Date: 20051107
Docket: T-66-86A and T-66-86B
Citation: 2005 FC 1476
Ottawa, Ontario, this 7th day of November, 2005
Present: The Honourable Justice James Russell
BETWEEN:
SAWRIDGE BAND
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
and
TSUU T'INA FIRST NATION
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
TABLE OF CONTENTS
Page
THE MOTION.............................................................................................................................. 4
BACKGROUND .......................................................................................................................... 6
ISSUES ........................................................................................................................................ 31
ARGUMENTS ........................................................................................................................... 32
The Crown's General Position ....................................................................................... 32
Failure to Comply With The November 25, 2004 Order............................................... 33
Continuing Deficiencies .................................................................................................. 35
The Plaintiffs' General Position ..................................................................................... 36
Compliance With November 25, 2004 Order................................................................. 36
Continuing Deficiencies ................................................................................................... 38
The Interveners .............................................................................................................. 38
ANALYSIS .................................................................................................................................. 38
Competing Approaches ................................................................................................... 38
Political Motivation ......................................................................................................... 40
Court-Crafted Solutions ......................................................................................... 42
The November 25, 2004 Order....................................................................................... 44
Completeness .................................................................................................................. 52
The Explanation................................................................................................................ 55
Abuse of Process.............................................................................................................. 66
Oral History Problems...................................................................................................... 67
Continuing Deficiencies.................................................................................................... 68
Compliance........................................................................................................................ 70
The "Philosophical Differences"..................................................................................... 76
The Pleadings.................................................................................................................... 96
The Case Law................................................................................................................. 105
Conclusions On The Scope of Pleadings....................................................................... 119
The Will-Says.................................................................................................................. 124
CONCLUSIONS ...................................................................................................................... 131
ORDER ..................................................................................................................................... 138
SCHEDULE "A"......................................................................... . . . . . . . . . . . . . . . . . . . . . . . 141
REASONS FOR ORDER AND ORDER
THE MOTION
[1] This is the first of two motions brought by the Crown and heard in Edmonton during the week of September 19, 2005. The motions deal with important issues of pre-trial disclosure, scope of pleadings, and the admissibility of witnesses and evidence by the Plaintiffs that were first raised with the trial judge at a Trial Management Conference on September 17, 2004.
[2] This first motion is brought by the Crown pursuant to paragraph 3 of Russell J.'s Order of November 25, 2004, which set out a procedure to allow the Plaintiffs to complete and serve their witness list and will-say statements, and for the Crown to raise any concerns about the materials so served.
[3] Having reviewed the witness list and will-say statements served by the Plaintiffs, the Crown says they are deficient and do not meet the required standards for disclosure and admissibility. For this reason the Crown asks the Court to strike certain of the will-says served by the Plaintiffs in their entirety, and to direct that the Plaintiffs shall not call those witnesses at the trial whose will-says have been struck.
[4] Alternatively, the Crown asks the Court to strike out those portions of the Plaintiffs' will-says that are found to be non-compliant or inadmissible, and to direct that the Plaintiffs shall not adduce evidence at the trial in respect of those portions so struck.
[5] In addition, the Crown asks for a period of approximately four (4) months to prepare for trial once the Plaintiffs' final witness list and admissible will-says have been determined.
[6] Behind both motions lie significant disagreements between the parties about what the pleadings encompass, and how best to organize and present the vast body of evidence the Plaintiffs say they need to call at trial in order to ensure the just, most expeditious and least expensive determination of the issues on their merits.
[7] The concerns on both sides are entirely understandable. The Plaintiffs seek to present a wide array of evidence to support a right to determine their own membership that is based upon aboriginal rights, treaty rights and title in their reserve lands, all of which the Plaintiffs seek to place in a broad historical and political context. The Crown, on the other hand, and quite apart from the pre-trial disclosure difficulties, wishes to prevent an expansion of the action into areas that go beyond the pleadings and the governing jurisprudence, and that neglects to put to good use the voluminous record that already exists from the first trial of this matter that took place in 1993 and 1994.
[8] These inevitable tensions have been exacerbated by what the Crown perceives as an expansionist approach to this litigation of late by the Plaintiffs, and the Plaintiffs' repeated refusal to submit to pre-trial disclosure in accordance with normal rules of procedure and specific orders made by this Court.
[9] In view of the long trial that lies ahead the Court has been asked to address these concerns now to see if anything can, or should, be done that will ensure a more just, expeditious and efficient trial.
BACKGROUND
[10] In more ways than one, history has laid a heavy hand on these proceedings. The pleadings raise matters of great historical significance between the Plaintiffs and the Crown. But the proceedings themselves, of which the present motion is a part, have a long and tortuous history that goes back to 1986. And even the specific issues of pre-trial disclosure and admissibility of evidence raised by the Crown in this motion have a considerable aetiology that has been complicated by previous motions and orders that the Court has been compelled to make to move this matter towards trial. All of these perspectives come into play on this motion, but time and space permit only a brief and skeletal account of what has led to the present impasse.
[11] I have already given a synopsis of much of the relevant background in my Reasons for Order of May 3, 2005 that dealt with an apprehended bias motion. For the sake of convenience, I think it would help if I merely reproduced here what was said on that occasion with some modifications required to bring the present motion into focus.
[12] The first trial took place in 1993 and 1994 before Muldoon J. who reached a judgment and issued reasons in 1995.
[13] The Plaintiffs appealed that decision and the Federal Court of Appeal ordered a new trial on the basis that the reasons of Muldoon J. gave rise to a reasonable apprehension of bias.
[14] Following the Federal Court of Appeal decision in 1997, Hugessen J. was appointed as case management judge on June 12, 1997.
[15] On June 13, 1997, Hugessen J. sent a memorandum to all counsel involved in the proceedings and invited them to apply jointly for a new trial date. No one responded.
[16] The lack of response eventually prompted the equivalent of a notice of status review on May 20, 1998 that required the parties to show cause why the action should not be dismissed for delay.
[17] This elicited a response from the Plaintiffs who advised Hugessen J. that they intended to seek an amendment to the pleadings so that they could take advantage of recent Supreme Court of Canada jurisprudence, including the decision in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.
[18] A show cause hearing was held on June 26, 1998.
[19] On September 23, 1998, the Plaintiffs brought a motion to amend their Statement of Claim. In their written submissions they made the following important arguments about the nature of their claim:
This is an action in which the plaintiffs seek a declaration of certain provisions added to the Indian Act in 1985 ("Bill C-31") granting membership rights in the plaintiffs Bands, are inconsistent with the provisions of section 35 of the Constitution Act, 1982, in that they interfere with the aboriginal and treaty rights of those Bands to determine their own memberships. ...
The proposed formulation of the rights to be asserted by the plaintiffs, and the application of the current law to those rights to be alleged by the plaintiffs, remain sufficiently closely connected to the plaintiffs' existing pleading that an additional second action is not necessary. Multiplicity of proceedings ought to be avoided.
The right to determine membership is a core right and even an essential element of any self-government claim. In fact, the defendant Crown accepts that there is an inherent right of self-government which includes at least some form of the right to determine membership.
[20] It is also significant that at the 1998 Amendment Motion hearing, Plaintiffs' counsel made the following statement:
... In fact, we are alleging, in my submissions the narrowest possible formulation of a jurisdictional right. We are saying, as a government, we have the right to determine who our citizens are.
Short of writing out the rules we apply, you can't be more specific than that. And that is exactly what Chief Justice Lamer says I have to be. I do have to define it as rationally and as centrally as possible. I can't be broad.
So when I put forward the new claim, we are not saying we have a right to self-government at large. That is not what this case is about. We are saying we have a right to this fundamental aspect of our self-government.
...
In fact, the original action and the new action are not inconsistent. The new pleading is simply an explication based on the old one. [emphasis added]
[21] These statements are important because there is now disagreement between the Plaintiffs and the Crown as to what the amendments allowed by Hugessen J. in 1998 were intended to encompass, particularly as regards the concept of self-government.
[22] Hugessen J.'s Order of September 23, 1998, granted amendments to the Statement of Claim on condition that the Plaintiffs, the Crown and the Interveners would provide a detailed list of those parts of the transcript from the first trial that they objected to being used as evidence in any new trial on the pleadings.
[23] On March 10, 1999, the Plaintiffs filed Fresh as Amended Statements of Claim.
[24] The Plaintiffs, however, did not like the condition regarding the use of the transcript from the first trial and objected to it. They took the position that evidence from the first trial should not be used in a re-trial because it had been tainted by the comments of Muldoon J.. The Crown and the Interveners took the position that all of the evidence from the first trial could be used at a re-trial except for the trial judge's comments and interventions.
[25] Hugessen J. rejected the Plaintiffs' position. He was concerned that allowing counsel to call witnesses who had already given their evidence would represent a huge expenditure of time and money, both private and public, and would not be cost efficient. As a result, on December 7, 2000, following a motion for directions arising out of his Order of September 23, 1998, Hugessen J. ordered that the transcript of any evidence from the first trial could be used in a re-trial, and that witnesses who had given evidence at the first trial could not give the same evidence in the second trial, although they could give other evidence.
[26] In making his Order of December 7, 2000, Hugessen J. said in his December 13, 2000 reasons that the "issues of the second trial are fundamentally the same as they were at the first," and he also observed that the "factual matrix" remained essentially the same:
The issues at the second trial are fundamentally the same as they were at the first. The changes in the law upon which the Plaintiffs rely, as those changes have been found by the Supreme Court of Canada in recent cases, do not have the effect of changing the factual matrix upon which the case must be decided.
[27] The Plaintiffs appealed Hugessen J.'s Order of December 7, 2000, but did not challenge his characterization of the issues or his assessment of the factual matrix.
[28] The Plaintiffs' appeal against the December 7, 2000 Order of Hugessen J. was dismissed. The Plaintiffs also appealed Hugessen J.'s Order of September 23, 1998. That appeal was also dismissed.
[29] Hugessen J. continued to encounter difficulties in moving the proceedings towards trial. It seems that orders he made simply were not followed. This necessitated his having to take tighter control of the case management process.
[30] For instance, on September 28, 2001, Hugessen J. decided that he had to set limits on the discovery rights of the parties:
...
I will, however [in lieu of setting a trial date as sought by an intervener], make a number of provisions which are intended to see to it that the parties move the matter forward. Obviously, the orders that I have made to date, which have largely not been complied with, have not been adequate to bring the matter on. Therefore I propose to do a number of things.
First, I am going to place a limit on examinations for discovery. All examinations are to be completed by May 1, 2002 ...
[31] The record shows that Hugessen J. found himself having to deal with "a pattern of uncooperative and obstructive behaviour on the part of the Plaintiffs' counsel" which he felt was "worthy of serious reprimand." As a consequence he found he had to reduce the Plaintiffs' discovery time.
[32] On November 30, 2001, Hugessen J. reduced the Plaintiffs' time for discovery of the Crown's representative by five days in the Sawridge action and ten days in the Tsuu T'ina action.
[33] But the difficulties did not end here. The Plaintiffs sought leave to put written interrogatories to each of the Interveners in this case. In reasons dated June 19, 2002, Hugessen J. found that some of the questions were "extraordinarily burdensome and would require a vast amount of work" that would serve no ultimate purpose. At this stage, Hugessen J. also said in the same Order:
Finally, and this too plays a large part in my exercise of discretion. This case has not had an easy path to date, and I do not see it having an easy path in the next months and years as we strive, all of us, to bring it on to trial. I do not impute motives to anybody because I accept that all parties and the Interveners have a genuine interest in having the case tried. I accept that unreservedly but if these interrogatories were allowed to stand, they would inevitably and beyond any shadow of a doubt add enormously to the time, already far too long, which would be required between now and the date when finally the Plaintiffs will stand and open their case before the Trial Judge.
[34] As Hugessen J. predicted, the path did not get any easier. In 2003, the Plaintiffs served 14,000 written interrogatories on the Crown which Hugessen J. struck as an abuse of the Court and ordered costs of $20,000.00 against the Plaintiffs.
[35] Discovery continued to be difficult. The Crown brought six (6) motions in each action regarding problems encountered during discovery; the problems included unfounded refusals and failures to provide timely answers to undertakings.
[36] Eventually, a pre-trial conference was held on February 27, 2004, and an Order issued dated March 26, 2004, that provided a comprehensive road map to take the matter to trial on January 10, 2005.
[37] Hugessen J.'s Pre-Trial Order of March 26, 2004, is central to what follows and is reproduced here in full:
1. The trial of these matters will take place at Edmonton, Alberta, starting January 10, 2005.
2. Completion of discoveries:
(a) Plaintiffs' answers to Crown's interrogatories to be served and filed by April 30, 2004;
(b) New Crown affidavit of documents to be served by April 30, 2004;
(c) Documents for which claims of privilege expire by lapse of time to be made available as expiry dates come due;
(d) Other "gap" documents (ie., omitted by error from previous production) to be produced by June 30, 2004.
3. Any discovery questions arising out of new documentary production are to be written interrogatories following leave obtained on motion pursuant to Rule 369.
4. Subject to any further directions from the Trial Judge the trials are to be held concurrently.
5. All expert reports for use at trial are to be served by July 15, 2004.
6. Rebuttal expert reports (which shall be limited to answering or contradicting any expert reports produced by others) are to be served by October 29, 2004.
7. Any other expert reports may only be produced by leave of the Court obtained on prior motion.
8. Any person desiring to lead oral history evidence shall serve a detailed summary thereof no later than June 30, 2004.
9. All persons intending to lead evidence at trial (including oral history evidence) shall serve witness lists and "will say" statements (including language if other than English and name of interpreter if known) on or before September 15, 2004.
10. Use of transcripts from the first trial is governed by the Order of December 8, 2000; persons intending to use such transcripts shall inform all other of which transcripts are intended to be so used on or before June 30, 2004.
11. Transcripts from discoveries intended to be read in by any person are to be served no later than November 15, 2004.
12. Any amendments to the pleadings shall be on leave obtained on motion brought pursuant to Rule 369 on or before May 18, 2004.
13. It is hoped to convene an early trial management conference to be presided by the Trial Judge to deal inter alia with:
(a) the formation of a document database for the trial;
(b) any problems relating to the interpretation of the evidence given in a language other than English.
14. The participation of interveners at the trial is the subject of Orders previously given by McNair J. on September 14, 1989 and Hugessen J. on May 26, 2000.
15. Interveners shall respect the various dates set out in the foregoing Order.
[38] Russell J. was appointed trial judge in late March, 2004 and, at this point, Hugessen J. ceased to have any further involvement with the proceedings.
[39] After being appointed trial judge, Russell J.'s first order of business was to deal with applications from both the Crown and the Plaintiffs to amend the pleadings. The Crown sought leave to amend its Statement of Defence and the Plaintiffs sought leave to further amend their Fresh as Amended Statements of Claim.
[40] Russell J. allowed some amendments but disallowed others for both the Crown and the Plaintiffs. The important matter to note, however, is that the Plaintiffs' proposed amendments would have included within their pleadings a general claim to self-determination at large.
[41] The Crown opposed the self-determination at large amendments on the grounds that they were not proper and went far beyond the pleaded position of the Plaintiffs' rights to control their own membership.
[42] The Plaintiffs disagreed with the Crown's position and said that their proposed amendments "do not affect the prayer for relief and do not create a new course of action."
[43] For reasons expressed in his Order of June 29, 2004, Russell J. disallowed those amendments proposed by the Plaintiffs that dealt with a new claim for self-determination or self-government at large, or that raised allegations about First Nations other than the Plaintiffs.
[44] This is what Russell J. said in his June 29, 2004 Order on this issue:
...
26. The contentious aspects of the Band's proposed amendments are objectionable for several reasons:
a) some of the proposed amendments to paragraph 8 conflict with previous rulings made by this Court that the Plaintiff in the action is the Band itself in its own right; and
b) some of the amendments would have the effect of enlarging the nature of the action and would bring in a new claim of self-determination; and
c) some of the amendments would further broaden the claims by raising allegations about first nations other than the Band.
27. In my view, the objectionable amendments I will later refer to do not clarify and focus issues for the Court. They raise new and contentious issues that will require further discovery and will further delay the trial. The late stage at which these amendments are proposed, their number and importance, the degree to which previously held positions are changed, and the inevitable prejudice that will result to the Crown (see Maurice v. Canada (Minister of Indian Affairs and Northern Development), [2004] F.C.J. No. 670, 2004 FC 528 at para. 10) convinces me that these amendments should not be allowed. In addition, some of them are just not relevant to the issues in dispute. As NSIAA points out, the effect of some of the amendments proposed by the Band would be "to put the Crown on trial for all of its conduct with respect to all First Nations in Canada. A trial that is now anticipated to take months could end up taking years to resolve." In addition, other amendments would "substantially expand the scope of this action and raise issues where there has been no discovery" in a context where "the amendments add nothing substantive to the Plaintiff's claim that it has an aboriginal right to determine its own membership ... ." In fact, it seems to me that the words "First Nation" now mean the plaintiff Band and only the plaintiff Band. No purpose is really served by having two different terms ("plaintiff" and "First Nation") to refer to the Band even though I have no real objection to this if the Band wishes to use both terms.
...
[45] The Plaintiffs did not appeal Russell J.'s June 29, 2004 Order dealing with the amendments.
[46] Russell J.'s first meeting with counsel for all parties occurred on September 17, 2004, in Edmonton. The general purpose of the meeting was to ascertain if there were any issues that still needed resolution following Hugessen J.'s Pre-Trial Order of March 26, 2004, and to discuss practical matters related to the administration of the trial that was due to commence on January 10, 2005.
[47] Russell J. discovered that all was not well between the parties. There were still important differences that needed to be resolved before the trial could begin. In fact, the points of contention were much more pressing than any of the practical and administrative topics that were raised.
[48] For purposes of the present motion before the Court, it is important to note that, on September 17, 2004, the Crown immediately raised with the trial judge fundamental concerns about "philosophical differences" between the Crown and the Plaintiffs over what the pleadings encompassed, and the nature of the witness list and will-say statements that the Plaintiffs had served on September 15, 2004, which was the deadline set by the Pre-Trial Order of Hugessen J. for the filing of those materials.
[49] The transcript of the September 17, 2004 Trial Management Conference indicates that the Crown felt there was a:
... basic difference in philosophy for some of the issues raised. It is the Crown's position that this case should be run in accordance with the pleadings, as amended, and therefore we have our view of relevance. What we see the potential for is expanding the scope of this trial beyond what is in the pleadings...
[50] As regards the will-says of the Plaintiffs, the Crown's position was that they were inadequate and did not comply with Hugessen J.'s Pre-Trial Order.
[51] The Court felt these were problems of such a magnitude that they needed to be dealt with quickly and before the trial began.
[52] The Plaintiffs were represented on September 17, 2004, by Mr. Henderson, Mr. Healey, and Ms. Twinn. The transcript shows that Mr. Henderson agreed with the Court that the differences in philosophy over the pleadings and important matters of relevance should be dealt with before the trial began. This is significant because Mr. Henderson ceased to be involved with the proceedings soon after the September 17, 2004 meeting, and Mr. Healey subsequently began to resist the Crown's attempts to raise scope and relevancy issues with the Court.
[53] The other important factor to note is that, on September 17, 2004, the Crown clearly connected its will-say concerns with the pleadings. The Crown's position from the beginning was that the issue of self-government required an interpretation of the pleadings, as amended, to discover what was determinative for the relevance of any evidence to be called at trial. The Crown has made it very clear, as part of the present motion and on previous occasions, that it does not take the position that there is no aspect of self-government in the pleadings. What the Crown disputes is the notion that the pleadings encompass a broad, generalized claim to self-government at large. Hence, the Crown objects to the Plaintiffs calling new evidence on that issue.
[54] The Court took the position that these were matters of such importance that they required full argument and should not be decided as part of a trial management conference. In fact, the Court directed, inter alia, that the will-say concerns of any party should be raised by way of motion, and the motions would be heard together.
[55] Following the September 17, 2004 Trial Management Conference, the Crown brought two motions related to the Pre-Trial Order of Hugessen J. dated March 26, 2004.
[56] On the second motion, the Crown applied to the Court to strike the Plaintiffs' witness list and will-say statements that had been served on September 15, 2004, for failure to comply with the Pre-Trial Order of Hugessen J. The Crown also asked the Court to direct that the Plaintiffs should not be allowed to call any of the witnesses on the list at the trial. The Plaintiffs did not bring a motion at this time concerning any perceived deficiencies in the will-says of the Crown or the Interveners.
[57] The Crown's motion required an interpretation of Hugessen J.'s Pre-Trial Order as it related to will-say matters, and Russell J.'s decision sets out how he went about doing that and the conclusions he reached.
[58] He decided that the witness list and the will-says presented by the Plaintiffs were deficient and were not adequate for preparation and effective trial procedure for a variety of reasons:
a) They were not individualized and were merely a large pool of potential witnesses and a list of topics;
b) The language to be used by each witness was not identified as required by paragraph 9 of Hugessen J.'s Pre-Trial Order;
c) The Plaintiffs had merely provided a list of topics rather than a synopsis of what each individual witness would say;
d) The statements pertaining to oral histories did not identify the actual past practices, customs and traditions of the community in question.
[59] Notwithstanding these deficiencies, the Court did not do what the Crown wanted it to do, which was to exclude immediately the individual witnesses identified from giving evidence.
[60] The Court was cognizant of the dispute between the Crown and the Plaintiffs concerning scope and relevance. So the Court struck the witness list and the will-says served by the Plaintiffs on October 18, 2004, for non-compliance and gave the Plaintiffs leave to apply to the Court with proposals for a "workable solution" to the problems caused by their non-compliance:
Bearing in mind the amount of time that remains before the trial begins on January 10, 2005, the Plaintiffs have leave to apply to the Court with proposals for a workable solution to the problems caused by their non-compliance with the Pre-Trial Order and their production of deficient witness lists and will-says.
[61] This approach needs to be placed in the context of what the Plaintiffs had argued before the Court in responding to the Crown's motion on the witness list and will-says. These matters are set out in Russell J.'s Order of October 18, 2004.
[62] First of all, the Plaintiffs took a very hard line and refused to acknowledge that there was anything wrong with the witness list and will-says they had produced on September 15, 2004, even though they were obviously not individualized and merely said that certain persons would "provide their testimony in their indigenous language." So the Plaintiffs did not ask for any additional time to complete their will-says or suggest ways in which the deficient materials they had produced could be improved.
[63] Also very telling was the fact that the list of potential witnesses identified between 140 -150 new names. Such a large body of witnesses had not been brought to Hugessen J.'s attention before he made his Pre-Trial Order of March 26, 2004. So it was not clear why the Plaintiffs needed so many new witnesses for a re-trial that, notwithstanding that Hugessen J. acknowledged it would require some new evidence and discoveries, dealt with issues that were "fundamentally the same as they were in the first" and in which the "factual matrix" remained essentially the same.
[64] So there were new factors for Russell J. to consider that had not been disclosed to Hugessen J. when he made his Pre-Trial Order of March 26, 2004.
[65] As for the contentious issue of relevance to the pleadings, the Plaintiffs merely asserted that they had an absolute right to call whoever they wanted, and the Court could not interfere. This insistence was not modified in any way by an acknowledgement of the relevance issue which the Crown had identified at the Trial Management Conference on September 17, 2004, and which the Plaintiffs and the Court knew the Crown intended to raise in a future motion.
[66] It was clear to the Court that the position of the Plaintiffs at the hearing of the motion was that their materials complied with the Pre-Trial Order and that they had an absolute right to call any witness they chose to call. The Court summed up the problems as follows:
...
47. The Plaintiffs have been given every opportunity to present their case in the way they consider appropriate. They have chosen, however, not to produce a true witness list or meaningful will says in accordance with a Court order that required them to do so by September 15, 2004. Instead, the Plaintiffs propose to take the Court and the other parties down a path that has no clear end in sight and that will lead to chaos at the trial. The Plaintiffs could have suggested ways to remedy the situation but they have chosen not to, and now raise "practical difficulties" that should have been raised and addressed long ago. They have, in effect, decided to put the whole conduct of the trial on the line. Under these circumstances, the rights of the other parties and the integrity of the litigation process require the Court to act in a decisive manner before the whole process subsides into chaos.
...
[67] Also of note, and clear from the transcript of the motion hearing, is that when Russell J. attempted to find out if there were, perhaps, undisclosed problems that had prevented compliance, the Plaintiffs began to hint at "practical difficulties" they had experienced. For reasons given, the Court did not find their explanations acceptable.
[68] So the Court was faced with a situation where the Plaintiffs argued strenuously for substantial compliance of their will-says with the Pre-Trial Order of Hugessen J. and then suggested that they had been experiencing practical difficulties.
[69] It is also of note that the Order made by the Court striking the materials produced by the Plaintiffs on September 15, 2004, and asking for a proposal for a "workable solution," was not appealed by the Plaintiffs.
[70] In November, 2004, the Plaintiffs came back to the Court with a motion dealing with the "workable solution" that the Court had asked for.
[71] The gist of the Plaintiffs' proposal was that they would produce up to some 150 will-says by December 14, 2004, the trial would go ahead on January 10, 2005, and the Crown would have some 26 days (much of it the difficult Christmas season) to review the materials produced and raise any problems with the Court.
[72] The Court felt this was not a workable solution that took into account the reasonable interests of the other parties to the action. It was merely a proposal by the Plaintiffs to do by December 14, 2004, what they should have done by September 15, 2004, combined with a suggestion that the scope and relevancy issues raised by the Crown could be dealt with by the Court in some vague kind of way (but only after consulting with the Plaintiffs). There was no mention of the motion the Crown intended to bring before January 10, 2005, or how it could be accommodated in the time-frame proposed by the Plaintiffs.
[73] This looked to the Court like an attempt by the Plaintiffs to profit from their own breach of Hugessen J.'s Pre-Trial Order, and the Court said so in no uncertain terms.
[74] The Crown took the position with the Court that, because the Plaintiffs had clearly not come up with a "workable solution," the Court should deny the motion and move forward to trial on the basis of the relevant portions of the record of the first trial and other materials filed to date.
[75] Once again, however, the Court rejected such a draconian approach and decided to impose a scheme that would allow the Plaintiffs to produce their will-says by December 14, 2004, (the date they had asked for) and then to put in place an orderly schedule to allow the Court to hear the Crown's concerns about scope and relevance.
[76] The Court's decision of November 25, 2004, is such a key document in this motion that it will be helpful to reproduce the reasons and the order in full:
I do not believe this motion is the appropriate place to examine the criticisms made concerning the content of the will say statements produced to date by the Plaintiffs, except that the Court must acknowledge the clear indication that challenges are likely to be made and that they may well be made before trial. The parties hold widely divergent views as to what this trial should deal with and, in light of the large number of witnesses the Plaintiffs have indicated they intend to call, the Crown and the Interveners have justifiable concerns about the barrage of further evidence and what it means for the conduct and duration of the trial. Normally, of course, I would leave these matters to be dealt with at trial, but the history of this action has shown time and again that it would be naive to assume that normal procedures will suffice. I have taken careful note of Mr. Justice Hugessen's words in his order of March 6, 2002 that he was "driven to the regretful conclusion that the parties are simply incapable or cannot be trusted to conduct this litigation themselves even when case managed." This motion and the reasons for it are ample proof that nothing has changed in this respect. Because the Plaintiffs have not yet produced a new witness list, and because at the time of the motion hearing they have only put forward 18 will say statements out of a possible 140 - 150 (some of them obviously highly controversial), the Court is in no position to assess what the situation will look like once the Plaintiffs have delivered the full quota. I am simply not willing to go forward in the hope that all will be well when so little is known about the Plaintiffs' witnesses, their number, or why they are even necessary, and the history of the action indicates that repeated Court intervention has been necessary to avoid procedural quagmires and tactical stand-offs.
My concern at this stage remains fairness to all parties to the extent of their respective interests. My review of the Plaintiffs proposal suggests to me that its essence is that witness lists and will says that should have been served on or before September 15, 2004 will now be served on or before December 14, 2004. The trial should still commence on January 10, 2005, so that the Crown and the Interveners will have a fairly short time period (and one that includes the Christmas season) to review the material, prepare for trial and complete any challenges they may wish to make. The Plaintiffs will thus secure a three-month extension with no real compensatory concessions to the other side to deal with the consequences of the Plaintiffs' default. If Mr. Justice Hugessen ordered the serving of witness lists and will says four months before the trial, I am sure that, with his knowledge of this action and his obvious concerns about the conduct of the parties, he had good reason for doing so. And when he made his order of March 26, 2004, it must also be kept in mind that he did not know that the Plaintiffs intended to call approximately 140 to 150 witnesses to supplement the voluminous record that already exists on the issues in this dispute. It would be sheer folly for the Court to now jettison Mr. Justice Hugessen's wisdom, as embodied in his order, and to go forward on the basis of the Plaintiffs' proposal.
Viewed against the framework of Mr. Justice Hugessen's Pre-Trial Order, the Plaintiffs' proposal looks to me like an exercise in rank opportunism that is dismissive of the rights of other parties and the procedures that Mr. Justice Hugessen forged to deal with the exigencies of this action.
To accept the Plaintiffs' proposal would be to accept and condone their taking an additional three months to produce a witness list and will say statements without much in the way of an explanation, other than repeated complaints that they are very busy. The Court might have been more convinced by their inadequate excuses if they had come forward to discuss the problems before default occurred, and if they had raised and explored with Mr. Justice Hugessen why it was necessary to call in excess of 140 witnesses for a re-trial of issues for which there is already an extensive record. The Plaintiffs say they need "many voices" to make their case, but until the witnesses are finally identified and the will say statements are produced, there is no way for anyone to judge whether their purpose is genuine or obstructive, or what implications this might have for trial preparation and the conduct of the trial itself.
In the end, the Court is faced with a difficult choice in this motion. To allow the Plaintiffs to proceed as they suggest would be to allow them to profit from their non-compliance with Mr. Justice Hugessen's Pre-Trial Order at the possible expense of the rights of other parties and disastrous consequences for the conduct of the trial. The Plaintiffs' proposal is not a "workable solution" to the problems caused by their default. The Plaintiffs have indicated that, although they think the standards set for the will says in my order of October 18, 2004 are high, they accept them and are willing to comply with them. But the pre-trial record is far from complete and the trial schedule and trial process remain impossible to chart and anticipate in any meaningful way.
At the same time, the Court is very much concerned to ensure that the Plaintiffs are given the opportunity to make their case in the most effective way possible. The Court does not wish to interfere with normal trial procedure or place obstacles in the way of the Plaintiffs calling those witnesses they feel they need to assert their position. Any interference by the Court at this stage would, under normal circumstances, be unnecessary.
But as the history of this action has proved on several occasions, leaving the parties to follow normal procedures results in total inertia or administrative chaos. The parties - in this case the Plaintiffs - simply cannot be trusted to conduct this litigation themselves.
Reluctantly, then, I have come to the conclusion that it would be derelict of this Court to allow the parties to go to trial until the Plaintiffs' witnesses have been fully disclosed, adequate will say statements have been produced, the Crown and the Interveners have been given a reasonable opportunity to review the witness list and the will says, and the Court itself is satisfied that the barrage of witnesses (revealed for the first time on September 15, 2004 and apparently not raised with Mr. Justice Hugessen) is a legitimate exercise by the Plaintiffs of their litigation rights.
The stark alternative would be to simply deny this motion and move forward to trial on the basis of the relevant portions of the record of the first trial and the other materials filed to date. The reason I am rejecting such a draconian approach at this time (although I do not rule out that it may yet be necessary) is that this action has repeatedly required Court intervention to move forward. This has, unfortunately, resulted in a culture of dependancy and non-cooperation. The Court has been forced repeatedly to revert to its general powers and obligations under Rule 3 of the Federal Court Rules, 1998 to ensure the most just, expeditious and least expensive determination of every proceeding on its merits. I believe it would be unrealistic and foolish for the Court to now retreat and expect the parties to somehow miraculously change and manage the progress towards trial in the normal manner.
In view of the belated disclosure that the Plaintiffs intend to call in excess of 140 witnesses at trial, their breach of Mr. Justice Hugessen's Pre-Trial Order, and their failure to provide a workable solution to the problems caused by that breach, the Court is no longer willing to accept on trust that the Plaintiffs require such a prodigious number of witnesses to support claims for which there is already a voluminous record covering the same issues.
ORDER
1. The Plaintiffs' motion is denied. However, on or before December 14, 2004, the Plaintiffs will serve the Crown and the Interveners with their witness lists and will say statements in a form that complies with Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004, as that order has been further interpreted by this Court, together with a schedule indicating the sequence and the duration for calling their witnesses at trial;
2. On or before December 21, 2004, the Plaintiffs will file with the Court and serve upon the Crown and the Interveners a brief but adequate explanation as to why each of the witnesses disclosed on their witness list is a necessary and material witness, having regard to the following:
(a) the issues of this claim as addressed in the recently amended pleadings;
(b) the fact that this is a re-trial and there is an extensive record of evidence available from the first trial on many of the same issues - including oral history evidence - and evidence at the second trial should not duplicate evidence already given and available;
(c) the fact that the parties are able to read-in evidence from the first trial as well as any additional evidence obtained from further discovery following the order for a re-trial;
(d) paragraph 2 of the order of Mr. Justice Hugessen made December 8, 2000, directs that "no person who testified at the first trial should be called to give evidence at the new trial unless the party wishing to call such person satisfies the trial judge that such person is likely to give evidence that was not given by the person at trial";
3. If the Crown takes objection to the witness lists and will say statements produced by the Plaintiffs in accordance with paragraphs 1 and 2 above, it will bring any such objections and its suggestions for dealing with them to the attention of the Court by way of motion on or before January 8, 2005 or will inform the Court by that date (and sooner if possible) that it has no objections;
4. The Plaintiffs shall have until January 14, 2005 to serve and file responding materials for any such motion as may be brought by the Crown;
5. The date for the hearing of the motion shall be set by the Court after consultation with the parties and shall take place as soon as possible in January 2005;
6. At the hearing of the motion, the Court will hear representations from the Crown, the Plaintiffs and the Interveners and decide if any of the witnesses proposed by the Plaintiffs should be called at the re-trial and any other related matter;
7. The scope of the participation of the Interveners in the motion shall be in accordance with the practice followed to date unless the Court has by that time issued a separate order limiting the participation of the Interveners in any such motion;
8. The commencement of the trial shall be adjourned from the January 10, 2005 date set by Mr. Justice Hugessen to a new date to be set by the Court following the resolution of the matters referred to in this Order and any further representation from the parties concerning required preparation time following the motion and any decision made concerning the motion. The parties should anticipate that any such adjournment period will be relatively brief and they should vigorously continue their preparation for trial accordingly;
9. The written statement deadline of December 15, 2004 shall be extended to allow the parties time to respond to the outcome of the motion and a new deadline date will be set by the Court after hearing representations from the parties on this issue;
10. Any party may address the Court on the matter of costs for this motion.
[77] The present motion by the Crown is made pursuant to the November 25, 2004 Reasons and Order.
[78] It is important to note that the Orders of Russell J. of October 18, 2004, and November 25, 2004, have not been appealed by the Plaintiffs and that the scheme outlined in those Orders for dealing with the deficient will-says, the scope of the pleadings, and relevancy issues before the trial begins has been accepted by both sides of the dispute. In particular, the Plaintiffs have indicated in subsequent conference call meetings their understanding that the Crown motion dealing with the Plaintiffs' will-says is also intended to deal with the disagreements between the parties over the scope of the pleadings and the significance of the pleadings for the admissibility of evidence.
[79] Several other significant matters are material for the present motion. Of particular note is a de bene esse hearing held in Calgary on December 13, 2004, to receive the evidence of Ms. Florence Peshee, a witness for NSIAA, one of the Interveners. At that hearing, the Plaintiffs asked the Court to exclude certain evidence that Ms. Peshee tried to give on the basis that it had not appeared in her will-say statement, served in accordance with Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004. The Court accepted the Plaintiffs' arguments on this point and ruled in their favour to exclude the evidence.
[80] Following Russell J.'s Order of October 18, 2004, that struck the Plaintiffs' will-says, on Friday, October 22, 2004, the Plaintiffs faxed a letter to the Crown enclosing what were described as the will-say statements of John Auger (with respect to Action # T-66-86A) and Bruce Starlight (with respect to Action # T-66-86B).
[81] On Friday, November 5, 2004, the Plaintiffs then faxed their eight (8) letters to the Crown enclosing the purported will-say statements for sixteen (16) further potential witnesses for a total of eighteen (18) up to and including November 5, 2004.
[82] During the hearing of the Plaintiffs' motion on November 18, 2004, for a "workable solution" to the problems caused by their breach of Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004, Counsel for the Plaintiffs, Mr. Healey, made the following submissions:
Thank you. Well, My Lord, I'll - I can deal with my position as set out in my Notice of Motion very quickly.
WE, have upon receiving your ruling of October 28th (sic), been preparing Will Say statements. There are I think approximately twenty (20) that have been served and filed. They're detailed, they're individualized, they identify the language that the person will speak to and the evidence.
In my submission they comply with all of the requirements. My Lord, that Your Lordship indicated. In fact they go even further, they are extremely detailed. Much more detailed than, for example, was contemplated by the Order of Mr. Justice McKay in the buffalo (sic) case.
[83] On the same day, i.e. November 25, 2004, the Plaintiffs, faxed a letter to the Crown enclosing purported will-say statements for two (2) further potential witnesses for a total, up to and including November 25, 2004, of twenty (20) will-say statements.
[84] No further will-says statements were received from the Plaintiffs until shortly before midnight on Tuesday, December 14, 2004, and continuing into the early hours of Wednesday, December 15, 2004, when the Plaintiffs sent a series of seven (7) emails to the Crown attaching a witness list and purported will-say statements for a further thirty-seven (37) potential witnesses.
[85] Also on Wednesday, December 15, 2004, the Plaintiffs' Solicitor, Ms. Twinn, emailed a letter to the attention of Russell J. at the Federal Court and copied the Crown in which she indicated there were eight (8) more people she intended to provide will-says for. Of these eight (8), the Crown was provided with draft will-says for three (3) of them and no will-say statements for the remaining five (5) people. In addition, two (2) of these eight (8) proposed witnesses are identified by Ms. Twinn as people who "have just been identified as persons I should speak with. I learned of Jacob Bell last night and Oliver Colomb today."
[86] The witness list provided to the Crown on December 15, 2004, includes ten (10) witnesses who were not on the original witness list of September 15, 2004.
[87] By faxed letter sent on December 21, 2004, to Russell J. and copied to the Crown, Plaintiffs' Counsel enclosed their "...explanation ...why each of the witnesses disclosed on their Witness List is a necessary and material witness."
[88] By separate letter faxed on December 21, 2004, the Plaintiffs sent a will-say statement for Senator St. Germain.
[89] As indicated in the November 25, 2004 Reasons of Russell J., the present motion represents the Court's first opportunity to review the witness list and will-say statements produced by the Plaintiffs following the striking of the materials they had produced on September 15, 2004.
[90] In summary, the present motion by the Crown is a consequence of directions which the Court gave as part of the September 17, 2004 Trial Management Conference for dealing with defective will-says of the Plaintiffs and to try and sort out the dispute about relevance that stems from the wide differences between the parties over the scope of the pleadings. The process for dealing with these issues prior to trial has been refined by subsequent Court orders that bind both sides and which have not been appealed. Most immediately, the Court is being asked by the Crown to implement the procedure laid out in the November 25, 2004 Order for dealing with the these difficult issues.
ISSUES
[91] Under the particulars of the present motion, the Crown raises the following issues:
18. Having regard to:
a) the "detailed summary" of the Plaintiffs' oral history evidence served upon the Crown on June 30, 2004;
b) the requirements of the November 25, 2004 Order;
c) the Plaintiffs' proposed witness list and witnesses' will-say statements served on December 14 and early on December 15, 2004; and
d) the Plaintiffs' explanation served on December 21, 2004;
are the Plaintiffs entitled to call all or some of their proposed witnesses? In respect of those witnesses whom this Honourable Court permits the Plaintiffs to call to give testimony at the trial of these actions, are there any limitations on the topics they will be allowed to testify in respect of? And how should this impact the commencement of the trial?
ARGUMENTS
The Crown's General Position
[92] The Crown takes issue with what the Plaintiffs have produced in terms of will-say statements and their explanation for their approach to the evidence on two broad grounds. First of all, the Crown says the Plaintiffs have simply failed to comply with the requirements of the November 25, 2004 Order. Secondly, the Crown says that, even if compliance has occurred, what has been produced in terms of will-says is so deficient in terms of the level of disclosure required, and is so objectionable in terms of relevance and the rules of evidence, that the Court should intervene at this stage to ensure that the progress of the trial is not hampered by major irrelevancies and otherwise inadmissible evidence.
Failure To Comply With The November 25, 2004 Order
[93] The November 25, 2004 Order required the Plaintiffs, among other things, to serve the Crown and the Interveners with will-say statements that complied with Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004, as further interpreted by the Court, together with a "brief but adequate explanation" as to why each witness was necessary and material, given the pleadings, the record available from the first trial, and Mr. Justice Hugessen's December 8, 2000 Order barring persons who testified at the first trial from testifying at the second trial without leave of the Court.
[94] The November 25, 2004 Order was intended to ensure that the Plaintiffs made full pre-trial disclosure as already ordered by the Court, that efficient use was being made of the record available from the first trial, and that the Plaintiffs were not expanding the scope of the action through the introduction of witnesses and evidence that went beyond the issues raised in the pleadings.
[95] The Court acknowledged the somewhat extraordinary nature of this approach but explained why it was necessary, given the history of the proceedings and the intractable position taken by the Plaintiffs over evidentiary matters.
[96] The Crown says that the Plaintiffs have failed to meet the deadlines or to comply with the spirit and intent of the November 25, 2004 Order.
[97] The Crown says it is willing to overlook the fact that service of fifty-seven (57) of the will-say statements was effected, technically at least, after the December 14, 2004 deadline, but problems still remain:
(a) The Plaintiffs committed themselves to providing all will-says by December 14, 2004. However, a letter of December 21, 2004, from the Plaintiffs' solicitor of record suggests that more will-says will be forthcoming and that the Plaintiffs will need more time. No formal motion has been made to this effect and the Court has no evidence before it to justify any such extension. Hence, any will-say statements served by the Plaintiffs after 1:00 a.m. on December 15, 2004, must be considered out of time as regards the Court's November 25, 2004 Order;
(b) For those will-says that were served within time, the Plaintiffs letter of December 21, 2004, did not provide the "brief but adequate" explanation as to why the evidence was either material or necessary given the criteria set out in the November 25, 2004 Order;
(c) There are ten (10) names that appear on the December 15, 2004 witness list whose names were not on the witness list provided by the Plaintiffs on September 15, 2004. This means that the Plaintiffs have used the opportunity created by their own breach of Mr. Justice Hugessen's March 26, 2004 Pre-Trial Order to find new witnesses to respond to the will-says of the Crown and Interveners. This is an abuse of the Court's process that should not be allowed.
Continuing Deficiencies
[98] Quite apart from the Plaintiffs' failure to honour their own commitment and to comply with the November 25, 2004 Order, the Crown says that the will-says produced by the Plaintiffs continue to be deficient in a variety of ways that require the Court at this stage in the proceedings to exclude proposed witnesses and/or evidence from the trial.
[99] Not all of the will-says are defective in the same way and to the same extent, but the Crown wants the Court to examine them closely for the following deficiencies:
(a) Irrelevant and Immaterial Testimony;
(b) Hearsay Evidence;
(c) Oral History Not Previously Disclosed;
(d) Opinion Evidence;
(e) Lack of Sufficient Detail;
(f) Duplicative Evidence;
(g) Self-Government Negotiations between the Crown and the Plaintiffs that are irrelevant and/or without prejudice;
(h) Inadmissible Political Evidence.
The Plaintiffs' General Position
[100] The Plaintiffs take the position that their will-says are now fully compliant with the November 25, 2004 Order and that any deficiencies raised by the Crown are non-existent and, in any event, cannot be dealt with in a pre-trial motion at this time and require the context that can only occur when the individual witnesses are called at trial. The Plaintiffs also argue that, even if they have not made full disclosure in accordance with previous orders of this Court, the appropriate remedy is to have the Plaintiffs rectify the deficiencies of disclosure, not to preclude the Plaintiffs from calling the evidence they want to call at trial.
Compliance With November 25, 2004 Order
[101] The Plaintiffs recognize their responsibility to comply with directions contained in the November 25, 2005 Order but submit that they have done so.
[102] They say that the principal purpose of the November 25, 2004 Order was to prevent "duplication" of evidence already available to the Court from the transcripts of the first trial, and to give the Crown a fair opportunity to raise objections to the evidence that the Plaintiffs propose to call on the basis of "duplication" alone.
[103] As regards the implicit suggestion in the letter of December 21, 2004, that eight (8) additional witnesses will need to be called, the Plaintiffs agree that any requests for additional witnesses will require a formal motion, but they say that the Court should not foreclose future motions to this effect by making a ruling now that the Plaintiffs can only call witnesses for whom they have submitted will-says to date.
[104] As regards the requirement in the November 25, 2004 Order that the Plaintiffs provide a "brief but adequate explanation" as to why the proposed witnesses are necessary and material with regard to the specific criteria listed in that Order, the Plaintiffs say that the explanations provided in their solicitor's letter of December 21, 2004, provide the Crown with all the detail needed to raise objections on the basis of duplication. To remove any lingering doubts on this issue, the Plaintiffs have, more recently, also provided the Crown with a list of the relevant paragraph numbers in the Plaintiffs' pleadings to which their new evidence relates.
[105] When it comes to the accusations of an abuse of the Court's process through the introduction of new witnesses who did not appear on the September 15, 2004 list, the Plaintiffs say that they merely became aware of more witnesses who could provide relevant evidence and there is no evidence of an abuse of process. In any event, the Court has a discretion under Rule 8 of the Federal Court Rules, 1998 to grant extensions of time and, given the scope and complexity of the trial, the importance of the issues, and the absence of any real prejudice to the Crown, there is no real substance to the Crown's abuse of process argument and it should be dismissed.
Continuing Deficiencies
[106] As regards the Crown's objections that the will-says submitted to date by the Plaintiffs attest to matters and propose evidence that the Court should exclude now for a variety of reasons, the Plaintiffs take issue with each of the specific grounds for exclusion raised by the Crown, but they also point out that the admissibility of evidence should not be determined in advance of trial because the Court does not yet have the wherewithal to make an effective assessment on admissibility, which can only be done as each individual witnesses is called and argument is heard.
The Interveners
[107] The interveners have indicated that they are generally supportive of the positions taken by the Crown on this motion, and that the Court needs to examine the will-says submitted by the Plaintiffs to date against the criteria established in the November 25, 2004 Order and the pleadings and make a determination of what, in a general sense at least, should be excluded.
ANALYSIS
Competing Approaches
[108] All of the parties acknowledge that the Court has the discretion to address the matters raised in this motion. We are facing a long trial. There is a considerable difference of opinion between the Crown and the Plaintiffs as to what the pleadings encompass and what evidence can, or should, be called to address matters of relevance to the pleadings. And there is also the fact that an extensive record is available from the first trial that should not be duplicated, except for good reason.
[109] The Plaintiffs are of the view that extraordinary disclosure has already been made in this case and that the nature of the proceedings should not allow the degree of curtailment and confinement that the Crown is seeking. The Plaintiffs say that, inevitably, the trial will be long and complex, and flexibility is required to some extent when it comes to the identification of witnesses, disclosure of what they will say, and the need for further witnesses as required from time to time.
[110] The Plaintiffs are of the view that the duty of the Court is to ensure that evidence is allowed on all matters raised by the pleadings and that the Court must retain the flexibility needed for this purpose and take the steps necessary to prevent real prejudice to the parties occasioned by the need for further evidence as and when the need arises.
[111] In view of the long and difficult history of these proceedings and past actions of the Plaintiffs, the Crown and the Interveners feel that the flexible approach advocated by the Plaintiffs is a prescription for chaos at the trial that will prevent the just, most expeditious and least expensive determination of the issues on their merits.
[112] The Crown and the Interveners also suspect that the Plaintiffs are urging a more flexible and expansive approach on the Court because the Plaintiffs are engaged in a clandestine effort to expand the scope of the pleadings for political, rather than strictly legal, purposes. Having been denied the right to amend the pleadings on two occasions to include broad claims to self-government, the Crown says the Plaintiffs now seek to substantiate and assert those very claims through the introduction of inappropriate evidence. What is more, the Plaintiffs' refusal to make full will-say disclosure, in the face of Court orders that require them to do just that, should alert the Court to the Plaintiffs' political motivations.
[113] More specifically, the Crown and the Interveners point out that the approach that the Plaintiffs wish to adopt in relation to the conduct of the trial has been examined and rejected by this Court both during the case management phase conducted by Mr. Justice Hugessen, and through the orders, directions and rulings that Russell J. has been compelled to make since his appointment as trial judge. From this perspective, the Plaintiffs are merely refusing to comply with what the Court has already ordered.
Political Motivation
[114] As far as political motives are concerned, the Court has no more reason or inclination to be suspicious or censorious of the Plaintiffs for taking a broader approach to these proceedings that it does of the Crown for wishing to contain them. It is obvious that the claims have a political dimension that is a necessary concomitant of the rights asserted. It is both unnecessary and unrealistic, for example, to assume that if the Plaintiffs can establish a right to control their own membership they will not also have made some progress towards whatever degree of political autonomy they aspire to.
[115] In my view, there is nothing wrong with the Plaintiffs using the Court process to gain legal recognition for rights that, once recognized, will advance their broader political objectives towards self-government, conceived broadly or narrowly.
[116] The issue for the Court, however, is whether such a broad-based objective is contemplated by the present pleadings and/or is justiciable in accordance with the governing jurisprudence.
[117] So political motivation, on either side, is not the issue in this motion as far as the Court is concerned.
[118] It is, however, the sincerely held and vigorously asserted political positions on both sides that have dictated the somewhat unusual discovery and disclosure process to date. Up to now at least, neither side has been much in the mood for concessions, and this has meant a lengthy pre-trial procedure and serious Court intervention to move matters along. Both sides need to acknowledge this and to seek to minimize the inevitable tensions and convolutions in both the pre-trial and trial phases whenever the interests of the parties allow. But there is a world of difference between inevitable polarizations that require a Court-crafted solution, and the kind of outright hostility that has sometimes marred and mired these proceedings in the past.
Court-Crafted Solutions
[119] Both sides must recognize that the Court-crafted solutions to problems that have arisen during the course of the discovery and disclosure phase are the result of the sometimes hostile stand-offs adopted by the parties. As Mr. Justice Hugessen has said, and as I have noted on previous occasions, there have been times in these proceedings when one or other of the parties has revealed that they are "simply incapable or cannot be trusted to conduct this litigation themselves, even when case managed."
[120] In particular, the Plaintiffs continue to complain, even in this motion, that the amount of pre-trial disclosure ordered is somehow exceptional and that " the Crown has been accorded far more pre-trial disclosure than that to which it is entitled in the usual case." As successive Court orders have made abundantly clear, this is not the usual case.
[121] This motion, by and large, is about the adequacy and appropriateness of the Plaintiffs' will-say statements. The Plaintiffs insist that "the provision of will-say statements by a civil litigant are (sic) highly exceptional." Whether that is so or not is beside the point. Will-says from both sides, as well as the Interveners, were ordered in this case because the parties showed themselves incapable of conducting this litigation in accordance with normal procedures. Will-says were ordered by Mr. Justice Hugessen in his Pre-Trial Order of March 26, 2004, as part of his Court-crafted solution to problems he perceived in the pre-trial disclosure process. The Plaintiffs accepted that solution and did not appeal Mr. Justice Hugessen's Order.
[122] When Russell J. joined the process and met with counsel on September 17, 2004, it was immediately apparent that there were continuing problems over pre-trial disclosure, and the will-says in particular. So the Court provided further guidance as to what was required in its Order of October 18, 2004. The Plaintiffs did not appeal that order and also told the Court at the hearing on November 18, 2004, that the will-says they would produce would "comply with all the requirements" and "in fact, they go even further, they are extremely detailed."
[123] The Plaintiffs have also reassured the Court that they are content to work within the rules set by the Court, and they merely ask that other parties be held to the same rules. As regards the will-says, the Plaintiffs took the following position at the January 7, 2005 conference meeting:
My Lord, you set the rules, and we have complied by them as best we can. And we are working under the rules that have been set by the Court. So the Plaintiffs have presented their case through the service of will-say statements and the December 21 submission in accordance with the way in which the Court has permitted the Plaintiffs to present their case, and we want to proceed on that basis and have my friends comply in the same way.
(Transcript, page 15: 18 - 26)
[124] The Plaintiffs cannot have it both ways. The rules on pre-trial disclosure and the will-says have been set by the Court in response to the parties' own lack of progress in the disclosure process. Those rules have been accepted by the Plaintiffs. The Plaintiffs have reassured the Court that they accept the rules, and they ask that all parties live within them. To now argue, as the Plaintiffs do in this motion, that the degree of pre-trial disclosure is somehow unusual and unwarranted and that we should, somehow, just begin again, not only contradicts previous assurances given by the Plaintiffs to the Court, but entirely leaves out of account the long and fraught history of these proceedings and the solutions the Court has been compelled to provide to problems for which the Plaintiffs are, to a large measure, responsible.
[125] What this means is that the Court cannot, at this stage, merely abandon the framework for disclosure and assessment of will-says established in previous court orders for an approach that better suits the Plaintiffs' present predicament in the proceedings. All parties, including the Plaintiffs, must now live with the framework they have helped to create. The slate cannot just be wiped clean. The Orders of October 18, 2004, and November 25, 2004, in particular, are res judicata, and establish a process for reviewing the will-says and excluding witnesses and evidence. They are the rules that the Plaintiffs have already told the Court they will live by, and which they want others to live by.
The November 25, 2004 Order
[126] The tensions and polarizations I have described above are all manifest in the Court's Order of November 25, 2004, which was yet another attempt at a Court-crafted solution under extraordinary circumstances to move the parties towards trial.
[127] I have already quoted the Order in full at paragraph 76 of these Reasons. However, the following salient findings and conclusions need to be borne in mind for the purposes of the motion presently before the Court:
a) The "Parties hold widely divergent views as to what this trial should deal with ...";
b) "Normally, of course, I would leave these matters to be dealt with at trial, but the history of this action has shown time and again that it would be naive to assume that normal procedures will suffice";
c) "I am simply not willing to go forward in the hope that all will be well when so little is known about the Plaintiffs' witnesses, their number, or why they are even necessary, and the history of the action indicates that repeated Court intervention has been necessary to avoid procedural quagmires and tactical stand-offs";
d) "My concern at this stage remains fairness to all parties to the extent of their respective interests";
e) "The Plaintiffs say they need 'many voices' to make their case, but until the witnesses are finally identified and the will-say statements are produced, there is no way for anyone to judge whether their purpose is genuine or obstructive, or what implications this might have for trial preparation and the conduct of the trial itself";
f) "The pre-trial record is far from complete and the trial schedule and trial process remain impossible to chart and anticipate in any meaningful way";
g) The "Court is very much concerned to ensure that the Plaintiffs are given the opportunity to make their case in the most effective way possible. The Court does not wish to interfere with normal trial procedure or place obstacles in the way of the Plaintiffs calling those witnesses they feel they need to assert their position. Any interference by the Court at this stage would, under normal circumstances, be unnecessary";
h) "But as the history of this action has proved on several occasions, leaving the parties to follow normal procedures results in total inertia or administrative chaos";
i) "Reluctantly, then, I have come to the conclusion that it would be derelict of this Court to allow the parties to go to trial until the Plaintiffs witnesses have been fully disclosed, adequate will-say statements have been produced, the Crown and the Interveners have been given a reasonable opportunity to review the witness list and the will-says, and the Court itself is satisfied that the barrage of witnesses (revealed for the first time in September 15, 2004, and apparently not raised with Mr. Justice Hugessen) is a legitimate exercise by the Plaintiffs of their litigation rights";
j) "In view of the belated disclosure that the Plaintiffs intend to call in excess of 140 witnesses at trial, their breach of Mr. Justice Hugessen's Pre-Trial Order, and their failure to provide a workable solution to the problems caused by that breach, the Court is no longer willing to accept on trust that the Plaintiffs require such a prodigious number of witnesses to support claims for which there is already a voluminous record covering the same issues."
[128] In order to remedy the difficult situation described in the November 25, 2004 reasons, the Court made an Order that contained the following principle provisions and objectives:
a) It gave the Plaintiffs the time they said they needed (until December 14, 2005) to produce and provide their witness list and will-say statements "in a form that complies with Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004, as that order has been further interpreted by this Court ...". The record on this point has already been examined in detail in my Reasons of May 3, 2005, and does not need to be re-produced here;
b) It asked the Plaintiffs to produce a "schedule indicating the sequence and the duration for calling their witnesses at trial." This was to assist the Crown and the Interveners with their preparation, but also to allow the Court to make some kind of estimate of the time and resources needed to run the trial;
c) It gave the Plaintiffs additional time (until December 21, 2004) to provide a "brief but adequate explanation as to why each of the witnesses disclosed in their witness list ...." was a necessary and material witness having regard to certain enumerated criteria and, principally, the issues in the pleadings and the fact that an extensive record already exists from the first trial that can be used to avoid unnecessary expense, unnecessary time and unnecessary duplication;
d) It set up a procedure to identify and deal with any concerns the Crown and the Interveners might raise with what was produced; and
e) The Court said, following submissions from counsel on this issue, it would decide "if any of the witnesses proposed by the Plaintiffs should be called at the re-trial and any other related matter."
[129] It is necessary to keep in mind at this stage that the Plaintiffs did not appeal the October 18, 2004 Order and they later did represent to the Court that the will-say standards set by the Court were achievable and would be adhered to by the Plaintiffs in what they produced.
[130] If the November 25, 2004 and the October 18, 2004 Orders are read together in the full context of the record, it is readily apparent that the Court-imposed solution was intended to achieve the following objectives:
a) To give the Plaintiffs the time they said they needed to rectify their default of Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004;
b) To give the Plaintiffs an opportunity to explain why (not having raised the matter with the case management judge) they had decided that so many new witnesses were required for the second trial, bearing in mind the issues raised in the pleadings and the extensive record already available from the first trial;
c) To set up a process for the Crown to raise any objections it might have to what was produced by the Plaintiffs and to bring those objections before the Court. The Crown had made it clear to the Court that it did not feel sufficient disclosure had occurred to allow for either trial preparation or an assessment of whether the evidence the Plaintiffs had belatedly revealed they proposed to call had any relevance for the pleadings, or was objectionable on other grounds.
[131] In my Reasons of May 3, 2005, I made it clear that, as matters stood on December 21, 2004, the Court had been informed by the Plaintiffs solicitor that, apart from a handful of late arrivals that would need to be dealt with separately, the Plaintiffs had produced the will-says and identified the witnesses they needed for the trial, and the will-says were fully compliant with the relevant Court orders.
[132] When considered in the full context of the proceedings and the problems it was intended to solve, the Court believes it was clear to all parties that the November 25, 2004 Order was intended to ensure: (i) disclosure compliance; (ii) time for trial preparation and any pre-trial challenges; (iii) that the witnesses and the evidence the Plaintiffs intended to produce were relevant to the issues raised in the pleadings and not otherwise objectionable; (iv) that unnecessary duplication be avoided and that maximum use be made of the record from the first trial; and (v) that the participants and the Court had some kind of basis upon which to plan the administration of the trial.
[133] The Court had already made clear in its October 18, 2004 Reasons and Order that it was not prepared to accept the open-ended approach that the Plaintiffs were attempting to impose on the proceedings, notwithstanding Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004, that appeared specifically designed to avoid the chaos and inefficiency that such an approach would inevitably produce.
[134] It has to be borne in mind that the Plaintiffs have never suggested to the Court that they are unable to provide the degree of disclosure required by the relevant Court Orders. They have merely, in the past, indicated a preference for a looser approach that has been rejected by the Court.
[135] With these general comments in mind, I will now turn to the specific disclosure issues raised by the Crown and compliance with the November 25, 2004 Order. When considering compliance, I believe it is necessary to look at the degree of detail provided in the will-says because the Court has said quite specifically what they should contain.
[136] Paragraph 1 of the November 25, 2004 Order says that the Plaintiffs' will-say statements must be "in a form that complies with Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004, as that order has been further interpreted by this Court ... ."
[137] Before I look at specific issues, however, I think it is important to bear in mind what this motion is not about, as far as the Court is concerned. The Court is looking at compliance with pre-trial disclosure requirements and is attempting to assist the parties to resolve their wide and obvious differences over scope of pleadings and relevance, with a view to ensuring that we have the most just, expeditious and least expensive determination on the merits that is achievable in these proceedings. The Court is not attempting at this stage to assess particular witnesses and the quality of their evidence. So when, for instance, the Court reviews a particular will-say, its concern is to ensure that the topics raised by that will-say, either identified as such or embodied in the summary of what the witness intends to say, can be said in a broad sense to relate to a matter raised in the pleadings. This is only being done at this stage because of wide disparities that have come to light over what this law suit is about, and the views expressed on both sides that it would be a good thing to try and deal with such divergent "philosophical differences" before the trial begins.
Completeness
[138] Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004, made it mandatory for "All persons intending to lead evidence at trial (including oral history evidence)" to "serve witness lists and 'will-say' statements ... on or before September 15, 2004."
[139] When the Pre-Trial Order was made the trial was set to commence on January 10, 2005, i.e. approximately four (4) months after the date set for serving witness lists and will-says.
[140] Mr. Justice Hugessen's Pre-Trial Order does not say that a witness list and will-says can be served at any time before trial. The September 15, 2004 deadline is just as mandatory as the requirement to serve a witness list and will-says if evidence is to be lead.
[141] To allow any person to serve and file materials after the September 15, 2004 date, or to lead evidence if a witness is not identified or no will-say is provided, would render Mr. Justice Hugessen's Order meaningless.
[142] This Court has not changed the meaning or basic intent of Mr. Justice Hugessen's Pre-Trial Order in subsequent orders; it has merely provided an interpretation because of disagreement between parties, and it has allowed the Plaintiffs additional time within which to comply.
[143] The Court has yet to consider an application from any party involved in these proceedings to call a witness who has not been identified, and for whom a will-say has not been provided, by the date fixed by the Court. There may well be circumstances where the Court should consider admitting evidence from a witness who has yet to be identified, and for whom a will-say has yet to be served, but until such an application is made, and the Court hears full argument from counsel, the position is clear: as matters now stand no person will be giving evidence at the trial who has not been identified in a witness list and for whom a will-say has not been provided by the date set by the Court. In the case of the Plaintiffs, this date is presently set at December 14, 2004. Because the Crown has indicated that it is willing to overlook any technical infraction and accept those names and will-says served by 1:00 a.m. on December 15, 2004, the Court is also willing to use that deadline as the cut-off date for the Plaintiffs will-says.
[144] So, as matters now stand, the relevant orders of the Court make it clear that unless a potential or proposed witness has been identified by the cut-off date and a will-say statement for that witness has been produced by the same date, that witness will not be giving evidence at the trial. For purposes of this motion, then, the Court will only be considering the will-says that have been served by the cut-off date.
[145] The Court has already, in its Reasons of May 3, 2005, expressed its views on the impact of the letter of December 14, 2004 from the solicitor of record for the Plaintiffs. That letter indicated the following matters relevant to the present motion:
(a) Apart from about seven (7) or eight (8) witnesses for whom a "short extension" would be requested, the Plaintiffs have been able to identify the witnesses and produce the will-says they need for the evidence they wish to adduce at trial on all issues they feel are in the pleadings;
(b) The Plaintiffs have concluded that they are now able to extract the evidence they need from a total of 69 witnesses (that number includes "6 primary expert witnesses"), which represents a reduction of approximately 50% of the total number of witnesses they said they needed on September 15, 2004;
(c) The Plaintiffs are of the view that they have fully complied with the will-say standards set in previous Court orders.
[146] Also, as discussed in my Reasons of May 3, 2005 (see paragraphs 438 - 448), this impression was confirmed by subsequent representations made to the Court by Plaintiffs' counsel.
[147] Further, as discussed in my Reasons of May 3, 2005 (see paragraph 447), the Court is aware that the parties disagree on whether the seven (7) or eight (8) stragglers identified in the letter of December 14, 20004, should be allowed. However, unless and until the Plaintiffs ask the Court to vary its Order of November 25, 2004 to allow additional witnesses after the cut-off date, and the Court has heard argument from counsel, the Court cannot consider any of the witnesses for whom will-says were not provided by the December 14/15, 2004 deadline.
The Explanation
[148] The November 25, 2004 Order also asked the Plaintiffs to provide a "brief but adequate explanation" as to why their witnesses were needed, given the pleadings and the record available from the first trial. At the time of that Order there was no definitive witness list, very few will-says, and no indication as to how the parties intended to use the record from the first rial. The Crown, the Interveners and the Court itself had little idea of what to expect or how to prepare for the large number of witnesses that the Plaintiffs had suddenly revealed, on September 15, 2004, they intended to call. At the time the Order was made the list still stood at a possible 142, and no indication was given that, in fact, it could all be done with 69.
[149] For purposes of the present motion, it also has to be kept in mind that, when the November 25, 2004 Order was made, Plaintiffs' counsel was insisting that, irrespective of what the pleadings might say, and irrespective of the proposed amendments that had not been allowed in 2004, and irrespective of previous Orders made by the Court concerning the use of the record from the first trial, the Plaintiffs had the right to call whatever evidence they wished at trial. The Court did not accept that the Plaintiffs had such unrestricted rights, and took the precaution of asking for a "brief but adequate explanation" to ensure that what the Plaintiffs had in mind did take into account previous Orders of the Court and bore some relevance to the pleadings.
[150] The Crown now says that, given the directions and criteria set out in the November 25, 2004 Order, the Plaintiffs have not provided an explanation that is adequate. Specifically, the Crown's criticism of the Plaintiffs' explanation as provided in the letter of December 21, 2004 is as follows:
(a) Only a small number of the explanations actually refer back to paragraphs in the statement of claim;
(b) In the case of 19 named witnesses, the Plaintiffs do not attempt to say what relevance their evidence has for the pleadings or the legal issues raised;
(c) The Plaintiffs make no attempt to address the issue of whether or not the evidence was given at the first trial by other witnesses, or whether the evidence could not be obtained from read-ins both from the first trial or discoveries;
(d) In the case of Mr. Wayne Roan, who was a witness at the first trial, the Plaintiffs don't attempt to explain how his evidence at the second trial will be different.
[151] The Plaintiffs say that the November 25, 2004 Order does not direct them "to specifically address all four of the considerations listed in sub-paragraphs (a) through (d) in each explanation for each proposed witness. Rather, the Plaintiffs say they were directed to provide explanations in sufficient detail so as to facilitate objections and debate with regard to these criteria. The Plaintiffs take the position that the "Crown has been provided with more than sufficient detail as to objections based upon duplication."
[152] The Court feels that the Plaintiffs' interpretation of the Order as being concerned merely with issues of "duplication" is difficult to reconcile with both the plain wording of the November 25, 2004 Order, the context in which it was made, and previous representations made by Plaintiffs' counsel. Paragraph 2 of the Order asks for an explanation for "each of the witnesses disclosed on their witness list" with regard to enumerated criteria that don't just refer to duplication issues, but also ask the Plaintiffs to refer to "the issues of this claim as addressed in the recently amended pleadings."
[153] From the first meeting between the trial judge and legal counsel, which took place on September 17, 2004, relevance to pleadings has been a significant bone of contention between the parties. And the Plaintiffs agreed at that meeting that relevance issues and the "difference in philosophy" should be addressed before trial. It was Mr. Kindrake for the Crown who described the problem as a:
... basic difference in philosophy for some of the issues raised. It is the Crown's position that this case should be run in accordance with the pleadings, as amended, and therefore we have our view of relevance. What we see the potential for is expanding the scope of this trial beyond what is in the pleadings ...
Transcript of September 17, 2004 Conference, Mr. Kindrake at 25:20 to 26:1
[154] It was Mr. Henderson who spoke for the Plaintiffs on this issue and who communicated to the Court as follows:
THE COURT: My feeling, if there are going to be big arguments like that on relevancy, it is something we should confront well in advance, rather than at trial.
MR. HENDERSON: Absolutely.
Transcript of Pre-Trial Conference, September 17, 2004, 14: 11-15
[155] I believe the Plaintiffs continue to agree that the Court should, pre-trial, address the contentious issue of self-governance, whether it is justiciable, and the scope of the pleading. As Mr. Molstad said in Edmonton at the hearing of this motion:
And it is a very important issue [i.e. self-governance] and one that, you know, I suppose, in fairness, should be addressed before the trial starts in terms of the scope of the pleadings. You know, if your view is that the scope of these pleadings would not allow us to call evidence, it's far better for the Plaintiffs to have that decision before the trial starts.
I agree, of course, with this because it accords with my own views and is consistent with the position taken by the Crown and the Plaintiffs at the meeting of September 17, 2004.
[156] The "difference in philosophy" and relevance issues have re-surfaced at various points in hearings for motions that followed the September 17, 2004 meeting. By the time of the November 25, 2004 Order all parties involved were aware of wide divergencies that had opened up and the need to address them before trial because of the enormous potential for waste and inefficiency if some witnesses were just not needed. Counsel were also aware that the Court wanted to avoid, if at all possible, hearing evidence from a significant list of new witnesses if what they had to say just wasn't directed at the pleadings. The Court did not know if the relevancy issue could, in fact, be resolved prior to trial, but it was clear that the Court was committed to trying to resolve it. At a conference meeting of January 7, 2005, Mr. Healey, counsel for the Plaintiffs, advised the Court of his expectations that the relevancy and scope of pleadings issues would be addressed as part of the present motion before the Court.
[157] So I think it was clear that the November 25, 2004 Order was about more than just "duplication issues," and that the Court expected the Plaintiffs to clarify what they believed the pleadings encompassed, and why each witness they proposed to call was necessary and material to their view of the pleadings.
[158] The other factors listed in paragraph 2 of the November 25, 2004 Order do relate to duplication issues. Without making any conclusive decisions about how the availability of the record from the first trial should affect the evidence to be called at the second trial, the Court wanted the parties to address duplication issues to see what efficiencies could be achieved, bearing in mind the vast amount of time and resources that have already gone into this dispute.
[159] The Plaintiffs say in this motion that the Court's discretion as to the conduct of the second trial is unfettered by the Court of Appeal's 1997 Order for a new trial, and is also unfettered by any and all findings of fact and law rendered in the first trial. They say that a new trial ordered by an appellate court is a trial de novo to be conducted tabula rasa.
[160] This may or may not be the case, but it is irrelevant for purposes of this motion. The November 25, 2004 Order did not decide what the Plaintiffs should be allowed to do at the second trial in light of the record from the first trial. The Order merely put that issue on the table and asked for the facts so that the whole matter could be debated and decided. Once again, the Plaintiffs are saying that they are free to do what they want at the second trial. This misses the point because the Court is bound to look for, and to try and achieve, the most just, expeditious and least expensive determination of these proceedings on their merits. And if the Plaintiffs belatedly reveal that they intend to call 142 new witnesses (a fact not disclosed until September 15, 2004, and not discussed with the other parties involved, or the case management judge), then if the trial judge does not at least try to address "duplication" issues, and merely allows the Plaintiffs to call whoever they please, irrespective of what the record from the first trial can contribute, he would, in my view, be derelict in his duty.
[161] So the November 25, 2004 Order was not about deciding issues beforetime; it was about obtaining sufficient disclosure (in the face of fairly aggressive opposition from Plaintiffs' counsel), so that basic issues of relevance, scope of pleadings, and trial management could be debated and an attempt could be made to resolve the fundamental differences that had emerged concerning these matters.
[162] That the Plaintiffs understood this is evident from the covering letter from Plaintiffs' counsel dated December 21, 2004, that accompanied the explanation submitted at that time:
Enclosed please find an explanation from the Plaintiffs why each of witnesses disclosed in their Witness List is a necessary and material witness. We have identified why their evidence is relevant.
[163] So one of the principal issues before me me in this motion is whether the kind and degree of disclosure ordered by the Court has been provided by the Plaintiffs by the December 14/15, 2004 deadline.
[164] The Crown's first complaint is that only a small number of explanations actually refer back to paragraphs in the Amended Fresh As Amended Statements of Claim.
[165] The obvious answer to this complaint is that the November 25, 2004 Order does not make this a requirement. It just asks for an explanation as to why the witnesses are material and necessary, given the issues addressed in the pleadings. Sometimes the explanations refer to actual paragraphs; sometimes they do not. For the most, though, there is a statement about relevance to the issues raised, at least as the Plaintiffs see those issues.
[166] The November 25, 2004 Order did not ask the Plaintiffs to address issues in the pleadings from the perspective of the Crown. Whether or not the Plaintiffs are correct about relevance is not a factor in deciding whether or not they have complied with the Order. All they were asked to do was to state their view of the relationship between the evidence to be provided by each witness and the issues in the pleadings. To a greater or lesser extent in individual cases, I believe they have done this.
[167] In the case of 19 named witnesses, the Crown then complains that "the Plaintiffs do not even attempt to say how their evidence is relevant to the pleadings or the legal tests for aboriginal and treaty rights." Once again, my review of the explanation offered for these witnesses is that they will speak to matters that the Plaintiffs regard as relevant to the pleadings. These matters are, generally speaking, self-government and aboriginal and treaty rights, and the motives of the Plaintiffs in excluding certain individuals from band membership. I can see why the Crown would feel that the matters referred to are just not relevant to the Crown's view of the pleadings, but that is another issue that will be addressed later. I do feel that, in terms of the explanation requirement in the November 25, 2004 Order, the Plaintiffs have provided a "brief but adequate" account of how the people they intend to call are connected to the pleadings, as the Plaintiffs presently interpret the pleadings, and why such evidence is material and necessary. The explanation is adequate because it is sufficiently detailed to allow the Crown to take issue in this motion with what has been disclosed.
[168] Where the explanations do appear deficient, however, is that they do not really address the duplication issues raised in the November 25, 2004 Order. One can speculate that, perhaps, this is because the evidence will deal solely with new issues that have arisen as a result of the amended pleadings, so that no duplication will occur, but this just isn't clear. The Plaintiffs say that "where a particular witness was not called at the previous trial, it is readily apparent that this evidence is not available from the transcript of that trial." In other words, the Plaintiffs are telling the Crown and the Court that there will be no duplication. It is all new.
[169] This would appear to suggest that the evidence to be called will cover new issues introduced into the proceedings as part of the amendments to the pleadings, or it will be new evidence on issues that were part of the first trial.
[170] The November 25, 2004 Order was a request for information that would allow the Court and the other parties to see what portions of the old record could be used, and why it was necessary to call a witness to speak to matters that are already covered in the old record. So the Plaintiffs have not been very cooperative in assisting with this issue, at least with any degree of specificity.
[171] It seems to me, however, that their approach has some justification. They are saying that all of their witnesses, except Mr. Wayne Roan, will be new witnesses who will present new evidence, either on self-government or related rights, raised in the amendments, or will supplement evidence given on issues in the first trial. The Court does, however, want to be clear that duplication will not occur and that efficient use will be made of the old record. I believe the best way to deal with this concern is for the Plaintiffs to provide the Court, and the Crown and the Interveners, with specific information that will show how the old record will be used and why the new witnesses will not duplicate the old record. Now that the Court has indicated in these Reasons its view of the scope of the pleadings, the parties can proceed to do this in the near future.
[172] As regards the November 25, 2004 Order, it seems to me that the general message contained in the "explanation" provided by the Plaintiffs is that duplication will not occur because, apart from Mr. Roan, it will all be new evidence from new people.
[173] As regards Mr. Wayne Roan, who did appear as a witness at the first trial, the Crown says that there is no explanation on whether his evidence will be different at the second trial. The Crown also points out that Mr. Roan's will-say statement contains much of the same material as he testified to at the first trial.
[174] The Plaintiffs answer is that Mr. Roan's will-say also refers to much information which is not the same as that which he gave at the first trial. I read this as an admission by the Plaintiffs that there will be duplication; the Plaintiffs merely say:
If only one witness out of all the witnesses to be called at this trial, was a witness at the first trial, any duplication, even if present, is negligible in the greater scheme of things and does not delay ..._ for the delay of this trial.
[175] The Plaintiffs also explain that it is readily apparent from Mr. Roan's will-say statement that his evidence "is needed because it relates to the self-government claim raised in the Plaintiffs amended pleadings."
[176] The distinctions referred to by the Plaintiffs are not readily apparent to the Court. I think the Plaintiffs could be more helpful here in achieving efficiencies that are obviously needed when we are facing a long trial that already has a weighty record available to it.
[177] In any event, paragraph 2 of Mr. Justice Hugessen's Order of December 8, 2000, directs that any witness who appeared at the first trial to give evidence should not be called at the second trial until the trial judge is satisfied that he won't give the same evidence. As yet, the Plaintiffs have failed to satisfy the Court on this issue as regards Mr. Roan. I asked them to do that in the Order of November 25, 2004. They have declined to do so.
[178] Apart from Mr. Roan, I think the Plaintiffs' explanations do provide barely adequate information on the points raised to allow the Court and the other participants to assess relevance and duplication when the will-says are reviewed. We know now, as we did not in November, 2004, that all of the witnesses proposed are new witnesses except for Mr. Roan. And we also know that they will supplement issues in the first trial with new evidence and/or address new issues at the second trial, as the Plaintiffs interpret the amendments. Most gratifyingly, we now know that we are dealing with some 69 witnesses, rather than the 142 initially proposed. So requiring the Plaintiffs to consider their will-says and provide explanations has already resulted in considerable savings of time and resources for all parties. The Crown may feel that the explanations provided do not address matters that are relevant to the pleadings, but I think those objections need to be dealt with when reviewing the will-says themselves.
Abuse of Process
[179] As regards the Crown's abuse of process argument, the Court must remain consistent with previous orders that have not been successfully appealed.
[180] Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004, mandated that all witness lists and will-says had to be served by the same deadline. The Plaintiffs took the full time allowed. That order was not appealed.
[181] The October 18, 2004 Order of Russell J. struck the Plaintiffs' witness list and will-says for non-compliance, and said that none of the witnesses could be called without further leave of the Court. That order was not appealed.
[182] The November 25, 2004 Order of Russell J. gave the Plaintiffs until December 14, 2004, to serve their witness list and will-says in a compliant form.
[183] None of these orders contemplated or authorized the Plaintiffs to go out and find new witnesses after September 15, 2004 and file will-says for them. If that had been the intention, then the Crown and the Interveners would have been awarded the same right. The Crown and the Interveners made their decisions about what witnesses and evidence they wished to call based upon the deadlines set by Mr. Justice Hugessen. The Plaintiffs cannot breach those deadlines and then use their own breach as an opportunity to find further witnesses, while the Crown and the Interveners are confined to the witnesses they identified by the deadline.
Oral History Problems
[184] The Crown is also concerned that the will-says submitted for witnesses who will provide oral history do not correspond with, and provide much more detail than is contained in, the oral history summary that had to be served no later than June 30, 2004.
[185] The Crown acknowledges that evidence from elders of non-Plaintiff communities who adhered to Treaty 7 and Treaty 8 on oral promises made at the time of the Treaty may be relevant; any customs, practices and traditions of groups other than the Plaintiffs, however, are not.
[186] The Crown says that the Plaintiffs should not be allowed to introduce oral history evidence that is not relevant and/or which goes beyond the evidence disclosed in the oral history summary. The detailed oral history summaries were ordered by Mr. Justice Hugessen in lieu of further discovery of oral histories, so that the Crown would have the information sufficiently in advance to prepare for trial.
[187] Any new witnesses are subject to the discretion of the trial judge and no application has been forthcoming from the Plaintiffs in that regard. As matters presently stand, the ten (10) individuals who were not identified on the September 15, 2004 witness list cannot be called by the Plaintiffs. So unless an oral history witness was identified as such in accordance with the June 30, 2004 date, an oral history witness cannot now be introduced merely by filing a will-say that contains oral history.
[188] Any "relevancy" issues for oral history witnesses should be dealt with in the same way as other evidence by referring to scope of pleadings. Where previously identified oral history witnesses have now indicated that they intend to go beyond the oral history summary, we have a different problem. The Court wants to hear all relevant and otherwise admissible oral history evidence. If the discrepancies between the summary and the will-says do cause the Crown a problem, then we will have to address that in some way that will require the Crown to let the Court know in some detail why it cannot deal with the full range of oral history evidence that has now been disclosed by oral history witnesses who were identified as such in accordance with the timetable set by Mr. Justice Hugessen. If more time is needed, that can be dealt with. I am not inclined to exclude otherwise relevant and admissible oral history evidence at this stage on the basis of a discrepancy between the summary and the oral history will-says, or those will-says which were identified by the June 30, 2004 deadline.
Continuing Deficiencies
[189] The Crown has raised a variety of issues in relation to the will-says that the Plaintiffs have now produced and has requested that the Court exclude witnesses and/or evidence at this stage of the proceedings.
[190] There is a significant issue as to whether this is the time to assess and exclude witnesses or evidence. All we have are will-says. Will-says are not evidence; they are merely part of the pre-trial disclosure process. The Plaintiffs say that the exclusion of evidence should not be considered at this stage because the Court lacks the full context that only a trial will bring.
[191] I appreciate that great caution is required when considering these matters at this stage. But the Court has already, in the Orders of October 18, 2004, and November 25, 2004, laid down a procedure for excluding witnesses and proposed evidence, and those Orders have not been appealed. As part of that process the Court is now obliged to address the continuing non-disclosure and scope of pleadings issues raised by the Crown. This is because the November 25, 2004 Order itself stipulates that the will-says must be in "a form that complies with Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004, as that Order has been further interpreted by this Court ..." One of the principle considerations behind the November 25, 2004 Order was to compel the pre-trial disclosure that the Plaintiffs, to that time, appeared to be resisting. So the Court needs to ascertain whether the Plaintiffs have now complied and, if they have not, decide what should be done about it. And the Court also needs to consider the relevancy issues because they bring up the whole vexed question of what the pleadings actually encompass and those serious "philosophical differences" between the parties that both sides have said should be addressed before trial begins. The Plaintiffs themselves have indicated to the Court at the January 7, 2005 conference meeting that they are content to work "under the rules that have been set by the Court."
[192] But over and above these considerations, there is a very important reason why it is fair and just that these matters should be considered at this time. As I will explain in some detail later, the problems raised by this motion come about as a result of a fairly radical shift in position by the Plaintiffs as to what the pleadings raise in terms of self-government. Not to address that radical shift at this time would mean that the Crown would be placed in a very difficult position on the eve of the trial. The Plaintiffs have chosen not to explain to the Court why, or how, that shift has occurred. Having decided that there has indeed been a recent change of position on the part of the Plaintiffs, it would not be fair to merely proceed with the trial as the Plaintiffs advocate. They are responsible for a bold attempt to re-configure the issues in this law suit and to go beyond the pleadings, for which they provide no real explanation. I don't think, under these circumstances, that the other parties involved should be merely left to pick up the consequences of that change either pre-trial or during the trial. It needs to be examined and dealt with now.
Compliance
[193] Are the Plaintiffs' will-says now compliant in terms of disclosure? The Crown says they are not. The Plaintiffs say they are but, at the hearing of this motion in Edmonton, the Plaintiffs did not take the Court to the will-says themselves to show compliance. So the Court has been left to read them.
[194] The standards and degree of disclosure are now well-understood and accepted by all parties, including the Plaintiffs. I set those standards out in detail in my Reasons of October 18, 2004. For convenience, I will repeat here the guidelines provided in October, 2004:
[38] The witness lists and will say statements produced by the Plaintiffs to date are not in compliance with Justice Hugessen's Pre-Trial Order and are not adequate for preparation and effective trial procedure for a variety of reasons, including the following:
a. They are not individualized. The witness lists need to show who the Plaintiffs actually intend to call, how she or he is in a position to give the evidence, and what each individual witness will say. A large pool of potential witnesses and a list of topics that will be addressed at trial by various groups does not permit adequate preparation and effective trial procedure;
b. The language used by each witness to be called is not identified. Justice Hugessen's Pre-Trial Order specifically says, in para. 9, that the witness list and will say statements have to include "language if other than English and name of interpreter if known." This is information that is obviously required for each witness;
c. They provide a list of topics that the Plaintiffs intend to address rather than a synopsis of what each individual witness will say. Such a synopsis does not need to use the actual words of each witness, but it does need to contain sufficient detail to allow for challenges on the basis of relevancy and otherwise, and for effective preparation for cross-examination. For instance, it is not sufficient to say that evidence will be given concerning the Plaintiffs' laws, customs and practices or their way of life. The will says should indicate what a particular witness will say those laws, customs and practices are, and what the way of life relied upon actually entails;
d. Those will say statements that pertain to oral histories should identify the actual past practices, customs and traditions of the community in question, as well as relevant interactions with other groups.
[195] When I say that the Plaintiffs, after showing initial resistance, have now embraced the standards of the October 18, 2004 Order, I have the following in mind:
(a) The Plaintiffs' reassurances given to the Court at the hearing on November 18, 2004, that the will-says the Plaintiffs were preparing "comply with all of the requirements, My Lord, that Your Lordship indicated. In fact they go even further, they are extremely detailed";
(b) The Plaintiffs' reassurances given to the Court at the conference meeting of January 7, 2005, that "we are working under the rules that have been set by the Court," and that "the Plaintiffs have presented their case through the service of will-say statements and the December 21 submission in accordance with the way the court has permitted the Plaintiffs to present their case, and we want to proceed on that basis and have my friends comply in the same way";
(c) The fact that the Plaintiffs have belatedly brought a motion before the Court dealing with the will-says of the Crown and the Interveners asking that those will-says be assessed against the standards set by the Court in the October 18, 2004 Order;
(d) The fact that at the de bene esse in Calgary on December 13, 2004, to hear the evidence of Ms. Florence Peshee, witness for NSIAA, one of the Interveners, the Plaintiffs objected to Ms. Peshee giving evidence on matters not disclosed in her will-say on the grounds that to allow her to give such evidence would constitute ambush at trial. In other words, the Plaintiffs have demonstrated clear appreciation and acceptance that the purpose of the will-says and the standards of disclosure imposed by the Court are to prevent ambush at trial, and the Plaintiffs have taken the position that the content of the will-says in these proceedings has to circumscribe what a witness should be allowed to say at trial. What is more, the Court accepted the Plaintiffs' position when if ruled against Ms. Peshee being allowed to give evidence on matters not adequately disclosed in her will-say. This means that, even before the trial proper begins, evidence has been excluded at the request of the Plaintiffs on the basis of a non-compliant will-say. The Court has to be consistent in this regard.
[196] With this background in mind, I now turn to the disclosure aspects of the will-says submitted by the Plaintiffs on December 14/15, 2004, with a view to assessing them against the standards and guidelines set out in the Court's October 18, 2004 Order, referred to at paragraph 194 of these Reasons. Unfortunately, counsel for the Plaintiffs has not led the Court through the Plaintiffs' will-says to demonstrate compliance, but I have read all of them.
[197] In their written argument, the Plaintiffs say that they "do not understand this Court to have ordered the production of Will-Say statements in order to assist the other parties in preparing their cross-examination and evidence in response. Rather, these Will-Says have been ordered for the purpose of minimizing duplication from the first trial to the second." This is an unfortunate and unwarranted assertion that, for reasons I have already stated, turns a blind eye to the plain wording of the relevant Court Reasons and Orders.
[198] In my October 18, 2004 Reasons, I point out as follows:
(a) paragraph 36 - "If I examine the whole context in which Justice Hugessen's ordered witness lists and will say statements on or before September 15, 2004, it seems clear to me that what he had in mind was both the trial process itself and the needs of both sides to have sufficient time for preparation in the period leading up to the trial";
(b) paragraph 44 - "The Plaintiffs are represented by able, experienced and highly articulate counsel. In my view, they cannot help but be aware of the problems that their actions have caused. They assert the importance of the new evidence for their case but have not provided the Crown or the Interveners with the means to prepare for trial";
(c) paragraph 46 - "In my view, the arguments produced by the Plaintiffs to resist compliance with Justice Hugessen's Pre-Trial Order are spurious and disingenuous. No one is trying to interfere with the way the Plaintiffs present their case; the Plaintiffs are merely being asked to recognize the rights of the other parties to this litigation to prepare themselves adequately for this trial in accordance with the scheme established by Justice Hugessen's Order and to cooperate in ensuring the most just, expeditious and least expensive determination of this proceeding occurs on its merits."
[199] So any assertion that the purpose of the will-says is merely to minimize duplication is an exercise in wilful blindness, and I was pleased to see that counsel for the Plaintiffs backed away somewhat from this position at the hearing of this matter in Edmonton.
[200] Having reviewed the will-says myself, I have to agree with the Crown that for some witnesses the Plaintiffs have still not complied with the October 18, 2004 Order. There is still, in some instances, a lack of detail clearly required by that Order, and it is still not possible to know what some witnesses will say. The Court will indicate later where this is the case.
[201] The question now is what to do about these deficiencies. The Plaintiffs say that evidence should not be excluded on the basis of non-compliance with the disclosure requirements of the October 19, 2004 Order. The Crown says that "those portions of the Plaintiffs' will-say statements which continue to lack any significant detail should be struck out, such that those witnesses cannot testify about those matters at trial."
[202] The Crown also points out that "several of the will say statements provided by the Plaintiffs within the specified time do not appear to have been reviewed by the witnesses prior to their provision on December 14, 2004" and that this "might explain why the will say statements lack sufficient detail in order to determine what these witnesses will actually say at trial." Once again, the Crown suggests that "none of these witnesses should be heard from at trial."
[203] I accept that, in some instances, the detail required by the October 18, 2004 Order is lacking. But I feel that the appropriate remedy for this deficiency should not be considered in isolation from the other significant factor that the parties have asked the Court to address, i.e. relevance and the scope of the pleadings.
[204] The principal objectives of the Court since the September 17, 2004 meeting, at least as regards will-says, have been to ensure that pre-trial disclosure occurs in accordance with Mr. Justice Hugessen's Pre-Trial Order of March 26, 1004, and to seek a solution to the great philosophical divide between the parties over the scope of the pleadings that will allow them to prepare adequately and appropriately for the trial, and encourage any possible efficiencies over the marshalling and presentation of evidence. Obviously, the content of the Plaintiffs' will-says will reflect their view of the scope of the pleadings, which is why I believe a solution to the disclosure issue should not be considered in isolation from the relevance and other deficiency issues raised by the Crown.
The "Philosophical Differences"
[205] Since my involvement as trial judge in these proceedings I have been led to expect a significant polarization concerning what this law suit is actually about. The great divide according to counsel, appeared to be over the concept of Aboriginal self-government and the extent to which it was encompassed by the pleadings, or was even justiciable in terms of the governing Supreme Court of Canada jurisprudence.
[206] Wisely I think, in view of the potential length of this trial, and the significant number of new witnesses which the Plaintiffs may have to marshall, counsel on both sides have expressed the view that such a wide philosophical and interpretative divergence should be addressed before the trial proper begins.
[207] These important issues, raised at the initial meeting between the trial judge and counsel on September 17, 2004, have waited for over a year for consideration and resolution.
[208] The central bone of contention as to how, and to what extent, the concept of Aboriginal self-government has entered the pleadings crops up at various places in the written record, and I think it would be helpful to repeat a number of the key statements that have been made on this topic.
[209] To begin with, there are the statements made by the Plaintiffs themselves when, on September 23, 1998, they brought a motion before Mr. Justice Hugessen to amend their Statement of Claim. In their written submissions they carefully explained the connection between the concept of self-government referred to in their amendment and the existing pleadings:
This is an action in which the plaintiffs seek a declaration of certain provisions added to the Indian Act in 1985 ("Bill C-31") granting membership rights in the plaintiffs Bands, are inconsistent with the provisions of section 35 of the Constitution Act, 1982, in that they interfere with the aboriginal and treaty rights of those Bands to determine their own memberships. ...
The proposed formulation of the rights to be asserted by the plaintiffs, and the application of the current law to those rights to be alleged by the plaintiffs, remain sufficiently closely connected to the plaintiffs' existing pleading that an additional second action is not necessary. Multiplicity of proceedings ought to be avoided.
The right to determine membership is a core right and even an essential element of any self-government claim. In fact, the defendant Crown accepts that there is an inherent right of self-government which includes at least some form of the right to determine membership.
Factum of the Plaintiffs, served September 21, 1998, at paras. 3, 5, and 7
Motion Record of the Plaintiffs dated July 21, 1998, at Notice of Motion, at para. 6, and Affidavit of Martin Henderson, paras. 1, 5, 6
...
[210] The important thing to note here is that the Plaintiffs took the position that the "rights to be asserted by the plaintiffs, remain sufficiently closely connected to the plaintiffs existing pleadings that an additional second action is not necessary."
[211] It is also significant that at the 1998 Amendment Motion hearing, Plaintiffs' counsel made the following statement:
...
In fact, we are alleging, in my submissions the narrowest possible formulation of a jurisdictional right. We are saying, as a government, we have the right to determine who our citizens are.
Short of writing out the rules we apply, you can't be more specific than that. And that is exactly what Chief Justice Lamer says I have to be. I do have to define it as rationally and as centrally as possible. I can't be broad.
So when I put forward the new claim, we are not saying we have a right to self-government at large. That is not what this case is about. We are saying we have a right to this fundamental aspect of our self-government.
...
In fact, the original action and the new action are not inconsistent. The new pleading is simply an explication based on the old one. [emphasis added]
Transcript of September 23, 1998 Motion, at page 37:1 - 10; 37:16 - 37:22 and 123:17 - 17
[212] Counsel for the Plaintiffs now says that, in determining the scope of the pleadings, I should look to the pleadings themselves, and not to what previous counsel has said about those pleadings. At the hearing of this matter in Edmonton, counsel made a determined effort to distance the Plaintiffs from what their own counsel had told the Court at the time of the 1998 amendments. He said that the pleadings "are not defined by what Mr. Henderson says they are, and they are not defined by what I say they are, and they are not defined by what my friends say they are. The issues are defined by the pleadings."
[213] It seems to me that what Mr. Henderson said about the pleadings in 1998 is of an altogether different order of significance from what the Crown, or even Plaintiffs' present counsel, now say about them. It was Mr. Henderson who drafted the crucial amendments and presented them to the Court. Surely the Court is entitled to assume that he knew what he was trying to achieve? And, at this stage in these proceedings, should the Court just disregard what Mr. Henderson said on the basis of an alternative interpretation of the pleadings offered by Mr. Molstad? I think not. Particularly when Mr. Molstad declines to explain to the Court why he is now offering an alternative interpretation to the one provided by Mr. Henderson at the time of seeking the amendments, or what could possibly account for, or justify, such a radical change in perspective.
[214] At the hearing for this motion, the Plaintiffs said "But when you deal with Mr. Henderson's comments about the issues, what I say to you is forget about them. Forget about them." I can see why the Plaintiffs would want to Court to forget, but I cannot understand how that is possible at this stage when those comments have influenced so much what has occurred in the proceedings to date. In 1998, Mr. Henderson was telling Mr. Justice Hugessen what the Plaintiffs' intentions were in putting the amendments forward and what they wanted to achieve. The Court has to be able to rely upon what counsel say in this regard. Not to do so would render nugatory the discourse that goes on constantly between counsel and the bench. Mr. Henderson's words are the only reliable source for establishing what the Plaintiffs intended to accomplish by amending their pleadings in 1998.
[215] So I cannot accept the Plaintiffs' arguments in this regard. Of course, I recognize that, as in the case of statutory interpretation, the wording of the pleadings is important. But where there is disagreement or ambiguity over what the words mean, then context becomes very important. Surely the Court can look for the Plaintiffs' intent in seeking the amendments to what their counsel actually told the Court concerning the Plaintiffs' interpretation of the amendments and their intent in seeking them? And surely Mr. Justice Hugessen, in granting the amendments, and the Crown in making its arguments, would pay careful attention to what the Plaintiffs said at the time the amendments were sought?
[216] So the Plaintiffs made it quite clear that, in seeking the 1998 amendments to their Statement of Claim, they were not saying they had a right to self-government at large. And they were certainly not saying that they were asserting a claim for self-government at large for other Canadian First Nations: "That is not what this case is about. We are saying we have a right to this fundamental aspect of self-government." So the "new pleading is simply an explication of the old one." And this is why, of course, no separate action was needed and why the parties could continue with these proceedings in the way they have since 1998.
[217] That Mr. Justice Hugessen accepted the Plaintiffs' representations in this respect, and allowed amendments that reflected those representations, is clear from later pronouncements he made concerning the scope of the pleadings.
[218] When he came to make his Order of December 7, 2000, dealing with the use of the record from the first trial, he said in his December 13, 2000 Reasons that the "issues of the second trial are fundamentally the same as they were at the first," and that the "factual matrix" remains essentially the same. The Plaintiffs appealed Mr. Justice Hugessen's Order of December 7, 2000, but they did not challenge his characterization of the issues or his assessment of the factual matrix. It seems to me that there is nothing inconsistent between Mr. Justice Hugessen's statements concerning the issues in the pleadings in December, 2000, and the Plaintiffs' own words in 1998 that the new pleading was simply an explication on the old one because "we are not saying we have a right to self-government at large."
[219] The point at which the Plaintiffs did begin to express a more expansive approach to the self-government issue occurred when they sought amendments to their pleadings in 2004. The witness list and will-says submitted by the Plaintiffs on September 15, 2004, reveal that they had decided to try and move the Court towards allowing a much broader perspective on self-government, even though the Court did not accept the amendments they wanted in 2004, and the Plaintiffs did not appeal the Court's June 29, 2004 Reasons and Order that dealt with the proposed amendments:
...
26. The contentious aspects of the Band's proposed amendments are objectionable for several reasons:
a) some of the proposed amendments to paragraph 8 conflict with previous rulings made by this Court that the Plaintiff in the action is the Band itself in its own right; and
b) some of the amendments would have the effect of enlarging the nature of the action and would bring in a new claim of self-determination; and
c) some of the amendments would further broaden the claims by raising allegations about first nations other than the Band.
27. In my view, the objectionable amendments I will later refer to do not clarify and focus issues for the Court. They raise new and contentious issues that will require further discovery and will further delay the trial. The late stage at which these amendments are proposed, their number and importance, the degree to which previously held positions are changed, and the inevitable prejudice that will result to the Crown (see Maurice v. Canada (Minister of Indian Affairs and Northern Development), [2004] F.C.J. No. 670, 2004 FC 528 at para. 10) convinces me that these amendments should not be allowed. In addition, some of them are just not relevant to the issues in dispute. As NSIAA points out, the effect of some of the amendments proposed by the Band would be "to put the Crown on trial for all of its conduct with respect to all First Nations in Canada. A trial that is now anticipated to take months could end up taking years to resolve." In addition, other amendments would "substantially expand the scope of this action and raise issues where there has been no discovery" in a context where "the amendments add nothing substantive to the Plaintiff's claim that it has an aboriginal right to determine its own membership ... ." In fact, it seems to me that the words "First Nation" now mean the plaintiff Band and only the plaintiff Band. No purpose is really served by having two different terms ("plaintiff" and "First Nation") to refer to the Band even though I have no real objection to this if the Band wishes to use both terms.
...
[220] The Plaintiffs' recent actions and arguments have not been consistent with my June 29, 2004 Reasons. In fact, the Plaintiffs have behaved as though I had granted the amendments they sought in 2004. And that is why the witness lists and will-say statements they submitted on September 15, 2004, and December 14/15, 2004, require careful scrutiny. They were prepared and submitted at a time when the Plaintiffs (as reflected in their application for amendments in 2004 and in the will-says themselves) wanted to take these proceedings well beyond the confines of the 1998 amendments and the statements made in 1998 concerning the relationship between the new pleadings and the first trial by Plaintiffs' counsel, and later confirmed by Mr. Justice Hugessen.
[221] And that, I believe, accounts for the "basic difference in philosophy" that was brought to my attention on September 17, 2004, on the dangers inherent in the Plaintiffs "expanding the scope of this trial beyond what is in the pleadings ... ." This is why I think it is unfair for the Plaintiffs to now say that the Court should not consider this motion because "It's an application to exclude evidence. All of the evidence of the plaintiffs, essentially, and effectively grant summary judgment." Such a statement is a refusal by the Plaintiffs to accept any responsibility for their own radical change of position and the antithetical representations made by their successive counsel to the Crown and to the Court. It is also obvious to the Court that this motion does not ask that "All of the evidence of the plaintiff" be excluded; it asks the Court to look at the pleadings and then provide guidance on which witnesses or topic areas referred to in the will-says do not contribute to the issues before the Court as defined by the pleadings.
[222] Before turning to the pleadings themselves, it has to be made clear that, so far in these proceedings, the Court has not said that the Plaintiffs cannot pursue a claim to self-government at large in an appropriately framed action where the Crown can respond as it sees fit. All the Court has done so far is to accept the Plaintiffs' assurances, given to Mr. Justice Hugessen, that the rights alleged in the Statement of Claim "remain sufficiently closely connected to the Plaintiffs' existing pleadings that an additional second action is not necessary" and that "we are not saying we have a right to self-government at large." In this sense, then, I believe the Court has merely taken the Plaintiffs at their word. I see nothing wrong with the Court continuing to rely upon the Plaintiffs' own representations to the Court in the absence of any (plausible or otherwise) explanation as to how or why the situation may have changed.
[223] In the present motion dealing with the Plaintiffs' will-says, the Crown now brings to the Court's attention the following problems:
(a) The Plaintiffs take an overly expansive view of the nature of the issues in the pleadings and propose to call evidence from First Nations communities across Canada who are not parties to these proceedings. They also plan to call opinion evidence from former bureaucrats, evidence from persons who are active First Nations advocates, and oral history evidence from numerous First Nations who are not Plaintiffs in these actions;
(b) The evidence which the Plaintiffs propose to call may have a broad political impact, but it is irrelevant to these proceedings which are focussed on whether the Plaintiffs have an Aboriginal or a treaty right to control their own membership "in a manner that would exclude those persons reinstated to band membership pursuant to the provisions of Bill C-31, and if so, whether such a right is unjustifiably infringed by the legislation";
(c) In characterizing the rights at issue in these proceedings, it has to be borne in mind that "Aboriginal rights are intended to protect those practices which are integral to the distinctive culture and specific history of the group claiming the right." The will-says of the Plaintiffs, and their most recent statements about asserting a broad self-government right, are at odds with this focussed approach;
(d) The broad, general claim to self-government found in the will-says and the Plaintiffs' recent assertions, is not commensurate with the Plaintiffs' Amended Fresh as Amended Statement of Claim which only seeks to strike down the provisions of Bill C-31 and is, in any event, not justiciable. The Plaintiffs "must show a particular right to control their membership in a way that is not allowed by the impugned legislation in order to obtain the relief they seek";
(e) Relying upon R. v. Van der Peet, [1996] 2 S.C.R. 507; and Mitchell v. Canada, [2001] 1 S.C.R. 911, the Courts have long held that Aboriginal rights must be specific in terms of site, practice and community. The Plaintiffs are refusing to recognize this fact and are refusing to recognize that the Supreme Court of Canada, in cases such as R. v. Pamajewon, [1996] 2 S.C.R. 821; and Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, has made it clear that broad, general claims of self-government are not justiciable under section 35(1) of the Constitution Act, 1982;
(f) In the case of a claim to a general right of self-government, evidence which is relevant only to collateral issues should be excluded, especially where the time taken to receive that evidence outweighs its probative value; see Robertson v. Edmonton (City) Police Service [2004] A.J. 469 (A.B.), at paras. 12 and 13;
(g) The Plaintiffs will-says also make it clear that they propose to adduce evidence alleging a wide variety of treaty promises that are not referred to in the pleadings, and this evidence should not be admitted;
(h) The Plaintiffs will-says also propose to call evidence to the effect that the signing of a treaty did not result in the ceding of "traditional lands." This evidence is irrelevant because the pleadings make no such assertion. The Amended Fresh as Amended Statement of Claim asserts "Indian title" over reserve lands only, and the Plaintiffs do not seek relief in this regard. This means that "any issue as to whether Treaties 7 and 8 resulted in the extinguishment of Aboriginal title to the Plaintiff Band's reserve lands is irrelevant to the determination of whether the Plaintiffs have a treaty right to control their own membership";
(i) Jurisprudence regarding numbered treaties has already determined that by signing Treaties 7 and 8, the Aboriginal signatory groups did, in fact, surrender title to their reserve lands. See, in this regard, Mitchell v. Peguis Indian Band et al. [1990] 2 S.C.R. 85 at para. 85; R. v. Badger, [1996] 2 C.N.L.R. 77 (S.C.C.) at para. 39; and Ontario v. Bear Island Foundation, [1991] 2 S.C.R. 510; [1991] S.C.J. 61 at para. 7.
[224] In conclusion, and without limiting itself to the following examples, the Crown says that the following kinds of evidence proposed in the Plaintiffs will-says are clearly irrelevant to issues in the pleadings and should be excluded now to avoid an unnecessary waste of resources in both preparing for and conducting the trial:
(a) Evidence of other Aboriginal groups' practices is irrelevant unless they are of the same culture and language group and it can be demonstrated that there were common practices, customs or traditions. For example, even if the Tsuu T'ina were members of the Blackfoot Confederacy, this does not mean that the practices of other members of the Blackfoot Confederacy are relevant to the Tsuu T'ina's claim. This is especially so where, as stated in the will say of the Les Healy, "they [the Tsuu T'ina] had their own languages, own leaders and their own customs".
(b) Evidence of the impacts of Bill C-31 on other First Nation communities is not relevant to matters in issue in these actions. In considering impacts, the Court should only consider the impacts on the Plaintiffs and not on other bands. For example, the evidence of Rarihokwats to the effect that bands in Quebec have been affected or impacted by Bill C-31 in a manner similar to those of the Plaintiff bands is neither admissible similar fact evidence, nor relevant to the matters raised in the pleadings. This Court disallowed proposed amendments to the Plaintiffs' claims that would have included assertions about the impact of the impugned legislation on other First Nation bands, stating that "where 'First Nations' has not been changed to the singular 'First Nation' (and therefore the meaning of the pleadings has changed to include First Nations other than the plaintiff) the change should not be allowed".
Reasons for Order and Order of Russell J. dated June 29, 2004 at para. 33. See also paras. 26, 29, 30 [Tab 14]
(c) Evidence concerning the Plaintiff Sawridge Band's self-government negotiations with the Government of Canada is not relevant to the matters in this litigation.
(d) Self-government negotiations in other Provinces and Territories, and in particular the Yukon, with groups who are not the Plaintiffs are not relevant to the matters raised in the pleadings. Similarly, evidence about efforts to bring about legislation or constitutional amendments that would specifically recognize Aboriginal self-government are irrelevant.
(e) Evidence concerning the Blackfoot Confederacy is not relevant to the matters raised in this litigation. If it was accepted that such a Confederacy existed, and even if the Plaintiff Tsuu T'ina band was in fact a member of the Confederacy and had its own operating structure, this does not lend any credence to the claim of the Plaintiff Tsuu T'ina that it has an aboriginal or treaty right to control its own membership.
(f) The evidence of former ministers, members of Parliament and others who participated in the development of Bill C-31 as to what they thought they were enacting is irrelevant to the issues in this litigation.
(g) Evidence concerning the motives and competence of the Government of Canada and those persons employed by her to institute Indian policy are not relevant.
(h) Evidence concerning the American Indian experience with similar legislation, American treaties with American Indians, and the practices, customs and the traditions of American Indians, are not relevant to the issues in these actions.
[225] In their answer to the issues raised by the Crown, as set out in the preceding paragraphs, the Plaintiffs have provided the Court with an account of how they see their membership rights as being part of their Aboriginal and treaty rights, as well as a function of their Aboriginal title in their reserve lands. They also explain how, from their perspective, the governing case law does not exclude them from leading evidence of their traditional forms of government, so that they can argue that "the existence of such a government necessarily entails the right to maintain and define societal relations and membership."
[226] However, when I said earlier that the degree of polarization in this matter may not be as great as I had been led to expect, I was thinking of words in their written submissions that the "Plaintiffs of course agree that an Aboriginal right may not be found 'at large' in the sense that it applies to all the First Nations of Canada regardless of their particular circumstances."
[227] I take this to mean that the Plaintiffs do not intend to lead evidence, at least, of an Aboriginal right to self-government 'at large' or what the Crown has, on occasion, referred to as a right to self-government simpliciter for other First Nation groups. They are agreeing, at least, that we have to look at the situation of the particular Plaintiffs in this case. The disagreement, then, appears to be over the "level of specificity" involved in both claiming and establishing such a self-government right, and the Plaintiffs are clear that, in their view, Van der Peet does not stand for the proposition that the nature of the right claimed must be considered at as a high level of specificity as the Crown contends. The Plaintiffs are concerned that the "Crown's myopic focus upon the right to determine membership to the exclusion of all other aspects of First Nations self-government ignores the Aboriginal perspective on this issue" which looks at self-government and its institutions "in a more holistic and integrated manner."
[228] What I understand the Plaintiffs to be saying now is that, although they are not asserting a claim for general, or generic, self-government for other aboriginal communities in Canada, they are asserting a general, or generic, right to self-government for themselves as a basis for the right to control their own membership. And this is where the principal difficulty lies. Having represented to the Court in the past that "we are not saying we have a right to self-government at large. That is not what this case is about," and having told the Court in 2004 that the proposed amendments were merely an attempt to focus issues for the Court, the Plaintiffs are now saying that they are asserting and wish to prove a general claim to self-government for themselves upon which their right to decide their own membership is parasitic. The question is why, or how, can this be?
[229] This change of position raises a particular problem for the Court. In their written brief, and in their oral presentation, the Plaintiffs make it clear to the Court that, in considering self-government as an Aboriginal and treaty right, their concern is with the traditional forms of self-government "of the Plaintiffs."
[230] The problem for the Court is that the will-says that the Crown is addressing were not prepared at the direction of Plaintiffs' present counsel, but were prepared at a time when the Plaintiffs did appear to wish to assert a claim to self-government "at large" and to adduce evidence at that level not merely for themselves, but for the other First Nation groups. This view is borne out by the amendments that the Plaintiffs wanted to make to their pleadings in 2004 which, as I pointed out in my Reasons of June 29, 2004, attempted to bring in a new claim for self-government that went beyond what had been pleaded, and raised allegations about First Nations other than the Plaintiffs, and would have had the effect of putting the Crown on trial "for all of its conduct with respect to all First Nations in Canada."
[231] The same impression is found in the will-says themselves which are now under examination, and which refer to evidence concerning First Nations communities other than Plaintiffs and a, seemingly, broad right of First Nation government that, in my view, is at odds with the Plaintiffs' position as put forward in this motion, and with previous statements made by the Plaintiffs to the Court. In their written materials and oral presentation, the Plaintiffs have not really addressed the specifics of the will-says to show how the evidence referred to relates to the degree of "specificity" that the Plaintiffs now feel is necessary to support their case. It seems to me that a great deal of the evidence proposed in the will-says is intended to do precisely what the Court said the Plaintiffs could not do at the time of the proposed amendments in 2004. Hence, the Court has a general concern that the Plaintiffs, in their will-says, are attempting to introduce issues (by way of evidence) into these proceedings that are not in the pleadings. As the Court has said before, if the Plaintiffs wish to litigate self-government simpliciter, either for themselves or for other First Nations, they should do it in appropriately framed pleadings and allow the Crown to respond to such a broad assertion.
[232] I believe the Plaintiffs are now saying that, because their right to determine their own membership is parasitic upon their rights of self-government, they should be allowed to assert political sovereignty as a section 35 right as a prelude to addressing the membership issues raised by the impugned Amendments to the Indian Act. In effect, this would require the Court to find that the Plaintiffs have a right to self-government at large that is protected by section 35 of the Constitution Act, 1982.
[233] But the Plaintiffs have represented to the Crown and the Court (when seeking the material amendments in 1998) that such was not the approach they intended to take or that was contemplated by the amendments. What is more, and I will come to this later, they also said at the time that the relevant Supreme Court of Canada jurisprudence would not allow such an approach ("I can't be broad"). But there could be no broader claim to self-government than a bold and bare assertion that the Plaintiffs are self-governing polities whose rights in that regard are protected by section 35, which is what the Plaintiffs are saying now.
[234] Any such assertion is so important that it would need to be pleaded directly and fully to permit an appropriate response by the Crown and effective adjudication by the Court. To allow the Plaintiffs to now proceed to trial on the understanding that, contrary to previous representations by the Plaintiffs themselves, we are now dealing with a section 35 claim to self-government at large, would result in a serious injustice to the other parties involved in this law suit.
[235] The 1998 amendments to the pleadings were secured on the basis of clear representations by the Plaintiffs concerning the narrow scope of their claims. It doesn't matter what the Crown may have argued at the amendment motion. Mr. Justice Hugessen did not allow those amendments to encompass the Crown's view of what a broad interpretation might entail. He allowed them because he accepted the Plaintiffs' position that they were close enough to the original pleadings not to require a separate action, and because of the reassurances that Mr. Henderson gave on behalf of the Plaintiffs.
[236] If what the Plaintiffs are now arguing should be the case, i.e. that the amendments were intended to encompass a claim to self-government at large, or that self-government per se needs to be established in order to justify a parasitic right to determine membership, a new action would have been required because such a broad claim is a very different proposition, and the Plaintiffs would have had to provide much more conceptual and defining detail concerning the modalities of self-government they wished to put forward.
[237] The choice is really for the Plaintiffs to make. Nothing has changed since 1998 concerning the scope of the pleadings. If a full, self-government claim required a new action then, it requires one now. It cannot be piggy-backed on the membership claim by saying that membership is parasitic on self-government so that the Court is required to hear evidence and make a decision on whether the Plaintiffs are fully self-governing and politically sovereign.
[238] In any event, one has only to compare Mr. Henderson's assurances at the time of seeking the amendments in 1998 with the following statements by Plaintiffs' counsel in this motion to appreciate that a very significant shift in position has occurred without any explanation as to how or why:
(a) "[T]hese pleadings, and in particular the statements of claim, assert that these First Nations are self-governing nations with their own customary laws and juridical institutions and that their authority to determine their own membership inheres in or flows from their right of self-government";
(b) "Well, you know, the - in fact, counsel was right [this is a reference to representations by Plaintiffs' counsel that the Plaintiffs are now seeking s. 35(1) self-government recognition which will 'change the framework of the Canadian federation by creating a three cornered relationship between the federal government, provincial governments and aboriginal governments' - and note the plurals], the case does involve that. On a go-forward basis it doesn't require that you make that decision per se. But we are talking about sovereignty that is shared between First Nations, the provincial Crown, and the federal Crowns";
(c) "They [i.e. First Nations generally ] lived, in accordance with evidence that we intend to adduce, as sovereign nations governing their own internal affairs";
(d) "[T]his is a case that deals with shared sovereignty."
(e) "It's dealing with the issue of self-governance. It's alive. It's there."
If the above statements are the Plaintiffs present view of what Mr. Henderson had in mind in 1998 when he secured the amendments by claiming "the narrowest possible formulation of a jurisdictional right. We are saying, as a government, we have a right to determine who our citizens are" and "we are not saying we have a right to self-government at large. That is not what this case is about. We are saying we have a right to this fundamental aspect of our self-government," then I don't see how the Crown and the Interveners could possibly have known that this is what he had meant, and I don't think the Court could have understood it in that way when it granted the amendments. But I don't think the Plaintiffs did mean to make any such broad assertions when they secured the amendments. And that is why they are now urging the Court to "forget" what Mr. Henderson said.
[239] The Crown has always said that there is an element of self-government present in the pleadings, but it is not self-government "at large" or self government "simpliciter" for the Plaintiffs or any other Aboriginal groups, and these proceedings are only about the Plaintiffs, not other First Nations communities across Canada or North America.
[240] So the Plaintiffs' presentation in this motion helps the Court to a general appreciation of what they would like the pleadings to be about, and what evidence they now say is needed. But it does not address the will-says themselves, which are the subject matter of this motion. In fact, what it tells the Court is that the will-says contain a great deal of extraneous material that does not correspond with what Plaintiffs said their claim was about when they applied for and obtained the 1998 amendments. And there is no real explanation as to how the Plaintiffs can, on one occasion, assure the Court that "we are not saying we have a right to self-government at large. That is not what this case is about," but then come back and say, in effect, that they do have a right to self-government at large, and this is one of the issues this law suit must address. I believe that change in position does require an explanation, but the Plaintiffs have never offered one. And to be quite blunt about it, for the Court to accept such a stark change in the absence of a plausible explanation would be tantamount to the Court saying that this law suit is about whatever the Plaintiffs say it is about at any particular time.
[241] Hence, all that the Court can do at this stage is to indicate its view of the pleadings and then, after examining each will-say, give some indication of where it appears the proposed evidence goes beyond the pleadings.
The Pleadings
[242] The Plaintiffs assert a right to determine their own band membership and seek a declaration from the Court that certain amendments to the Indian Act, enacted in 1985 and 1988, ("Amendments") are inconsistent with section 35 of the Constitution of Canada, protected by section 25 of the Charter.
[243] The Plaintiffs plead that their section 35 right to determine their own band membership is based upon and derived from:
(a) An Aboriginal right to govern themselves with their own institutions, customary laws and traditions, which includes the right to have and maintain societal relationships and the right to determine who is a member; and
(b) An Aboriginal right to determine their band membership; and
(c) A treaty right to determine their own band membership; and
(d) Their unextinguished Indian title to their reserve lands; and
(e) The Royal Proclamation of 1763.
[244] The Plaintiffs also claim that the Amendments unilaterally granted band membership rights to certain individuals against the wishes of the Plaintiffs. This was done in breach of the Plaintiffs' section 35 rights and in a way that transgressed the honour of the Crown and its fiduciary obligations to the Plaintiffs.
[245] By and large, the Crown denies that the Plaintiffs have such rights and calls upon the Plaintiffs to strictly prove them, as well as denying that it has breached any of its obligations to the Plaintiffs in enacting the Amendments which are, in any event, justifiable.
[246] The pleadings raise related matters and describe the basic issues in more detail, of course, but my reading suggests that this is the fundamental framework for purposes of deciding whether the will-says propose evidence on matters that are not relevant to the pleadings. Phrases and paragraphs in the pleadings should not be viewed in isolation and, in particular, the role of the concept of self-government can only be gleaned from reading the whole of the Amended Fresh as Amended Statement of Claim.
[247] So, in the pleadings, the Plaintiffs say that the Amendments unilaterally impose members upon them in a way that interferes with and infringes:
(a) Their Aboriginal and treaty rights to govern themselves; and
(b) Their Aboriginal and treaty rights to determine their own members; and
(c) Their Royal Proclamation right to determine their own membership; and
(d) Their use and enjoyment of Indian title and reserve lands.
[248] Throughout the Amended Fresh as Amended Statement of Claim the Plaintiffs delineate these four bases of unwarranted and unjustifiable interference, and their prayer for relief sums up and reiterates that the declaration they seek is that the Amendments are inconsistent with section 35 because section 35 protects their right to govern themselves, their right to determine their own membership, and their right to unextinguished Indian title to their reserve lands.
[249] As regards the Aboriginal and treaty right of self-government that grounds and justifies their right to determine their own members, the Plaintiffs also say, in paragraph 2, that this right exists by virtue of the fact that each of them:
existed as a self-governing, distinctive polity with its own institutions, customs and traditions, governing itself by its own laws, prior to the European colonization of North America and/or the assertion of sovereignty by European states. It was further recognized as such by the Crown with the execution of the Treaty and the subsequent setting aside of its reserve lands.
No conceptual, or otherwise defining detail, is provided as to the nature or scope of their self-government claim until we get to paragraph 11 of the Amended Fresh as Amended Statement of Claim when the Plaintiffs actually come out and say what they mean by self-government in this context:
The plaintiff states that the claimed right of the First Nation to govern itself with its own institutions, customary laws and traditions was an existing aboriginal right both prior to and after the execution of Treaty 8. These rights remained section 35 aboriginal rights on April 17, 1982. The right at stake is the right to have and maintain societal relationships in accordance with traditional principles, laws, customs and practices, which include the right to determine who is a member.
[250] The general difficulty, then, is how to reconcile the assertions about self-government in the pleadings with the Plaintiffs' representations that "we are not saying we have a right to self-government at large ... we are saying we have a right to this fundamental aspect of our self-government," and with the guidance provided by the Supreme Court of Canada in Pamajewon and Delgamuukw that, in a claim for self-government pursuant to section 35(1), the applicable test is still that laid out in Van der Peet and it cannot be framed in "excessively general terms" or, if it is, it won't be cognizable under s. 35(1).
[251] If the Plaintiffs have indeed pled that, prior to European colonization, they had an Aboriginal and treaty right to govern themselves in all matters that is protected by section 35(1), then it is difficult to conceive of a claim for self-government that could be any broader or "excessive," and this was obviously the concern that Mr. Henderson had in mind when he brought the proposed amendments before Mr. Justice Hugessen in 1998.
[252] I also believe it is at this point that we see the significance of the words of qualification that the Plaintiffs introduced into their pleadings by way of amendments to paragraph 11 in 2004: "The right at stake is the right to have and maintain societal relationships in accordance with traditional principles, laws, customs and practices, which include the right to determine who is a member." Mr. Molstad, for the Plaintiffs, was fully alive to the importance of these words and offered the following explanation at the oral hearing in Edmonton: "And then the plaintiffs in this, what I would describe as paranoia in terms of pleadings, go on to expand this .... ." The "this" in question is the "claimed right of the First Nation to govern itself with its own institutions, customary laws and traditions ..." The key words in Mr. Molstad's explanation are "paranoia" and "expand." The fact is that the words dealing with the "right at stake" do not expand anything. They are words of limitation. They are an attempt by the Plaintiffs to define the "right at stake" more precisely.
[253] The Plaintiffs' position on what they now want to do with self-governance in these proceedings is clear from Mr. Molstad's discussion of paragraph 11:
So they have been very, very specific in defining, you know, what the right at stake is in terms of ultimately your determination. But defining what the right at stake is doesn't mean that it changes the rules of evidence or you say you can't adduce evidence about what your governance has been historically.
In other words, as Mr. Molstad went on to argue elsewhere in his presentation, if the right to determine membership is parasitic upon a right of self-government, then the Plaintiffs say they have to be allowed to lead evidence that will show they are self-governing and sovereign polities.
[254] I believe the short answer to this assertion is that, in order to assert and prove a specific right to determine membership, it is not necessary that the Plaintiffs prove to the Court that they are self-governing in all respects, and/or that they are independent political polities for all purposes, and I certainly don't read the pleadings as saying that the Plaintiffs are going to claim or prove any such broad right. Taken as a whole, the pleadings attack only those Amendments to the Indian Act that imposed members upon the Plaintiffs unilaterally, so that the only incident of self-government at issue in this case is the right to determine membership in a way that has been nullified by the impugned provisions.
[255] To allow the Plaintiffs to now assert and try to prove what would be, in effect, a right to political sovereignty as a basis for asserting a right to decide their own membership would be to allow the Plaintiffs to introduce by the back door something which the Court said in 2004 they could not, at this stage in the proceedings, bring in through the front door. It would also, in my view, ignore the directions of the Supreme Court of Canada, in Mitchell in particular, on how to determine the nature of the claimed right, which "must be characterized in context and not distorted to fit the desired result. It must be neither artificially broadened nor narrowed."
[256] As I will point out later, my reading of the case law is that whether the Plaintiffs are asserting a broad right to self-government, per se or, as they suggest in paragraph 11 of their Amended Fresh as Amended Statement of Claim, they are only asserting a "right to have and maintain societal relationships in accordance with traditional principles, laws, customs and practices, which include the right to determine who is a member," the evidence they adduce must address actual practices, traditions and customs of the Plaintiffs themselves. And it is on that basis that the Court proposes to examine the will-says. In terms of the scope of the pleadings, I do not believe that the Plaintiffs have appropriately pleaded, or are required in terms of the right they claim is "at stake" to plead, that they are totally self-governing polities, thus introducing obliquely into the proceedings something they told the Crown and the Court this case was not about: "we are not saying we have a right to self-government at large. That is not what this case is about." There are, of course, references to self-government in the pleadings, but those references are meant as contextual markers for the section 35 "right at stake" which is clearly the right to determine membership. Had they intended anything more they would have pleaded the conceptual and institutional modalities required for a claim of self-government at large, and they would have placed these modalities squarely before the Crown and the Court.
[257] When the Plaintiffs say in the pleadings that they are self-governing entities, they are saying they are self-governing to the extent required to determine their own membership. They are only asserting what Mr. Henderson explained was "this fundamental aspect of self-government."
[258] I think, then, that the difficulties encountered by the will-says as regards relevance are, by and large, a function of determining how broadly the Plaintiffs have gone in their pleadings beyond trying to establish something more than the customs, traditions, laws and practices of governance that went into deciding their own band membership. In other words, where and how far does paragraph 11 of their Amended Fresh as Amended Statement of Claim take us that paragraph 12 does not?
[259] My reading of paragraph 11, is that if it takes us beyond a bare right to determine band membership towards those principles, traditions, laws, customs and practices developed and maintained by the Plaintiffs to control what they have chosen to call "societal relations," but we are not told what those "societal relations" are and to what extent we need to look beyond those customs, practices, laws and traditions that were used to determine band membership. In fact, the only "societal relationship" specifically identified is the right to determine membership.
[260] The pleadings do show, however, that, whatever this right of self-government is, it is to be found in the specific principles, laws, customs and practices that are "internal" to each Plaintiff. I take this to mean rules internal to the Plaintiffs which they applied to the governance of band membership. This is consistent with the Amendments to the Indian Act that the Plaintiffs wish to impugn: " ... membership of the First Nation should not include persons who claim membership or have become members of the First Nation solely by virtue of the operation of sections 8 to 14.3m, both inclusive, of the Indian Act ... without the consent of the First Nation."
[261] Because we are dealing with group rights that are "internal to the First Nation," the pleadings do not require the Court to look at societal relationships and band membership principles, laws, customs and practices of Aboriginal peoples in general, or of First Nations other than the Plaintiffs, except to the limited extent that such external matters can be shown to have been adopted and used internally by the Plaintiffs.
[262] In addition, the pleadings do not require the Court to take account of the Plaintiffs' political aspirations in general and their recent dealings with the Government of Canada over self-government. This is because these issues, extremely important to the Plaintiffs no doubt, do not help the Court to address the rights, institutions, jurisdiction and laws, that were "internal" to the Plaintiffs prior to the Amendments, and which they developed and maintained to govern the determination of band membership in a way that the impugned amendments to the Indian Act thwart or abrogate.
[263] In the context of self-government and the Plaintiffs alleged treaty, Royal Proclamation and reserve land claims, the pleadings assert, in my reading, that treaty, Royal Proclamation and reserve lands in themselves assume and recognize a right to govern themselves in a way that encompasses a right to determine band membership. In other words, the pleadings direct the Court to consider specific treaties, the Royal Proclamation of 1763 and unextinguished title to reserve lands, in their appropriate contexts, as evidence of the Crown's recognition of the Plaintiffs as entities with sufficient autonomy to control their own band membership.
[264] Once again, in order to understand and address these additional bases for the Plaintiffs' right to determine band membership in a way that has been abrogated by the Amendments, the Court does not need to look at other First Nations, except where it can be shown that such evidence is admissible to support the specific allegations of the Plaintiffs, and the Court does not need to hear about the Plaintiffs' general negotiations with the Government of Canada over self-government.
The Case Law
[265] To assist the Court and the parties to gauge the scope of the pleadings on the issue of self-government, it is also helpful to look at the relevant Supreme Court of Canada jurisprudence.
[266] This is because the 1998 amendments were allowed by Mr. Justice Hugessen so that the Plaintiffs could take advantage of the jurisprudential evolution that had occurred since the first trial. And I believe that Mr. Henderson was referring, in particular, to the guidance provided by Chief Justice Lamer when he sought the 1998 amendments before Mr. Justice Hugessen. The Crown concedes that the 1998 amendments did introduce the concept of self-government into the pleadings, but the apparent disagreement concerns the scope of what has been pled, its relationship to the Plaintiffs claim to a right to determine their own members, and the kind of evidence that should be admissible to deal with it.
[267] The three Supreme Court of Canada cases that have a special relevance for these issues are Van der Peet, Pamajewon and Delgamuukw. Mitchell comes into play as well although, of course, it was decided after the 1998 amendments and so cannot be as clearly related to what the Plaintiffs and the Court had in mind in 1998.
[268] In Van der Peet, Chief Justice Lamer provides a number of foundational statements that assist in determining how the Court should address claims under section 35(1) of the Constitution Act.
[269] First of all, he gives us the general purpose and effect of section 35(1):
31. More specifically, what s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.
[270] He then provides the test that the Court should use to identify the Aboriginal rights in section 35(1):
44. In order to fulfil the purpose underlying s. 35(1) -- i.e., the protection and reconciliation of the interests which arise from the fact that prior to the arrival of Europeans in North America aboriginal peoples lived on the land in distinctive societies, with their own practices, customs and traditions -- the test for identifying the aboriginal rights recognized and affirmed by s. 35(1) must be directed at identifying the crucial elements of those pre-existing distinctive societies. It must, in other words, aim at identifying the practices, traditions and customs central to the aboriginal societies that existed in North America prior to contact with the Europeans.
[271] Then he directs us to the factors that should be considered by the Court in the application of the Distinctive Culture test:
48. The test just laid out -- that aboriginal rights lie in the practices, customs and traditions integral to the distinctive cultures of aboriginal peoples -- requires further elaboration with regards to the nature of the inquiry a court faced with an aboriginal rights claim must undertake. I will now undertake such an elaboration, concentrating on such questions as the time period relevant to the court's inquiry, the correct approach to the evidence presented, the specificity necessary to the court's inquiry, the relationship between aboriginal rights and the rights of aboriginal people as Canadian citizens, and the standard that must be met in order for a practice, custom or tradition to be said to be "integral".
[272] Chief Justice Lamer also warns us that the Court must be careful to take into account the Aboriginal perspective when assessing the claim for an aboriginal right:
49. In assessing a claim for the existence of an aboriginal right, a court must take into account the perspective of the aboriginal people claiming the right. In Sparrow, supra, Dickson C.J. and La Forest J. held, at p. 1112, that it is "crucial to be sensitive to the aboriginal perspective itself on the meaning of the rights at stake". It must also be recognized, however, that that perspective must be framed in terms cognizable to the Canadian legal and constitutional structure. As has already been noted, one of the fundamental purposes of s. 35(1) is the reconciliation of the pre-existence of distinctive aboriginal societies with the assertion of Crown sovereignty. Courts adjudicating aboriginal rights claims must, therefore, be sensitive to the aboriginal perspective, but they must also be aware that aboriginal rights exist within the general legal system of Canada. To quote again Walters, at p. 413: "a morally and politically defensible conception of aboriginal rights will incorporate both [aboriginal and non-aboriginal] legal perspectives". The definition of an aboriginal right must, if it is truly to reconcile the prior occupation of Canadian territory by aboriginal peoples with the assertion of Crown sovereignty over that territory, take into account the aboriginal perspective, yet do so in terms which are cognizable to the non-aboriginal legal system.
50. It is possible, of course, that the Court could be said to be "reconciling" the prior occupation of Canada by aboriginal peoples with Crown sovereignty through either a narrow or broad conception of aboriginal rights; the notion of "reconciliation" does not, in the abstract, mandate a particular content for aboriginal rights. However, the only fair and just reconciliation is, as Walters suggests, one which takes into account the aboriginal perspective while at the same time taking into account the perspective of the common law. True reconciliation will, equally, place weight on each.
[273] Next, we come to the degree of precision that should be used to identify the section 35(1) right in question. We are told that Courts must identify precisely the nature of the claim being made in determining whether an aboriginal claimant has demonstrated the existence of an aboriginal right:
51. Related to this is the fact that in assessing a claim to an aboriginal right a court must first identify the nature of the right being claimed; in order to determine whether a claim meets the test of being integral to the distinctive culture of the aboriginal group claiming the right, the court must first correctly determine what it is that is being claimed. The correct characterization of the appellant's claim is of importance because whether or not the evidence supports the appellant's claim will depend, in significant part, on what, exactly, that evidence is being called to support.
52. I would note here by way of illustration that, in my view, both the majority and the dissenting judges in the Court of Appeal erred with respect to this aspect of the inquiry. The majority held that the appellant's claim was that the practice of selling fish "on a commercial basis" constituted an aboriginal right and, in part, rejected her claim on the basis that the evidence did not support the existence of such a right. With respect, this characterization of the appellant's claim is in error; the appellant's claim was that the practice of selling fish was an aboriginal right, not that selling fish "on a commercial basis" was. It was however, equally incorrect to adopt, as Lambert J.A. did, a "social" test for the identification of the practice, tradition or custom constituting the aboriginal right. The social test casts the aboriginal right in terms that are too broad and in a manner which distracts the court from what should be its main focus -- the nature of the aboriginal community's practices, customs or traditions themselves. The nature of an applicant's claim must be delineated in terms of the particular practice, custom or tradition under which it is claimed; the significance of the practice, custom or tradition to the aboriginal community is a factor to be considered in determining whether the practice, custom or tradition is integral to the distinctive culture, but the significance of a practice, custom or tradition cannot, itself, constitute an aboriginal right.
53. To characterize an applicant's claim correctly, a court should consider such factors as the nature of the action which the applicant is claiming was done pursuant to an aboriginal right, the nature of the governmental regulation, statute or action being impugned, and the practice, custom or tradition being relied upon to establish the right. In this case, therefore, the Court will consider the actions which led to the appellant's being charged, the fishery regulation under which she was charged and the practices, customs and traditions she invokes in support of her claim.
[274] Chief Justice Lamer also provides us with pertinent guidance on how a Court should approach evidentiary issues in a section 35(1) claim:
68. In determining whether an aboriginal claimant has produced evidence sufficient to demonstrate that her activity is an aspect of a practice, custom or tradition integral to a distinctive aboriginal culture, a court should approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The courts must not undervalue the evidence presented by aboriginal claimants simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law torts case.
[275] The important issue of "specificity", which is central to the debate in the present motion, is broached by Chief Justice Lamer as follows:
69. Courts considering a claim to the existence of an aboriginal right must focus specifically on the practices, customs and traditions of the particular aboriginal group claiming the right. In the case of Kruger, supra, this Court rejected the notion that claims to aboriginal rights could be determined on a general basis. This position is correct; the existence of an aboriginal right will depend entirely on the practices, customs and traditions of the particular aboriginal community claiming the right. As has already been suggested, aboriginal rights are constitutional rights, but that does not negate the central fact that the interests aboriginal rights are intended to protect relate to the specific history of the group claiming the right. Aboriginal rights are not general and universal; their scope and content must be determined on a case-by-case basis. The fact that one group of aboriginal people has an aboriginal right to do a particular thing will not be, without something more, sufficient to demonstrate that another aboriginal community has the same aboriginal right. The existence of the right will be specific to each aboriginal community.
70. In identifying those practices, customs and traditions that constitute the aboriginal rights recognized and affirmed by s. 35(1), a court must ensure that the practice, custom or tradition relied upon in a particular case is independently significant to the aboriginal community claiming the right. The practice, custom or tradition cannot exist simply as an incident to another practice, custom or tradition but must rather be itself of integral significance to the aboriginal society. Where two customs exist, but one is merely incidental to the other, the custom which is integral to the aboriginal community in question will qualify as an aboriginal right, but the custom that is merely incidental will not. Incidental practices, customs and traditions cannot qualify as aboriginal rights through a process of piggybacking on integral practices, customs and traditions.
[276] Van der Peet doesn't say anything specifically about self-government claims, and we can see immediately that its focus is the practices, customs and traditions of the particular Aboriginal community claiming the right in question. But what happens if the right at issue is a generic assertion of self-government or, as in the present case, a specific right (to determine membership) that the Plaintiffs say is parasitic upon, or incidental to, a right of self-government?
[277] This issue comes up in Pamajewon, but it isn't dealt with in a particularly helpful way there because of the special facts of that case.
[278] In Pamajewon, Chief Justice Lamer affirms Van der Peet and the approach to 35(1) rights articulated in that case. Then he deals with the self-government issue as follows:
24. The appellants' claim involves the assertion that s. 35(1) encompasses the right of self-government, and that this right includes the right to regulate gambling activities on the reservation. Assuming without deciding that s. 35(1) includes self-government claims, the applicable legal standard is nonetheless that laid out in Van der Peet, supra. Assuming s. 35(1) encompasses claims to aboriginal self-government, such claims must be considered in light of the purposes underlying that provision and must, therefore, be considered against the test derived from consideration of those purposes. This is the test laid out in Van der Peet, supra. In so far as they can be made under s. 35(1), claims to self-government are no different from other claims to the enjoyment of aboriginal rights and must, as such, be measured against the same standard.
27. The appellants themselves would have this Court characterize their claim as to "a broad right to manage the use of their reserve lands". To so characterize the appellants' claim would be to cast the Court's inquiry at a level of excessive generality. Aboriginal rights, including any asserted right to self-government, must be looked at in light of the specific circumstances of each case and, in particular, in light of the specific history and culture of the aboriginal group claiming the right. The factors laid out in Van der Peet, and applied, supra, allow the Court to consider the appellants' claim at the appropriate level of specificity; the characterization put forward by the appellants would not allow the Court to do so.
[279] So, in Pamajewon, the appellants asserted a specific Aboriginal right (high stakes gambling) but also an inherent right to self-government upon which that specific right was parasitic.
[280] The Supreme Court of Canada did not really have to decide the self-government issue because the appellants were not able to demonstrate a specific Aboriginal right to control gambling activities.
[281] What Chief Justice Lamer seems to be saying is that, if s. 35(1) allows a self-government claim, we still have to apply the Van der Peet test.
[282] He also says that "In so far as they can be made under s. 35(1),claims to self-government are no different from other claims to the enjoyment of Aboriginal rights and must, as such, be measured against the same standard."
[283] By the "same standard" I assume he means that if self-government is asserted as a section 35(1) right, that right must be identified and proven in the "practices, traditions and customs" central to the particular community asserting the right.
[284] But it is not clear whether Chief Justice Lamer is affirming that a generic self-government claim can be put forward under section 35(1), or whether that issue still requires determination. However, it is clear that, if such a claim is made under section 35(1), the Van der Peet test applies.
[285] Fortunately, others have wrestled with this problem. Professor Brian Slattery, for example, has addressed it in his article, "Making Sense of Aboriginal and Treaty Rights", (2000), 79 Can. Bar Rev. 196 at page 213:
Is the right of self-government a generic or a specific aboriginal right? In the Pamajewon case, the Court viewed the question of self-government through the lens of specific rights, as provided by the Van der Peet decision, and held that the right of self-government would have to be proved as an element of specific practices, customs and traditions integral to the particular aboriginal society in question. According to this approach, the right of self-government would consist of a bundle of specific rights to govern particular activities rather than a generic right to deal with a range of more abstract subject matters. However, Pamajewon was decided before the Court's holding in Delgamuukw, which significantly broadened our understanding of aboriginal rights and furnished us with the alternative category of generic rights.
[286] In Delgamuukw, the Supreme Court of Canada was dealing with various questions related to a single issue: "this appeal raises a set of interrelated and novel questions which revolve around a single issue - the nature and scope of the constitutional protection afforded by s. 35(1) to common law aboriginal title" (para.1).
[287] As far as a claim to self-government is concerned, Chief Justice Lamer made it clear that "this is not the right case for the Court to lay down the legal principles to guide future litigation" (para. 170). However, he did provide some guidance:
170. In the courts below, considerable attention was given to the question of whether s. 35(1) can protect a right to self-government, and if so, what the contours of that right are. The errors of fact made by the trial judge, and the resultant need for a new trial, make it impossible for this Court to determine whether the claim to self-government has been made out. Moreover, this is not the right case for the Court to lay down the legal principles to guide future litigation. The parties seem to have acknowledged this point, perhaps implicitly, by giving the arguments on self-government much less weight on appeal. One source of the decreased emphasis on the right to self-government on appeal is this Court's judgment in Pamajewon. There, I held that rights to self-government, if they existed, cannot be framed in excessively general terms. The appellants did not have the benefit of my judgment at trial. Unsurprisingly, as counsel for the Wet'suwet'en specifically concedes, the appellants advanced the right to self-government in very broad terms, and therefore in a manner not cognizable under s. 35(1).
171. The broad nature of the claim at trial also led to a failure by the parties to address many of the difficult conceptual issues which surround the recognition of aboriginal self-government. The degree of complexity involved can be gleaned from the Report of the Royal Commission on Aboriginal Peoples, which devotes 277 pages to the issue. That report describes different models of self-government, each differing with respect to their conception of territory, citizenship, jurisdiction, internal government organization, etc. We received little in the way of submissions that would help us to grapple with these difficult and central issues. Without assistance from the parties, it would be imprudent for the Court to step into the breach. In these circumstances, the issue of self-government will fall to be determined at trial.
[288] These words suggest to me the following conclusions:
(a) A right to self-government that is advanced in very broad terms is "not cognizable under s. 35(1)";
(b) If self-government is asserted as a right under section 35(1), it "cannot be framed in excessively general terms";
(c) If self-government is asserted, the party advancing the claim will have to deal with the many difficult conceptual issues attendant upon such a claim and this cannot be done where the right is merely advanced in very broad terms.
[289] Once again, I am grateful to Professor Slattery, a page 214 of the same article, for the cold comfort he provides that Delgamuukw is not entirely clear on how self-government claims should be approached, even though he does have his own preferred position:
However, Pamajewon was decided before the Court's holding in Delgamuukw, which significantly broadened our understanding of aboriginal rights and furnished us with the alternative category of generic rights.
In the light of Delgamuukw, it now seems preferable to treat the right of self-government as a generic aboriginal right rather than as a bundle of specific rights. On this view, the right of self-government is governed by uniform principles laid down by Canadian common law. The basic structure of the right does not vary from group to group; however its application to a particular group may differ depending on the local circumstances. This is the approach to the right of self-government taken in the Report of the Royal Commission on Aboriginal Peoples, which the Supreme Court cites in its brief comments on self government in Delgamuukw.
However, it could be argued that certain observations in Delgamuukw rule out this approach. In declining to be drawn into an analysis of self-government, the Court reiterates its holding in Pamajewon that rights to self-government cannot be framed in "excessively general terms". It notes that in the current case the aboriginal parties advanced the right to self-government "in very broad terms, and therefore in a manner not cognizable under s. 35(1)." On one interpretation, these remarks support the view that the right of self-government is a bundle of specific rights, governed by the criteria laid down in Van der Peet. However, I suggest that these comments are better read simply as a warning against over-ambitious litigation, which attempts to induce the courts to settle very abstract and difficult questions without an appropriate factual or argumentative context.
[290] I also note that Professor Slattery, in discussing the right to control aboriginal lands, emphasizes that "the precise application of this right and the particular modalities of self-government that it supports will cleasrly be governed by factors specific to the group" (p. 215).
[291] Professor Slattery's suggestions regarding a generic approach to self government are not, borne out, in my view, by Mitchell, where the Supreme Court of Canada strongly affirms Van der Peet, but also makes helpful comments concerning evidentiary issues:
12. In the seminal cases of R. v. Van der Peet, [1996] 2 S.C.R. 507, and Delgamuukw, supra, this Court affirmed the foregoing principles and set out the test for establishing an aboriginal right. Since s. 35(1) is aimed at reconciling the prior occupation of North America by aboriginal societies with the Crown's assertion of sovereignty, the test for establishing an aboriginal right focuses on identifying the integral, defining features of those societies. Stripped to essentials, an aboriginal claimant must prove a modern practice, tradition or custom that has a reasonable degree of continuity with the practices, traditions or customs that existed prior to contact. The practice, custom or tradition must have been "integral to the distinctive culture" of the aboriginal peoples, in the sense that it distinguished or characterized their traditional culture and lay at the core of the peoples' identity. It must be a "defining feature" of the aboriginal society, such that the culture would be "fundamentally altered" without it. It must be a feature of "central significance" to the peoples' culture, one that "truly made the society what it was" (Van der Peet, supra, at paras. 54-59 (emphasis in original)). This excludes practices, traditions and customs that are only marginal or incidental to the aboriginal society's cultural identity, and emphasizes practices, traditions and customs that are vital to the life, culture and identity of the aboriginal society in question.
13. Once an aboriginal right is established, the issue is whether the act which gave rise to the case at bar is an expression of that right. Aboriginal rights are not frozen in their pre-contact form: ancestral rights may find modern expression. The question is whether the impugned act represents the modern [page 929] exercise of an ancestral practice, custom or tradition.
14. Before we can address the question of whether an aboriginal right has been established, we must first characterize the right claimed. The event giving rise to litigation merely represents an alleged exercise of an underlying right; it does not, in itself, tell us the scope of the right claimed. Therefore it is necessary to determine the nature of the claimed right. At this initial stage of characterization, the focus is on ascertaining the true nature of the claim, not assessing the merits of this claim or the evidence offered in its support.
15. In Van der Peet, supra, at para. 53, the majority of this Court provided three factors that should guide a court's characterization of a claimed aboriginal right: (1) the nature of the action which the applicant is claiming was done pursuant to an aboriginal right; (2) the nature of the governmental legislation or action alleged to infringe the right, i.e. the conflict between the claim and the limitation; and (3) the ancestral traditions and practices relied upon to establish the right. The right claimed must be characterized in context and not distorted to fit the desired result. It must be neither artificially broadened nor narrowed. An overly narrow characterization risks the dismissal of valid claims and an overly broad characterization risks distorting the right by neglecting the specific culture and history of the claimant's society: see R. v. Pamajewon, [1996] 2 S.C.R. 821.
26. Van der Peet set out the test for establishing an aboriginal right protected under s. 35(1). Briefly stated, the claimant is required to prove: (1) the existence of the ancestral practice, custom or tradition advanced as supporting the claimed right; (2) that this practice, custom or tradition was "integral" to his or her pre-contact society in the sense it marked it as distinctive; and (3) reasonable continuity between the pre-contact practice and the contemporary claim. I will consider each of these elements in turn. First, however, it is necessary to consider the evidence upon which claims may be proved, and the approach courts should adopt in interpreting such evidence.
27. Aboriginal right claims give rise to unique and inherent evidentiary difficulties. Claimants are called upon to demonstrate features of their pre-contact society, across a gulf of centuries and without the aid of written records. Recognizing these difficulties, this Court has cautioned that the rights protected under s. 35(1) should not be rendered illusory by imposing an impossible burden of proof on those claiming this protection (Simon v. The Queen, [1985] 2 S.C.R. 387, at p. 408). Thus in Van der Peet, supra, the majority of this Court stated that "a court should approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in" (para. 68).
28. This guideline applies both to the admissibility of evidence and weighing of aboriginal oral history (Van der Peet, supra; Delgamuukw, supra, at para. 82).
29. Courts render decisions on the basis of evidence. This fundamental principle applies to aboriginal claims as much as to any other claim. Van der Peet and Delgamuukw affirm the continued applicability of the rules of evidence, while cautioning that these rules must be applied flexibly, in a manner commensurate with the inherent difficulties posed by such claims and the promise of reconciliation embodied in s. 35(1). This flexible application of the rules of evidence permits, for example, the admissibility of evidence of post-contact activities to prove continuity with pre-contact practices, customs and traditions (Van der Peet, supra, at para. 62) and the meaningful consideration of various forms of oral history (Delgamuukw, supra).
30. The flexible adaptation of traditional rules of evidence to the challenge of doing justice in aboriginal claims is but an application of the time-honoured principle that the rules of evidence are not "cast in stone, nor are they enacted in a vacuum" (R. v. Levogiannis, [1993] 4 S.C.R. 475, at p. 487). Rather, they are animated by broad, flexible principles, applied purposively to promote truth-finding and fairness. The rules of evidence should facilitate justice, not stand in its way. Underlying the diverse rules on the admissibility of evidence are three simple ideas. First, the evidence must be useful in the sense of tending to prove a fact relevant to the issues in the case. Second, the evidence must be reasonably reliable; unreliable evidence may hinder the search for the truth more than help it. Third, even useful and reasonably reliable evidence may be excluded in the discretion of the trial judge if its probative value is overshadowed by its potential for prejudice.
31. In Delgamuukw, mindful of these principles, the majority of this Court held that the rules of evidence must be adapted to accommodate oral histories, but did not mandate the blanket admissibility of such evidence or the weight it should be accorded by the trier of fact; rather, it emphasized that admissibility must be determined on a case-by-case basis (para. 87). Oral histories are admissible as evidence where they are both useful and reasonably reliable, subject always to the exclusionary discretion of the trial judge.
[292] Mitchell suggests that the Van der Peet test should be used to establish any Aboriginal right protected under section 35(1). In other words, Mitchell appears to rule out the approach suggested by Professor Slattery to "treat the right of self-government as a generic Aboriginal right rather than a bundle of specific rights" and to support those who felt that Delgamuukw ruled out the generic approach. It also suggests the need, to use Professor Slattery's words in relation to control over aboriginal land, for the pleadings to address, and for the Court to examine, "the particular modalities of self-government" and the way they are "governed by factors specific to the group."
[293] The section 35(1) right asserted in Mitchell, however, (trading across the St. Lawrence River) was a specific right, so that the Supreme Court does not engage in a discussion, at least directly, on how a trial Court should handle a claim under section 35(1) to a more generic right, such as a right to self-government.
[294] All in all, I believe the case law suggests, at the very least, that a self-government right can be asserted under section 35(1) but that it cannot be framed in "excessively general terms" and that to advance such a claim in excessively general terms is "not cognizable under s. 35(1)," as was explained in Pamajewon.
[295] This being said, we are left to surmise whether a claim to self-government under section 35(1) should be couched in terms of a bundle of specific rights integral to the Plaintiffs, or whether Van der Peet should be modified in some way because self-government might be considered a generic, as opposed to a specific, right.
[296] These problems need to be assessed in light of the warnings reiterated in Mitchell where the Supreme Court cautioned that "the rights protected under s. 35(1) should not be rendered illusory by imposing an impossible burden of proof on those claiming this protection," (para. 27) and the words in Van der Peet that "a court should approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of Aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in" (para. 68).
[297] In Mitchell, the Supreme Court tells us that these evidentiary cautions or guidelines apply "both to the admissibility of evidence and weighing of aboriginal oral history" (para. 28).
[298] Mitchell also tells us that Van der Peet and Delgamuukw "affirm the continued applicability of the rules of evidence, while cautioning that these rules must be applied flexibly, in a manner commensurate with the inherent difficulties posed by such claims and the promise of reconciliation embodied in s. 35(1) (para. 29)." Rules of evidence are not "cast in stone" (para. 30) and "should facilitate justice, not stand in its way" (para. 30).
[299] I refer to the case law in this motion, not to make any kind of definitive statement about how a general claim to self-government ought to be pleaded, but to outline the issues that Mr. Henderson had in mind in 1998 when he came to the Court with his proposed amendments and said "I can't be broad," and this is why the Plaintiffs are only claiming "a right to this fundamental aspect of our self-government" and not "self-government at large," and why the "new pleading is simply an explication based on the old one." Given the case law from the Supreme Court of Canada, Mr. Henderson's approach makes eminent sense, and nothing has happened to the pleadings that would change what was done in 1998 as regards the role of self-government in these proceedings.
Conclusions On The Scope of Pleadings
[300] At this stage in the proceedings, where the Court has been asked to examine pleadings and make decisions concerning the exclusion of areas of possible evidence referred to in will-says, extreme caution is required because the Court does not know as yet the ways traditional rules of evidence may need to be modified on the facts of this case so that justice can be done.
[301] At the same time, of course, the Court has to be mindful that there is already a considerable record from the first trial, and that Mr. Justice Hugessen has indicated that, notwithstanding the amendments to the pleadings he allowed in 1998, the factual matrix and the issues remain fundamentally the same. There is a compelling need to avoid (possible) years of trial hearing evidence that is not relevant to the pleadings.
[302] This is why, in interpreting the pleadings on the issue of self-government in light of the Supreme Court jurisprudence mentioned above, and in light of what I see as an unexplained change of direction by the Plaintiffs, I think the Court has to assume that, whatever the Plaintiffs wish to assert about self-government, it must be grounded in specific governance practices, laws and customs, internal and integral to these particular Plaintiffs, that support a right to determine their own membership that is unjustifiably thwarted or abrogated by the impugned Amendments to the Indian Act. To allow the Plaintiffs at this stage to embark upon a course of conduct aimed at establishing a right to govern themselves at large in a sovereign sense would be to permit the claim to go forward in excessively general terms when the Plaintiffs have not only represented otherwise but have failed to provide in the pleadings any real basis for such a broad claim. Even though the Plaintiffs argue that their membership right is parasitic upon a self-government right, they appear intent upon establishing that they are autonomous polities in a general sense protected by section 35. Much of their new evidence is aimed in this direction.
[303] When Mr. Henderson said that "short of writing out the rules we apply, you cannot be more specific than that" and "that is exactly what Chief Justice Lamer says I have to be. I do have to define it as rationally and as centrally as possible. I cannot be broad," he had in mind the guidelines in Pamajewon that rights to self-government cannot be framed "in excessively general terms," and I believe he was being entirely candid with the Court that he did not regard a broader approach as being cognizable. This is why he said the suggested amendments should not be read as encompassing anything more general.
[304] And this is why, in my view, Mr. Henderson said that "when I put forward the new claim, we are not saying we have a right to self-government at large. This is not what this case is about. We are saying we have a right to this fundamental aspect of our self-government."
[305] These words are important because the Crown, the Interveners and Mr. Justice Hugessen proceeded after the 1998 amendments on the understanding that the Plaintiffs' claims were as Mr. Henderson had described them. Decisions were made and reliance was placed upon that interpretation of the pleadings. Attempts by the Plaintiffs in 2004 to broaden the self-government claims were denied on the basis that any such amendments would change the nature of the proceedings because they would introduce into the pleadings "new and contentious issues" that could not be raised at that point, and because of the inevitable prejudice to the Crown that would result if the Plaintiffs were now allowed "to put the Crown on trial for all of its conduct with respect to all First Nations in Canada." This was all entirely consistent with Delgamuukw where Chief Justice Lamer said that the Supreme Court of Canada should not "step into the breach" and deal with self-government in a situation where the "difficult conceptual issues which surround the recognition of self-government" and the "different models of self-government, each differing with respect to their conception of territory, citizenship, jurisdiction, internal government organization etc." had not been dealt with by the parties at trial. If I look at the pleadings in this case, and the way this matter has progressed, there is, as in Delgamuukw, little in the way of submissions and detail that would allow the Court to even begin to grapple with a broad, generic claim. And I see nothing in the pleadings to alert the Crown to what, precisely, is being claimed in this regard and to justify the enormous time and effort it would require to prepare to hear the kind of evidence that the Plaintiffs wish to introduce to support a claim to self-government at large, even if that claim is only being asserted to support a parasitic right to determine membership. The fact is that, if the Plaintiffs cannot establish internal and integral practices, customs and traditions of controlling membership that have been thwarted or abrogated by the impugned Amendments to the Indian Act, then no claim at large to being a sovereign polity can assist them, at least as I read the jurisprudence.
[306] The Court also said in 2004 that some of the amendments proposed by the Plaintiffs "would substantially expand the scope of this action and raise issues where there has been no discovery in a context where the amendments add nothing substantive to the Plaintiffs' claim that it has an Aboriginal right to determine its own membership ..." This was accepted by the Plaintiffs who did not appeal the Court's June 29, 2004 Order on any ground.
[307] Having accepted that Order, both the Plaintiffs and the Court must live with it. That decision, in effect, says that, however it is grounded, and whatever it is parasitic upon, these proceedings are about the Plaintiffs' claim that they have a right under section 35(1) to determine their own membership in a way that has been abrogated or thwarted by the impugned Amendments to the Indian Act, and that is supported by Treaty, the Royal Proclamation and title to reserve lands The June 29, 2004 decision is also consistent with the 1998 amendments and the narrow scope that Mr. Henderson said self-government plays in the Plaintiffs' claim. He said that the claim was about "the right to determine who our citizens are" and, in accordance with the guidance provided by Chief Justice Lamer, the "fundamental aspect of our self-government" that the Plaintiffs are asserting is to be found "in the rules we apply."
[308] What this means, I believe, in terms of the focus and scope of these proceedings is that, in light of the amendments allowed in 1998 and 2004, and in light of Van der Peet, Pamajewon, Delgamuukw and Mitchell, and in light of the way this law suit has been conducted to date (including previous decisions of the Court), this claim is not about self-government in a generic or a general sense; rather, it is about those aspects of self-government (practices, customs and traditions of governance, internal and integral to the Plaintiffs) that show the Plaintiffs deciding and controlling membership in ways that would exclude those persons reinstated to band membership pursuant to the impugned provisions of Bill C-31. It also means that, in order to establish such practices, customs and traditions of governance the Plaintiffs will avoid, in effect, excessively broad areas of evidence that are really about a broad claim to self-government, either for the Plaintiffs, or the Plaintiffs and other First Nations.
[309] I believe that this was what Mr. Henderson had in mind when he put the amendments forward in 1998, what Mr. Justice Hugessen had in mind when he allowed them, what Russell J. had in mind when he disallowed the proposed amendments in 2004, and what remains the true focus and scope of the pleadings. In the end, I am just baffled by the position the Plaintiffs are now taking before the Court. From past motions I know that they say the Crown is trying to prevent them from making their case for self-government and, in this motion, Mr. Molstad has said he believes the Crown is seeking summary judgment to this effect. What I don't understand, because it has never been explained to me, is why, if the Plaintiffs wish to make a claim for self-government along the lines that their will-says now suggest they want to make such a claim, they would come to the Court and state categorically and without equivocation, "[w]e are not saying we have a right to self-government at large. That is not what this case is about." This motion is not an attempt to keep out relevant evidence, as the Plaintiffs claim. It is an attempt to keep the Plaintiffs consistent with what they have said this law suit was about at the time when they sought and were granted the 1998 amendments to the pleadings.
The Will-Says
[310] For reasons I have already given, I believe that the Plaintiffs' will-says as submitted on or before December 14/15, 2004, and which are the subject matter of this motion, were prepared at a time when the Plaintiffs wished to take a much broader approach to self-government than was contemplated by the amendments to the pleadings that were allowed in 1998 and 2004. Necessarily, then, the will-says raise issues and propose evidence that go well beyond the pleadings as drafted. It means they are a summary of proposed evidence, some of which is relevant to the pleadings, some of which is obviously irrelevant, and some of which is just difficult to determine with any degree of certainty at this stage.
[311] Also, in answering this motion by the Crown, the Plaintiffs have not really taken the Court to the will-says themselves to show how they raise and summarize potential evidence that is pertinent to the pleadings as the Court has interpreted them. This is only to be expected, since the Court had yet to provide its views concerning the scope of the pleadings at the time when the will-says were drafted. But it means that the Court is left to review the will-says, together with the explanations provided by the Plaintiffs, and to do the best it can to assist the parties to resolve the scope and relevance issues that have been plaguing these proceedings. I have already said that extreme caution should be exercised at this point because the Court is not yet aware of how traditional rules of evidence may have to be modified to accommodate the Aboriginal perspective. I am also disposed to take a very conservative approach to excluding a witness and/or an area of proposed evidence. At this stage, any doubt and ambiguity must be resolved in the Plaintiffs' favour. But what could be years of trial should not be devoted to hearing evidence that is obviously not relevant to the pleadings and where the Plaintiffs, having been given the opportunity to do so as part of their written explanations and their response to the Crown in this motion, have not attempted to explain to the Court why they have changed their position from the time they sought the amendments in 1998, or how the will-says relate to what they said was the scope of the pleadings at that time.
[312] The Court also has to be consistent with previous rulings and exclude witnesses and/or evidence where there is inadequate disclosure in accordance with the standard clearly articulated by the Court and accepted by the Plaintiffs. The Court must try and give the Plaintiffs the scope they need to make the case that actually appears in the pleadings, while getting rid of the more obvious attempts by the Plaintiffs to introduce the broad concept and politics of self-government into these proceedings by loading their witness list and will-says with advocates and evidence that would take the Crown and the Court into areas and topics that do not assist with the basic issues. The will-says make it clear that the Plaintiffs feel extremely angry and frustrated because their self-government negotiations with the Government of Canada have not achieved as yet the results they desire. And they feel they have been betrayed and misled in this regard by the Government of Canada and the federal bureaucracy. They also believe that the Court and the rest of Canada is being misled by the same people. The anger and the frustration are entirely understandable (although I don't mean to suggest that what the Plaintiffs allege is true or sustainable), but it does not provide a legal justification for loading these proceedings with matters that are, strictly speaking, outside of the scope of the legally defined issues.
[313] The approach taken by the Court in this motion, I believe, preserves the spirit of previous Court orders that were intended to give the Plaintiffs the time they said they needed to complete their pre-trial disclosure, and to assist the parties by looking at the difficult issues of scope of pleadings and relevance, and providing guidance in that respect.
[314] While the Plaintiffs must have the scope to make the case actually pleaded, in view of what has occurred to date in these proceedings, I believe it would be unjust and unfair for the Crown to have to prepare itself, now, to deal with a large body of evidence that does not conform to the spirit and intent of the pleadings, read in the context I had already described. That would be for the Court to put the Crown through a process that, until very recently, the Plaintiffs have said is not part of these proceedings. I believe it is the Court's duty to do something about the relevance issues now because the parties have become so polarized, and the volume of proposed witnesses and clearly irrelevant evidence is so large, that the Court must try for greater precision and efficiency than the present state of the Plaintiffs' will-says would allow if we just proceed straight to trial.
[315] At the same time, of course, the Court remains committed to the position it took in its Reasons of November 25, 2004:
... the court is very much concerned to ensure that the Plaintiffs are given the opportunity to make their case in the most effective way possible. The Court does not wish to interfere with normal trial procedure or place obstacles in the way of the Plaintiffs calling those witnesses they feel they need to assert their position.
[316] In saying this, it is understood, of course, that the Plaintiffs' case is what the pleadings say it is, as represented by Plaintiffs' own counsel, and as consistently interpreted by this Court. It is not the expansive approach to self-government that the Plaintiffs have, of late, attempted to impose on these proceedings and which, as the will-says show to a considerable extent, they now wish to conflate with their general dealings with the Government of Canada over a full-blown right to self-government.
[317] In saying this, the Court wishes to make it very clear that it does not wish to comment on in any way, or discourage the Plaintiffs from, their broader political aspirations. The Court is merely attempting to be consistent with the history of these proceedings, including representations by the Plaintiffs themselves, and with the pleadings as drafted.
[318] It has to be borne in mind that what has happened in this case is somewhat extraordinary. We have already had one trial on the central issues that, to a considerable extent, must have an impact on the scope of the second trial. Also, difficulties with the discovery process since the Court of Appeal decision in 1997 have led to the imposition of a will-say requirement that was breached by the Plaintiffs, and that breach was followed by the belated revelation, just a few months before trial, that the Plaintiffs intended to call a vast number of witnesses to give evidence on matters that the Plaintiffs had to realize, at best, were highly controversial in terms of the pleadings, and in light of the Plaintiffs own previous representations concerning the scope of the pleadings.
[319] The Court has given the Plaintiffs the time and the opportunity they said they needed to correct this breach and to produce compliant will-says, as well as the opportunity to reassure the Court that all of the new witnesses are really necessary, given the pleadings and all that has happened to date.
[320] If the Plaintiffs wish to use section 35(1) to assert a general, generic right to self-government, then it is only fair that they be required to do so in a claim where the pleadings make it very clear that such is the intent. This should not, and cannot, according to the teaching of Chief Justice Lamer in Delgamuukw, be done in a claim where the Plaintiffs tell the Court and the Crown that they are asserting "the narrowest possible formulation at a jurisdictional right" and then, once the case management judge has finished his work and the trial is about to begin, begin to assert a much broader claim to self-government and produce non-compliant will-says that suggest the Plaintiffs intend to use the trial to call many new witnesses and raise matters that, even on the most generous interpretation of the pleadings, can hardly be said to accord with "the narrowest possible formulation of a jurisdictional right."
[321] In view of the Court's interpretation of the pleadings as set out above, it seems to me that the summaries of evidence proposed in the will-says for the following general areas and topics are not relevant to these proceedings:
(a) Evidence of the customs, practices and traditions of aboriginal groups other than the Plaintiffs, unless it is disclosed how the Plaintiffs partook of, or adopted, those customs, practices and traditions themselves, and that they are customs, practices and traditions that relate to the rights asserted;
(b) Evidence of the impact of Bill C-31 on First Nation communities other than the Plaintiffs;
(c) Evidence of the Plaintiffs self-government negotiations with the Government of Canada;
(d) Evidence of self-government negotiations between other First Nation groups and the Government of Canada;
(e) Evidence of efforts to bring about, and have the Government of Canada, recognize a general right of self-government for aboriginal peoples and communities;
(f) Evidence of former Ministers, Members of Parliament, consultants and advocates who participated in the development of Bill C-31 concerning the purpose and impact of Bill C-31, unless it is shown why conventional aids to interpretation are inadequate;
(g) Evidence concerning the motives, bad faith and competence of those persons working for or assisting the Government of Canada to formulate and implement aboriginal policy;
(h) Evidence concerning the general North American experience in dealing with aboriginal issues and aboriginal legislation.
[322] Having said this, the question is what, if anything the Court should do at this stage of the proceedings where the trial judge is handling matters but the trial proper has yet to begin. One possibility is to allow the Plaintiffs to call all of their proposed witnesses on all areas and topics referred to in the will-says and then decide at the end of the trial what is relevant and what is not. Because of the large volume of witnesses and evidence proposed, I do not think this would be a just, expeditious or cost-effective way to deal with the problem. It could take years.
[323] The Court might also exclude witnesses and/or evidence on an individual basis as each witness is called. I think this would be the preferred approach if it were not for the particulars that have led to the present motion:
(a) The Plaintiffs' obvious change of position and the representations they made to the Crown and the Court concerning the scope of the pleadings;
(b) The Court's obvious directions contained in the June 2004 Reasons and Order that this law suit is not about Aboriginal peoples in general and it is not about putting the Crown on trial for all perceived historical injustices;
(c) The Plaintiffs' own indication that they are prepared to live with the scheme set out in the November 25, 2004 Order and to deal with the large issues of scope and relevance before trial;
(d) The need not to put the Crown to the time and expense of preparing for witnesses who are, in an obvious way, outside the scope of the pleadings;
(f) The fact that the Court has already said and ruled in previous orders that it is going to make a decision of the Plaintiffs' witnesses and will-says now, and those orders have not been appealed.
CONCLUSIONS
[324] In view of the preceding discussion, and in order to balance the competing interests in a way that will result in the most just, expeditious and efficient determination of these proceedings on the merits, the Court believes that the following principles and procedures should govern its decision in this motion:
(a) The Plaintiffs should be entirely free to lead all relevant and otherwise admissable evidence they have disclosed that they propose to lead in their will-says served within the time-frame which the Plaintiffs requested and the Court allowed, i.e. December 14/15, 2004;
(b) In order to lead evidence in accordance with paragraph one (a) above, a summary of that evidence must have been disclosed in a way that meets the standards for disclosure already set by the Court in previous decisions and orders, which standards have been accepted by the Plaintiffs as being applicable to them and other parties to the proceedings;
(c) For purposes of determining general relevance the parties and the Court will be guided by the general parameters set out in these Reasons and, in particular, those areas of general exclusion set out in paragraph 321 of these Reasons;
(d) Where there are discrepancies between a will-say and the oral history summary, proposed oral history evidence shall not be excluded for that reason alone, but the Crown may seek an extension of time or other accommodation from the Court to allow it to deal with any such discrepancy that may have caused prejudice to the Crown. However, unless an oral history witness was identified as such and a summary provided by the deadline set out in Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004, the Plaintiffs cannot now introduce oral history witnesses by way of will-says;
(e) The Court will review the will-says submitted by the Plaintiffs by the December 14/15, 2004 deadline (other than those will-says for witnesses who were not identified by the September 15, 2004 Pre-Trial Order deadline) and provide guidance on which proposed witnesses or areas of proposed evidence do not correspond with the pleadings as interpreted by the Court in the Court's Reasons for this motion, and those witnesses will not be called;
(f) Where there is ambiguity as regards exclusion, the Plaintiffs should have the benefit of the doubt at this stage;
(g) Those witnesses who did not appear on the witness list served by the Plaintiffs on September 15, 2004, but who did appear on the list served on December 14, 2004, should not be called by the Plaintiffs without further order of the Court. The purpose of the October 18, 2004 Order, was not to give the Plaintiffs, or any other party, time to go out and find more witnesses than the ones they had named on the deadline set for all parties to name their witnesses. The purpose was to give the Plaintiffs time to come to the Court with a "workable solution" to their non-compliance. These witnesses are:
Ann Maje-Raider
Chris Shade
Joe Bellerose
Jacob Bell
Oliver Columb
Ellerlie Starlight
Joe Whitehead
Clifford Cardinal
David Midbo
Robert Horseman
In view of what the Court has now said about the scope of the pleadings, if the Plaintiffs still wish to call any of these witnesses, they should come to the Court by way of formal motion so that the Court can assess the situation and make whatever further adjustments to Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004, are deemed advisable and acceptable;
(h) Those seven (7) or eight (8) witnesses identified by the Plaintiffs after the December 14, 2004 deadline should not be called without further order of the Court sought by way of formal motion;
(i) As regards those witnesses who appeared on the witness list provided by December 14/15, 2004, and for whom will-says and explanations were provided, the Court does not, generally speaking believe they should be excluded at this stage of the proceedings for reasons other than non-compliance with the pre-trial disclosure requirements set by the Court, or because they are irrelevant and/or unnecessary for the issues raised in the pleadings. This means that many of the objections raised by the Crown to the evidence given, or to be given, by such witnesses should be raised and dealt with in the usual way at trial. The reason for this is that the Court does not know at this stage what adjustments to traditional rules of evidence may be necessary, or how it should comply in this regard with directions given by the Supreme Court of Canada;
(j) The purpose of any order made by the Court on this motion is solely to complete the process began on September 17, 2004, as more specifically defined in the Orders of October 18, 2004 and November 25, 2004. That process was intended to ensure compliance with Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004, to effect full pre-trial disclosure by ordering compliant will-says, to try and resolve the difficulties occasioned by the "philosophical difference" over the scope of the pleadings, and to indicate which witnesses and/or evidence the Plaintiffs should not call, either because of their continuing failure to make disclosure in accordance with the standards articulated by the Court, or because the proposed witnesses and/or evidence clearly went beyond the scope of the pleadings. Any decision made by the Court in this regard:
(i) is not to be taken as any kind of affirmation by the Court that any witnesses and/or evidence not excluded at this stage is admissible at the trial; and
(ii) is not to be taken as a restriction on the Crown or the Interveners to challenge any witness and/or evidence called by the Plaintiffs at the trial on any ground whatsoever, including failure to meet the standards of disclosure and/or relevance.
But the Plaintiffs must be given flexibility too. The dangers of excluding witnesses and evidence at this stage are obvious. As the trial evolves, it may become apparent that proposed evidence actually referred to and revealed in a will-say submitted by the deadline met the required standards of disclosure and is relevant and otherwise admissible. Hence, it is only fair that the Plaintiffs should be allowed to draw this to the attention of the Court and, after full argument, seek the consent of the Court to lead that evidence. This is not an invitation to the Plaintiffs to re-hash at trial the issues I have decided in this motion. The appropriate way to disagree with the Court's view of scope of pleadings and principle areas of exclusion is by way of appeal. But I do feel that some flexibility is required because of the difficulties of predicting the future at this stage, and I do not believe that the Plaintiffs should be put to the trouble of appealing this decision merely because, in reviewing extensive and complex will-says, I have overlooked something that is fully disclosed, relevant and necessary to the pleadings as I have defined them.
I rely entirely upon the good judgment of counsel not to abuse the purpose of the Order I will make in this motion and not to seek to introduce evidence that is obviously excluded by the spirit and intent of my Reasons for Order and Order, except, of course, if any appeal is taken and allowed.
On the other hand, where I indicate that the Plaintiffs should be given the benefit of the doubt and that a witness may be called, I also rely upon the good judgment of counsel not to try and lead evidence through that witness that does not accord with what I have said in the Reasons about the scope of the pleadings and general areas of exclusion;
(k) In accordance with Mr. Justice Hugessen's Order of December 2000, Mr. Wayne Roan should not be called as a witness at the second trial unless or until the Plaintiffs comply with that Order;
(l) In accordance with the Court's Orders of October 18, 2004 and November 25, 2004, those witnesses not already excluded for other reasons, and/or those portions of their proposed evidence that should not be called, are set out in Schedule "A" attached to these Reasons for Order and Order;
(m) The amount of preparation time required and trial date will be set by the Court after hearing from counsel for all parties at a duly convened conference meeting, where we will discuss the outstanding issues that need to be addressed and ways of dealing with them that will get us to trial as quickly as possible..
[325] In proceeding in accordance with these principles and objectives the Court is merely, albeit under somewhat extraordinary circumstances, exercising its general jurisdiction to control its own process so as to ensure the most just, expeditious and least expensive determination of the issues raised by this law suit on the merits. In my May 3, 2005 Reasons, at paragraph 613, I have already cited the Ontario Court of Appeal decision R. v. Felderhof 68 O.R. (3d) 481 (C.A.), at para. 40, as authority for what a trial judge may have to do if the circumstances require it, particularly in the context of a long trial. All in all, in the present case, I don't think the Plaintiffs have been consistent with what they have told the Court and the other parties this law suit is about and the consequences of that inconsistency need to be dealt with now. The selective amnesia ("Forget about them") they now recommend to the Court is not an option. I don't believe I have any real choice at this stage (given that both sides have indicated a need for the Court to address the scope of pleadings issue before the trial begins) but to exclude what the will-says reveal as obvious attempts to go beyond the pleadings. This is required to ensure that the trial is not unduly burdened, lengthened, and otherwise rendered unmanageable by extraneous concerns.
ORDER
FOR THE REASONS GIVEN:
1. Without further leave of the Court, Ann Maje-Raider, Chris Shade, Joe Bellerose, Jacob Bell, Oliver Columb, Ellerlie Starlight, Joe Whitehead, Clifford Cardinal, David Midbo and Robert Horseman shall not be called as witnesses at the second trial;
2. Without further leave of the Court, in accordance with Mr. Justice Hugessen's Order of December, 2000, Mr. Wayne Roan shall not be called as a witness at the second trial;
3. Without further leave of the Court, no witness for whom a will-say statement was not served and filed by December 14 and 15, 2004, (as such deadline has been extended by consent of the Crown to early on December 15, 2004) shall be called by the Plaintiffs at the second trial;
4. As regards witnesses for whom a will-say and explanation were served by the deadline imposed by the Court in its November 25, 2004 Order, those witnesses and/or proposed evidence shall not be called as indicated in Schedule "A" attached to this Order and Reasons for Order without further leave of the Court, such leave only to be sought in accordance with the Reasons ;
5. The date for the trial shall be established by the Court after hearing counsel for all parties at a duly convened conference to consider the trial date and any matter related to these proceedings.
6. The parties are at liberty to address the Court on the issue of costs.
"James Russell"
J.F.C.
SCHEDULE "A"
1. ALEX JANVIER
Mr. Janvier's will-say is extremely sparse. It says he will speak to the impact of Bill C-31 on his own community and explain the traditional belief systems related to the societal, governmental and spiritual structures of his own people. Mr. Janvier was raised traditionally and speaks the Dene language.
Quite apart from the fact that his will-say merely says he will address certain topics (e.g. the impact of Bill C-31) there is no attempt to summarize what he will say on these topics. Hence, his will-say does not comply with the standards set by the Court and should not be admitted on that ground alone.
But over and above this, there is nothing in the will-say or the explanations offered by the Plaintiffs that connects Mr. Janvier to the specifics of this claim. The intention appears to be that Mr. Janvier will give his views on Aboriginal government in general and will speak to impact in relation to his own community.
These matters are not relevant to the pleadings and would not assist the Court in deciding any of the issues raised by the pleadings.
The Court needs to hear impact evidence in relation to the Plaintiffs and evidence concerning the governmental practices internal to, and integral to the Plaintiffs in so far as those practices relate to the right of the Plaintiffs to decide their own membership.
Mr. Alex Janvier should not be called.
2. ALLEN WILLIER
Mr. Allen Willier's will-say and the explanation for his inclusion in the Plaintiffs' witness list make it clear that he is intended to give evidence concerning the efforts of the Cree of Lesser Slave Lake in dealing with the Government of Canada to achieve recognition for a general right to self-government.
His connection to the Plaintiffs is that he can "confirm the support of the [Lesser Slave Lake Indian Council] for the self-government initiative of Sawridge."
His will-say refers to self-government at large for the Cree of Lesser Slave Lake and the capacity of Sawridge to exercise a general right of self-government.
The pleadings do not refer to, and do not obliquely deal with, the self-government initiatives of either of the Plaintiffs; and no explanation is offered as to how those initiatives are relevant to the issues actually raised in the pleadings.
It is clear that the reason for calling this witness is to address self-government initiatives in general.
The one area where he might have something to say that is relevant is in relation to the impact of Bill C-31 upon the Plaintiffs. But his will-say does not say that he can address this issue, and it certainly does not reveal what he would say about impact upon the Plaintiffs.
For reasons of irrelevance and failure to disclose in accordance with the established standards, this witness should not be called.
3. ALEC CROWCHILD
Elder Crowchild's will-say, along with many others, shows us that the Plaintiffs can provide sufficient detail when they want to.
It is clear to the Court why Elder Crowchild can speak for Tsuu T'ina Nation and that he intends to say specific things about Treaty 7 and how Tsuu T'ina exercised their right to determine membership.
I can see, of course, that the Plaintiffs also want Elder Crowchild to speak to matters that are not relevant to the pleadings and that there may be objections to his evidence on various grounds.
But those issues can be left to the trial. Elder Alec Crowchild should be called.
However, the proposed evidence of Elder Crowchild brings up the difficult relationship between the will-say statements and the detailed oral histories required in Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004.
Paragraph 8 of that Order says that "Any person desiring to lead oral history evidence shall serve a detailed summary thereof no later than June 30, 2004." Paragraph 9 then goes on to mandate the will-say statement requirement, which includes witnesses who will be providing oral history evidence.
Both of these paragraphs are crucial to the scheme of pre-trial disclosure that Mr. Justice Hugessen devised to deal with the particular problems thrown up by the proceedings in this case. Both deadlines are mandatory.
As the Crown points out, it would make no sense for the Court to require detailed oral history summaries by June 30, 2004, if the Plaintiffs could then go on to use the will-says to identify oral history evidence that is not referred to in the summaries. The summaries are supposed to be "detailed" for a reason, and there has been no suggestion that they could be supplemented at a later date by further oral history that does not appear in the summary.
However, comprehensive oral history on relevant issues is required for the Court to understand and decide the matters in dispute in this case. For this reason, this matter will be dealt with as indicated in the body of the Reasons.
4. ANN MAJE-RAIDER
The will-say of Ms. Maje-Raider makes it clear that her evidence would be directed at general self-government initiatives, this time from the perspective of the Kaska Nation in the Yukon, which provided political support for the Sawridge self-government efforts.
The explanation also tells us that she will give evidence about the role of women in self-government which will show that self-government is not inconsistent with recognizing the role of women. But her will-say makes it clear that she can only speak to her experiences with the Kaska Nation.
It is clear that this evidence is aimed at general self-government initiatives and concerns and we are not told anything specific about the Plaintiffs or why there is any relevance to an issue raised in the pleadings.
Also, she was not a witness identified on the September 15, 2004 list.
This witness should not be called.
5. ARLENE TWINN
Once again, in the case of this witness, the Plaintiffs show they can clearly state her connection to Sawridge and convey the gist of what she will actually say.
I can see that some of the issues (i.e. those to do with defending her family's reputation) have a questionable relevance to the issues in the pleadings. But the main thrust of her proposed evidence has to do with the impact of Bill-C31 on Sawridge. In this regard, she may well have something to say that will assist the Court on an issue raised in the pleadings.
This is not to suggest, however, that relevance and/or other objections cannot be raised if she appears at the trial. But those matters can be dealt with at trial.
This witness may be called.
6. BRUCE STARLIGHT
Elder Bruce Starlight is a member of the T'suu T'ina Nation and is a significant witness for that Plaintiff. His will-say covers a lot of ground.
Generally speaking, his will-say appears to meet the disclosure requirements set by the Court. In addition, much of what he intends to say appears to be relevant to issues raised in the pleadings.
There will be arguments, no doubt, concerning relevance and admissibility on some issues, but I am inclined to leave those to be raised at the trial.
However, as was the case with Elder Alec Crowchild, Elder Starlight indicates in his supplementary will-say that he intends to give oral history evidence (specifically paragraphs 2 and 4) that cannot be related to the relevant oral history summary. As with Elder Crowchild, this issue should be dealt with in accordance with the Reasons.
7. BERTHA L'HIRONDELLE
Ms. L'Hirondelle's will-say is compliant as regards detail. I can see that there will be numerous challenges to her evidence on the basis of relevance, hearsay and otherwise. But I am satisfied that she is focussed upon membership in the Sawridge Band and the impact of Bill C-31 upon Sawridge.
Any objections to her evidence should be left until the trial. Ms. L'Hirondelle may be called.
8 CHRIS SHADE
Mr. Shade is a past Chief of the Blood First Nation who says he can provide oral history evidence about Treaty 7 and the pre-contact ways of life of the First Nations of the Blackfoot Confederacy, including the Tsuu T'ina Nation.
It is apparent from his will-say, and the accompanying explanation, that there will be significant problems at trial concerning the relevance of much of what he has to say for the pleadings. Much of his focus appears to be general self-government and it is unclear as to how much of his evidence will be connected to the Plaintiffs in this case.
There is also a lack of sufficient detail on some topics.
However, it appears to the Court that Mr. Shade's evidence could have some possible relevance for the issues in this law suit, and any objections could be dealt with at trial.
He is another witness whose evidence raises oral history problems that should be dealt with in accordance with the Reasons.
Mr. Shade, also, is another witness who did not appear on the September 15, 2004 list. Hence, he should not be called without further leave of the Court. If leave is sought, the Plaintiffs should indicate which portions of his will-say they still regard as relevant, given the Reasons on this motion.
9. CHESTER BRUISED HEAD
I see no need to exclude Mr. Bruised Head at this stage. Any problems with his evidence can be dealt with at trial.
Mr. Bruised Head may be called.
10. CLARA MIDBO
I see no need to exclude Mms. Midbo as a witness at this time. Any problems with her evidence can be dealt with at trial.
Ms. Midbo may be called.
11. CLIFFORD CARDINAL
This witness has already been excluded because he was added to the list after September 15, 2004. He should not be called without further leave of the Court.
It is difficult to see from the will-say how Mr. Cardinal could help the Court in relation to the particular Plaintiffs in this case or the issues raised in the pleadings.
12. DEANNA STARLIGHT
I see no reason to exclude Mrs. Starlight as a witness at this time. Any problems with her evidence can be dealt with at trial.
Deanna Starlight may be called.
13. CHIEF EARL OLD PERSON
Chief Old Person is a distinguished member of the Blackfoot Indian Tribe in Montana and his will-say suggests that he wishes to give evidence about his own people and the Blackfoot Confederacy generally, including evidence about general self-government issues and the general impact of Bill C-31.
We are told that he will provide "knowledge of the Tsuu T'ina," but we are told nothing about what that knowledge might be or why he is in any position to speak to matters raised in the pleadings.
Chief Old Person should not be called as a witness.
14. ELLERY/ELLERLIE STARLIGHT
I cannot relate the will-say to the pleadings in any way and this witness did not appear on the September 15, 2004 list. He should not be called.
15. FRANCIS WILLIER
I see the Crown's significant objections to this proposed evidence in terms of relevance and hearsay.
The explanation provided by the Plaintiffs is that Elder Willier's evidence is relevant to proving the Aboriginal right of membership determination and the Treaty right of membership determination.
From what is disclosed in the will-say it is difficult for the Court to see how those issues are addressed.
Nevertheless, this is an instance where the Court feels the Plaintiffs should be given the benefit of the doubt.
Elder Willier may be called as a witness and any objections dealt with at trial.
The difficulties concerning oral history should be dealt with as already indicated.
16. FRED CAMPIOU
I can see that objection might be taken to the proposed evidence of this witness on several grounds, as the Crown does. But, once again, I think the Plaintiffs should be given the benefit of the doubt and any objections should be dealt with at trial.
This witness may be called.
17. FRIEDA DRANEY
I see no reason to exclude this witness at this time and any objections to her evidence can be left until trial.
Ms. Draney may be called.
18. GREGG SMITH
Mr. Smith's will-way clearly shows that his proposed evidence goes to the general political struggle for self-government.
I cannot relate the proposed evidence to any issue in the pleadings.
This witness should not be called.
19. HELEN MEGUINIS
Any connection between the evidence proposed in the will-say of this witness and issues raised in the pleadings appears to me to be highly tenuous and contentious.
Nevertheless, this is another witness where the Plaintiffs should have the benefit of the doubt and any challenges should be left until trial.
Ms. Meguinis may be called.
20. HENRY BROWN
The will-say of Mr. Henry Brown, who was one of the legal counsel for the Treaty 8 Group (including Sawridge) from 1984 to 1986, and who assisted the Group in relation to Bill C-31, is an affidavit sworn in another action (A-578-93 T-3038-90).
The stated purpose of the affidavit was to demonstrate that the Treaty 8 Group "have long-standing and substantial interest in the definition of section 77(1) of the Indian Act, and, in particular the requirement that those who vote in the band elections be "ordinarily resident on the reserve."
In his capacity as legal representative of the Treaty 8 Group (including Sawridge) Mr. Brown "attended virtually all meetings of the House of Commons, the Standing Committee, the Senate, and the Senate Standing Committee on Legal and Constitutional Affairs ..."
Quite apart from the fact that Mr. Brown's will-say does not really tell us what his evidence will address in the present action (presumably it will be the efforts of Sawridge to persuade the Government of Canada that Bill C-31 will upset the voting balance at Sawridge), there is no explanation as to why the information it contains is not available to the Court by the conventional means.
Mr. Brown should not be called.
21. HENRY LABOUCAN
I see no reason to exclude Elder Laboucan at this stage and any objection to his evidence can be made at trial.
This witness may be called.
22. JIM BADGER
I can see that the Crown takes significant objection to the evidence that Mr. Badger proposes to give, but he should not be excluded at this time and objections can be dealt with at trial.
This witness may be called.
23. DARRELL CROWCHILD
Mr. Crowchild need not be excluded at this time and any objections to his evidence can be dealt with at trial.
This witness may be called.
24. DAVID CROMBIE
Mr. Crombie is one of a group of witnesses that includes former politicians, public servants and political advisers who are being called to provide their views about government policy, the motivations and politics behind Bill C-31 and its general impact, and approaches of the federal government to Aboriginal self-government. In so far as such persons are expected to speak to their own views and motivations, I believe the words of Blair J. in Ontario Teachers' Federation v. Ontario (A.G.) (1988) 39. O.R. (3d) 140; [1998] O.J. No. 545 (Ont. Gen. Div), at pp. 5 and 6 provide guidance on this issue:
While a Court may consider admissible extrinsic evidence of legislative purpose, this does not extend to motivations of individual members of a legislative body or their advisors. It is the purpose of Parliament as an institutional body in enacting legislation that is to be considered in a case such as this, and the primary evidence of such purpose is to be found in the legislation under review and its statutory context. In Ontario Teachers' Federation v Ontario, Blair J. Summarized the law with respect to evidence of individual actors in the creation and enactment of legislation:
While the authorities have developed to the point where it is permissible for courts to examine extrinsic evidence in the context of Charter and other challenges to the constitutional validity of legislation, they do not support the extension of that exercise to the consideration of the testimony of individual members of the legislature - including Ministers in charge of introducing legislation - or of civil servants or political advisors.
...
In my opinion, it would be unwarranted extension of the concepts underlying the court's resort to aids such as Hansard, royal commission reports, government policy papers and other such sources bearing upon the history and background of the legislation, to broaden those concepts to apply to the sworn testimony and out-of-legislature. It would be also inconsistent with the weight of existing authority on the subject.
...
I also believe that the words of Abella J. A. (as she then was) in Ontario Federation of Anglers & Hunters v. Ontario [2002] O. J. No. 1445 (Ont. C. A.), at pp. 50-54, speak clearly to the irrelevance of matters of political expediency and public concerns when considering the validity of legislation:
It would seen that the Plaintiffs wish to bring forward evidence from individual former ministers, members of Parliament, and their advisors partly in order to show that they were motivated by political expedience, public concerns over sexual discrimination and the influence of the "women's lobby.":
[I]t is irrelevant whether the Premier and/or the Minister were influenced by political expediency, this being a consideration which is an accepted, expected, and legitimate aspect of the political process. Whether one characterizes taking public opinion into account as political expediency or political reality, taking it into account is a valid function of political decision making.
Similarly, attempting to influence the government to change a practice ... is an accepted feature of our system of government . ...
Governments are motivated to make regulations by political, economic, social or partisan considerations. These motives, even when known, are irrelevant to whether the regulation is valid.
When the government takes political or partisan considerations into account, therefore, this does not, by itself, give rise to an inference of impropriety. Such an inference is, in any event, an ironic allegation from OFAH, since what it is seeking is the government's compliance with its opinion....
I do not believe that the kind of evidence that Mr. Crombie, and other former politicians and advisers, propose to give is necessary in a situation such as the present where the Court will have readily available to it the usual evidence from Hansard and relevant reports and studies, and deliberations of those legislative committees that addressed revisions to the Statutes.
This witness should not be called.
25. DAVID JANVIER
The evidence that Elder Janvier propose to give deals with matters of great importance to all Canadians because it is about the traditional way of life of Aboriginal peoples and the difficulties that white people have in appreciating the Aboriginal perspective and the many injustices and hardships that Aboriginal peoples have suffered since the arrival of white people in Canada and North America.
As important as these matters are, it appears to me that Elder Janvier's disclosure is much too general to be of use to the Court in dealing with the specific issues raised in this law suit and the membership practices of these particular Plaintiffs.
This witness should not be called.
26. DAVID MIDBO
In the explanations provided by the Plaintiffs we are told that Mr. Midbo, who is a member of the Sawridge Band, will give evidence about the impact of Bill C-31 and how the Chief and Council of Sawridge have been dealing with the new members who were granted membership rights through Bill C-31.
If this is the case, then the evidence that Mr. Midbo proposes to give is not disclosed in his will-say. All he refers to there is a meeting when the eleven (11) new members were present and tried to present a letter which was obviously critical of Chief Twinn, and an exchange that Mr. Midbo had with Fleury De Jong - one of the eleven (11) new members - outside the meeting. The gist of that exchange given in the will-say does not help the Court in considering impact.
This witness should not be called.
27. DEANA MORTON
Ms. Morton's will-say deals with her role before a Senate Standing Committee on Aboriginal Peoples in the matter of Bill S-10 and contact she had had with Fleury De Jong and Elizabeth Poitras regarding her work on the Sawridge Financial Accountability Committee.
Even on the topic of impact, I cannot relate the proposed evidence to the issues in the pleadings. There just is not sufficient disclosure to ascertain whether there is anything here that could be of assistance to the Court.
This witness should not be called.
28. THERESA BIG PLUME
I see no reason to exclude this witness at this time and any objections to her evidence can be dealt with at trial.
The witness may be called.
29. WALTER RUDNICKI
Mr. Rudnicki has held senior positions in several federal departments and agencies for 21 years, and the evidence proposed in the will-say addresses federal policy towards Aboriginal peoples at a very general level.
The Plaintiffs say in their explanation that he will provide "specifics concerning the said federal policy, how it is implemented, and why it is implemented."
The Plaintiffs also say that his evidence "will go to the test of justification (i.e. the valid legislative objective and the honour of the Crown components of that test)."
The Crown objects to this entire will-say on the grounds that it is irrelevant, hearsay ridden, opinion evidence and unnecessary political evidence.
The Plaintiffs say that Mr. Rudnicki can speak to the issues raised in paragraphs 24, 25 and 26 of the pleadings, but my reading of those paragraphs is that they are very specific to the Plaintiffs. Mr. Rudnicki's will-say does not address those specifics. He is being called to talk generally about government strategy and the general perception of Bill C-31 as a denial of Aboriginal and treaty rights and essentially assimilative. " Its potential effects are to erode the nature and composition of a collectivity and undermine their duty to preserve and protect their community as Nations or Clans."
Rather than being focussed upon the specifics of paragraphs 24, 25 and 26, Mr. Rudnicki's will-say is directed at the general motivations of government and government officials. It has to be remembered that Mr. Rudnicki is a lay witness and that the kinds of opinions he intends to lay before the Court are not directed at the specifics of the pleadings and are not the kind of evidence that a lay witness should be providing.
In other words, it is clear from Mr. Rudnicki's will-say that the Plaintiffs are, in effect, attempting to lead expert evidence after the deadline for qualifying experts has long passed.
This witness should not be called.
30. WARREN ALLMOND
Mr. Allmond is another former politician whose proposed evidence, entirely opinion, is not relevant to the issues in the pleadings and does not assist the Court.
This witness should not be called.
31. WAYNE ROAN
Mr. Roan was a witness at the first trial. He cannot be called without leave of the Court and some indication of how his evidence will differ from the first trial. Such leave has not been sought.
His will-say refers to matters that are not focussed on the issues in the pleadings and/or do not provide the required detail.
This witness should not be called.
32. WILLIAM DREAVER
Elder Dreaver's will-say refers to matters that are so wide-ranging and so general that it is difficult to see what he has to say concerning the specific issues raised in the pleadings.
For example, he refers to the residential schools and the great suffering that this system brought to the Nehijaw/Cree.
The Court has already said in its order dealing with the 2004 suggested amendments that the purpose of these proceedings is not to put the Crown on trial generally for its treatment of Aboriginal peoples.
In addition, there appears to be a great deal of oral history that does not appear in the oral history summary.
The explanation provided for Elder Dreaver says that "he will speak about his involvement in the Canadian justice system to help people, almost all of whom are native, and who are in pain and loss under the present system and why he believes the recognition of self-government and Cree justice for Cree people would benefit both the Cree and Canadians."
As I read his will-say, and the explanation offered, Elder Dreaver is being called to help the Court understand that self-government generally would be a good thing for Aboriginal peoples and would alleviate many problems. As important and compelling as these matters are, I do not believe they are encompassed by the pleadings in this law suit.
Elder Dreaver should not be called.
33. WILLIAM MC KNIGHT
Mr. McKnight is a former Minister of Indian Affairs who is being called to give evidence concerning his view of the political debate surrounding Bill C-31 and his dealings with former Chief Walter Twinn and Sawridge's general self-government initiatives.
The explanation offered by the Plaintiffs is that Mr. McKnight's evidence will be relevant, to the test of justification in the period following the enactment of Bill C-31, the specific impact of Bill C-31 on Sawridge "and the problems resulting from Bill C-31 for First Nations communities including the Plaintiffs."
However, the will-say itself does not refer to specific impact issues and clearly states that he will give evidence concerning "Sawridge's self-government initiatives and how government responded to those initiatives."
Sawridge's general self-government initiatives are not the subject of these proceedings and, like Mr. Crombie, it is difficult to see how Mr. McKnight could assist the Court with his own personal views on the legislation in question and the government's motives when traditional aids such as Hansard, commission reports, policy papers and so forth are readily available.
Mr. McKnight should not be called.
34. WILTON LITTLECHILD
Mr. Littlechild's will-say either lacks any meaningful detail or is clearly aimed at general self-government and his own experience of self-government initiatives and debates at both a national and international level.
This goes well beyond the pleadings.
This witness should not be called.
35. RODNEY BIG CROW
I see no reason to exclude this witness at this stage. Any problems with his evidence can be dealt with at trial.
This witness may be called.
36. RICHARD DAVIS
Mr. Davis is another witness who wishes to voice his support for general recognition legislation "that acknowledges and recognizes First Nations' jurisdiction" and speak to general issues that are not in the pleadings. On the other hand he also has something to say about the pre-contact life of the Cree of Lesser Slave Lake, although there is little that could be called detail.
His evidence may be objectionable for a variety of reasons which the Crown raises, but this is one of those witnesses where the Plaintiffs should be given the benefit of the doubt and objections dealt with at trial.
Any prejudice to the Crown as a result of discrepancies between Mr. Davis' proposed evidence and the oral history summary should be dealt with as already indicated.
This witness may be called.
37. REGINALD BLACK PLUME
Elder Black Plume is an elder of the Blood First Nation and he wishes to give evidence concerning "the Indian understanding of Treaty 7" and the life of the First Nations of the Blackfoot Confederacy.
It is unclear from the will-say how much, if anything, that he has to say is relevant to the Plaintiffs in these proceedings. Nevertheless, he does refer to the Tsuu T'ina people and he appears to have something to say about how they managed their own internal affairs, although the details are missing.
Once again, the Crown makes significant objections to this witness on a variety of grounds but I think the Plaintiffs should have the benefit of the doubt and any objections should be dealt with at trial.
This witness may be called.
38. ROLAND TWINN
Chief Twinn is an important witness for the Sawridge. His will-say has a lot in it about self-government generally and other matters not relevant to the pleadings, but he can give direct evidence about the Sawridge community and the impact of Bill C-31 on that community.
The Crown raises a variety of objections to his evidence, but they can be dealt with at trial.
The witness may be called.
39. ROSE LABOUCAN
Chief Laboucan's will-say is entirely concerned with the Aboriginal self-government issue in general. I cannot relate anything she raises with the specifics of this law suit.
This witness should not be called.
40. SAMMY SIMONS
I see no reason to exclude this witness at this stage. Any objections can be dealt with at trial.
This witness may be called.
41. REGENA CROWCHILD
I see that the Crown raises many objections to the proposed evidence of this witness, but this is abother case where the Plaintiffs should have the benefit of the doubt and objections dealt with at trial.
This witness may be called.
42. JOSEPH WILLIER
Once again, with Elder Willier I can see that the Crown makes many objections and it is not immediately apparent from his will-say how some of the topics he raises can be related to the pleadings. However, I think that the Plaintiffs require the benefit of the doubt with this witness and any objections can be handled in ways I have indicated with other witnesses.
Elder Willier may be called.
43. JOE MCKAY
Mr. McKay's proposed evidence is of a general nature and goes well beyond what the pleadings contemplate and the issues raised in this law suit require.
This witness should not be called.
44. JOE WHITEHEAD
Elder Whitehead is one of those persons who did not appear on the Plaintiffs' September 15, 2004 witness list.
This witness should not be called.
45. JOE BELLEROSE
Mr. Bellerose is another witness whose name did not appear on the Plaintiffs' September 15, 2004 witness list.
He should not be called.
46. MOE LITMAN
Much of what Professor Litman proposes to say deals with Sawridge's general self-government initiatives and dealings with the federal Crown during the 1980s and early 1990s on this issue.
It is not clear whether what Professor Litman has to say about the Treaty 8 report and the impact of Bill C-31 upon Sawridge will be admissible and/or whether it is necessary to call him to place the relevant information concerning impact before the Court.
At this stage, all the Court can say is that the self-government negotiations appear to be outside of the scope of the pleadings. I leave it to the good sense of Plaintiffs' counsel to decide whether Professor Litman can really assist the impact evidence by his presence.
The Crown may, of course, raise any objection to Professor Litman's evidence at trial.
Professor Litman may be called to give evidence proposed and disclosed in his will-say on impact if counsel feels the information cannot be brought before the Court without his presence and he can address the impact upon the Plaintiffs specifically.
47. KIETH PENNER
Mr. Penner is a former Member of Parliament and Chair of the Parliamentary Task Force on Indian Self-Government. His will-say says that he wants to give the Court his opinion on what he thought would happen to Bill C-31 with regard to membership in light of section 35(1), and what he considers to be axiomatic in the context of Aboriginal rights and self-government. He says that "he had hoped that within his lifetime self-government for First Nations would become a 'significant reality' in Canada."
I do not believe that Mr. Penner's opinions and hopes, however sincerely held and no doubt based upon his considerable experience, can assist the Court in deciding the specific issues before it in this law suit.
This witness should not be called.
48. LEROY LITTLEBEAR
Professor Littlebear is a distinguished academic and consultant. His will-say suggests that he wants to give the Court his opinion on general issues and what he believes Canada needs to do to reconcile itself to Aboriginal and treaty rights.
Once again, I am sure that Professor Littlebear's opinions are well-earned and well-considered, but I do not believe they can assist the Court to determine the spefific issues before it in this case.
This witness should not be called.
49. LES HEALY
Mr. Healey's will-say itself suggests that his evidence will not be relevant to the principal issues before the Court.
His is a member of the Blood First Nation and he wants to tell the Court about the Blackfoot Confederacy which also included Tsuu T'ina.
That we cannot assume that other First Nations in the Blackfoot Confederacy had customs and practices similar to the Tsuu T'ina is emphasized by Mr. Healy:
the Tsuu T'ina were one of the last Nations to join the Blackfoot Confederacy. They were known as Bold people. They had their own languages, own leaders and their own customs. They managed their own internal affairs.
Also, he tells us clearly that "different members of the Blackfoot Confederacy occupied well-defined territories. They were self-sufficient, both economically and politically" and "Their laws and protocols did not allow interference in each others internal affairs accept (sic) by invitation."
So it is difficult to see what Mr. Healy could say concerning the internal customs and practices of Tsuu T'ina on the matters specific to this law suit.
He wants to say how the First Nations who were members of the Blackfoot Confederacy understood Treaty 7, but he can only speak as a member of the Blood First Nation and it is never explained how he can speak for Tsuu T'ina on matters specific to this law suit when he tells us that Tsuu T'ina had their own customs and managed their own internal affairs.
As regards Treaty 7, his main point appears to be that all First Nations of the Blackfoot Confederacy understood it in the same way, but he gives no specifics and no basis for such a general opinion.
It is difficult to see that he can really assist the Court.
This witness should not be called.
50. MARIE SMALLFACE MARULE
Ms. Marule's will-say suggests that anything she has to say can only relate to the "Blood Tribe", and I can find no connection between her proposed evidence and the issues raised in the pleadings.
This witness should not be called.
51. MICHAEL POSLUNS
Mr. Posluns is an associate professor in the Native Studies Program at St. Thomas University in Fredericton.
He wants to give evidence about self-government matters in general and, in partricular, on how Indian Affairs officials have sought to influence and control the parliamentary process to suit their own agenda.
I cannot relate what he raises in his will-say, much of it opinion, to any issue of relevance in the spleadings.
This witness should not be called.
52. JOHN AUGER
I can see that the Crown raises serious objections to the evidence of this witness and that there is a significnt discrepancy as regards the oral history summary.
However, this is one of those witnesses where the Plaintiffs should be given the benefit of the doubt and any objection and prejudice to the Crown handled in ways I have previously indicated.
This witness may be called.
53. SHARON VENNE
Ms. Venne is a member of the Blood Tribe who has extensive knowledge of the Indian Act and broad experience in dealing with the federal government in relation to the matters of Aboriginal rights and Aboriginal self-government. She is presently the Chief Negotiator on behalf of the Akaitcho Dene of the Northwest Territories.
She wants to tell the Court how the Crown misleads the public and the Court and how Indian Affairs consistently tries to undermine the rights claimed by First Nations. She also wants to address empty promises made by Canada at various constitutional conferences.
The Plaintiffs say that her evidence goes to the valid legislative objective and honour of the Crown components of the justification test. However, her positions are so broad in their sweep that they, in effect, seek to put the Government of Canada on trial for various perceived injustices that I cannot relate directly to the specifics of this law suit. In effect, she wants to give the Court her opinion that the federal government cannot be trusted, breaks promises, and consistently leads the public and the Court astray on self-government issues. If there is something of relevance here, it requires a qualified expert to give the opinion.
She is an experienced and impassioned advocate for First Nations rights, but I believe her proposed evidence goes beyond the issues raised in the pleadings and that her opinions concerning the federal Crown are too broadly pitched to be of assistance to the Court, even if they were admissible.
This witness should not be called.
54. RARIHOKWATS
Rarihokwats is a citizen of the Mohawk Nation and has been an active participant and adviser in the legal and legislative history of changes to the Indian Act related to removal of discrimination and membership issues, and with Bill C-31. He has also been involved with the impact of Bill C-31 "on numerous Treaty First Nations as a senior official within the Assembly of First Nations, as the Minister's senior policy adviser during the time Bill C-31 was being developed, and subsequently as a consultant to First Nations impacted by the Bill."
His will-say tells us that he will testify about his experiences in this regard. But there is no real disclosure as to what he will say and how it relates to the Plaintiffs and the specific issues in these proceedings.
The following is typical:
That as a person who upholds traditional Mohawk values and spirituality, he has personally seen the negative impact of the Indian Act generally, and in particular, the imposition of racist, paternalistic, and colonial policies and regimes on First Nations communities. He will testify about that experience and process.
We are just not told what this witness will say, why he is needed to address the purpose of Bill C-31 when the conventional aids are available, why the Court needs to hear about numerous First Nations generally, what he can say about impact upon the Plaintiffs, and why the Court needs to hear his opinions about the racist, paternalistic and colonial policies that underlie the Indian Act generally.
This witness should not be called.
55. ROBERT HORSEMAN
Mr. Horseman is one of those witnesses who did not appear on the Plaintiffs' September 15, 2004 witness list, so that he should not be called without further leave of the Court.
His will-say says that he is a member of the Horse Lake First Nation and he wishes to give evidence from the perspective of his own community and/or general opinion evidence about the inadequacies and dishonesty of the federal government in its dealings with Aboriginal communities, and/or the Sawridge self-government initiative in general.
Once again, it is difficult to see how his proposed evidence could assist the Court with the specifics of this law suit.
This witness should not be called.
56. SYKES POWDERFACE
Mr. Powderface is a member of the "Stoney Tribe, Chiniki Group."
His will-say is, for the most, a list of topics that does not reveal what he will say and is inadequate from the point of view of disclosure.
It does reveal, however, that he will say some general things about "the First Nations of Treaty 7" including "the importance of the right of membership determination in its own right and as a right Incident (sic) to the right of self-government" and "why the right of self-government the (sic) right Of (sic) membership determination are part of the natural law of the First Nations of Treaty 7."
But the degree of disclosure is so minimal that it is difficult to ascertain what this witness intends to say that is of relevance to the issues in this law suit.
This witness should not be called.
57. SOL SANDERSON
Mr. Sanderson's will-say suggests that he wishes to give evidence that "Cree traditions, customs, practices, values and beliefs are all the same", but we are not told what they are or how they relate to the issues in the pleadings.
He also wishes to provide the Court with his opinion to the effect that Indian Nations "reserved inherent rights by entering into the numbered treaties" and that "the Royal Proclamation of 1763 recognized the sovereignty of Indian Nations, inherent rights and title of Indian Nations", and that "the federal government or provincial governments recognize the inherent rights of self government of Indian Nations".
All in all, it looks as though the purpose of Mr. Sanderson's evidence is to provide the Court with an opinion on the significance of Treaty, the Royal Proclamation of 1763, and the position of the federal and provincial governments as regards a general, inherent right to self-government at large.
I cannot relate the information provided in the will-say (particularly when provided as an opinion) to the specific issues that face the Court in this law suit.
This witness should not be called.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: T-66-86A and T-66-86B
STYLE OF CAUSE: SAWRIDGE BAND
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
and
TSUU T'INA FIRST NATION
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: SEPTEMBER 19 TO 22, 2005
REASONS FOR ORDERS
AND ORDERS BY: RUSSELL J.
DATED: NOVEMBER 7, 2005
APPEARANCES:
Edward H. Molstad, Q.C. FOR PLAINTIFFS
Marco S. Poretti
Nathan Whitling
Catherine Twinn
FOR PLAINTIFFS
Kevin Kimmis
Kathleen Kohlman
Dale Slafarek
Wayne M. Schafer
FOR DEFENDANTS
Mary Eberts
FOR INTERVENER,
NATIVE WOMEN'S ASSOCIATION OF CANADA
Jon Faulds, Q.C.
Derek A. Cranna
Karen E. Gawne
FOR INTERVENER,
NATIVE COUNCIL OF
CANADA (ALBERTA)
Paul Fitzgerald
FOR INTERVENER,
NATIVE COUNCIL OF CANADA
Michael Donaldson
Robert O. Millard
FOR INTERVENER,
NON-STATUS INDIAN ASSOCIATION OF CANADA
SOLICITORS OF RECORD:
Parlee McLaws LLP
Toronto, Ontario
FOR PLAINTIFFS
Parlee McLaws LLP
Toronto, Ontario
FOR PLAINTIFFS
Morris Rosenberg
Deputy Attorney General of Canada
FOR DEFENDANTS
Eberts Syms Street
& Corbett
Toronto, Ontario
FOR INTERVENER, NATIVE WOMEN'S ASSOCIATION OF CANADA
Field Atkinson
Perraton LLP
Edmonton, Alberta
FOR INTERVENER, NATIVE COUNCIL OF CANADA (ALBERTA)
Lang Michener LLP
Ottawa, Ontario
FOR INTERVENER, NATIVE
COUNCIL OF CANADA
Burnet Duckworth &
Palmer LLP
Calgary, Alberta
FOR INTERVENER, NON-STATUS INDIAN ASSOCIATION OF CANADA