trial has  6 been that the province, particularly in areas -- and  7 so far it's been almost always, goes first and we go  8 second, and we usually have far less -- take up far  9 less time, primarily because vast areas are covered by  10 the province and it's unnecessary to cover them twice.  11 The undertaking we're about to go into in Smithers is  12 a vast one for all parties, and we are attempting to  13 split, if we can, the witnesses between the province  14 and the federal government as to who will, in a sense,  15 go first and take the vast amount of the material, and  16 how to achieve that and respect all of the boundaries  17 of counsels' briefs and all the rest of it.  It's not  18 that easy, but we intend to do that, and so, of  19 course, we will be requiring the same assistance from  20 counsel.  21 THE COURT:  Yes.  22 MS. KOENIGSBERG:  We always have, but more so this time.  23 THE COURT:  Thank you.  Mr. Mackenzie.  24 MR. MACKENZIE:  The second subject was the scheduling of the  25 cross-examinations, and we've had some discussion  26 about that, and the third week, Mr. Grant is going to  27 be looking into that.  And the point that I wish to  28 raise though that hasn't been mentioned, my lord, is  29 we're going to be asking for your lordship's ruling on  30 objections raised in the out-of-court examinations --  31 THE COURT:  Yes.  32 MR. MACKENZIE:  -- and so we will be -- we propose to be seeking  33 your lordship's leave to intervene or to come at  34 appropriate times into court to get rulings on those,  35 if there are any serious objections which have caused  36 the out-of-court examinations -- that has caused us a  37 problem in the past.  38 THE COURT:  Counsel may approach the bench at any convenient  3 9 time.  40 MR. GRANT:  The only — and we concur with that, but the only  41 concern I raise with Mr. Mackenzie is that -- and I'd  42 asked him to think about this -- is that of course it  43 wouldn't make sense if the in-court examination is  44 interrupted within every 20 minutes.  If we could sort  45 of block some time after breaks or before lunch or  46 something like that.  47 THE COURT:  I'm sure that can be done. 9770  Submission by Mr. Mackenzie  1 MR. GRANT:  I think that subject to that we agree that that  2 makes sense.  3 MR. MACKENZIE:  The third topic is the — is Attorney-General  4 has just delivered a list of documents to Mr. Grant.  5 I'm raising this in court because of the discussion  6 that your lordship had with counsel about October  7 15th, set, with just exceptions, at one time as a  8 deadline, and I think Mr. Grant -- I just want to make  9 sure there's no problem with this -- Mr. Grant agrees  10 that the parties are still in the process of doing  11 their best to get these documents out.  12 THE COURT:  Do you need to respond to that, Mr. Grant or Miss  13 Koenigsberg?  14 MR. GRANT:  Well, yeah.  I did say that to my friend when I  15 hadn't seen the list, and since then I have seen the  16 list, it's been disclosed, and I am concerned.  I'm  17 not objecting to this list, but I am concerned, my  18 lord.  It includes a series of documents from 1877,  19 minutes of parliamentary committee meetings, and if we  20 had filed the report now, as on an earlier schedule we  21 would have, of our historical experts, it would have  22 been highly prejudicial to us.  That fortunately  23 hasn't happened, but I'm uncertain as to why at this  24 late stage documents -- historical documents of that  25 era are for the first time being disclosed by my  26 friends, and I just raise that, but I don't object.  27 We're still in the process of doing a similar process  28 of listing.  I just want to raise that now.  2 9    THE COURT:  All right.  Thank you.  30 MR. MACKENZIE:  I doubt whether those documents would be —  31 relate to the cross-examinations that are coming up,  32 my lord.  33 The fourth point is translators.  Mr. Grant has  34 asked for translators to be present for 17 of the  35 witnesses to be called, and it's our -- it's going to  36 be our submission that some of these witnesses should  37 give their testimony in English on the basis of our  38 information, and we are going to be proposing to  39 cross-examine the witnesses, some of them, with  40 respect to their comprehension of English.  41 THE COURT:  Well, I think, with respect, Mr. Mackenzie, you're  42 wasting your time on that one.  I've always been very,  43 very troubled by witnesses who have a good knowledge  44 of English, a working familiarity with the English  45 language wanting to use translators and interpreters,  46 but in the political climate of this country today it  47 simply isn't acceptable to say a person can't give 9771  Submission by Mr. Mackenzie  1 evidence in the language of his choice.  If it was --  2 if it was at large and I was free to decide it without  3 regard to any constraints, I would agree with you  4 entirely, but that's not the way the world is turning.  5 And not just in this case, but in any case the courts  6 are in the hands of counsel.  If they can't persuade  7 their witnesses to give their evidence in the most  8 persuadable language, then I am at best not able to  9 persuade them.  Judges are practically -- we are not  10 able to intervene in that dialogue between the witness  11 and the counsel that calls them, and we might as well  12 just endure what has to be endured and absorb the time  13 loss because you just can't get anywhere today arguing  14 with people about what language they can give their  15 evidence in, a different language, or that you can  16 impose English on people, even if they are familiar  17 with it.  That's just not the way the world is.  And I  18 think you're free to bring it up and make your  19 submission, but I can tell you that my present  20 reaction is that I'm simply not able to order  21 witnesses to give their evidence in English.  22 MR. MACKENZIE:  I understand.  23 THE COURT:  It's between counsel and their witness.  I know we  24 only have two official languages, but it's -- the --  25 the thinking on the question far transcends just the  26 two official languages now.  27 MR. MACKENZIE:  Thank you, my lord.  28 THE COURT:  If these witnesses say they are going to do it in  29 Gitksan or Wet'suwet'en, then that's what they're  30 going to be allowed to do.  31 MR. MACKENZIE:  Thank you, my lord.  May — I take your  32 lordship's points.  May I just -- just as a matter of  33 information and to -- to assist your lordship in that  34 point, we did have a slight experience with this  35 question when Alfred Mitchell testified.  36 THE COURT:  Oh, yes.  37 MR. MACKENZIE:  And your lordship asked him questions.  38 THE COURT:  And these people, many of them have a working  39 knowledge of English, but they're more comfortable in  40 their own language, and that's what they're going to  41 be allowed to do.  42 MR. MACKENZIE:  Sure.  I understand, my lord.  Certainly in that  43 case, my lord, we'd simply ask the questions then  44 through the translator.  4 5 THE COURT:  Yes.  46 MR. MACKENZIE:  And that might go to the weight or something  47 eventually. 9772  Submission by Mr. Mackenzie  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:  I don't think it goes to weight.  It goes to  understanding.  MR. MACKENZIE:  To understanding.  MR. GRANT:  Well, maybe I could be clear, because that's one of  the things -- my friend indicated one witness, and I  said I didn't object with this one witness for him to  raise the questions, but I'm wondering if -- I -- if  there is any point in spending time with these  witnesses, those who need translators, of  cross-examining them on knowledge of English.  I'm  just unclear as to what you're saying.  THE COURT:  Oh, well, I'm saying that I think that their  understanding of English is a fact that may go to some  cultural question, and therefore it is relevant and  admissible.  It's not going to persuade me that  because they have a working knowledge of English that  I'm going to order them to give their evidence in  English.  I will not do that.  MACKENZIE:  There may be other reasons why a person -- it  might be relevant that a person didn't understand  English.  COURT:  Oh, yes.  MACKENZIE:  Particularly when we have all these affidavits  with no translation affidavits attached to them.  Well, maybe -- my friend has slipped that side line  in.  I have informed my friend that with the exception  of witnesses who I myself did, that is, swore their  affidavits, who I saw needed translation, because it  was from out of town counsel in many cases the  translation affidavits have not yet been done, but I  have indicated to him that these witnesses have had  affidavits translated.  And they haven't been  delivered to my friend, I agree.  It's a process I  have to do.  THE COURT:  It may be a matter for cross-examination.  I'm not  going to discuss that.  MR. GRANT:  No, that's true, but I'm just saying that if an —  if an affidavit of translation hasn't been delivered,  it doesn't mean that the affidavit wasn't translated  at this stage.  I don't want my friend to be  misunderstanding.  THE COURT:  All right.  MR. MACKENZIE:  And, my lord, the sixth point was the question  your lordship raised at the initial -- beginning of  this, court materials for cross-examination.  Just  speaking for -- for us, we're not going to require the  exhibits, the trial exhibits, to be there.  We propose  MR.  THE  MR.  MR. GRANT 9773  Submission by Mr. Mackenzie  1 to have exhibits available or copies available for use  2 in cross-examination and a copy for the court.  Your  3 lordship may wish to take or have your lordship's  4 reference maps taken up because we're going to be  5 dealing with territories, as your lordship  6 appreciates.  7 THE COURT:  Yes.  8 MR. MACKENZIE:  And well, we'll — we hope to have blow-ups of  9 the individual territory.  We haven't been given a map  10 for the Wet'suwet'en territories yet, so it's going to  11 be a problem -- may be a problem.  12 THE COURT:  You mean an overlay?  13 MR. MACKENZIE:  Yes, my lord, the equivalent to Map 9A.  We  14 understand Mr. George is going to produce that later  15 in 1989.  16 THE COURT:  What about those big maps?  17 MR. MACKENZIE:  We won't require those to be taken up, my lord,  18 because we'll be relying on smaller maps such as  19 this —  2 0 THE COURT:  Yes.  21 MR. MACKENZIE:  -- and, as I've done in my cross-examinations,  22 copies of those exhibits.  23 THE COURT:  All right.  24 MR. MACKENZIE:  Exhibit 5, for example.  We might enlarge one of  25 the territories and have it in the binder so you can  26 look at it.  27 THE COURT:  All right.  28 MR. MACKENZIE:  So did your lordship have any further  29 observations or comments about the materials?  30 THE COURT:  Well, what about transcripts?  Are they likely to be  31 needed?  32 MR. MACKENZIE:  No, my lord.  From our perspective, we will have  33 all the material there and copied that we -- to which  34 we will refer.  35 THE COURT:  What about the atlas?  36 MR. MACKENZIE:  No, we won't require the atlas, as far as we're  37 concerned.  38 THE COURT:  All right.  Miss Koenigsberg.  39 MS. KOENIGSBERG:  Well, I'm not certain whether we're going to  40 require the atlas yet or not, but I think I can agree  41 with Mr. Mackenzie that with regard to the trial  42 exhibits, when we put copies together, we will put a  43 copy together for the court, so it will be unnecessary  44 to take all of the exhibits or the transcripts.  4 5 THE COURT:  Yes.  46 MS. KOENIGSBERG:  And I just haven't got far enough along yet in  47 the preparation to know if any of the maps and the 9774  Submission by Mr. Mackenzie  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  MS.  MR.  THE  MR.  THE  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  atlas might be utilized.  I, at the moment, can't  think of any, but I have in mind some of the anecdotal  evidence, if you will, which may have some impact on  some of those maps.  I -- I doubt it, but it's  possible, and perhaps we could let our friends know if  we decide for sure we do need it and then write your  lordship and advise you.  All right.  Thank you.  Well, I'm sorry, if I'm  going to have the two maps, Mr. Macaulay's and the  overlay, it may be just as convenient to send the  atlas along just as well.  KOENIGSBERG:  Yes.  MACKENZIE:  We don't have any objection, of course.  COURT:  Yes.  All right.  MACKENZIE:  My lord, just speaking for Ms. Koenigsberg about  this point, it may be of use to your lordship and the  court to have the plaintiffs' large equivalent of that  map with the different overlaps, but only as a matter  of convenience.  I understand the plaintiffs have --  it doesn't seem to be in the courtroom right now, so I  don't know where it is.  COURT:  Where is it, Mrs. Ritchie?  REGISTRAR:  Mr. Grant —  GRANT:  I had it ordered for release.  REGISTRAR:  That's the 646 series.  GRANT:  Yes, that's the 646 series.  We're requiring it for  other purposes, and we would rather not --  Are you going to need it in Smithers?  No.  No, we're not going to take it up to Smithers,  and we may not --  We'll get along without it.  Yeah, I would prefer us to get along without it.  Yes.  Mr. Grant, do you have anything to suggest as  to what I should take?  No, I just concur with your comment on the atlas  because, again, it may -- may be something on  re-direct that arises out of it.  I just don't know.  Other than that, I think that -- of course, it's --  the bulk of this is in my friends' hands.  Yes.  All right.  Well then, there is one other  awkward problem I have to deal with, and that is that  I don't think I can leave this courtroom reserved for  the length of time we're going to be down.  REGISTRAR:  They do need it.  COURT:  Yes, I am sure they do.  So counsel are going to  have to remove their materials, which is unfortunate.  We'll have to arrange to have the exhibits put in  COURT  GRANT  COURT  GRANT  COURT  MR. GRANT  THE COURT  THE  THE 9775  Submission by Mr. Mackenzie  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 -- in the jury room, I suppose.  I'm not sure that  counsel haven't got a few days to do that in.  THE REGISTRAR:  I assume -- I'm having education class up here  tomorrow with all the new clerks so they see a long  trial, and then I'm going to move them all over there.  So they'll have tomorrow.  THE COURT:  Counsel have all day tomorrow to get the stuff out.  MR. GRANT:  All day tomorrow.  THE COURT:  All right.  Anything else?  MR. MACKENZIE:  My lord, just one other point.  Since we're  going up to do the cross-examinations in Smithers,  we -- I wonder whether it would be convenient just to  mark the examinations from the last -- just put in the  exhibits from the last territorial cross-examinations  in Smithers in August.  We have them here now.  Perhaps we could do that with Madam Registrar and  provide a list to your lordship.  Yes, I'd be glad if you did that.  Do what needs to  be done.  I believe they were going to be referred to by the  affidavit of the witness.  MACKENZIE:  Yes.  GRANT:  And that number -- they were going to be  sequentially numbered.  Madam Registrar can assist us.  THE COURT:  All right.  We'll adjourn then until the week of  next Monday in Smithers, 10:00 a.m.  THE REGISTRAR:  Very well.  And then we do not reconvene here  until January the 9th?  THE COURT:  I believe that's right.  All right.  Thank you.  THE REGISTRAR:  Order in court.  This court will adjourn.  (PROCEEDINGS ADJOURNED AT 12:15 P.M.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  THE COURT  MR. GRANT  MR.  MR.  Leanna Smith  Official Reporter  United Reporting Service Ltd.


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