Date: 20010822
Docket: T-910-01
Neutral citation: 2001 FCT 936
BETWEEN:
RAYMOND CLAYTON WILSON, on his own behalf,
and RAYMOND CLAYTON WILSON as Chief
and DOUGLAS LEROY LARDEN,
KENNETH MICHAEL WILSON,
JOAN MARIE BENNETT ,
and FRED GEORGE WILSON
as Councilors on behalf of the
HWILTSUM FIRST NATION,
and the said HWILTSUM FIRST NATION
Applicants
and
MINISTER OF FISHERIES AND OCEANS (CANADA)
Respondent
and
B.C. FISHERIES SURVIVAL COALITION
Intervenor
and
TSAWWASSEN INDIAN BAND, also known as
TSAWWASSEN FIRST NATION
Intervenor
REASONS FOR ORDER
HARGRAVE, P.
BACKGROUND
[1] The Tsawwassen First Nation seeks status, either as a Respondent or as an Intervenor, in these proceedings, which involve the right of the Applicants to an aboriginal licence for a sockeye salmon food fishery. At the conclusion of the Motion and having all of the representations freshly in mind, I determined that the Tsawwassen Indian Nation, which engaged in that fishery, had an interest in this matter sufficient to afford it the status of an Intervenor. At that point I wished to consider the extent of the participation, particularly as to the filing of affidavit evidence.
[2] The thrust of this Intervenor's affidavit evidence would be oral history going to establish the continuous control by the Tsawwassen First Nation, vis-à-vis other Indian Nations and Bands, over portions of the Lower Fraser River fishery in general, including the sockeye salmon fishery. That continuous control is said to extend from the mouth of the Fraser River, including portions of the north arm and the main arm of the Fraser River, and to the south, Canoe Pass, up to about New Westminster.
ORAL ACCOUNTS OF HISTORY AND THEIR USE AS EVIDENCE
[3] Oral history is a product of events, both as related from one generation of the Indian Nation's elders, to the next generation and as observed and experienced by the present generation of elders. Such oral history is an important aspect within an Indian Nation, so it may know its past, its place in the course of past events, its traditions, customs and way of life, its growth, its relationships and affiliations with others, its identity and also to establish its direction of progress in the future.
[4] Chief Justice Lamer, in Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, at page 1067, referred to the purposes of oral accounts of history, noting that the focus of aboriginal oral histories is less on establishing objective truth and that its purpose may be to educate, to communicate facets of the culture, to socialize people into a cultural tradition, or to validate claims of a family to authority and prestige:
A useful and informative description of aboriginal oral history is provided by the Report of the Royal Commission on Aboriginal Peoples (1996), vol. 1 (Looking Forward, Looking Back), at p. 33:
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] Oral history may be also critical to assist in establishing and clarifying claims to various rights, both rights under treaties and those rights broadly referred to as aboriginal rights. However, the subjective experience base, referred to in the quotation used by Chief Justice Lamer in Delgamuukw, does not mean an abandonment of all objectivity and duty by the elders: rather, the role of an elder places a heavy burden and indeed a trust on those who are so designated, for an elder must be responsible and objective. This trust and the concurrent responsibility and objectivity are not to be measured in absolute terms, any more than what is written in history texts, for the latter often take a view that is influenced by contemporary outlooks and the overall perspective of the author. Rather, and this is a point made by Madam Justice McLachlin of the Supreme Court of Canada in Mitchell v. Canada an unreported decision of 16 June 2001, file number 27066, 2001 S.C.C. 33, oral histories are admitted into evidence where they are useful and reasonably reliable:
31 In Delgammuukw, mindful of these principles, the majority of this Court held that the rules of evidence must be adapted to accommodate oral histories, but did not mandate the blanket admissibility of such evidence or the weight it should be accorded by the trier of fact; rather, it emphasized that admissibility must be determined on a case-by-case basis (para. 87). Oral histories are admissible as evidence where they are both useful and reasonably reliable, subject always to the exclusionary discretion of the trial judge. [emphasis added]
[6] In Mitchell Madam Justice McLachlin also dealt with the application of the rules of evidence to oral history, pointing out that underlying the various rules on admissibility are three simple ideas, first usefulness intending to prove relevant facts; second, reasonable reliability for unreliable evidence may hinder the search for truth; and third that even useful and reasonable reliable evidence might, at the discretion of the trial judge, be excluded if probative value is overshadowed by potential for prejudice:
30 The flexible adaptation of traditional rules of evidence to the challenge of doing justice in aboriginal claims is but an application of the time-honoured principle that the rules of evidence are not "cast in stone, nor are they enacted in a vacuum" (R. v. Levogiannis, [1993] 4 S.C.R. 475, at p. 487). Rather, they are animated by broad, flexible principles, applied purposively to promote truth-finding and fairness. The rules of evidence should facilitate justice, not stand in its way. Underlying the diverse rules on the admissibility of evidence are three simple ideas. First, the evidence must be useful in the sense of tending to prove a fact relevant to the issues in the case. Second, the evidence must be reasonably reliable; unreliable evidence may hinder the search for the truth more than help it. Third, even useful and reasonably reliable evidence may be excluded in the discretion of the trial judge if its probative value is overshadowed by its potential for prejudice. [emphasis added]
ANALYSIS
[7] Without completely losing sight of the three principles set out in Mitchell, above, by Madam Justice McLachlin, my task is to determine a minimum threshold, below which the oral historical evidence of the Tsawwassen First Nation as Intervenor ought not to be permitted at all. That threshold is whether the particular oral history might possibly be both useful and reasonably reliable so as, in the words of Madam Justice McLachlin, to promote truthfulness and fairness, keeping in mind that my application of the principles "should facilitate justice not stand in its way." In the present instance at issue here is the value of the oral history of Tsawwassen First Nation, as presented on this Motion in order to demonstrate its worth in the present proceeding, and thus to determine the procedural rights that should go with the privilege of intervention which has been granted.
[8] This is not a claim by the Applicants to an interest in land, but rather the claim by the Applicants to an aboriginal right to fish. To counter the Applicants' claim I have been referred to the affidavit evidence of an elder of the Tsawwassen First Nation, a former chief, sworn 26 July 2001. That affidavit evidence purports to establish that Canoe Pass, the southernmost arm of the mouth of the Fraser River, was occupied by the Tsawwassen First Nation, who thoroughly utilized the resources in the area, for "thousands of years" as an "exclusive fishing grounds of the Tsawwassen People.". The affidavit of the present chief of the Tsawwassen First Nation sets out that "historically, the Tsawwassen People had exclusive jurisdiction over the fisheries at Canoe Pass to the exclusion of all other aboriginal groups.".
[9] To summarize the position of the Tsawwassen First Nation it is that it can provide oral historical and other evidence of fishing practices of their contemporary community in order to show the continuity of present practices of the Tsawwassen First Nation with those of the same community before European contact. This continuity of fishing, from the time of the first European contact is, indeed, a critical aspect.
[10] In contrast, counsel for the Applicants refers me to a document called "Tsawwassen First Nation Presentation of Treaty Negotiation Proposal", dated 28 July 2000, which purports to set
out the recollections of the same elder who swore the 26 July 2001 affidavit in the present proceeding. In 2000, just a year ago, that elder's recollection was:
Prior to 1962 or '63, there was no Tsawwassen native food fishery at all. The elders at that time could not recall when they had been permitted to fish. I am under the assumption that a permit was available but we, the Indians, were not made aware of it.
. . .
Then in 1962 or '63, I, along with my father-in-law who had the fishing gear, got a permit to go fishing for dog, chum, salmon. In about '64 or '65, I told DFO that no one else in the Band had fishing gear so I got a permit for a food fishery for the Band members who didn't have any gear.
Around 1971, I was permitted to fish for sockeye for the whole band. At this time I was the only one fishing, the Musqueam were not. Then in the early ‘70's the Musqueam started fishing.
Counsel for the Tsawwassen First Nation had no real answer for inconsistencies surrounding the present affidavit and the recollections, a year earlier, of the deponent of that affidavit. Clearly, at one time, aboriginal peoples, including the forefathers of the present Tsawwassen First Nation, did have a fishery on some parts of the Fraser River. Counsel for the Applicants put matters into what I feel is a proper perspective, submitting that since at least 1891, the date of first contact, there had been no exclusive control by Tsawwassen First Nation over Canoe Pass and while there was fishing by what is now the Tsawwassen First Nation in the Fraser River, the documents indicated that there had been no fishing by First Nations people, near the mouth of the Fraser River, between 1914 and 1962. Here I return to the 28 July 2000 evidence of the elder, who pointed out that in order to get a commercial fishing licence one had to be a Canadian citizen, however First Nations people were not then classified as Canadians, but rather wards of the state. The only alternative was for First Nations people to set aside their status as Indians and become citizens so they might fish commercially.
[11] As I say counsel for the Tsawwassen First Nation was unable to satisfactorily reconcile the present affidavit evidence of the elder with that same person's recollections of a year earlier, apparently part oral history and part personal evidence. Thus the oral historical evidence tendered not only fails a reasonably reliable test, but is clearly, on its face, completely unreliable. As such it would not be useful. Moreover, any probative value is overshadowed by the potential prejudice to the Applicants. Such oral evidence would hinder the search for truth, more than help it.
[12] The question then becomes whether the Tsawwassen First Nation might present other evidence, that is evidence which does not have an historical oral basis and here I note the basic proposition that, absent a broadening of the mandate of an Intervenor by the Court, an Intervenor takes the record as it exists: see for example Yale Indian Band v. Aitchlitz Indian Band (1999) 151 F.T.R. 36 at 41 and following. Similarly, an Intervenor has no absolute right to file affidavit evidence: Sunshine Village Corporation v. Canadian Parks and Wilderness Society, an unreported 5 June 1995 decision of the Court of Appeal in proceeding A-464-95.
[13] Taking all the circumstances into consideration, including that aboriginal title to land is not relevant to the present application, I believe that the Respondent, the Crown, through the Minister of Fisheries and Oceans, can make available sufficient and appropriate evidence to deal with current fishing practices and circumstance, including as to the demands on the salmon fishery in the Fraser and the limited nature of the resource. In the result the Tsawwassen First Nation should have more than enough evidentiary material put into the record by the parties and by the Intervenor, B.C. Fisheries Survival Coalition, to enable it to take the record as it finds it and then more than adequately protect its position by arguing from that record.
CONCLUSION
[14] I am not convinced that Tsawwassen First Nation can add anything to the evidence that will either be useful, or necessary, or reasonably reliable, for there is no prima facie case to show any of this. Therefore Tsawwassen First Nation will take the record as it finds it, without the privilege of filing any affidavit evidence or to cross-examine on affidavits. While it is appropriate the Tsawwassen First Nation might participate in interlocutory matters, to the extent of argument, it may not bring motions without the prior leave of the Court and then only on such terms as the judge or prothonotary may then allow. There will be no right of appeal and no right to or liability in costs, except in the case where the Tsawwassen First Nation might be allowed to bring an interlocutory motion.
(Sgd.) "John A. Hargrave"
Vancouver, British Columbia
22 August 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-910-01
STYLE OF CAUSE: Raymond Clayton Wilson et al. v. Minister of Fisheries and Oceans (Canada)
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 10, 2001 and August 14, 2001
REASONS FOR ORDER OF HARGRAVE, P.
DATED: August 22, 2001
APPEARANCES:
Mr. Craig D. Bavis FOR APPLICANTS
Mr. R.S. Whittaker FOR RESPONDENT
Mr. J. Keith Lowes FOR INTERVENOR
B.C. Fisheries Survival Coalition
Ms. Michelle Ellison and FOR INTERVENOR
Mr. Greg McDade Tsawwassen First Nation
SOLICITORS OF RECORD:
Victory Square Law Office FOR APPLICANTS
Vancouver, B.C.
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Mr. J. Keith Lowes FOR INTERVENOR
Barrister & Solicitor (B.C. Fisheries Survival Coalition)
Vancouver, B.C.
Ratcliff and Company FOR INTERVENOR
North Vancouver, B.C. (Tsawwassen First Nation)
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