Cowichan Tribes v Canada

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)

Page 2

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)

Page 3

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)

Page 4

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

Cowichan Tribes v. Canada (Attorney General)

Page 5

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)

Page 6

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)

Page 7

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)

Page 8

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

Cowichan Tribes v. Canada (Attorney General)

Page 9

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

Cowichan Tribes v. Canada (Attorney General)

Page 10

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

Cowichan Tribes v. Canada (Attorney General)

Page 11

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.

Cowichan Tribes v. Canada (Attorney General)

Page 12

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.

Cowichan Tribes v. Canada (Attorney General)

Page 13

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)

Page 14

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 witnesses’ circumstances

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

Plaintiffs’ submissions

[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.

Cowichan Tribes v. Canada (Attorney General)

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)

Page 32

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,

Cowichan Tribes v. Canada (Attorney General)

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 hənqəminəm-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

Cowichan Tribes v. Canada (Attorney General)

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

Cowichan Tribes v. Canada (Attorney General)

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

Cowichan Tribes v. Canada (Attorney General)

Page 44

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.

Cowichan Tribes v. Canada (Attorney General)

Page 45

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.

̓

[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

Cowichan Tribes v. Canada (Attorney General)

Page 46

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

Cowichan Tribes v. Canada (Attorney General)

Page 47

“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

Cowichan Tribes v. Canada (Attorney General)

Page 48

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

̓

]

h@n’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

Cowichan Tribes v. Canada (Attorney General)

Page 49

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.

Cowichan Tribes v. Canada (Attorney General)

Page 50

[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 “shxʷn@wilh” almost

identically to how h@n’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 h@n’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

h@n’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 h@n’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 h@n’q’@min’@m’ is based on his personal observations

and experience. h@n’q’@min’@m’ was his first language. He stopped speaking

h@n’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 h@n’q’@min’@m’ at Musqueam. When the h@n’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. h@n’q’@min’@m’) and Island (i.e. hul’qumi’num) languages,

because they are dialects of the same language.

Cowichan Tribes v. Canada (Attorney General)

Page 51

[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 h@n’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 h@n’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 h@n’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.

Cowichan Tribes v. Canada (Attorney General)

Page 52

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.

Cowichan Tribes v. Canada (Attorney General)

Page 53

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

Cowichan Tribes v. Canada (Attorney General)

Page 55

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.

Cowichan Tribes v. Canada (Attorney General)

Page 56

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

̓

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

Cowichan Tribes v. Canada (Attorney General)

Page 57

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

Cowichan Tribes v. Canada (Attorney General)

Page 60

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

findings of fact. Mathias is not properly before the court and is inadmissible hearsay

evidence and opinion which should not be used to assess the threshold reliability of

Mr. Guerin’s evidence. Further, Musqueam submits that oral history evidence should

not be circumscribed by another court’s finding about the oral history evidence that it

heard. Counsel for Musqueam say that the court’s findings in Mathias were made in

the context of different parties, different issues, and absent additional information

applicable to this case, although they acknowledge it concerned the same practice:

namely, fishing at the Fraser River.

[206] The decision in Malik is distinguishable from the present case. It was an

appeal of an interlocutory application for an Anton Pillar order where the same

parties had previously appeared or participated in a Rowbotham proceeding to

assess Mr. Malik’s financial resources. The examination of Mr. Malik’s financial

resources and his ability to pay his legal fees was again in issue in the Anton Pillar

Cowichan Tribes v. Canada (Attorney General)

Page 61

application. The Supreme Court of Canada held at para. 7 that a judgment in a prior

civil or criminal case is admissible (if considered relevant by the chambers judge) as

evidence in subsequent interlocutory proceedings as proof of its findings and

conclusions, provided the parties are the same or were themselves participants in

the prior proceedings on similar or related issues.

[207] In Malik at paras. 46-47 Binnie J. said that whether a prior civil or criminal

decision is admissible in trials on the merits will depend on the purpose for which the

prior decision is put forward and the use sought to be made of its findings. The

weight and significance to be given a prior decision will depend on the

circumstances of each case including the identity of the participants, the similarity of

issues, the nature of the earlier proceeding and the opportunity given to the

prejudiced party to contest it.

[208] In this case most of the parties are different than the parties in Mathias. One

witness is the same and one issue is similar but not identical. The plaintiffs were not

parties in Mathias. The question of whether the plaintiffs fished the south arm, and if

so, whether they fished with Musqueam’s permission, was not before the court. The

common factual issue is whether First Nations groups accessed resources in the

Fraser River with permission from Musqueam. In Mathias, the inquiry concerned

occupation of the north arm of the Fraser River and the False Creek site and

whether the area was controlled by Musqueam such that others were required to

obtain permission for its use. The court also considered the general nature of the

relationships between Musqueam and other groups in the Fraser River area as it

related to control of land and resources, specifically, fish. In this case, I am

concerned with the relationship between the plaintiffs and Musqueam at Lulu Island

and whether the plaintiffs fished the south arm, and if so, whether they did so with

Musqueam’s permission.

[209] Justice Simpson’s findings of fact were put to Mr. Guerin in cross-examination

but the decision in Mathias is not in evidence. The plaintiffs submit that I should take

judicial notice of its findings. I find it would be premature to do so at this stage.

Cowichan Tribes v. Canada (Attorney General)

Page 62

Judicial notice means that I would dispense with the need for evidence of a

particular fact because that fact has been proved through the findings of another

court, or the other court’s findings are at least prima facie proof of a fact.

[210] I cannot make that assessment at this stage nor has it been fully argued

before me. I am only considering whether Justice Simpson’s findings in Mathias

have undermined Mr. Guerin’s oral history to such an extent that I could find it lacks

threshold reliability.

[211] I do not consider the prior findings in Mathias to undermine the threshold

reliability of Mr. Guerin’s evidence. I will not reject his evidence on this basis. Rather,

his testimony ought to be considered in light of all of the evidence at the end of trial,

and with regard to any submissions the parties might make about the impact of the

court’s findings in Mathias.

[212] In my review of the following objections, I have ruled that Mr. Guerin’s

evidence that differs from the findings of Justice Simpson is admissible. Where Mr.

Guerin challenges the correctness of Justice Simpson’s conclusions, I have ruled

that this is inadmissible opinion evidence.

Objection 25 Day 363 p. 13 lines 9 – 36 lack of disclosure (trial fairness);

relevance; threshold reliability; opinion

[213] The plaintiffs object to this evidence on various grounds. They submit that

Mr. Guerin’s evidence of warriors being dispatched to meet those coming into the

territory is about the Point Grey area and not the south arm of the Fraser River or

Lulu Island. The source of Mr. Guerin’s oral history is Dominic Point and Vincent

Stogan. Dominic Point testified in the Mathias case and the plaintiffs submit that this

testimony goes beyond what Dominic Point testified to under oath in that case: see

Mathias at para. 173.

[214] Musqueam submits that this evidence is relevant to Musqueam stewardship

of Musqueam territory, sharing, kinship protocol and permission. Although the

fortified village site was at Point Grey which is outside the claim area, the practice of

Cowichan Tribes v. Canada (Attorney General)

Page 63

dispatching warriors to meet those coming into the territory was not confined to Point

Grey.

[215] This evidence is admissible. It is relevant to Musqueam’s identity,

stewardship of their territory and sharing of resources, kinship protocol and

permission. This evidence cannot be limited to the claim area. To do so would

unduly restrict Musqueam oral history. The extent to which this evidence may have

application to the south arm is a matter to be determined at the end of the trial. As

above, I have determined that the findings of Justice Simpson do not undermine the

threshold reliability of this evidence.

Objection 53 Day 366 p. 56 lines 27 – 47 opinion; threshold reliability

[216] Mr. Guerin was asked if the reporting of First Nations people to Musqueam is

part of an agreement to do so to show respect to Musqueam. He agreed with the

proposition and provided further context. He explained that First Nations coming in

to fish who already had a kinship agreement with Musqueam would check in with

Musqueam out of respect, and to make sure that they could still fish and there had

not been any changes. This evidence is admissible.

Objection 60 Day 366 p. 69 line 1 – p. 70 line 47 relevance; lack of disclosure

(trial fairness); opinion; threshold reliability

[217] A proposition was put to Mr. Guerin that any reporting to the Musqueam in

pre-colonial times at the mouth of the Fraser River was courteous behaviour by

friendly tribes at the site of the Musqueam winter village, but was optional and did

not indicate control of the river.

[218] Mr. Guerin testified that it was not optional. There was respect and courtesy

but it was a necessity to make sure kindship arrangements were being executed.

Musqueam had the ability to steward. The arrangements did not require that it be at

the site of the winter village. His father, grandfather and grandmother, Dominic Point

and just about every elder at Musqueam gave him this oral history.

Cowichan Tribes v. Canada (Attorney General)

Page 64

[219] The plaintiffs submit that Mr. Guerin’s oral history teaching is in conflict with

Justice Simpson’s findings at para. 169 of Mathias. Mr. Guerin cited many sources

for this oral history teaching. As above, I find that it meets the test for threshold

reliability.

Objection 62 Day 367 p. 5 line 2 – p. 6 line 31; p. 9 line 5 – p. 10 line 11

threshold reliability; opinion; relevance

[220] The plaintiffs object to Mr. Guerin’s answer to the proposition arising from

para. 168 of Mathias that the protocol was more about reporting than seeking

permission. He explained that the concepts of reporting and seeking permission are

not contradictory. Once there is a kinship protocol in place and permission has been

granted, as long as the kinship connections have been maintained, a person only

has to report their presence. The report is to ensure that the permission is still in

place. A person did not have to go over the details of kinship every time the person

arrived. The purpose of the report was context dependent; it depended on who the

person was and when they arrived. If someone was “coming in cold”, the person was

not making a report but rather seeking permission.

[221] The plaintiffs submit that Mr. Guerin is giving his opinion on what Dominic

Point said or meant. They point to inconsistencies between this evidence and the

findings in Mathias. They challenge the credibility of Dominic Point and Mr. Guerin.

[222] Musqueam’s submissions attempt to explain possible reasons for the

inconsistencies between Dominic Point’s evidence in Mathias and his oral history

transmitted to Mr. Guerin. They refer to Dominic Point’s poor health and its impact

on how Dominic Point transmitted his oral history to the court in Mathias. These

submissions which seek to undermine the trial process in Mathias are of no

assistance. If the credibility of Dominic Point or Mr. Guerin is in issue, this can be

dealt with in closing argument.

[223] I find Mr. Guerin’s explanation for these inconsistencies is inadmissible

opinion evidence. The specific inadmissible passages are contained in the following

excerpts of the draft transcript:

Cowichan Tribes v. Canada (Attorney General)

Page 65

a)

b)

Day 367, p. 5, lines 32-35: “And it's in a way consistent. But it's very

much extracted from the fulsome context for this decision.”

Day 367, p. 6, lines 16-31:

A:

So, if we are looking at -- was not comfortable with the word

“report” from each year by the Squamish and Sechelt, now,

these are people who have long family kinship ties. He would

definitely change that word, and it's hard for me to speak for

him but from the oral history he's given me. If that was

someone coming in cold it wouldn't be a report. It would be a

permission.

Q:

A:

Right.

So, this is alluding back to those kinship ties and the

maintenance of those kinship ties in order to make sure they

stayed strong. So, there isn't a lie here but there's a lot of

context missing here in order to get a fulsome truth from there

[sic] excerpt.

c)

Day 367, p. 9, line 15 to p. 10, line 11.

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)

[224] The plaintiffs object to Mr. Guerin’s continued efforts to interpret what Dominic

Point meant in Mathias. This is inadmissible opinion evidence which does not assist

the Court.

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)

[225] Mr. Guerin was again asked about Dominic Point’s evidence in Mathias. I find

the following passages are inadmissible opinion evidence about the interpretation of

Dominic Point’s evidence:

a)

b)

c)

Day 367, p. 13, lines 24-47

Day 367, p. 14, lines 1-6

Day 367, p. 14, lines 27-30

[226] The remaining passages are admissible oral history.

Cowichan Tribes v. Canada (Attorney General)

Page 66

Objection 65 Day 367 p. 15 line 9 – p. 17 line 34 threshold reliability; opinion;

relevance; lack of disclosure (trial fairness)

[227] Mr. Guerin was cross-examined about a passage at para. 168 of Mathias

where Justice Simpson concluded that if Musqueam were not present at their

villages near the mouth of the Fraser River when other tribes, such as the

Squamish, arrived, the other tribes continued up the river without reporting.

[228] Mr. Guerin answered that it depended on where the mouth of the river was.

Musqueam always made their home at the mouth. His oral history is that visitors

would carry on up the river until they ran into a Musqueam settlement and then they

would do their reporting. These are families reporting to their receiving host family

which means if no one is at the mouth they will continue up until they find the host

family.

[229] This is oral history evidence which meets the test of threshold reliability. It is

relevant to stewardship of Musqueam territory, sharing, kinship protocol and

permission.

Objection 56 Day 366 p. 59 line 45 – p. 61 line 4 relevance; lack of disclosure

(trial fairness)

[230] Mr. Guerin was asked whether there were times when Musqueam was not at

the village at the mouth of the Fraser River when other tribes arrived, and whether

those tribes would continue up the river without reporting. This is the same subject

matter set out in Objection 65, above.

[231] This relates to a passage from Justice Simpson’s finding at para. 168 of

Mathias. Mr. Guerin responded that his oral history is that Musqueam was always at

the mouth of the Fraser River and they have always had the responsibility to

stewardship. If the land or village was under water, Musqueam would move up river

to dry land. There was always someone waiting at the mouth, wherever the mouth of

the river was. His sources for that teaching are Dominic Point, his grandfather and

almost every Musqueam elder.

Cowichan Tribes v. Canada (Attorney General)

Page 67

[232] As I found in Objection 65, this evidence is relevant to stewardship of

Musqueam territory, sharing, kinship protocol and permission.

Objection 66 Day 367 p. 17 line 35 – p. 23 line 13 threshold reliability; opinion;

relevance; lack of disclosure (trial fairness)

[233] Mr. Guerin was cross-examined on para. 169 of Mathias where Justice

Simpson found that it was unlikely that the Musqueam people either actually or

notionally controlled access to the Fraser River or had the practical ability to exclude

others.

[234] Mr. Guerin’s answers are comprised of opinion evidence and are an unhelpful

expression of his disagreement with the findings of the Federal Court. The following

passages are inadmissible:

a)

b)

c)

d)

e)

Day 367, p. 18, lines 32-34

Day 367, p. 18, lines 37-42

Day 367, p. 21, lines 11-18

Day 367, p. 22, lines 11-12

Day 367, p. 22, lines 45-47

[235] Mr. Guerin’s testimony that the findings put to him are not consistent with his

oral history teachings is admissible. Accordingly, Mr. Guerin’s statement on Day

367, p. 18 “so I have to disagree with this whole statement based on the fact that it

isn’t part of my oral history” is admissible.

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)

[236] Mr. Guerin was questioned about para. 173 of the Mathias decision. For most

of the answer, he gave his own oral history. I find that one sentence, found on p. 24

at lines 31-33 of the draft transcript, is a statement of opinion about the findings in

Mathias and is inadmissible.

Cowichan Tribes v. Canada (Attorney General)

Page 68

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)

[237] This objection involves a large number of passages. Some passages, where

the plaintiffs’ primary objection was not related to opinion evidence, have been

addressed under different categories. Objections 25, 53, 60, 62, 63, 64, 66 and 67

were dealt with above. I will deal with Objections 42, 43, and 47 in relation to the oral

history about Moses Johnny and threshold reliability. I will deal with Objection 51 in

relation to relevance.

[238] I have addressed the plaintiffs’ general objection to oral history containing

interpretation and opinion above. Belief and interpretation are features of oral history

evidence and, provided the criteria of necessity and threshold reliability are met, are

admissible as part of oral history.

[239] Mr. Guerin testified that oral history has two main components: history and

context. Transmission of oral history and context may be aided by explanation,

analogy or interpretation but these elements are not oral history. They are

interpretive aids.

[240] Musqueam submits that oral history transmitted from generation to generation

includes both core information or true history and context forming part of the history.

Where Mr. Guerin’s evidence provides explanation, analogy or interpretation about

oral history, it is admissible to explain the nature and purpose of the teachings

conveyed in the evidence.

[241] Mr. Guerin makes a clear distinction between true history and context. The

plaintiffs interpret this evidence to mean that true history is admissible and the

context is inadmissible opinion. I interpret it to mean that the context is part of oral

history and is admissible to explain the true history. It would be an error to strip the

oral history of its meaning.

[242] I have found that oral history includes interpretation, inference and context. I

accept Musqueam’s submission that where Mr. Guerin provides explanation,

Cowichan Tribes v. Canada (Attorney General)

Page 69

analogy or interpretation about oral history, it is not inadmissible opinion but part of

the oral history evidence which serves to explain the teaching.

Objection 27 Day 365 p. 12 line 44 – p.15 line 15 improper form of questions;

lack of disclosure (trial fairness); relevance; opinion

[243] This question relates to the responsibilities and rights of Musqueam in relation

to the Fraser River generally. Mr. Guerin testifies about stewardship of the land and

the water and the cultural importance of the resources that come from the river. He

was also asked about Musqueam people’s reputation in the region historically. He

speaks of the Musqueam warrior people being a component of Musqueam. He again

refers to the fortified village built to train warriors located near the Museum of

Anthropology at the University of British Columbia.

[244] This evidence is admissible. It is oral history about the identity of Musqueam

people and should not be restricted in time or geography. It is not opinion. The

question is not improper.

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

[245] This question relates to whether people from outside of the area had to have

a reason or a basis for being present in the territory where Musqueam was

exercising its stewardship. Mr. Guerin gives oral history evidence taught to him by

his father, grandfather and grandmother, Dominic Point, Vincent Stogan and many

other Musqueam elders. This oral history relates to Musqueam identity. It is relevant,

meets the test of threshold reliability and is admissible. The question is not improper.

[246] As above, I have determined that the findings in Mathias do not undermine

the threshold reliability of this evidence.

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

[247] Mr. Guerin was asked about his oral history knowledge around Musqueam

governance and people coming into the territory. He was asked about Musqueam

practices that relate to governance and stewardship over the territory. He agreed

Cowichan Tribes v. Canada (Attorney General)

Page 70

that he had oral history about these practices and identified his sources as his

father, grandfather and Dominic Point. His oral history is that Musqueam people

have always been at the mouth of the river because of salmon stock. He spoke of

stewardship, respect for mother earth and the fish. He testified about how

stewardship turns into a responsibility. He spoke of abundance, the ability to share

and the importance of kinship ties. He also gave evidence of hosting responsibilities

using some modern analogies to illustrate the point.

[248] This is relevant oral history about the identity of Musqueam peoples. It meets

the test for threshold reliability and is admissible. The illustrations are not opinion but

are a modern-day explanation of a core teaching in Musqueam culture.

Objection 30 Day 365 p. 26 line 16 – p.27 line 12 opinion

and

Objection 39 Day 365 p. 48 line 15 – p. 52 line 19 relevance; threshold

reliability; opinion p. 50 lines 2 – 12

[249] Mr. Guerin was asked how kinship connections were maintained in practice.

His answer is connected to Objections 29 and 31.

[250] This evidence speaks to the meanings and understanding of kinship

connections and the modern practice of recognizing kinship. Mr. Guerin appears to

give a hypothetical example of the application of kinship ties in modern-day practice.

This evidence is an illustration or analogy to explain the concept and is not to be

taken literally. I have found that inferences and interpretation made by oral historians

of their knowledge, observations and experience are part of oral history.

[251] The line between interpretation that is part of an oral history and the drawing

of inferences that are impermissible and distinct from the oral history conveyed

depends on the nature of the evidence. This evidence is admissible for a limited

purpose. It is not literal evidence of what has actually occurred in Mr. Guerin’s life

but a figurative example to explain an oral history concept.

Cowichan Tribes v. Canada (Attorney General)

Page 71

Objection 31 Day 365 p. 30 line 26 – p. 31 line 33 lack of disclosure (trial

fairness); relevance; opinion

[252] Mr. Guerin was asked about the expectation of conduct of a host or a guest in

another’s territory. He described what he knows to be acceptable practice using an

illustration of visiting grandma’s house.

[253] As with the previous objection, this evidence is admissible for the limited

purpose of illustrating an oral history teaching.

Objection 32 Day 365 p. 31 line 34 – p. 33 line 16 improper form of question;

opinion; lack of disclosure (trial fairness); relevance

[254] Mr. Guerin was asked about the ways that key principles he has discussed

were generally enforced. The question is not leading nor is it improper.

[255] He testified about individual responsibility and how one’s conduct reflects on

one’s family. The act of shaming keeps people in check. He gave a hypothetical

example of hunting a moose out of season in another peoples’ territory and ignoring

his teachings and the shame that would cause his family.

[256] I find the evidence that rules are enforced by families through their

expectation of certain behaviour and a desire to not shame one’s family is an

admissible illustration of how cultural practices are enforced.

[257] The example of hunting moose out of season is not evidence of an actual

event but is an illustration and is admissible for a limited purpose.

Objection 33 Day 365 p. 33 line 17 – p. 34 line 6 improper form of question;

opinion

[258] Mr. Guerin was asked if he has oral history about the basis on which people

from other Coast Salish communities, including from Vancouver Island, would have

been legitimately allowed to be on the south arm of the Fraser River and to access

resources. The question, which first references Mr. Guerin’s previous evidence that

there must be a basis for people from outside to be present in Musqueam areas, is

not improper.

Cowichan Tribes v. Canada (Attorney General)

Page 72

[259] His answer is that it relates to kinship ties. Mr. Guerin provides his source for

this evidence.

[260] This not opinion evidence. It is admissible oral history evidence related to

Musqueam pleadings of kinship, resource sharing, protocol and permission.

Objection 34 Day 365 p. 38 lines 12 – 37 improper form of question; lack of

disclosure; relevance; opinion

[261] Mr. Guerin was asked if the kinship arrangement itself involves an

understanding or practice around accessing resources in different territories.

[262] He gave an example of the shortage of elk in Musqueam territory and how, if

he wished to feed his family this food, he would have to ask his kin if he could hunt

in their territory.

[263] This is an illustration used to explain how resource sharing works in

Musqueam culture. He has not given evidence of the cultural practice of the people

from another territory. This evidence is admissible for this limited purpose. The

question is not improper.

Objection 35 Day 365 p. 38 line 38 – p. 39 line12 improper form of question;

lack of disclosure; relevance; opinion; threshold reliability

[264] Mr. Guerin was asked if he has oral history of resource sharing historically.

His oral history tells him that Musqueam territory was one of great bounty so

Musqueam had a responsibility to share it and to steward it.

[265] This general statement of oral history evidence is relevant to Musqueam

stewardship of its territory and sharing of resources which should not be restricted to

the claim area or a point in time. It is not opinion evidence but an explanation of a

cultural concept.

[266] There are some limitations in Mr. Guerin’s oral history about the 1790s and

1800s but that does not mean that his oral history about that time period lacks

threshold reliability. This evidence is admissible.

Cowichan Tribes v. Canada (Attorney General)

Page 73

Objection 36 Day 365 p. 40 line 41 – p. 42 line11; p. 46 line 45 – p. 47 line 40

threshold reliability; opinion

[267] Mr. Guerin was asked if he had teachings about whether a historical fishing

protocol was related to a particular geographic area. He answered that protocol did

not just relate to fishing and it would not be geographically specific. Protocol could

not be linked to a specific site. The kinship arrangements were between families not

between nations. The host acts as the guide and finds the right location. The host

has a responsibility to the greater community.

[268] This is an explanation of a cultural practice. Mr. Guerin can give general oral

history about the 1790-1800s. It is not opinion. It is admissible.

Objection 37 Day 365 p. 42 line 15 – p. 43 line 47 improper form of question;

opinion

[269] Mr. Guerin was asked to explain his understanding of the relationship that

resulted between people who were engaged in a kinship protocol. In his answer

Mr. Guerin states his understanding of the intention of protocol. He recalls his

teachings of how to conduct himself when he goes to see family in another territory.

He explains the benefit of working out the protocol so one knows what to expect

when one gets there. He used the illustration of going to grandma’s house again.

These family gatherings are a time of sharing stories.

[270] I find the evidence is an explanation of the underlying intention of a cultural

practice. Explanation and interpretation from oral historians about their knowledge,

observations and experience are part of oral history.

[271] This evidence is admissible for a limited purpose. It is not literal evidence of

what has actually occurred in Mr. Guerin’s life but a figurative example given by Mr.

Guerin to explain an oral history concept. The question is not improper.

Objection 40 Day 365 p. 56 line 32 – p. 57 line 2 improper form of question;

opinion; relevance; threshold reliability

[272] Mr. Guerin was asked about the reason other Coast Salish people from

Vancouver Island would come to Musqueam territory. The plaintiffs submit that this

Cowichan Tribes v. Canada (Attorney General)

Page 74

question calls for an opinion. In his answer, Mr. Guerin refers to kinship ties and

keeping them tight. The question is not improper.

[273] This oral history speaks to a cultural practice and is admissible. It is not

opinion.

Objection 46 Day 366 p. 3 line 47 – p. 4 line 4 opinion

[274] Mr. Guerin testified about travelling with his father and being taught about

kinship connections. Mr. Guerin testified that “It was a sense of place in order to

make sure that the first teaching was cemented”. Although his evidence lacks some

clarity, it is not opinion evidence and submissions about the meaning of his evidence

are more properly made at the end of trial.

[275] I see no reason to exclude this evidence.

Objection 48 Day 366 p. 26 lines 13 – 39;

p. 27 lines 1 – 6, lines 17 – 20 and line 33 – p. 28 line 22;

p. 28 line 44 – p. 29 line 15;

p. 29 lines 28 – 33;

p. 30 line 13 – p. 31 line 30;

p. 42 line 33 – p. 43 line 40;

p. 43 line 47 – p. 47 line 24;

p. 44 line 44 – p. 45 line 1 lack of disclosure (trial fairness); opinion

[276] Mr. Guerin testified about the modern protocol requests process in these

numerous pinpoint objections. He tied the current protocol requests to his oral

history teachings about kinship and sharing. I do not agree that this is opinion

evidence. Mr. Guerin is giving evidence from his personal experience.

Cowichan Tribes v. Canada (Attorney General)

Page 75

[277] The plaintiffs have objected to Musqueam Fisheries Commission evidence

being led because they did not have disclosure of Musqueam Fisheries Commission

meeting minutes. Mr. Guerin’s evidence is far more general and does not relate to a

specific protocol request. It relates primarily to a way of thinking. I can not see how

the plaintiffs’ right to a fair trial could be prejudiced by the admission of this

evidence.

[278] This evidence is admissible.

Objection 49 Day 366 p. 32 lines 25 – 26 and p. 38 lines 19 – 24 opinion;

threshold reliability

[279] Mr. Guerin testified about losing people on the river and how the river must be

respected. This is part of his oral history teaching and his personal experience. It is

not opinion evidence and does not lack threshold reliability. This evidence is

admissible.

Objection 51 Day 366 p. 45 lines 5 – 39 threshold reliability; relevance; opinion

[280] Mr. Guerin testified about the modern continuation of the stewardship

teachings he has learned. The question was framed around practices “today” but Mr.

Guerin’s evidence in response speaks to a continuity of stewardship teachings over

time. This evidence is about modern practices informed by past stewardship

teachings. It is admissible.

Objection 55 Day 366 p. 58 lines 34 – 43; p. 59 lines 4 – 11 and lines 16 – 22

opinion

[281] Mr. Guerin was asked whether, according to oral history, anyone was ever

refused entry in circumstances where there was a protocol or a gentleman’s

agreement with family or friendly nations. Mr. Guerin clarified that kinship

agreements were between families and not between nations pre-colonization.

Protocol was enforced by respect which stopped the need for repelling families

requesting entry. Enforcement by warriors was the “last-ditch” approach. He

identified his source as Dominic Point. I find this to be admissible oral history and not

opinion.

Cowichan Tribes v. Canada (Attorney General)

Page 76

Objection 58 Day 366 p. 67 line 38 – p. 68 line 35 opinion

[282] Plaintiffs’ counsel suggested to Mr. Guerin that, given the numbers of other

First Nations accessing the Fraser River in pre-colonial times compared to the

number of Musqueam people who were there, Musqueam did not have the practical

ability to exclude others or the power to require them to ask permission or identify

themselves. Mr. Guerin does not agree with the premise that relative numbers

mattered. There was a kinship protocol that kept the peace in the territory rather

than the use of military might.

[283] This evidence is Mr. Guerin’s oral history teachings and not opinion. It is

admissible.

Objection 59 Day 366 p. 68 lines 36 – 47 opinion; relevance

[284] The plaintiffs initially objected to the question and answer related to the

suggestion that in pre-colonial times Musqueam lacked the practical ability to

exclude others, grant permissions and require persons to identify themselves. Now,

the plaintiffs only object to Mr. Guerin’s evidence that he disagrees with counsel’s

statement because there is a lot of missing context. I agree with Musqueam that if

the question and answer are allowed, the reason for the answer must also be

admitted.

Objection 70 Day 368 p. 42 line 5 opinion

[285] Mr. Guerin commented on a passage from the Fort Langley journals and

stated it does not refresh any oral history that has been given to him. The words “this

is a very poor representation of both sides” is opinion and is not admissible.

Relevance: Geographic: Objections 25-29, 31, 32, 34, 35, 52, 54, 56, 57, and

71 – 75

[286] I have dealt with geographic relevance above. I agree with Musqueam’s

submission that its oral history about its legal system generally and the importance

of kinship ties and stewardship of resources cannot be restricted to the claim area.

Cowichan Tribes v. Canada (Attorney General)

Page 77

The stories and legends are not site specific and it would be artificial and overly

restrictive to so limit them.

[287] Evidence about Musqueam’s pattern of use and occupation of lands outside

the claim area is irrelevant. Having said that, I will need to assess the specific

objections because Musqueam’s presence at the mouth of the Fraser River prior to

the existence of Lulu Island may be relevant to the identity of the Musqueam people

and Musqueam’s sharing with kinship relations through protocol and permission on

the south arm pre-contact. It may also relate to the importance of fishing,

stewardship and fisheries management to Musqueam.

[288] Evidence of Musqueam’s stewardship of their territory includes stewardship of

the claim area which Musqueam claims is contained within its territory. It is

impossible and artificial to limit Musqueam oral history evidence to a claim area

defined by the plaintiffs. Musqueam’s Second Further Amended Response to Civil

Claim casts the net wider to include Lulu Island, which includes the claim area, and

the Fraser River Estuary.

[289] The plaintiffs seek to exclude all evidence related to Musqueam warriors

because Mr. Guerin referred to a lookout site that was outside of the claim area.

Mr. Guerin’s evidence is that the warriors moved throughout the territory. The

evidence is about a cultural practice related to permission and protocol and although

the example was site specific, the exercise of protecting the river was not.

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

[290] Counsel for Musqueam asked Mr. Guerin for his oral history about

Musqueam’s connection to territory and where they have lived since prior to

colonization. The plaintiffs submit that this evidence is irrelevant as not being tied to

the claim area. Mr. Guerin testified that Musqueam have always lived at the mouth

of the river and that the mouth has moved over the years and Musqueam have

moved with it. He speaks of the old village of qiqéyt which is near what is now the

Cowichan Tribes v. Canada (Attorney General)

Page 78

Delta side of the Alex Fraser Bridge. He testified about Musqueam’s relationship to

the river.

[291] This evidence is admissible as relevant to Musqueam identity and their

relationship to the Fraser River. It relates to para. 7 of Musqueam’s Second Further

Amended Response to Civil Claim which defines Aboriginal right to fish for food,

social and ceremonial purposes in the Fraser River estuary, which includes the three

channels of the Fraser River.

[292] This question about Musqueam’s identity is not an improper form of question.

[293] The oral history that Mr. Guerin gives in this passage relates to Musqueam

people long before contact and their long connection to the Fraser River. As stated

above, I am satisfied that Musqueam’s oral history evidence cannot be restricted to

a time period starting in 1790. This evidence is admissible.

[294] The evidence about the ancient village of qiqéyt at Day 365, p. 11, lines 11 to

17 is inadmissible. I ruled in the Discovery Ruling that Musqueam use and

occupation outside the claim area was not relevant, and I am not satisfied that this

evidence relates to a fact at issue in these proceedings.

Objection 52 Day 366 p. 45 line 40 – p. 47 line 29 relevance; lack of disclosure

(trial fairness)

[295] Mr. Guerin testified about his personal experience engaging in a kinship

protocol with Snuneymuxw relatives in relation to fishing in the Fraser River and

hunting in the Nanaimo area on Vancouver Island. The plaintiffs object to the

relevance of evidence of present-day practices which may have occurred after the

beginning of the trial, and on geographic relevance grounds, as the hunting took

place outside of the claim area.

[296] This evidence is about kinship, not territory. I see no reference to documents

that have not been disclosed. Mr. Guerin did not give a date for this experience and

so it will not be excluded for temporal irrelevance. It is admissible.

Cowichan Tribes v. Canada (Attorney General)

Page 79

Objection 54 Day 366 p. 57 lines 1 – 40; p. 58 lines 6 – 8 relevance; lack of

disclosure (trial fairness)

[297] Mr. Guerin testified that in his oral history there were occasions where

Musqueam refused entry to families of First Nations coming to fish in the Fraser

River. The plaintiffs object on the grounds of geographic relevance as the evidence

relates to the north arm of the Fraser River. The plaintiffs also submit that this

evidence is directly contradicted by Dominic Point’s evidence in Mathias. Mr. Guerin

said that Dominic Point told him that raiders from the north came to raid, and if they

did not pass the inquiry of whether they came in peace and had work to do in a good

way, Musqueam warriors would fight them off.

[298] This evidence of raiders from the north is not raised in Mathias. I find the

evidence meets the test of threshold reliability. The example used to explain the

practice relates to the north arm but I find it admissible as an illustration of kinship

practice.

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

[299] Mr. Guerin was asked if he has any information about the relative numbers of

Musqueam people accessing the Fraser River compared to other First Nations in

pre-colonial times. He testified that he does not have numbers as part of his oral

history. All he knows is that there were many Musqueam people there.

[300] The evidence that the plaintiffs object to is relevant to the existence of the

Musqueam people long before contact with Europeans, the continuity of Musqueam

presence at the mouth of the Fraser River, which includes the claim area, and the

time depth of Musqueam's oral history. Mr. Guerin testified that at the beginning of

time there were either only Musqueam or many more Musqueam than anyone else.

His source is Dominic Point who said that Musqueam started out with many, many

Musqueam people at the mouth and that the other people had not come over yet. He

said this was a long time ago before Richmond existed.

[301] This oral history evidence is relevant to the identity of the Musqueam people.

Cowichan Tribes v. Canada (Attorney General)

Page 80

Objection 71 Day 369 p. 11 lines 43 – 46 relevance; lack of disclosure (trial

fairness); threshold reliability

[302] An excerpt of the Fort Langley journals was read to Mr. Guerin. He was asked

if he has any oral history about a Musqueam camp on the Fraser River near the Pitt

River or the Coquitlam River. He answered that he has no knowledge of that.

[303] Mr. Guerin’s testimony, “so I know that there are many fishing camps which

have Musqueam people within and all over the territory, but the specific to that camp

is not my knowledge to carry”, at lines 43-46 is irrelevant and inadmissible because

it relates only to use and occupation of land outside of the claim area.

Objection 72 Day 369 p. 32 line 41 – p. 33 line 26 relevance; lack of disclosure

(trial fairness); opinion

[304] Mr. Guerin was asked about how the relationship between the north arm and

the south arm has changed over time as it relates to fishing. Mr. Guerin testified

about a time before the river had arms. The plaintiffs’ objection on the basis of

temporal relevance is denied.

[305] Mr. Guerin mentioned the village of qiqéyt which is evidence of Musqueam

use and occupation outside the claim area. The passage found on the draft

transcript for Day 369, p. 32, lines 43-47 and p. 33, line 1 is inadmissible.

[306] I agree with Musqueam that the balance of this oral history speaks to the

existence of the Musqueam people long before contact with Europeans, the

continuity of Musqueam presence at the mouth of the river, which includes the claim

area, and also the time depth of Musqueam's oral history. It is admissible.

Objection 73 Day 370 p. 12 lines 12 – 40 and lines 46 – 47 relevance; lack of

disclosure (trial fairness); threshold reliability

[307] The references to qiqéyt are geographically irrelevant and lines 12-30 of p. 12

are inadmissible.

Cowichan Tribes v. Canada (Attorney General)

Page 81

[308] The evidence of Musqueam moving down with the mouth of the river as the

land formed is admissible. Mr. Guerin’s testimony at p. 12, lines 26-28 “that doesn’t

mean they abandoned qiqéyt” is not admissible.

Objection 74 Day 370 p. 16 line 44 – p. 17 line 18 relevance; threshold

reliability; opinion

[309] This objection again relates to Mr. Guerin's testimony regarding a fortified

Point Grey village of warriors and the mouth of the river generally. It also relates to a

broad geography that includes Tsawwassen, Coquitlam and Kwantlen. The plaintiffs

say that it is not relevant and they did not get related disclosure.

[310] This is evidence of stewardship of the Fraser River and not about the location

of villages of other Indigenous groups. It is unclear what arm of the river the

testimony relates to. As it relates to shared stewardship of the river, it is admissible.

Objection 75 Day 370 p. 24 lines 25 – 33 relevance; lack of disclosure (trial

fairness)

[311] The question that precedes the objected to passage relates to oral history

that the Musqueam people had access to abundant salmon and sturgeon on the

north arm pre-colonization. Mr. Guerin's testimony relates to Sturgeon Bank and

qiqéyt, neither of which are on Lulu Island or the south arm.

[312] This evidence is not relevant and is not admissible.

Temporal Relevance Objections 26, 38, 48, 52, 56, 57, 72, 73 and 75

[313] Oral history evidence does not relate to a fixed point in time. Evidence of a

pre-existing legal system is relevant and necessary to gain a true picture of the

fishing and other practices relied on by the Musqueam.

[314] As above, I am satisfied that the evidence cannot be restricted to a time

period starting in 1790. I am also satisfied that limiting this modern expression

evidence to 2019 causes no prejudice to Musqueam and is fair to the plaintiffs.

Cowichan Tribes v. Canada (Attorney General)

Page 82

Objection 50 Day 366 p. 39 line 38 – p. 40 line 7 relevance

[315] Mr. Guerin testified about the floods in the summer of 2021. This evidence is

not relevant and is not admissible.

The Moses Johnny Objections

[316] A number of objections have been raised about Mr. Guerin’s oral history

evidence regarding his grandfather Moses Johnny of Penelakut asking Musqueam

people if he can fish. I have grouped these objections below.

Objection 42 Day 365 p. 59 lines 17 – 43 and p. 61 lines 14 – 21 threshold

reliability; opinion

[317] Mr. Guerin was asked about the kinship protocols in his own family. He spoke

of kinship ties with Penelakut that predated them having last names. He testified

about how to keep kinship ties alive with arranged marriages. This evidence of

family connection is not opinion. It is oral history of kinship ties.

[318] In the second part of the testimony that is objected to, Mr. Guerin said “he

used to come over and talk to the people in the Musqueam longhouses and talk to

them, ask, can I go fishing again?”

[319] The plaintiffs submit that Mr. Guerin is speculating about what Moses Johnny

spoke about when coming over and talking to the people in the Musqueam

longhouses. I find that there is evidence that he is repeating oral history he learned

from his father. This evidence is admissible.

Objection 68 Day 367 p. 43 lines 15 – 21 and Day 370 p. 38 line 23 – p. 39 line

30 opinion; relevance

[320] Mr. Guerin was asked what his father told him about Moses Johnny and he

recounted the conversation as close to verbatim as he could. In the first part of this

objected to answer, Mr. Guerin does not say that his father told him Moses Johnny

asked “can I go fishing” but rather he alluded to Moses Johnny seeking permission.

Mr. Guerin said that the message was that if a man as respected as Moses Johnny

can ask for that permission, you had better be living the same way.

Cowichan Tribes v. Canada (Attorney General)

Page 83

[321] In the second passage objected to, Mr. Guerin was cross-examined about

oral history his father conveyed about Moses Johnny when Mr. Guerin was about to

go hunting. In that oral history, Mr. Guerin’s father told him that you do not go into

somebody else’s territory and shoot up a bunch of deer: “You don’t know where it

came from. You’re bringing bad back home”. Mr. Guerin was asked to explain what

that meant. He explained what his protocol teachings were and how he was taught

to behave in someone else’s territory.

[322] This evidence is Mr. Guerin’s interpretation of what his father said. When

someone asks “can I go fishing”, it is logical to describe this as asking for permission

but that was not the word used by Mr. Guerin’s oral history sources. I have found

that interpretation is part of oral history. This evidence is admissible.

Objection 43 Day 365 p. 65 lines 31 – 37 opinion

[323] Mr. Guerin was asked who Moses Johnny would have spoken to in the

longhouse. He said it was the people who have the consensus of the family to say

“okay”. The plaintiffs say that this is inference and opinion. I do not find it to be

opinion but an explanation about who would be in the longhouse to receive the

inquiry. This evidence is admissible.

Objection 44 Day 365 p. 65 line 38 – p. 66 line 8 relevance; lack of disclosure

(trial fairness)

[324] Mr. Guerin continued to explain that the fact that Moses Johnny went to the

longhouse to be respectful about going into someone else’s house was consistent

with his understanding of the traditional protocol system. The plaintiffs submit that

this evidence relates to the north arm. I see no reference to the north arm in the

passage. I agree with Musqueam that this evidence is about how to conduct oneself

in someone else’s territory. These are teachings that he heard his entire life from his

parents and grandfather. This evidence is admissible.

Cowichan Tribes v. Canada (Attorney General)

Page 84

Objection 47 Day 366 p. 7 line 45 – p. 10 line 14 threshold reliability; relevance;

opinion; lack of disclosure (trial fairness)

[325] Mr. Guerin was asked what Moses Johnny asking to go fishing meant to

Mr. Guerin. His answer relayed his kinship and protocol teachings.

[326] In this answer, Mr. Guerin used the word “permission” for the first time. He

used it again on Day 367 in the passage objected to in Objection 68. This word was

not used in his recounting of the words used by Moses Johnny or Mr. Guerin’s

father. The plaintiffs submit that the word “permission” is Mr. Guerin’s interpretation

of what is being asked for. I agree. Mr. Guerin’s interpretation of his oral history is

that Moses Johnny was seeking permission.

[327] I have found that interpretation is part of the living oral history. This evidence

is admissible.

Objection 61 Day 366 p. 74 lines 8 – 14 hearsay

[328] Mr. Guerin was asked if he remembers discussing the Mathias case with

Dominic Point or Delbert Guerin. The question elicited hearsay. The evidence is not

admissible.

SCHEDULE B REPLY TO MORGAN GUERIN

[329] Musqueam has highlighted all of the evidence of Mr. Guerin that they rely on

as oral history evidence in Schedule “B” to its written submissions. The page

references below are to Musqueam’s Schedule “B”.

Day 363 p. 30 at 12:09:11 – 12:09:19

[330] The first objection is to a passage on Day 363 at 12:09:11 after Mr. Guerin

describes canoe journeys in modern times. The plaintiffs submit that the passage

where Mr. Guerin comments that this is a resurgence of those teachings and

protocol is opinion evidence.

[331] Musqueam submits that while Mr. Guerin may not have attributed the oral

history aspect of this evidence to an individual in this passage, he has provided

Cowichan Tribes v. Canada (Attorney General)

Page 85

sources of his oral history in the course of his testimony, including Dominic Point, his

grandfather, his father and other elders. A source does not need to be noted in every

single instance of an articulation of oral history.

[332] I agree. This evidence is admissible oral history.

Day 365 p. 122 at 2:21:32 – 2:21:38

[333] Mr. Guerin testified “he said when our family used to come over to come

fishing, somebody would be there waiting for them”.

[334] This is part of Mr. Guerin’s oral history about how to behave as a host. It is

admissible.

Day 366 pp. 146 – 147 at 10:24:48 – 10:25:16

[335] The next passage again relates to the modern expression of ancestral

teachings. It is admissible oral history.

Day 367 pp. 216 – 217 at 2:10:42 – 2:10:52

[336] Mr. Guerin conveyed what his father said to him during his teachings. He

testified that the words “in Musqueam” means Musqueam territory and it was

conveyed to him in the context of teachings from his father where he was not limiting

the geographical extent of Musqueam as a term to being IR2 or Musqueam reserve.

It is admissible oral history.

OBJECTIONS TO THE ORAL HISTORY EVIDENCE OF CHIEF SPARROW

[337] Chief Sparrow is the Chief of Musqueam Indian Band and has held elected

office in Musqueam government almost continuously since 1993. He had a

traditional upbringing. He grew up in the Musqueam community and has been active

in the longhouse. His grandfather, Ed Sparrow Sr., and other elders were significant

influences in his life. He has been involved in Musqueam fisheries management

since the early 1990s.

Cowichan Tribes v. Canada (Attorney General)

Page 86

[338] The plaintiffs say that Chief Sparrow is not an oral historian and they object to

all of his oral history evidence on that basis. Chief Sparrow testified that he is not an

expert in Musqueam oral history or in anything about the pre-contact period. He is

not knowledgeable about historical traditional fishing on the south arm of the Fraser

River or village sites on the south arm.

[339] Musqueam responds that one does not need to be an expert in oral history to

hold bodies of knowledge. Chief Sparrow spent a great deal of time with his paternal

grandfather, the late Ed Sparrow Sr. when he was growing up. Ed Sparrow Sr. was

known in the Musqueam community and broader Coast Salish Community as a

knowledge holder. His areas of knowledge were the sXʷay'Xʷ@y' mask, family

connections and Musqueam territory and history.

[340] Justice Vickers considered holding elected office and a traditional upbringing as

indicia of reliability for Chief Roger Williams’ evidence in William #2 2004 at para. 23:

[23]

I turn now to the evidence of the plaintiff, Chief Roger William. He is a

young man who is not recognized as an elder. He led a traditional life until, as

a young boy, he was taken away to residential school. He has not been able

to consistently lead a traditional life but there is no doubt he has done so

when the opportunity was available. More importantly, the people who taught

him legends, stories and traditional living were respected people in the

community. Some are no longer alive, others, like his mother, remain alive. I

cannot overlook the fact that he was an elected councillor and has been re-

elected four times as Chief of the Xeni Gwet’in. He is a well respected person

in his community.

[341] Chief Sparrow also knew and spent time with other respected elders, namely

Dominic Point, Vincent Stogan Sr., Willie Seymour Sr., Pete Seymour Sr., Joe

Becker and Ernie Campbell. These respected elders shared oral history with him. All

of these knowledge holders are now deceased.

[342] Chief Sparrow spent time with Dominic Point, fishing alongside him and

working with him in connection with the Musqueam Fisheries Commission. Dominic

Point was an elder advisor for the Musqueam Fisheries Commission.

[343] Vincent Stogan Sr. was a speaker and elder in the Musqueam community

who was known as a knowledge holder.

Cowichan Tribes v. Canada (Attorney General)

Page 87

[344] Chief Sparrow knew Chemainus Chief Peter Seymour Sr. well through mask

dancing and fishing.

[345] Willie Seymour Sr. was a respected speaker.

[346] Chief Ernie Campbell is Chief Sparrow’s father-in-law. He was a highly

respected Musqueam councillor and chief. Chief Sparrow relied on him as a

knowledge holder.

[347] The late Joe Becker was an influential person in Chief Sparrow’s life. Joe

Becker is a grandson of the late James Point. Joe Becker was a band councillor,

one term chief, Musqueam fisheries manager and heavily involved in the longhouse.

Chief Sparrow relied on Joe Becker for his knowledge and teachings.

[348] Chief Sparrow has some oral history about the Cowichan community in the

pre-contact period returning during sockeye season to fish in the Fraser River.

[349] He has oral history about traditional protocol between Musqueam and the

plaintiff communities, including the ethic of sharing resources with family as their

ancestors have done. The oral history came from late Chief Ernie Campbell, late Joe

Becker, late Willie Seymour Sr. and late Chief Peter Seymour Sr. Chief Sparrow also

has personal knowledge about fishing in the Fraser River and about the protocol

process.

[350] The plaintiffs submit that if Chief Sparrow is permitted to give oral history

evidence, it should be limited to instances where he provides evidence about who

told him the oral history, what the actual statement was and the circumstances

surrounding the telling. The plaintiffs submit that these are important factors cited by

Justice Vickers in William #1 2004. The plaintiffs say Chief Sparrow’s testimony was

regularly unclear and if he did not provide a source for a statement the court should

not search through his testimony to find one.

[351] Musqueam submits that Chief Sparrow can transmit the oral history he has

learned in his life. He cited reliable sources, and where he did not, he referred back

Cowichan Tribes v. Canada (Attorney General)

Page 88

to his earlier testimony about meetings and conversations rather than repeating it.

Musqueam asks the court to consider all of Chief Sparrow’s evidence and the

connections between his answers on topics that he was asked to return to multiple

times.

[352] It is unfair to expect an oral history witness to source every statement he

makes. When Chief Sparrow testified “as I have said before” it is a signal that the

court should look for previous references to the same event. With the assistance of

counsel, if the evidence supports it, it may be appropriate to attribute a statement to

a source that the witness previously referenced. If no source is apparent, then the

plaintiffs are correct that the oral history may not be sufficiently reliable to be

admissible.

[353] I am satisfied that Chief Sparrow is qualified to give oral history evidence

based on his traditional upbringing, his multiple reliable sources from highly

regarded deceased Musqueam elders and because of the respect the community

has for him as a long-time elected official and chief. Threshold reliability of oral

history evidence does not require that a witness be “the expert” in oral history,

possess all bodies of knowledge and remember everything they have learned or be

recognized by other witnesses as a knowledge holder. I need to assess Chief

Sparrow’s ability to recount and attribute what knowledge holders have shared with

him about oral history.

Hearsay and Opinion Objections

[354] The plaintiffs submit that it is Musqueam’s burden to prove that any hearsay

they seek to rely on is admissible either under an exception to the hearsay rule or, if

the indicia of reliability and necessity are established, under the principled exception

to the hearsay rule: R. v. Khelawon, 2006 SCC 57 at para. 42. They submit that at a

minimum the admission of hearsay under the principled exception requires there to

be an identifiable statement, the identification of the person who made it, some

information about the circumstances under which the statement was made and a

clear articulation of the statement. Reliability of the statement must be assessed to

Cowichan Tribes v. Canada (Attorney General)

Page 89

determine if there is little concern about the truthfulness of the statement because of

the circumstances in which it was made.

[355] I generally agree with this submission and will review the evidence objected

to with these factors in mind.

[356] The plaintiffs raise many objections on the basis that they say that Chief

Sparrow is not an oral historian and is giving opinion rather than oral history. I have

found that Chief Sparrow is able to give oral history evidence. I will assess each

objection to determine whether his testimony is oral history or opinion.

[357] The specific objections set out below are made primarily on the basis of

hearsay or opinion.

Objection 76 Day 372 p. 45 lines 12 – 15 hearsay

[358] Chief Sparrow was asked about his grandfather training generations above

him in the mask dance and whether he only trained members of the Sparrow family.

I find that Chief Sparrow can give this oral history evidence about his deceased

grandfather training mask dancers. He identified Pete Seymour of Chemainus, and

John Louis (Dickie) as his sources. This objection is denied.

Objection 78 Day 372 p. 51 lines 35 – 36 opinion; lack of disclosure (trial

fairness)

[359] Chief Sparrow was asked a follow-up question about his experience in the

marine area outside the mouth of the Fraser River that he identified as the flats. The

first part of his answer was based on his knowledge as a fisherman. In the second

part of his answer he identified a place the Musqueam call Sturgeon Banks. Chief

Sparrow said his grandfather told him that they used to fish sturgeon there. This is

oral history evidence about where Musqueam people harvested sturgeon and it is

admissible.

Cowichan Tribes v. Canada (Attorney General)

Page 90

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

[360] The plaintiffs submit that Chief Sparrow’s testimony about hunting inside

traditional territory is opinion evidence. They also object to the geographic

irrelevance of the passage about hunting on the North Shore and Granville Island.

[361] Chief Sparrow is relaying oral history from his grandfather about Musqueam

territory. This evidence is relevant to the identity of Musqueam people and to the

responsibility of stewardship. It is admissible.

Objection 86 Day 373 p. 14 lines 14 – 26 threshold reliability; relevance;

lack of disclosure (trial fairness); improper form of question; opinion

[362] Chief Sparrow was asked what he has been told about where Musqueam

harvested fish in pre-contact times. The plaintiffs object to the question and answer

relating to all of Musqueam territory and not being limited to the claim area. The

Musqueam people’s access to fish in pre-contact times is relevant. I find this is oral

history relevant to Musqueam identity and to their claim that the plaintiffs did not

have exclusive use and occupation of the site on the Fraser River.

[363] Prior to asking the objected to question, Musqueam had played an audio tape

where Ed Sparrow Sr. described the traditional fishing grounds of Musqueam going

to as far as Douglas Island. They referenced this recording in support of their

submission that the evidence is specific enough about where the Musqueam fished

traditionally. Musqueam also referenced the discovery read-ins at Day 380 pp. 5 and

6 in support of a submission that Ed Sparrow Sr. told Chief Sparrow about the areas

Musqueam fished which included the south arm.

[364] Musqueam submits that Chief Sparrow’s reference to “all around in the Fraser

and in our traditional territory” is not opinion. It is a factual statement about the

location of fishing described in the oral history told to Chief Sparrow by his

grandfather.

Cowichan Tribes v. Canada (Attorney General)

Page 91

[365] Chief Sparrow cites his grandfather Ed Sparrow Sr. as the source for this

evidence. I find that this evidence is admissible oral history evidence.

Objection 93 Day 373 p. 34 lines 47 – p. 36 line 17 and p. 45 lines 31 – 33

hearsay

[366] The plaintiffs drop their objection to the lines at p. 34, line 47-p. 35, line 2; p.

35, lines 3-4; p. 35, lines 11-22, and p. 35, lines 35-45. Musqueam agrees that they

will not rely on the testimony at Day 373, p. 36, line 6 from “like I said” to line 13,

ending with the word “resources” for any purpose.

[367] The remaining passage is about a telephone call from Chief Peter Seymour

asking Musqueam for help to get fish for his community. That statement is hearsay.

Chief Sparrow can testify that as a result of a conversation he had with Chief

Seymour and based on his teachings he agreed to help Stz'uminus get their fish.

Chief Sparrow’s testimony about what Chief Seymour said is not admissible for the

truth of its contents.

Objection 99 Day 374 p. 5 lines 21 – 25 and p. 5 lines 33 – p. 6 line 29

hearsay

[368] Chief Sparrow was asked about a letter dated September 6, 1994 from

George Harris, a member of Stz’uminus, to Joe Becker of Musqueam. In the letter

the phrase “spirit of cooperation as our ancestors did in the past” was used. Chief

Sparrow was asked if he has heard those terms before, and if so, where. He testified

that he heard those terms numerous times as a young individual when he first got

involved with the band in numerous meetings that he attended, including when he

travelled with the chief and council representatives to certain meetings on

Vancouver Island. He testified that “our leadership” used those words consistently,

as did “our community” and also other representatives from the plaintiff bands. He

says “I mentioned earlier that that paragraph is something that I was personally

taught by our respected elders and by our leadership about the spirit of the protocols

and I heard it numerous times”. He names his sources as Willie Seymour, Peter

Seymour, George Harris, other fisheries representatives and other elders.

Cowichan Tribes v. Canada (Attorney General)

Page 92

[369] The plaintiffs object on the basis that this is hearsay.

[370] Musqueam submits that this is evidence of oral footnoting. When Chief

Sparrow testified “as I said earlier” he is referring to his evidence on Day 373 at p.

46. When Chief Sparrow refers to council representatives, he does not name them

on Day 374 but he had previously identified them on Day 372 at p. 30, lines 11:55:26

to 11:56:14 where he said:

Well, when I was younger, like I referred to when I used to go participate in

soccer tournaments when Ernie was coaching us and then traveling with us

all the time. But where I really became aware of it was when I started getting

a little bit involved with the band, and I would travel with Ernie and Joe and

late Joe Becker and George Guerin, when I would travel over to the island. I

normally rode with Ernie because at that time I was dating his daughter and

he would always make sure that he would go and see his extended family

prior to before the meeting was whether it was a soccer tournament or

whether it was over there for a meeting with the community. So he'd always

stop and visit his -- his family there.

[371] Applying Justice Vickers’ factors in William #1 2004, Musqueam submits that

Chief Sparrow has identified his sources, Chief Peter Seymour Sr., George Harris,

and Willie Seymour Sr. As previously reviewed, Chief Sparrow has provided

evidence about the high reputation of Chief Peter Seymour Sr. and Willie Seymour

Sr. George Harris was on the plaintiffs’ witness list but was not called by them to

testify. In terms of context, Chief Sparrow said he heard this oral history in several

meetings, some when he was young, and he heard it from leadership numerous

times. He also heard it in everyday life, including during soccer tournaments and in

the context of mask dancing.

[372] I find that this is admissible oral history evidence.

Objection 109 Day 375 p. 13 line 10 – p. 14 line 2 improper form of

question; speculative opinion

[373] Chief Sparrow was asked about a memorandum dated February 15, 2007

from Leona Sparrow, Director Treaty, Lands & Resources to Musqueam Band

Council (document SC06249, exhibit A-565 for identification). Musqueam is not

relying on the evidence at lines 25-26: “And I think that is what she is referring to”.

Cowichan Tribes v. Canada (Attorney General)

Page 93

[374] Chief Sparrow testified that he remembers the meeting and speaking with the

Penelakut Chief Lisa Shaver before the meeting. The words “good governance

stems from the longhouse way” are attributed to her. Chief Sparrow was asked what

that meant and he footnoted to his prior testimony about First Nations people in

previous meetings. He said that when one goes to the longhouse it carries a

different way of respect and working together.

[375] The plaintiffs object to Chief Sparrow interpreting the words of another

person.

[376] Musqueam submits that Chief Sparrow is a Coast Salish person with a

traditional upbringing who is experienced in the longhouse ways and who has been

an elected official for almost 29 years. The importance of the longhouse is

something he personally knows. He is therefore able to say that what Chief Shaver

said is consistent with the Musqueam view on the importance of the longhouse

setting.

[377] Chief Sparrow was asked what the words meant, not what Lisa Shaver meant

when she used the words. I find that he is able to give his understanding of the

importance of the longhouse ways in his culture. Except for the words “and I think

that is what she is referring to”, this passage is admissible.

Objection 110 Day 375 p. 17 lines 28 – 37 speculative opinion

[378] Counsel asked Chief Sparrow why there is no signature on behalf of

Cowichan Tribes on the document with the heading “2007 Protocol, Affirmation of

the Traditional Relationships Among the Cowichan Tribes, Lake Cowichan First

Nation, Halalt First Nation, Lyackson First Nation and the Penelakut Tribe and the

Musqueam Indian Band and Tsawwassen First Nation” (document SC02685, exhibit

A-566 for identification).

[379] Musqueam is not relying on the evidence at lines 28-32 beginning with the

words “and I can’t speak on” and ending with the words “guessing at this time”. The

remainder of the passage is not speculative and is admissible.

Cowichan Tribes v. Canada (Attorney General)

Page 94

Objection 111 Day 375 p. 24 lines 10 – 12 and lines 39 – 42 hearsay;

speculative opinion

[380] The plaintiffs dropped their objection to p. 23, lines 36-47.

[381] Musqueam is not relying on the evidence on Day 375, p. 24, lines 1-9 and

line 12 beginning with the words “and saying” to the end of line 13.

[382] Chief Sparrow's testified about his relationship with Loren James from the

Penelakut fisheries department. The plaintiffs object to Chief Sparrow’s testimony at

p. 23, lines 10-12 about Mr. James speaking to him about the fishing season and at

p. 24, lines 39-42 where Chief Sparrow testified that Mr. James reached out in a

timely way so that Penelakut was well organized for their fishery and to make sure

they got there when the fish were plentiful.

[383] The plaintiffs submit that Chief Sparrow cannot speak to what Loren James’

intentions were. I agree. The evidence at lines 39-42 is inadmissible speculative

opinion about Mr. James’ intentions. Lines 10-12 are admissible for a non-hearsay

purpose.

Objection 126 Day 376 p. 8 lines 5 – 38 improper form of question;

speculative opinion; hearsay

[384] Chief Sparrow was asked about a letter dated July 23, 2009 from

Snuneymuxw First Nation to Musqueam (document SC06125, exhibit A-577).

Snuneymuxw asked to harvest 17,000 pieces of sockeye within Musqueam’s

respected territory. They make a reciprocal offer to allow Musqueam to access

resources in their territory.

[385] Chief Sparrow was asked to interpret the letter that he did not write.

[386] He said that the letter references the early stages of protocols back in the

1990s when Musqueam had discussions with all of their relatives and nation to

nation meetings. They talked about their traditional protocols and their way of

working. They mentioned that there were certain foods Musqueam could no longer

get and how they would like to stick to their traditional foods that were taken out of

Cowichan Tribes v. Canada (Attorney General)

Page 95

their territory because of industry. In the early correspondence and those meetings

they talked about access of wild meat and shellfish, specifically clams. This is why

Snuneymuxw is making the reciprocal offer to access resources in their territory.

[387] The plaintiffs object to this evidence as Chief Sparrow does not say what

meeting he is referring to. He does testify that he has touched on these early

protocol agreements numerous times. He said “those were a lot of discussion that

were taking place with our respected leaders and elders about how that happened in

the past and we’re just following those guidelines”.

[388] The plaintiffs object that this evidence is hearsay and Chief Sparrow has

provided no source. There is not enough evidence to identify what he is talking

about.

[389] Musqueam submits that Chief Sparrow is referring to the discussions and

meetings where the oral history of traditional protocol was discussed and which he

referred to earlier in his testimony. Musqueam submits that this is oral footnoting. At

the end of the passage, Chief Sparrow does footnote to evidence that he touched on

numerous times about the early meetings where there was discussion taking place

with respected leaders and elders in the past and they were following those

guidelines.

[390] On Day 373, at p. 40, lines 21-47 Chief Sparrow referred to previous

leadership meetings which I believe he is referencing in the objected to passage.

[391] Chief Sparrow’s evidence is properly sourced to his oral history when he

refers to the early meetings. This evidence is not about the shortage of shellfish or

hunting on Vancouver Island. I agree that Chief Sparrow has provided sources for

this evidence in his earlier testimony. This is admissible evidence about kinship and

resource sharing among Coast Salish people. The plaintiffs’ submissions about the

meaning of Chief Sparrow’s testimony are more appropriately made in relation to

weight.

Cowichan Tribes v. Canada (Attorney General)

Page 96

Objection 127 Day 376 p. 9 lines 19 – 27 speculative opinion; hearsay

[392] Chief Sparrow was asked further questions about the July 23, 2009 letter

from Snuneymuxw. He was asked if Musqueam had protocol agreements each year

with Snuneymuxw. He said that it depends on the year and the availability of

salmon. This evidence is admissible. The passage where he speculated about what

Juan and Larry and Loren would have done is not.

Objection 131 Day 376 p. 18 lines 32 – 35 opinion

[393] Chief Sparrow was asked why Musqueam has tried to follow protocol with

communities seeking to fish in their territory. He testified it is to fulfill the teachings

that have been passed down by Musqueam ancestors and leadership. The plaintiffs

submit that this is inadmissible opinion. Musqueam submits that this is evidence of

the modern protocol process being part of a continuum of traditional practice.

[394] I find that Chief Sparrow is speaking of his oral history teachings and their

modern application. This is admissible oral history evidence.

Musqueam Fisheries Commission and the Aboriginal Fisheries Strategy

(AFS) Agreements

[395] Musqueam submits that Chief Sparrow received information about the

Musqueam Fisheries Commission from Dominic Point and Vincent Stogan Sr. circa

1993 when he started to get involved in fisheries management. In particular, he

asked Dominic Point why the Cowichan Tribes were seeking permission to fish.

[396] Musqueam initially submitted that this was admissible hearsay from a reliable

source. They changed their position in reply. Their position now is that Chief

Sparrow cannot testify as to the intentions of Musqueam leadership prior to the

commencement of his involvement in 1993. He can speak to his knowledge as a

person who attended community meetings as to what he heard Musqueam leaders,

elders and others say. Chief Sparrow testified that before he was elected to the

Musqueam Fisheries Commission he was an interested Musqueam member and

fisher and attended some community meetings where the AFS agreements were

Cowichan Tribes v. Canada (Attorney General)

Page 97

discussed. Chief Sparrow has direct knowledge about what the Musqueam people

were looking for in the AFS agreement and this included co-management of the

fishery.

[397] Musqueam submits that evidence about what he heard at meetings and what

Joe Becker and others told him is relevant for a non-hearsay purpose. This evidence

provides context for Chief Sparrow's testimony about his involvement in fisheries

management issues starting in 1993, including his understanding about the

Commission’s goals and intentions when he joined the Commission in 1993.

[398] Musqueam submits that, to the extent it is necessary, I should “read down”

the evidence to reflect this position, rather than admitting only parts of it, to avoid

altering the meaning of the rest of the evidence.

[399] The plaintiffs submit that evidence of what Chief Sparrow believed he heard

in the early 1990s and his state of mind or concerns about the AFS agreements is

not relevant to this case.

[400] The plaintiffs submit that Musqueam’s proposed reading down exercise for

these objections is a complex process that risks confusing the record, admitting

inadmissible and irrelevant evidence, and altering the substance of the witness's

testimony. They submit this is particularly inappropriate in the context of evidence

related to the AFS agreement.

[401] The plaintiffs submit that Chief Sparrow can speak to meetings he attended,

who made a statement or where it was made, but if he is just attributing statements

to leadership generally, the hearsay test for necessity and reliability is not met.

[402] I will assess the passages to see if there is any value in admitting this

evidence for a non-hearsay purpose. I agree with the plaintiffs that Musqueam’s

proposed “reading down” exercise is cumbersome and may confuse the record. I will

not take that approach. Chief Sparrow can testify as to what he saw or heard but he

cannot adopt the concerns of leadership as his own prior to him becoming an

elected official.

Cowichan Tribes v. Canada (Attorney General)

Page 98

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

(a)

p. 20 lines 14 – 26

[403] Chief Sparrow was asked why the Musqueam Fisheries Commission was

established. He explained that Musqueam was concerned about fishing, governance

and management of the fishery.

[404] Musqueam submits that this first passage is admissible as evidence of Chief

Sparrow’s own concerns, although he uses the words “our leadership of the day”.

Musqueam submits that this passage is admissible for non-hearsay purposes as

evidence about the concerns that Chief Sparrow heard expressed at a meeting.

[405] The plaintiffs submit that Chief Sparrow’s own concerns are not relevant.

Passages such as “so our leadership of the day knew those responsibilities were in

there” cannot be read down as evidence of what Chief Sparrow heard. The passage

also shows the difficulty involved in the reading down exercise Musqueam proposes.

This is not evidence of what Chief Sparrow heard leadership of the day say at a

meeting. At best, this is Chief Sparrow's belief about what leadership of the day

thought or knew. Chief Sparrow's belief on this point is not relevant.

[406] I agree with the plaintiffs’ submissions. This passage does not make sense if

it is read down as Chief Sparrow’s personal concern and is not admissible for a

non-hearsay purpose. This evidence is inadmissible.

(b)

p. 20 line 43 – p. 21 line 46

[407] Chief Sparrow was asked what Musqueam was looking for in the initial AFS

agreement. Chief Sparrow testified generally that his elders taught that their right of

access to those fish was never relinquished. A big component of the AFS was

co-management of that fishery that took place inside Musqueam traditional territory.

Chief Sparrow testified that the original AFS agreements had certain components

that were watered down over the years. He testified that Musqueam leadership and

Cowichan Tribes v. Canada (Attorney General)

Page 99

elected community were looking for specific features as part of the AFS agreements;

it was not just about harvesting fish.

[408] Musqueam submits that this evidence is within Chief Sparrow’s personal

knowledge. He was elected to the Musqueam Fisheries Commission in 1993 which

was the year that the original AFS agreement was signed. He worked with that

agreement in his capacity as a commissioner and he has seen the evolution of the

agreements since 1993.

[409] Musqueam points to a prior ruling in this trial where I permitted Canada’s

witness, Jennifer Nener, to testify about the interpretation of a policy that she did not

draft but was within her responsibility to understand. As someone elected to the

commission to represent the community on fisheries issues in 1993, the year of the

first AFS agreement, and as someone with long-term involvement in Musqueam

fisheries management, Chief Sparrow may provide his interpretation of the purpose

of that original AFS agreement, even though he was not involved in the drafting of it.

[410] I agree with Musqueam’s submission. This evidence is within Chief Sparrow’s

personal knowledge and is admissible.

(c)

p. 22 lines 31 – 34

[411] Chief Sparrow was asked if Musqueam employed a fisheries manager from

the beginning of the Commission. He answered:

Yes, and our first AFS agreement I mentioned that the comanagement was a

big part of it. So when we negotiated the AFS and negotiated on behalf of our

band that the comanagement was a big part, so in the early days, our band

office was located with a small office at the top of Salish drive in our

community.

[412] Musqueam submits that this is based on Chief Sparrow’s knowledge of what

he heard at the meetings and what he learned when he was elected the same year.

[413] This evidence is within Chief Sparrow’s personal knowledge and is

admissible.

Cowichan Tribes v. Canada (Attorney General)

(d) p. 39 lines 4 – 8

Page 100

[414] Chief Sparrow was asked about the purpose of an Aboriginal fisheries officer.

He answered as follows:

The purpose that Joe and the fisheries was -- is to take on the same

responsibilities of the government, comanagement, managing our fishery,

having our own fisheries officers patrol our communal fishery. So they talk

about in the AFS agreement, there was a component in there for a

requirement for the government to train our officers so they would have about

the same -- same authority as a fisheries officer, a federal fisheries officer.

[415] Musqueam submits that this evidence is admissible based on Chief Sparrow’s

knowledge of the first AFS agreement and his involvement with AFS agreements for

almost 30 years, and on the basis of my previous ruling with respect to Ms. Nener.

[416] I find that based on his vast experience as a fisheries manager for almost 29

years working with AFS agreements and with Aboriginal fisheries officers, Chief

Sparrow is qualified to give evidence about their purpose.

Objection 91 Day 373 p. 29 line 40 – p. 30 line 24, and p. 31 lines 3 – 11

opinion; threshold reliability

[417] Chief Sparrow testified about when he first heard about any of the plaintiff

bands seeking access to Fraser River salmon. Chief Sparrow said that it was the

first year the Musqueam Fisheries Commission was put together. A letter came

through requesting permission to access sockeye. Chief Sparrow waited until after

the meeting and talked to Dominic Point about it. Dominic Point told him that

Musqueam had very close ties with Cowichan and there were a lot of Musqueam

ladies who married Cowichan people and they would come back during the sockeye

season and access sockeye. He was referring to the pre-contact period. Both

Dominic Point and his grandfather Ed Sparrow Sr. told him that there were specific

camp sites and fishing sites where they would access their fish.

[418] This evidence is also objected to in schedule B. This is admissible oral history

evidence.

Cowichan Tribes v. Canada (Attorney General)

Page 101

Objection 94 Day 373 p. 43 lines 7 – 15, and lines 19 – 29 lack of

disclosure (trial fairness)

[419] Chief Sparrow testified about the Musqueam Fisheries Commission’s

decision-making process for protocol requests. Musqueam initially took the position

that this evidence was not relevant and accordingly they refused disclosure of

Musqueam Fisheries Commission internal workings and decisions. The plaintiffs did

receive disclosure of the Musqueam Fisheries Commission terms of reference and

of some protocol requests.

[420] The first part of this evidence relates to an undocumented conversation that

Chief Sparrow had with Dominic Point. This sentence is admissible. The remaining

objected to evidence is about the inner workings of the Commission that Musqueam

insisted was irrelevant. Since the plaintiffs did not receive disclosure which would aid

them in preparing their cross-examination on the inner workings of the Musqueam

Fisheries Commission and in the interest of trial fairness I will not admit lines 13-15

or lines 18-24.

Objection 113 Day 375 p. 27 lines 15 – 27 lack of disclosure (trial

fairness)

[421] The plaintiffs have dropped their objections to p. 26, line 31-p. 27, line 14 and

p. 27, line 28-p. 28, line 25. They maintain their objection to p. 27, lines 15-27.

[422] Chief Sparrow was asked about advising Wayne Paige and Larry George of

Cowichan Tribes that Musqueam had provided their permission for Cowichan to fish.

Chief Sparrow testified that it was his role to deal with specific requests. The

evidence objected to is with respect to the different roles and responsibilities of the

Musqueam Fisheries Commission.

[423] The plaintiffs object because Musqueam insisted that the inner workings of

the Musqueam Fisheries Commission was irrelevant and they resisted production of

any documents other than the terms of reference.

Cowichan Tribes v. Canada (Attorney General)

Page 102

[424] This evidence fits squarely within that description and should not be allowed

for trial fairness reasons.

Objection 115 Day 375 p. 33 lines 26 – 32 opinion

[425] Chief Sparrow testified about Musqueam’s 2012 protest fishery on the south

arm of the Fraser River that took place without protocol. Chief Sparrow testified that

Musqueam tried to talk to relatives and extended families in those communities. He

testified:

but I think at that point it had gone too far and things were going way off to

the left, and everything that we had tried to accomplish was obviously the

writing was on the wall to us that it was not about families anymore. It was not

about relationships anymore. It was about inserting a right.

[426] The above evidence is opinion and is not admissible.

Objection 118 Day 375 p. 49 lines 3 – 14 hearsay

[427] Chief Sparrow was asked about exhibit 591, which is the 2015 working

agreement with Cowichan Tribes. He was asked why Musqueam considered it

important to keep the relationship open and have agreements with Cowichan Tribes.

[428] Chief Sparrow referred back to the AFS agreement and how Musqueam

became heavily involved in the management of the resource that lead up from the

Sparrow case. He testified that those were the strong beliefs of Musqueam

leadership of the day and they still are.

[429] The plaintiffs object because Chief Sparrow was not involved in fisheries

management until 1993. He did not attend the AFS meetings. Any knowledge he

obtained about it came from Joe Becker.

[430] I find that this evidence meets the test of threshold reliability. Chief Sparrow

has direct knowledge by virtue of working with the AFS agreement for years after it

was entered into. Joe Becker told him about it when he started working for the

Musqueam Fisheries Commission. Joe Becker is deceased and is a reputable

Cowichan Tribes v. Canada (Attorney General)

Page 103

source. Chief Sparrow has been involved in fisheries management now for almost

29 years and is well-informed about the intentions of the Musqueam people.

Objection 132 Day 376 p. 21 lines 42 – 46 speculative opinion

[431] Chief Sparrow was asked who created the protocol form. He testified that it

was done before his involvement. His understanding after almost 29 years with the

Musqueam Fisheries Commission is that it was created by Joe Becker and the

Musqueam Indian Band.

[432] I find that he is qualified to give that answer from his vast experience working

in Musqueam fisheries management.

Objection 133 Day 376 hearsay

(a)

p. 41 line 45 – p. 42 line 9

[433] Chief Sparrow testified about when Musqueam signed the first AFS

agreement and how the Musqueam fishing area changed after the Sparrow decision

was released. In the first part of his testimony, which the plaintiffs do not object to,

he testified that he was not involved in the drafting of the first AFS agreement. In the

passage that is objected to, he testified about boundaries imposed by the

Department of Fisheries and Oceans (DFO) prior to the release of the Sparrow

decision that were then discussed by Musqueam leadership and those who were at

the table.

[434] Musqueam does not rely on this passage for a hearsay purpose. Musqueam

submits that it is information that was shared at the meeting Chief Sparrow attended.

To the extent the answer refers to an interpretation of the first AFS agreement, they

rely on my previous ruling with respect to Ms. Nener’s evidence.

[435] This passage is not helpful for non-hearsay purposes. Since it relates to

conversations that Chief Sparrow was not privy to and since his testimony was very

unclear, I find it is not admissible.

Cowichan Tribes v. Canada (Attorney General)

(b) p. 43 line 36 – p. 45 line 45

Page 104

[436] Chief Sparrow was cross-examined on his testimony that is the subject of

objection 89(b). The plaintiffs are only objecting to the question being read into the

record. Their objection does not extend to Chief Sparrow’s answer. Although Chief

Sparrow was not involved in the negotiations for the first AFS agreement, he was

elected shortly after it was signed and he worked with it in his capacity as a

commissioner. For the same reasons given in objection 89(b), this evidence is

admissible.

(b 1) p. 46 lines 20 – 28

[437] It is unclear to me whether this passage is objected to or was merely referred

to on Day 389 pp. 21-25 by way of background. Schedule A was not amended to

include this passage but I have addressed it in the event that it was intended as an

objection. I note that Musqueam did respond to it in oral submissions.

[438] Chief Sparrow was asked about his earlier testimony (that was the subject of

objection 89) about being taught by his elders and elected leaders that Musqueam

never relinquished its right of access to those fish and ownership of the fish. Here,

he explained that the agreements had to come back to the Musqueam membership

for approval and that is how he became aware of the agreements. He confirmed that

he was not part of the negotiations.

[439] Musqueam submits that Chief Sparrow is referring to the meeting he attended

as a Musqueam member to discuss the AFS agreement. They rely on this evidence

for a non-hearsay purpose.

[440] Chief Sparrow testified that in the period of time after the Sparrow decision

and before he was elected to the Fisheries Commission he did attend community

meetings as an interested Musqueam member where the AFS agreements were

discussed and presented for approval of the membership.

[441] This evidence is admissible for a non-hearsay purpose as Chief Sparrow

learned about it at the community meetings referred to above.

Cowichan Tribes v. Canada (Attorney General)

(c) p. 49 line 30 – p. 50 line 44

Page 105

[442] Chief Sparrow testified about the message coming from the Musqueam

Indian Band and its leadership and elders that they were not just interested in

establishing rights and catching the last fish swimming up the river. He remembers

clearly Musqueam respected elders saying that with the right comes a responsibility

to manage.

[443] Musqueam submits that the evidence is within Chief Sparrow's knowledge

from his attendance at the community meetings as an interested Musqueam

member where the AFS agreement was discussed and from what Joe Becker told

him. They rely on this evidence for a non-hearsay purpose.

[444] Chief Sparrow can testify as to what he heard from his elders. This evidence

is admissible for a non-hearsay purpose.

(d)

p. 52 lines 22 – 44

[445] Chief Sparrow was asked about Musqueam Fisheries Commission’s mandate

or mission statement. In his answer he says “these things were also discussed …

with other groups and the Coast Salish settings. And that included the protocol

discussions. It included discussions about not having a fair share of the resources

and access to those resources.” Chief Sparrow testified that discussions were

occurring with elders, the community, political representatives and other First

Nations in the province, and that he was not necessarily participating in those

meetings.

[446] Musqueam submits that this passage is a reference to the meeting Chief

Sparrow attended about protocol.

[447] I am not clear which meeting Chief Sparrow is referring to. I agree with the

plaintiffs’ submission. This passage lacks sufficient specificity to allow me to assess

whether the statements are inherently reliable. It is not clear who discussed what or

where. This evidence is inadmissible.

Cowichan Tribes v. Canada (Attorney General)

(e) p. 58 lines 15 – 27

Page 106

[448] Chief Sparrow testified about when the first AFS agreement was signed and

the history long before the Sparrow case was decided, going back to the teaching of

past leaders, including Chief Guerin in the 1980s.

[449] This passage is too vague to allow an assessment of threshold reliability. It is

therefore inadmissible.

(f)

p. 58 lines 39 – p. 59 line 1

[450] Chief Sparrow testified about discussions with Joe and Ernie about

allocations, where they got with the first AFS agreement, and where they thought

Musqueam should have been with respect to allocation.

[451] Chief Sparrow’s involvement in this discussion is not clear, nor are the details

of what was discussed. I do not know what his sources are. It is inadmissible.

Objection 134 Day 377 p. 2 lines 23 – 41; p. 3 lines 27 – 43 hearsay

[452] Chief Sparrow testified as to the difference between the Musqueam fisheries

committee and the Musqueam Fisheries Commission. He was not involved in the

committee but testified that their roles were about the same. He testified that Joe

and the elected leaders talked about the extra roles and activities that would

differentiate the Commission from the committee. Given that Chief Sparrow was

elected to the Musqueam Fisheries Commission in 1993 which was the year that the

original AFS agreement was signed, I find that he did have personal knowledge of

the Commission’s functions and would have learned in the course of his duties what

the functions of the previous committee would have been. This evidence is

admissible.

Objection 136 Day 377 speculative opinion

[453] The evidence objected to relates to the September 3, 1991 memo from

Musqueam to all Coast Salish Nations which has been marked for identification as

exhibit A-548. Chief Sparrow is very clear that this is before his time.

Cowichan Tribes v. Canada (Attorney General)

(a) p. 19 line 47 – p. 20 line 6

Page 107

[454] Chief Sparrow was asked about a reference to the Musqueam fisheries

management plan in the 1991 memo. He testified that he does not know what the

Musqueam fisheries management plan referred to is, speculated about what it may

refer to, noted that he cannot speak for Joe and that he does not want to guess. The

plaintiffs object on the grounds that this is speculative opinion. I agree. This passage

is not admissible.

(b)

p. 20 lines 41 – 43

[455] Chief Sparrow testified that the second paragraph of the 1991 memo

references an understanding reached “last summer” at a meeting held in the

Esquimalt longhouse. Chief Sparrow testified that he was not at that meeting and

that he was not involved with the Musqueam Fisheries Commission until 1993.

[456] The plaintiffs object to the underlined portion of the following passage from

Chief Sparrow’s testimony:

Joe was referring to a document that was agreed to amongst those

individuals that were at that -- at that meeting. And I think he's trying to

explain there in the memo with the bigger groups that he was talking about. It

…

[457] Chief Sparrow is not saying he was at the meeting or that he has heard about

it from a reputable source. He is giving his opinion when he interprets the 1991

memo. This evidence is inadmissible.

(c)

p. 23 lines 10 – 18

[458] Chief Sparrow was asked what Joe Becker’s position was when he sent the

1991 memo. Chief Sparrow’s response was speculative. This answer is not

admissible.

Objection 137 Day 377 hearsay; speculative opinion

[459] Musqueam is not relying on the evidence at p. 29, lines 23-38; p. 37, lines 34-

44; and p. 40, lines 7-23 for any purpose.

Cowichan Tribes v. Canada (Attorney General)

(a) p. 29 lines 12 – 22 and line 39 – p. 30 line 29

Page 108

[460] Chief Sparrow was asked whether Musqueam had authority in 1991 to

authorize regular fisheries permits out of the Nanaimo office. He gave a long

answer. At the end of the answer he referred to the protocol agreements in 1991 and

compared them to when he got involved and said they were consistent.

[461] I find this passage to be speculation about what was going on prior to Chief

Sparrow’s involvement. Some of it he may well have heard at the community

meetings but that is not clear to me. This evidence cannot be tested for reliability

and it is not probative. It is not admissible.

(b)

p. 30 lines 36 – 40

[462] Again Chief Sparrow was asked if Musqueam had authority to issue permits

out of the Nanaimo office. He answered:

… I think they’re self explanatory in those original protocols that it was an

agreeance that that would be one of the steps that was agreed on by

everybody.

[463] This answer is unclear. I do not know who was in agreeance or who everyone

is.

[464] This evidence is inadmissible opinion.

(c)

p. 31 lines 17 – 26

[465] Chief Sparrow testified that the 1991 memo reflects some discussion that he

was part of in 1993 and 1994. He said that the memorandum talks about when

Musqueam leadership came together to talk about responsibilities. Some meetings

occurred nation to nation.

[466] This evidence is within Chief Sparrow’s personal knowledge and is

admissible.

Cowichan Tribes v. Canada (Attorney General)

(d) p. 34 lines 8 – 14 and 20 – 34

Page 109

[467] Chief Sparrow was asked about the 1991 memo and the reference contained

therein to permission being granted. He was asked if the memo was referencing the

granting of permission by Musqueam to other Coast Salish Nations.

[468] In his answer, Chief Sparrow interpreted the memo based on his current

knowledge about protocol and on his experience gained from 1993 onward. Given

that he gained relevant expertise shortly after this memo was circulated and his

answer is clear I find that this evidence is within his knowledge and expertise even

though he did not draft the memo. He said the 1991 discussions were consistent

with the discussions happening when he got involved.

[469] This evidence is admissible.

(e)

p. 35 line 23 – p. 37 line 33

[470] After reading the terms and conditions in the 1991 memo, Chief Sparrow was

asked if that was consistent with what he knew to be Musqueam’s practice in

requesting information for granting permission. Chief Sparrow testified as to his

opinion on what good management is. He cited Joe Becker as a source for some of

the knowledge that he was given when he started in 1993. He made a passing

reference to meetings that took place and numerous things that he heard when he

was sitting in the back row listening in both longhouse and meeting settings.

[471] When Chief Sparrow testified that the process was in accordance with the

understanding reached at the Esquimalt longhouse he was not saying that he had

been there. He was referencing a paragraph in the 1991 memo. It was Joe Becker

who was referencing the Esquimalt longhouse meeting.

[472] On balance I find that this evidence is admissible. I will disregard the

references to opinion.

Cowichan Tribes v. Canada (Attorney General)

(f) p. 47 line 42 – p. 48 line 9

Page 110

[473] Chief Sparrow was asked about the meaning of term 6 of the 1991 memo.

Term 6 references letters of authorization to First Nations. Counsel for the plaintiffs

asked whether the authorization letter to a First Nation would be from the

Musqueam.

[474] Chief Sparrow testified that counsel is correct that the letters would be from

Musqueam, and then went on to explain the context surrounding the authorization

letters. The plaintiffs do not object to Chief Sparrow’s affirmative answer to the

question, but do object to the explanation which followed, on the basis that Chief

Sparrow did not attend the meeting at the Esquimalt longhouse and does not have

knowledge of any agreement between nations.

[475] I accept Musqueam’s submission that the entire answer should be

admissible. Chief Sparrow is not saying he was at the Esquimalt longhouse meeting

but he is saying that in the memo Joe refers back to what was agreed at the

Esquimalt longhouse.

Objection 138 Day 377 p. 38 lines 26 – 44 speculative opinion

[476] Chief Sparrow was asked to interpret term 5 of the 1991 memo which says:

The total catch of any First Nation catch shall not exceed the quota

authorized by the license hereby confirmed and to be issued as noted above.

[477] Chief Sparrow interpreted what Joe Becker meant by this clause.

[478] The plaintiffs object on the grounds that this is speculative opinion.

Musqueam responds that Chief Sparrow provided his explanation based on what is

done today. The terms and conditions of term 5 were known to Chief Sparrow

because they continue to be in the protocol form today.

[479] I will allow this evidence based on Chief Sparrow’s long experience dealing

with this term in protocol agreements.

Cowichan Tribes v. Canada (Attorney General)

Page 111

Speculative Opinion Objections

[480] The plaintiffs submit that Chief Sparrow has speculated in his evidence about

what people could or would have done in relation to events that he did not

participate in. Musqueam submits that this evidence is based on Chief Sparrow’s

experience with various organizations and people. He may provide evidence about

the general practice of a particular organization.

[481] In some instances, where the evidence that the plaintiffs object to is hearsay,

Musqueam seeks to admit the evidence for a non-hearsay purpose.

[482] The plaintiffs submit that Chief Sparrow has provided opinions on why

someone else may have written a document, what the document meant or what the

person could or would have done in certain circumstances. He may provide

evidence about the general practice of a particular organization but he cannot give

opinions on what would have happened in relation to specific events when he was

not involved in those events.

[483] I have found some evidence is admissible where Chief Sparrow testified in a

general way about his knowledge of the first Musqueam AFS agreement even

though he was not involved in the negotiations. He was present when the agreement

was brought to membership for approval. I find that he can testify about specific

meetings that he attended but not about the intentions of Musqueam, the Musqueam

Fisheries Commission or the leadership of Musqueam for the period prior to his

involvement. He can testify as to how he learned about the meeting or the contents

of an agreement and that evidence will be evaluated to determine if it is reliable

hearsay.

Objection 77 Day 372 p. 51 lines 24 – 32 speculative opinion; hearsay

[484] Chief Sparrow was asked about a certain area on a map which he identified

as the flats. This evidence is based on his experience as a fisherman and his

knowledge of where Musqueam people access shellfish. Musqueam is not relying on

the evidence at Day 372, p. 51, lines 24-25 where he testified “a lot of our guys now

Cowichan Tribes v. Canada (Attorney General)

Page 112

access shellfish in there” and lines 30-31 where he testified “to this day still do their

crabbing there”. The balance is admissible.

Objection 92 Day 373 p. 34 lines 18 – 33 improper form of question;

speculative opinion

[485] Chief Sparrow was referred to a letter dated August 31, 1994 from Chief

Peter Seymour Sr. of Chemainus Tribal Council to Musqueam Band requesting a

tribal protocol to fish (document SC06209, exhibit A-546 for identification). Chief

Sparrow was asked if he knew what tribal protocol meant.

[486] Chief Sparrow answered that it meant that “we can work together to access

the resources” and that the protocols reflect “how we have our connections, how we

operated pre-contact.” He testified that by connections he meant what he referred to

earlier “about our relationship that was passed on to me … about our blood line and

our connection to other communities”.

[487] Musqueam is not relying on the passage at Day 373, p. 34, line 22 starting

with the words “and I think” to the end of line 24. Musqueam’s chart setting out the

evidence it no longer relies on (attached as Attachment 2) incorrectly indicates that

this evidence begins at line 23. I find the passage beginning at line 22 starting with

the words “I think” to the end of line 24 is inadmissible.

[488] Musqueam submits that when Chief Sparrow testified about the connections

he referred to earlier, he is referring back to his testimony on Day 373 at p. 29,

lines 41-47 where he cites sources for his oral history about Musqueam’s very close

family ties with the Cowichan.

[489] The plaintiffs submit that Chief Sparrow cannot speculate on the meaning of a

letter he did not write.

[490] I find this is oral history. It is appropriate to look at the evidence as a whole to

determine whether a source has been given, particularly where the witness flags it

by saying “as I said before”. Evidence often does not come in neat packages where

Cowichan Tribes v. Canada (Attorney General)

Page 113

every important element is located in the same paragraph. It is unreasonable to

expect a witness to cite a source for every sentence.

[491] I do not find the question to be improper. Chief Sparrow was not asked what

the author meant by the term “tribal protocol”. He was asked what that term meant to

him.

[492] This is admissible oral history evidence.

Objection 95 Day 373 p. 58 lines 23 – 43; p. 59 lines 9 – 24 speculative

opinion

[493] Chief Sparrow was asked about a form dated July 22, 1992 and how Joe

Becker gathered information to fill in this kind of form. Chief Sparrow testified that it

is more than likely Joe Becker would call the nation and get the information and fill in

the appropriate information for the protocol agreement. He identified Joe Becker’s

handwriting.

[494] The plaintiffs object to Chief Sparrow's evidence about what Joe Becker

“would have done” with respect to protocol requests. The basis for the objection is

that this evidence is opinion or it is speculative opinion.

[495] Musqueam submits Chief Sparrow is either appropriately speaking to the

Musqueam process in relation to receiving and processing documents or he is

speaking to facts that are within his knowledge as someone who worked in fisheries

management at Musqueam for almost 29 years and has fished for most of his life.

Chief Sparrow's evidence about the general process or system for processing

protocol requests is grounded in his personal knowledge and experience.

[496] Musqueam also submits that Chief Sparrow can testify about Musqueam’s

usual and ordinary course of business. Musqueam submits that a witness testifying

about business records matters may make inferences that are grounded in the

witness’s direct knowledge and can testify as to general practices or system

processes in a business context.

Cowichan Tribes v. Canada (Attorney General)

Page 114

[497] I find that Chief Sparrow can testify about the process and procedure he

witnessed and about his knowledge of ordinary business practice within Musqueam.

This evidence is admissible.

Objection 97 Day 373 p. 64 line 35 – 44 speculative opinion

[498] Chief Sparrow testified about Joe Becker’s process in completing protocol

agreements. It is related to the same form discussed under Objection 95. For the

same reasons, it is admissible.

Objection 98 Day 373 p. 65 lines 1 – 25 speculative opinion

[499] Chief Sparrow testified about a letter dated September 6, 1994 from George

Harris, Mid-Island Tribal Council Fisheries Coordinator, to Joe Becker (exhibit A-552

for identification) reporting on a food fishery. Chief Sparrow testified that this would

have been a report on fishing done under a specific agreement.

[500] This evidence is speculative opinion and is unnecessary as the letter speaks

for itself. I agree with the plaintiffs that the court may determine whether to draw this

inference. The evidence is inadmissible.

Objection 100 Day 374 p. 9 lines 40 – 43; p. 10 line 45 - p. 11 line 19

speculative opinion

[501] Chief Sparrow testified about an August 22, 1995 fax from Cowichan to

Musqueam (exhibit A-554 for identification). Chief Sparrow was asked about the

word “Urgent” on the fax and whether that shed any light on how this request would

have been approached by the fisheries manager. Chief Sparrow attempted to

answer but it is clear that he has no direct knowledge of this particular request.

[502] I agree with the plaintiffs that this evidence is inadmissible speculative

opinion.

Objection 102 Day 374 p. 14 line 27 – p. 15 line 4 speculative opinion

[503] Chief Sparrow was asked about exhibit 343, a fax sent to a number of people,

including Joe Becker, dated August 7, 1996. The letter requested a fishery, but

Cowichan Tribes v. Canada (Attorney General)

Page 115

provided little information about the proposed fishery. Chief Sparrow was asked

about how that information would have been gathered. He testified about how Joe

Becker would have responded to this request.

[504] I agree with the plaintiffs’ submission that Chief Sparrow can testify about Joe

Becker’s general process but not about the specifics of the response to this

document. This evidence is speculative opinion and should be excluded.

Objection 103 Day 374 p. 16 lines 25 – 31 speculative opinion

[505] Chief Sparrow was asked about an August 8, 1996 letter to Joe Becker from

Warren Johnny of Stz'uminus (exhibit 1347). Musqueam is not relying on the

evidence at line 28 starting with the words “but if” to line 31 ending with the words

“Section 35”. Those words are speculative opinion and I find the balance of the

answer is also speculative opinion. The objection is allowed.

Objection 104 Day 374 p. 17 lines 38 – 43; and p. 17 line 47 – p. 18 line 11

speculative opinion

[506] Musqueam is not relying on a portion of this answer at Day 374, p. 18, line 3

starting with the words “So I think” and ending with the words “by seine”.

[507] Chief Sparrow was asked about a letter dated September 15, 1997 to

Musqueam Fisheries Commission from Penelakut Tribe (document SC06175,

exhibit A-556 for identification). He was asked about how the letter would have been

processed. Chief Sparrow testified that Joe Becker may have delegated the request

to his staff. Chief Sparrow testified about what he thinks the fisheries officer’s

response would have been, and appears to reach a conclusion based on what he

sees on the face of the document.

[508] The plaintiffs submit that Chief Sparrow is providing speculative opinion

evidence about what the fisheries officer may have done in regard to a letter when it

is clear he does not have any direct knowledge about this letter.

[509] I agree. This objection is allowed.

Cowichan Tribes v. Canada (Attorney General)

Page 116

Objection 116 Day 375 p. 38 line 39 – p. 39 line 2 speculative opinion;

hearsay

[510] Chief Sparrow spoke to his personal knowledge of the protest on the Fraser

River in 2012. He was asked how Conservation and Protection became aware of the

protest fishery. Chief Sparrow answered that he thought it would have been because

DFO informed them of the licences and there would have been discussions with

them.

[511] Earlier, at p. 37 Chief Sparrow testified to his involvement with DFO and with

planning the protest fishery.

[512] This evidence is within Chief Sparrow’s personal knowledge and is

admissible.

Objection 122 Day 375 p. 57 lines 31 – 46 speculative opinion

[513] Chief Sparrow was questioned about a protocol request letter dated August

12, 1999 from the Sechelt Indian Band (document SC06258, exhibit A-570 for

identification). He was asked if there had been similar protocol requests every year

or most years. The plaintiffs object to his response that requests from the Sechelt

band fluctuated depending on whether they accessed their fish in Johnstone Strait or

different areas. The plaintiffs object to his evidence that requests would only come in

if nations were unsuccessful in other areas.

[514] Chief Sparrow’s evidence that requests fluctuated is within his knowledge. His

explanation for the fluctuation in relation to requests from the Sechelt appears

speculative and lacks an evidentiary foundation.

[515] Chief Sparrow’s evidence at lines 31-35 where he speculates about the

Sechelt accessing their fish in Johnstone Strait is inadmissible. The evidence from

lines 36-46 is within Chief Sparrow’s personal knowledge after years of fisheries

management and his deep knowledge of fishing over nearly 29 years.

Cowichan Tribes v. Canada (Attorney General)

Page 117

Objection 123 Day 376 p. 4 lines 29 – 31 speculative opinion; hearsay

[516] Chief Sparrow was asked about an August 1995 request to fish from

Squamish Nation (exhibit A-575 for identification) and whether Squamish Nation had

made other requests for protocol since that time.

[517] The plaintiffs object to the part of Chief Sparrow’s response that provides that

after 1995 the Squamish Nation caught a lot of their allocation in the Johnstone

Strait by seine. I agree that his statement about where the Squamish Nation caught

their fish is speculative. The passage starting at line 29 with the words “A lot” and

ending at line 31 with the words “those areas” is inadmissible.

Objection 130 Day 376 p. 14 lines 24 – 28 and lines 35 – 39 speculative

opinion

[518] Chief Sparrow was asked about the expression “north of the sand head”

contained in a letter dated September 1, 1994 from Saanich Tribal Fisheries to

Musqueam (document SC06229, exhibit A-579 for identification).

[519] Chief Sparrow noted the date, which is late in the season. He said it was

more than likely that Saanich did not reach their allocation numbers and the sand

heads were an area where they could get access. This is speculative opinion.

[520] In the second passage Chief Sparrow speculated that the Saanich is

identifying the flats area where they would be successful to catch fish that are

holding there.

[521] I find that Chief Sparrow does have direct knowledge through years of

experience fishing in the area that it is not unusual for the late-run sockeye to hold in

the sand heads. That evidence is not objected to, except to the extent it is

referenced in line 35. The plaintiffs object to his speculation about why Saanich is

requesting to fish there. This second passage is inadmissible, except line 35, which

is admissible.

Cowichan Tribes v. Canada (Attorney General)

Page 118

Recorded Protocol Meetings

The 2001 Meeting Recording and Failure to Exhaust Memory

[522] Chief Sparrow gave evidence about traditional protocols being discussed in a

meeting held in May 28, 2001 between Musqueam and plaintiff bands’ leadership

and elders who had gathered at Musqueam to discuss, among other things, the

renewal of a protocol agreement.

[523] The meeting was audio-taped. The transcript of the recording and the

recording have been marked for identification as exhibits A-558 (document

SC18305) and A-559 (document SC18161) respectively. In the recording, late Willie

Seymour Sr., speaking on behalf of the Chiefs of Cowichan, Lyackson, and Halalt

can be heard sharing oral history about traditional protocol between Musqueam and

the ancestors of these communities related to fishing on the Fraser River.

[524] Halalt Chief Joe Norris and late Musqueam Chief Ernie Campbell also can be

heard referring to these teachings in the same recording.

[525] The parties anticipate that exhibits A-558 and A-559 will be the subject of an

application to admit contested documents after this voir dire has concluded. The

sequencing of these applications has created a dilemma for Musqueam. They wish

to rely on the recording not yet entered to support their argument that Chief

Sparrow’s oral history evidence is admissible and they seek to rely on Chief

Sparrow’s evidence of the authenticity of the audiotape in support of their application

for admission of the tapes.

[526] The plaintiffs submit that the evidence from the 2001 recording is not

necessary in order for the court to rule on the admissibility of evidence of Chief

Sparrow. I find that it is.

[527] I will rule on the oral history evidence of Chief Sparrow in the voir dire and

may rely on the audiotape subject to my later ruling about its admissibility. If I find

the tapes are not admissible then I will have to rule on the fate of that oral history

evidence.

Cowichan Tribes v. Canada (Attorney General)

Page 119

[528] Musqueam played audio recordings of meetings that Chief Sparrow attended

without first exhausting his memory of the meeting. Chief Sparrow heard the

audiotape, and then testified with reference to what he just listened to on the

recording, and not from his memory. Musqueam submits that it intends to rely on the

audiotape itself and that Chief Sparrow was authenticating the tape. This is different

than refreshing a witness’s memory with a document. With present memory revived,

on the other hand, it is the witness’s testimony and not the document that becomes

the evidence.

[529] Chief Sparrow did give some evidence of the contents of the tape recording

but Musqueam submits that this was from his own memory of the event.

[530] The plaintiffs object on the basis that Musqueam has not met the test for

either past memory recorded or present memory revived, and Chief Sparrow's

testimony about what he heard on the recording is not admissible. The plaintiffs rely

on R. v. Violette, 2009 BCSC 503 at para. 12 and R. v. Bath, 2010 BCSC 1064 at

para. 5 quoting R. v. Richardson (2003) 174 O.A.C. 390 (Ont. C.A.) [Richardson]

leave to appeal ref’d [2004] S.C.C.A. No. 330. The test for admissibility of past

recollection recorded is set out in Richardson at para. 24 and includes a requirement

for the witness to have no memory of recorded events at the time of testimony.

[531] Musqueam submits that Chief Sparrow did not have to exhaust his memory

before authenticating the recording. Musqueam cites Sopinka, Lederman & Bryant:

The Law of Evidence in Canada, 5th ed. at paras 16.101 to 16.128 and Wigmore on

Evidence, Chadbourn Revision, (Boston: Little, Brown & Co.) Vol. 3, c. 28, s. 744

and submits that the witness is permitted to testify about a document including audio

or video without first exhausting their memory on the subject. Musqueam submits

that the following steps are required:

a)

b)

the witness or counsel explain the purpose of the testimony;

the witness or counsel explain the nature and authenticity of the

document; and

Cowichan Tribes v. Canada (Attorney General)

c) the trial judge finds the use of the document is proper.

Page 120

[532] Chief Sparrow testified he recalled the meeting, the proposed topics, the

location and that he was present. He identified the voices he recognized in the

recording and explained some of the attendees’ roles in relationship to him. He gave

evidence about how the meetings were recorded and how the recordings were

stored. This type of oral testimony and identification of voices and people is

independent of Chief Sparrow’s recollection of the meeting. It does not matter

whether his memory was exhausted.

[533] Chief Sparrow testified that what was said at the recorded meeting was

consistent with what he heard at the meeting.

[534] Chief Sparrow explained the background of three individuals who been

charged by DFO with fisheries-related offences, and that those charges were one of

the agenda items. He testified about who the participants were, about their

reputations, and what the role of speaker is. He identified his uncle, the late Johnny

Sparrow, who was mentioned at the meeting. He testified about the practice of

sharing. These matters were all within Chief Sparrow’s direct knowledge and are not

dependent upon his memory of the meeting.

[535] The plaintiffs distinguish Violette, which is a criminal law wire tap case. They

submit that wire tap evidence is inherently reliable and is not admitted for a hearsay

purpose. In the present case, they do not agree that the audio recording tendered as

oral history is inherently reliable. Such recordings are subject to the same threshold

reliability and necessity test as viva voce oral history evidence. An audio recording

may be the best evidence of what was said at the meeting but it does not make it

reliable in terms of it being admitted for a hearsay purpose. As the admissibility of

the recordings and transcripts is not in issue before me at this stage, I will not

consider these submissions further.

[536] I accept Musqueam’s argument that this evidence is not relied on to refresh

Chief Sparrow’s memory. Chief Sparrow is testifying as to the authenticity of the

Cowichan Tribes v. Canada (Attorney General)

Page 121

recording and the recording itself will be tendered as evidence. His evidence is

admissible for that purpose.

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)

[537] The plaintiffs no longer object to:

a)

b)

c)

d)

e)

f)

p. 36, lines 23-21

p. 36, line 40-p. 37, line 39

p. 38, lines 1-40

p. 39, lines 18-39

p. 40, line 37-p. 42, line 31

p. 42, line 43-p. 43, line 13

p. 43, line 23-p. 44, line 16

p. 45, line 46-p.46, line 25

g)

h)

[538] The plaintiffs object to Chief Sparrow’s evidence about the audio recording of

the May 28, 2001 meeting between representatives of Musqueam, Cowichan,

Lyackson First Nation, Halalt and the Hul'qumi'num Treaty Group. I accept

Musqueam’s submissions. Accordingly, what remains of Objection 106 is denied. If

the audiotape is not admissible then I will revisit this ruling. This evidence may be

considered in support of the application for admission of the audiotape.

Objection 107 Day 374 p. 48 line 39 – p. 50 line 14 improper form of

questions; speculative opinion

[539] The plaintiffs no longer object to the evidence in the draft transcript from

Day 374, p. 48, line 39-p. 49, line 23; p. 49, lines 26-28; and p. 50, lines 10-14.

Cowichan Tribes v. Canada (Attorney General)

Page 122

[540] This evidence relates to an audiotape of a December 12, 2001 meeting. The

transcript of the audiotape is marked for identification as exhibit A-560 and the

audiotape is marked for identification as exhibit-A 561.

[541] The plaintiffs say Chief Sparrow references what he heard individuals saying

on the tape without first exhausting his memory of what he recalled. The plaintiffs

submit that when Chief Sparrow references “those meetings that took place” this is

unreliable evidence because there is no cited source or details of the discussions.

The plaintiffs also submit that this is not oral history but evidence of modern-day

practices.

[542] Musqueam says that Chief Sparrow is orally footnoting to previous evidence

he gave about meetings where protocol was discussed. Musqueam submits that

Chief Sparrow’s evidence about what occurred between the May and December

2001 meetings is within his personal knowledge and is not speculation. When Chief

Sparrow testified about a “willingness to keep working like our ancestors did” he is

transmitting oral history.

[543] I find that Chief Sparrow’s evidence giving context to the meeting and

explaining what occurred between the May and December 2001 meetings is within

his personal knowledge. When he references “those meetings that took place” he is

referring back to his previous oral history evidence. This evidence is admissible.

Relevance

[544] The plaintiffs have raised the same relevance objections to Chief Sparrow’s

evidence as they did with respect to Morgan Guerin’s evidence, including with

respect to geographic and temporal relevance. The plaintiffs also object to evidence

about Musqueam’s loss of access to resources and traditional foods on the grounds

of relevance.

[545] I have already set out my general conclusions with respect to relevance. My

rulings on the plaintiffs’ specific objections are set out below.

Cowichan Tribes v. Canada (Attorney General)

Page 123

Objection 81 Day 373 p. 11 lines 10 – 35 relevance

[546] The evidence objected to is a continuation of the passage cited under

Objection 80, above. Chief Sparrow testified about hunting in the interior of British

Columbia with elders in years gone by. Now the areas are all developed and there is

little access to hunting.

[547] The plaintiffs submit that the question and answer are about the north shore

mountains and Granville Island.

[548] Musqueam says this evidence is relevant because it shows that the

importance of fishing stewardship and fisheries management to Musqueam people

has increased because of the loss of these other hunting areas. These areas do not

relate to the areas at issue in this trial.

[549] This evidence is relevant for the limited purpose of showing that Chief

Sparrow led a traditional life hunting with his elders. Musqueam’s loss of traditional

foods is not relevant in these proceedings.

Objection 82 Day 373 p. 11 lines 36 – p. 12 line 5 threshold reliability;

relevance; lack of disclosure (trial fairness); improper form of question

[550] I find the evidence of Chief Sparrow’s grandfather hunting for water foul in

Boundary Bay and Chief Sparrow hunting for waterfowl in Musqueam IR 2, 3 and 4

and with his uncles Lyle and Clifford off Westham Island is only relevant to show that

he had a traditional upbringing. As above, reduction of access to traditional foods for

the Musqueam is not a relevant issue in this trial.

Objection 83 Day 373 p. 12 lines 25 – 42 relevance

[551] Chief Sparrow testified about changes to access to hunting wild waterfowl in

his lifetime. This evidence is not relevant in this trial.

Objection 85 Day 373 p. 13 lines 7 – 16 relevance

[552] Chief Sparrow testified about the change in access to shellfish during his

lifetime due to contamination. This evidence is not relevant in this trial.

Cowichan Tribes v. Canada (Attorney General)

Page 124

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)

[553] Chief Sparrow was asked if, in his lifetime, there has been any change in

Musqueam’s access to fish, particularly salmon, eulachon and sturgeon. Most of the

answer is not objected to. The plaintiffs object to a reference to the inability of

Musqueam to harvest sockeye salmon in the last three or four years because that

evidence crosses over the evidentiary cut-off date established as the 2018-2019

fishing season. Chief Sparrow referred to the 2021-2022 season in his testimony.

His references to what has happened in the last few seasons does cross that

evidentiary boundary. He can only testify as to what occurred in the 2018-2019

fishing season which was four years ago. His reference to that fishing season is

admissible. The references to the subsequent seasons are irrelevant. I am satisfied

that there is no prejudice to Musqueam in excluding this evidence as I have followed

the same approach in prior rulings.

[554] The following evidence from Day 373 is not relied on by Musqueam for any

purpose: p. 15, line 30, specifically the words “Chum was bad last year”; p. 16, line 5

starting with the word “hopefully” to the end of line 8; and p. 17, lines 24-30, ending

with the word “million”.

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)

[555] These pinpoint objections relate to Chief Sparrow’s testimony about fishing

inside of “Musqueam territory”. The plaintiffs submit that Musqueam territory extends

beyond the claim area in this case and is therefore geographically irrelevant. The

plaintiffs note that I previously ruled on Day 186 that a question asked of Chief Elliot

about where Stz'uminus members prefer to fish was too broad. The plaintiffs submit

that this is a similar circumstance. I disagree. That ruling has no application here.

[556] Musqueam submits that Chief Sparrow learned about traditional territory from

his grandfather. His evidence is relevant because it is about his understanding of

Musqueam traditional territory. It is also relevant to the understanding of who

Cowichan Tribes v. Canada (Attorney General)

Page 125

Musqueam are as a people, how the parties conducted themselves, interacted and

made decisions in the context of modern protocol, based on an understanding of

what comprises Musqueam traditional territory.

[557] Musqueam does not seek to rely on Chief Sparrow’s evidence as proof of the

extent of Musqueam territory but does rely on it to show Musqueam and Chief

Sparrow’s understanding of where Musqueam territory is.

[558] This evidence is relevant to the issue of Musqueam’s identity and is not

tendered to prove the extent of Musqueam’s territory. It is admissible.

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)

[559] Chief Sparrow was asked about yearly meetings with Loren James of

Penelakut to discuss Penelakut fishing, and whether those meetings continue to

present day. The plaintiffs object to Chief Sparrow’s evidence that the meetings did

continue until 2018, but that there has been no sockeye for the last three years and

as a result they have not met since.

[560] This evidence is admissible to the extent that it references the 2018-2019

fishing season.

Objection 124 Day 376 p. 4 lines 33-34 relevance (past evidence cut-off

date)

[561] Chief Sparrow testified about Squamish Nation’s request for protocol. This

evidence relates to Objection 123. He commented that Squamish had been

requesting a protocol and assistance “more recently” before the downfall of the

sockeye. That evidence is admissible only to the extent that it relates to a period

before, up to and including the 2018-2019 fishing season.

Objection 125 Day 376 p. 7 lines 23 – 24 relevance (past evidence cut-off

date)

[562] Chief Sparrow referenced a protocol with Snuneymuxw and testified as to

who is involved in the “more recent years”. That evidence is admissible only to the

Cowichan Tribes v. Canada (Attorney General)

Page 126

extent that it relates to a period before,up to and including the 2018-2019 fishing

season.

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)

[563] Musqueam does not intend to rely on the evidence at p. 42, line 37 beginning

with the words “That’s why” to line 39 ending with the word “cycle”, and line 42

beginning with the word “Can” to line 43 ending with the word “no” and page 43 line

41 starting with the word “But” to line 43 ending with the word “river”.

[564] Musqueam does rely on the underlined section of the following passage at p.

43, line 44 to p. 44, line 1:

Getting to 2022 and they way that they are—they manage those fish, they all

come into the river. Doesn’t mean it’s like a tap and say early Stuart that

come in at the very beginning, the very first run, will travel all the way to

Prince George. Longest run. When they hit the river, they go straight up the

river.

[565] Chief Sparrow was asked about allocations. He testified that the first run of

fish travel all of the way to Prince George. Chief Sparrow can testify about the early

Stuart run’s usual pattern as it is within his personal knowledge.

[566] The balance of these objections are allowed. Musqueam is not relying on

these passages for any purpose.

Objection 140 Day 377 p. 50 lines 9 – 13 speculative opinion

[567] Musqueam does not seek to rely on the evidence at p. 50, line 11, starting

with the words “once again” to line 13, ending with the words “had it revised”.

[568] Chief Sparrow was asked about the origin of the Musqueam protocol form in

1992. He said that some of the discussion that happened at the Esquimalt

longhouse was put into a form that was revised. He testified that a form faxed by

Musqueam to Chemainus and Halalt Management Board on July 22, 1992

(document SC06210, exhibit A-550 for identification) is the revised form.

Cowichan Tribes v. Canada (Attorney General)

Page 127

[569] Chief Sparrow is not giving evidence about the Esquimalt longhouse meeting.

He is giving evidence about the practice and procedure in the Musqueam office as it

related to protocol forms. He is familiar with the use of the forms and can testify

about them. The balance of the evidence that Musqueam relies on in this passage is

admissible.

Objection 141 Day 377 p. 52 lines 26 – 32 hearsay

[570] Chief Sparrow testified about a fax dated August 22, 1995 on Cowichan

Tribes letterhead requesting permission to come to Musqueam territory to fish by

seine. The plaintiffs object to Chief Sparrow’s testimony that there were a lot of

discussions about how these fisheries would take place and how we would conduct

them. He could not speak to a written form or signed agreement between Cowichan

or Halalt or Chemainus.

[571] I see no reason to exclude this evidence.

Objection 142 Day 377 p. 53 lines 8 – 10 opinion

[572] This is a continuation of the preceding question. Chief Sparrow was asked if

there was a written co-management agreement between Musqueam and Cowichan

in 1995. He said that there may or may not have been a written document. The

plaintiffs object to the following testimony on the grounds that it is opinion: “But it's

very consistent of the custom, traditional agreements that we talked about in the

longhouse setting.”

[573] Musqueam says this is oral history.

[574] This is admissible as a modern application of oral history.

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

[575] Chief Sparrow was asked to interpret a letter from Penelakut to Musqueam

dated September 15,1997 (document SC06175, exhibit A-556 for identification).

Cowichan Tribes v. Canada (Attorney General)

Page 128

[576] There are five passages in this objection. The first passage at p. 54, lines 24-

28 addresses inconsistency of practice between DFO’s Vancouver and Nanaimo

offices which I find to be admissible. Chief Sparrow is able to give his interpretation

of these letters created during his time in fisheries management.

[577] The second passage at p. 56, lines 11-15 is speculation about whose

handwriting is on the document and what they are discussing. This is inadmissible

speculation.

[578] The third passage at p. 57, lines 6-10 is admissible oral history. Chief

Sparrow’s testimony is to the effect that Penelakut was contacting Musqueam to

access salmon in keeping with the traditions and protocol.

[579] In the fourth passage at p. 57, lines 27-34 Chief Sparrow provides his

interpretation of the letter. Chief Sparrow testified that it appeared that Penelakut

had some boat problems, and that is why they made a request so late in the season.

Chief Sparrow considered a notation on the letter “no opportunity” and “boat

problems” in giving his testimony. He is able to testify that it would be difficult to

catch 12,000 fish with that amount of boats by gillnet because he is a very

experienced Fraser River fisher. On balance, I find this passage admissible.

[580] In the final passage at p. 57, line 40-p. 58, line 5 Chief Sparrow testified that

he does not have information to answer the question about how many fish Penelakut

had already caught. This evidence is admissible.

Objection 145 Day 377 p. 59 lines 1 – 21 and p. 61 line 35 – p. 62 line 6

speculative opinion; hearsay

[581] Chief Sparrow was asked to interpret a letter to Musqueam from Lyackson

dated August 11, 1998, asking for a protocol agreement (exhibit 334). He did not

deal personally with Lyackson.

[582] Musqueam does not rely on the evidence at p. 59, line 1, starting with “and it

looks like” to the end of line 10 and at p. 61, line 31 starting with the words “but

obviously” to line 46 ending with the words “not have been there”.

Cowichan Tribes v. Canada (Attorney General)

Page 129

[583] I find Chief Sparrow is speculating about what might have been happening.

This evidence is not admissible.

Objection 147 Day 378 p. 17 lines 3 – 13 and lines 19 – 31 speculative

opinion

[584] Chief Sparrow was questioned about a meeting that took place on February

8, 2007 at the Grant family longhouse and the minutes of that meeting prepared by

Leona Sparrow (document SC06249, exhibit A-565 for identification). Chief Sparrow

attended this meeting. He remembered the comments that were made by Penelakut

elder Oggie Sylvester.

[585] He was asked what Chief Harvey Alphonse of Cowichan Tribes meant when

he said that he is “forced to sign these agreements by DFO”. Chief Sparrow declined

to speculate on what Chief Alphonse meant, but then goes on to do so. The

evidence at p. 17, lines 3-13 is not admissible.

[586] He then commented on the thoroughness of their minute-taker. The evidence

at lines 19-31 is admissible.

Objection 148 Day 378 p. 25 line 28 – p. 26 line 29 hearsay

[587] Chief Sparrow was asked again about the minutes of the February 8, 2007

meeting. In the excerpt objected to, Chief Sparrow was asked to speculate as to

what Chief Alphonse means. He does not do that. He provides a history of the

meetings where the Coast Salish people have come together to discuss how to

communicate and how to share resources and how to govern and what to put in a

protocol. He testified that our elders talked about being one family.

[588] This answer is not responsive to the question which invited Chief Sparrow to

speculate. The answer is, however, admissible and an explanation of some of the

history behind the February 8, 2007 meeting.

Cowichan Tribes v. Canada (Attorney General)

Page 130

Objection 150 Day 378 p. 30 lines 19 – 24 hearsay; opinion

[589] This passage relates to Musqueam’s 2012 protest. Counsel suggested to

Chief Sparrow that it is dangerous to fish without a license because no one is

managing the fishery. Chief Sparrow disagreed and said that the protocols are about

respect and how things were done by connection.

[590] Chief Sparrow’s testimony about protocols, communication and respect and

how Musqueam did things as a family is admissible oral history.

Objection 151 Day 378 p. 31 line 46 – p. 32 line 1 opinion

[591] Chief Sparrow was asked about whether the protest put people in danger.

[592] Chief Sparrow answered that as experienced fishermen and experienced

people on the water, Musqueam knows the water and the river quite well. That

passage is admissible.

[593] Chief Sparrow’s evidence at p. 31, lines 46-47, that “we’ve fished there for

thousands of years.” is inadmissible opinion. I accept that Chief Sparrow’s assertion

reflects his sincere belief. However, it is unsourced and not tethered to any oral

history.

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

[594] Chief Sparrow was asked about Musqueam’s strategy for the protest.

[595] In the passages at page 33, lines 1-18 Chief Sparrow provided a history of

operating as communities and as families and not imposing themselves. He

referenced meetings “going all the way back” and that nobody forced anybody to

sign a protocol agreement or to go over to the Island and talk about it. That was all

done out of respect.

[596] That is oral history and is admissible.

Cowichan Tribes v. Canada (Attorney General)

Page 131

[597] The words “Everybody said it and I think everybody says it today” should be

excluded.

[598] At p. 33, lines 31-40 Chief Sparrow talked about what the Musqueam

leadership wanted. He said in 2011-2012 all of those discussions were thrown out

the window because the respect for each other was thrown out the window. There

was a switch from resource sharing to ownership. This is admissible evidence is

based on Chief Sparrow’s personal knowledge and observation and his knowledge

of the perspective of Musqueam in his capacity as their leader.

[599] At p. 34, lines 1-8 Chief Sparrow spoke of his observation about the position

that Cowichan Tribes took. He testified that they were no longer willing to talk like

elders and leaders had talked in the past. This is admissible based on his personal

observation.

[600] At p. 35, lines 39-45 Chief Sparrow testified that the chief at the time said if

people do not follow the process that they talked about collectively, this was going to

go ahead and go into court. This is inadmissible hearsay with little or no probative

value.

Objection 153 Day 378 p. 44 lines 1 – 19 hearsay; opinion

[601] Chief Sparrow was asked if Cowichan Tribes asserted an Aboriginal right

back in 2005, and referred him to exhibit 375. In his answer he referred to the history

of meetings and talking and does not draw the conclusion that counsel suggested.

His answer is admissible.

Objection 154 Day 378 p. 54 lines 37 – 46 hearsay; speculative opinion

[602] Chief Sparrow was asked about a letter dated July 31, 2012 (document

SC06198, exhibit A-578 for identification) from Snuneymuxw First Nation to

Musqueam that says:

Our peoples have worked together over generations to ensure that in the

pursuit of meeting our people's needs we each follow proper protocol

regarding access to our respective exclusive Aboriginal title and rights, and

treaty rights protected resources.

Cowichan Tribes v. Canada (Attorney General)

Page 132

[603] Chief Sparrow was asked to explain what “respective exclusive Aboriginal title

and rights” means. He declined to answer that question and counsel moved on but

Chief Sparrow added a comment later that is objected to. The comments at lines 37-

46 are inadmissible opinion.

Objection 156 Day 378 p. 67 lines 20 – 22 speculative opinion

[604] Chief Sparrow was asked if term 7 of the Protocol Agreement form (exhibit A-

550 for identification) means that conservation comes first, and then the food, social

and ceremonial needs of Musqueam come next, and requests for other First Nations

for protocol permissions would be the third priority. Chief Sparrow said that it varies

from year to year. Sometimes other First Nations did not request a protocol because

they may have accessed their fish in different areas.

[605] The plaintiffs object to Chief Sparrow speculating as to why another First

Nations acted in a certain way.

[606] This evidence is speculation and is not admissible.

Objection 157 Day 378 p. 69 lines 8 – 32 and p. 70 lines 42 – 44 hearsay;

opinion

[607] With reference to exhibit A-550, Chief Sparrow was asked if the right of

another First Nation who seeks protocol would ever be entitled to their allocation

before Musqueam meets their allocation.

[608] Chief Sparrow gave an interpretation of what he thinks term 7 means.

[609] Chief Sparrow has had years of working with protocol agreements and is in a

position to explain the purpose of the terms. This evidence is admissible.

Objection 158 Day 379 p. 13 lines 15 – 37 hearsay; speculative opinion

[610] Chief Sparrow was asked about a letter from Musqueam to Halalt dated

January 12, 1996 (document SC06260, exhibit A-582 for identification). It was a

follow-up to the meeting held in the Chemainus longhouse in the fall of 1995. Joe

Cowichan Tribes v. Canada (Attorney General)

Page 133

Becker wrote the letter and advises Halalt that it is time to come to an agreement on

how their First Nation is to access their sockeye allocations for the 1996 season.

[611] Chief Sparrow thinks he was at the Chemainus longhouse meeting but he

cannot be certain which meeting the letter refers to. He provided some background

to this letter. The letter says, “You might want to consider that our fishers fish for

your First Nation on a regular basis throughout the season … This would eliminate

the possibility that, as in past, you do not achieve your requirements.” Chief Sparrow

said that there were concerns discussed at the meetings and he thinks this offer was

made to avoid the First Nations getting stuck and having their allocation held off until

late September. The letter is consistent with his recollection that management

wanted to provide access in a timely manner.

[612] Chief Sparrow has the personal knowledge and experience to provide this

background information. It is admissible evidence.

Objection 160 Day 379 p. 37 lines 17 – 19 and line 34 opinion

[613] Chief Sparrow was asked whether, in 2005 when the Cowichan were claiming

a historical connection to the Fraser River and an entitlement to participate in the

fishery on behalf of their members, Musqueam denied that entitlement unless

Cowichan obtained permission from Musqueam.

[614] Chief Sparrow answered that Musqueam could not deny what they did not

know was transpiring. He refers to an individual fishing on behalf of Cowichan Tribes

at the Steveston docks. The objected to passage follows at lines 17-19 and is an

opinion on what transpired:

That’s not consistent we talked about in our agreements with the leadership

and the elders.

[615] This is inadmissible opinion.

[616] The underlined evidence in the next passage is also objected to:

That's what I'm trying to get clear with you that at no time whatsoever that I'm

aware of that we denied any of those ones, including Coast Salish bands if

Cowichan Tribes v. Canada (Attorney General)

Page 134

they went through that process that was -- that was agreed to amongst all of

us.

[617] This passage is admissible. Chief Sparrow gave evidence of his

understanding about what was agreed to by the Coast Salish bands in attendance at

the protocol meetings.

Objection 161 Day 379 p. 38 lines 35 – 40 hearsay

[618] By way of background to the evidence that the plaintiffs object to, Chief

Sparrow was asked:

So in 2005, and then later again in 2011 and 2012, when the Cowichan got

fishing licenses without going to the Musqueam first and asking permission,

in the mind -- in your mind and in the Musqueam's view, that was the

Cowichan exercising an entitlement which they didn't have?

[619] In response, Chief Sparrow testified that in 2005 there was an agreement.

[620] The plaintiffs submit that this is inadmissible hearsay because Chief Sparrow

does not reference the agreement. Musqueam submits that he is footnoting to past

historical agreements that were in place that he previously testified about.

[621] I accept Musqueam’s submission about Chief Sparrow orally footnoting to

historical agreements and prior testimony. This passage is admissible.

Objection 162 Day 379 p. 39 lines 4 – 5, lines 19 – 37, line 47; p. 43

line 47 – p. 44 line 19 hearsay; opinion

Objection 165 Day 380 redirect p. 35 lines 2 – 21 hearsay; opinion

[622] This evidence is a continuation of the question about 2005 and the Cowichan

fishing without requesting permission from Musqueam.

[623] At lines 4-5 Chief Sparrow answered that the Cowichan informed Musqueam

that they were no longer going to follow protocol agreed to by their respected elders

and they were going to take a different approach. This is admissible for a non-

hearsay purpose.

Cowichan Tribes v. Canada (Attorney General)

Page 135

[624] At lines 19-37 Chief Sparrow was asked if Musqueam’s position in 2005 was

that there was no entitlement of the Cowichan to fish on the Fraser River without

Musqueam’s permission. In his answer, Chief Sparrow testified that 2005 was

consistent with the very big meeting of those discussions, going back to the

Esquimalt longhouse meeting. He does not answer the question about entitlement.

[625] Counsel Macaulay for Musqueam raised an objection to the use of the word

“entitlement” being a legal question. I allowed the objection and asked counsel

Rosenberg for the plaintiffs to rephrase the question. He did so at pp. 42-43. Chief

Sparrow said that at no time were they talking about entitlement. He was not aware

of the word entitlement ever being used. In the meetings he footnoted they used the

words “working together, family, historic or oral history”.

[626] This evidence is admissible evidence of Chief Sparrow’s personal knowledge

and oral history about meetings in the past where protocol was discussed.

[627] At Objection 165, Chief Sparrow was asked about his testimony on Day 379,

p. 39, including lines 4-5 (which is the subject of Objection 162). He was asked what

he meant by “agreeds” and he said “agreements that were agreed to by the

respected elders…agreements that were talked about in the longhouse setting by all

parties involved … From our traditions.”

[628] The plaintiffs submit that Chief Sparrow referred to these agreements that

were talked about in the longhouse, but did not provide any details about which

longhouse, which agreements, and if he was there. He provided no names and did

not identify the communities that were involved. The plaintiffs submit that throughout

his testimony, Chief Sparrow talked about the Esquimalt longhouse meeting which

he did not attend.

[629] Musqueam submits that the evidence objected to is a reference to the

meetings and discussions about oral history about traditional protocol agreements

that the ancestors made. Chief Sparrow gave evidence of Musqueam’s position in

2005. He was in a leadership position at the time and his answer that Musqueam’s

Cowichan Tribes v. Canada (Attorney General)

Page 136

position was consistent with the meetings going all the way back to the Esquimalt

longhouse was within his knowledge.

[630] I agree that Chief Sparrow is footnoting or referencing previous evidence

about meetings and protocol agreements. Even though he was not at the Esquimalt

longhouse meeting, he is aware of what was discussed there and afterwards. This

evidence is admissible.

Schedule B Objections

[631] Musqueam has highlighted all the evidence of Chief Sparrow that they rely on

as oral history evidence in Schedule “B” to their written submissions.

[632] The plaintiffs made a general objection to all of Chief Sparrow’s oral history

on grounds that he is not an oral historian. I reject that objection for the reasons set

out above.

Schedule B, p. 40 (Day 375, p. 14, lines 29 – 36, 10:47:15 – 10:47:45)

[633] Chief Sparrow was read a passage from the February 15, 2007 memorandum

containing the minutes of a protocol meeting held at the Grant family longhouse on

February 8, 2007 (document SC06249, exhibit A-565 for identification). The quote

that was put to Chief Sparrow is a quote from what Penelakut elder Oggie Sylvester

is recorded to have said: “we must remember who we are and that we all come from

the same family.”

[634] Chief Sparrow was asked if he had heard this statement before. He answered

“yes”. He was then asked if it is a statement that he heard from any of the members

of the plaintiff bands. He answered “yes”.

[635] The answers to both questions are objected to on grounds that they lack a

stated source and that they are not oral history.

[636] Musqueam submits that Chief Sparrow is referring to his previous testimony

about oral history. I agree that this evidence comes from Chief Sparrow’s oral

history. This evidence is admissible.

Cowichan Tribes v. Canada (Attorney General)

Page 137

Schedule B, p. 53 (Day 379, p. 50, lines 17 – 21, 2:20:47 – 2:20:57)

[637] Chief Sparrow was asked what his knowledge is of Cowichan fishing in the

Fraser River. He referenced talking to his uncle Dominic Point and “a few of them”.

He testified that it was not the whole Cowichan Tribes, and that the relationship still

says the same with his family from there, including the Penelakut.

[638] The same subject matter was dealt with in Objection 91 and my reasoning

that this is admissible oral history evidence applies.

WITHDRAWN OBJECTIONS AND EVIDENCE NOT RELIED ON

[639] In the course of written and oral submissions, counsel for the plaintiffs have

withdrawn certain objections and portions of other objections. Those are

particularized at Attachment 1 to this ruling.

[640] Similarly, counsel for Musqueam has indicated that there is some evidence

from Larry Grant and Chief Sparrow that they will not rely on for any purpose. That

evidence is particularized at Attachment 2 to this ruling.

SUMMARY

[641] In summary, the purpose of the voir dire was to determine the threshold

reliability of the oral history evidence of Larry Grant, Morgan Guerin and Chief

Wayne Sparrow, and to allow them to testify without interruption. Had this been done

in the trial proper, the witnesses would have had to testify for many more days. This

has been an arduous process but one which I am satisfied has shown respect to

Musqueam’s witnesses. The plaintiffs raised numerous objections to the witnesses’

oral history evidence and the other evidence that they gave. Generally, with few

exceptions, I have found the oral history evidence of these witnesses is admissible.

[642] I will hear from the parties now on whether they consent to having the

admissible evidence entered into the trial record. This must be done with precision

by referencing transcript passages to ensure that only admissible evidence is

allowed in the trial.

Cowichan Tribes v. Canada (Attorney General)

Page 138

[643] Musqueam has liberty to seek to call additional evidence in the trial if they

consider it necessary as a result of this ruling.

[644] To preserve the integrity of the trial process these reasons will be sealed until

a decision is made about the use of the voir dire evidence. Accordingly, I order that

these reasons be sealed with access only to counsel of record until further order of

the Court.

“B. M. Young, J.”

The Honourable Madam Justice Young

Cowichan Tribes v. Canada (Attorney General)

Page 139

Attachment 1

Cowichan Tribes v. Canada (Attorney General)

Page 140

Cowichan Tribes v. Canada (Attorney General)

Page 141

Cowichan Tribes v. Canada (Attorney General)

Page 142

Attachment 2

Cowichan Tribes v. Canada (Attorney General)

Page 143

Cowichan Tribes v. Canada (Attorney General)

Page 144

Cowichan Tribes v. Canada (Attorney General)

Page 145

Cowichan Tribes v. Canada (Attorney General)

Page 146

Cowichan Tribes v. Canada (Attorney General)

Page 147

Cowichan Tribes v. Canada (Attorney General)

Page 148

Cowichan Tribes v. Canada (Attorney General)

Page 149