IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Cowichan Tribes v. Canada (Attorney  
General),  
2022 BCSC 933  
Date: 20220603  
Docket: 14-1027  
Registry: Victoria  
Between:  
Cowichan Tribes,  
Squtxulenuhw, also known as William C. Seymour Sr.,  
Stz’uminus First Nation, Thỏlmen, also known as John Elliott,  
Penelakut Tribe, Kwaliimtunaat, also known as Joan Brown,  
Halalt First Nation, and Sulsimutstun, also known as James Thomas,  
on their own behalf, and on behalf of all other descendants  
of the Cowichan Nation  
Plaintiffs  
And:  
The Attorney General of Canada,  
Her Majesty the Queen in right of the Province of British Columbia,  
the City of Richmond, the Vancouver Fraser Port Authority,  
the Musqueam Indian Band and the Tsawwassen First Nation  
Defendants  
Corrected Judgment: The text of the judgment was corrected at  
paragraphs 113, 132, 147, 148, 156, 157, 158, 159, 161, 163, 164,  
178, 183, 189, 339, 347, 358, 384, 425 and 459 on June 24, 2022.  
Amended Ruling: Cover page amended on June 8, 2022. This ruling  
was originally sealed and was unsealed by order  
of the Court on June 6, 2022.  
Before: The Honourable Madam Justice Young  
Ruling on the Admissibility of Musqueam’s  
Oral History Evidence in Voir Dire #5  
Cowichan Tribes v. Canada (Attorney General)  
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Counsel for the Plaintiffs:  
D. M. Rosenberg, Q.C.,  
D. M. Robbins, J. T. Riddell,  
J. L. Karras and J. A. Proudfoot  
Counsel for the Defendant  
Attorney General of Canada:  
G. L. Angrove  
Counsel for the Defendant  
Her Majesty the Queen in right of the  
Province of British Columbia:  
K. J. Phillips and  
K. B. Bergner  
Counsel for the Defendant  
City of Richmond:  
N.P.R. Bond  
Counsel for the Defendant  
Vancouver Fraser Port Authority:  
R. W. Grant, Q.C.  
Counsel for the Defendant  
Musqueam Indian Band:  
M. L. Macaulay, C. Y. Sharvit,  
E.R.S. Sigurdson,  
A.M.J. Wilson, T. Razzaghi,  
K. Shupe, T. A. Arsenault,  
and C. M. Clemente  
Counsel for the Defendant  
Tsawwassen First Nation:  
S. Gyawali  
Place and Dates of Hearing:  
Place and Date of Judgment:  
Victoria, B.C.  
April 1, 2022  
April 4 - 8, 2022  
April 11 - 14, 2022  
April 25 - 29, 2022  
May 2 - 6, 2022  
May 9 - 13, 2022  
Victoria, B.C.  
June 3, 2022  
Cowichan Tribes v. Canada (Attorney General)  
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Table of Contents  
INTRODUCTION ..................................................................................................... 12  
LEGAL PRINCIPLES .............................................................................................. 13  
What is oral history?............................................................................................. 13  
Admissibility of oral history................................................................................ 15  
Framework for transmission of oral history ....................................................... 18  
Expert testimony ........................................................................................... 18  
Plaintiffs’ submissions................................................................................ 18  
Musqueam’s submissions.......................................................................... 19  
Ruling ........................................................................................................ 20  
Transmission of Musqueam oral history ........................................................... 21  
Assessing threshold reliability........................................................................... 23  
Sources......................................................................................................... 23  
Ruling ........................................................................................................ 25  
The inclusion of inference and opinion evidence........................................... 26  
Plaintiffs’ submissions................................................................................ 26  
Musqueam’s submissions.......................................................................... 27  
Ruling ........................................................................................................ 28  
Relevance ............................................................................................................ 31  
Temporal Relevance Objections....................................................................... 31  
Pre-contact Relevance Objections................................................................ 31  
Ruling ........................................................................................................ 32  
Evidentiary Cut-off Relevance Objections..................................................... 33  
Ruling ........................................................................................................ 34  
Geographic Relevance Objections ................................................................... 34  
Ruling ........................................................................................................ 38  
Relevance of Fisheries Commission Evidence..................................................... 41  
Ruling ........................................................................................................ 42  
Objections to the Form of Questions.................................................................... 44  
OBJECTIONS TO LARRY GRANT’S EVIDENCE.................................................. 45  
Timing (Objections 5, 13) ..................................................................................... 45  
Objection 5 Day 358 Time 10:20:42 10:22:15 threshold reliability; opinion;  
relevance; lack of disclosure (trial fairness); improper form of question ........... 47  
Cowichan Tribes v. Canada (Attorney General)  
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Objection 13 Day 359 Time 11:24:25 11:25:50 threshold reliability; relevance  
.......................................................................................................................... 49  
Opinion (Objections 11, 21, 23)............................................................................ 49  
Objection 11 Day 358 Time 10:47:04 10:47:22 opinion................................. 51  
Objection 21 Day 360 Time 10:55:23 10:56:50 opinion................................. 51  
Objection 23 Day 361 Time 10:46:45 10:46:52 opinion................................. 51  
Musqueam Declaration (Objection 2 Day 357 Time 12:15:15 12:16:31)........... 52  
Canoe Journey (Objection 20 Day 360 Time 10:43:09 10:43:16).................. 53  
No known source (Objections, 3, 7 and 17).......................................................... 53  
Objection 3 Day 357 Times 2:48:21 2:48:35 and 2:49:0821 2:51:28  
threshold reliability; relevance; lack of disclosure (trial fairness)....................... 54  
(a)  
(b)  
2:48:21 2:48:35................................................................................ 54  
2:49:08 2: 51:28............................................................................... 54  
Objection 7 Day 358 Time 10:22:36 10:24:37 threshold reliability; relevance;  
lack of disclosure (trial fairness)........................................................................ 55  
Objection 17 Day 360 Time 10:14:40 10:15:45 hearsay................................ 56  
Relevance (Objections 2, 3, 5, 9 and 13) ............................................................. 56  
Objection 9 Day 358 p. 8 Time 10:30:30 10:33:01 opinion; threshold reliability;  
relevance .......................................................................................................... 56  
OBJECTIONS TO MORGAN GUERIN’S EVIDENCE............................................. 57  
Threshold Reliability............................................................................................. 57  
Timing: relates to Objections 38, 41 and 69...................................................... 58  
Objection 38 Day 365 p. 44 line 1 p. 45 line 28 relevance; threshold reliability  
.......................................................................................................................... 58  
Objection 41 Day 365 p. 57 line 7 p. 58 line 40 relevance; threshold reliability  
.......................................................................................................................... 59  
Objection 69 Day 368 p. 9 lines 36 37 and p. 10 lines 1 3 threshold reliability  
.......................................................................................................................... 59  
Mathias Decision (Objections 25, 53, 60, 62, 63, 64, 65,66, 67) .......................... 59  
Objection 25 Day 363 p. 13 lines 9 36 lack of disclosure (trial fairness);  
relevance; threshold reliability; opinion ............................................................. 62  
Objection 53 Day 366 p. 56 lines 27 47 opinion; threshold reliability............. 63  
Objection 60 Day 366 p. 69 line 1 p. 70 line 47 relevance; lack of disclosure  
(trial fairness); opinion; threshold reliability....................................................... 63  
Objection 62 Day 367 p. 5 line 2 p. 6 line 31; p. 9 line 5 p. 10 line 11  
threshold reliability; opinion; relevance ............................................................. 64  
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Objection 63 Day 367 p. 10 lines 12 45; p. 11 line 13 p. 13 line 13 threshold  
reliability; opinion; relevance; lack of disclosure (trial fairness)......................... 65  
Objection 64 Day 367 p. 13 line 14 p. 14 line 31; also see Day 370 p. 44 line  
20 p. 45 line 43 threshold reliability; opinion; relevance; lack of disclosure (trial  
fairness)............................................................................................................ 65  
Objection 65 Day 367 p. 15 line 9 p. 17 line 34 threshold reliability; opinion;  
relevance; lack of disclosure (trial fairness) ...................................................... 66  
Objection 56 Day 366 p. 59 line 45 p. 61 line 4 relevance; lack of disclosure  
(trial fairness).................................................................................................... 66  
Objection 66 Day 367 p. 17 line 35 p. 23 line 13 threshold reliability; opinion;  
relevance; lack of disclosure (trial fairness) ...................................................... 67  
Objection 67 Day 367 p. 23 line 14 p. 25 line 15; p. 25 line 42 p. 29 line 4  
threshold reliability; opinion; relevance; lack of disclosure (trial fairness) ......... 67  
Opinion (found in Objections 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 39, 40, 46,  
48, 49, 55, 57, 58, 59, 70) .................................................................................... 68  
Objection 27 Day 365 p. 12 line 44 p.15 line 15 improper form of questions;  
lack of disclosure (trial fairness); relevance; opinion......................................... 69  
Objection 28 Day 365 p. 15 line 15 p. 17 line 29 improper form of questions;  
lack of disclosure (trial fairness); relevance; opinion; threshold reliability ......... 69  
Objection 29 Day 365 p. 21 line 43 p. 26 line 15 improper form of questions;  
lack of disclosure (trial fairness); relevance; opinion; threshold reliability ......... 69  
Objection 30 Day 365 p. 26 line 16 p.27 line 12 opinion................................ 70  
Objection 39 Day 365 p. 48 line 15 p. 52 line 19 relevance; threshold  
reliability; opinion p. 50 lines 2 12.................................................................. 70  
Objection 31 Day 365 p. 30 line 26 p. 31 line 33 lack of disclosure (trial  
fairness); relevance; opinion............................................................................. 71  
Objection 32 Day 365 p. 31 line 34 p. 33 line 16 improper form of question;  
opinion; lack of disclosure (trial fairness); relevance......................................... 71  
Objection 33 Day 365 p. 33 line 17 p. 34 line 6 improper form of question;  
opinion.............................................................................................................. 71  
Objection 34 Day 365 p. 38 lines 12 37 improper form of question; lack of  
disclosure; relevance; opinion........................................................................... 72  
Objection 35 Day 365 p. 38 line 38 p. 39 line12 improper form of question;  
lack of disclosure; relevance; opinion; threshold reliability................................ 72  
Objection 36 Day 365 p. 40 line 41 p. 42 line11; p. 46 line 45 p. 47 line 40  
threshold reliability; opinion............................................................................... 73  
Objection 37 Day 365 p. 42 line 15 p. 43 line 47 improper form of question;  
opinion.............................................................................................................. 73  
Objection 40 Day 365 p. 56 line 32 p. 57 line 2 improper form of question;  
opinion; relevance; threshold reliability ............................................................. 73  
Cowichan Tribes v. Canada (Attorney General)  
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Objection 46 Day 366 p. 3 line 47 p. 4 line 4 opinion..................................... 74  
Objection 48 Day 366 p. 26 lines 13 39;........................................................ 74  
Objection 49 Day 366 p. 32 lines 25 26 and p. 38 lines 19 24 opinion;  
threshold reliability............................................................................................ 75  
Objection 51 Day 366 p. 45 lines 5 39 threshold reliability; relevance; opinion  
.......................................................................................................................... 75  
Objection 55 Day 366 p. 58 lines 34 43; p. 59 lines 4 11 and lines 16 22  
opinion.............................................................................................................. 75  
Objection 58 Day 366 p. 67 line 38 p. 68 line 35 opinion............................... 76  
Objection 59 Day 366 p. 68 lines 36 47 opinion; relevance........................... 76  
Objection 70 Day 368 p. 42 line 5 opinion ........................................................ 76  
Relevance: Geographic: Objections 25-29, 31, 32, 34, 35, 52, 54, 56, 57, and 71 –  
75 ......................................................................................................................... 76  
Objection 26 Day 365 p. 10 line 30 p. 11 line 33; p. 11 line 43 to p. 12 line 34  
improper form of questions; lack of disclosure (trial fairness); relevance.......... 77  
Objection 52 Day 366 p. 45 line 40 p. 47 line 29 relevance; lack of disclosure  
(trial fairness).................................................................................................... 78  
Objection 54 Day 366 p. 57 lines 1 40; p. 58 lines 6 8 relevance; lack of  
disclosure (trial fairness)................................................................................... 79  
Objection 57 Day 366 p. 65 line 40 p. 67 line 25 relevance; opinion; p. 66  
lines 22 31; withdraw objection at p. 66 line 30 p. 67 line 25 ...................... 79  
Objection 71 Day 369 p. 11 lines 43 46 relevance; lack of disclosure (trial  
fairness); threshold reliability ............................................................................ 80  
Objection 72 Day 369 p. 32 line 41 p. 33 line 26 relevance; lack of disclosure  
(trial fairness); opinion ...................................................................................... 80  
Objection 73 Day 370 p. 12 lines 12 40 and lines 46 47 relevance; lack of  
disclosure (trial fairness); threshold reliability ................................................... 80  
Objection 74 Day 370 p. 16 line 44 p. 17 line 18 relevance; threshold  
reliability; opinion .............................................................................................. 81  
Objection 75 Day 370 p. 24 lines 25 33 relevance; lack of disclosure (trial  
fairness)............................................................................................................ 81  
Temporal Relevance Objections 26, 38, 48, 52, 56, 57, 72, 73 and 75................ 81  
Objection 50 Day 366 p. 39 line 38 p. 40 line 7 relevance............................. 82  
The Moses Johnny Objections ............................................................................. 82  
Objection 42 Day 365 p. 59 lines 17 43 and p. 61 lines 14 21 threshold  
reliability; opinion .............................................................................................. 82  
Objection 68 Day 367 p. 43 lines 15 21 and Day 370 p. 38 line 23 p. 39 line  
30 opinion; relevance........................................................................................ 82  
Cowichan Tribes v. Canada (Attorney General)  
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Objection 43 Day 365 p. 65 lines 31 37 opinion............................................. 83  
Objection 44 Day 365 p. 65 line 38 p. 66 line 8 relevance; lack of disclosure  
(trial fairness).................................................................................................... 83  
Objection 47 Day 366 p. 7 line 45 p. 10 line 14 threshold reliability; relevance;  
opinion; lack of disclosure (trial fairness).......................................................... 84  
Objection 61 Day 366 p. 74 lines 8 14 hearsay ............................................. 84  
SCHEDULE B REPLY TO MORGAN GUERIN.................................................... 84  
Day 363 p. 30 at 12:09:11 12:09:19............................................................... 84  
Day 365 p. 122 at 2:21:32 2:21:38................................................................. 85  
Day 366 pp. 146 147 at 10:24:48 10:25:16................................................. 85  
Day 367 pp. 216 217 at 2:10:42 2:10:52..................................................... 85  
OBJECTIONS TO THE ORAL HISTORY EVIDENCE OF CHIEF SPARROW....... 85  
Hearsay and Opinion Objections.......................................................................... 88  
Objection 76 Day 372 p. 45 lines 12 15 hearsay ........................................... 89  
Objection 78 Day 372 p. 51 lines 35 36 opinion; lack of disclosure (trial  
fairness)............................................................................................................ 89  
Objection 80 Day 373 p. 10 line 27 p. 11 line 9; also Day 376 p. 38 lines 24 –  
27 threshold reliability; relevance; lack of disclosure; improper form of question;  
opinion.............................................................................................................. 90  
Objection 86 Day 373 p. 14 lines 14 26 threshold reliability; relevance; lack of  
disclosure (trial fairness); improper form of question; opinion........................... 90  
Objection 93 Day 373 p. 34 lines 47 p. 36 line 17 and p. 45 lines 31 33  
hearsay............................................................................................................. 91  
Objection 99 Day 374 p. 5 lines 21 25 and p. 5 lines 33 p. 6 line 29 hearsay  
.......................................................................................................................... 91  
Objection 109 Day 375 p. 13 line 10 p. 14 line 2 improper form of question;  
speculative opinion ........................................................................................... 92  
Objection 110 Day 375 p. 17 lines 28 37 speculative opinion........................ 93  
Objection 111 Day 375 p. 24 lines 10 12 and lines 39 42 hearsay;  
speculative opinion ........................................................................................... 94  
Objection 126 Day 376 p. 8 lines 5 38 improper form of question; speculative  
opinion; hearsay ............................................................................................... 94  
Objection 127 Day 376 p. 9 lines 19 27 speculative opinion; hearsay........... 96  
Objection 131 Day 376 p. 18 lines 32 35 opinion........................................... 96  
Musqueam Fisheries Commission and the Aboriginal Fisheries Strategy (AFS)  
Agreements.......................................................................................................... 96  
Cowichan Tribes v. Canada (Attorney General)  
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Objection 89 Day 373 p. 20 lines 14 26; p. 20 line 43 p. 21 line 46; p. 22  
lines 31 34; p. 39 lines 4 8 hearsay; improper form of question and opinion  
.......................................................................................................................... 98  
(a)  
(b)  
(c)  
(d)  
p. 20 lines 14 26 .............................................................................. 98  
p. 20 line 43 p. 21 line 46 ................................................................ 98  
p. 22 lines 31 34 .............................................................................. 99  
p. 39 lines 4 8................................................................................ 100  
Objection 91 Day 373 p. 29 line 40 p. 30 line 24, and p. 31 lines 3 11  
opinion; threshold reliability............................................................................. 100  
Objection 94 Day 373 p. 43 lines 7 15, and lines 19 29 lack of disclosure  
(trial fairness).................................................................................................. 101  
Objection 113 Day 375 p. 27 lines 15 27 lack of disclosure (trial fairness) .. 101  
Objection 115 Day 375 p. 33 lines 26 32 opinion......................................... 102  
Objection 118 Day 375 p. 49 lines 3 14 hearsay ......................................... 102  
Objection 132 Day 376 p. 21 lines 42 46 speculative opinion...................... 103  
Objection 133 Day 376 hearsay...................................................................... 103  
(a)  
(b)  
p. 41 line 45 p. 42 line 9 ................................................................ 103  
p. 43 line 36 p. 45 line 45 .............................................................. 104  
(b 1) p. 46 lines 20 28 ............................................................................ 104  
(c)  
(d)  
(e)  
p. 49 line 30 p. 50 line 44 .............................................................. 105  
p. 52 lines 22 44 ............................................................................ 105  
p. 58 lines 15 27 ............................................................................ 106  
(f) p. 58 lines 39 p. 59 line 1 .................................................................. 106  
Objection 134 Day 377 p. 2 lines 23 41; p. 3 lines 27 43 hearsay ............ 106  
Objection 136 Day 377 speculative opinion.................................................... 106  
(a)  
(b)  
(c)  
p. 19 line 47 p. 20 line 6 ................................................................ 107  
p. 20 lines 41 43 ............................................................................ 107  
p. 23 lines 10 18 ............................................................................ 107  
Objection 137 Day 377 hearsay; speculative opinion ..................................... 107  
(a)  
(b)  
(c)  
(d)  
(e)  
p. 29 lines 12 22 and line 39 p. 30 line 29 .................................. 108  
p. 30 lines 36 40 ............................................................................ 108  
p. 31 lines 17 26 ............................................................................ 108  
p. 34 lines 8 14 and 20 34 .......................................................... 109  
p. 35 line 23 p. 37 line 33 .............................................................. 109  
(f) p. 47 line 42 p. 48 line 9.................................................................... 110  
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Objection 138 Day 377 p. 38 lines 26 44 speculative opinion...................... 110  
Speculative Opinion Objections.......................................................................... 111  
Objection 77 Day 372 p. 51 lines 24 32 speculative opinion; hearsay......... 111  
Objection 92 Day 373 p. 34 lines 18 33 improper form of question; speculative  
opinion............................................................................................................ 112  
Objection 95 Day 373 p. 58 lines 23 43; p. 59 lines 9 24 speculative opinion  
........................................................................................................................ 113  
Objection 97 Day 373 p. 64 line 35 44 speculative opinion.......................... 114  
Objection 98 Day 373 p. 65 lines 1 25 speculative opinion.......................... 114  
Objection 100 Day 374 p. 9 lines 40 43; p. 10 line 45 - p. 11 line 19  
speculative opinion ......................................................................................... 114  
Objection 102 Day 374 p. 14 line 27 p. 15 line 4 speculative opinion.......... 114  
Objection 103 Day 374 p. 16 lines 25 31 speculative opinion...................... 115  
Objection 104 Day 374 p. 17 lines 38 43; and p. 17 line 47 p. 18 line 11  
speculative opinion ......................................................................................... 115  
Objection 116 Day 375 p. 38 line 39 p. 39 line 2 speculative opinion; hearsay  
........................................................................................................................ 116  
Objection 122 Day 375 p. 57 lines 31 46 speculative opinion...................... 116  
Objection 123 Day 376 p. 4 lines 29 31 speculative opinion; hearsay......... 117  
Objection 130 Day 376 p. 14 lines 24 28 and lines 35 39 speculative opinion  
........................................................................................................................ 117  
Recorded Protocol Meetings .............................................................................. 118  
The 2001 Meeting Recording and Failure to Exhaust Memory....................... 118  
Objection 106 Day 374 p. 36 lines 23 39; p. 37 lines 30 47; p. 38 line 1 p.  
44 line 43; p. 45 line 46 p. 46 line 25 improper form of questions; speculative  
opinion; relevance (past evidence cut-off) ...................................................... 121  
Objection 107 Day 374 p. 48 line 39 p. 50 line 14 improper form of questions;  
speculative opinion ......................................................................................... 121  
Relevance .......................................................................................................... 122  
Objection 81 Day 373 p. 11 lines 10 35 relevance....................................... 123  
Objection 82 Day 373 p. 11 lines 36 p. 12 line 5 threshold reliability;  
relevance; lack of disclosure (trial fairness); improper form of question ......... 123  
Objection 83 Day 373 p. 12 lines 25 42 relevance....................................... 123  
Objection 85 Day 373 p. 13 lines 7 16 relevance......................................... 123  
Objection 87 Day 373 p. 15 lines 24 32; p. 16 lines 4 8; p. 17 lines 2 4 and  
lines 25 30; p. 44 lines 9 17; p. 45 lines 25 27 relevance (past evidence  
cut-off date)..................................................................................................... 124  
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Objection 88 Day 373 p. 18 line 21; p. 21 lines 9 10; and p. 39 line 30 opinion;  
relevance; lack of disclosure (trial fairness) .................................................... 124  
Objection 121 Day 375 p. 53 lines 31-33 and lines 36-40 and p. 55 lines 45- 47  
relevance (past evidence cut-off date)............................................................ 125  
Objection 124 Day 376 p. 4 lines 33-34 relevance (past evidence cut-off date)  
........................................................................................................................ 125  
Objection 125 Day 376 p. 7 lines 23 24 relevance (past evidence cut-off date)  
........................................................................................................................ 125  
Objection 139 Day 377 p. 42 lines 37 39, lines 42 43; p. 43 line 41 p. 44  
line 1 relevance (past evidence cut-off) .......................................................... 126  
Objection 140 Day 377 p. 50 lines 9 13 speculative opinion........................ 126  
Objection 141 Day 377 p. 52 lines 26 32 hearsay ....................................... 127  
Objection 142 Day 377 p. 53 lines 8 10 opinion........................................... 127  
Objection 144 Day 377 p. 54 lines 24 28); p. 56 lines 11 15, lines 27 43; p.  
57 lines 6 10, lines 27 34; p. 57 line 40 p. 58 line 5 speculative opinion;  
hearsay........................................................................................................... 127  
Objection 145 Day 377 p. 59 lines 1 21 and p. 61 line 35 p. 62 line 6  
speculative opinion; hearsay........................................................................... 128  
Objection 147 Day 378 p. 17 lines 3 13 and lines 19 31 speculative opinion  
........................................................................................................................ 129  
Objection 148 Day 378 p. 25 line 28 p. 26 line 29 hearsay.......................... 129  
Objection 150 Day 378 p. 30 lines 19 24 hearsay; opinion.......................... 130  
Objection 151 Day 378 p. 31 line 46 p. 32 line 1 opinion............................. 130  
Objection 152 Day 378 p. 33 lines 1 18; lines 26 27; lines 31 40; p. 34  
lines 1 8; p. 35 lines 39 45 hearsay; opinion............................................. 130  
Objection 153 Day 378 p. 44 lines 1 19 hearsay; opinion............................ 131  
Objection 154 Day 378 p. 54 lines 37 46 hearsay; speculative opinion ....... 131  
Objection 156 Day 378 p. 67 lines 20 22 speculative opinion...................... 132  
Objection 157 Day 378 p. 69 lines 8 32 and p. 70 lines 42 44 hearsay;  
opinion............................................................................................................ 132  
Objection 158 Day 379 p. 13 lines 15 37 hearsay; speculative opinion....... 132  
Objection 160 Day 379 p. 37 lines 17 19 and line 34 opinion ...................... 133  
Objection 161 Day 379 p. 38 lines 35 40 hearsay ....................................... 134  
Objection 162 Day 379 p. 39 lines 4 5, lines 19 37, line 47; p. 43 line 47 p.  
44 line 19 hearsay; opinion............................................................................. 134  
Objection 165 Day 380 redirect p. 35 lines 2 21 hearsay; opinion............... 134  
Schedule B Objections....................................................................................... 136  
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Schedule B, p. 40 (Day 375, p. 14, lines 29 36, 10:47:15 10:47:45)......... 136  
Schedule B, p. 53 (Day 379, p. 50, lines 17 21, 2:20:47 2:20:57)............. 137  
WITHDRAWN OBJECTIONS AND EVIDENCE NOT RELIED ON....................... 137  
SUMMARY ............................................................................................................ 137  
ATTACHMENT 1................................................... ERREUR ! SIGNET NON DEFINI.  
ATTACHMENT 2................................................... ERREUR ! SIGNET NON DEFINI.  
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INTRODUCTION  
[1]  
On Day 356 of this Aboriginal rights and title case, I declared a voir dire to  
determine the admissibility of the oral history evidence to be given by Musqueam  
Indian Band (“Musqueam”) witnesses, sʔəyəɬəq (Larry Grant), Morgan Guerin and  
Chief Wayne Sparrow. The primary purpose of the voir dire was to determine the  
threshold reliability of the witnesses’ oral history evidence. The plaintiffs were also  
granted leave to raise further objections to the admissibility of the evidence of these  
witnesses at the end of the voir dire in order to allow the witnesses to testify without  
interruption. I subsequently modified this direction to allow contemporaneous  
objections to the form of questions asked.  
[2]  
The plaintiffs object to portions of the evidence of Larry Grant, Morgan Guerin  
and Chief Sparrow on a number of grounds, including:  
a)  
it does not meet the test for threshold reliability required to be  
admitted as oral history evidence;  
it consists of opinion and/or speculation;  
it is not relevant; and  
b)  
c)  
d)  
it relates to subject matter over which Musqueam has refused  
production.  
[3]  
Before addressing the specific objections, I will review the applicable legal  
principles regarding the admissibility of oral history, opinion evidence, and  
relevance. I will also address the plaintiffs’ submission that Musqueam refused to  
produce certain documents on the grounds of relevance and should therefore be  
precluded from leading evidence in those subject areas.  
 
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LEGAL PRINCIPLES  
What is oral history?  
[4]  
Generally, Indigenous oral history is the practice of transmitting information  
orally as a means of recording history and preserving Indigenous knowledge. The  
description of oral history in the Report of the Royal Commission on Aboriginal  
Peoples (1996), Vol. 1 (Looking Forward, Looking Back) at p. 33 was quoted with  
approval by then Chief Justice Lamer in Delgamuukw v. British Columbia, [1997] 3  
S.C.R. 1010 and Justice Vickers in Tsilhqot’in Nation v. British Columbia, 2007  
BCSC 1700 [Tsilhqot’in 2007]:  
The Aboriginal tradition in the recording of history is neither linear nor  
steeped in the same notions of social progress and evolution [as in the  
non-Aboriginal tradition]. Nor is it usually human-centred in the same way as  
the western scientific tradition, for it does not assume that human beings are  
anything more than one -- and not necessarily the most important -- element  
of the natural order of the universe. Moreover, the Aboriginal historical  
tradition is an oral one, involving legends, stories and accounts handed down  
through the generations in oral form. It is less focused on establishing  
objective truth and assumes that the teller of the story is so much a part of  
the event being described that it would be arrogant to presume to classify or  
categorize the event exactly or for all time.  
In the Aboriginal tradition the purpose of repeating oral accounts from the  
past is broader than the role of written history in western societies. It may be  
to educate the listener, to communicate aspects of culture, to socialize people  
into a cultural tradition, or to validate the claims of a particular family to  
authority and prestige …  
Oral accounts of the past include a good deal of subjective experience. They  
are not simply a detached recounting of factual events but, rather, are facts  
enmeshed in the stories of a lifetime. They are also likely to be rooted in  
particular locations, making reference to particular families and communities.  
This contributes to a sense that there are many histories, each characterized  
in part by how a people see themselves, how they define their identity in  
relation to their environment, and how they express their uniqueness as a  
people.  
[5]  
As set out above, the Aboriginal historical tradition is an oral one, involving  
legends, stories and accounts handed down orally through the generations. Oral  
histories include “a good deal of subjective experience” and “facts enmeshed in the  
story of a lifetime”. The teller of the story “is so much a part of the event being  
   
Cowichan Tribes v. Canada (Attorney General)  
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described that it would be arrogant to presume to classify or categorize the event  
exactly or for all time.”  
[6]  
Oral histories may express the “values and mores” of a culture, and may be  
woven with history, legend, politics and moral obligations: Delgamuukw at para. 86;  
Tsilhqot'in 2007 at paras. 136-137. Oral history may include accounts of what a  
witness learned from deceased individuals within their community concerning  
genealogy and traditional activities and practices, including land use: Saugeen First  
Nation v. Canada (Attorney General), 2021 ONSC 4181 at para. 52 citing Tsilhqot’in  
2007 at para. 163 and Delgamuukw at paras. 99-101. Oral traditions accumulate  
interpretations as they are transmitted; how the community interprets oral traditions  
is “an unfolding process, based on their environment and culture” and demonstrates  
how what happened in the past, believed to be real, is relevant to the present:  
Tsilhqot’in 2007 at para. 148, citing Jan Vansina, Oral Tradition As History (Madison:  
The University of Wisconsin Press, 1985).  
[7]  
While oral history evidence is typically tendered to prove an historical fact,  
oral histories may have elements that are not entirely factual: Saugeen First Nation  
at para. 54. In Tsilhqot’in 2007, Justice Vickers observed that oral histories and oral  
traditions are a “marked departure” from the court’s usual fare, and that “the ‘truth’  
which lies at the heart of the oral history and oral tradition evidence can be much  
more elusive”: para. 137.  
[8]  
Oral history is evidence not just of events, but of the context in which events  
took place, including the relevant laws, cultures and traditions: Gary S. Campo, “Oral  
History Does Make a Difference: William v. British Columbia et al” (February 21,  
2008) Continuing Legal Education Society of British Columbia, p. 3.  
[9]  
Oral histories may speak of laws and legal regimes that govern relationships;  
they “are something to be evaluated and something to evaluate by”: John Borrows,  
“Listening for a Change: The Courts and Oral Tradition” (2001) 39:1 Osgoode Hall  
Law Journal 1 at p. 28.  
Cowichan Tribes v. Canada (Attorney General)  
Admissibility of oral history  
Page 15  
[10] In R. v. Sparrow, [1990] 1 S.C.R. 1075 at p. 1112 [Sparrow] the Supreme  
Court of Canada stressed the importance of the Aboriginal perspective in identifying  
and defining the context of section 35 rights. The Aboriginal perspective grounds  
every step of the analysis of section 35 claims: R. v. Marshall; R. v. Bernard, 2005  
SCC 43 at para. 50. Oral histories express the Aboriginal perspective and play a  
crucial role in the litigation of Aboriginal rights: Delgamuukw at para. 84.  
[11] Oral histories largely consist of out-of-court statements, passed on through  
generations to the present day. These statements are admitted for the truth of their  
contents and therefore conflict with the general rule against the admissibility of  
hearsay evidence: Delgamuukw at para. 86.  
[12] The laws of evidence must be adapted and applied flexibly to accommodate  
oral histories: Delgamuukw at para. 87; Mitchell v. M.N.R.), 2001 SCC 33 at paras.  
29-31. Oral histories are to be placed on “an equal footing” with other types of  
historical evidence: Delgamuukw at para. 87. In considering the admissibility of oral  
histories, courts “must resist facile assumptions based on Eurocentric traditions of  
gathering and passing on historical facts and traditions”: Mitchell at para. 34. Justice  
Vickers wrote in Tsilhqot’in 2007 that “to truly hear the oral history and oral tradition  
evidence presented in these cases, courts must undergo their own process of  
decolonization”: para. 132.  
[13] To be admissible, oral history must be useful in the sense that it tends to  
prove a fact relevant to the issues in the case. Oral history evidence may be useful  
where it offers evidence of ancestral practices and their significance that would not  
otherwise be available, or to provide an Aboriginal perspective on the rights claimed:  
Mitchell at para. 32.  
[14] Oral history evidence is hearsay and should not be treated differently than  
other kinds of hearsay evidence, except for the need to bear in mind “the promise of  
reconciliation embodied in s. 35(1)”: William v. British Columbia, 2004 BCSC 148 at  
para. 16 [William #1 2004], citing Mitchell at para. 29.  
 
Cowichan Tribes v. Canada (Attorney General)  
Page 16  
[15] Hearsay evidence is admissible where the twin criteria of necessity and  
reliability are met: R. v. Khelawon, 2006 SCC 57. In cases like this one, which  
involve inquiries into historical events, necessity is usually established as a result of  
the deaths of those who observed the event. Therefore, the admissibility of oral  
history evidence often rests on an assessment of its threshold reliability.  
[16] In Mitchell, McLachlin C.J.C. held that in considering the reliability of oral  
history evidence, both in relation to admissibility and weight, it may be appropriate to  
inquire into the witness’s ability to know and testify about oral history (para. 33):  
The second factor that must be considered in determining the admissibility of  
evidence in aboriginal cases is reliability: does the witness represent a  
reasonable reliable source of the particular people's history? The trial judge  
need not go so far as to find a special guarantee of reliability. However,  
inquiries as to the witness's ability to know and testify to orally transmitted  
aboriginal traditions and history may be appropriate both on the question of  
admissibility and the weight to be assigned the evidence if admitted.  
[17] Justice Vickers noted that McLachlin C.J.C. was not saying that inquiries into  
a witness’s ability to know and transmit oral history are required in all cases:  
William #1 2004 at para. 10. The trial judge has discretion to determine the factors  
relevant to assessing threshold reliability in the particular circumstances of the case.  
Justice Vickers found that, once the usefulness and necessity of the evidence was  
established, the following factors were relevant to assessing threshold reliability  
(para. 19):  
1)  
some personal information concerning the witnessescircumstances  
and ability to recount what others have told him or her;  
2)  
3)  
who it was that told the witness about the event or story;  
the relationship of the witness to the person from whom he or she  
learned of the event or story;  
4)  
the general reputation of the person from whom the witness learned of  
the event or story;  
5)  
6)  
whether that person witnessed the event or was simply told of it; and,  
any other matters that might bear on the question of whether the  
evidence tendered can be relied upon by the trier of fact to make  
critical findings of fact.  
Cowichan Tribes v. Canada (Attorney General)  
Page 17  
[18] These factors are non-exhaustive, and all need not be present for oral history  
evidence to be admissible. Admissibility must be determined on a case-by-case  
basis: Mitchell at para. 31. The trial judge retains discretion to exclude useful and  
reliable evidence if its probative value is overshadowed by its prejudicial effect:  
Mitchell at para. 31.  
[19] A formal process for keeping and sharing oral history with steps to check for  
accuracy is not a prerequisite to admissibility, although it may affect weight:  
Saugeen First Nation at paras. 57-58. The manner of transmission of oral history  
differs amongst Indigenous communities, and may differ within a single community.  
In Tsilhqot’in 2007, Justice Vickers noted at para. 166 that “within an Aboriginal  
group, the oral traditions of the community may be handed down across generations  
in a variety of ways. Some of these mechanisms of transmission may be highly  
formalized and structured, others entirely without form or structure.” In that case,  
witnesses had differing opinions about the formalities to be observed when relaying  
oral histories and traditions; those differences did not detract from the weight to be  
given to the evidence: para. 167.  
[20] Reliability may be enhanced where an elder or storyteller is the source of the  
oral history that the witness conveys: Saugeen First Nation at para. 60. Reliability  
may be weakened where there are multiple potential sources from which the witness  
could have learned the story: Saugeen First Nation at para. 60. Whether a witness is  
recognized as a knowledge holder by their community is relevant to reliability, but it  
is only a factor to consider: Saugeen First Nation at para. 59.  
[21] Independent corroboration of oral tradition is not required and offends the  
direction from the Supreme Court of Canada. Trial judges are not to impose  
impossible burdens on Aboriginal claimants: Tsilhqot’in 2007 at para. 152.  
Cowichan Tribes v. Canada (Attorney General)  
Page 18  
Framework for transmission of oral history  
Expert testimony  
Plaintiffssubmissions  
[22] The plaintiffs submit that Musqueam has provided no evidence of a clear  
framework for the transmission of oral history evidence. Musqueam did not call  
expert evidence and so the court does not have the benefit of independent  
assistance to identify a standard against which to assess the oral history. While the  
parties agree that expert evidence setting out a framework for transmission of oral  
history is not a prerequisite to its admission, the plaintiffs submit that its absence is  
problematic because the court will have to evaluate the method of oral history  
transmission based on the evidence of parties who have an interest in the outcome  
of the litigation. The plaintiffs submit that as an alternative to expert evidence,  
Musqueam ought to have called a community witness who could testify as to oral  
history transmission, but who did not provide oral history evidence to the court.  
[23] The plaintiffs further submit that the testimony of Larry Grant, Morgan Guerin  
and Chief Wayne Sparrow as it relates to the transmission of oral history is  
inconsistent. For example, Mr. Guerin testified about the importance of transferring  
knowledge word for word so that it remained unchanged through the generations.  
He identified something called “true history” that could not be changed without  
risking disrespect to one’s ancestors. Yet, Mr. Grant testified about oral history  
transmission through “kitchen table talk”, where family and community members  
would build consensus through informal discussion.  
[24] Relying on William #1 2004, the plaintiffs submit that it is important for the  
plaintiffs to know the traditions of Musqueam peoples with respect to:  
1)  
how oral history, stories, legends, customs and traditions are  
preserved;  
2)  
who is entitled to relate such things and whether there is a hierarchy in  
that regard; and  
     
Cowichan Tribes v. Canada (Attorney General)  
Page 19  
3)  
the community practice with respect to safeguarding the integrity of its  
oral history, stories, legends and traditions.  
[25] Without the benefit of expert testimony, the plaintiffs and the court have to  
rely on the evidence of the witnesses who are sharing the oral history for an  
explanation as to the process. The plaintiffs submit that their evidence is inconsistent  
and prone to bias.  
Musqueam’s submissions  
[26] Musqueam submits that opinion evidence from an expert who is an outsider  
to an Indigenous people cannot be a prerequisite to the admissibility of oral history  
evidence from that people. It would be discriminatory to conclude that oral history is  
presumptively self-serving and unreliable, requiring the intervention of an expert  
before the court can accept it as admissible.  
[27] Musqueam notes that this Court has admitted some historical documents,  
which are hearsay evidence from explorers or fur traders, infused with their  
perspectives, without the need for expert evidence.  
[28] Musqueam submits that it has established how its oral history is transmitted  
and why it is reliable through the evidence of Larry Grant, Morgan Guerin and Chief  
Wayne Sparrow.  
[29] In the alternative, Musqueam submits that if the court requires expert  
evidence about the process for oral history transmission in the Musqueam  
community, the court can rely on the evidence of the plaintiffs’ ethnohistorian,  
Dr. Dorothy Kennedy, and her report entitled “An Analysis of the Cowichan  
Occupation and Use of the ‘Long Shore’ Village, Lulu Island” dated February 28,  
2019 (the “Kennedy Report”). Dr. Kennedy opined on the intergenerational transfer  
of traditional knowledge in central Coast Salish society, and Musqueam is a part of  
that society. Dr. Kennedy did not identify her research and expertise as being  
particularized to the plaintiffs, and she relied on her research concerning Coast  
Salish social organization. In response, the plaintiffs submit that Dr. Kennedy’s  
 
Cowichan Tribes v. Canada (Attorney General)  
Page 20  
evidence may not be helpful because she does not speak at all about oral history  
transmission for the Musqueam.  
Ruling  
[30] Although expert evidence may assist the court, I have no hesitation in  
concluding that expert evidence is not required to enable the court to assess the  
threshold reliability of oral history. The presence of expert opinion does not mean  
that there will be consistent evidence respecting the manner of transmission of oral  
history or consensus within an Indigenous community about how oral history is or  
should be transmitted. In this case, I will have to distill the process for preserving  
and transmitting Musqueam oral history from the evidence of Musqueam’s oral  
history witnesses. There may be more than one recognized process.  
[31] The witnesses presented their evidence in a sincere manner. Each witness  
had different experiences in learning and transferring oral history. Some oral history  
transmissions followed a more formal and rigid process, occurring in bighouse  
ceremonies with appointed knowledge holders. Other transmissions occurred  
somewhat informally, transmitted at the kitchen table by family members.  
[32] Larry Grant and Morgan Guerin are recognized as knowledge holders and  
Chief Sparrow is not. Yet Chief Sparrow is a highly respected member of his  
community and has received some oral history from his family members.  
[33] As set out below, I conclude that Musqueam has provided sufficient evidence  
of the framework for transmission of oral history to allow me to assess the threshold  
reliability of the oral history evidence. I am satisfied that there is no rigid set of  
requirements that must be met when oral history is transmitted within the Musqueam  
community in order for oral history to qualify as such. It would be a disservice to the  
Musqueam perspective for the court to require one. Within the Musqueam  
community there is a sliding scale when it comes to the level of formality of  
transmission. Informally transmitted oral history, like all oral history, is admissible  
provided it is useful, necessary and reliable. Oral history that is transmitted in the  
absence of a process to check for accuracy may be accorded less weight.  
 
Cowichan Tribes v. Canada (Attorney General)  
Transmission of Musqueam oral history  
Page 21  
[34] Larry Grant testified that Musqueam people start learning from infancy about  
tradition, cultural stories and who Musqueam are as a people. They learn it in  
various settings, from the kitchen table where family gather and talk, to the bighouse  
during winter ceremonies and other ceremonies.  
[35] Larry Grant testified about the methods Musqueam people use to ensure  
historical teachings stay accurate. They try to recite stories as accurately as they  
can over and over. Repetition is important to ensuring accuracy. Typically, oral  
histories are not recorded because to do so moves the history away from its source  
and how the Musqueam belong to the story. In modern times, some Musqueam  
families have made recordings to preserve oral history but these recordings remain  
the property of the family who holds the knowledge.  
[36] Larry Grant testified that oral history is part of ceremony. A Musqueam person  
learns how they are related to ceremony and how they belong to it. They learn who  
in their family has the right to that knowledge. They will recite kinship lineage on how  
they are connected to generations back in the past and how the Musqueam young  
people are connected to that lineage. Some oral history is conveyed through songs,  
dances and the use of masks and rattles in ceremony. The songs belong to specific  
families, and those families recite that history and how the privilege and right to that  
ceremonial song belongs to that family.  
[37] Larry Grant testified that the reliability of oral history is maintained through the  
different membership narrations of that history. If errors are made, witnesses will be  
called to correct mistakes in front of everyone at the bighouse.  
[38] Certain individuals are recognized as oral history knowledge keepers by  
families, the broader community and people from other communities. Morgan Guerin  
testified that a knowledge holder will be responsible for a particular body of  
knowledge. To be considered a knowledge holder, a person must be very well-  
respected and accepted as a reputable source of that knowledge and how things are  
connected. Someone may become a reputable knowledge holder through speaking  
 
Cowichan Tribes v. Canada (Attorney General)  
Page 22  
many times about what the person knows and being trained in different aspects of  
the cultural functions of the community.  
[39] Families often identify children that show aptitude and curiosity for learning  
oral history and train them to become oral historians in the family. Both Larry Grant  
and Morgan Guerin testified that learning oral history is a lifelong process.  
[40] Musqueam witnesses described oral history being transmitted while visiting  
family and in community gatherings. These settings provide opportunity for oral  
history to be shared, confirmed, corroborated, discussed and corrected. Oral history  
may be transmitted while people engage in traditional practices, like harvesting and  
preparing traditional foods.  
[41] Morgan Guerin testified that oral history can be transmitted in everyday life or  
through ceremony. Knowledge may be transmitted orally through gatherings of  
multiple families who are having dinner together. As the histories are repeated, they  
reach a consensus of what they know to be true. Like Mr. Grant, Mr. Guerin noted  
that assurances about the accuracy of oral history are strengthened through  
repetition, through hearing the same history, the same way, throughout one’s life.  
[42] Mr. Guerin testified about the rigor and rule that applies to knowledge  
transfer. The way to properly transfer oral history is its own body of knowledge. Oral  
history may be transmitted with context to promote understanding and to explain it to  
the listener, but the true history must be transmitted the same way each time, as a  
small change can, over time, distort its meaning.  
[43] Mr. Guerin testified that the “strongest versions” of oral history are found  
when multiple people are present for its transmission, especially knowledge keepers  
and elders. The person sharing the history and the people who are present will  
confirm what they were told, and identify the sources who have previously shared  
the knowledge with them. There is room to identify corrections when oral history is  
transmitted this way.  
Cowichan Tribes v. Canada (Attorney General)  
Page 23  
[44] Cultural importance is placed on relaying oral history truthfully. Mr. Guerin  
testified that oral histories are attached to his ancestors. There is a responsibility to  
preserve and share oral histories accurately; to do otherwise risks an erasure of  
one’s ancestors.  
[45] At this stage of the proceedings, I am able to distil through the testimony of  
Musqueam’s witnesses that there are different practices within the Musqueam  
community for transmitting oral history. Oral history may be transmitted during  
ceremony, in front of the community, or less formally, while engaging in traditional  
practices or through kitchen table talk. The integrity of oral history is maintained  
through repetition, telling the history or central aspects of the history as close to  
verbatim as possible, and sharing it in a setting that allows for corrections and  
consensus. In considering the reliability of oral history, a listener may take into  
account the reputation of the person relaying the oral history, including whether that  
person is a knowledge keeper and the age of that person, as well as the knowledge  
and reputation of their sources. Some oral history is outside of the scope of what a  
knowledge holder may speak to, and oral history should only be shared by those  
who hold the specific knowledge.  
[46] The plaintiffs assert that Musqueam must provide a framework for oral history  
transmission. I am satisfied that they have done so as described above. It is against  
this backdrop that I will assess the threshold reliability of the oral history evidence.  
The plaintiffs’ demand for a rigid framework is inconsistent with the law. It is also  
inconsistent with the plaintiffs’ approach to their own oral history evidence, where  
they urged flexibility in admitting the oral histories of Indigenous communities.  
Assessing threshold reliability  
Sources  
[47] The plaintiffs submit that while the absence of a source of oral history is not  
an absolute bar to its admissibility, it is a significant factor in assessing the threshold  
reliability of the oral history evidence. The following cases support this statement.  
Each case has to be assessed on its facts which leads to different results.  
   
Cowichan Tribes v. Canada (Attorney General)  
Page 24  
[48] In Saugeen First Nation, the court admitted and accepted oral history  
evidence that in the 17th century the ancestors of the Saugeen Ojibway Nation were  
part of an historical alliance called the Three Fires Confederacy “without much  
evidence about the source of the oral history or how it was passed down from  
[Saugeen Ojibway Nation’s] ancestors”: para. 181. The court also admitted oral  
history evidence from a witness who estimated that the ancestors of the Saugeen  
Ojibway Nation had been in the area for more than 3,000 years: para. 379. The  
witness did not provide a source for that evidence or how it was passed down. The  
court admitted the evidence and accepted that the belief was sincere, but noted the  
evidence was “not as reliable as oral history can be, given its foundation”: para. 379.  
[49] In The Ahousaht v. Canada (Attorney General), 2008 BCSC 769, Justice  
Garson admitted oral history evidence heard in a voir dire from a witness who  
acquired her evidence from multiple sources, including her own reading and  
research. The witness was not always able to connect certain knowledge to a  
particular source. Justice Garson found that the threshold admissibility of the  
evidence was established in other ways, and that a lack of precision in connecting  
the information to a particular source was a matter of weight or ultimate reliability:  
paras. 17, 21 and 25.  
[50] In R. v. Joseph, 2010 BCPC 401 [Joseph], the court considered the source of  
oral history to be an important factor in assessing threshold reliability. The accused  
was restricted to providing oral history about information provided to him by his  
grandmother, grandfather and his step-grandfather and any sources in public  
ceremonies identified as to time, place and person, as to statements about the  
general traditions of either tribe: para.40. The threshold reliability of other oral history  
evidence the accused sought to tender was not established, as the accused had not  
embarked on a learning process outside of carving and was not educated in the  
general traditions of the Indigenous community at issue.  
[51] Musqueam submits that in Joseph the limited context and presentation of  
evidence by the accused made it difficult for the court to assess whether his oral  
Cowichan Tribes v. Canada (Attorney General)  
Page 25  
history met the necessity and threshold reliability test. It is also notable that in  
Joseph, the witness was neither a recognized elder, Chief nor band councillor and  
had no authorization from the band to give oral traditions of the band’s history. This  
is markedly different than the statuses and capacities of Musqueam’s oral history  
witnesses.  
[52] In White Bear First Nations v. Saskatchewan (Environment), 2009 SKQB 151,  
the court focused on the qualifications of the oral history affiant, Chief  
Standingready, and found that his qualifications to give oral history evidence “fell  
well short of satisfying the standards established by Delgamuukw, Mitchell and other  
judicial authorities”: para. 32. The court struck paragraphs that referenced Chief  
Standingready’s unsourced “conversations over the years with our First Nations  
members” and his “understanding” as to the hunting practices of “Indians from other  
areas”: para. 34. The court explained that these statements were inadmissible due  
to a lack of information about the source of Chief Standingready’s knowledge and  
were not the best evidence available: paras. 34-35.  
Ruling  
[53] When the standards enunciated by the Supreme Court of Canada in  
decisions such as Delgamuukw and Mitchell are satisfied, the oral history evidence  
should be evaluated and assessed for necessity and reliability. Oral history evidence  
with a stated source can be more easily evaluated for reliability than unsourced  
evidence.  
[54] For the most part, Musqueam’s witnesses have given evidence about the  
sources of their oral history knowledge. They spoke to their oral history sources’  
reputations within the Musqueam community as knowledge holders, their personal  
relationship with these sources, as well as the significance of teachings their sources  
shared and the context in which the teachings occurred.  
[55] The case law demands a flexible and purposive approach to assessing  
threshold reliability, consistent with the general factors considered in William #1  
2004. The failure of a statement to include a particular indicator of trustworthiness  
 
Cowichan Tribes v. Canada (Attorney General)  
Page 26  
and reliability is not fatal to that evidence. A lack of evidence about the identity of a  
source, or information about a source, may render oral history inadmissible in the  
absence of other indicia of reliability. However, treating the indicia as a pass or fail  
checklist does not serve the purposes of the threshold reliability analysis for  
Indigenous oral history.  
The inclusion of inference and opinion evidence  
Plaintiffs’ submissions  
[56] The plaintiffs submit that including inference, explanation, analogy or  
interpretation in oral history is overly broad. Inference and interpretation are not oral  
history. The plaintiffs do not take issue with mythology, creation stories or genealogy  
being included in oral history.  
[57] The plaintiffs rely on William #1 2004 at para. 27 for the proposition that oral  
history witnesses are lay witnesses and like any ordinary witnesses, the hearsay  
component of their evidence must meet the threshold tests of necessity and  
reliability. The plaintiffs submit that oral history witnesses cannot draw inferences or  
give opinion evidence. There is a distinction between facts told to an oral history  
witness and inferences the witness draws based on those facts. Likewise, there is a  
difference between the facts an oral history source conveys to a recipient, and the  
opinion and inferences the source conveys.  
[58] The plaintiffs rely on Mr. Guerin’s evidence where he differentiated between  
“true history”, which is oral history, and “context, which is not.  
[59] The plaintiffs rely on my ruling in this case indexed at 2021 BCSC 235 in  
which I held that certain portions of an affidavit sworn by the late Wesley Modeste  
were inadmissible. The plaintiffs submit that ruling demonstrates that the court will  
distinguish between oral history facts and inference.  
[60] The plaintiffs also rely on R. v. Quinney, 2003 ABPC 47 [Quinney] where the  
court found that an elder’s evidence about his understanding of a treaty, which was  
   
Cowichan Tribes v. Canada (Attorney General)  
Page 27  
based on discussions with his father and others, was not oral history and reflected  
no more than the elder’s understanding: paras. 43-46.  
Musqueam’s submissions  
[61] Musqueam submits that the plaintiffs’ position that evidence that speaks to  
oral history meanings, motives, and understanding as inadmissible opinion evidence  
is an impoverished view of oral history. The plaintiffs are attempting to strictly limit  
oral history to facts and exclude the integral context used to explain its meaning and  
application. This ignores that oral history is still very much lived, in that it continues  
to be central to and actively shapes and influences Indigenous societies and  
peoples.  
[62] Musqueam submits that the distinction between facts and inference in oral  
history is an artificial one. Inference is inherent to oral history evidence. Severing the  
bare facts of oral history from its other elements neutralizes the truth-serving  
function of oral history. Inferences made by oral historians on their knowledge,  
observations and experience are part of oral history and not lay opinion evidence. To  
dissect the statements of a witness or their source to remove context or explanation  
alters the oral history. Oral history evidence should not be altered in its admission.  
[63] With respect to my ruling on Mr. Modeste’s affidavit evidence, Musqueam  
submits that the inadmissible passage in that affidavit is different in nature from the  
evidence of Musqueam’s witnesses. Mr. Modeste’s affidavit relayed a version of the  
story of the battle of Maple Bay, as told to Mr. Modeste by his father. This was  
admitted into evidence. However, Mr. Modeste’s subsequent statement that he  
understood this story as teaching him about the Cowichan Tribes defending their turf  
from invasion, how powerful Cowichan Tribes were, and about how willing his  
ancestors were to safeguard their lands and resources, was not. Musqueam says  
that on the face of that affidavit, it was apparent that the conclusion Mr. Modeste  
drew from the story his father told him was not a lesson that was conveyed as part of  
the oral history.  
 
Cowichan Tribes v. Canada (Attorney General)  
Page 28  
[64] In the alternative, Musqueam says that if the court finds the inferences are not  
oral history evidence but opinion, the inferences are admissible as lay opinion  
evidence. In response, the plaintiffs submit that lay opinion evidence must be based  
on personal observation and therefore does not apply to oral history: Ganges  
Kangro Properties Ltd. v. Shepard, 2015 BCCA 522 at para. 68.  
Ruling  
[65] My ruling on Mr. Modeste’s affidavit does not stand for the proposition that  
opinion or inference can never be admitted as oral history evidence. In that particular  
example, I found that the inference Mr. Modeste drew from his father’s teachings  
was not helpful in explaining the oral history. In some cases, the opinion, inference  
or context may be useful and necessary to explain the oral history. The redacted  
portion of Mr. Modeste’s affidavit is similar in nature to the evidence disallowed in  
Quinney. It was not oral history, but was the witness’s current understanding of what  
the oral history meant to him.  
[66] The passage in the Report of the Royal Commission on Aboriginal Peoples  
which was adopted with approval by Chief Justice Lamer in Delgamuukw and  
Justice Vickers in Tsilhqot’in 2007 says that oral accounts of the past include a good  
deal of subjective experience. They are not simply a detached recounting of factual  
events but rather are facts enmeshed in the stories of a lifetime: Delgamuukw at  
para. 85; Tsilhqot’in 2007 at paras. 135-137.  
[67] In Delgamuukw, Lamer C.J.C. was critical of McEachern C.J. discounting the  
adaawk and kungax because they confounded “what is fact and what is belief”, and  
declined to give them independent weight because they did not accurately convey  
historical truth: paras. 97-98. Lamer C.J.C. found that this is a feature of all oral  
histories to a greater or lesser extent, and that declining to give weight to oral history  
evidence when adjudicating Aboriginal claims runs counter to the law: paras. 97-98.  
[68] In Tsilhqot’in 2007, Vickers J. said that in a fact-driven process such as the  
determination of Aboriginal rights and title, one must sift through the layers of oral  
history and traditional evidence with an awareness of context and an appreciation of  
 
Cowichan Tribes v. Canada (Attorney General)  
Page 29  
the role of tradition within the Aboriginal society: para. 136 citing Delgamuukw at  
paras. 86-87.  
[69] In that case, Canada’s expert witness, Dr. von Gernet, opined that Tsilhqot’in  
oral traditions about the “Chilcotin War” contained inferences about why things  
happened and motivations for certain actions. Justice Vickers quoted Dr. von  
Gernet’s report at para. 155:  
In general, the traditions relating to the “Chilcotin War” are not unlike other  
Aboriginal traditions about specific nineteenth-century events, in that they  
likely contain at least some independent information about what actually  
happened, together with modern inferences about why things happened.  
Once again the problem is the use to which they are now being put. Having  
examined the Tsilhqot’in oral traditions about this war, it is my opinion that  
this corpus does not strongly support a theory that the Tsilhqot’in people of  
1864 intended to maintain exclusive use and occupancy of the Claim Area,  
particularly since the story-tellers (including the Plaintiff himself) cite alternate  
motivations.  
[Emphasis added.]  
[70] While Justice Vickers did not specifically comment on whether he agreed that  
the oral history evidence contained modern inferences and descriptions of  
motivations, Justice Vickers did “accept much of what Dr. von Gernet has said” while  
rejecting his view that oral history evidence required some corroboration from an  
outside source: para. 156. This suggests that some of the oral history evidence  
Justice Vickers admitted into evidence contained inferences or descriptions of  
motivations for certain conduct. For example, Justice Vickers described a specific  
legend, noting that “Tsilhqot’in people rely on upon this legend to assert that they  
have occupied these spaces since the origins of the land itself”: para. 174. Justice  
Vickers noted that while he did not doubt the sincerity of that belief, the legend could  
not be evidence that the Tsilhqot’in people occupied those locations from the  
beginning of time. Although the legend could not support the inference advanced by  
the Tsilhqot’in people, Justice Vickers found the legend was evidence of territorial  
familiarity stretching back to the 18th century: para. 175.  
[71] At para. 147 of Tsilhqot’in 2007, Justice Vickers stated that unlike written  
documents, oral traditions are continuous and they may change through their  
Cowichan Tribes v. Canada (Attorney General)  
Page 30  
transmission. He quotes the following passage from paras. 195-196 of Dr. Vansina’s  
report which is of particular interest in this ruling:  
When sources are intangible, such as oral tradition, ... they must be  
reproduced from the time of their first appearance until they are recorded. ...  
That means that they accumulate interpretations as they are being  
transmitted. There is no longer an original encoding interpretation and a  
decoding one, but there are many encoding and decoding interpretations.  
[72] I take that to mean that interpretation is very much a part of the living oral  
history.  
[73] A review of the jurisprudence indicates that belief, interpretation and context  
are features of oral history evidence and are admissible as part of oral history  
evidence where the requirements of usefulness, necessity and reliability are met.  
Caution is required to avoid treating oral history evidence like documentary  
evidence, as the teller of the story “is part of the event being described” and oral  
histories accumulate interpretations as they are told over the years: Delgamuukw, at  
para. 85; Tsilhqot’in 2007 at para. 148.  
[74] There is a line between interpretation that is part of an oral history and  
drawing inferences that are distinct from the oral history conveyed. That boundary  
may be difficult to discern and will depend on the nature of the evidence and the  
particular circumstances of the case. Where a witness draws problematic inferences  
or puts forward an inference as proof of a fact that the inference cannot support, a  
court may find that the evidence is inadmissible (Joseph at para. 40), admissible for  
a limited purpose or may accord such inferences no weight (Tsilhqot’in 2007 at  
para. 174) or lesser weight at the end of trial (Saugeen First Nation at para. 379).  
[75] I agree with Musqueam’s submission that oral history should not be  
fragmented to divorce facts from inference and context. The threshold reliability of  
oral history inferences can be assessed by the court. I do not find it necessary to  
characterize inferences and context contained in oral history as lay opinion  
evidence, nor would doing so be consistent with the principles set out in Mitchell.  
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Page 31  
Relevance  
[76] The plaintiffs object to some of the voir dire evidence on the ground that it is  
irrelevant. They raise temporal and geographic relevance objections.  
Temporal Relevance Objections  
[77] There are two parts to the temporal relevance objection. Firstly, the plaintiffs  
object to evidence that does not relate to the legally relevant times at issue in this  
case, meaning the period before and after contact and the assertion of Crown  
sovereignty, around the late 1700s through the mid-1800s. Secondly, the plaintiffs  
object to evidence regarding events after September 9, 2019, which is the cut-off  
date for disclosure of recently created documents in these proceedings.  
Pre-contact Relevance Objections  
[78] The plaintiffs submit that this case is about whether the Cowichan exclusively  
occupied the Lands of Tl'uqtinus in 1846 and had a culturally integral practice of  
fishing the south arm of the Fraser River for food prior to and at contact in the early  
1790s. This case is not about Musqueam’s territorial claims or historical practices.  
The plaintiffs submit that Musqueam’s oral history evidence about events prior to  
1790 is not relevant.  
[79] With respect to the period before contact, Musqueam submits that its oral  
history evidence is relevant to who Musqueam is as a people, its relationship with its  
lands, waters and resources in the territory, and also speaks to the reliability of the  
witnesses' oral history evidence. This evidence relates to an indeterminate time  
period, not to a fixed point in time nor to a fixed geographic location.  
[80] Musqueam says that the plaintiffs have led similar evidence through  
Luschiim, Florence James, Wesley Modeste and Dr. Kennedy.  
[81] Musqueam submits that its oral history evidence ties Musqueam to the Fraser  
River a long time ago, or from time immemorial, or from many generations ago,  
before the three channels that exist today were created. Constricting the time frame  
of oral history asks too much of it. Musqueam relies on Delgamuukw at para. 101  
     
Cowichan Tribes v. Canada (Attorney General)  
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where Lamer C.J.C. found the trial judge had imposed a near impossible burden on  
the appellant’s oral history evidence in expecting it to provide “definitive and precise  
evidence of pre-contact Aboriginal activities on the territory in question”.  
[82] The plaintiffs say that this principle set out in Delgamuukw is of no assistance  
to Musqueam, because in that case Lamer C.J.C. was concerned with evidence  
adduced in relation to proof of continuity, a concept which only arises in the context  
of proving Aboriginal title. Musqueam is not seeking to prove title, and therefore  
cannot rely on the case law regarding continuity of occupation.  
Ruling  
[83] I accept Musqueam’s submission that its oral history evidence is relevant to  
who Musqueam are as a people, its relationship with the lands, waters and  
resources in the territory, and that its history extends back for generations. This  
evidence relates to an indeterminate time period.  
[84] I am mindful of the Supreme Court of Canada’s caution in Delgamuukw about  
undervaluing oral history.  
[85] In R. v. Van der Peet, [1996] 2 S.C.R. 507, Justice McLachlin (as she then  
was), dissenting, identified the recognition by the common law of the ancestral laws  
and customs of the Aboriginal peoples who occupied the land prior to European  
settlement as a golden thread that permeates the section 35 analysis: para. 263. I  
accept Musqueam’s submission that if section 35 is to do more than pay lip service  
to Aboriginal perspectives, section 35 rights need to be understood in accordance  
with Indigenous legal traditions.  
[86] I agree with Musqueam’s submission that a true picture of the practices relied  
on by the plaintiffs in support of their claims to Aboriginal rights requires  
consideration of the broader pre-existing Coast Salish society that both Musqueam  
and the plaintiff communities were and continue to be a part of. Musqueam submits  
that this society has included, as part of its core structure, customs, practices and  
rules governing access to resources through affinal relationships. Evidence of pre-  
 
Cowichan Tribes v. Canada (Attorney General)  
Page 33  
existing rules, traditions and customs about fishing relied on by the plaintiffs is  
relevant to their claim and Musqueam’s pleadings regarding permission.  
[87] I am satisfied that Musqueam’s oral history evidence cannot be restricted to a  
time period starting in 1790. I will evaluate each objection individually with an  
expansive view of the indeterminate time frame.  
Evidentiary Cut-off Relevance Objections  
[88] On Day 157 of this trial I ruled that September 9, 2019, which was the first  
day of trial, was the cut-off date for disclosing recently created documents, except  
for documents created after that date that related to the 2018/2019 fishing season.  
My ruling was subject to certain conditions. The Court retained discretion to admit  
recently created documents where the parties consented or where failure to admit a  
recently created document would be prejudicial to a party or prevent the  
determination of an issue on its merits. I affirmed this ruling on several different  
occasions, and I have also allowed several objections to viva voce testimony about  
matters that occurred after the start of the trial.  
[89] The plaintiffs submit that this ruling is not confined to disclosure of recently  
created documents, and precludes Musqueam’s witnesses from testifying about time  
periods after September 9, 2019.  
[90] Musqueam initially argued that evidence beyond the disclosure cut-off date is  
relevant, admissible oral history on the continuation and observation of Musqueam  
and Coast Salish practices up until the day of testimony. Musqueam now submits  
that the Court should “read down” the witnesses’ evidence that extends to present  
day and only consider the evidence that relates to a time before September 9, 2019.  
To the extent the witnesses testified to matters that relate only to a period after  
September 9, 2019, Musqueam advises that it no longer seeks to rely on that  
evidence.  
[91] The plaintiffs take issue with the notion that the Court can “read down” the  
evidence. The plaintiffs say such an approach risks complicating the record,  
 
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Page 34  
admitting evidence that is irrelevant and inadmissible, and altering the substance of  
a witness’s testimony.  
Ruling  
[92] In the context of this extraordinarily lengthy trial, I found that there was a need  
to set a temporal window around the facts to be adjudicated in this case. I  
established a cut-off date for disclosure of recently created documents in part for  
that reason. I have subsequently ruled on several occasions that viva voce  
testimony about matters arising after that date is inadmissible, unless the tendering  
party can demonstrate prejudice or the necessity of that evidence to a determination  
of the issues in this case. That ruling applies to the evidence Musqueam seeks to  
tender.  
[93] I am satisfied that limiting this modern expression evidence to 2019 causes  
no prejudice to Musqueam, is fair to the plaintiffs and is consistent with the approach  
that I have adopted to date. I have evaluated the evidence that the plaintiffs object to  
because it overlaps with matters after September 9, 2019, and I am not satisfied that  
I need to consider any of the evidence about matters after that date in order for the  
issues in this case to be determined on their merits. Therefore, evidence that relates  
to matters both before and after September 9, 2019 may be admitted because it is  
relevant to the time period before the commencement of trial or up to and including  
the 2018/2019 fishing season. Where the evidence relates to matters that cross the  
temporal cut-off date, it will be given no weight.  
Geographic Relevance Objections  
[94] The plaintiffs object to the voir dire evidence led by Musqueam which relates  
to Musqueam’s use, occupation and permissive power with respect to territory  
outside of Lulu Island and the south arm of the Fraser River. They rely on a pre-trial  
ruling in these proceedings indexed at 2019 BCSC 1107 (the “Discovery Ruling”).  
Below, I describe the application that resulted in that ruling in some detail as the  
parties spent considerable time in their submissions regarding its effect.  
   
Cowichan Tribes v. Canada (Attorney General)  
Page 35  
[95] The plaintiffs had applied for better and further responses to outstanding  
requests from Chief Sparrow’s examination for discovery. The plaintiffs sought the  
names of the main Musqueam village sites, camping sites and fishing sites before,  
at and after 1846, according to Musqueam knowledge holders. The plaintiffs later  
narrowed this request to the three channels of the Fraser River. The plaintiffs sought  
information as to whether the Stshewasen site was a Musqueam village site, and if  
so, when. The plaintiffs also applied for production of transcripts and recordings that  
could be used to prove or disprove a material fact at trial or that relate to any matter  
in question in the action, including tapes that Chief Sparrow referred to during his  
examination for discovery that speak to a pre-contact Musqueam practice of  
controlling and sharing access to the three channels of the lower Fraser River.  
[96] The plaintiffs submitted that they were not limited to asking questions about  
Tl'uqtinus and the south arm of the Fraser River. The plaintiffs argued they were  
entitled to test the pattern, timing, extent, and location of Musqueam’s historic use,  
occupation and permissive power, which Musqueam had put into issue.  
[97] In its application response, Musqueam submitted that it did not claim  
permissive power at the Lands of Tl’uqtinus as the plaintiffs suggested. Rather,  
Musqueam pleaded that its right to fish in the south arm included a right to share  
access with kin and allies who otherwise did not have a right to fish on the south arm  
at the time of contact, and that this right to give or deny permission is an exercise of  
Musqueam’s Aboriginal right to fish. Musqueam submitted that it had not put into  
issue its use and occupation of areas outside of the Lands of Tl’uqtinus or Lulu  
Island, nor had they put into issue their permissive power over any lands as an  
expression of Aboriginal title. Musqueam resisted the production of audio and video  
tapes about the north and middle arm of the Fraser River stating that they were not  
at issue in this proceeding.  
[98] Musqueam submitted that it was not trying to prove exclusive use and  
occupation of land, and was not required prove title in order to defend the plaintiffs’  
land claim. Musqueam did produce a copy of the 1976 Musqueam Declaration which  
Cowichan Tribes v. Canada (Attorney General)  
Page 36  
provided non- exhaustive evidence of how Musqueam described its broader territory  
but argued that requiring identification of every Musqueam village, camping and  
fishing site before, at and after 1846 was neither relevant nor proportionate.  
[99] In the Discovery Ruling, I found that the plaintiffs had not clearly defined why  
the scope of relevance should be expanded to include Musqueam’s territorial  
practices in other areas which do not affect the plaintiffs’ claim. I also ruled that the  
plaintiffs’ question and line of inquiry about the Stshewasen site was not relevant,  
and an attempt to expand the territory for the purpose of questioning beyond what  
was reasonable: para. 31. Musqueam was ordered to provide names of villages,  
camping sites, and place names of the Musqueam within the Lands of Tl'uqtinus and  
the south arm of the Fraser River and Lulu Island. With respect to the recordings,  
Musqueam consented to producing the relevant portions of the tapes and I did not  
rule on which parts of those tapes were relevant.  
[100] The plaintiffs say that in the Discovery Ruling, I found that Musqueam  
practices outside of the south arm are irrelevant, that the north and middle arms of  
the Fraser River are not at issue in the proceedings, and that the pattern, timing,  
extent and location of Musqueam’s historical, use, occupation and permissive power  
outside of the south arm and Lulu Island are irrelevant.  
[101] The plaintiffs raise additional concerns about lack of disclosure. Subsequent  
to the Discovery Ruling, in December 2020, the plaintiffs demanded that Musqueam  
produce documents about Musqueam use and/or occupation of Tree Island, located  
above the forks of the north and south arm of the Fraser River. Musqueam refused  
to disclose those documents, indicating that unless otherwise relevant, documents  
about Musqueam use and occupation of the north arm were not producible. The  
plaintiffs did not bring an application for disclosure of these documents.  
[102] The plaintiffs submit that a party cannot lead viva voce evidence through a  
witness where the party has refused to provide related disclosure. Musqueam  
successfully argued that Musqueam’s use, occupancy and permissive power (under  
their fishing right) with respect to territory outside of the south arm of the Fraser  
Cowichan Tribes v. Canada (Attorney General)  
Page 37  
River and Lulu Island is irrelevant, has refused disclosure of related documents, and  
cannot now lead evidence on these topics. The plaintiffs rely on my ruling indexed at  
2020 BCSC 1498 where I held Canada was not required to produce certain  
documents; I later found that Canada could not lead evidence from a witness about  
a subject area where I had found disclosure was not necessary. The plaintiffs submit  
that, had Musqueam provided information about sites and territory outside of the  
south arm, the plaintiffs could have used this information in preparation for  
cross-examination and for read-ins at trial.  
[103] In response to the plaintiffs’ objections on the voir dire, Musqueam now  
submits that oral history evidence about identity, kinship ties, permission and  
stewardship that include broad references to Musqueam territory is important  
evidence to the facts in issue and is relevant to demonstrate a legal system based  
on kinship that allows the plaintiffs to access fish in the claim area. This argument  
was not made in 2019. Musqueam relies on Delgamuukw at para. 94 where the  
court found the oral histories in that case, the adaawk and kungax, were offered,  
respectively, as proof of the existence of a system of land tenure law internal to the  
Gitxsan and therefore evidence of use and occupation of land, and evidence of the  
central significance of the claimed land to the distinctive culture of the Wet’suwet’en.  
Musqueam says that in this case, Musqueam’s evidence about shared values  
among the Coast Salish is proof that Musqueam and the plaintiffs are part of the  
same larger society.  
[104] Musqueam says that it is impossible to limit their oral history witnesses to site-  
specific references, and that the Supreme Court of Canada cautioned against this  
approach in Tsilhqot'in Nation v. British Columbia, 2014 SCC 44 [Tsilhqot’in 2014] at  
para. 32:  
… the court must be careful not to lose or distort the Aboriginal perspective  
by forcing ancestral practices into the square boxes of common law concepts,  
thus frustrating the goal of faithfully translating pre-sovereignty Aboriginal  
interests into equivalent modern legal rights.  
Cowichan Tribes v. Canada (Attorney General)  
Page 38  
[105] Musqueam says that attempting to restrict oral history evidence  
geographically or temporally contravenes that direction. Musqueam further submits  
that in William v. British Columbia, 2004 BCSC 1022 [William #2 2004] Justice  
Vickers admitted the oral history evidence of Minnie Charleyboy to prove shared  
values, customs and traditions of the Tsilhqot'in people, finding that it did not matter  
that the stories and legends she told may not relate to the claimed land: para. 22.  
Musqueam says this case is similar, in that its oral history evidence is led to  
establish shared values, customs and laws and not to establish a claim to a specific  
area of land.  
[106] The plaintiffs argue that the distinction between proof of occupancy and proof  
of laws in Delgamuukw does not assist Musqueam because those principles related  
to a claimant group seeking a declaration of Aboriginal title. Here, use and  
occupation of Musqueam’s broader territory is not in issue and therefore its system  
of laws with respect to its broader territory is not relevant. Further, the plaintiffs say  
Musqueam took the position on the Discovery Ruling that its permissive power with  
respect to its broader territory is not relevant, and cannot now fairly assert the  
opposite position. With respect to evidence of shared values, customs and traditions  
in the Tsilhqot’in 2014 proceedings, the plaintiffs say the Tsilhqot’in were required to  
prove that it was an Aboriginal people at the time of contact as part of its title claim,  
which is not in issue for Musqueam.  
[107] The plaintiffs submit that it is inconsistent and prejudicial for Musqueam to  
deny disclosure on the basis of relevance, and then subsequently argue that  
evidence of a similar nature is relevant for a different purpose. Either evidence is  
relevant or it is not.  
Ruling  
[108] I agree with the plaintiffs that Musqueam’s current argument that broad  
references to Musqueam territory are relevant to demonstrate a legal system based  
on kinship is in conflict with the submissions it made in 2019 when it was resisting  
production. In 2019, Musqueam took the position that evidence of permissive  
 
Cowichan Tribes v. Canada (Attorney General)  
Page 39  
powers over fishing outside the south arm of the Fraser River was not relevant and  
asserted that the north and middle arm of the Fraser River are not at issue in this  
proceeding.  
[109] Relevance is determined with reference to the facts in issue in the pleadings.  
In its Second Further Amended Response to Civil Claim Musqueam pleads at  
Division 2, paras. 1, 3, 7 and 8:  
̓
Musqueam is the successor to and continuation of the xʷməθkʷəyəm  
1.  
(Musqueam) people, who existed as a people at the time of, and prior to  
contact with Europeans, and at the time and prior to the Crown’s assertion of  
sovereignty.  
3.  
… Musqueam occupied and used the lands of Lulu Island, including  
̓
̓
the Lands, and the lands known to the Musqueam as ƛəqtinəs ƛ əqətinəs,  
tlektines or 7uqtinus. The predecessors of the Plaintiffs and/or the Cowichan  
Nation did not have the intention and capacity to exclude Musqueam from the  
Lands.  
7.  
… Musqueam has an Aboriginal right within the meaning of s. 35 of  
the Constitution Act, 1982, to fish for food, social and ceremonial purposes in  
the Fraser River estuary, which includes the three channels of the Fraser  
River by which the Fraser River reaches the ocean, including the south or  
main arm. This Aboriginal right includes the authority a right to share access  
to fishing in this portion of the Fraser River with kin and allies in other  
villages.  
8.  
… If the Plaintiffs’ predecessors, or the Cowichan Nation, fished for  
food in the main or south arm of the Fraser River at the time of contact, they  
̓
̓
̓
did so pursuant to Musqueam’s and other hənqəmim-speaking peoples’  
authority right to share access to the fisheries, and with Musqueam’s  
̓
̓
̓
̓
permission from Musqueam and other hənqəminəm-speaking peoples.  
[110] As above, Musqueam put into issue its identity as a people, and its  
occupation and use of Lulu Island, including the lands the plaintiffs identify as the  
Lands of Tl’uqtinus. It denies that the plaintiffs had the capacity to exclude its people  
from those lands. Musqueam asserts its right to fish for food, social and ceremonial  
purposes in the Fraser River estuary which includes the south arm. Musqueam does  
not put in issue the use or occupation of the expanse of its territory outside of Lulu  
Island and the Lands of Tl’uqtinus. Its pleading about the three channels of the  
Fraser River applies to fishing rights and not land use and occupation.  
Cowichan Tribes v. Canada (Attorney General)  
Page 40  
[111] Musqueam takes a narrow view of the effect of the Discovery Ruling and  
submits that it was aimed at limiting discovery of its pattern of land use and  
occupation of its broader territory. This interpretation ignores the plaintiffs’ assertion  
on that application that they are entitled to explore Musqueam’s permissive powers  
generally and not just in relation to Lulu Island and the south arm of the Fraser  
River.  
[112] The Discovery Ruling must be considered in its proper context. In 2019, I was  
not satisfied that questioning about all of Musqueam’s sites before, at and after 1846  
was relevant or proportionate, and found that it was sufficient for Musqueam to  
identify sites at the Lands of Tl’uqtinus, the south arm of the Fraser River and Lulu  
Island. I considered the plaintiffs’ submissions with respect to testing Musqueam’s  
permissive power outside of the geographic areas at issue in these proceedings  
when I made that order. However, in the course of their objections, the plaintiffs  
appear to take the view that if evidence touches on areas outside of the south arm  
and Tl’uqtinus, it is inadmissible. That is not the effect of the Discovery Ruling.  
Evidence that relates to Musqueam’s broader territory may be admissible if it is  
relevant to a fact at issue in this case, such as Musqueam identity, use and  
occupation of Lulu Island, or exercise of permissive power over fishing rights in the  
south arm.  
[113] Given the nature of Musqueam’s oral history it is not possible to tease out  
only those aspects that relate solely to the geographic areas at issue in these  
proceedings. The stories and legends of Musqueam knowledge holders are not site  
specific and it would be artificial and prejudicial to Musqueam to exclude them  
because they do not relate exclusively to the claim area. Excluding the evidence  
entirely would deny Musqueam a voice and its perspective in this litigation because  
its oral history is not confined to Lulu Island and the south arm of the Fraser River.  
[114] Nor is geography necessarily determinative of relevance. The evidence of  
Musqueam’s witnesses that the plaintiffs object to on geographic grounds relates to  
a shared system of legal norms as well as identity. Musqueam says these norms  
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Page 41  
establish stewardship, sharing and permission among kin, which Musqueam says  
governed relations between the plaintiff communities and Musqueam, including  
access to resources in the claim area on Lulu Island and the south arm at the legally  
significant dates. This evidence is relevant to Musqueam’s pleading that the plaintiffs  
fished the south arm with Musqueam’s permission.  
[115] I do not accept the plaintiffs’ submission that Delgamuukw offers no support  
for admission of oral history evidence relating to Musqueam’s customs and laws that  
are not site specific. Delgamuukw recognizes the importance of according due  
weight to Indigenous perspectives in Aboriginal rights cases, including in relation to  
oral history evidence. In my view, this principle does not apply only to Aboriginal  
rights claimants. Further, as above, I am satisfied that the oral history evidence  
Musqueam seeks to tender that relates to its broader territory is relevant to the  
issues in this case.  
[116] Musqueam’s oral history evidence about identity, laws and customs, kinship  
ties and permissions and stewardship of resources is relevant and cannot be  
restricted to the claim area. Accordingly, I find that the oral history evidence of  
Musqueam’s witnesses that relates to Musqueam identity, laws and customs,  
stewardship and kinship ties and permissions which may also relate to the broader  
Musqueam territory is admissible.  
[117] The parties have leave to make submissions at the end of the trial about the  
use that can be made of this evidence, including in light of the parameters that were  
set with respect to disclosure in the Discovery Ruling.  
Relevance of Fisheries Commission Evidence  
[118] Musqueam refused to produce documents to the plaintiffs regarding the  
Musqueam Fisheries Commission’s inner workings on the grounds that those  
documents had no connection to the issues in the action. Morgan Guerin and Chief  
Sparrow then testified regarding Commission meetings and the factors it considers  
when dealing with First Nation requests to fish. The plaintiffs submit that without this  
disclosure, they are unable to test Mr. Guerin or Chief Sparrow’s evidence regarding  
 
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Page 42  
the Commission meetings or the factors it considered when dealing with First Nation  
requests to fish. Musqueam cannot have it both ways.  
[119] The plaintiffs submit that as a matter of trial fairness a party is not entitled to  
lead viva voce evidence on matters that it has asserted are not relevant and where  
the party has refused to provide related disclosure. The plaintiffs again rely on my  
ruling indexed at 2020 BCSC 1498 where I denied the plaintiffs’ application for an  
order to compel Canada to produce internal notes and memoranda. I later limited  
Canada’s ability to lead evidence related to those internal notes and memoranda.  
[120] Musqueam submits that the plaintiffs’ failure to diligently pursue disclosure,  
meaning its failure to seek a court order to compel production, is fatal to the  
plaintiffs’ trial fairness argument. Musqueam says that even in the context of the  
Crown’s constitutional duties to disclose in criminal cases, the defence must  
diligently pursue disclosure. In support of their argument, Musqueam relies on R. v.  
Dixon, [1998] 1 S.C.R. 244 where the Supreme Court of Canada considered  
whether an accused was entitled to a new trial because the Crown violated its  
disclosure obligations. The Court commented that in considering the overall fairness  
of the trial process defence counsel’s diligence in pursuing disclosure from the  
Crown must be taken into account. When counsel becomes aware or ought to be  
aware of Crown’s failure to disclose material, counsel must not remain passive.  
[121] The plaintiffs submit that Dixon does not support the proposition that a party  
in a civil case must seek a court order to compel disclosure as a precondition to later  
raising trial fairness concerns arising from the lack of disclosure.  
Ruling  
[122] The principles set out in Dixon are of little assistance and limited application  
to the present case. I do not agree that the plaintiffs remained passive with respect  
to seeking disclosure from Musqueam. I find that affidavit #21 of Kathleen  
McKerracher made March 24, 2022 and affidavit #7 of Monica Shackelly made  
March 17, 2022 support the plaintiffs’ submission that they pursued disclosure of  
Commission documents. Musqueam’s submission that the plaintiffs’ “last-minute  
 
Cowichan Tribes v. Canada (Attorney General)  
Page 43  
demand after remaining passive about disclosure precludes argument about trial  
fairness” is astounding. The plaintiffs requested disclosure of the Fisheries  
Commission mandate information repeatedly from the summer of 2019 and were  
repeatedly told that it was irrelevant.  
[123] I accept Musqueam’s submission that the plaintiffs had some advance notice  
that Chief Sparrow would testify about the Fisheries Commission when they  
received his will-say statement at the end of January 2022.  
[124] However, it is understandable that the plaintiffs did not pursue a court order  
for production prior to receiving the will-say statement for Chief Sparrow which  
referenced the Fisheries Commission mandate. Subsequently, during Chief  
Sparrow’s evidence-in-chief about the Commission’s mandate, the plaintiffs  
requested production of the Commission’s terms of reference, meeting minutes and  
all other material related to the plaintiffs’ requests for fishing access. While still  
maintaining its position that the terms of reference are irrelevant, Musqueam  
produced the terms of reference on February 20, 2022 before the plaintiffs’  
cross-examination of Chief Sparrow commenced.  
[125] In a letter to the plaintiffs dated February 20, 2022, Musqueam advised of its  
concerns about proportionality with respect to the demands for meeting minutes and  
materials related to the plaintiffs’ requests over the last 26 years of Commission  
work. Counsel for Musqueam stated that the inner workings of the Fisheries  
Commission have no connection to the issues in the action and that all relevant  
written communications between Musqueam and the plaintiffs and all relevant  
records of any meetings with the plaintiffs had already been produced.  
[126] This situation differs from my ruling indexed at 2020 BCSC 1498 because in  
that case I had ordered that Canada was not required to produce certain meeting  
documents, following which Canada sought to lead evidence through its witness,  
Ms. Nener, about those consultation meetings. I ordered that the evidence be limited  
to the documented and disclosed consultation as a matter of trial fairness. Here, the  
plaintiffs seek to preclude Musqueam from leading evidence of the workings of the  
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Fisheries Commission since they have not produced all of the demanded  
documents. However, Musqueam produced the terms of reference. In its sur-reply,  
Musqueam set out examples of other Fisheries Commission documents that have  
been produced and references to the Fisheries Commission in the will-say  
statements of Morgan Guerin and Chief Sparrow. I also note that some Fisheries  
Commission letters, memoranda and agreements were produced by Musqueam as  
evidenced in their Tranche 1 consent documents proposal attached as exhibit “A” to  
Ms. Shackelly’s affidavit.  
[127] While I have limited evidence of what has and has not been produced, I have  
no evidence that any material documents have not been produced. The plaintiffs  
have not demonstrated a serious risk to their ability to cross-examine Musqueam’s  
witnesses. Disclosure of all meeting minutes and materials related to all of the  
Commission’s work may well be disproportionate but it is not possible to rule on that  
on the basis of the record before me.  
[128] I agree with Musqueam that a blanket assertion about trial fairness with  
respect to lack of disclosure is insufficient to disallow the evidence about the  
Fisheries Commission that it seeks to tender. I will evaluate each objection to  
Musqueam Fisheries Commission evidence to assess whether the plaintiffs have  
actually been prejudiced by Musqueam’s position on relevance and disclosure.  
Objections to the Form of Questions  
[129] Initially, when the voir dire was declared, objections were to be reserved until  
the end of the voir dire. Subsequently, at the request of counsel for Musqueam, I  
modified that direction to allow contemporaneous objections to the form of questions  
asked. Musqueam submits that this means that the plaintiffs are now precluded from  
raising additional objections to the form of questions. No such direction was made.  
The plaintiffs were free to raise objections to the form of questions now. I have not  
allowed any of these objections.  
 
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OBJECTIONS TO LARRY GRANT’S EVIDENCE  
[130] The plaintiffs do not object to Larry Grant’s status as a knowledge holder or to  
his qualifications to give oral history evidence. The plaintiffs’ general objections to  
Mr. Grant’s oral history evidence relate to his inability to specify the time frame of his  
oral history with any precision and his occasional inability to recall a source. They  
also object to Mr. Grant giving opinion evidence.  
[131] Larry Grant’s Indigenous name is sʔəyəɬəq. He is a well-respected  
Musqueam elder and knowledge holder. He had a close relationship with his mother,  
Agnes Grant, who was regarded in the Musqueam community as high born, from the  
lead family in Musqueam culture, history and leadership. She was very reputable  
and known to have knowledge in cultural activity, ceremonial process, societal  
structure and genealogy. Larry Grant also learned teachings from his maternal  
grandmother, Mary Grant (née Charlie), who was another respected knowledge  
holder.  
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[132] Mr. Grant is from the mask dancer sXʷay'Xʷ@y' [sχʷayχʷəy] bloodline and  
danced himself for over 20 years.  
[133] Mr. Grant has been a resident elder at the First Nations House of Learning at  
the University of British Columbia since 2001. He is also a resident elder at the  
Justice Institute of British Columbia and a consultant with the Musqueam language  
program department at Musqueam.  
[134] I will address the categories of the plaintiffs’ objections followed where  
possible by the specific objections where the main objection relates to that category.  
Most of the passages are objected to on numerous grounds. To avoid repetition I will  
address all the objections to the passage of evidence at the same time, leading with  
the primary objection.  
Timing (Objections 5, 13)  
[135] The plaintiffs submit that Larry Grant’s oral history evidence lacks threshold  
reliability with respect to the late 1700s to the mid-1800s, which are the legally  
   
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relevant times at issue in this case. The plaintiffs also submit that his oral history  
evidence is not relevant because it does not relate to that time period.  
[136] Mr. Grant testified that his oral history came from “before colonizing” when he  
testified about his grandmother harvesting hops or berries. She used to travel up into  
the Fraser Canyon during salmon season and preserve salmon by wind drying. This  
was either before or at the beginning of colonization. He testified that his mother did  
not use the words “prior to contact” and would instead say “before the white man  
came”. In cross-examination, he testified that to him, the time before the white man  
or contact was when colonialism began and Indigenous lives were disrupted. He  
was asked if this was in the 1890s and he answered that he thought so but he never  
paid attention.  
[137] The plaintiffs submit that Larry Grant used the terms “before white man” and  
“before colonization” interchangeably. Mr. Grant testified that his mother told him that  
a family lived at Garry Point “before the white man came”. When Mr. Grant agreed  
that colonization was around 1890s, the plaintiffs say it correlates that the family living  
at Garry Point must have lived there in the 1890s. Accordingly, it does not follow that  
there was a continuity of occupation extending back prior to the 1890s.  
[138] Musqueam submits that Larry Grant cannot give evidence of exact dates  
when transmitting oral history because dates and calendars were never important to  
his sources or to him. He retells the stories the way he heard them. His mother  
never really had dates. Dates did not exist until colonization began. He admits to not  
carrying dates well himself.  
[139] Musqueam submits that known dates of epidemics or potlach prohibition can  
assist the court in placing Larry Grant’s evidence into a timeline. These submissions  
are more appropriately made at the end of the trial with respect to weight or ultimate  
reliability.  
[140] Musqueam submits that requiring specific date stamps to oral history imposes  
a colonial concept on an Indigenous practice. Larry Grant’s informants used the term  
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“before the white man” when they referred to a period before settlement and  
colonization by Europeans which adversely affected Indigenous ways of being. The  
specific date is unimportant to the sources of the evidence.  
[141] I am mindful of Chief Justice McLachlin’s statement in Mitchell at para. 34 that  
oral histories reflect the distinctive perspectives and culture of the communities from  
which they originate and should not be discounted simply because they do not  
conform to the expectations of the non-Aboriginal perspective.  
[142] When Mr. Grant testified about what happened prior to contact he did not  
make specific reference to the legally relevant date of contact in this litigation. He  
gave evidence about practices that were carried out prior to contact and after  
colonization started. He spoke about ceremonies that took place for many, many  
generations. He spoke of communities going back and forth into Washington State  
before there was a border between what is now the Unites States and Canada. I am  
satisfied that this evidence is relevant and reliable at a threshold level.  
[143] I find that Larry Grant’s difficulty recalling dates does not disqualify his  
evidence generally. These submissions are more appropriately made at the end of  
the trial with respect to ultimate reliability and weight.  
Objection 5 Day 358 Time 10:20:42 10:22:15 threshold reliability;  
opinion; relevance; lack of disclosure (trial fairness); improper form of  
question  
[144] When asked who told him about Musqueam territory, Larry Grant testified that  
his mother explained the different areas where Musqueam people lived, like Garry  
Point, and how they were connected. She told him that Musqueam had connections  
in Tsawwassen and how those people are actually Musqueam. On  
cross-examination, Mr. Grant agreed that Tsawwassen people would not agree with  
this statement but that the Tsawwassen do sit with them side by side in the  
bighouse.  
[145] This passage is objected to for lack of threshold reliability about time. As I set  
out above, I do not accept the plaintiffs’ submission that Mr. Grant’s evidence about  
 
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Garry Point is restricted to the 1890s. He said that his mother told him that the family  
that lived at Garry Point were there since “before the white man came”. It is an  
imprecise measure of time but does not affect the threshold reliability or relevance of  
the evidence.  
[146] The plaintiffs object to Mr. Grant testifying about the cultural identity of other  
communities and say that this evidence does not meet the best evidence rule as  
direct evidence is available from members of these other communities.  
[147] I find that Larry Grant’s evidence relates to the interconnectedness of  
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[email protected]’q’@min’@m’ [hənqəminə̓ m̓ speaking people and the closeness of family ties  
which is central to Musqueam’s identity. The best oral history evidence about  
Musqueam’s identity is from a Musqueam knowledge holder.  
[148] This passage is also objected to because the plaintiffs submit that Larry Grant  
is not qualified to give oral history evidence about the identity and practices of  
non-Musqueam Indigenous communities. The plaintiffs initially submitted that only  
those born in such a community have a right to speak to the laws and culture of that  
community. The plaintiffs subsequently refined their objection, and say that  
Mr. Grant can testify about what he saw but when he describes the Musqueam Mask  
Dance, for example, he cannot say that “other communities are the same”.  
[149] Larry Grant testified that someone cannot relate oral history about a  
community that one is not from, or a family that one does not belong to. He testified  
that during his lifetime he has experienced being a Musqueam person interacting  
and engaging with other communities, about ceremonies and cultural practices that  
involve the interaction and engagement of other communities within the broader  
Coast Salish society. He has visited many communities, including Stz'uminus on  
Vancouver Island, to visit aunties and uncles and great uncles and great aunties and  
was welcomed home by his relatives.  
[150] Musqueam submits that Larry Grant can give evidence of his lived experience  
being a Musqueam person interacting and engaging with other communities about  
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common ceremonies and cultural practices. He has travelled extensively both to visit  
family and to accompany his brother who is also a mask dancer. He should not and  
has not provided history of the plaintiff communities. He does not carry oral history  
from these other communities. He does however have personal observations of the  
events that he has attended. He has seen various ceremonies and heard designated  
speakers. His evidence is limited to his personal experience and does not include  
inference or opinion.  
[151] I find that Larry Grant has personal experience as a participant and witness to  
events and ceremonies in other communities. When visiting other communities, he  
was expected to follow the norms and customs of those places. His evidence is that  
the communities he referred to are deeply interconnected through familial and  
ceremonial ties to Musqueam. They invite each other to ceremonies to maintain  
these connections. His testimony about his interactions and experiences with other  
communities is admissible.  
[152] For all the reasons stated above, I find this evidence to be admissible.  
Objection 13 Day 359 Time 11:24:25 11:25:50 threshold reliability;  
relevance  
[153] This is oral history evidence from Larry Grant’s mother about the Point family  
who lived at Garry Point prior to colonization, before the white man came. Even if  
Mr. Grant agreed that colonization occurred in 1890, this evidence means that the  
family lived there before that. He is not clear about calendar dates. That does not  
render his evidence inadmissible. This evidence is admissible and submissions  
about its meaning and weight may be made at the end of the trial.  
Opinion (Objections 11, 21, 23)  
[154] The plaintiffs object to Larry Grant testifying about oral history meanings,  
motives and understanding as inadmissible opinion. Generally, I disagree with this  
objection as I have found that evidence about an understanding of oral history  
meaning is part of the oral history transmission.  
   
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[155] The plaintiffs submit that Mr. Grant is not qualified to give opinion evidence  
about languages he is not fluent in. The plaintiffs have withdrawn their objection to  
him testifying about his personal experience hearing the language. They do object to  
him opining on the meaning of a word in hul'qumi'num which he does not speak.  
[156] For example, Mr. Grant testified that based on his knowledge and experience,  
hul’qumi’num speakers on the Island pronounce the word “shxʷ[email protected]” almost  
identically to how [email protected]’q’@min’@m’ speakers pronounce it. As he is not a fluent  
hul'qumi'num speaker, the plaintiffs say he cannot testify that the word means the  
same in hul'qumi'num and [email protected]’q’@min’@m’.  
[157] Musqueam submits that Larry Grant’s evidence about language is based on  
his own personal observations and experience. He has an understanding of the  
[email protected]’q’@min’@m’ language and has heard his relatives speak hul'qumi'num since  
he was a child.  
[158] Musqueam submits that although Mr. Grant does not have a graduate degree  
in linguistics, he has made a career of teaching the [email protected]’q’@min’@m’ language for  
over 20 years as an adjunct professor at the University of British Columbia.  
Academics frequently approach him and ask him to be involved in teaching the  
program. His knowledge of [email protected]’q’@min’@m’ is based on his personal observations  
and experience. h@n’q’@min’@m’ was his first language. He stopped speaking  
[email protected]’q’@min’@m’ when he was eight years old but he testified that he did not stop  
understanding it. He does not consider himself fluent, but there are no fluent  
speakers of [email protected]’q’@min’@m’ at Musqueam. When the [email protected]’q’@min’@m’ language  
program commenced there were only one or two fluent speakers in the Musqueam  
community, who were quite elderly.  
[159] Mr. Grant said that his study of linguistics included the study of both  
Musqueam (i.e. [email protected]’q’@min’@m’) and Island (i.e. hul’qumi’num) languages,  
because they are dialects of the same language.  
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[160] I am prepared to accept Larry Grant’s evidence about his personal  
observations and understanding of both languages. This is not opinion evidence.  
Objection 11 Day 358 Time 10:47:04 10:47:22 opinion  
[161] Larry Grant testified that he has knowledge about the hul'qumi'num and  
Halkomelem dialects. He hears Halkomelem spoken when he attends functions in  
the Chilliwack area and he hears hul'qumi'num when he goes to Vancouver Island.  
He testified that these are mutually intelligible dialects of the same language. He has  
heard both dialects spoken since he was a child. When his relatives from the Island  
used to visit them, his mother would speak [email protected]’q’@min’@m’ and the relatives  
would speak hul'qumi'num. They could converse and understand the different  
dialects.  
[162] This evidence is within Larry Grant’s personal knowledge and is admissible.  
Objection 21 Day 360 Time 10:55:23 10:56:50 opinion  
[163] Larry Grant was asked if place names in [email protected]’q’@min’@m’ have meaning.  
He testified that places are usually named after a feature of the land. He explained  
that the meaning of ƛə̓ qtinəs references the shape of a chest and that the root is  
long. The plaintiffs’ witness, Mrs. Florence James, gave the same evidence when  
she translated Tl'uqtinus.  
[164] The plaintiffs object to this evidence on the basis that it is opinion. I find the  
evidence is within Larry Grant’s personal knowledge as a [email protected]’q’@min’@m’ speaker  
and is admissible.  
Objection 23 Day 361 Time 10:46:45 10:46:52 opinion  
[165] The plaintiffs object to Larry Grant saying Penelakut had their own micro-  
dialect. Mr. Grant later testified to the meaning of a “micro-dialect” as essentially a  
different way of pronouncing words.  
[166] I find that the identification of a dialect is within Larry Grant’s personal  
knowledge. This evidence is allowed.  
     
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Musqueam Declaration (Objection 2 Day 357 Time 12:15:15 12:16:31)  
[167] The plaintiffs object to Larry Grant testifying about the meaning of the  
Musqueam Declaration because he was not involved in its development. Any  
discussion about its meaning is speculation or opinion. Any discussion of what his  
mother or aunties thought it meant is hearsay and inadmissible opinion.  
[168] Musqueam does not seek to rely on Mr. Grant’s evidence as proof of the  
extent of Musqueam territory or the meaning of the Musqueam Declaration.  
However, Musqueam submits that this evidence is admissible as proof of his  
understanding and Musqueam’s understanding of the extent of Musqueam territory.  
[169] The plaintiffs submit that Larry Grant should not be permitted to testify as to  
the belief of all members of Musqueam. Further, the plaintiffs submit that any belief  
about the meaning of the Musqueam Declaration is only relevant if it is true;  
therefore, it should not be admitted for non-hearsay purposes.  
[170] Mr. Grant was not directly involved in the Musqueam Declaration. He was told  
about the Musqueam Declaration by his mother, Aunty Edna and “a few other ladies”  
that he called aunties who were involved in it and would talk about it when they  
visited. Musqueam seeks to tender the Musqueam Declaration for non-hearsay  
purposes of what Musqueam believed its territory to be. I will not be asked to define  
Musqueam territory.  
[171] This evidence from Mr. Grant provides context in support of the admission of  
the Musqueam Declaration. The claim area sits within what he says Musqueam  
people believe its territory to be.  
[172] Objection 2 is denied. I will allow this evidence as Larry Grant refers to the  
Musqueam Declaration to show that his family's oral history is consistent with  
Musqueam's long-term understanding of where Musqueam territory is. His testimony  
about the Musqueam Declaration is admissible for non-hearsay purposes.  
 
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Canoe Journey (Objection 20 Day 360 Time 10:43:09 10:43:16)  
[173] The plaintiffs object to Larry Grant testifying that Canoe Journey events are a  
revitalization of things that happened prior to colonization. The plaintiffs submit that  
even if canoe songs were sung in pre-colonial times, it does not follow that the  
practices of Canoe Journeys are an accurate representation of pre-colonial  
practices.  
[174] Mr. Grant gave evidence that his mother and Dominic Point told him that  
people sang songs when they travelled so that others would recognize the songs  
and no one would bother them for moving into the area they normally harvested in.  
He testified that the songs are still used today to identify what community one is  
from. In the contemporary Canoe Journeys, the participants sing new songs or  
songs revived from the past as they enter another community’s water. He has been  
on the shore when different Canoe Journey events have taken place.  
[175] I find this passage is admissible. Larry Grant can testify about both the oral  
history he was told by his mother and Dominic Point, and the modern practice that  
he has observed.  
[176] The Schedule B Objection at pp. 93-94 is denied.  
No known source (Objections, 3, 7 and 17)  
[177] The plaintiffs submit that identifying a source for oral history is an important  
factor in establishing threshold reliability. The plaintiffs object to Larry Grant  
providing oral history evidence where he cannot remember a source.  
[178] Musqueam submits that there is enough evidence to support the threshold  
reliability of Mr. Grant’s evidence even where he does not recall a source. He has  
identified his sources for most of his oral history. He learned from his mother, Agnes  
Grant, and his grandmother, Mary Grant, another known knowledge holder, and  
from his great uncle, Frank Charlie who also held the name sʔəyəɬəq. He also  
gained knowledge from a number of aunties, including his mother’s sisters, Edna  
   
Cowichan Tribes v. Canada (Attorney General)  
Page 54  
Grant and Margaret Grant in addition to other aunties including Mary Jane Campbell,  
and Dominic Point’s sisters, Mabel Point and Bertha Point.  
[179] Musqueam submits that on the few occasions where he cannot recall a  
source, this should go to the weight of the evidence and not its admissibility.  
[180] Where Larry Grant cannot remember the source of his oral history, the court  
will have to determine whether there are other ways to assess the threshold  
reliability of the evidence. For example, Mr. Grant testified that someone told him  
that the lower Fraser River area used to be underwater. He cannot remember the  
source, but knows the story is about before the land was formed. Another example is  
that an unknown relative told him when he came to Stz'uminus that he had come  
home. While the absence of a source is not an absolute bar to admissibility, it is a  
significant factor is assessing threshold reliability.  
[181] Mr. Grant is a well-respected knowledge holder in the Musqueam community  
who gained extensive oral history through the teachings of his mother and other  
elders. I observed him to be an earnest and careful witness who was cautious only  
to give evidence of the knowledge that he holds. These are factors in assessing the  
threshold reliability of his evidence generally. I will assess the specific objections to  
determine whether there are sufficient indicia of threshold reliability of the oral  
history where a source is not stated. The inability to attribute certain knowledge to a  
specific source is not disqualifying: Ahousaht at para. 17. In my view, this is  
especially so given Larry Grant’s qualifications as an oral historian and knowledge  
holder.  
Objection 3 Day 357 Times 2:48:21 2:48:35 and 2:49:0821 2:51:28  
threshold reliability; relevance; lack of disclosure (trial fairness)  
(a)  
(b)  
2:48:21 2:48:35  
2:49:08 2: 51:28  
[182] Larry Grant testified about how longhouses in Musqueam were used for  
ceremonies when he was a child. He spoke of witnessing initiations into spirit  
dancing and the mask dances. The plaintiffs object to his testimony where no source  
     
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is stated on grounds that threshold reliability cannot be established. They also object  
on grounds of geographic irrelevance to the evidence that mask dances and other  
ceremonies were used for many, many generations and that initiation ceremonies  
were initiated across the border in Washington before there was a border.  
[183] Mr. Grant has personal experience as a mask dancer (sXʷay'Xʷ@y') for over  
20 years. He testified that sXʷay'Xʷ@y' family is very close to a societal structure as  
one can only dance the mask if one comes from the sXʷay'Xʷ@y' bloodline. He has  
also testified about his extended families between Vancouver Island, Musqueam,  
Sto:lo territory and Washington all having knowledge of who is connected to the  
society of the sXʷay'Xʷ@y'.  
[184] I am satisfied that Larry Grant has named several sources of his oral history  
of kinship ties and ceremony in his testimony generally. This evidence is about the  
interconnectedness of Musqueam and communities in what is now Washington. It is  
about kinship connections and ceremonial practice and Musqueam identity. It is not  
about use and occupation of land. This evidence is relevant, meets the test of  
threshold reliability and is admissible.  
Objection 7 Day 358 Time 10:22:36 10:24:37 threshold reliability;  
relevance; lack of disclosure (trial fairness)  
[185] This evidence is about the time depth of Larry Grant’s oral history. Elders  
have told him stories that go back before the peninsula was a solid mass and was a  
series of islands. He cannot recall exactly who told him that, but that is the length of  
time that he has an understanding of on the Fraser River estuary.  
[186] This is admissible oral history. Mr. Grant is a reliable knowledge holder. He  
has identified a number of his oral history sources. The plaintiffs’ submissions about  
his inability to connect this knowledge to a specific source are more appropriately  
made in relation to the weight of the evidence. I find that it meets the test for  
threshold reliability.  
 
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Objection 17 Day 360 Time 10:14:40 10:15:45 hearsay  
[187] The evidence about the greetings for Vancouver Island family members is  
relevant oral history about kinship ties that Larry Grant has. The fact that there is no  
source for this oral history does not disqualify the evidence if there are other indicia  
of reliability. For the reasons stated above, I find that there are sufficient indicia of  
reliability. Here, he identifies family members on Vancouver Island as the source of  
his evidence, but cannot recall which specific person was the source. Submissions  
about the lack of a source may be made with respect to the weight of this evidence  
at the end of the trial.  
Relevance (Objections 2, 3, 5, 9 and 13)  
[188] Larry Grant offered general oral history evidence relating to areas outside of  
the claim area. I have found that Musqueam’s pattern of land use and occupation  
outside of the claim area is not relevant. However, evidence about Musqueam  
identity, laws and customs, kinship ties and permissions and stewardship is relevant,  
including where it relates to areas outside of the claim area. To the extent that Mr.  
Grant’s testimony relates to this latter issue, it may be admissible. Objections 2, 3, 5  
and 13 have been dealt with above. I find these passages are relevant. The  
remaining relevance objection is Objection 9.  
Objection 9 Day 358 p. 8 Time 10:30:30 10:33:01 opinion; threshold  
reliability; relevance  
[189] In these passages, Larry Grant relays oral history evidence about  
̓
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səwqʷeqsən as a place where they begin drifting downriver”. He surmised that they  
were probably fishing when they were drifting downriver, and that they drifted  
downriver during salmon season. He received this oral history from the “old ladies”  
at St. Mungo cannery who talked about where their people were before the white  
man came.  
[190] Mr. Grant later explained that there is a little channel that is quite shallow that  
they would drift from, and “that’s a reference to how we fish in the river by drift  
fishing, drift-net fishing.” He said the old ladies at St. Mungo talked about the  
     
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different places around St. Mungo that Musqueam knew and did things from. The  
“old ladies” were Christine Charles and Lizzy Dan. There were others but Mr. Grant  
could not recall their names.  
[191] I find this evidence about the drifting place and the statement that Musqueam  
probably fished from there is admissible oral history evidence.  
OBJECTIONS TO MORGAN GUERIN’S EVIDENCE  
[192] The plaintiffs object to parts of Morgan Guerin’s evidence on multiple  
grounds. The plaintiffs say Mr. Guerin’s evidence lacks threshold reliability as it  
relates to timing, oral history transmitted to Mr. Guerin from Dominic Point, as well  
as in relation to specific evidence about Moses Johnny. The plaintiffs submit that  
some of Mr. Guerin’s testimony is inadmissible opinion evidence, and raise further  
objections on the ground of relevance.  
Threshold Reliability  
[193] Morgan Guerin is a Musqueam knowledge holder. He is a recognized and  
respected source of traditional knowledge and oral history within Musqueam. He  
holds knowledge of cultural practices, cultural teachings and Musqueam history. He  
learned about oral history and traditional knowledge from his father, uncles and  
aunts, grandparents and other respected and recognized knowledge holders  
including Dominic Point and Vincent Stogan Sr. The plaintiffs do not object to  
Mr. Guerin’s qualifications to give oral history or to his evidence about holding and  
transmission of oral history.  
[194] The plaintiffs do object to the threshold reliability of certain passages of  
Mr. Guerin’s evidence on grounds that he lacked oral history for the legally relevant  
time periods in this case. The plaintiffs’ other main threshold reliability objection is  
that Mr. Guerin’s oral history evidence from Dominic Point is contradicted by the  
Federal Court’s findings in Squamish Indian Band v. Canada, 2001 FCT 480  
[Mathias] about Mr. Point’s testimony in those proceedings.  
   
Cowichan Tribes v. Canada (Attorney General)  
Timing: relates to Objections 38, 41 and 69  
Page 58  
[195] The plaintiffs submit that Mr. Guerin’s oral history evidence related to the  
1790s through the 1800s lacks threshold reliability. Mr. Guerin acknowledged that he  
is not comfortable with the level of oral history that he holds for the period from  
colonization leading into the 1800s. Mr. Guerin testified as to disruptions caused by  
waves of plague affecting Indigenous peoples. He heard that it was a time of great  
sadness and he did not “poke and prod” his elders for oral history about that time  
period.  
[196] Musqueam submits that these objections take Mr. Guerin’s evidence out of  
context. In cross-examination, Mr. Guerin was asked about the Cowichan Nation,  
now descended into the plaintiff groups Cowichan Tribes, Stz'uminus, Halalt and  
Penelakut, and whether he had oral history about the Cowichan people fishing in the  
Fraser River starting in the 1800s. He said that he has some oral history about this  
but it is not as fulsome as some of the other oral history he holds.  
[197] Mr. Guerin has oral history from his father, as well as Dominic Point and other  
Musqueam elders who have told him that First Nations people from Vancouver  
Island did come over to fish in the Fraser River. Mr. Guerin does not hold oral history  
about people from Vancouver Island carrying house planks on their canoes in the  
1800s. He has some oral history about that happening pre-colonization.  
[198] I find the plaintiffs’ objection to Mr. Guerin’s evidence about the 1790s and  
1800s for lack of threshold reliability overreaches. Mr. Guerin has clarified the limits  
to his oral history in his testimony. I accept Musqueam’s submission that the fact that  
Mr. Guerin does not hold oral history specifically about the plaintiffs’ travel in the  
1790s and 1800s or about house planks in the 1800s does not mean that all of his  
oral history about that time period lacks threshold reliability.  
Objection 38 Day 365 p. 44 line 1 p. 45 line 28 relevance; threshold reliability  
[199] Mr. Guerin was asked what his knowledge is about the time of year people  
from Vancouver Island would come over to the south arm of the Fraser River. His  
   
Cowichan Tribes v. Canada (Attorney General)  
Page 59  
answer was when the salmon are in the river but he also gave some ancient history  
about when the south arm started to exist and when the kinship arrangements were  
set up. He cites his father, grandfather, Dominic Point and a lot of other elders as  
sources for this oral history.  
[200] I accept Musqueam’s submission that this oral history evidence is relevant to  
stewardship and Musqueam’s relationship with its lands, waters and resources in the  
territory. The reference to ancient times relates to when the kinship arrangements  
were first set up and that it extends back for generations before contact. This  
evidence does not relate to a fixed point in time. It relates to an indeterminate time  
period. This evidence is admissible.  
Objection 41 Day 365 p. 57 line 7 p. 58 line 40 relevance; threshold reliability  
[201] Mr. Guerin was asked to describe the teachings that he has received about  
the purpose of maintaining kinship ties. This evidence is relevant to kinship and also  
relates to an indeterminate time period. It is admissible oral history.  
Objection 69 Day 368 p. 9 lines 36 37 and p. 10 lines 1 3 threshold reliability  
[202] In this evidence, Mr. Guerin acknowledged the gaps in some of his oral  
history. I see no reason to exclude this evidence.  
Mathias Decision (Objections 25, 53, 60, 62, 63, 64, 65,66, 67)  
[203] The plaintiffs object to Mr. Guerin’s testimony on the grounds that it  
contradicts the Federal Court’s findings in Mathias. Counsel for the plaintiffs  
cross-examined Mr. Guerin on findings of fact that Justice Simpson made about the  
sworn testimony of Dominic Point. Mr. Point was a highly respected Musqueam  
knowledge holder and the source of much of Mr. Guerin’s oral history. The plaintiffs  
submit that Mr. Guerin’s oral history from Mr. Point lacks threshold reliability where it  
is inconsistent with the findings of Justice Simpson in Mathias. At para. 168, Justice  
Simpson found that Mr. Point was not comfortable with the word “permission” to  
describe Fraser River access. The plaintiffs submit that Mr. Point’s evidence under  
oath and considered by a judge is the best evidence on this point, and Mr. Guerin’s  
     
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hearsay evidence about Mr. Point’s opinion is not as reliable as Mr. Point’s own  
testimony. Justice Simpson found that, based on Mr. Point’s evidence, it was  
unlikely that Musqueam “actually or notionally controlled access to the Fraser River”:  
para. 169. Justice Simpson found that Dominic Point was reluctant to adopt the term  
“permission” when speaking of Musqueam’s relationship with other groups, referring  
instead to a “gentlemen’s agreement” or other groups “reporting” to Musqueam, if  
they were present. Justice Simpson found that Mr. Point’s evidence about groups  
“reporting” to Musqueam did not suggest Musqueam had control over fishing at the  
Fraser River.  
[204] Counsel for the plaintiffs rely on a number of authorities, including Toronto  
(City) v. C.U.P.E. Local 79, 2003 SCC 63; British Columbia (Attorney General) v.  
Malik, 2011 SCC 18; and Bank of China v. Fan, 2014 BCSC 2043, for the  
proposition that the Federal Court’s findings in Mathias are admissible evidence and  
could be considered in assessing the threshold reliability of Mr. Guerin’s oral history  
evidence.  
[205] In response, Musqueam submits that the court is not bound by previous &n