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Delgamuukw Trial Transcripts
British Columbia. Supreme Court
In the Supreme Court of British Columbia, between: Delgamuukw, also known as Albert Tait, suing on his own behalf and on behalf of all the members of the House of Delgamuukw, and others, plaintiffs, and Her Majesty the Queen in right of the Province of British Columbia and the Attorney General of Canada, defendants: proceedings at trial.
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18216 W. Wilson (for Plaintiffs) In chief by Mr. Grant 1 THE REGISTRAR: Order in court. In the Supreme Court of British 2 Columbia, this 6th day of July, 1989. In the matter 3 of Delgamuukw versus Her Majesty the Queen at bar, my 4 lord. May I remind you, sir, you are still under 5 oath. 6 THE WITNESS: Yes. 7 THE REGISTRAR: And would you state your name for the record, 8 please. 9 THE WITNESS: Pardon me? 10 THE REGISTRAR: Your name please, sir. 11 THE WITNESS: Walter Wilson. 12 THE REGISTRAR: Thank you, sir. 13 MR. GRANT: Yes, my lord. As you recall yesterday, there was a 14 brief matter. Mr. Macaulay and I have agreed that I 15 would raise that -- 16 THE COURT: Yes, all right. 17 18 EXAMINATION IN CHIEF BY MR. GRANT: (Continued) 19 Q -- deal with it so he can complete his 20 cross-examination with those answers in mind. 21 I am referring to Exhibit 358-22. Now, Mr. 22 Wilson, the matter I raised or did not raise with you 23 yesterday was the location of fishing sites between 24 the bottom end of Hagwilget Canyon on the Bulkley 25 River and the mouth of the Bulkley River where it 26 joins the Skeena River. You are familiar with that 27 section of the stretch of the river? 28 A Yes. 29 Q And have you fished there yourself? 30 A In our fishing holes, yes. 31 Q In Djogaslee's fishing holes? 32 A Yes. 33 Q And are you -- do you know of other fishing holes in 34 that stretch of the river? 35 A Yes, there is quite a few fishing sites there. 36 Q If you were starting at the mouth of the Bulkley and 37 Skeena River going upstream, can you just tell his 38 lordship which fishing holes are located on the 39 Bulkley in that area? 40 A Mouth of Bulkley River? 41 Q Where it joins the Skeena? 42 A And going up? 43 Q Yes, if that's as easy as any other way of doing it. 44 A Okay. The very first is Sara Mowatt's fishing hole. 45 Q Sara Mowatt? 46 A Yes, and I don't know which chief is holding that now. 47 Q And is Sara Mowatt deceased? 18217 W. Wilson (for Plaintiffs) In chief by Mr. Grant 1 A 2 Q 3 A 4 Q 5 A 6 Q 7 8 A 9 10 Q 11 A 12 Q 13 A 14 THE COURT 15 MR. GRANT 16 17 18 19 20 THE COURT 21 MR. GRANT 22 THE COURT 23 MR. GRANT 24 Q 25 26 27 28 A 29 30 Q 31 32 33 34 35 A 36 Q 37 A 38 Q 39 A 40 Q 41 A 42 Q 43 44 A 45 Q 46 A 47 Q Yes. Do you recall her name? No, I don't. And do you know the name of the fishing site? No, I don't. Okay. Can you tell his lordship where it is on the river? I see one they call that now is An Gildiphadixs but that's not it. An Gildiphadixs is up further. Okay. Just a moment. An Gildephadixs is -- It is under -- It is referred to under Gwoimt? Gwoimt, yes. Is it -- I am sorry? My lord, if you look in the centre of -- the very centre of the map, it is the ones that are sideways, there are five, and the top one is Gildiphadixs and Gwoimt is spelled differently but that's the same as -- It is a funny spelling for Gwoimt. Yes. Madam reporter will need a spelling. Yes. An Gildiphadixs is -- it would have A-n in front of it, and it's G-i-1-i-p-h-a-d-i-x-s. And is that -- do you know a fishing site known by the name An Gildiphadixs? Yes. It is straight across from Gwinxsigiibiltxw, Gyedimgaldo'o's site. Gwinxsigiibiltxw is G-w-i-n-x-s-i-g-i-i-b-i-1-t-x-w. Now, in relation to if his lordship was there, can you describe where either one of those sites is on the river in relation to the mouth of the Bulkley, what side of the river? On the left-hand side going up river. Is which site? An Gildiphadixs. So it would be on the Haxelton side of the river? On the Hazelton side going up river. And then An Gildiphadixs -- Gwinxsigiibiltxw -- Is on the right-hand side going up river. Now, where is it in relation to the flat that is right at the mouth of the river on that side, Mission Flats? That's above. It is above that? Yes. Do you know a creek known as Mission Creek? 1821? W. Wilson (for Plaintiffs) In chief by Mr. Grant 1 A That's Gwinxsigiibiltxw. 2 Q That's the Gitksan name of that creek? 3 A Yes. 4 Q Where is the fishing site in relation to the mouth of 5 that creek? 6 A Straight across from it up river a little bit, about a 7 hundred feet or so. 8 Q Does Mission Creek come in from the Hazelton side or 9 the south Hazelton side? 10 A South Hazelton side. 11 Q Okay. And is Gwinxsigiibiltxw on the south Hazelton 12 side or the Hazelton side? 13 A South Hazelton side. 14 Q And who owns the site Gwinxsigiibiltxw? 15 A Gyedimgaldo'o. 16 Q Going up that same side of the river, that is the 17 south Hazelton side of the Bulkley River, are there 18 any other sites you know there between there and the 19 canyon? 20 A There is quite a few but I don't know the names of 21 them. 22 Q Okay. Now, let us say you were coming down from the 23 canyon down the Bulkley River on the Hazelton side, 24 can you tell his lordship the sites that you know 25 there? 26 A Well, there is quite a few sites up above my sites, 27 but coming down like you say, there is Hadixsimgao'o, 28 is one of my sites. 29 Q Just a moment. Okay. That is not -- there is a 30 site -- can you tell his lordship where that site is 31 located? 32 A That's above An Gildiphadixs. 33 Q Okay. Hadixsimgao'o is not on this map, that is, the 34 name isn't on this map. It is H-a -- I am just 35 advising his lordship, Mr. Wilson, 36 H-a-d-i-x-s-i-m-g-a-o-'-o. Sorry, where is that? 37 A That's just below Anbana. They are close together, 38 supposed to be. 39 Q Okay. And they are on the Hazelton side? 40 A On the Hazelton side. 41 Q And Anbana for madam reporter is A-n-b-a-n-a. And it 42 is located there and you see there is one there that's 43 unnamed of Djogaslee and that's Hadixsimgao'o. And 44 both those sites Anbana and Hadixsimgao'o were on the 45 Hazelton side? 4 6 A Yeah. 47 Q Okay. Do you know other sites on the Hazelton side? 18219 W. Wilson (for Plaintiffs) In chief by Mr. Grant 1 A 2 Q 3 A 4 5 Q 6 A 7 8 Q 9 A 10 Q 11 12 13 A 14 15 Q 16 A 17 Q 18 19 A 20 Q 21 22 A 23 Q 24 A 25 Q 26 A 27 Q 28 29 A 30 Q 31 A 32 33 Q 34 35 A 36 Q 37 38 A 39 Q 40 A 41 MR. GRANT 42 43 44 45 THE COURT 46 MR. GRANT 47 THE COURT There is quite a few sites. Okay. But some of these high chiefs are passed away and they haven't elected new chiefs yet. Okay. That's the reason why we don't know who's holding them now. Okay. But they are still in the family member. In relation to the location of Anbana, that site you just referred to, where is the site Gildiphadixs, G-i-1-d-i-p-h-a-d-e-x-s, is it above or below it? Below, below Hadixsimgao'o, must be two, 300 yards below. Okay. And it's on the same side of the river? On the same side of the river. And is An Gildiphadixs close to the mouth of the river? Is it above where Ksan Village is located? Oh, way above, yeah. Do you know of a site -- of any other sites of Gwoimt on the Bulkley River there? Supposed to be two sites and I -- Okay. On which side of the river? On this side. The Hazelton side? The Hazelton side. Do you know of a site by the name of Gwinhaasiiyeeks, G-w-i-n-h-a-a-s-i-i-y-e-e-k-s? Yes, I know that. Whose site is that? I think it is Wii Goob'1's site. That's below Hagwilget Canyon, around the bend further down. Okay. Is it -- remember the large map we had yesterday. Is it below that or is it on that? Yes, just below that. Okay. On this it is referred to as Djogaslee's site. That would be incorrect? No, that's not mine. It is Wii Goob'l's? Yes. This is the fifth one on Exhibit 358-22 on that box, my lord, and I'd ask the name be changed from Djogaslee to Wii Goob'1. Make that change on the exhibit. Just hold it there. That's the last one on that box. That's correct. It's this one right here. Yes. 18220 W. Wilson (for Plaintiffs) In chief by Mr. Grant 1 MR. GRANT 2 Q 3 4 5 6 7 A 8 Q 9 A 10 11 Q 12 A 13 Q 14 A 15 Q 16 17 18 A 19 Q 20 21 A 22 Q 23 A 24 Q 25 A 26 Q 27 A 28 Q 29 A 30 Q 31 A 32 33 34 Q 35 36 A 37 Q 38 39 A 40 MR. GRANT 41 42 MR. MACAU 43 44 45 46 47 And I think this is now an exhibit and I will arrange at a break with madam registrar to make the changes on this map. Do you know of the site on the Bulkley River known as Gwints'adal? Gwints'adal? Yes. I heard the name but I don't know exactly where that site is. Is that site -- It is in that canyon, too. It is in the canyon? Yes. Now, when you refer to that canyon, is this the Hagwilget Canyon we were talking about yesterday or the one below it? No, below it. Between the Hagwilget Canyon and the Bulkley River there is another canyon on the Bulkley, isn't there? Yes. Have you heard of a site called Luutkano'o? Yes. And where is it located? Same, just above that one you just mentioned. Okay. And do you know the holder of Luutkano'o? No. And do you know the holder of Gwints'adal? Gwints'adal, no. But there are those two fishing sites? Oh, yes. Whenever the people -- the member of that clan would put up a feast, and then all chiefs witness, that's when we know. And these sites have been referred to at feasts that you have been at? Yes. Just one final question. That site Gwinxsigiibiltxw that you referred to, whose site is that today? Gyedimgaldo'o. : Thank you, Mr. Wilson, if you would answer Mr. Macaulay's questions. Thank you, my lord. jAY: My lord, on this cross-examination we have only marked one exhibit, I believe, and since we will be marking some more, it may be convenient to follow the practise that's been established before, to put them in a binder. And could that one exhibit be marked tab 1? 18221 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 THE COURT: That's 1079 for identification? 2 MR. MACAULAY: Yes, my lord. 3 THE COURT: Yes. 4 MR. MACAULAY: If that could be marked tab — 5 THE COURT: And this book could be 1079, could it not? 6 MR. MACAULAY: If your lordship please. 7 THE COURT: Yes. 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 (EXHIBIT 1079 - BLACK BINDER - A.G. CANADA CROSS-EXAM) MR. MR. MR. MR. MR. MR. THE THE MR. (EXHIBIT 1079-1 FOR ID. APPL. FOR APPT. WHITE) OF ADMIN. MACAULAY: The witness was shown two -- three other -- at least three, in fact four, documents before that weren't marked, one of them he identified and that was -- two of them he identified; one was the Statutory Declaration, my lord, and I wonder if that could be marked as tab 2. Yes, 1079-2. THE COURT (EXHIBIT 1079-2 STATUTORY DECLARATION WALE) PATSY & GRANT: I take it my friend is tendering it -- MACAULAY: As an exhibit, yes, tab 2. GRANT: If you can let me finish. He is tendering it for the purpose that Mr. Wilson identified the signature of William Wale, that's all he identified on it. MACAULAY: Yes. GRANT: Fine. REGISTRAR: Mr. Macaulay, have you got a copy of it? I have misplaced mine. REGISTRAR: The Statutory Declaration is tab 2. MACAULAY: And then there was another document on which the signature was marked. This was a document dated October 29, 1968, it was in the matter of the estate of Peter John Wale. I think your lordship has that one. Could that be marked as tab 3? And that's for the same purpose, it was the identification of the signature of William Wale. MACAULAY: Yes. COURT: Yes. REGISTRAR: Tab 3. (EXHIBIT 1079-3 - DOCUMENT DATED OCT. 29, 1968 RE ESTATE OF PETER JOHN WALE SIGNED STANLEY WALE) MR. GRANT MR. THE THE 18222 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 2 MR. MACAULAY: Then there was a will of James White. Could that 3 be marked for identification? 4 THE COURT: My recollection so far is that the witness didn't 5 recognize that signature. 6 MR. MACAULAY: No, but I undertake to prove that, my lord, and I 7 think it should go in for identification. 8 THE COURT: Well, it can go in for identification on that basis. 9 1079-3? 10 MR. MACAULAY: Yes, my lord. 11 THE REGISTRAR: No, 4 for identification. 12 THE COURT: Yes, thank you. 13 14 (EXHIBIT 1079-4 FOR ID. - WILL OF JAMES WHITE) 15 16 MR. MACAULAY: And then there was a schedule, Schedule F to the 17 petition. Your lordship may recall that Schedule D, a 18 similar document, had been marked, but Schedule F was 19 put to the witness, and he said he hadn't taken any 20 part in drawing it up. 21 MR. GRANT: He had never seen it. 22 MR. MACAULAY: He had never seen it, but I will be referring the 23 witness to that again in my cross-examination and 24 perhaps that could be marked for identification. 25 THE COURT: Yes, all right, 5. 26 THE REGISTRAR: 5 for Ident. 27 28 (EXHIBIT 1079-5 FOR ID. - SCHEDULE F TO PETITION) 29 30 THE COURT: This looks like a map. 31 MR. MACAULAY: It is a map. Well, it's a sort of map. It is a 32 schedule. 33 THE COURT: Yes, all right. 34 MR. MACAULAY: It shows a series of fishing sites on reserves. 35 THE COURT: Yes, 1079-5. 36 MR. GRANT: It is -- this is the one referring to Hagwilget 37 Canyon, is it? 3 8 MR. MACAULAY: Yes. 39 THE COURT: Yes, all right. 40 41 CROSS-EXAMINATION BY MR. MACAULAY: 42 Q The witness -- it was drawn to the witness' attention 43 that his name was on there and that certain sites at 44 Hagwilget Canyon were on there, and I will be coming 45 back to that -- to Schedule F. 46 Mr. Wilson, does Yal have fishing sites in the 47 Four Mile Canyon, a chief whose name is Yal? 18223 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 A Yal? Yal? 2 Q Yal. Well, it is spelled Y-a-1, I think, but Yal? 3 A Yal. I never heard of that name in that canyon. 4 Q Do you know what house Yal is in? 5 A No, I don't. I heard Yal mentioned a few times but I 6 don't know which house. 7 Q Do you know Wilfred Gawa? 8 A Yes. 9 Q What house is he in? 10 A Fireweed. 11 Q Well, that's his clan, but what house is he in? 12 A I thought that was -- An Gildiphadixs but it could be 13 Yal. I think they are close, but they have no site 14 whatsoever in the canyon. They are up Kispiox. 15 Q They are, yes. 16 A Maybe that's why I didn't hear the name mentioned 17 whether -- whenever there is a feast about the fishing 18 sites in the canyon. That's on the Bulkley side. 19 Q We are talking now about the Four Mile Canyon? 20 A Oh, I thought you were talking about -- 21 Q No, in the Four Mile Canyon. 22 A In the Four Mile Canyon. 23 Q That's near Kispiox, is it? 24 A Yes. That must be five miles from Kispiox. 25 Q Yes. And in the Four Mile Canyon there are some 26 Kispiox houses that have fishing sites? 27 A Yes. 28 Q And does Yal have a fishing site, any fishing site in 29 the Four Mile Canyon? 30 A No. I think there is Ma'us, Lutkutsiiwus, 31 Woosimlaxha, Nikat'een have sites there. 32 Q And if Mary Johnson gave evidence that Yal had fishing 33 sites in the Four Mile Canyon, she was wrong? 34 A She was wrong and she apologized in the feast hall. 35 She turned it back to Nikat'een. 36 Q When was that that this feast took place? 37 A Just last year. 38 Q You mean in 1988? 39 A 1988. 40 Q Was that a Kispiox feast? 41 A Kispiox feast. 42 Q You were there? 43 A Yes. 44 MR. MACAULAY: Now, I am going to show you a Schedule D to the 45 petition. My lord, that's already an exhibit, if the 46 witness could be shown Exhibit 26-A. 47 THE COURT: Do you have it, madam registrar? 18224 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 MR. MACAULAY: I have a copy here, my lord. 2 THE COURT: All right. 3 THE REGISTRAR: What number is that? 4 MR. MACAULAY: 5 Q 26-A. First I should ask you if you have ever seen 6 that before? 7 A No, I never did see this. 8 Q Never saw it? 9 A No. 10 Q But that shows, amongst other things, it shows the 11 Four Mile Canyon, the geography includes the Four Mile 12 Canyon, or does it? 13 A Yes. That's in here. 14 MR. MACAULAY: Yes. The witness is showing an area which is 15 marked Hazelton IR1, my lord, right at the bottom. 16 MR. GRANT: He was pointing to an area above number 148. 17 MR. MACAULAY: Right. 18 THE COURT: Well, it is where the highway crosses the Skeena, is 19 it? 2 0 MR. MACAULAY: Yes, my lord. 21 MR. GRANT: Yes. 22 MR. MACAULAY: 23 Q Okay. And now, you will see there are sites numbered 24 156 and 157. Oh, yes, there is the detail over in the 25 left-hand corner, my lord, and the witness has pointed 26 that out just above the bridge. There is a bridge in 27 Four Mile Canyon? 28 A Yes. 29 Q And if you look at the -- over on the right-hand side 30 where the site number is identified as Gisgaast, Yal, 31 Wilfred Gawa? 32 A Yeah. 33 Q You see that? 34 A Yes. 35 Q And you say that, to your knowledge, that's wrong? 36 A That's wrong. That's Woosimlaxha. That's Anyuusxw 37 just above the Four Mile bridge. 38 MR. GRANT: A-n-y-u-u-s-x-w. 39 THE COURT: What number was that? 40 MR. MACAULAY: The numbers of the sites are 156 and 157, my 41 lord, above the bridge. 42 THE COURT: Yes, thank you. 4 3 MR. MACAULAY: 44 Q Now, you have been involved in the land claims for 45 many years, actively involved in the Gitksan land 4 6 claims? 47 A In what way? 18225 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 Q Well, do you remember attending a meeting as long ago 2 as February 1973 when land claims were talked about, 3 that is a meeting of the tribal council? 4 A I went to lot of meetings and I don't know what year, 5 what date, what month. 6 Q Does that sound -- 7 A I don't keep track. 8 MR. MACAULAY: Well, I am going to show the witness, my lord, a 9 document, it is our document number 12301 or part of 10 it, it is dated March 10, 1973. And on the cover 11 page -- perhaps I could hand them around. On the -- 12 my lord, at the bottom there is a notation, that's our 13 document notation, it's a part of a file, and that's 14 what the word "extract" means, and our document number 15 is there. 16 MR. GRANT: But this is the entire document. 17 MR. MACAULAY: 18 Q That's the document, yes. That's the whole document 19 in the file. And the cover page shows that it's the 20 Gitksan-Carrier Tribal Council; the place of the 21 meeting, High School Library, Hazelton; attendances, 22 and your name is there fourth from the bottom? 23 A Mm-hmm. 24 Q You are shown as a councillor from Hazelton. You were 25 a councillor then in 1973? 26 A Yes. 27 Q And then there are, you know, there are minutes of the 28 meeting. It starts -- the chairman was Ray Jones. It 29 says, and it starts with a reference to land claims. 30 It says: 31 32 "Since the agenda was to discuss Land Claims and 33 the revision of the Indian Act, Chairman Ray Jones 34 suggested we nominate a temporary chairman for 35 this meeting." 36 37 And do you remember that meeting? 38 A No, I don't. I went to so many meetings. 39 Q Did you get copies of minutes like this? 40 A Yes, but like I say, it's been years, and be all lost 41 in the pile of papers there. 42 MR. MACAULAY: Yes. Well, my lord, could that be marked the 43 next tab? 44 THE COURT: Well, there is a problem, Mr. Macaulay. The witness 45 doesn't seem to remember it. 46 MR. MACAULAY: For identification. I will have to prove it. 47 THE COURT: For identification, yes. 1079-6. 18226 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 THE REGISTRAR: Yes, 1079-6 for Ident. 2 3 (EX. 1079-6 FOR ID. - GITKSAN-CARRIER TRIBAL COUNCIL 4 MINUTES DATED MARCH 10, 1973) 5 MR. MACAULAY: 6 Q I will show you another set of minutes. This is from 7 the same file, my lord. The complete set was a bulky 8 document but I don't intend to refer to much of it but 9 it is the whole document. That is the entire record 10 of the meeting. And this, Mr. Wilson, is dated 11 November 13, 1975, but if you read through these 12 minutes, you will see that the meeting continued on 13 November 14. There is eight pages of minutes for the 14 13th and then there is several pages of minutes for 15 the following day, Friday, the 14th of November, 1975. 16 And if you look at the minutes of the 14th, you will 17 see on page 2 that you are mentioned there in 18 connection with some sum of money for housing 19 purposes. Do you see in the middle of the page? 20 A On — 21 Q Under W. Wilson, you are reported as saying something 22 about -- 23 A On what page now are you on? 24 Q That's it. You are reported as saying, I quote: 25 26 "We should try and raise that $10,000 subsidy to 27 about $15,000 a house so that we would be able to 28 complete our houses. Some people are not able to 29 apply or qualify for loans." 30 31 Do you remember that discussion? 32 A We have lots of discussion about trying to raise funds 33 to complete our houses. 34 Q Well, you were particularly involved in housing, 35 weren't you? 36 A Well, the whole council involved in housing. 37 Q But weren't you a foreman, a construction foreman, for 38 housing? 39 A For DIA, yes. 40 Q Were you a construction foreman in 1975? 41 A I think I was, yeah. 42 Q So you were more than some councillors, you were 43 knowledgeable about housing and -- 4 4 A Mm-hmm. 45 Q At that time? 46 A Well, DIA set the rate that subsidy that they give out 47 and it wasn't enough to complete the houses we were 18227 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 building. 2 Q Yes, right. Well, I am not going to go any farther 3 than that and that's not the purpose of my question 4 but you attended meetings of that kind of the tribal 5 council to discuss these things? 6 A Oh, yes. 7 Q Yes. And then at page 9 you were reported as 8 saying -- that's on the 14th again, about the middle 9 of the page -- no, sorry. Somebody else is reported 10 as saying, and I quote: 11 12 "We also have a need for another construction 13 supervisor to work with Walter Wilson." 14 15 That's what it says? 16 A Yes. 17 Q It appears you were construction supervisor at that 18 time? 19 A Yes. 20 MR. MACAULAY: And does it seem about right, February of '75, 21 were you a construction -- 22 MR. GRANT: November. 2 3 MR. MACAULAY: 24 Q I am sorry, November of '75, you are quite right, 25 November '75? 2 6 A Mm-hmm. 27 Q And then if you turn the page to page 10, the last 28 third of the page concerns what Neil Sterritt said 29 about a brief he was presenting concerning land 30 claims? 31 A That he only brought 15 copies of the brief or -- 32 Q Well, he -- yes. He said he only brought 15 copies 33 and he goes on to say that everybody would be getting 34 a copy of the brief, and then he says: 35 36 "You are all pretty well familiar with the history 37 of the Land Claims issue. We have spent at least 38 one meeting a month in the past six months 39 wrestling with the problem." 40 41 You see where he is saying that, he is reported as 42 saying that? 43 A Yes. 44 Q Do you remember him discussing with him and other 45 councillors and chiefs the land claims issue during 46 the year 1975? 47 A Well, like I say, we discussed all through those years 1822? W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 and I don't know what meetings and -- 2 Q And you probably got a copy of these minutes? 3 A Yes. 4 MR. MACAULAY: Could that be marked, my lord? 5 THE COURT: Yes. 6 THE WITNESS: I don't know if I still have them but it was given 7 out. 8 MR. MACAULAY: They were given out. 9 MR. GRANT: I am wondering if it can be marked for 10 identification. I don't know if he's identified -- 11 he's identified or agreed that there are certain 12 references to him. 13 THE COURT: Well, hasn't he indicated that he would have 14 received a copy of this? 15 MR. GRANT: Yes, he has. 16 THE COURT: And would have dealt with it. I think it can go in. 17 1079-7. 18 THE REGISTRAR: Yes, my lord. 19 THE COURT: How would you describe it? I haven't seen it. Oh, 20 yes. It's minutes, isn't it? 21 MR. MACAULAY: They are minutes, yes, my lord, minutes of a 22 meeting -- 23 THE COURT: Minutes and attachments. 24 MR. MACAULAY: — of the Gitksan-Carrier Tribal Council, it was 25 called that in those days, held at Glenvowell 26 Community Hall on Thursday, November 13, 1975, and 27 obviously it was held on the 14th as well, they 28 continue. 2 9 THE COURT: Yes. 30 31 (EXHIBIT 1079-7 - MINUTES COUNCIL METING DATED 32 NOV. 13, 1975) 33 34 MR. MACAULAY: 35 Q So in addition to being a councillor on the band 36 council, you were active with the tribal council too? 37 A Yes, I go to their meetings. 38 Q And you have been going to their meetings since -- at 39 least since 1973? 40 A Yes, off and on. I miss quite a few. 41 Q And when did you become the head chief of your house? 42 A I forgot what year my uncle died. 43 Q Well, your uncle, William Wale, was your predecessor? 44 A Yes. 45 Q He was Djogaslee? 46 A Yes. 47 Q Or Djogaslee? 18229 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 A Yes. 2 Q And you were the next Djogaslee? 3 A Yes. 4 Q There was nobody in between? 5 A No. 6 Q So it was in the 1970s that you became Djogaslee? 7 A I think so, yeah. I forgot. 8 Q And you know Gary Patsey? 9 A Yes. 10 Q And he's been very active in the land claims? 11 A Yes. 12 MR. MACAULAY: In fact he was the member of a tribal council who 13 had particular responsibilities for land claims, 14 didn't he? 15 MR. GRANT: When? 16 MR. MACAULAY: In the 1970s and '80s. 17 MR. GRANT: Well, I think that's — my friend knows quite well 18 that that is -- when he says the 1970s and '80s, 19 that's not an accurate statement. 2 0 MR. MACAULAY: 21 Q Oh, well, maybe it is not an accurate statement. The 22 witness can correct me. Was he active in the land 23 claims in the 1970s? 24 A I don't know what year he was active in it to tell you 25 the truth. 26 Q How about the 1980s? 27 A I don't think so in 1980s. 28 Q Now, I am going to show you a newsletter, 29 Gitksan-Carrier Tribal Council Newsletter for February 30 1983, it is volume 2 number 11. You get the 31 newsletter? 32 A Some, yes. 33 Q Well, by February 1983, you were a hereditary head 34 chief of your house? 35 A Like I say, I forgot what year I was -- I took the 3 6 name over. 37 Q Do you remember receiving this one. On the front page 38 the headline, if you could call it that, reads: 39 40 "Questions you've always wanted to ask about Land 41 Claims but were afraid to ask. By Gary Patsey." 42 43 Do you remember reading that, receiving and reading 44 it? 45 A No, I don't. 46 Q Well, perhaps you can turn to page 3, that might 47 refresh your memory, the third page of these four 18230 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 pages, where the heading is, "How do you fit in?" 2 where the author says under that heading, amongst 3 other things: 4 5 "Find out where your trapping and hunting 6 grounds lie; find out the history of your 7 particular Indian name, clan, or house; find out 8 where your traditional fishing sites are if you 9 have any; know the great traditional laws, 10 practises, and customs of the Gitksan and the 11 Carrier; attend Band Council and Tribal Council 12 meetings." 13 14 You don't remember reading that in '83? 15 A No, I don't, no. 16 MR. MACAULAY: Could that be marked for identification, my lord? 17 THE COURT: Well, it is already in, isn't it? 18 MR. GRANT: I am not sure what status it is in, but I remember 19 this as well as you do. 20 THE COURT: I have seen this before. 21 MR. GRANT: Yes. I don't see the point of putting it in — 22 MR. MACAULAY: I am sorry, there is a note here that it is in as 23 Exhibit 995-8 to the cross-examination of Dr. Brody, 24 and 901-9 to Daly, in cross-examination of Dr. Daly. 25 THE COURT: All right. I will put it here as tab 8 because it 26 is a convenient place to put it, but we don't need to 27 give it another number. 2 8 MR. MACAULAY: 29 Q Now, who did you speak to about -- at the tribal 30 council about fishing sites, finding out the names of 31 the locations of fishing sites? Was there any 32 particular person that you dealt with? 33 A No, no. 34 Q Did you know that a map was being prepared of the 35 fishing sites before 1987? 36 A I heard about it. 37 Q Did either Mr. Morrell or Antonia Mills or anyone else 38 who was working for the tribal council show you a 39 draft of a map they were going to send to have 40 printed, fishing site map? 41 A I know Mike worked for tribal council. 42 Q Yes, and Antonia Mills worked for tribal council too, 43 didn't she? 4 4 A I didn't know that name. 45 Q You knew Mike Morrell, though? 4 6 A I know him, yes. 47 Q Did he ever show you a map he had drafted up of 18231 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 2 3 A 4 Q 5 6 A 7 Q 8 A 9 ] MR. GRANT 10 ] MR. MACAU 11 Q 12 A 13 Q 14 15 16 A 17 Q 18 A 19 Q 20 A 21 22 Q 23 24 25 A 26 Q 27 A 28 Q 29 30 31 A 32 33 34 35 36 Q 37 38 A 39 Q 40 A 41 42 Q 43 44 45 46 A 47 fishing sites that he was going to send to the printer? No, he never did. You heard Mr. Skoda yesterday, didn't you? He was giving evidence yesterday. No, I didn't hear him. You didn't hear him? No. I wasn't here. Just the last part. : Mr. Wilson wasn't present in court, my lord. uAY: Well, I accept that. You know who Mr. Skoda is? First time I seen him yesterday. I see. Now, there is -- well, you have seen the map, haven't you? It's been shown to you by Mr. Grant yesterday and today? Yes. This map, 22 it is called, you have seen that? Yes, I have seen it. Well, when did you first see it? Just, I think, last week when it was first shown to me. Did Mike Morrell come to you in the last three or four years to ask you what the names of your fishing sites were? No. He never did? No. Did anyone else from the tribal council or the Land Claims office of the tribal council come to you and say where are Djogaslee's fishing sites? Not that I know of, no. That's why I called Gary Patsey yesterday, to straighten out, and I told Peter Grant and Gary Patsey that these sites are wrong. There is names on it but they are not on the fishing site, and that's why I straightened it out. When did you first know as a hereditary chief that this map had been printed? This — The map 22? The one you first showed me, the first time I heard about it and saw it is last week, like I say. You didn't know -- yes, you have told us that you never saw it until last week, fine. But have you heard about it before that, that there was a fishing site map? I don't remember. I don't recall. Maybe they did mention it but I don't know. 18232 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 Q Do you remember swearing an affidavit in connection 2 with questions that are called interrogatories? 3 A Yes. 4 Q You remember that? 5 A Yes. 6 MR. MACAULAY: I am going to -- my lord, I am going to show the 7 witness his affidavit and answers to certain questions 8 attached to it, Exhibit A, certain questions attached 9 to his -- there is two of them. They haven't been 10 stapled so they can more easily be put in at the tab, 11 my lord. 12 THE COURT: Thank you. 13 MR. MACAULAY: 14 Q Now, the first two pages of this document, Mr. Wilson, 15 comprise an affidavit. Is that your signature on the 16 second page? 17 A Yes. 18 Q Okay. So we can leave those, and attached to this 19 affidavit of yours there were answers to -- it's 20 called Exhibit A, there were answers to some questions 21 that were put to you and you answered a lot of 22 questions that you were being asked; is that right? 23 A Mm-hmm. 2 4 MR. MACAULAY: You are looking at — 25 MR. GRANT: Give him a chance to read it. This interrogatory 26 affidavit was put to him on his earlier 27 cross-examination of August but not these questions 28 and answers, my lord. I am not objecting because my 29 friend is referring to other questions and answers. 30 THE COURT: All right, thank you. 31 MR. MACAULAY: 32 Q Now, you have read the answer to question 3, actually 33 there is one more answer to question 3, it is at the 34 top of the next page. 35 A Yes, yes. 36 Q Now, question number 3, the question was: 37 38 "Where have you lived since birth? Identify each 39 of these places, if possible, by reference to an 40 existing Indian reserve." 41 42 And your answer included: 43 44 "Out at Pinenut Creek, my grandparents had a 45 fish camp there. Site name is Gwin ax Jul." 46 4 7 A Gwin ax Jul. 18233 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 Q 2 "...was a nice spot for spring salmon, Gwin ax 3 Jul - 'woman behind julling fishing'." 4 5 That was one of your answers? 6 A Mm-hmm. 7 Q And did you live there? 8 A Just a short while when I was real small. 9 Q I thought you told me yesterday that you had never 10 lived there? 11 A I never did live there. I just spent maybe a month 12 there, that's why I said that. That's when I was a 13 little boy, I wasn't doing anything. 14 Q Well, at that time when you made this affidavit, that 15 is, at the time you swore the affidavit in February 16 1987, you were asked about fishing sites? 17 A Yes. 18 Q And you gave the fishing sites and the names? 19 A Mm-hmm. 2 0 Q And did they include the names that you told us 21 yesterday? 22 A Yes. 23 Q All those names? 24 A Not all of them. 25 MR. GRANT: Wait. There is no question -- to my recollection 26 there is no question in these interrogatories, it 27 certainly wasn't question 3 -- 28 MR. MACAULAY: That's interrupting my cross-examination, my 29 lord. 30 MR. GRANT: Well, my friend is misleading with respect. There 31 is no question in the interrogatories asking of the 32 fishing sites to my recollection. 33 THE COURT: Well, was the question intended to relate to the 34 interrogatories, Mr. Macaulay? 35 MR. MACAULAY: No. I was asking about the occasion, on that 36 occasion, at that time, did he give -- and the witness 37 said yes, he gave the names and locations of the 38 fishing sites. I don't say that they are embodied in 39 the interrogatories, they are not, except for some. 4 0 THE COURT: Some are mentioned. 41 MR. MACAULAY: Yes. 42 THE COURT: Well, I don't think there is any harm done as long 43 as there is no misunderstanding. 44 MR. MACAULAY: I don't think there is any misunderstanding. 45 MR. GRANT: Well, I misunderstood. I just want to make sure the 46 witness understands what my friend was referring to, 47 that it wasn't one of the questions in the 18234 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 interrogatories. 2 THE COURT: All right. 3 MR. GRANT: Can my friend clarify that? 4 MR. MACAULAY: At that time you, and I am referring to the 5 witness' exhibit, my lord, it's the last exhibit, tab 6 1, the previous exhibit, there was a map and I am 7 showing the witness -- well, maybe the witness should 8 look at the exhibit itself. 9 MR. GRANT: Could you clarify whether the witness understood 10 your last question before this. 11 MR. MACAULAY: I think this will clarify it. Now, that map here 12 that you are looking at and for the record that's -- 13 THE REGISTRAR: Tab 1. 14 THE COURT: 1078-1. 15 MR. MACAULAY: 16 Q 1078-1, my lord, yes, the map there. The first site 17 on the left-hand side of this map is a Djogaslee site, 18 is it? 19 A Yes. 20 Q Up at the top there? 21 A Mm-hmm. 22 Q Did you mention that site? 23 A Yes. Oh, not on this, no. 24 Q No, not on that, but in February '87 when you were 25 talking -- when you were giving information, did you 26 give information to those you were dealing with about 27 that site? 28 A No. I didn't tell them about these two sites here. I 29 didn't tell them. 30 Q Those two sites? 31 A No, I didn't tell them that. 32 Q The two sites you are talking about are the two at the 33 left-hand top of the page? 34 A Yes. 35 Q Of the map, yes. And why was that? 36 A Well, at the time, it didn't come to my mind, but I 37 remember the canyon right at the canyon. That's all I 38 told them. 39 Q Well — 40 A And I didn't tell them about Kisgagas because it is so 41 far out and we don't go there no more, but I mentioned 42 that Gwin ax Jul because that's our important fishing 43 hole. 44 Q That's the one near Pinenut Creek? 45 A Yes. 46 MR. MACAULAY: Now, I want you to keep that map in front of you 47 and also look at map 22. Perhaps the witness can be 18235 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 shown the court copy, not the great huge one, but the 2 convenient size 22, unless the witness would prefer -- 3 MR. GRANT: He can compare them right there with the larger 4 version. 5 THE COURT: Whatever he wishes. 6 MR. MACAULAY: 7 Q Well, the witness, if you would prefer to take that 8 little map of the Hagwilget Canyon sites and go over 9 to the map 22, the big one, and if you will look at 10 the detail on the big map concerning Hagwilget Canyon 11 sites. You see that? 12 A This one here. 13 Q Yes. You've got the detail there, all right. Now, 14 let's start on the left-hand side. The big map number 15 22 doesn't show your two fishing sites, the first two 16 on your map, do they? 17 A The first two? 18 Q Yes. I can't pronounce them. The first one is 19 X-s-a-a-n-1-u-u-g-u-u-w-a-a-s-x-w, that's the first 20 one, and the second one is 21 G-w-i-n-h-a-h-l-h-a-t-l-h-1, those two. 22 A Yes, it is on there but, like I said before, they are 23 different names on them. It's on there right above 24 the bridge. It's Gwinhahlhatlhl. 25 MR. GRANT: That's the second name. 26 THE WITNESS: Gwinhahlhatlhl, you see it on here, but I said a 27 little earlier the names are wrong on it, but it is 28 still those above the bridge. 2 9 MR. MACAULAY: 30 Q You mean -- 31 A That's why — 32 Q Let's start with the first one, X-s-a-a-n-1-u-u? 33 A Xsaanluuguuwaasxw. 34 Q Does that show on the big map? 35 A No, it is up here. 36 Q No? 37 A But the other — 38 MR. GRANT: The first one he indicated just above that bay on 39 the Exhibit 358-42, my lord. 40 MR. MACAULAY: The first one is — 41 THE COURT: Just a minute, one at a time please. Mr. Macaulay 42 started his question before Mr. Grant had finished 43 interrupting him. 44 MR. GRANT: I just wanted to set for the record where the 45 witness was pointing. 46 THE COURT: Oh, I understand that. We have to be more careful 47 of madam reporter's difficulties. 18236 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 MR. MACAULAY: 2 Q Now, the second one, G-w-i-n-h-a-h-l-h-a-t-l-h-1, you 3 say it is on there? 4 A Yes. That's the one there. 5 Q It is the — 6 A These two, they are not on there. 7 Q Is the — 8 A That's wrong. It is supposed to be down here. 9 Xsaanluuguuwaasxw, even the first one here, is wrong. 10 Xsaanluuguuwaasxw is right under the bridge. 11 MR. MACAULAY: But the name isn't there. The name — you say 12 there is a dot. 13 MR. GRANT: The witness pointed to the first dot on Exhibit 358- 14 22, the one that is furthest upstream on the right 15 bank, and said that's the site. And then when he was 16 saying that those two are wrong, he was pointing to 17 the other two dots that are upstream of the bridge on 18 the right bank, I am saying right bank when you face 19 downstream. 20 MR. MACAULAY: Well, despite Mr. Grant's assistance, I don't 21 think we have yet got it, my lord. 22 THE COURT: I am sure we haven't but Mr. Grant was there by the 23 map to see what the witness was pointing to. 2 4 MR. MACAULAY: I am going to take it one — 25 THE COURT: And you were at your custom place. 2 6 MR. MACAULAY: 27 Q I am going to take it one bite at a time. The name 28 G-w-i-n-h-a-h-l-h-a-t-l-h-1 isn't on the big map? 29 A Gwinhahlhatlhl? 30 Q It is not on the big map? 31 A It is on there but different name on there. 32 Q A different name? 33 A Yes. 34 Q Oh. 35 A That's why I straightened this out. 36 Q Well, what different name was it given? Which one of 37 those names? 38 A The names are wrong on those. 39 Q On the big map? 40 A The sites are there but there is a different name on 41 them. 42 Q But I don't see a dot on the big map where you have 43 got the dot for Gwinhahlhatlhl? 44 A Gwinhahlhatlhl, it is right at the point on that bay. 45 Q The — 4 6 A That's when I -- why I put the dot there. 47 Q You go back to the big map and find that point at the 18237 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 bay and tell me if there is a dot? 2 A There is no dot there but this one here, it is under 3 there, but that dot there should have been there. 4 THE COURT: That doesn't help much. You are saying that one of 5 the dots downstream, but above the bridge on the 6 right-hand side facing downstream is what? 7 THE WITNESS: Gwinhahlhatlhl, this one here. 8 THE COURT: G-w-i-n-h-a-h-l-h-a-t-l-h-1 which is on Exhibit 9 1078-1 but at a different location. 10 MR. MACAULAY: All right. 11 THE COURT: And named differently on the big map. Thank you. 12 MR. GRANT: Just — 13 THE WITNESS: This is that bay, yes, that sand bar, and that's 14 where that site is supposed to be if this is the bay 15 but, if this is the bay here, that site is supposed to 16 be here. See, I'm -- I don't know how this map is. 17 MR. MACAULAY: Okay. Now, let's look at the big map again. We 18 have gone as far as we can go with that one. 19 MR. GRANT: Just — my lord, the difficulty with what that — he 20 appears to be pointing to the highest dot on 358-22 21 but he is saying it should be either on the point 22 that's just a little bit up from it or on the other 23 point, depending on which is the big bay. That's what 24 he was just indicating. 2 5 THE COURT: Yes. 26 THE WITNESS: See, it looks to me there is two bays in there but 27 it is supposed to be only one, so if this is the bay 28 here that Gwinhahlhatlhl is supposed to be there, and 29 if this is the bay, it is supposed to be here. 30 MR. MACAULAY: Now, on the big map, you stay with the big map 31 for a minute, there are three dots above the bridge, 32 right above the bridge, three dots together. 33 THE COURT: Yes, that's agreed. 34 MR. GRANT: I was just pointing to the witness. 35 MR. MACAULAY: 36 Q Is that right? 37 A Yes. 38 MR. MACAULAY: Now, on your little map we are looking at, the 39 one you produced yesterday, there are no dots at all? 40 THE COURT: In that location? 41 MR. MACAULAY: 42 Q In that location? 43 A But I didn't catch on on that. 44 Q On the big map there are three dots right above the 45 bridge? 46 A One, two, three, yeah. 47 Q Above the bridge. On the little map there are no dots 1823? W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 at all above the bridge? 2 A No, except for this Gwinhahlhatlhl. If this is the 3 bay here, it is supposed to be here. But if this one, 4 it is supposed to be in this point here. 5 Q But those three dots are wrong? 6 A Yes. 7 Q They are in the wrong position? 8 A Yes, wrong position. 9 Q Okay. You don't know how that mistake was made? 10 A No. 11 Q And on the -- now, on the big map there are two dots 12 just below the bridge, and on your little map there is 13 two dots below the bridge? 14 A Yes. 15 MR. GRANT: On the right bank you are referring to? 16 MR. MACAULAY: Yes, we are still on the right bank. Well, the 17 Hagwilget -- is that the Hagwilget side? 18 MR. GRANT: It is the Hazelton side. 19 THE WITNESS: Hazelton side. 20 MR. GRANT: It would be, I assume, right bank when you look 21 downstream and you call it right bank looking 22 downstream. 2 3 MR. MACAULAY: 24 Q That's right, it is called right bank. But the -- on 25 the big map, that first dot below the bridge has the 2 6 wrong name? 27 A On the big map? 28 Q Yes. 29 A Yes. 30 Q Okay. 31 A It is wrong. 32 Q It is wrong. And on the big map, the second dot below 33 the bridge right beside that where we just looked at, 34 that's the wrong name? 35 A That's wrong, yes. 36 Q On the big map you come to the bend in the river, you 37 keep going down the right bank, you come to the bend, 38 you see that, and on the big map there are two dots 39 fairly close together? 40 A Yes. 41 Q But on your map, your little one, you have four dots 42 close together; is that right? 43 A Yes. 44 MR. GRANT: The witness is nodding affirming. 4 5 MR. MACAULAY: 46 Q And on the big map, those two at the bend in the 47 river, are those the wrong names? 18239 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 A What two is he talking about? 2 MR. GRANT: The witness asked me which two he is talking about 3 so I am going to point these two out that you are 4 referring to. 5 MR. MACAULAY: Just at the bend of the river. 6 MR. GRANT: Gwiianhakhlxw is one and Gubokx is the other that 7 Mr. Macaulay is referring to. 8 G-w-i-i-a-n-h-a-k-h-1-x-w is the first name and 9 G-u-b-o-k-x is the second name, madam reporter. 10 MR. MACAULAY: 11 Q Now, are those two names the right names or are they 12 the wrong names? 13 A They are the wrong names. 14 Q Wrong names. Well, one of them, G-u-b-o-k-x -- 15 A Gubokx. 16 Q -- on the big map is pretty close to its right 17 position, isn't it? 18 A Yes. 19 Q All right. Now, let's move a little down to the last 20 dot on the big map. That's the wrong name, isn't it? 21 A Saxwhl lo'op. 22 MR. MACAULAY: I am sorry, it is the right name but the wrong 23 house. 24 MR. GRANT: Well — 25 MR. MACAULAY: I will withdraw that question, my lord. 26 MR. GRANT: I'd ask that. There is no evidence of that. 2 7 MR. MACAULAY: 28 Q We will go back to G-u-b-o-k-x. 2 9 A Gubokx. 30 Q Yes. Now, opposite that on the big map, the -- up 31 right beside that name of a fishing site in red there 32 is the word Gyedimgaldo'o? 33 A Yes. 34 Q And then there is another -- 35 A Woosimlaxha. 36 Q Yes. Gyedimgaldo'o is wrong? 37 A That's right. He shouldn't be there at all. 38 Q Shouldn't be there. And I think they got one right 39 there in number 7. Now, on the big map, the last of 40 the sites in this Hagwilget Canyon is 41 S-a-x-w-h-1-l-o-o-p. You see that one? 42 A Saxwhl lo'op. 43 MR. MACAULAY: And it is shown as belonging to Woosimlaxha. 44 MR. GRANT: On the large map you are referring to? 4 5 MR. MACAULAY: 46 Q On the big map? 47 A Yes. 18240 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Q A A Q A Is that correct? That's Saxwhl lo'op is supposed to be Woosimlaxha and Gubokx. Well, my question is, on that last one, that's the right name? It is the right name? Yes. You gave a different name? Well, it is supposed to be close together. MR. MACAULAY: Well, is Woosimlaxha a name in the house -- in this house of -- MR. GRANT: Gutginuxw? THE WITNESS: Yes. MR. MACAULAY: Q It is? A It is. Q So that one is correct, is it? A Yes, Gutginuxw and Woosimlaxha are the same. Q Same. And then on the little map you have an additional site? A Oh, that's An yuusxw, that's below this one. Q But it is very close to it? A It is close, yeah. That belongs to Wii Goob'1. Q It should have been on the big map right there showing in that position? A But it didn't show. GRANT: An yuusxw is A-n one word Y-u-u-s-x-w and Wii Goob'1 W-i-i one word G-o-o-b-'-l. MACAULAY: Now, let's go to the other bank. The top — might be easier. The other bank isn't that difficult. Perhaps the witness can be shown the -- GRANT: Well, it is hard — MACAULAY: Q Well, if you want to go back to the big map. Now, that's the -- we are dealing with the left bank now and there is -- it starts with a site above the bridge, that's one of Gyedimgaldo'o's sites? A Yes. Q But there is no name on the big map, is there? A Gyedimgaldo'o on there. Q Yes, but the site isn't named? A Gaan Gwats is the name of that site. GRANT: G-a-a-n, one word, G-w-a-t-s, second word. MR. MR. MR. MR. MR. MR. MACAULAY: Q Who told you that? A I know that. Q Just because you have lived there all your life? A Well, I know there is people who fish there and the 18241 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 chiefs in that house. 2 Q Your house and Gyedimgaldo'o are very close, aren't 3 they? 4 A Yes. 5 Q It is almost the same house? 6 A Almost. 7 Q And that's why you know that? 8 A Yes. 9 MR. MACAULAY: So the map-maker wasn't told that when that map 10 was printed? 11 MR. GRANT: Well, the witness can't answer that, my lord. I 12 object. The witness can't answer that question, what 13 the map-makers were told or not. 14 MR. MACAULAY: 15 Q And the next site on the big map, you have the house 16 name but there is no name for the fishing site? 17 A The name of that fishing site is Wiianhaakwhl. 18 Q That's W-i-i-a-n-h-a-a-k-w-h-1. 19 A Mm-hmm. 20 THE COURT: Is that below the bridge on the big map? 21 THE WITNESS: Just below the bridge. 22 MR. GRANT: It is the same on the big map as on 1078-1. 2 3 MR. MACAULAY: 24 Q The site is the same? 25 A That's supposed to belong to Guuhadakxw. 26 MR. GRANT: G-u-u-h-a-d-a-k. 2 7 MR. MACAULAY: 28 Q But then you added another fishing site on your little 29 map down river called An ska skii? 30 A Yes. 31 Q And that doesn't appear on the big map at all, does 32 it? 33 A No. 34 MR. MACAULAY: And now I am going to show you again Schedule F. 35 THE COURT: Exhibit 26. 36 MR. MACAULAY: Well, no, Schedule F is marked for 37 identification. It is Schedule D that was Exhibit 26, 38 my lord. That site that you have just mentioned isn't 39 shown on this. 40 MR. GRANT: An ska skii you are referring to. 41 MR. MACAULAY: 42 Q Yes, is it? An ska skii isn't shown on that Schedule 4 3 F map, is it? 44 A It is not on here. 45 Q No. Now, all those come back to your little map, all 46 those sites are within the Indian reserve, aren't 47 they? 18242 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 A Yes, yes. The reason why I add on that one down below 2 you are talking about on An ska skii because they have 3 that main fishing hole up above there, and I didn't 4 see the name on the other lower part. That's why I 5 told them that belongs to Guuhadakxw. An ska skii is 6 the name of that fishing hole. 7 Q The main fishing hole is up near the bridge, is it? 8 A Yes, and this one here and I didn't see it on that 9 map. That's why I told them put it on. 10 Q Do they use that to set nets at that An ska skii? 11 A Well, you could use net but the olden days they used 12 banan. 13 Q A what? 14 A A banan. 15 Q You mean a trap? 16 A Yeah, basket. 17 MR. GRANT: B-a-n-a-n. 18 MR. MACAULAY: 19 Q How long is it since the banan was used? 20 A Oh, probably 50 years. 21 Q You remember seeing them? 22 A I seen some of them, yes. 23 THE COURT: Is it convenient to take the morning adjournment, 24 Mr. Macaulay? 25 MR. MACAULAY: Yes, thank you, my lord. 2 6 THE COURT: Thank you. 27 THE REGISTRAR: Order in court. Court stands adjourned for a 28 short recess. 29 30 (PROCEEDINGS ADJOURNED AT 11:15 a.m.) 31 32 I hereby certify the foregoing to be 33 a true and accurate transcript of the 34 proceedings herein, transcribed to the 35 best of my skill and ability. 36 37 38 39 40 41 TANNIS DEFOE, Official Reporter 42 United Reporting Service Ltd. 43 44 45 46 47 18243 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT) 2 3 THE COURT: Mr. Macaulay. 4 MR. MACAULAY: My lord, I don't know if the affidavit with some 5 interrogatories answers has been marked as a tab. Can 6 that be marked as the next tab? 7 THE COURT: I think it was. 8 MR. MACAULAY: The registrar hasn't got it. 9 THE COURT: No, I'm sorry, it's not been marked. That will 10 be -- 11 THE REGISTRAR: Tab 9, Your Honour. 12 MR. GRANT: Is my friend going to deal with it further? There 13 is a number of other questions on it, or was he just 14 dealing with question 3? 15 MR. MACAULAY: Question 3. 16 MR. GRANT: I see. 17 MR. MACAULAY: The reason that the second page is there is 18 because the last -- I didn't think I should cut off 19 the answer. 2 0 THE COURT: Yes. 21 MR. MACAULAY: And the last bit of answer is at the top of that 22 page. 23 MR. GRANT: No, I understand. I just wondered. 24 THE COURT: This will be 1079-9. 25 MR. MACAULAY: Unless there is something interesting further 2 6 down. 27 MR. GRANT: You can read it. 28 29 (EXHIBIT 1079-9: Affidavit & Interrogatory of W. 30 Wilson) 31 32 MR. MACAULAY: There is nothing else on that that I will ask the 33 witness about. Could the witness be shown Exhibit 34 853-6. What it is, my lord, is the genealogy for 35 Djogaslee. It is already an exhibit, my lord. 3 6 THE COURT: Yes. 37 MR. GRANT: My lord, while my friend is getting organized, I 38 just want to confirm, and possibly this can clarify an 39 exhibit for identification question. What my friend 40 is now referring to as Exhibit 853-6 is the same as 41 Exhibit B For Identification put to Mr. Wilson on 42 August 31, 1988. So Exhibit B For Identification in 43 his cross-examination are the same document. 44 THE COURT: 853-6? 4 5 MR. MACAULAY: Yes, my lord. 46 THE COURT: What is it, please? 47 MR. MACAULAY: It is the genealogy of the House of Djogaslay — 18244 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 Djogaslee. 2 THE REGISTRAR: 856-6? 3 MR. MACAULAY: 853-6. 4 THE REGISTRAR: 853, tab 6. 5 MR. MACAULAY: My lord, while the registrar gets that exhibit, I 6 can perhaps hand the -- I have an unmarked copy of 7 this exhibit, my lord. It won't take a minute to deal 8 with it. 9 THE COURT: Yes, all right. 10 MR. MACAULAY: I am referring to the first two pages of this, 11 pages one and two of this document. I am going to -- 12 the witness, of course, can look at any page he wants. 13 But my questions are -- since they run together I will 14 put the pages side by side. 15 THE COURT: Which pages are you looking at, Mr. Macaulay? 16 MR. MACAULAY: One and two, my lord. 17 THE COURT: Okay. 18 MR. MACAULAY: But it is easier to understand the relationship 19 if pages one and two are put side by side. 2 0 THE COURT: Yes, I am going to do that. Thank you. 21 MR. MACAULAY: 22 Q Now, this is the -- you recognize that as the 23 genealogy of Djogaslee? 24 A Yes. 25 Q And your name appears there, Walter Wilson, Djogaslee? 26 A Yes. 27 Q Now, right above your name is William Wale? 28 A Yes. 29 Q Djogaslee? 30 A Yes. 31 Q That was your predecessor? 32 A Mh'm. 33 Q And he is married to Kathleen White? 34 A Yes. 35 Q And that was the daughter of James White? 36 A James White. 37 Q And James White was Gyedimgaldo'o? 3 8 A Gyedimgaldo'o. 39 Q And so she would be your aunt by marriage? 40 A By marriage. 41 MR. MACAULAY: There is another Kathleen, but that's your aunt. 42 Is that your mother? 43 THE COURT: I don't see White on this. 44 MR. MACAULAY: White. Oh, my lord, if you put the two pages 45 together. 4 6 THE COURT: All right. Yes. 4 7 MR. MACAULAY: Kathleen White, Gwoimt. 16 MR. GRANT 17 THE COURT 18 MR. GRANT 18245 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 THE COURT: Yes, I'm sorry, you're quite right. I am looking in 2 the other direction. 3 MR. MACAULAY: 4 Q And is Kathleen White, that is Gwoimt, still alive? 5 A Yes. 6 Q She is. 7 A Yes. 8 Q And the other Kathleen in the family, was that your 9 mother? 10 A My mother. 11 Q Kathleen Wale? 12 A Yes. 13 MR. GRANT: Well, that is not in the same family from the 14 genealogy. 15 MR. MACAULAY: Well, I think the genealogy speaks for itself. I just -- I don't understand your objection, Mr. Grant. I thought my friend was suggesting that there was -- 19 THE WITNESS: The two Kathleens. 20 MR. GRANT: They are sisters. They are on the same line. 21 That's what I thought my friend said. I 22 misunderstood -- 23 MR. MACAULAY: I think we all understand what the relationships 24 are. 2 5 THE COURT: Yes. 26 MR. MACAULAY: I put it to the witness that Kathleen White was 27 his aunt by marriage. 2 8 THE COURT: And Kathleen Wale is his mother. 2 9 MR. MACAULAY: That's all I want to do with that, my lord. 30 Perhaps that could be marked as the next tab. 31 THE COURT: I'm sorry? 32 MR. MACAULAY: Or would that be necessary? 33 THE COURT: No, it is already in. 34 MR. MACAULAY: 35 Q Now, were you a member of an organization or a group 36 called the Honourary Chiefs Committee of the Hazelton 37 Band? 38 A Ornery? 39 Q The Honourary Chiefs Committee of the Hazelton Band? 40 A Oh, honourary. I never did hear the committee. 41 MR. MACAULAY: Well, at Gitanmaax, do the honourary chiefs have 42 a committee that is connected with the Band Council? 43 MR. GRANT: Today you are referring to? 4 4 MR. MACAULAY: 45 Q Today? 46 A I don't know about committee, but -- 47 Q In 1976 do you remember belonging to an Honourary 18246 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 Chiefs Committee of the Hazelton Band? 2 A I'm sorry, I don't. 3 Q Now, your predecessor, Djogaslee, Mr. William Wale 4 made a will, didn't he? He had a will? 5 A On what? 6 Q Well, you know, a last will and testament. You've 7 seen those before? 8 A I don't know what kind of will you are talking about. 9 Q I will show the witness, my lord, a form of will. It 10 is eight pages, actually. If the witness could be 11 shown that. Now, on the first page there is a 12 signature which reads W.M. Wale. Do you see that 13 signature? 14 A Yes. 15 Q Do you recognize that? 16 A Yes. 17 Q That's William Wale's signature? 18 A Yes. 19 Q Djogaslee's signature? 20 A Djogaslee. 21 Q And it's a will. Have you ever seen that will before? 22 A No. 23 Q Have you ever heard of the will? 24 A No, I did not. 25 Q Now, you see that the will under item F gives a 26 trapline to Clarence Wale. You see that it says -- I 27 am not asking you to agree. It reads that way, 28 doesn't it? 29 A Yes, it reads that way. 30 Q And there is a five in brackets. If you turn to 31 attachment number five there is a trapline map. 32 MR. GRANT: My lord, with respect, before my friend goes 33 further, this was -- this was -- this witness was 34 cross-examined by Ms. Koenigsberg on August 31, 35 1989 -- '88 on the same subject. In fact, I believe 36 this trapline map was put to the witness and he was 37 questioned on this. I wonder -- I appreciate what 38 your lordship said yesterday, but it can -- if it is 39 appropriate, I think in the case of other witnesses -- 40 although it wasn't argued, I think it was with respect 41 to Ms. Sigurdson that they would endeavour not to 42 cross-examine on things that have already been 43 canvassed. But this witness has already been 44 cross-examined on this trapline and the Wale trapline. 45 It is on page 63 of his cross-examination which is an 46 exhibit. 47 MR. MACAULAY: When I look at page 63 my instructions are that 18247 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. THE MR. MS. THE MR. MR. MR. MR. THE MR. MR. THE MR. THE GRANT COURT GRANT GRANT: THE COURT he was not cross-examined on the will. Not cross-examined by you or your representative, or not cross-examined by Ms. Sigurdson? It is Ms. Koenigsberg that cross-examined on the -- On the will? On the trapline map. KOENIGSBERG: It is as Mr. Grant just agreed. It was on the trapline application. COURT: I don't think I can stop cross-examination if I wanted to, Mr. Grant. The witness has been called and he is at large. He can be cross-examined. MACAULAY: So far as I'm aware, the will was never shown to him, my lord, or referred to. I am not objecting to the cross-examination on the will. My friend is referring to the trapline application map, and that is what I am objecting to. Well, as I said yesterday, there is always a risk when you call a witness. There is always a price to be paid for everything you do in litigation. There are no doors that only swing open in one direction. They swing both ways. MACAULAY: Q You never heard that William Wale gave his trapline to his son Clarence? A No, I didn't. MACAULAY: Could that be marked for identification, my lord. Well, marked to identify the signature? COURT: Yes, it can be marked as an exhibit. GRANT: The will or — MACAULAY: Well, the will includes — COURT: The will refers to sketch 5 and it has a map attached to it. GRANT: I'm sorry, my lord, yes. COURT: Yes, all right. 1079-10. (EXHIBIT 1079-10: Last will and testament of William Wale, Djogaslee) THE COURT: This was your uncle, wasn't it? THE WITNESS: My uncle, yes. MR. MACAULAY: Q And the will is dated February 1, 1973, but you never heard of it? A No. Q Well, didn't you and several other chiefs get together do do something about that bequest in 1976 of the trapline I am talking about? The bequest of the 1824? W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 trapline? 2 A I remember at one time, I don't know what year. But 3 it wasn't on the will or anything but to identify our 4 traplines. 5 Q Yes. 6 A And I remember seeing a map that my name was on it 7 after my uncle died. It was turned over to me in the 8 feast. I spent a lot of money on that. 9 Q Is Clarence -- has Clarence Wale died? 10 A Yes. 11 Q When did he die? 12 A I don't know what year he died. I don't remember. 13 Q Well, didn't you and several other chiefs calling 14 yourselves the Honourary Chiefs Committee of the 15 Hazelton Band -- 16 A I didn't remember that. I don't remember that. 17 Q I will show the witness -- we need another tab, my 18 lord, so here is tab 11. I am showing the witness, my 19 lord, a document entitled Band Council Resolution 20 bearing the date May 5, 1976. You've seen that 21 document before? 22 A I must have seen it because my signature is on there. 23 Q Your signature is on there twice, isn't it? 24 A Yes. 25 Q You signed as councillor and also as a member of the 26 Honourary Chiefs Committee of the Hazelton Band. Does 27 that remind you of the Honourary Chiefs Committee? 2 8 A Yeah. 2 9 Q And what did that committee -- what was it -- 30 A It was just to recognize the high chiefs. 31 Q Yes. When was it started, the Honourary Chiefs 32 Committee? 33 A We never did have a committee. It is just to 34 recognize honourary chiefs. 35 Q You mean there was never any committee? 36 A There wasn't any committee, but there was high chiefs. 37 Q But you signed as a member of the Honourary Chiefs 38 Committee on this document, didn't you? 39 A That's what they put on there, yeah. 40 Q And those are all Gitksan chiefs? 41 A Yes. 42 Q You don't remember being got together to discuss what 43 you were going to do about Djogaslee's trapline? 44 A No. But they all know it is supposed to turn over to 4 5 me. 4 6 Q Yeah. 47 A All the high chiefs know. 18249 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay 1 Q And — 2 A And they know ahead of time who is next in line to 3 take over a chief's name. 4 Q Well, Mr. Walter -- William Wale would have known that 5 too, wouldn't he? 6 A Oh, yes, he knows that. 7 Q But didn't you get together to produce this document 8 because he had left the trapline to Clarence in his 9 will? 10 A No. 11 MR. MACAULAY: Could that be marked the next exhibit? 12 THE COURT: Yes, 1079-11. 13 14 (EXHIBIT 1079-11: Band Council Resolution dated May 15 5, 1976) 16 17 MR. GRANT: I presume that the note on the upper right-hand 18 corner is not part of the document. 19 MR. MACAULAY: It is obviously some sort of departmental note. 20 I don't think it has any significance. I am certainly 21 not going to submit that it has any. 22 THE COURT: I just drew a line through it. 23 MR. MACAULAY: Thank you, my lord. 24 MR. GRANT: Thank you, my lord. 2 5 MR. MACAULAY: 26 Q Do you remember when Ksan was started, that is the 27 museum and the longhouses down by the river? 28 A I don't remember the year, no, I'm sorry. 29 Q There was a formal opening, a big ceremony when it was 30 started, when the museum was opened? 31 A Yes, but I wasn't there. 32 Q You weren't there? 33 A No. 34 Q Did you ever take part in the activities at Ksan? 35 A No, I never did. 36 Q But you've been there? 37 A I go there. 38 Q Yes, you go. And there is carving? They carve poles 39 there? 40 A Yeah, but I don't go to that. 41 Q You don't go to that? 42 A No. 43 Q And there was a carving school that was started many 44 years ago? 45 A Yes. 4 6 Q Do you remember the name Bill Holm? 47 A Bill Holm. 18250 W. Wilson (for Plaintiffs) Cross-exam by Mr. Macaulay Cross-exam by Ms. Sigurdson 1 Q A carving instructor? 2 A No, I don't remember. 3 Q And at Ksan the people there collected ada'awk and 4 traditional information like that? 5 A I forgot what it is called. I know they do collect 6 ada'awk at one time. 7 Q And they collected, or rather they had revived 8 traditional dances? 9 A Yes, some. 10 Q And, in fact, the Ksan Dancers travel around the 11 world, don't they? 12 A Yes. 13 Q But you took no part in that? 14 A No. 15 MR. MACAULAY: Those are my questions of this witness. 16 THE COURT: Thank you. Ms. Sigurdson. 17 18 CROSS-EXAMINATION BY MS. SIGURDSON: 19 Q Mr. Wilson, you've told his lordship of names, owners 20 and locations of fishing sites? 21 A What's that? 22 Q You have told his honour of names, ownership and 23 locations of fishing sites? 24 A Yes. 25 Q And your information from those names, owners and 26 location comes from your knowledge of people fishing 27 at those places? 28 A Yes. 29 Q Others who have seen people fishing at places may have 30 different views of who owns that site? 31 A Some people. 32 MS. SIGURDSON: My lord, I am handing up a small book of 33 documents and perhaps a number could be reserved. 34 THE COURT: Yes. The book will be 1080. 35 THE REGISTRAR: Yes, my lord. 36 37 (EXHIBIT 1080: Booklet of Documents of AGBC) 38 39 MR. GRANT: What number was that? 4 0 THE COURT: 108 0. 41 MS. SIGURDSON: Could the book be placed before the witness? 42 THE REGISTRAR: Yes. 43 THE COURT: I notice it is a book with documents in it, so it 44 will be 1080 and the tabs when these documents come to 45 be marked. 46 MR. GRANT: Yes. Otherwise we will only have the table of 47 contents. 18251 W. Wilson (for Plaintiffs) Cross-exam by Ms. Sigurdson 1 THE COURT: Yes. 2 MS. SIGURDSON: 3 Q Mr. Wilson, could you look at tab 1, please. Now, 4 this is a document entitled Gitksan-Carrier Fish 5 Management Study Interview. The interview date is 6 July 28, 1982. The fisherman is said to be David 7 Green? 8 A Yes. 9 Q Do you know David Green? 10 A Yes. 11 Q He is a Gitksan person? 12 A Yes. 13 Q A chief? Yes? 14 A Yes. 15 Q Under the note, Item 6, it refers to Gwin Haaxxw 16 Hasiyayks, G-W-I-N, space, H-A-S-I-Y-A-Y-K-S, Haaxxw, 17 H-A-A-X-X-W. And as I read that, Mr. Green is 18 suggesting that the House of Haaxxw owns that fishing 19 site. Is that your understanding? 20 MR. GRANT: Well — 21 A Haaxxw? 22 MS. SIGURDSON: 23 Q Yes. 24 THE COURT: Well, first, are you on the site Gwin — 25 A Above suspension bridge, Gwin hahl hat. That is my 26 fishing site. 27 Q That is your fishing site. And where is that located, 28 please? 29 A Just above the Hagwilget Bridge on the Hazelton side. 30 MR. GRANT: Which one is it that you referred to? 31 THE WITNESS: That's around the sand bay we were talking about. 32 THE COURT: You've spelled it differently on your exhibit 33 1080-1. 34 THE WITNESS: It is spelled different on here. 35 THE COURT: You spelled it G-W-I-N, space, H-A-H-L, space, 3 6 H-A-T? 37 THE WITNESS: It is Gwin hahl hat. Spelled right on the first 38 one here. 39 MS. SIGURDSON: Could the witness be shown 358-22, please. 40 MR. GRANT: That is the large map? 41 MS. SIGURDSON: 42 Q The small map. perhaps I could put this copy before 43 the witness. Now, there is a site that is located 44 east of Gitanmaax on the Bulkley, it says here 45 Gwinhaasiiyeeks, G-W-I-N-H-A-A-S-I-I-Y-E-E-K-S. 46 A Yes, Gwinhaasiiyeeks. 47 Q Whose site is that? 18252 W. Wilson (for Plaintiffs) Cross-exam by Ms. Sigurdson 1 A 2 Q 3 4 A 5 Q 6 MR. GRANT 7 8 A 9 THE COURT 10 MR. GRANT 11 12 13 14 15 16 17 THE COURT 18 MR. GRANT 19 20 THE COURT 21 22 23 24 25 26 27 28 MR. GRANT 29 30 31 32 MS. SIGUR 33 34 THE COURT 35 MS. SIGUR 36 Q 37 38 39 A 40 Q 41 42 A 43 Q 44 45 46 47 A I believe it is Wiigoob'l's. Now, I suggest to you that that is the site that Mr. Green is referring to in item 6 of tab one. Gwinhaasiiyeeks. The spelling is almost identical. : My lord, I am checking the notes. As I said, there are many things besides these interviews. It doesn't say site 1. : Just a moment. : Just a moment, Mr. Wilson. How can the witness say what he meant? But my friends do have -- there are exstensive interviews with David Green relating to this which are not in this -- there are transcripts of the interviews in which he talks of these places. But how can this witness know what Mr. Green was referring to, whether it is the same place? : Well, I don't — : I think it is a conclusion my friends may argue that it is approximately the same name. : I think it may become a matter of argument. But counsel are -- I was going to say entitled, but more accurately, expected to give the witness an opportunity to give their evidence on it. If it doesn't go as far as you want, well then it is a classic case for re-examination. It has always been permissible if a witness is asked: What did somebody say in re-examination to say: What else did he say? : That's true. Well, of course, there is no evidence that this witness was present. But the other point is that one thing as to what David Green said, but I believe the question was what did he mean. DSON: Well, I can rephrase that if that's my friend's concern. : Okay. DSON: Mr. Wilson, I suggest to you that the site referred to is Gwinhaasiiyeeks that I have just pointed out to you. Yes. If that is so, do you agree that the site is owned by Haaxxw, H-A-A-X-X-W? I don't know that person, Haaxxw. All right. I will leave that for now then. One of the reasons why people who see who is using a site can not say who owns a site is because people may be using the site with permission? That's right. See when people go in the fishing hole 18253 W. Wilson (for Plaintiffs) Cross-exam by Ms. Sigurdson 1 he has to ask permission from the high chief of the 2 house. And some people maybe go by there or maybe 3 seen some of the different people, a member of the 4 house use it and they put their name on it. 5 Q But they aren't the owners? 6 A They are not the holder. 7 Q Seeing a person fishing at a certain place also 8 doesn't tell you how long that site has been used, 9 does it? 10 A What's that again? 11 Q If you see someone fishing at a fishing place, it 12 doesn't tell you how long a house has claimed that 13 site? 14 A No. 15 Q It could be a recent site or it could be an old site; 16 is that correct? 17 A That's right. But I will answer a little more on 18 that. Some young people now, the way fisheries 19 handling it, they are giving out permits -- 20 Q Well, Mr. Wilson, my question wasn't directed to that. 21 A I want to answer a question why you asked me that one. 22 Q My question wasn't directed to that, and perhaps we 23 need not get into it this time. 24 A Well, I want to explain why there is other people 25 using our fishing holes on account of what fisheries 26 is doing to us. 27 MR. GRANT: Well, let him answer. 2 8 MS. SIGURDSON: 29 Q Well, let me just do this. You gave an answer about 30 fisheries and permits on your cross-examination in 31 Smithers? 32 A Yes. 33 Q Is that what you wanted to say? 34 A Yes. 35 Q That information is before the court. It isn't 36 necessary to do that again. Mr. Wilson, on Exhibit 37 1078-1 you have -- there is an enlargement of an inset 38 called Hagwilget Canyon Sites. You have added new 39 sites and changed the name of some of the sites? 40 A I didn't change the names. I just put them in place. 41 Q All right. Thank you. Does this show all of the 42 sites in Hagwilget Canyon aside from some small sites 43 where people from your house fish? 44 A It doesn't show all the sites, no. 45 Q Oh, I see. So this is just -- 46 A We have more sites than that. If you -- 47 Q Do other houses have more sites as well? 18254 W. Wilson (for Plaintiffs) Cross-exam by Ms. Sigurdson 1 MR. GRANT: Let him just -- he is still answering. 2 A There is more sites in between these. 3 Q Are they all sites of the house of Djogaslee? 4 A No, some are Lax Gibuu, some Frog, some Fireweed. But 5 the high chiefs know their main sites. But those 6 sites branch off. If we put all the names down you 7 won't be able to see a map. It will be all names on 8 it. 9 Q How many sites does Gyedimgaldo'o have in Hagwilget 10 Canyon? 11 A Well, Gyedimgalo'o is Wiigoob'l. They are in 12 together. But Gyedimgalo'o's main site is one across 13 the river from Hazelton. That is on Hagwilget side. 14 MS. SIGURDSON: Okay. Thank you. Could the witness be shown 15 Exhibit 984-E For Identification. My lord, these are 16 the fishing permits that were tendered during the 17 cross-examination of Mr. Morrell. They were marked 18 for identification. Exhibit 984-E For Identification 19 is a fishing licence issued to -- in the name of 20 Walter Wilson. 21 THE REGISTRAR: I have got the wrong book, I'm sorry. 22 MS. SIGURDSON: 23 Q If you have the second of the two volumes I can locate 24 it. I am showing you Exhibit 984-E For 25 Identification. It is an Indian Food Fishing Licence 26 issued to Walter Wilson. Is that your signature? 27 A Yes, that's my signature. 28 MS. SIGURDSON: Can that be an exhibit proper, my lord. 29 THE COURT: Yes. It is in for identification now. 30 MS. SIGURDSON: I ask that that be marked as an exhibit proper. 31 THE COURT: Yes. All right. 32 33 (EXHIBIT 984-E: Fishing Licence 32463 for Walter 34 Wilson) 35 36 MR. GRANT: That is just the one. I can't recall, but I think 37 when you refer to Exhibit 984 it is just the licence 38 that is that number. There is only one license 39 identified with that number. 4 0 MS. SIGURDSON: 41 Q Exhibit 984 is number 32463 and Attorney General of 42 Canada's document 07014. 43 A I think this is the permit I got down in Prince 44 Rupert. 45 Q I think that's right. 46 A To fish in the ocean. 47 Q Yes. 18255 W. Wilson (for Plaintiffs) Cross-exam by Ms. Sigurdson 1 A Not in the Skeena River. 2 Q That's right. Would you turn to tab 4 of the small 3 book of documents that I gave to you. Is that your 4 signature on the fishing license number 177 -- 5 A Yes. 6 Q — 79? 7 A Yes. 8 MS. SIGURDSON: My lord, this is one of the fishing licences, 9 one of many fishing licences included in Exhibit 984-B 10 For Identification at tab 7. 11 THE COURT: All right. 12 MS. SIGURDSON: But I would ask that this be marked within the 13 small document book at this time. 14 THE COURT: What is the other number? 15 MS. SIGURDSON: The first one was Exhibit 984-E For 16 Identification. 17 THE COURT: It is now 1080-4. The other one is no longer for 18 identification. 19 20 (EXHIBIT 1080-4: Fishing Licence 17779) 21 22 MR. GRANT: I am not sure what number it is. 23 THE COURT: I am told it is 984-A. 24 MS. SIGURDSON: 984-B. 25 THE COURT: Okay. 2 6 MS. SIGURDSON: 27 Q Could the witness be shown Exhibit 984-C You were a 28 band councillor at the Gitanmaax Band? 29 A Yes. 30 Q Were you aware that from time to time fishing licences 31 were issued to members of the Gitanmaax Band as band 32 members, Mr. Wilson? Well, let me do it this way. In 33 Exhibit 984-C For Identification at tab 6 is the 34 Attorney General of Canada's document number 5141. It 35 says on the licence that it is an Indian Food Licence 36 in the name of Gitanmaax Band of members to fish, and 37 I quote: 38 39 "In the waters of the Skeena River upstream from 40 the confluence of Legate, L-E-G-A-T-E, Creek and 41 the Skeena River including Kisgagaas." 42 43 Have you seen licences of that sort before? 44 A No, I didn't. What year was this? 45 Q As I read it, it is for the period July 1, 1983 to 46 October 31, 1983. 47 MR. GRANT: It is dated June 30, '83, my lord. 18256 W. Wilson (for Plaintiffs) Cross-exam by Ms. Sigurdson 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 A Q A Q A Q A MS. SIGURDSON quest THE COURT: All well, SIGURDSON: MS. THE COURT: MR. THE MS. THE MS. THE MR. THE MR. THE MR. But I didn't know that Gitanmaax Band issued them. I think the Gitanmaax Band, as I understand it, received it. It was issued by the Department of Fisheries and Oceans. But you didn't see a license like that before? No, I didn't see that. Do you recognize that signature? That Johnny or James. I am informed it is James Morrison. that signature before? No, I didn't. All right. Thank you. Those are all my ions . right. Well, it seems to me that the only do you want to put in tab 1? Yes. Perhaps tabs 2 and 3 can be removed. 1, tab 1 will be 1080-1. But have you seen Wei (EXHIBIT 1080-1: Fish Management Study Interview dated July 28, 1982) GRANT: Well, my lord, I may -- given that my friend is putting in tab 1, I may well wish to make reference -- I would like to deal with tab 2. COURT: Well, I take it that tab 1 is a plaintiff's document, is it? SIGURDSON: Yes. COURT: Produced by the plaintiffs. So it can go in. Tab 2 wasn't touched so it isn't in. Tab 3 wasn't touched so it isn't in. Tab 4 is now 1080-4. SIGURDSON: Yes. COURT: All right. Thank you. When Mr. Grant is finished his re-examination if these two other documents aren't in then I will return the book to you, Ms. Sigurdson, so you can have those tabs two and three deleted. MACAULAY: I don't know if this is the appropriate time to ask about the -- my tab 1 which is a document signed by Mr. William Wale. It is marked for identification only on this basis that Mr. Grant was to consider his position as he put it. COURT: Yes. Are you going to deal with that? GRANT: No, I am not because there is a much more involved fundamentally as to the utilization of such documents by the Attorney General. COURT: Well, as I told you, it is in for identification. It will become an exhibit if I don't hear from you. GRANT: And given our schedule, I don't anticipate dealing 18257 W. Wilson (for Plaintiffs) Re-exam by Mr. Grant 1 2 3 THE COURT 4 MR. GRANT 5 6 THE COURT 7 8 RE-EXAMIN. 9 Q 10 11 12 13 14 A 15 Q 16 A 17 Q 18 A 19 Q 20 A 21 22 Q 23 24 25 26 A 27 Q 28 A 29 Q 30 31 A 32 Q 33 A 34 35 Q 36 A 37 Q 38 39 40 A 41 Q 42 43 A 44 Q 45 46 47 with it this week. But it is an outstanding issue that I have raised. : Yes. : And I have to either deal with it or concede that it go in as an exhibit, and I appreciate that. : Thank you. Re-examination. VTION BY MR. GRANT: Thank you, my lord. Mr. Wilson, you were asked yesterday by Mr. Macaulay if your grandmother had a smokehouse at Pinenut Creek. Do you recall being asked that and whether that smokehouse was still there? Do you remember those questions? Yes. Do you have a smokehouse? Yes. That you use today? Yes. Where is that located? It is right on my land right in Hazelton, right in Gitanmaax. Now, with respect to -- I think the witness already dealt with it. Mr. Macaulay asked you about your role as a construction foreman for housing. Do you remember that this morning? Yes. And you said, yes, that was for D.I.A.? Yes. What -- who were you building for when you were a construction foreman? Well, I work in all of the eight villages. Yes. Through D.I.A. I help supervise and teach some of our people how to build homes. Okay. And that's what I was doing. And were you also in charge of maintenance and renovations for the Indian D.I.A. schools on those eight reserves at that time? Yes. And were you also responsible for any renovations for the D.I.A.'s own Indian affairs office? That's right. Mr. Macaulay referred you to a document that his lordship has seen before, it is the one at tab 8. I can show you mine to save some time. This is the newsletter on February 1983. You don't recall having 1825? W. Wilson (for Plaintiffs) Re-exam by Mr. Grant 1 2 A 3 Q 4 5 6 7 A 8 Q 9 10 A 11 12 Q 13 A 14 15 Q 16 A 17 Q 18 19 20 21 A 22 23 Q 24 25 26 A 27 Q 28 29 30 31 32 33 A 34 Q 35 A 36 Q 37 38 39 A 40 Q 41 A 42 THE COURT 43 MR. GRANT 44 Q 45 46 47 received this? No, I don't recall. Now, did you know that the Tribal Council was engaged in producing newsletter at this period of time, that that's one of the things that Tribal Council staff were doing? Yes. The high chiefs asked for that newsletter. And were you amongst the high chiefs that asked for it to be done? Well, in one meeting I -- I was in one of the meetings when it was brought up. Okay. Not only once, but quite a few meetings that they want to know what is going on. And why did you want -- I mean the members. As one. And why did you, as one of the high chiefs, want them to produce a newsletter? What was your intent in having that being done? What was the purpose of the newsletter? Well, to -- I don't know how you put it, but we wanted to know day by day or what's really going on. Okay. Were you knowledgeable about these fishing sites that you've described before the time of that newsletter? Oh, yes. Now, when Mr. Macaulay this morning had you compare Exhibit 1078, tab 1 to the large map that Hagwilget Canyon map, one of the sites he asked you about -- you don't have to come to the map, but he referred you to down the right bank of the river. Do you remember that this morning? Yes. And he asked you about Gubokx, G-U-B-O-K-X. Yes. And the next site Saxwhl lo'op, And when you referred to Saxwhl S-A-X-W-H-L, L-O-O-P. lo'op, you said that is Gubokx. That is Gubokx. I'm sorry, Gubokx. Ma'am Reporter, do you need the spelling? Gubokx is G-U-B-O-K-X and Saxwhl lo'op is S-A-X-W-H-L one word, L-O, apostrophe O-P, second word. My question to you is this, as well as being the name of a fishing site, is Gubokx the name of a person? 18259 W. Wilson (for Plaintiffs) Re-exam 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 A Q A Q A Q A Q No. Gubokx is the name of a site. Okay. But the person that used it before is Guwo'ok. Guwo'ok. That comes from Gutgwinuxw's house and Woosimlaxha. Guwo'ok is G-U-W-O, apostrophe, O-K. Gutgwinuxw and Woosimlaxha are W-O-O-S-I-M-L-A-X-H-A, G-U-T-G-W-I-N-U-X-W. And do you know — did that person Guwo'ok have an English name that you knew, do you recall it? Peter -- Peter John is his name. I would like to refer you to what Ms. Sigurdson tendered Exhibit 1080. And she referred you -- just one moment. Ms. Sigurdson asked you that seeing a person fishing at a place does not necessarily show who owns the place. Do you recall her asking you that this morning? Do you base your knowledge of who owns the sites on who you see fishing there? MS THE COURT MR. GRANT THE COURT SIGURDSON: The evidence was given on direct, my lord. I obj ect. Well, it was a very leading question, Mr. Grant. And this was -- that is one of the things the witness said in chief. I won't pursue it further. Those are all my questions on re-examination. All right. Ms. Sigurdson, I will give your book back and you can extract the unnecessary pages. All right. Thank you, Mr. Wilson, you are excused. (WITNESS EXCUSED) THE COURT: I don't suppose you want to start anything else this morning, do you? MR. GRANT: No matter how optimistic I am, I have never considered that our argument could be dealt with in three minutes in this case, my lord. MR. MACAULAY: How about the amendment of the Statement of Claim. It could be done in three minutes if we can see them. I presumed that my friends would not agree to a consent order until they have had the chance to review it, otherwise I would ask for the order now. Shall we resume at 2 o'clock then? Yes, and because of the amendment of the Statement of Claim. This afternoon what we had anticipated dealing with was the issue of the Galois report and MR. GRANT: THE COURT MR. GRANT 18260 W. Wilson (for Plaintiffs) Re-exam 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 historical documents issue that is outstanding. I am arranging for the finalization of those amendments. I don't know, they may have even been faxed to my friends' offices by now, I don't know. THE COURT: Are counsel for the defendants ready to deal with those questions? MR. MACAULAY: Well, how can we be ready to deal with something we haven't seen? THE COURT: Well, I thought Mr. — MR. MACAULAY: I am talking about the amendments now. THE COURT: No. Mr. Grant is talking about argument on admissibility. MR. GRANT: The historical -- these are what I had advised on Tuesday we would schedule for Thursday and Friday. These two motions, as well as the amendments. So what I propose is that we deal with these two motions which are -- I shouldn't say motions, they are dealing with these two issues. And if that's -- and tomorrow probably first thing in the afternoon deal with the amendments if they are in issue. THE COURT: You think the argument will go until then? MR. GRANT: Well, I think that it may. THE COURT: All right. MR. GRANT: But what I am concerned about is even if it didn't, my lord, is that of course my friends, they would want to consider the amendments and look at them. If there is no difficulties then, of course, we can deal with them in the morning. But if they are concerned about them, then they may want some time. THE COURT: Are counsel ready to proceed with an argument this afternoon? MS. KOENIGSBERG: Assuming that our guess at what it is we are going to be dealing with is correct, and I say that without being too facetious, I am really not certain what we are dealing with. We don't have a list that was promised. But we will come here ready. And if we happen to hit the target, we will be ready for it. MR. GRANT: It is the Galois report and the historical documents. It is the utilization -- THE COURT: Counsel will have to hear your submissions, in any event, so we will adjourn to 2 o'clock. 18261 W. Wilson (for Plaintiffs) Re-exam by Mr. Grant 1 THE REGISTRAR: Order in court. Court stands adjourned until 2 2 o'clock. 3 (PROCEEDINGS ADJOURNED PURSUANT TO LUNCHEON ADJOURNMENT) 4 5 6 7 8 I hereby certify the foregoing to 9 be a true and accurate transcript 10 of the proceedings herein to the 11 best of my skill and ability. 12 13 14 15 LISA FRANKO, OFFICIAL REPORTER 16 UNITED REPORTING SERVICE LTD. 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 18262 Discussion Re-exam 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. THE MR. THE MR. THE MS. (PROCEEDINGS RESUMED AT 2:00 p.m.) REGISTRAR: Order in court. COURT: Mr. Grant. GRANT: Yes, my lord. Before my colleagues proceed with the argument that I introduced you to this morning, I think it is important that there be some clarification. On a review of the evidence, it is the plaintiff's position that all of the expert reports, that is, the written reports have been entered as exhibits except for the report of Dr. Galois which is one of the issues that's outstanding today. After the court recessed at noon, my learned friend, Ms. Koenigsberg, said that it was her understanding that 12 expert reports are not in evidence as I think those were her words. That is not our position and I think it is -- it's very important that she at least set out the basis, what her position is and why, and Mr. Willms didn't comment at that particular point in time, at least not in my hearing. So before we proceed -- Miss Mandell proceeds -- COURT: Is that the question or is the question for what purpose are they in? GRANT: Well, I assume -- I understood they were in. What -- as you recall what happened is that with many of the experts that I have lead and other plaintiff's counsel, at the beginning there was an objection made and then the person was qualified, you made a ruling limiting or broadening the qualification, and then the person went through their evidence and at the end of the day the report was entered as an exhibit. The objection was made at the beginning before and I think it is as you, your lordship, quite clearly directed that we should not mark the report as an exhibit until you had heard the evidence. At that point in time, except for Dr. Galois, every report was marked as an exhibit of the written reports. Now, of course, Dr. Lane and Dr. Ray did not file or Dr. Morrison did not -- Mr. Morrison did not file written reports as I recall. COURT: No. GRANT: So I would ask my friend to clarify her position on that and I don't know what the provincial Crown's position is on that. COURT: All right. Are you able to assist, Ms. Koenigsberg? KOENIGSBERG: Well, I don't think I can actually assist my friend to the extent he wishes to be assisted as I 18263 Discussion Re-exam by Mr. Grant 1 didn't know I was going to be invited to make such a 2 submission; however, we have reviewed the transcripts 3 for the experts just to determine what was in and what 4 wasn't, and I can't tell my friend how many but it is 5 my understanding that it is more than Dr. Galois, and 6 it is simply a matter of looking at the transcripts 7 and determining what's in and what's out and I don't 8 really think, I am not certainly prepared to make a 9 submission, it is a question of looking at the 10 transcripts and it is not a question between my friend 11 and myself as to the interpretation of those 12 transcripts. I am quite happy at some point, if my 13 friend requires it, to write him a letter and tell him 14 how I read transcripts but I don't think that's going 15 to assist. 16 I had understood from remarks made on Tuesday of 17 this week that in fact my friend was going to deal 18 with at least four. I think there was a listing made, 19 I think I have my note, but I know it was Galois, Ray, 20 Lane, and Morrison or something like that. Now I 21 don't say that those -- in fact Lane and Morrison, no 22 reports were put in, but -- 23 THE COURT: Well, I have a note, Morrison, Galois, Ray, and 24 Lane. 25 MS. KOENIGSBERG: And so I had never understood that we were 26 only going to be dealing with Galois or that my friend 27 thought that all reports were marked and accepted as 28 exhibits. It is certainly my understanding that more 29 than one, other than Galois, went in subject to the 30 objections and the objections went to the 31 admissibility and your lordship made such comments as 32 that you really couldn't deal with it until you heard 33 it all and then arguments were not advanced after that 34 point. I think Miss Albright was an example that 35 springs to mind but I think that's the best I can do. 36 MR. GRANT: Well — 37 MR. WILLMS: My lord, the objections that I thought we were 38 going to deal with today, if I can put it this way, 39 what my friend's submissions I thought were going to 40 be was something about the historical documents which 41 underlay the evidence of Dr. Lane, Dr. Ray, Mr. Brody, 42 Mr. Morrison, and Dr. Galois. If I can call those 43 five witnesses historical witnesses, I thought that we 44 were going to hear a submission on the documents that 45 were referred to in their evidence, and then such of 46 them as have filed reports we would hear an argument 47 about what the effect of the underlying documents 18264 Discussion Re-exam by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. GRANT THE COURT MR. GRANT THE COURT MR. GRANT would be on the report. The other category which I am also prepared to deal with and my friend, Ms. Koenigsberg, pointed out that there were objections to other witnesses, you may recall that with respect to Dr. Daly, Dr. Mills, Dr. -- Miss Albright, that there were objections made to the treatises that were relied on and each of these experts and the number of the other, if I can call them scientific or in the scientific area experts, each of those experts' reports were marked subject to an objection as to the treatises that formed the foundation of all or part of their opinions. And we are prepared to deal with the treatises as well as another underlying foundation for an opinion and revisit, at least in part, the objections that were taken and have never been argued, and your lordship and my friends have made comments from time to time, especially in respect of the historical fact witnesses, they have made comments, starting with Dr. Ray, continuing through each historical fact witness all the way up to Dr. Galois about their upcoming argument on documents. So I am -- I don't understand how it's just limited to Dr. Galois. I realize that Mr. Grant wasn't here for every witness and perhaps he missed that, but in respect of each witness, historical fact witness from Dr. Ray on, there is not only a comment by your lordship that we will hear about the documents later but in fact Mr. Adams said we'd hear about documents later, Mr. Grant -- not Mr. Grant, Mr. Rush said we would, Mr. Jackson said we would, Mr. Adams said we would, and that is what we expected to hear today. : My lord, my friend won't be displeased because he will hear about that today. The point is, is that this is typical. On page 13485, after Dr. Ray gave two days of evidence, Mr. Adams stated at line 16 at page 13 -- : What was the date? : The date of that -- it is on page 13485, I will get you the date in a moment, my lord. : This is Dr. Ray. : Dr. Ray. At the conclusion of the direct evidence and before cross-examination, this was on March 21, 1989, volume 203, page 13485, Mr. Adams says before cross, referring to what I guess Mr. Willms is saying is a treatise and what is the opinion report, Mr. Adams said: 18265 Discussion Re-exam by Mr. Grant 1 2 "Q I just wanted to ask you whether that report 3 represents, with the corrections and 4 amplifications that have been given in evidence 5 in the last two days, whether that represents 6 your opinion? 7 A Yes, it does. 8 Q And you adopt that opinion? 9 A Yes, and I still stand by it." 10 MR. ADAMS: My lord, I would ask that that be 11 marked as Exhibit 960 proper. 12 THE COURT: Yes. All right." 13 14 There is no objection taken at that point after 15 the two days of evidence to the admissibility of that 16 opinion. I appreciate what your lordship is saying, 17 that there may be something that my friends may argue 18 in the content of that opinion depending on the 19 documents argued on other matters, but that opinion 20 report is an exhibit proper, it is not an exhibit for 21 identification or anything else, and that's a 22 situation with respect to every opinion report that 23 has been tendered by the plaintiffs, except Dr. 24 Galois'. I do agree, and I believe that in the course 25 of argument, that my colleagues are going to deal 26 with -- the first matter will be the documents and 27 will be historical documents but I just -- I do not 2 8 want my friends to be mistaken for a moment that we 29 take the position that these other opinion reports are 30 not exhibits proper because -- 31 THE COURT: Other than Dr. Daly, I have it on February 20 — 32 incidentally I have the same as you have for Dr. Ray, 33 that there was objection to his evidence, three 34 volumes or sets of documents, 270 Hudson's Bay 35 documents and one miscellaneous, grab bag it was 36 described, were produced. I have volume 3 being 37 marked Exhibit 959, and I have his report being marked 38 as Exhibit 960 but, on Dr. Daly, I find that his 39 report was tendered on February 20 and it was -- 40 number 884 was reserved for it and then later on the 41 next day -- no. 42 MS. KOENIGSBERG: February 27, my lord, you made — 43 THE COURT: February 27, yes, is the — I am sorry, I don't see 44 his report being admitted. 45 MS. KOENIGSBERG: I believe it is at page 12397, if we are 46 referring to the right one, of volume 190, your 47 lordship says: 18266 Discussion Re-exam by Mr. Grant 1 2 "I think there is much merit in the submission Mr. 3 Willms has made and I think I would accede to it 4 in ordinary litigation." 5 6 Then you say: 7 8 "I think that the only thing that I can do in this 9 case is to admit the report into evidence, but 10 with this caveat: That I think it is possible 11 that after cross-examination I will have a higher 12 view of the weight to be given to the evidence or 13 I may end up having the view that the evidence or 14 some of it has no weight at all." 15 16 And then on down to the end of the paragraph you say: 17 18 "...1 propose to have the report marked as an 19 exhibit. 20 If it turns out on careful review after 21 listening to the cross-examination and considering 22 all the evidence that I have heard and have yet to 23 hear, I reach the conclusion that it cannot be 24 given any weight, then such will be the case. But 25 I do not see anything being resolved in this 26 problem and I think for that reason we should 27 proceed as I have indicated. The report and the 28 other documents will be marked as exhibits for the 29 purposes which may be mixed, that had been 30 described..." 31 32 Throughout many days, I might say, of discussion. 33 MR. WILLMS: My lord, while we are on Dr. Ray, my friend read 34 you the end of Dr. Ray but not the beginning where 35 your lordship heard my objection on volume 202 to 36 hearing any evidence from Dr. Ray and at page 13332 37 your lordship said: 38 39 "I don't think I need to hear you, Mr. Adams, at 40 this time. I think I should hear the evidence. 41 It does seem to me that -- that if the historical 42 material gleened from the records of the Hudson's 43 Bay Company are admissible at all, I suspect they 44 are, that there may be other factors known to the 45 historian but not known to me which will affect 46 the construction to be placed on the documents. 47 For that reason it seems to me that I must hear 18267 Discussion Re-exam by Mr. Grant 1 the evidence and then decide whether I am in as 2 good a position as the historian to reach a 3 conclusion on what the documents mean, and if I 4 decide that I am, then some parts of the evidence 5 of the witness may become inadmissible. If I find 6 otherwise, as I suspect will be the case on some 7 occasions, then it seems to me that the evidence 8 will be admissible. I'm not sure if Chief Justice 9 Dickson mentioned history in his dictum in Kruger 10 and Manuel, and I don't think it matters." 11 12 Now, my lord, all of the evidence to my 13 recollection when it went in was either prefaced by me 14 on a cautionary note saying I hope I don't have to 15 stand up and object seriatim or repeat my objection 16 seriatim, or your lordship qualifying the admission of 17 the evidence subject to a later argument. And Dr. Ray 18 has been mentioned in the context of other witnesses 19 because he is a historical opinion witness, and in my 20 submission it is still -- the matter is still open. 21 THE COURT: All right. Well, that is my general understanding, 22 Mr. Grant, that these reports have been received, 23 except Mr. Morrell's, and I don't remember what 24 happened to Dr. Galois. We seem to have done 25 something differently there. 26 MR. GRANT: It is a report for identification which is -- that's 27 why we were focusing on that particular report. 28 THE COURT: I think they have all been marked, subject to 29 objections, which can't really be resolved until we 30 know what is the effect of these historical documents. 31 If these historical documents are all found to be 32 admissible, the reports wouldn't matter, if they are 33 exhibits or not or they might not. I wouldn't want to 34 be that dogmatic. 35 MR. GRANT: There is that but of course what concerned me is 36 that my friends, by raising Daly and -- 37 THE COURT: I raised Daly. I just picked it at random. 38 MR. GRANT: Yes, but my friends raised -- there is two 39 reports -- two written reports of historians here but 40 I am just saying that we take the position that they 41 have been marked as exhibits and of course there can 42 still be argument as to whether parts of them the 43 court should disregard or not. But that all goes to 44 weight and that's what, thanks to my friend, Mr. 45 Willms, referring to 13332, seems clear which is what 46 you directed and that's our understanding. Those are 47 all in as exhibits and we don't have to argue about 1826? Submission by Ms. Mandell Re-exam by Mr. Grant 1 them as exhibits now when we deal with what you may -- 2 the other side may say there is weight problems, but 3 that's where we stand, except for the Galois report. 4 But I will leave it now and I believe that Miss 5 Mandell will deal with the issue of the treatment of 6 ancient documents. 7 THE COURT: All right, thank you. Does that describe your 8 submission, Miss Mandell, treatment of ancient 9 documents? 10 MS. MANDELL: Oh, I think it will start. 11 My lord, there is a number of outstanding issues 12 with respect to documents but I don't believe that all 13 can be dealt with in the next day. Some of the 14 documents have been admitted for I.D. and these are 15 still being considered by the plaintiffs as to which 16 one, if any of those documents, further arguments will 17 be addressed with respect to making them exhibits 18 proper and I think that quite a number of the 19 documents which are the underlying documents for the 20 historical opinions, if I can use that word 21 generically, if there is a ruling with respect to that 22 I am sure that my friends and I and the court can 23 agree on which documents may fall within that ruling 24 and have a better idea of what documents if any remain 25 by way of argument. 26 So with that in mind, I'd like to focus the 27 discussion now just with respect to the issue of 28 ancient documents and the rules which we are going to 29 be urging upon your lordship with respect to both 30 admissibility and also issues involving their weight. 31 And if I can start by submitting our main proposition 32 with respect to ancient documents. 33 It's the plaintiff's submission that, before a 34 court can find facts as true based solely on ancient 35 documents, the court must weigh evidence if available 36 on the issue of the circumstantial guarantee of 37 trustworthiness relative to that document or to the 38 facts which will be found. And it is going to be to 39 that proposition that this argument will be addressed. 40 If I could ask your lordship to turn to the volume 41 of authorities. I am going to just go over some 42 basics on ancient documents and then we will move into 43 the more argumentative points. At tab 1, Phipson On 44 Evidence describes at page 730 what is an ancient 45 document and at paragraph 1760: 46 47 "Private documents 20 years old, produced from 18269 Submission by Ms. Mandell Re-exam by Mr. Grant 1 proper custody, and otherwise free from suspicion, 2 prove themselves, and no evidence of the 3 handwriting, signature, sealing or delivery need, 4 in general, be given." 5 6 I might here advise that the British ancient documents 7 is 20 years by statute where the Common Law is 30 8 years and I believe in Canada we are bound by the 9 Common Law as there is no statute which changes that. 10 And then at the following page 1762, the Principle: 11 12 "The rule, established for the sake of general 13 convenience, is founded on the great difficulty 14 and often impossibility of proving handwriting 15 after a long lapse of time, and on the presumption 16 that the attesting witnesses, if any, are dead - a 17 presumption which is not allowed to be rebutted by 18 proof that such witnesses are alive and actually 19 in court." 20 21 And then under the Scope of Rule: 22 23 "The rule applies not only to wills and deeds 24 requiring attestation, but to accounts, letters, 25 entries, receipts and settlement certificates, as 26 well as, it has been thought, to all other 27 documents, public or private." 28 29 It is a pretty broad scope. And finally with respect 30 to proper custody: 31 32 "The proper custody of a document means its deposit 33 with a person and in a place where, if authentic, 34 it might naturally and reasonably be expected to 35 be found. Such a custody is sufficient, although 36 there might be another which would be more 37 strictly and absolutely proper." 38 39 Now, if I could summarize the existing debate with 40 respect to ancient documents, it appears that there is 41 no debate with respect to the document's authenticity. 42 If it can pass through the 30 year rule and came from 43 place of safekeeping, then it is authentic in that 44 sense and although I didn't put it in my authorities, 45 your honour might take notice of the Document Disposal 4 6 Act which I could hand up to you which deals with the 47 documents moving into the public archives and Section 18270 Submission by Ms. Mandell Re-exam by Mr. Grant 1 5 of that act provides that: 2 3 "...a copy or photographic reproduction of any 4 document in the archives certified under the hand 5 of the provincial archivist to be a true copy 6 shall be evidence of the authenticity and 7 correctness of the copy or reproduction without 8 proof of the appointment or signature of the 9 public archivist." 10 11 And I think the issue of the authenticity without 12 further proof is not really before this court as an 13 issue or generally -- 14 THE COURT: Is that so? I don't know that. What about the Dr. 15 Ray's documents, for example? I was told these came 16 from the Hudson's Bay records but are counsel agreed 17 that that's enough? 18 MS. MANDELL: Well, I understand that they be encompassed within 19 this rule and I also understand that there was, 20 between counsel, an agreement and perhaps Mr. Goldie 21 could advise, if it is not my understanding, the 22 question of authenticity is not the issue. 23 THE COURT: Of any documents? 24 MS. MANDELL: Not the archival documents. 25 MR. GOLDIE: That's correct. 26 MS. KOENIGSBERG: That's correct. 27 MR. GOLDIE: The statement by counsel that the document 28 originated from the archival source was to be taken as 29 sufficient for the purposes of admissibility or 30 authenticity. 31 THE COURT: Authenticity. 32 MR. GOLDIE: Yes, and, as such, admissible, but that leaves for 33 argument, which I understand is going to be addressed 34 today, the purpose and weight to be given. 35 THE COURT: Yes, all right. There is a lot of documents that 36 have come into evidence without formal or strict proof 37 that are not archival. Miss Mandell, I think, is 38 saying that if they are 30 years old, then in any way 39 my question is, is that so universally or is that 40 proof as to some sort of the document. 41 MR. GOLDIE: We had agreed upon a very broad definition use of 42 the word archival. 43 THE COURT: Am I safe in proceeding on the basis that I don't 44 have a problem in this regard with respect to any of 45 the documents unless they have been specifically 46 identified in that connection? 47 MR. GOLDIE: I think, my lord, that any document which is over 18271 Submission by Ms. Mandell Re-exam by Mr. Grant 1 30 years of age has been treated as coming from what 2 counsel agreed upon was an archival source, but that's 3 a very broad generalization and I have to go back and 4 have a look at the exchange of correspondence. 5 THE COURT: Why did we have all that trouble with all these 6 fishing permits, whether people could recognize 7 signatures and things like that? 8 MR. GOLDIE: I don't think they are 30 years old. 9 THE COURT: Perhaps not. 10 MR. GOLDIE: The trapline permits fall into both sides of that 11 date. 12 THE COURT: All right, thank you. 13 MS. MANDELL: My lord, I'd like the opportunity — I wasn't a 14 party to the correspondence which dealt with the 15 question of authenticity. I assume, at least I have 16 for the purposes of this argument, that if there is an 17 issue with respect to authenticity of any of the older 18 documents that that would be separately raised and 19 addressed but that this motion encompasses those 20 documents as if they are authentic. 21 THE COURT: Yes, all right. 22 MS. MANDELL: The debate which has evidenced itself in the 23 literature and through the courts though is, even 24 though the documents may be authentic, can any of the 25 recitals that are found in the documents prove the 26 truth of any facts therein. Now, if I could turn your 27 lordship to tab 2, I'd like to expose you to the range 28 of the debate. I am dealing from textbooks and this 29 is from Ewart's Documentary Evidence in Canada and at 30 page 12, he starts with the proposition under the rule 31 that: 32 33 "All documents, if offered in evidence as proof of 34 the truth of their contents, are hearsay." 35 36 Fairly straightforward proposition. And if I could 37 ask you to turn to page 13 and 14 under common law 38 power to create exceptions to the rule, the first 39 paragraph deals with the rule in Canada that basically 40 courts are free to develop new exceptions to the 41 hearsay rule and at the bottom of the page: 42 43 "The discretion thus given to Canadian courts is 44 not entirely unstructured. As Wigmore so 45 carefully shows, most of the exceptions to the 46 hearsay rule which have been created over several 47 centuries can be bound to have been constructed on 18272 Submission by Ms. Mandell Re-exam by Mr. Grant 1 two fundamental principles: necessity, and a 2 circumstantial guarantee of trustworthiness." 3 4 Now, if we could turn to Wigmore which is at tab 5 3. There is two pages. I am taking your lordship to 6 the second page of the tab which is at 744, and at the 7 top, this is all to do with the discussion of ancient 8 documents. 9 10 "Contents of document not necessarily admissible. 11 The present principle deals only with the 12 authentication of the document. Whether the 13 contents are material, or whether any statements 14 of assertion contained in them are admissible for 15 any purpose, should depend on different 16 principles. Such statements may or may not be 17 admissible under some exception to the hearsay 18 rule, and their admissibility must of course 19 depend upon the appropriate principle." 20 21 Now, this question as to whether or not there is 22 any already established exception to the hearsay rule 23 with respect to ancient documents is really what we 24 are now talking about. Wigmore on one side of it 25 suggests that all of the rules with respect to 30 26 years and so on go only to the question of 27 authenticity and the question of hearsay is still at 28 large. 29 If you could turn to tab 4, Sopinka deals with it 30 in a slightly different way and I am reading at page 31 105. This is under the paragraph (e): 32 33 "Ancient documents such as deeds or leases which 34 affect an interest in property, have been admitted 35 by the courts as evidence of possession of the 36 realty. Most authors do not treat the 37 admissibility of such evidence as an exception to 38 the Hearsay Rule. They are inclined to treat such 39 evidence as presumptive evidence of possession and 40 thus as original evidence in its own right. Other 41 authors, however, feel that the documents are 42 tendered not only to establish the inference of 43 possession from the mere existence of the 44 document, but are submitted as proof of the truth 45 of the statements contained therein, and can only 46 be accepted as an exception to the Hearsay Rule." 47 18273 Submission by Ms. Mandell Re-exam by Mr. Grant 1 And Mr. Sopinka prefers the latter view, he prefers 2 the idea of seeing this as an exception to the hearsay 3 rule, and he says this is persuasive, and he goes on 4 to cite an American author, the article which is being 5 cited here is found at tab 6 but I will read the quote 6 here: 7 8 "The recognition of the ancient document rule as a 9 new exception to the hearsay rule is clearly 10 desirable." 11 12 This is the stage that people are now talking as to 13 whether or not it is desirable to create an exception. 14 15 "To say the litigants that the burden of proving 16 the authenticity of their documentary evidence 17 will be lightened, because of the unavailability 18 of witnesses, where the document is 'ancient', and 19 then to refuse to permit the use of the recitals 20 to prove the facts therein stated is, in most 21 cases, a hollow mockery. The evidence to prove 22 the facts recited in an ancient document is 23 usually as unobtainable as the evidence to prove 24 the document is what it purports to be. In 25 addition, it would seem that none of the 26 safeguards which impart reliability to the other 27 exception to the hearsay rule is lacking in this 28 one. The declarations are usually ante litem 2 9 motam; the document must come from such custody as 30 does not generate suspicion of its genuiness; 31 there is usually apparent no motive in the 32 declarant to fabricate; and, in addition, the 33 courts have shown a strong tendancy to require 34 corroborative evidence. Other protections could 35 supplement those already existing." 36 37 And here I might say that this business about 38 suggesting other protections to supplement those which 39 may already exist is a pretty common theme which moves 40 through those that are writing about whether a new 41 exception to the hearsay rule ought to be developed. 42 And at tab 5, there is therein set out another of 43 the American writers who have addressed this question, 44 and there there is a way of dealing with the point 45 raised about there being some standard or something in 46 addition which a court could do in order to supplement 47 already existing protections. And if I could briefly 18274 Submission by Ms. Mandell Re-exam by Mr. Grant 1 take you through the writer's sense of things, this is 2 a Mr. Wickes, W-i-c-k-e-s, and I won't take you 3 through the article in its totality, but the first 4 page sets out the debate that we are into now and that 5 is once the document -- the ancient document is 6 admitted, can it be admitted for the proof of anything 7 or is it simply there as an authentic document from 8 which inferences may be drawn. 9 THE COURT: What do you understand the authors to mean when they 10 refer to recitals? 11 MS. MANDELL: Facts. 12 THE COURT: They mean the facts that are stated. 13 MS. MANDELL: The chiefs came down to Smithers on September 23, 14 1923. I'd say that's a pretty basic one, but I am 15 sure there is more controversial ones. At page 465 -- 16 I think that the discussion so far, before we get to 17 465, really identifies the debate and how far without 18 question the ancient document rule has taken us and he 19 now is -- and I am reading from the first paragraph: 20 21 "Turning now to the second element which, according 22 to Professor Wigmore's analysis, characterizes 23 the exceptions to the hearsay rule, i.e., the 24 circumstantial guarantee of trustworthiness, it 25 will be profitable to examine a few of the 26 exceptions in order to ascertain just how much, 27 and what kind, of a guarantee of trustworthiness 28 the courts actually require." 29 30 And I will recommend to your lordship to read this 31 whole section but I do ask you, just for the sake of 32 now brevity, to turn to page 466, and he here reviews 33 what he thinks the courts have thus far come to in 34 dealing with already existing exceptions to the 35 hearsay rule on the question of guarantee of 36 trustworthiness and, at the last four lines of the 37 first paragraph, he says: 38 39 "About all that can be said in behalf of these 40 exceptions is that there is a necessity for such 41 evidence and that these declarations are usually 42 made upon the personal knowledge of the declarant 43 and without any apparent motive on his part to 44 falsify." 45 46 And at page 468, the writer suggests that there should 47 be some tests then made before ancient documents may 18275 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 Submission by Ms. Mandell Re-exam by Mr. Grant be admitted for the proof of the truth of it and they are as follows, and I am reading at the bottom of the page: "The recital must be in writing." THE COURT: MS. MANDELL Just a moment. Oh, yes. Thank you. "The document must be at least 30 years of age; it must come from a proper custody; it must be free from suspicion in appearance; as a corollary to the age of the document, the recital must have been made before the controversy arose; the recital must have been made on the personal knowledge of the person making it." And then he says: "The last requirement has not been uniformly insisted upon by the courts." This is his own suggestion of the requirement. And then if I could ask you to turn to page 472, he is now here discussing some of the indicia of reliability which should attach and he is arguing for would attach if this test were applied, and the only additional one to the ones that we haven't already identified is found at page 472 at the top of the page. He says: "A further indicium of reliability, attaching to every recital in an ancient document by virtue of its age, is to be found in the fact that the recital was made long before suit was brought and before the controversy arose." THE COURT: And when do you think this controversy arose? MS. MANDELL: This is a particularly interesting point about this discussion because I think -- and we will be arguing this in more detail, but the general kinds of cautions which he is making would apply to litigation where the lists of it is clearly not 30 years old but in this case many of the actors who are part of the documentary record are very much involved in making statements of interest with respect to the controversy which, in our submission, was as alive 80 or 90 or a hundred years ago in this province as it is today. And so there is a special issue which this case has 18276 Submission by Ms. Mandell Re-exam by Mr. Grant 1 with respect to that particular indicia of reliability 2 and that will be one of the places that we will be 3 arguing to your lordship that there has to be, in 4 addition, some -- to the normal problems of accepting 5 hearsay and ancient documents some special attention 6 paid to making sure that the guarantee of 7 trustworthiness of the document and of the facts in it 8 are addressed in more specific terms. 9 If I could turn your lordship now to tab 6. This 10 is the author, it is hard to tell who the author is. 11 I take it from the initials at the back of the 12 document, A.W., that this would be Arnold Winokur, 13 who's part of the board of directors of this -- board 14 of editors of this law review but I may be wrong. 15 This is the article that was quoted in Sopinka, and 16 the only point, in addition to that which was already 17 made which I wish to draw to your lordship's 18 attention, is beginning at the bottom of page 252. 19 This is talking about judicial examination of -- I 20 will just read the sentence: 21 22 "It is true that this judicial examination is not 23 manifested in such strictures as, for example, 24 surround the submission of dying declarations or 25 business entries, but the number of cases in which 26 the courts recite and appraise other evidence in 27 the case tending to prove what the recitals in the 28 ancient documents assert, suggests that an ancient 2 9 document might not be admitted to prove the facts 30 asserted therein without corroborative evidence or 31 that it would be admitted only under careful 32 instructions to the jury as to its probative 33 value. This is probably a wise precaution." 34 35 And then at the bottom of page 253, the second -- the 36 first full paragraph from the bottom of the page: 37 38 "In no case has the court's determination of the 39 admissibility of ancient document recitals been 40 controlled by the factor of age alone. This is as 41 it should be. Men..." 42 4 3 not women... 44 45 "...were as great liars thirty and more years ago 46 as they are today and the lapse of time without 47 more can add nothing to the veracity of their 18277 Submission by Ms. Mandell Re-exam by Mr. Grant 1 statements. Moreover, an appearance of age is 2 easily simulated and it would seem, therefore, 3 that of all the factors offering guarantees of the 4 reliability of recitals in ancient documents, the 5 age of the document is of the least weight." 6 7 And then he goes on to cite the paragraph that we 8 have already had referred to us by Mr. Sopinka. And I 9 again repeat the last sentence of the first full 10 paragraph on page 241 where he, in this tab, says -- I 11 am sorry, 254, the last sentence of the quote which I 12 have already -- I have emphasized. 13 THE COURT: Which tab was that? 14 MS. MANDELL: Still tab 6. 15 THE COURT: I am sorry, you are not referring me back to Sopinka 16 now? 17 MS. MANDELL: No. Well, it is the same passage. 18 THE COURT: Where is that passage? 19 MS. MANDELL: It begins, "The recognition of the ancient 20 document rule..." right after the paragraph which I 21 have just read to you at the bottom of page 253. 22 That's the reference that Mr. Sopinka makes. And then 23 I only wanted to emphasize the fact other protections 24 could supplement those already existing. 25 Now, before I leave the articles I would like to 26 turn you back to tab 5 and turn you to page 453 of 27 that, and I believe that this is a proper statement of 28 the law as he says it here and it is only this -- this 29 one sentence at page 453, the last paragraph: 30 31 "Writers on the Law of Evidence generally have not 32 recognized a hearsay exception in favour of 33 recitals in ancient documents as such." 34 35 And I believe that that is the case in Canada. 36 THE COURT: Well, doesn't that contradict everything else you 37 have been saying? 38 MS. MANDELL: No. 39 THE COURT: I thought the burden of what you have been reading 40 to me was that if you meet the requirements, the twin 41 requirements of necessity and reasonable guarantee of 42 trustworthiness, then it will be admitted, and this 43 seems to suggest that writers have not recognized, it 44 says generally have not recognized the hearsay 45 suggestion of recitals. How do the two stand 46 together? 47 MS. MANDELL: I believe that necessity and the reasonable 1827? Submission by Ms. Mandell Re-exam by Mr. Grant 1 guarantee of trustworthiness are the bench-marks which 2 the court has to address if it is to create any 3 exception to a hearsay situation. 4 THE COURT: You are saying there is no general recognition in 5 the absence of those two requirements being satisfied. 6 MS. MANDELL: I am saying with respect to ancient documents, no 7 court has yet said that for ancient documents, given 8 the analysis of an ancient document and what it is and 9 what it can go in for, that those two requirements 10 have been met and, if they have been met, under what 11 circumstances will they have been met in order to meet 12 the test. 13 THE COURT: You are saying that ancient documents don't fall 14 into the same general category as business records, 15 for example. 16 MS. MANDELL: That's right, that's right. 17 THE COURT: That's what you're saying? 18 MS. MANDELL: That's what I'm saying. I am saying that business 19 records are clear exception to the hearsay rule and I 20 will be dealing with that, although briefly, shortly, 21 and I am saying that the court has looked at business 22 records as have the legislature and they have 23 addressed the issue of trustworthiness and necessity, 24 have officially created an exception to the hearsay 25 rule and we all know how to go about proving it but 26 ancient documents don't fall within that area of 27 settled law. 28 THE COURT: All right, thank you. 29 MS. MANDELL: The next case that I'd like to turn your lordship 30 to is the Nolan case and I do this only to show you 31 that the Canadian -- this is a Canadian -- a fairly 32 recent Canadian decision. I can't find that many 33 Canadian decisions which deal with this issue square 34 up and I believe that part of it is that the document 35 rule on ancient documents all appear to have arisen as 36 a result of disputes with respect to interests in 37 land, and in fact the Nolan case is the same sort of 38 thing and I don't believe, and I think this is part of 39 the issue with ancient documents, that the rule has 40 sophisticated itself in the same way or as fast as 41 some of the more modern exceptions to the hearsay rule 42 such as business documents have progressed through and 43 so the court right now is, in my submission, both 44 applying the ancient document rule as if there were an 45 exception to the hearsay rule created, which is Nolan, 46 and there is also other decisions which don't, and I 47 am going to just simply introduce you to these 18279 Submission by Ms. Mandell Re-exam by Mr. Grant 1 decisions to show you that the terrain is fairly murky 2 and that there is no clarity yet set out. The Nolan 3 case is a case from the Nova Scotia Court of Appeal 4 and it refers -- the conclusion in the case is that 5 ancient documents there were used for issues of 6 rectification and land use. Now -- and the case did 7 not -- the court did not require that the document -- 8 any of the documents be made formally in exception of 9 the hearsay rule in order to admit them and, in the 10 reading of the judgment, it would appear that the 11 documents were admitted and then looked at for their 12 inherent reliability or unreliability. And if I could 13 just turn you to page 287 at paragraph 76, it is a 14 place where the court pauses to say what they are 15 using certain documents to prove. He says: 16 17 "Some of the proposed evidence goes not, in my 18 opinion, to such alleged intention but rather to 19 land use that more properly may be considered on 20 the question of possessory title. In so saying, I 21 have in mind such evidence as that of the Sawlors 22 that they pastured cattle on Oak Island, perhaps 23 on the disputed lands, from 1949 to 1969 with 24 the permission of Mr. Chappell. In addition, some 25 of the documentary evidence, namely, letters 26 contain single, double and, in some cases, triple 27 hearsay. These I do not find helpful in a 28 determination of what the parties intended to buy 29 and sell in 1935. " 30 31 THE COURT: That's all right. He is talking there about 32 personal correspondence, is he? 33 MS. MANDELL: That's right. 34 THE COURT: Well, they wouldn't — I suppose personal 35 correspondence can be a possessory title, somebody's 36 desk drawer, I suppose. 37 MS. MANDELL: That's right. And, my lord, if you could turn to 38 tab 8, I have extracted only the one page from the 39 unreported Temagami decision which deal with ancient 40 documents, and you will see there how Mr. Justice 41 Steele dealt with the issue. At page 33: 42 43 "Ancient documents are producible as evidence about 44 occurrences when no living person can give direct 45 evidence of these occurrences, provided such 46 documents are of a general public nature. Most of 47 the written evidence that was introduced at this 18280 Submission by Ms. Mandell Re-exam by Mr. Grant 1 trial is in the latter category. Although many of 2 the exhibits filed would not technically comply 3 with the rule, both parties agreed that such 4 documentary evidence could be introduced." 5 6 And I am suggesting that there is a difference 7 between how the Nova Scotia Court of Appeal viewed it 8 and how Mr. Justice Steele did, where it would appear 9 that Mr. Justice Steele felt compelled to try and find 10 that these documents, although ancient, fit into the 11 general public nature or an exception to the hearsay 12 rule, but he then said, well, in any event, everyone 13 agrees so we don't really have to contend with the 14 problem; whereas, in the Nolan case, as I mentioned 15 earlier, it appears that the documents were simply 16 applied without -- and weighed without the court 17 feeling compelled to bring them into a known exception 18 to the hearsay rule. 19 And before I leave this, I might also mention the 20 Indian litigation, and I have no references here I 21 think we can all agree that, for example, in the 22 Bartleman case or the Calder case, to name two, there 23 the court felt that they could take judicial notice of 24 certain documents which would, for the purposes of the 25 court at least, seem to be a matter of notable 26 historical moment or uncontentious historical issues 27 and that from those, once those documents were taken 28 judicial notice of, it would appear that the documents 29 were read and used by the court for the proof of 30 whatever was contained in them. But this is again 31 without the analysis of hearsay and apparently under 32 the rubric of judicial notice. 33 THE COURT: That's a pretty slippery slope. 34 MS. MANDELL: I am not asking you to stand on it. 35 THE COURT: Surely, the judicial notice would be sufficient 36 to -- I mean, what do you take notice of, take notice 37 of the fact that it's an -- I mean, does it add 38 anything to Professor Wigmore's two great principles 39 to say you take judicial notice of it? Surely, you 40 don't take judicial notice of it unless it is of 41 necessity and there is a guarantee of trustworthiness, 42 would you? 43 MS. MANDELL: Well, I have — I could submit to you at length 44 about judicial notice but I think that, as you say, it 45 is a slippery slope and here we are not dealing with 46 matters of uncontested historical -- mostly we are not 47 dealing with matters of uncontested historical note. 18281 Submission by Ms. Mandell Re-exam by Mr. Grant 1 The issues in this case are more to do with matters of 2 contested historical note. And in that case I say 3 that probably the room for judicial notice in this 4 instance is negligible. 5 THE COURT: Yes, I would think so. But I am open to be 6 persuaded otherwise. 7 MS. MANDELL: Won't be by me. I'd like to contrast the question 8 of the admissibility of historical documents along the 9 lines of the Nolan approach and that is to simply 10 bring them in and weigh them up without further 11 consideration of any other point with the way in which 12 other exceptions to the hearsay rule involving 13 documents have evolved. And it is here our submission 14 that where there has been a proper evolution of, and 15 statement of an exception to the hearsay rule, the 16 rule itself encompasses sufficient safeguards that the 17 issue of circumstantial reliability is therein 18 entrenched in the rule and I say, and I will be 19 submitting in greater length, that with respect to the 20 ancient documents those safeguards are also required 21 but they are not present if the court would simply 22 take the document in and weigh it up in the absence of 23 nothing else. 24 And if I could review what I believe will be 25 common ground but only to make this point, at tab 9 I 26 have included Ewart again, and here we are talking 27 about the common law doctrine with respect to public 28 documents as an exception to the hearsay rule, and he 29 says at page 151 at the top of the page: 30 31 "These rules, on which the common law doctrines in 32 Canada, England, and the United States are in 33 general accord, are: 34 (i) the record must have been made by a public 35 official; 36 (ii) in the discharge of the distant public 37 function or obligation; 38 (iii) with a view to permanent record being 39 created." 40 41 And there is a fourth rule which England -- the 42 English courts have affirmed and that is that there 43 has to be some openness to the public or the record 44 has to be -- have been available for public scrutiny 45 on a fairly permanent basis. That isn't the debate 46 here and I am not saying it is applying in Canada, but 47 I am saying that the broadness of these principles or 18282 Submission by Ms. Mandell Re-exam by Mr. Grant 1 doctrines, at least as they are stated on 151, is so 2 for the three countries. And then at the bottom of 3 page 151, he goes into each one of these requirements: 4 5 "The requirement that the record must have been 6 made by someone upon whom a duty is imposed by the 7 public. This is a criterion of obvious central 8 importance. Depending upon whether one accepts 9 the English or the American view of the public 10 records exception, the fact that a record was made 11 pursuant to a public duty is either one of two 12 ways, or the other way, in which the required 13 circumstantial guarantee of trustworthiness is 14 demonstrated for this exception." 15 16 In other words, it is a requirement which would 17 be -- which would permit the guarantee of 18 trustworthiness to be built into the test for whether 19 or not it falls within an exception to the hearsay 20 rule. And at page 153: 21 22 "The requirement that the record must have been 23 made in the carrying out of the particular public 24 duty or function. This is a strict requirement. 25 In all cases, it will be necessary to determine 26 the precise scope of the recorder's duty, since 27 that will delimit the admissibility of the 28 contents of the document he prepared. For 29 example, since duty determines admissibility, 30 baptismal records are admissible to prove the 31 fact, date, and place of the baptism, but any 32 statement therein concerning the age of the child 33 will not be admissible. Similarly, death 34 certificates are admissible to prove the fact, 35 time, and place, but not the cause, of death." 36 37 And this is more refinement on somehow dealing 38 with the issue of the circumstantial reliability of 39 the document as it's built into the test itself to 40 permit the exception to operate. And finally -- I am 41 sorry. And finally on page 156, the third requirement 42 for the document to fit into this exception: 43 44 "The requirement that the record be permanent. 45 Although this is not a complex requirement, it is 4 6 fundamental to the reception of a document under 47 this provision that it have been created with the 18283 Submission by Ms. Mandell Re-exam by Mr. Grant 1 intention that it would serve as a permanent 2 record." 3 4 And I say that this is yet another indicia that has 5 been stated as a prerequisite to determine the 6 circumstantial reliability of the document before the 7 exception to the hearsay rule will be evoked. 8 THE COURT: Well, there is no doubt about Lord Durham but what 9 about Chief Factor Brown? Is he a public official? 10 Is he intended to create a permanent record? 11 MS. MANDELL: I doubt it. I — certainly not according to — I 12 would argue -- we might end up arguing it if we get to 13 it, but I would certainly say that it's arguable that 14 he is not within that formal exception to the hearsay 15 rule, although, you know, even that's a matter of 16 judicial debate. I know that in the Absassin case, 17 Mr. Justice Addey felt that because certain documents 18 were -- there was a duty on the part of Indian agents 19 to report, that those documents might be considered to 20 be under this rubric as a public document, although, 21 the debate is still theirs to any number -- any one of 22 these people who may or may not fit within this test. 23 But what we are saying is that, if your lordship is 24 directed to each one of these documents to see whether 25 or not it fits into an existing exception to the 26 hearsay rule, we may be here arguing these things. If 27 there is another exception to the hearsay rule created 2 8 which would permit ancient documents to be viewed as 29 an exception of themselves, it is our argument that, 30 based upon how other exceptions are created, there has 31 to be some safeguard for the circumstantial 32 reliability of the proof of what's taken in the same 33 way as there is for public documents under this rule. 34 And I might say, if I could just turn you to tab 35 10, in further emphasis of the same point that here we 36 are dealing with the noted exception about business 37 records, and at Chapter 2 of the first page of this 38 tab which is page 44: 39 40 "The exception to the hearsay rule dealt with in 41 this chapter is one of the earliest applicable to 42 documents, and remains one of the most resilient. 43 Although it has recently been substantially 44 duplicated by statutory business record 45 provisions, it is also undergone, at almost the 46 same time, a significant refining and 47 modernization at the hands of the Supreme Court of 18284 Submission by Ms. Mandell Re-exam by Mr. Grant 1 Canada." 2 3 And just so your lordship is aware, I have 4 attached the provision out of the Evidence Act, 5 Section 48 at the back of this tab which is the 6 statutory evolution that this chapter is talking 7 about. 8 THE COURT: What's he talking about where he says the Supreme 9 Court of Canada, Ares v. Venner? 10 MS. MANDELL: Yes, and that's what, in part, is discussed here 11 and if I could just -- I won't -- your lordship is 12 aware of the case but I only wanted to underscore at 13 page 46 the types of precautions or safeguards built 14 into the rule with respect to the question of 15 circumstantial reliability. 16 17 "Notwithstanding the absolute necessity brought 18 about by the death of the entrant, and the strong 19 circumstantial guarantee of trustworthiness 20 arising from the business creation and usage of 21 the entries, the common law evolved seven strict 22 requirements for admissibility under this 23 exception. To be admissible, the record must have 24 been (i) an original entry made (ii) made 25 contemporaneously with the event recorded (iii) in 26 the routine, (iv) of business, (v) by a person 27 since deceased, (vi) who was under a specific 28 duty to another to do the very thing and record 29 it, (vii) and who had no motive to misrepresent." 30 31 And then at the back of the article a discussion of 32 Ares and Venner and some of the other cases. 33 THE COURT: What's the foolish judgment in England about the 34 Austin Motor Car Company? Well, it seemed to me they 35 met all those requirements but the House of Lords 36 still said it was inadmissible. 37 MS. MANDELL: Is that Myers? 38 THE COURT: Yes, Myers, that's right. Couldn't prove the serial 39 number of the Austin, I think it was or I believe, of 40 some motor car. 41 MS. MANDELL: At page 53 and 54, these traditional rules were 42 contrasted by the author -- the authors and looked at 43 whether or not the Ares case impacted them and I think 44 in general your lordship will see that there may have 45 been some refinement and distinctions made but the 46 overriding precautions which were set out as part of 47 the traditional rules appear to remain and the result 18285 Submission by Ms. Mandell Re-exam by Mr. Grant 1 is found at page 56. 2 THE COURT: I think I stopped at page 54. 3 MS. MANDELL: I'm sorry, it is page 54, just at the top of the 4 page. 5 THE COURT: Oh, yes. Well, I suppose the Hudson's Bay records 6 might be regarded as business records. 7 MS. MANDELL: There may be an argument to that effect. 8 THE COURT: All right. We will take the afternoon adjournment, 9 thank you. 10 THE REGISTRAR: Order in court. This court stands adjourned for 11 a recess. 12 13 (PROCEEDINGS ADJOURNED AT 3:05 p.m.) 14 15 I hereby certify the foregoing to be 16 a true and accurate transcript of the 17 proceedings herein, transcribed to the 18 best of my skill and ability. 19 20 21 22 23 24 TANNIS DEFOE, Official Reporter 25 United Reporting Service Ltd. 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 18286 Submissions by Ms. Mandell 1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Ms. Mandell. 5 MS. MANDELL: My lord, if I could here pause and address the 6 comment made by you that perhaps some of these 7 documents could be admitted under a hearsay rule which 8 has already been established such as business records 9 or public documents. I didn't know whether or not you 10 were moving into that area of thinking, but I did want 11 to say that if that were the approach then it would 12 appear that each of the bunches of documents which may 13 be tendered for admissibility to prove certain facts 14 under those rules would each have to be separately 15 addressed in the course of argument. 16 And while we are prepared to do that, I had 17 understood that the submission to be made by my friend 18 either Mr. Goldie or Mr. Willms or somebody on the 19 other side was that there ought to be or there is 20 existing a rule of law where these ancient documents 21 would go in and then they are in for the proof of the 22 truth of anything that your lordship might weigh to 23 find true. It is that that we are addressing. It is 24 more than to deal with whether or not there is or 25 ought to be some general rule which pertains to 26 ancient documents which would permit this or other 27 courts to weigh facts and decide whether those facts 28 are true. 29 It has been our submission to date, up until this 30 point, that there isn't any such general rule yet 31 currently established, although it appears that some 32 courts do that without saying that that is what they 33 are doing. But that if there is going to be such a 34 rule established as a special exception to the hearsay 35 rule which would pertain generally to ancient 36 documents, we say that the question of the 37 circumstantial degree of reliability is one which the 38 court must address in receiving as fact any 39 information from those documents which your lordship 40 may choose to find to be true. 41 I have already said that the already existing 42 tests have many precautions built into them which deal 43 with the question of circumstantial reliability, but 44 that the proposition which I have heard over and over 45 again suggested by the provincial defendant in this 46 case, and that is that the documents simply go in and 47 everything is a matter of weight, doesn't deal with 18287 Submissions by Ms. Mandell 1 the issue of circumstantial reliability. I would like 2 here to address your lordship as to the reasons why 3 and how the issue of circumstantial reliability can be 4 met if there is to be some general rule with respect 5 to the admission of ancient documents on this point. 6 THE COURT: Well, I am not sure that I am following this. I 7 don't think that I can establish a general rule. It 8 seems to me that I have to deal with each document 9 individually or categories of documents at the moment. 10 I haven't got them all in front of me organized and 11 committed to memory. It seems to me that with respect 12 to each document that I make use of I have to be 13 satisfied that it falls under some heading under 14 admissibility. 15 Now, when I mentioned before that the Hudson's Bay 16 documents might be classified as business records, I 17 wasn't intending to suggest any shortcut. I was 18 merely wondering out loud if that was even a 19 possibility. The business record section, as I recall 20 it, has a provision that has to be made before the 21 controversy arose, does it not? Doesn't the section 22 of the Evidence Act deal with business records have a 23 subsection? 24 MR. WILLMS: It is 48(3). 25 MS. MANDELL: Yes. 26 THE COURT: I'm not sure what it was -- I am not sure when this 27 controversy arose. But as I go through the 28 preparation of the judgment as I have to deal with 29 various issues I will rely upon some or a great number 30 or all of the documents. And with respect to each 31 one, I have to be satisfied that it has a -- it has a 32 basis for admissibility. But I am not sure that I can 33 just in a global way say, well, I think all of the 34 documents are admissible unless all counsel are agreed 35 they are and that they are all admissible for the 36 proof of the truth of the facts stated in them subject 37 to weight. If counsel all agreed with that we would 38 all have a much easier time. I would certainly 39 welcome such an agreement. I don't think there is any 40 possibility of such an agreement being reached. Have 41 counsel not found out for themselves whether such 42 agreement is likely? 43 MS. MANDELL: Well, I can't speak for Mr. Rush who I understand 44 was part of the communication with respect to this. 45 But I can say that it's the plaintiffs' position that 46 if the document is to go in and be available for your 47 lordship to consider any of the facts to be true and 182? Submissions by Ms. Mandell 1 if that is to go to weight that the -- the issue of 2 circumstantial reliability is a matter for evidence. 3 And that if there is a witness available to testify to 4 the circumstantial reliability that that evidence is 5 at best required and at least it is admissible. 6 And in any event, the issue of circumstantial 7 reliability is an issue of evidence. That is the 8 position which we will be advancing to your lordship 9 now in argument or if my friends can agree then 10 perhaps we don't need to go through this effort. But 11 that's the position we take. And we say that unlike 12 the other documents and exceptions where there is a 13 test of circumstantial reliability more built-in, 14 there is -- for these kinds of documents there is very 15 distinct problems, apart from the fact that they are 16 hearsay and that there is no first-hand knowledge 17 often times by anybody available to even attest, 18 unlike with the nurses record, for example, whether or 19 not the facts contained therein could be true or could 20 not be true. 21 There is in modern documents, at least, the 22 availability of certain kinds of corroboration or 23 dispute through oral testimony. But with ancient 24 documents there is no such possibility and often times 25 in addition there is the problem of the present-day 26 documents having even more guarantees built in as I've 27 earlier mentioned. But the -- there is a different 28 problem with respect to the Indian evidence and the 29 documents involved in this case. 30 I think that the problem can be summarized in 31 really two ways. One is that the -- a point that your 32 lordship has made that most of the indicia for the 33 testing of reliability at least which is weighed in 34 favour of other ancient documents being admitted is 35 the fact that the recital was made before the suit was 36 brought. But in this case, and it is one that -- a 37 point which I believe we have now seen more of is the 38 historical evidence has come forward that the public 39 officials who are often times promoting or justifying 40 certain policies often times can't be seen to be 41 making admissions contrary to interest, but often 42 times the documents can be shown to be self-serving on 43 the very issue which is the issue of this case. 44 And the debate as to whether or not many of the 45 historical facts are relevant to the existence or the 46 non-existence of policy with respect to the existence 47 of aboriginal title at least in the historical title 18289 Submissions by Ms. Mandell 1 is now well over a hundred years old. So this is not 2 the usual case where a 30-year limitations period 3 could pretty much ensure that there is not going to be 4 the same issue 30 years ago being spoken about as 5 there is now. 6 And we say that because of that it is a very 7 unique problem which requires evidence as to whether 8 or not certain parties or speakers have a special 9 bias, whether or not they have at the time of the 10 writing of the document a position which may or may 11 not influence the weight that the court should be 12 giving to whether or not the speaker is speaking in a 13 self-serving way or is speaking contrary to interest 14 or is neutral. I think that is one of the very 15 different aspect to this problem other than the 16 problem with respect to hearsay. 17 I believe that the second area that also requires 18 the court to know more information than what it can 19 from the face of the document springs from the fact 20 that many of the first party accounts, and this is 21 what Mr. Wickes, Professor Wickes, thought might be a 22 test, and that is that the document be at least in the 23 first person. We have the problem here that the 24 Indian people didn't write, so the documentary record 25 is almost exclusively non-Indian people viewing the 26 Indian people from one standpoint or another. 27 Now, separate out the fact that some of these 28 people will have specific interests and specific 29 biases or even an official capacity which may 30 influence what they are saying, there is still the 31 problem that none of the speakers will speak of 32 personal knowledge of the Indian people for whom they 33 are viewing. And so you've got first party accounts 34 often times or arguably maybe unreliable being 35 somebody is seeing an Indian person and doesn't know, 36 has no first-hand knowledge of the culture that they 37 are viewing. There may be room for inaccuracies with 38 respect to that reporting even though it may be 39 firsthand. 40 These are all factors which go beyond the question 41 of looking at the document on its face and must be 42 weighed, in our submission, by the court for your 43 lordship to have any sense at all as to what the 44 circumstantial degree of reliability can be of the 45 facts or recitals in the documents. And, in our 46 submission, that kind of material, the sender, the 47 receiver, their bias, their motive, who they are 18290 Submissions by Ms. Mandell 1 writing for, why they are writing, self-serving 2 interest, all of these are a matter of evidence. 3 If your lordship were of a view that the -- that 4 in order to satisfy the test of circumstantial 5 reliability if a party has evidence with respect to 6 these matters that evidence should be brought forward 7 and that should be a way of safeguarding the usual 8 problems of the court creating an exception to the 9 hearsay rule or applying one, having some ability to 10 test thereliability of the document. 11 THE COURT: Well, I'm sorry that I don't have an accurate 12 recollection, but I seem to remember Mr. Rush saying 13 that he did not agree that a document that is archival 14 is proof of the facts stated in it. 15 MS. MANDELL: And he said that there has to be some medium 16 point, some expert who will pass their eyes through 17 the document and comment upon its reliability or 18 comment as they will with respect to that document, 19 that document either is part of the collection which 20 forms part of the opinion or has been passed over by 21 an expert in some way. 22 THE COURT: Well, to get my menu straightened out here, do I 23 understand that you are contending for the 24 admissibility of all the documents that were collected 25 together by the historical witnesses and arguing that 26 they should be admitted into evidence if they hadn't 27 already been admitted and that they are in as proof of 28 the truth of the facts stated in them? 29 MS. MANDELL: But we say that only if the rule that is going to 30 be bringing them in has a safeguard with respect to 31 the issue of circumstantial reliability. 32 THE COURT: Well, what are you saying about the newspaper items 33 then? 34 MS. MANDELL: Well, I would say that because most of the 35 newspaper items are long past 30 years old and they 36 are stored in most cases in the public libraries as 37 part of a microfilm series -- 38 THE COURT: That only proves their authenticity. 39 MS. MANDELL: Well, I say that — 40 THE COURT: Surely there is no enhanced voracity in a newspaper 41 story because it has been in a libarary for 30 years. 42 MS. MANDELL: No. And these questions that you are raising now 43 about how true might the facts within the newspaper 44 article be -- 4 5 THE COURT: Yes. 46 MS. MANDELL: -- that we say is the subject of evidence. We say 47 that you -- that the trier of fact can draw nothing 18291 Submissions by Ms. Mandell 1 from the document itself to prove the truth of it when 2 the event is so long ago. There is so very many 3 reasons why the document may not be reliable and 4 credible for any variety of reasons that if there is 5 evidence available which will allow the circumstantial 6 degree of reliability to be attested to that that 7 evidence is required. We say at the very least it is 8 admissible and certainly that the circumstantial 9 reliability is an issue of evidence. We say that with 10 that qualification then your lordship and other judges 11 may be in a position of assessing -- however poor the 12 evidence quality is, may be in a position to take a 13 look at the only evidence which may be available to 14 shed light on an event of so long ago if it is 15 relevant to the case. 16 But we say that the treachery is if all of the 17 documents simply go in without there being a component 18 that the issue of the circumstantial degree of 19 reliability be the subject of evidence of people 20 trained to do it. 21 THE COURT: In order to make sure that we understand each other, 22 what are you saying, that you have met that test by 23 having these documents collected together by trained 24 persons, or are you saying that you now have to embark 25 upon a seriatim proof of the circumstantial guarantee 26 of trust with respect to them all? 27 MS. MANDELL: It's the first. It is not just simply collecting 28 the documents, although that is a very major first 29 step. 3 0 THE COURT: Yes. 31 MS. MANDELL: It is also, for example, evidence is given that I 32 remember with respect to Michael Morrell, for example, 33 about a report involving a fisheries officer. His 34 evidence is that for certain parts of the report he is 35 very observant and trained and able to say what the 36 fish runs were like. But for other parts of the 37 report he was commenting upon a time and a place that 38 he wasn't there. He had no personal knowledge of the 39 Indian people and that is a very unreliable portion of 40 the report and so forth. 41 There is evidence addressed on the question of the 42 circumstantial reliability -- the degree of 43 circumstantial reliability which your lordship can 44 place on certain documents or facts. We are not here 45 arguing for the right to call anymore evidence. We 46 are saying that it is it has been called. But if 47 there is going to be facts relied upon from these old 18292 Submissions by Ms. Mandell 1 documents, the issue of circumstantial degree of 2 reliability is an issue of evidence. It is not 3 something which your lordship is trained or able to 4 simply read a newspaper report of 1858 and decide 5 willy-nilly whether or not there is anything true 6 about that. It is a matter which you have to weigh 7 based on the evidence. 8 THE COURT: All right. Well, I think that I understand your 9 point. And rather than have you possibly lean on an 10 open door and possibly, and I say this with great 11 deference, possibly confuse me more, I would like to 12 hear whether your friends have a different position so 13 that I can keep them in mind when I am hearing what 14 you have to say because at the moment I don't know 15 whether they agree with you or disagree with you. 16 I am not sure they are even ready to respond. But 17 I would like to know if they are because this is a 18 massive subject without keeping it under some measure 19 of intellectual management. I would like to ask the 20 defendants what they say about the submission that you 21 have made. 22 MS. MANDELL: Thank you. My lord, if I can sit down after only 23 saying one more thing. I hope that this will not 24 confuse you but clarify it. 2 5 THE COURT: Yes. 26 MS. MANDELL: Your question as to what do we say the documents 27 are in for, I do want to make the point that by 28 introducing the facts and the underlying evidence of 29 the facts of the reports we are not, by doing that, 30 proving the truth of any of the recitals in any of the 31 documents. We are saying that the experts have 32 considered and evaluated and weighed these documents 33 and that the document is presented for you to also 34 weigh and evaluate the expert opinion. 35 THE COURT: You are saying it is not exclusive. 36 MS. MANDELL: It is certainly not exclusive. 37 THE COURT: I don't think anyone thinks it is. 38 MS. MANDELL: But to the extent that the court is going to find 39 anything conclusive from it we say that your lordship 40 before embarking upon that should as a matter of we 41 say rule make available the testimony of -- the 42 question of circumstantial reliability of evidence. 43 THE COURT: You mean consider the evidence? When you say "make 44 available", what do you mean? 45 MS. MANDELL: That that issue is a matter of evidence. So, yes, 46 you would both admit the evidence and consider it, 47 that's correct. If there is no evidence available 18293 Submissions by Mr. Willms 1 then you do the best you can. But if there is 2 evidence available, it is admissible and that your 3 lordship should consider it. 4 THE COURT: all right. I am going to have to sign some 5 documents, but I don't know whether it is a large 6 volume that will require me to adjourn or she can put 7 them in front of me and I can sign them. Until the 8 documents arrive, are counsel ready to respond to what 9 Ms. Mandell has said? 10 MR. WILLMS: Well, my lord, I am. With respect to the test of 11 admissibility, it was going to be -- I have 12 authorities that I was going to refer your lordship to 13 that where -- and it is primarily arising out of Ares 14 and Venner, that where a document -- where you can see 15 from a document that it is practically difficult to 16 obtain other evidence, and in most cases it is because 17 the declarant is dead, that the declarant was 18 disinterested in the personal sense when the 19 declaration was made. It wasn't made in favour of the 20 declarant's personal interest, that the declaration 21 was made before a dispute or litigation was 22 contemplated, and that the declarant had peculiar 23 means of knowledge -- 24 THE COURT: I'm sorry, your point was before the dispute? 25 MR. WILLMS: Before the dispute and litigation was contemplated. 26 THE COURT: Excuse me, Mr. Willms. Sorry, Mr. Willms. I have 27 got down as far as where it is difficult or impossible 28 to establish the facts contained in the document and 29 the declarant appears to be disinterested. 30 MR. WILLMS: In the personal sense, my lord. 31 THE COURT: Yes. And before the dispute of the litigation is 32 contemplated? 33 MR. WILLMS: Yes. 34 THE COURT: And what? 35 MR. WILLMS: And peculiar means of knowledge not possessed in 36 the ordinary cases. And I think the simplest example 37 of that is could the witness, if alive today, give the 38 evidence. Could he give evidence of the truth of the 39 statement. That would be the peculiar means of 40 knowledge, or one of them. 41 THE COURT: That would eliminate internal hearsay. 42 MR. WILLMS: It would eliminate internal hearsay. 43 THE COURT: That is the hearsay internal in the document. 44 MR. WILLMS: I say that if those four elements are met that the 45 document should be received in evidence as prima facie 46 proof of the facts stated in the document. 47 THE COURT: And by that I suppose you would include -- you would 18294 Submissions by Mr. Willms 1 mean that it could be weighed along with all the other 2 evidence? 3 MR. WILLMS: Yes. 4 THE COURT: And if outweighed by more persuasive admissible 5 evidence then it would be disregarded? 6 MR. WILLMS: That is exactly the point, my lord. In a case such 7 as this, and I have it more fully developed in the 8 argument, but the issue of trustworthiness is met by 9 the fact that the parties have been investigating the 10 issues and disclosing documents and investigating 11 documents for years and years and years. Your 12 lordship has before you a great number of documents, a 13 great deal of evidence. I think it is fair to say 14 that no stone either has been or will have been 15 unturned by the close of this case and that that will 16 provide the circumstantial guarantee of 17 trustworthiness for your lordship. 18 I should preface all of this by saying that it is 19 the province's position that it is not necessary to 20 have an exert or someone who claims to be an exert 21 bless a document because that doesn't change the 22 document at all. The document is the document. And 23 one person's view of a document can be completely 24 different from another person's view. The only 25 important part of this trial is your lordship's view. 26 But we are talking about views of a document, that is 27 interpretations of a document, and not anything to do 28 with the inherrent quality of the document itself. 29 Now, I should go on, my lord, to say that that is 30 one category. And that is the category of documents 31 which are, in our submission, admissible as prima 32 facie proof of the facts stated in the document. I 33 emphasize prima facie because it is open to any party 34 to contradict that the evidence through other 35 documents, through exert evidence if they wish and 36 through lay witnesses or through any of the evidence 37 that your lordship has heard. Now, 38 There is another category of documents. It really 39 breaks it into two. The submission is this, that 40 other documents except for documents like interview 41 notes, land claim transcripts, documents that are 42 prepared by a witness which all are either admissible 43 or inadmissible for reasons which follow the usual 44 rules of evidence, i.e. if a plaintiff says to Dr. 45 Daly: I did X. The plaintiff can get in the stand 46 and say: I did X. It is an interview note. It is 47 created after litigation. It is in a separate 18295 Submissions by Mr. Willms 1 category, and it may be admissible for completely 2 different reasons. 3 THE COURT: It becomes admissible if you put it in. 4 MR. WILLMS: It may be admissible if it is put in as a document 5 that the witness relied on. But it only goes to the 6 truth of the document if other tests are met. But not 7 this general test because obviously it would fail the 8 one part of the test, the person disinterested. If 9 you talk to a plaintiff after litigation has been 10 contemplated it fails the Ares and Venners test. 11 THE COURT: What about the documents that I think are examples 12 where say in the evidence of Mr. Sterritt Mr. Goldie 13 put to him interview notes by researchers -- made by 14 researchers purporting to describe what plaintiffs had 15 said? 16 MR. WILLMS: Well, my — 17 THE COURT: They would be admissible just as a matter of 18 operated common law evidence without regard to ancient 19 document rules. 20 MR. WILLMS: Yes, my lord, but there is that difference. That 21 is an admission against interest which one party can 22 always put in admissions -- 2 3 THE COURT: Yes. 24 MR. WILLMS: I am talking about Dr. Daly. I should preface this 25 by saying that in terms of the plaintiffs' experts and 26 the documents that have been put in support of the 27 plaintiffs expert reports, that's where I put 28 interview notes, land claim transcripts, or documents 29 prepared by the witness. But I say that those are 30 separate -- they are dealt with separately. Some of 31 them are clearly admissible, for example, as 32 admissions against interest. Some of them are clearly 33 inadmissible because they fail Ares and Venner and 34 there is no other reason for them to be admissible. 35 But just carrying on, my lord, taking that 36 exception out, that is interview notes, land claim 37 transcripts or documents prepared by experts, I say 38 that all other documents should be admissible to show 39 that it was authorized by the document -- by the 40 purported author, received by the purported 41 recipient -- 42 THE COURT: Yes. 43 MR. WILLMS: -- and as circumstantial evidence to prove or 44 support an inference. 45 And if I can give an example of that, my lord, 46 your lordship heard evidence from -- during Dr. 47 Galois' evidence of the John Baptist land dispute with 18296 Submissions by Mr. Willms 1 a letter from the Indian agent giving John Baptist's 2 version of what was going on, a reply letter from a 3 lawyer giving the owner of the property's version of 4 what was going on. It is our submission that a 5 document like that or a series of documents like that 6 shows that there was a dispute about land tenure. It 7 doesn't -- none of the documents go to the proof of 8 whether or not John Baptist was right or the land 9 owner was right through their respective either lawyer 10 or Indian agent. 11 But they go to show that there was another 12 example, my lord, would be a newspaper account, a 13 letter to the editor from Hazelton saying there is a 14 problem in the community and here it is. That is 15 evidence that would support an inference that 16 something was a topic of interest in the community. 17 It doesn't prove that it was, but it will support 18 other evidence, direct evidence that there was. If 19 there is no other direct evidence, it doesn't -- there 20 is nothing for the inference to support. And that 21 will be my submission, my lord. I have the submission 22 in more detail supported by authority, but that's in 23 essence the -- 24 THE COURT: Well, where you seem to separate from your learned 25 friend is in the question of whether or not there is 26 an evidentiary requirement for trustworthiness 27 attached to the documents themselves. 28 MR. WILLMS: And I don't think we are far apart, my lord, 29 because certainly Dr. Galois is the clearest example 30 of my friends' position of calling an expert. And 31 your lordship will recall or may recall that I asked 32 Dr. Galois how many documents he selected and how many 33 were selected for him. He said he didn't know, that 34 wasn't important. So selection of documents isn't 35 important. So that -- I don't know if my friend is 36 suggesting that selection -- you need a witness to 37 tell you how to select documents. 38 I think what is more important in this case as to 39 trustworthiness is that your lordship have as much 40 evidence relevant and admissible evidence in respect 41 of the contents of the document to determine at the 42 end of the day whether or not prima facie proof 43 becomes proof. But it doesn't depend on whether or 44 not a witness blessed it or not. 45 THE COURT: Well, what if a witness did bless it? 46 MR. WILLMS: Well, my lord, if a witness blessed it and if your 47 lordship found that it was in an area that was 18297 Submissions by Mr. Willms 1 admissible for a witness to bless. In other words, if 2 it is admissible for a witness to tell your lordship 3 an interpretation of a particular series of events 4 which we later will be urging is not competent for a 5 witness to do that, but if your lordship should find 6 that, that is another bit of evidence that your 7 lordship can put into the mix. 8 THE COURT: That the blessing may increase the weight? 9 MR. WILLMS: If the blessing, standing in and of itself, is 10 admissible evidence. We say the blessing isn't. 11 THE COURT: Yes. 12 MR. WILLMS: We say that the fact that Dr. Lane said that, "This 13 is an interesting document" is neither here nor there. 14 It is whether your lordship finds that it is a 15 relevant document that is important. Dr. Lane's views 16 on the importance of the document unsupported by any 17 opinion from her is irrelevant. And I suppose that 18 Mr. Morrison and Dr. Lane are the clearest example. 19 There is no opinion. There is no umbrella over their 20 documents. There are just a series of documents that 21 were put to Dr. Lane, a series of documents put to Mr. 22 Morrison. 23 It may be useful for a witness to say, by the way, 24 I found another document. I found the next document 25 in the series. It was hard to find, but I found it 26 and here it is. It is the next document in the 27 series. But other than that the blessing adds nothing 28 to the contents of the document. 2 9 THE COURT: All right. Thank you. Ms. Koenigsberg. 30 MS. KOENIGSBERG: My lord, I won't repeat what either one of my 31 friends have said except vary in brief. We likewise 32 will have a submission to make to your lordship should 33 it be necessary, supported by the authorities, but it 34 essentially comes down to one of the alternatives that 35 my friend Ms. Mandell outlined to your lordship and I 36 believe falls into the category that my friend Mr. 37 Willms has referred to your lordship. Perhaps the 38 easiest way to encapsulate it is to quote from the yet 39 not yet enacted, and maybe never to be enacted 40 Evidence Act that Mr. Ewart wrote about on his book of 41 documentary evidence. We would be putting forward to 42 your lordship that this is a rule which your lordship 43 can follow. And the rule is thus stated: 44 45 "In a civil proceeding in which the -- 46 47 THE COURT: Is it in the material Ms. Mandell handed up? 1829? Submissions by Ms. Koenigsberg 1 MS. KOENIGSBERG: I don't believe she actually put in this 2 section. 3 THE COURT: All right. 4 MS. KOENIGSBERG: 5 6 "In a civil proceeding in which the declarant or 7 his testimony is unavailable, a statement is 8 admissible to prove the truth of the matter 9 asserted if it would have been admissible had the 10 declarant made it while testifying." 11 12 THE COURT: Does he mean by that would he have been permitted to 13 make it while testifying? 14 MS. KOENIGSBERG: Yes. And all of the necessity and 15 circumstantial guarantee of trustworthiness concerns 16 are, in my submission, encapsulated therein. The 17 necessity test, of course, is addressed by the 18 declarant being unavailable, and the circumstantial 19 trustworthiness is dealt with would the person be able 20 to do that. 21 Now, having gone that far, I would say that we 22 will be urging on your lordship that you accept, that 23 is admit the vast majority of documents that you have 24 thus far seen in whatever category saving out the 25 particular group that my friends Mr. Willms referred 26 to. And here I think we are basically talking about 27 historical documents which might be called sometimes 2 8 archival documents, sometimes ancient documents. They 29 usually don't make it into the archive until they are 30 fairly old, that is 20 or 30 years. And that having 31 admitted them it is for the prima facie truth and that 32 allows in the weighing process, which is the weighing 33 of the trust worth necessary, all of those 34 circumstantial guarantees. 35 And all of the evidence that your lordship has had 36 proffered thus far and will have more of can and I'm 37 sure will be utilized and urged upon you in argument 38 to test, where in contest, the reliability of the 39 facts asserted in these documents. Certainly we would 40 endorse Ms. Mandell's submission, if I understand it, 41 that the documents when they are proffered for the 42 truth must be tested. And, in fact, they must meet 43 the kind of tests that Mr. Willms was suggesting which 44 I think was a pretty good rendition of Ares and 45 Venners, the descent. But that was picked up, of 46 course, in the Court of Appeal and Zundel. And you 47 can find it recorded throughout all of the cases which 18299 Submissions by Ms. Koenigsberg 1 have tried to deal with this weighing problem. 2 Now, having said that, I think we have to address 3 the very issue in which we part company with my 4 friends, the plaintiffs' counsel. In my submission, 5 you do not need and, in fact, I think there might be a 6 good argument that you cannot admit expert evidence in 7 order to determine the proper interpretation absent a 8 document or piece of otherwise admissible evidence 9 that goes to the trustworthiness. In other words, the 10 blessing given you if such would be offered or has 11 been offered by an expert is only as good as the 12 evidence upon which it is based. 13 In our submission, in most instances your lordship 14 will be faced with the necessity of interpreting a 15 document in its context both historical and within the 16 law as it is developed. And it will be a matter of 17 legal argument, my lord. And that's, in my 18 submission, one of the functions of legal argument, 19 one course of the function of your lordship to 2 0 interpret the document. And part of the 21 interpretation of a document is to assess how much 22 weight you give it as a result of his historical 23 context, its other corroborating evidence, its 24 inherent consistency. 25 THE COURT: What do I do with a document where Factor Brown at 26 Babine Lake says: "Smogelgem told me that he was a 27 man of property"? 28 MS. MANDELL: Well, my lord, number one, if we are dealing with 29 the issue of admissibility of the document I would 30 suggest that it is likely -- I think we then perhaps, 31 I don't wish to get side-tracked onto this, but the 32 subsection of the Evidence Act to which you will refer 33 which incorporates one of the problems of the inherent 34 trustworthiness of the document, that is was it made 35 in contemplation of litigation and, thus, it slipped 36 back out of that exception, in my submission, would 37 not apply remotely. But assuming that I am correct 38 that it is admissible, it is admissible for the prima 39 facie truth that a person said this to Factor Brown. 40 THE COURT: It would prove that he said it, but it wouldn't 41 prove that it was true. 42 MS. KOENIGSBERG: Certainly not. It doesn't purport to be a 43 fact in that sense, in my submission. Now, I mean are 44 we dealing -- you are going to have to weigh, it seems 45 to me you can -- it could even be argued it is close 46 to the line. It is close to the line because surely 47 it is open to your lordship to concern yourself with 18300 Submissions by Ms. Koenigsberg 1 the use of the language in the historical context so 2 that it could be urged upon your lordship in legal 3 argument, and in my submission it would be legal 4 argument, that in that instance we might deal with the 5 word Smogelgem and the use of that word and its 6 meaning from the context and that he is a man of 7 property. What would Factor Brown have understood 8 that to mean, et cetera. I guess what I would be 9 urging is that you could not take that to define a 10 boundary for Smogelgem. 11 THE COURT: And if somebody else told Factor Brown that 12 Smogelgem was a man of property it would be even less 13 persuasive, would it? 14 MS. KOENIGSBERG: On my submission, yes, it begins to lose 15 weight. 16 THE COURT: And you couldn't even -- well, you can still receive 17 it for the truth of the fact that that person told 18 Factor Brown what he told him. 19 MS. KOENIGSBERG: That's right. And that may have significance 20 in the circumstances and it may not. In my 21 submission, for the admissibility of documents issued 22 there are a relatively small number of documents, I 23 say that I would expect hundreds as opposed to 24 thousands, in this lawsuit which would not come under 25 an already established exception to the hearsay rule 2 6 which would admit it for the prima facie truth. 27 But, in my submission, it just simply leaves us in 28 the same position that we are if we expanded the rule 29 which, in my submission, the law invites your lordship 30 to do and it has been done already. You still have to 31 weigh the trustworthiness of the truth. You are 32 really addressing the issue of the purpose of the 33 document and then the truth. 34 THE COURT: Yes. All right. Ms. Mandell, are you any further 35 ahead than you were? 36 MS. MANDELL: I would like a minute to see what my friend says. 37 THE COURT: Well, it is time to give madam reporter a brief 38 rest. We don't want to spoil her, so we will give her 39 a few minutes rest. You are thinking of carrying on 40 with something this afternoon or are you? 41 MS. MANDELL: Well, I hadn't arranged for babysitting. It is 42 not impossible, but I have to do that if we are going 43 to carry on. 44 THE COURT: Well, I heard that counsel want to go on for 5 45 o'clock. 46 MS. MANDELL: Madam registrar advised that you were available, 47 but I can't say for sure that I can do it. 18301 Discussion 1 THE COURT: Have we narrowed the problem? 2 MS. MANDELL: I think we understand better what the points of 3 disagreement are. 4 THE COURT: Well, would it be your preference that we adjourn 5 now until tomorrow? 6 MS. MANDELL: It would. 7 THE COURT: Is there a contrary view to that? 8 MR. WILLMS: Well, I just would like to finish whatever 9 arguments we have without the necessity of going to 10 Saturday, but -- 11 THE COURT: I don't think we are going to sit Saturday anyway. 12 MR. WILLMS: So I don't know how much more -- I heard an hour 13 and a half, that my friend Mr. Adams had an hour and a 14 half on submission. 15 THE COURT: On another issue or this one? 16 MR. WILLMS: My friend said that it was interrelated with this. 17 MR. ADAMS: My lord, I can help with that. I will be addressing 18 the issue of admissibility of expert opinion with 19 respect to -- particularily with respect to Dr. 20 Galois' report but with respect other things, also. 21 THE COURT: If an hour and a half isn't manageable. 22 MR. WILLMS: No, then there are our responses. 23 THE COURT: I wouldn't think they would go longer — 24 MR. MACAULAY: Could we start early? 25 THE COURT: No, I'm sorry. There is just so much happening, Mr. 26 Macaulay. I am just deluge with a request for summer 27 hearings and things of that kind. That is the only 2 8 time that I get to see the judges and find out who I 29 can get to work during the summer. No, I can't start 30 early tomorrow. Well, I wonder if it wouldn't be the 31 course of wisdom if we defer this matter until 32 tomorrow and that we carry on until 5 o'clock with Mr. 33 Adams' problem. Is that convenient, and Ms. Mandell 34 can be excused if she wishes. All right. We will 35 take a short adjournment and then we will be back. 36 THE REGISTRAR: Order in court. Court stands adjourned. 37 3 8 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT) 39 4 0 THE COURT: Mr. Adams. 41 MR. ADAMS: My lord, I have a volume of various materials to 42 hand up which, in spite of its size, consists mostly 43 of extracts from the transcript. 4 4 THE COURT: Thank you. 45 MR. ADAMS: Now, the specific issue that I am intending to 46 address is the admissibility of Dr. Galois' report, 47 but that is going to be pitched on a broader ground in 18302 Submissions by Mr. Adams 1 urging the admissibility of historical expert opinion 2 evidence in general using histor -- I am using 3 historical in a broad enough sense to at least cover 4 the kind of document selection and context and 5 commentary and I will say construction engaged in, to 6 varying degrees, by Drs. Ray, Galois, Lane and Mr. 7 Morrison. 8 THE COURT: You don't include Mr. Brody in that? 9 MR. ADAMS: Only because I haven't specifically extracted and 10 examined portions of Dr. Brody's transcript, or for 11 that matter Dr. Daly's, but to some parts of their 12 evidence the same principles, in my submission, would 13 apply. The link between my argument and Ms. Mandell's 14 submissions to you earlier this afternoon is that she 15 has raised some of the dangers that face you in 16 weighing many of the documents. She has suggested 17 that guarantees of trustworthiness are essential, and 18 part of my submission would be that some of the 19 guarantees are to be found in the admission of expert 20 opinion as to history. 21 I have an argument that the consists really of six 22 propositions, and I want to run through them just 23 to — 24 THE COURT: You said that some of the guarantees are found in 25 the opinions? 26 MR. ADAMS: In the admission of historical expert opinion 27 evidence. 2 8 THE COURT: All right. 29 MR. ADAMS: That is, in my submission, one of the ways that you 30 establish safeguards as to the trustworthiness of 31 documents is to accept help from people whose 32 profession is assessing documents in historical and 33 other contexts. 34 The first thing I will be addressing is simply the 35 test for the admission of expert testimony in court. 36 I don't anticipate that that will be particularily 37 controversial. Then I will be referring your lordship 38 to a number of cases in which proof of facts beyond or 39 nearly beyond living memory has been essential. I 40 will seek to illustrate that evidence not just of the 41 kind that the plaintiffs have tendered here, by and 42 large that is a body of documents which an expert has 43 been asked to pass upon in some fashion, but straight 44 ready-made inferences as to the facts of history and 45 their significance have been admitted in Canadian and 46 other courts. So I have a number of cases to run 47 through there. 18303 Submissions by Mr. Adams 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. ADAMS Thirdly, I will be submitting that we will be trying to identify for your lordship what it is the plaintiffs say that a historian brings to court, what the historians special knowledge consists of to bring a historian within the test of the admissibility of expert testimony. My fourth proposition will be that in the process of their -- of being qualified to give evidence even at the legal level of choosing documents, the particular experts called by the plaintiffs, and most particularily Dr. Galois, have brought themselves within the test. Fifthly, I will refer your lordship to a few, out of the many examples that are collected in this volume, those of particular assistance which we say historians broadly understood can render to your lordship and have in the course of the evidence that the plaintiffs have offered so far. And then finally I will be submitting that if that path is not followed and if it is done instead by counsel as a matter of legal argument that the great sacrifice from the court's point of view and the great unfairness we say from the plaintiffs' point of view is that at that time and in that fashion historical evidence is offered as opinion without any qualifications at all and it is simply untestable by cross-examination. Now, that is the skeleton of the argument, and I will bring you back to the test for the admission of expert testimony. In this volume in a number of cases and authorities the test that is quoted and approved is this one, that there has to be a co-existence of two elements. The first is that the subject matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it if unassisted by persons with special knowledge. And then that the witness offering expert evidence has to have gained that special knowledge by a course of study or habitual manner. That is quoted and approved in a number of cases including some of your own. Examples of them are at tab 71, 72 and 73. And I don't propose to go to them, I just propose to identify them. At tab 72 the Kelliher case the page reference is 684. In tab 74 is Sopinka & Lederman. You say instead of 72 it should be something else? You said the page number? It is 684 at tab 72. 18304 Submissions by Mr. Adams 1 THE COURT 2 MR. ADAMS 3 THE COURT 4 MR. ADAMS 5 6 7 8 THE COURT 9 MR. ADAMS 10 11 12 13 THE COURT 14 MR. ADAMS 15 16 17 THE COURT 18 MR. ADAMS 19 20 21 22 23 24 25 26 27 28 THE COURT 29 MR. ADAMS 30 THE COURT 31 MR. ADAMS 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Oh, at tab 72. Tab 71 at page 308. At tab 73 at pages 39 and 40. I'm sorry, which was that last one? My friend is pointing out to me correctly that I have been sabotaged here. Let me abandon the tab number for a minute and find the cases. Sengbusch is tab 72 and the page reference there is 39 to 40. Yes. Sopinka & Lederman is tab 71 at page 308. And Kelliher at tab 73 at page 684. Then there is another case to the same effect and that is Litwin which is tab 59. There is also Emil Anderson. Yes. And they are all quoting and requoting the English case that was quoted in Kelliher and then picked up in the other cases. Yes. Now, the second proposition of my argument is that the kind of evidence sought to be admitted as opinion evidence in this case by the plaintiffs, and much more has been admitted with or without objection in a variety of cases, especially claims related to aboriginal title. And the first reference there is at tab 60 and that is the Milirrpum case which has already been the subject of much discussion here. I would like to refer your lordship at tab 60 to page 161. What page, please? Beginning at 161, my lord. Yes. And at this point Mr. Justice Blackburn was dealing with anthropological evidence, or at least evidence from anthropologists. But, in my submission, the kind of evidence that was sought to be led, and in any case the principles that he lays out are applicable without translation to historical evidence. And the central principle, in my submission, is on page 161 about three fifths of the way down. And the paragraph begins: "My ruling..." but I draw your lordship's attention to the third sentence of that paragraph which says: "The anthropologist should be able to give his opinion, based on his investigation by processes normal to his field of study, just as any other expert does." 18305 Submissions by Mr. Adams 1 2 3 THE COURT 4 5 MR. ADAMS 6 7 8 9 10 11 12 13 14 15 16 17 THE COURT 18 MR. ADAMS 19 THE COURT 20 MR. ADAMS 21 22 THE COURT 23 MR. ADAMS 24 THE COURT 25 MR. ADAMS 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 THE COURT 46 47 MR. ADAMS "The expert is an Tab 60, 16 — And it is my submission simply that that ought to apply also to historians. But isn't there a big difference between anthropologists and historians? Well, I am going to be submitting that there is not for the purposes of accepting expert opinion evidence. Yes, there is a difference between the field and the accepted processes in the field. But my submission will be that once the qualifications are established, that part of the qualification is establishing what the accepted processes are. And as long as that meets the test, the general test of helpfulness to the trier of fact, then the evidence ought to be admissible. There are comments over the page on 162 to 163 in Milirrpum that, in my submission, go to that point. I am again about three fifths of the way down. On the same page? On 162, my lord. Thank you. There is a sentence beginning: expert observer..." I'm sorry. I closed the book. 162, my lord. Yes. I am about three fifths of the way down the page at a sentence saying: "An expert is an expert observer..." And what preceeds that is an analogy allege to medical evidence. I will ask your lordship to read that, and I won't read it to you. But it carries on: "The expert is an expert observer, and his special skill enables him to select, and state, the "facts" which are relevant and significant, and reject, and omit to mention, those that are not. The process of selection involves the application of unexpressed opinion." And I pause there, my lord, to say that that is just what the plaintiffs say is involved when the experts tendered by them have selected documents, that the selection of documents is itself an opinion and a subject of expert opinion, and that much it seems so far has been accepted. : But doesn't one -- doesn't one give full recognition to that principle when the collection is admitted? : Well, in my submission, no, my lord, because the 18306 Submissions by Mr. Adams 1 necessary further question is why and for what purpose 2 and going to what issue did you make the selection. 3 That is not answered by simply -- in fact, if all an 4 expert could do is collect documents, there would be 5 no province for historical expert opinion because 6 somebody behind the scenes could make the selection 7 and there really wouldn't be anything to test about it 8 except: Did you miss this one, and did you miss this 9 one? In my submission, that wouldn't be helpful in 10 the way that I am going to be arguing a historian can 11 be helpful. 12 So carrying on in that passage on 162: 13 14 "Moreover, he states the "facts" in specialized 15 terms which imply generalizations accepted as 16 valid within his field of knowledge. These 17 generalizations may in former times have been, and 18 may even now be, matters of disputed opinion. In 19 this broad sense, everything that an expert says 20 within his own field of expert knowledge is a 21 matter of opinion, including his account of the 22 "facts"." 23 24 And then skipping down to four lines from the bottom: 25 26 "The "facts" are those selected and deemed 27 significant by the expert in the exercise of his 28 special skill. 29 It seems to me that the question is one of weight, 30 rather than of the admissibility, of the evidence, 31 and that the court must be astute to inquire how 32 far any conclusion proffered by an expert is 33 indeed based on facts and to weigh it accordingly; 34 but the "facts" include those ascertained by the 35 methods, and described in the terms, appropriate 36 to his field of knowledge. The ascertainment and 37 description of such facts, and the extent to which 38 they support the conclusions proffered, can of 39 course be the subject of cross examination." 40 41 And that feeds into a point that I will be emphasizing 42 in my final point which is that if you do without 43 evidence of this character you do without the testing 44 that is so important through cross-examination. 45 And then further in this passage on page 164 and 46 about just over halfway down the page in a paragraph 47 beginning: "What is in question..." 18307 Submissions by Mr. Adams 1 2 "What is in question at present is merely the 3 admissibility of the evidence. Whether I should 4 make a finding in accordance with the evidence 5 so admitted is a totally different question. 6 A further objection to the evidence of the expert 7 witnesses was that they tended to apply 8 unwarranted concepts of their own to the actual 9 facts of aboriginal behaviour and to talk in terms 10 of such concepts, even to the extent of expressing 11 themselves in terms which anticipated the findings 12 of the Court on the issues before it. It was 13 maintained, for example, that questions and 14 answers expressing the idea of the 'rights' of 15 clans of aboriginals to particular land were 16 objectionable. I do not accuse counsel of 17 over-simplying the matter; the objection was not 18 merely that the Court should not allow an expert 19 to decide a question which it was for the Court to 20 decide. The contention was really that the 21 experts tended to 'conceptualize', to use the 22 Solicitor-General's word, rather than to state 23 facts objectively." 24 25 And that, in my submission, goes to the point that was 26 raised in our preliminary round with connection to Dr. 27 Galois that, for instance, he could say without 28 objection -- he could read passages of documents but 29 it was objectionable, it was submitted, for him to 30 characterize what he was -- the events he was 31 describing as protest. And, in my submission, part of 32 the answer to that is that the conceptualization that 33 the discipline employes is a matter of convenience 34 here. 35 And the court goes on in this case on the bottom of 36 164 saying: 37 38 "In my opinion it is fallacious to require the 39 expert altogether to avoid the use of words 40 expressing concepts; to do so would be to deny his 41 utility as a channel for the communication to the 42 Court of the science he professes. It seems to me 43 to be a function ever an expert witness to talk in 44 terms of concepts which are appropriate both to 45 his field of knowledge and to the Court's 46 understanding. A problem for the Court in this 47 case is to decide, with the experts' assistance, 1830? Submissions by Mr. Adams 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. ADAMS THE COURT as matter of fact, what the aboriginals' 'rights' are in the eyes of the aboriginals. To reach, and to express, any conclusions on this matter it is convenient to use words like 'right', 'claim' and law . And then still on 165 just above the heading "The Aboriginals' Social Organization", the court says this : "...if the expert talks about 'the land-owing or land-possessing group' the court can accept this without prejudice to its task of deciding whether such is in fact a proper jurisprudential analysis of the relationship. Bearing all of this in mind, I do not reject that it is inadmissible, nor do I necessarily set aside as of no weight, the expert evidence which was expressed in conceptual terms." And again, in my submission, that is part of the answer to the suggestion that somehow historians offering opinion evidence are usurping your lordship's function. In my submission, the function that they do not attempt and should not attempt to entrench on is the resolution of the legal significance of the historical events that they are testifying about. But that they can be helpful in resolving -- suggesting answers to matters of historical fact, whether it involves the construction of documents or an explanation of the context of documents or otherwise as I will be coming to. : Well, Mr. Adams, the problem I am having with your submission at the moment is that -- is that what Mr. Justice Blackburn was talking about in medical purpose was expert or opinion evidence of anthropologists about the conclusions they reached based upon their observations of the aboriginals in the light of their specialized knowledge. They categorized what they saw in terms of -- to them acceptable anthropological concepts. But what we have here is experts analyzing a large volume of documents and expressing an opinion based upon what they mean. Aren't those two totally different things? : Well, in my submission, my lord, they are not in principle two totally different things. Yes, the methods of the discipline is different. : What is the subject matter of the opinion? If it's 18309 Submissions by Mr. Adams 1 human conduct I can readily understand the 2 preponderate evidence being admissible. I am 3 surprised it created a problem if it was as I 4 understand it to be. But, on the other hand, if it is 5 analyzing documents and saying what they mean, well 6 then it does seem to me that there is a problem about 7 whether the expert's assistance is required for that 8 purpose or even permissible. And it is that 9 distinction that troubles me most about this. 10 MR. ADAMS: My answer would be, my lord, is that the 11 anthropologist is not just reporting on a bunch of 12 data saying, I saw people at this time in this place 13 doing this. They are interpreting the behaviour as 14 surely as the historian in dealing with a document 15 from the selection process on is interpreting it of 16 necessity. And again I say that the difference is 17 only the difference between the methods of the 18 discipline. 19 But I will go on to say that there are cases in 20 which the historians do it, too. Zundel is the next 21 tab at 61, and here we do have a historian doing just 22 that. And this, as your lordship is aware, is a 23 decision of a five judge panel of the Ontario Court of 24 Appeal. And the passages I wish to draw to your 25 lordship's attention begin at page 376 of this 26 extract. It can be seen there at page 376 under the 27 large Roman Numeral III, and elsewhere in the 28 judgment, that what happened in this case was that the 29 Crown, in attempting to prove a charge of spreading 30 false news, called a historian as an expert in essence 31 to prove that the news was false by proving the facts 32 of history through the expert. And the objection was 33 taken to that evidence on a hearsay basis. 34 And so far as it is possible to tell from the case 35 report, the documents that the historian had relied on 36 in forming an opinion as to the existence and extent 37 of the holocaust were not even before the court. It 38 was simply a matter of the expert coming into court 39 and saying, I have examined all of the available 40 sources, the documents, the transcripts at Nuremberg 41 and others, and this is my opinion as to what 42 happened. And that was objected to and admitted, 43 nevertheless, as was evidence of an expert historian 44 on the other side of that issue. 45 THE COURT: Well, doesn't that again fall within the category 46 of -- or within the rubric of what I talked about in 47 my earlier judgment on historical evidence in the 18310 Submissions by Mr. Adams 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. ADAMS THE COURT MR. THE ADAMS COURT MR. ADAMS THE MR. THE COURT ADAMS COURT MR. THE ADAMS COURT MR. ADAMS summer of 1987 when I said the general facts of history could be proven but not the details. I mean I don't have any difficulty saying that a historian can say that Cook came to British Columbia in 1778 and that the Hudson's Bay company established their first fort at Babine in 1832 was it or thereabouts and that the Hudson's Bay Company emerged at certain dates. But when you get down to talking about how many beaver skins, you are getting into a set of documents that you don't have to be a historian to read. Again, I say, my lord, that the evidence here was and it was at the very heart of the issue that the Crown had to prove in the case. Well, I don't know what Professor Hilberg gave in the way of evidence, but I doubt if he produced a clutch of several volumes of documents and films and things of that kind and then proceeded to say, here is all the evidence, and then to analyze it for the court. No, that's my point, my lord. The trial didn't take long enough for him to do that. No, he didn't do that. And so the court, if it was going to use his evidence, had to rely purely on his opinion -- his summary opinion as to the facts of history, and they were quite particular as to who ordered what, when, and how many people were killed in what places. That was in the eyewitness evidence. It was also in eyewitness evidence. But I don't know -- you will have to tell me what did Dr. Hilberg say in his evidence. Did he go into that kind of detail or did he just say, as a result of my investigation it is my opinion as a general fact of history that over 5 million European Jews were killed pursuant to the Nazi government policy? Well, my lord -- And I can see that being admissible as a matter of general history. That's not what he did. He gave very detailed history, and I think some measure of that can be found at page 380 and 381 of the case report. On the last full paragraph on 380, where it says: "Dr. Hilberg stated in cross-examination that he was of the opinion that there was an oral order for the extermination of the Jews given by Adolf 18311 Submissions by Mr. Adams 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 Hitler in 1941. He testified that there was a plan within the German high command for the 'treatment of populations' in the territory to be occupied in the U.S.S.R. This plan was submitted to Hitler who indicated that he wished certain changes to be made. The changes were made in April, 1941, and the directive was then resubmitted to Hitler. According to the document written by General Jodl, J-O-D-L, and which is in the West German Archives, Hitler said that he wanted the 'Jewish-Bolshevik Commissars' liquidated. Dr. Hilberg interpreted the order to mean that Hitler wanted the Jewish people and the Bolshevik Commissars to be liquidated." And there is more in the same vein that suggests, in my submission, that he was giving very detailed evidence about particular facts of history. THE COURT: It sounds like he gave it in cross-examination. MR. ADAMS: Yes. He gave evidence of a similar character on my reading of the report in chief as well. THE COURT: Well, I have to, of course, pay careful attention to the conclusions of the Ontario Court of Appeal. I would be much happier, though, if I knew precisely what Dr. Hilberg -- what his opinion was in a literal sense rather than a summary of it. It seems to me that if it is as I think it might be, it is not parallel to this case. If it is as you say it is, it may be parallel. MR. ADAMS: Again, my lord, at page 383 there is a recounting of the evidence of the counter expert. And in the middle of 383, there is the observation that: "The trial judge, at the conclusion of a voir dire, ruled that Dr. Faurisson should be permitted to testify as an expert witness on the same basis as Dr. Hilberg was allowed to testify, namely whether the German Government from 1933 to 1945 deliberately embarked on a scheme to exterminate Jews in Europe." And then there is a detailed accounting of his testimony which, so far as it is possible to tell from the report, is in chief. THE COURT: You see the other question I don't know is whether there is any objection to all of this. MR. ADAMS: Yes, there was. 18312 Submissions by Mr. Adams 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: Was there? MR. ADAMS: Yes. I think that will appear on page 342 in the headnote is the easiest way to get to it. And just above the "held", the previous two sentences: "On his appeal from conviction the accused argued that the evidence of the expert was inadmissible as it was founded on hearsay. While the appeal by the accused was allowed on other grounds, the Court of Appeal also dealt with the admissibility of this evidence." In holding that it was admissible. THE COURT: That doesn't say that it was objected to at trial. I don't know if it was or not. MR. ADAMS: That's something I can certainly determine. I don't know off the top of my head whether it was objected to at trial. There is a further indication of the detail of Dr. Hilberg's evidence in the last full paragraph on page 381. Where it has him examining railroad schedules and drawing inferences from those. And you'll see towards the bottom of 382 that: "Dr. Hilberg testified that he found the pamphlet published by the appellant to be a 'concoction, contradiction, untruth mixed with half-truths.' He was asked by Crown counsel at the trial to comment on various parts of the pamphlet and in substance he testified that those parts contained misstatements and were false." THE COURT: Well, I can understand that if he has given a general opinion that there was a policy that had been reached and whatever number of millions of souls who were exterminated, he could then, having given that opinion, look at the pamphlet and say it is not true. MR. WILLMS: Well, my lord, the pamphlet contained quotes attributed to Hilberg, so he was a real witness who said I never said that. That wasn't opinion evidence. He was a real witness talking about a document that he created that was in this pamphlet, so that's kind of misleading. MR. ADAMS: Well, to that extent only. He was not himself a witness to any other parts of it, and he apparently commented on them with equal freedom. The other thing that I point out to your lordship is at 383 the facts that there was a voir dire to decide whether Dr. 18313 Submissions by Mr. Adams 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. ADAMS Faurisson should testify at least raises the possibility that there was an objection to him testifying as an expert. : Yes, you're probably right. Well, no, in a criminal case we have to have voir dires whether it is asked for or not. : And again I will go back to the trial judgment and enlighten us all. Now, the discussion of the principles behind all of this and the basis for the admissibility of this evidence begins on page 384 of the extract under the heading D in the middle of the page "Whether the opinion evidence of Dr. Hilberg was inadmissible is founded on hearsay." And then after recording the contention of counsel for the appellant that it was hearsay and setting out the general proposition that experts can take into account the statements of others in forming opinions, the facts relied on had to be proved. At the bottom of 384 there is a discussion of exceptions to that principle. The court on page 385 and following identifies the two bases on which it says such evidence is admissible. And in the first full paragraph on 385, three lines into the paragraph: "The first is that events of general history may be proved by accepted historical treatises on the basis that they represent community opinion or reputation with respect to an historical event of general interest." And I don't say that the evidence tendered by the plaintiffs necessarily fits within that exception, but I do rely on the principle that the court says flows from that in the middle of 385 in the paragraph beginning: "If an historical treatise is admissible to prove an historical fact of general public interest, we think it should logically follow, if the conditions for this exception to the hearsay rule are met, that an expert historian may testify as to the existence of an historical event relying upon material to which any careful and competent historian would resort. The testimony of an expert historian is, in our view, superior to the admission of an historian treatise, because the expert can be cross-examined." 18314 Submissions by Mr. Adams 1 2 And there is the theme of the significance of 3 cross-examination again. And then over on 386, and I 4 am spending considerable time on this case, my lord, 5 because this is the only exstensive Canadian 6 consideration that is, in my submission, precisely on 7 point that is available to us. But in the first full 8 paragraph on 386 the court says: 9 10 "Dr. Hilberg's opinion did not, however, purport 11 to be based on reputation or community opinion. 12 His opinion was primarily based on an examination 13 and analysis of the documents which he described. 14 Dr. Hilberg's evidence, consequently, did not fall 15 strictly within the exception to the hearsay rule 16 that historical events of general interest may be 17 proved by accepted historical treatises which may 18 be assumed to evidence reputation or public 19 opinion as to the historical events sought to be 2 0 proved." 21 22 And then skipping a paragraph: 23 24 "The materials upon which Dr. Hilberg relied came 25 into existence contemperaneously with the 26 historical event in issue and were not created in 27 contemplation of litigation. They are part of the 28 source material of history to which any careful 29 and competent historian would resort and thus 30 satisfy the requirement of trustworthiness." 31 32 And that is what I again said was the link between Ms. 33 Mandell's submission as to the need for such a 34 guarantee and the usefulness to the courts of 35 historical opinion evidence. And then over on to 387, 36 I draw your lordship's attention to the second last 37 paragraph and the following passage: 38 39 "In our view, the expert opinion of Dr. Hilberg, 40 even though primarily based on the documentary 41 material described by him, which was hearsay, was 42 admissible to prove the existence of the 43 Holocaust. 44 The second exception which is relevant in this 45 case is that an expert witness may give evidence 46 based on material of a general nature which is 47 widely used and acknowledged as reliable by 18315 Submissions by Mr. Adams 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. ADAMS THE COURT MR. ADAMS THE COURT MR. ADAMS THE COURT experts in that field. This exception, however, has hitherto been confined to a few narrow classes of cases such as, for example, mortality tables and a standard pharmaceutical guide." : Mr. Adams, I notice it is after 5 o'clock. Is it convenient to adjourn? : I have one more piece of this case to bring to your lordship's attention and that might be a convenient moment. : All right. : It is towards the top of 389 in the second sentence of the first full paragraph after the quote. "The material upon which Dr. Hilberg relied in forming his opinion is material to which, as we have previously indicated, any careful and competent historian would resort. Having regard to the fact that his opinion related to an historical event of international interest, and the unlikelihood of obtaining living witnesses who had first-hand knowledge of Nazi government policy and its implementation with respect to the subject-matter of the Holocaust which lies at the foundation of the case, we are satisfied that Dr. Hilberg's opinion evidence, in the circumstances of this case, also fell within this hearsay exception and was therefore admissible on that basis." : The last thought I had on this, Mr. Adams, at this point is that simply it seems to me that however it was based Dr. Hilberg was giving evidence of a nortorious generally accepted fact, and he could have given that and that would have been enough, but he went on and he buttressed it with analysis of a lot of well-known documents and came to the same conclusion. He didn't come -- he didn't come to different conclusions or two different opinions based on the two different routes. He reached the same conclusion by both routes, didn't he? : Well, my lord, the fact is that there were two contrary experts testifying in the case who did not reach the same conclusion and arguably were not relying on nortorious facts of history because they disagreed on what those facts were. : You can always find an expert to have a contrary 18316 Submissions by Mr. Adams 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. ADAMS: opinion. One found favour with the jury and one didn't. But insofar as Dr. Hilberg's evidence is concerned, its admissibility can be justified on the general fact of history basis, regardless of whether it is accepted as the correct one or not without him having to go through all of this documentary analysis. : That may be so, my lord. I have historians coming in subsequent tabs who were arguably doing more than that. THE COURT: Yes. I will look forward to hearing from you more in the morning. THE REGISTRAR: Order in court. Court stands adjourned until 10 o'clock tomorrow. (PROCEEDINGS AJOURNED UNTIL July 7, 1989 at 10 a.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. LISA FRANKO, OFFICIAL REPORTER UNITED REPORTING SERVICE LTD.
First page numbered the same as last page of previous document, although the pages are different.
Trial proceedings
British Columbia
KEB529.5.L3 B757
English
Uukw, Delgam, 1937-
Indigenous peoples--Canada
Oral history
Wet'suwet'en First Nation
Vancouver : University of British Columbia Library
Vancouver : United Reporting Service Ltd.
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[Proceedings of the Supreme Court of British Columbia 1989-07-06]
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