Docket: T-238-80
Citation: 2015 FC 1159
Ottawa,
Ontario, October 9, 2015
PRESENT:
The Honorable Mr. Justice Zinn
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BETWEEN:
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JIM SHOT BOTH SIDES AND ROY FOX,
CHARLES FOX, STEVEN FOX,
THERESA FOX, LESTER TAILFEATHERS,
GILBERT EAGLE BEAR,
PHILLIP MISTAKEN CHIEF,
PETE STANDING ALONE,
ROSE YELLOW FEET,
RUFUS GOODSTRIKER, AND
LESLIE HEALY,
COUNCILLORS OF THE BLOOD BAND,
FOR THEMSELVES AND ON BEHALF OF
THE INDIANS OF BLOOD BAND RESERVE
NUMBER 148; AND THE BLOOD RESERVE
NUMBER 148
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Plaintiffs
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and
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HER MAJESTY THE
QUEEN
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Defendant
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ORDER AND REASONS
[1]
The Plaintiffs [the Blood Tribe] and the
Defendant [Canada] each brought complementary motions regarding procedural
aspects of the trial of this action. The motions were heard together; this
Order and Reasons deal with both.
[2]
In this action, the Blood Tribe claims that the
land provided to it by Canada is less than that agreed upon under the
provisions of Treaty 7.
[3]
The Blood Tribe, pursuant to a Direction issued
by the case management judge dated September 12, 2014, seeks an Order
confirming that this action will be heard in three phases. Both parties and
the Court are agreeable to this manner of proceeding.
[4]
In Phase I, the Court will receive evidence of
the oral traditions of the Blood Tribe and the oral history evidence of Elders
of the Blood Tribe. It is agreed that this evidence will be heard at the Blood
Tribe Reserve located near Standoff, Alberta. A site visit has been undertaken
by the trial judge with the parties and their counsel to confirm that adequate
facilities are available to hear and record this evidence. The agreement to
have the Elder testimony heard earlier than the remainder of the trial evidence
was made because the Elders proposed to be called as witnesses are aging and some
might not be available or able to testify later. The parties and the Court
agreed that this manner of proceeding was preferable to the taking of
Commission evidence. It was further agreed that, given the lengthy gap between
the receipt of the Elders’ testimony and the receipt of the rest of the
evidence, the Court would entertain submissions on the admissibility of the
Elders’ evidence immediately following their testimony. A ruling on
admissibility may be delayed until the conclusion of Phase II if the trial
judge is of the view that the interests of justice are better served by such a
delay.
[5]
In Phase II, to be held not more than two years
later, unless otherwise ordered by the trial judge, the Court will receive the
evidence of Canada and any rebuttal evidence of the Blood Tribe. Following
Phase II, the Court will render judgment on the claim, save and except for
issues related to remedy if the Blood Tribe is successful. Phase III, if
necessary, will deal with remedy.
[6]
The Blood Tribe also seeks an order that,
notwithstanding the commencement and completion of Phase I of the trial, the
parties shall be entitled, subject to any direction of the case management or
trial judge, to:
a. Conduct further discovery of officers and employees of the party
opposite in accordance with the Federal Courts Rules prior to the
commencement of Phase II of the trial;
b.
Serve Notices of Intention to elicit expert evidence
prior to Phase II of the trial; and
c.
Serve such Notices as permitted under the Evidence
Act (Canada or Alberta) up to but not after 7 days prior to the opening of
Phase II of the trial.
[7]
Canada does not oppose such an Order and the
Court is satisfied that the interests of justice are best served by issuing it.
[8]
The Blood Tribe also sought an Order that Phase
I might include a site visit to the places at or near the Blood Tribe Reserve
that the Blood Tribe expects to be the subject of the Elder evidence. This was
not opposed by Canada. The Court is agreeable to such a site visit provided that
it will not yield evidence forming the basis of any inferences to be drawn by
the trial judge but will be restricted to providing the trial judge and counsel
with a better understanding of the evidence to be given by the Elders. If such
a site visit is to occur, the Blood Tribe is to inform the Court and Canada at
least 6 weeks prior to the commencement of Phase I; otherwise, no site visit
will be undertaken. Any site visit is to be arranged by the Blood Tribe, at
its expense, and shall include all counsel, their advisors, the trial judge,
and court staff, and it shall take place on the first day of Phase I.
[9]
Canada, in its cross-motion, sought an Order of
the Court setting out a protocol for the hearing of the Phase I evidence. Both
parties provided a proposed protocol for this part of the trial. The issue of
contention between the parties that was argued at length was Canada’s request
that the Blood Tribe provide “will say”
statements for the Elder evidence, prior to the start of Phase I of the trial.
[10]
Canada’s proposed protocol with respect to the
will say statements is as follows:
1. WILL
SAY STATEMENTS:
a. By a deadline to be set by the case management Justice, the
Plaintiffs shall provide to the Defendant a will say statement for each Elder
to be called as a witness.
b. The will say statements shall contain sufficient details to
allow for challenges based on relevancy and otherwise, and for effective
preparation of cross-examination. The content of the will says shall include,
but not be limited to, a detailed, specific and comprehensive description of:
i. The language that will be used
by each Elder;
ii. How the Elder’s oral history is preserved, who is
entitled to relate the oral history and how this entitlement is assessed, the
community practice with respect to safeguarding the integrity of its oral
history (to the extent that this information is not provided in another expert
report/statement);
iii. The personal, family, community and professional
background of the Elder sufficient to fully ascertain the witness’ status as an
Elder in the community and the witnesses [sic] authority to recount the
oral history (to the extent that this information is not provided in another
expert report/statement);
iv. Any other background of the Elder relevant to the
testimony that he or she will provide;
v. How and when the Elder came to
know the evidence;
vi. Who relayed the evidence to the Elder, the relationship
of the Elder to that person, that person’s general reputation, and whether that
person witnessed the event or was told of it; and
vii. What the witness will say.
c. The will say statements will not form part of the evidence at
trial but the Defendant will be able to use the will say statements in evidence
as a prior statement of the Elder witness.
[11]
The Blood Tribe opposed providing will say
statements for the Elders. They submit that the “evidence
about the tradition of the Blood Tribe, their culture and connection to the use
of their lands, will assist the Court to understand what lands the Blood Tribe
leaders understood as part of their home territory.” The general nature
of that evidence from the Elders was outlined by counsel at the hearing in the
following terms:
So the Court will hear evidence of the Blood
Tribe tradition of treaty making and peace making. The Court will hear
evidence of how they protected their territory and, in particular, the concept
of exclusive right to their territory and sharing their territory with others.
The Court will hear evidence about decision-making within the Blood Tribe. The
Court will hear evidence about the events surrounding the entering of Treaty 7
by the Blood Tribe and the other First Nations, including evidence regarding
what took place from the Blood Tribe perspective, the language barrier and the
problem with interpreters. The Court will hear evidence of what Chief Red Crow
meant following the Treaty 7 negotiations when he said he was returning to his
home. You'll hear evidence about the surveying of the reserve and about the
location of survey markers. The Court will hear evidence about the movement of
Blood Tribe members around the time of the treaty and other evidence relative
-- relevant to payless and the population of the Blood Tribe. The Court will
hear evidence of what lands were traditionally used by the Blood Tribe as their
home or their wintering grounds. The Court will hear evidence of what these
lands meant to the members of the Blood Tribe and how they used these lands.
The Court will hear evidence of relevant subsequent events when, example, the
Mormons come to occupy a portion of the territory near Cardston. And evidence
of the removal of Blood Tribe members from lands that -- between Waterton and
the Valley Rivers.
So those, I give by way of examples of the
kinds of evidence that you will hear.
[12]
The Blood Tribe firstly submits that requiring
will say statements “creates an entirely new process
that is not part of a civil trial conducted in accordance with the law of evidence
and the rules of court.” The Blood Tribe acknowledges that this Court
and others have required that expert and “professional”
witnesses such as police officers provide will say statements, but they point
out that the Elders are not called as experts nor are they experienced
witnesses. Moreover, they point out that they are men and women in their 70s
and 80s. Counsel asks, “Why would you hand a whole
bunch of arrows to the other side to skewer some Elders” when such is
not required in other civil cases.
[13]
Counsel is incorrect in suggesting that this action
is like other civil cases – it is not. First, in other civil actions the
evidence of the Elders would not be admitted or, if admitted, would be given
little weight, as it is hearsay. In this action, as in other aboriginal
litigation, the evidence is prima facie admissible because the Blood Tribe
does not have a tradition of written history; it has an oral tradition.
Second, unlike the usual civil action, there has been no examination for
discovery of the plaintiffs’ representative(s) and thus Canada has had no
opportunity to ask questions to learn what evidence the Blood Tribe proposes to
offer through its Elders to support the claim. Third, I reject the suggestion
that these witnesses are at risk of being “skewered”
because they are elderly and Canada may be able to raise questions as to their
credibility if their evidence differs from their will say statements. Canada
has agreed that its cross-examination will be respectful. If the evidence
given on direct examination differs in some material manner from that provided
in a witness’ will say statement, then that difference may have to be addressed
by the witness, or by counsel in submissions. There is nothing unusual or
contrary to the norm in that respect.
[14]
The Blood Tribe also submits that “the very nature of the evidence does not lend itself to a
will say statement.” I am not persuaded. The Federal Court’s Aboriginal
Litigation Practice Guidelines, developed after extensive consultation with all
stakeholders, specifically envisages that there is to be disclosure prior to an
Elder testifying. Specifically, it provides as follows in this regard:
The party calling an Elder to testify should
provide information about the Elder and the basis of his or her knowledge about
the subject matter of the testimony. Given the differing dynamics and logistical
issues that may be associated with having an Elder testify, this disclosure
need not necessarily coincide with document disclosure as long as it is timely.
The disclosure should also provide
information about the Aboriginal community’s practices or protocols for
requesting Elder testimony. Elders often refrain from describing themselves as
elders and the party calling an Elder may have a community member to introduce
the Elder and confirm his or her status as an Elder.
The disclosure should also summarize the
proposed evidence, keeping in mind both that Aboriginal respect for Elders may
involve not directing an Elder’s words and that an Elder unfamiliar with court
proceedings may respond on unexpected topics.
Where issues arise between parties over the
adequacy of the disclosure, the parties should seek assistance through case
management or trial management for a direction or ruling on the disclosure to
be provided and its timing.
[emphasis added]
[15]
Lastly, the Blood Tribe submits that the Court
has no jurisdiction to order that a party provide will say statements. I agree
with Canada that this Court has jurisdiction to make the Order requested, and indeed,
it has done so previously in aboriginal matters. Justice Russell in Sawbridge
Band v Canada, [2007] FC 657 at para 38 explains that will say statements “were designed as a procedural tool to ensure fairness,
efficiency, preparedness, and to prevent ambush at trial.” While not
specifically provided for in the Federal Courts Rules, a judge has authority
to order a party to produce will say statements by virtue of all or any of
Rules 3, 53, 265, 270, and 385 which generally provide that a judge may make
any order respecting the conduct of the action that assists in the just and
timely disposition of it. In my view, if there are no will say statements provided
for the Elders’ evidence, on the facts as outlined above, the action will not
proceed in a just and expeditious manner because the Crown will be ambushed and
not be in a position to effectively test the Elders’ evidence in the manner
provided for in the Aboriginal Litigation Practice Guidelines and generally
accepted Canadian trial procedure.
[16]
For these reasons, I am prepared to order that
the Blood Tribe prepare and deliver will say statements to Canada respecting
the Elders’ testimony.
[17]
I also think it advisable that the Court set out
a detailed protocol respecting the conduct of this trial, and particularly
Phase I. The parties were provided with a draft of the Court’s proposed
protocol for Phase I and provided many comments that have been incorporated in
the Order.
ORDER
THIS COURT
ORDERS that:
1.
This trial will be held in three phases as
follows:
Phase 1 – Evidence of Blood Tribe Elders and related expert and lay
evidence of the Blood Tribe [Phase I Evidence];
Phase 2 – Any further evidence of the Blood Tribe and the evidence
of Canada including Canada’s expert evidence, and the Blood Tribe’s rebuttal
evidence [Phase II Evidence];
Phase 3 – Evidence regarding remedy [Phase III Evidence].
2.
Phase I of the trial will take place before this
Court at the Blood Tribe’s Multipurpose Building, in the City of Standoff,
Alberta, on Monday, May 2, 2016, at 9:30 in the forenoon for a duration not
exceeding twenty (20) days to receive the Phase I Evidence. The courtroom
shall be configured as shown on the diagram attached as Appendix A. Counsel
and Court officials shall not wear formal court attire but shall be dressed in
business casual. The trial judge shall be robed. Security staff shall wear
clothing that properly identifies them. Counsel shall remain seated when
examining or cross-examining an Elder. They shall stand only when addressing
the Court.
3.
The Blood Tribe may conduct a traditional
ceremony at the Phase I trial venue immediately prior to the opening of Phase I
by the Court.
4.
The trial will continue before this Court at 635
– 8th Avenue South West, 3rd floor, in the City of
Calgary, Alberta, following the completion of Phase I, on Monday, May 30, 2016,
at 9:30 in the forenoon (or earlier at the direction of the trial judge), for
a duration of three (3) days to hear the parties’ submissions as to
admissibility of the Phase I Evidence. It is recognized that further evidence
relevant to some of those arguments may be presented in Phase II of this trial,
necessitating further argument on admissibility at that time.
5.
Subject to any further Order of the trial judge,
Phase II of the trial will commence before this Court at 635 – 8th
Avenue South West, 3rd floor, in the City of Calgary, Alberta, on
Monday, May 7, 2018, at 9:30 in the forenoon, for a duration of twenty (20)
days.
6.
Subject to paragraph 11, each party shall
disclose to the other all documents, records, maps, drawings, photographs and
the like that are intended to be referenced during Phase I [Phase I Documents]
as soon as they are identified. Within thirty (30) days prior to trial, the
parties shall prepare a Joint Book of Documents for use at Phase I containing
the Phase I Documents. The admissibility of any document at Phase I that has
not been identified and produced in accordance with this provision shall be at
the discretion of the trial judge.
7.
The Blood Tribe shall present evidence at Phase
I as to how its oral history is preserved, who is entitled to relate the oral
history, how this entitlement is assessed, and the community practice with
respect to safeguarding the integrity of its oral history. To the extent that
such evidence is not contained in an expert report previously provided to
Canada or ascertained through examination for discovery prior to Phase I, the
Blood Tribe shall provide Canada with a will say statement of the witness or
witnesses (containing the detail recited below) called to provide this
evidence.
8.
No motion to exclude from the hearing an Elder
who will be called as a witness at Phase I shall be made or entertained until
after the evidence respecting the oral history traditions of the Blood Tribe
has been concluded.
9.
Before the Elders testify, they shall be
introduced by Annabel Crop Eared Wolf, or another witness agreed upon by the
parties, who shall present biographical and genealogical evidence concerning each
Elder who will be called to testify. This witness shall also testify as to the
basis on which Elders are recognized by the Blood Tribe. If there has been no
previous examination for discovery conducted regarding this evidence then the
Blood Tribe shall provide Canada with a will say statement for this witness at
least ninety (90) days prior to trial. This witness will be subject to
cross-examination by Canada.
10.
All examinations of Elders, including direct
examination and cross-examination, will be conducted respectfully and will be
subject to the Federal Courts Act, RSC 1985, c F-7, the Federal
Courts Rules, and any other legislation applicable to trial procedure
in the Federal Court.
11.
The Blood Tribe shall provide Canada with a will
say statement for each Elder it proposes to call at Phase I. The Blood Tribe
has identified and made known to Canada four (4) such Elders. Within sixty
(60) days of the date of this Order, or such greater period as the parties may
agree or the Court order, the Blood Tribe shall provide Canada with a will say
statement for each of these four Elders. A will say statement for each of the
remaining four Elders the Blood Tribe proposes to call shall be delivered to
Canada no later than December 31, 2015. Canada shall have ninety (90) days
after the delivery of an Elder’s will say statement to identify and disclose to
the Blood Tribe the document(s) it wishes to put to that Elder.
12.
The will say statement shall contain sufficient
detail to allow for challenges to the proposed evidence by Canada on the basis
of relevancy, and for effective preparation of cross-examination. The content
of each Elder’s will say statement shall include a detailed description of:
a.
The language that will be used by the Elder;
b.
The personal, family, community and professional
background of the Elder sufficient to fully ascertain the witness’ status as an
Elder in the community and his or her authority to recount the oral history;
c.
Any background of the Elder relevant to the
testimony that he or she will provide;
d.
How and when the Elder came to know the
evidence;
e.
Who relayed the evidence to the Elder, the
relationship of the Elder to that person, that person’s general reputation, and
whether that person witnessed the event in question or was told of it; and
f.
What the Elder will say.
13.
The will say statements will not form part of
the evidence at trial but Canada will be able to use a will say statement as a
prior statement of an Elder witness should the oral evidence offered at trial
be materially different than or inconsistent with that set out in the will say
statement.
14.
An interpreter and word speller to interpret
Blackfoot into English and English into Blackfoot as required, shall be agreed
upon by the parties. If the parties cannot agree on an interpreter or word
speller at least ninety (90) days prior to the commencement of Phase I, then
one will be appointed by the Court (following receipt of submissions from the
parties). The interpreter and word speller shall be impartial and independent
to the satisfaction of the parties and the Court and need not be the same
person. Should interpretation be required, then the Court shall provide
equipment for simultaneous interpretation.
15.
Canada shall not interrupt an Elder while he or
she is speaking, except if an immediate objection is required related to
privilege or if there are serious interpretation issues.
16.
Any delay or deferral of an objection by Canada
will be without prejudice to its right to raise the objection later in Phase I.
17.
Canada may object to a question posed by counsel
before the Elder begins his or her testimony in answer, if in its opinion the
objection is so serious that it must be raised immediately. Any failure by
Canada to raise an objection to a question during the testimony of an Elder
does not prejudice the right of Canada to later object to the question (and
response) during the latter part of Phase I, which is to commence on May 30,
2016.
18.
Canada may raise an objection, which in its
submission should not wait until Monday May 30, 2016, after the conclusion of
the testimony given by one Elder and before the testimony of the next Elder or
during breaks in an Elder’s testimony.
19.
Canada and the Blood Tribe may present argument
related to the admissibility of the Elder evidence taken in Phase I, beginning
on Monday, May 30, 2016 at 9:30 in the forenoon for a duration of three (3)
days.
20.
A ruling on admissibility will be delayed until
the conclusion of Phase II if the trial judge is of the view that the interests
of justice are best served by such a delay.
21.
No decisions as to the weight to be given to any
part of the evidence heard in Phase I shall be given until the conclusion of
Phase II of the trial.
22.
A Court Reporter shall be present at all times
during Phase I and shall prepare a certified transcript of the Phase I
proceedings. Court reporting shall be completed with real-time technology.
23.
Phase I shall be recorded by video and audio by a
person or persons agreed to by the parties or, failing agreement, appointed by
the Court. They shall be made in accordance with the Federal Court Media
Guidelines, and the video shall give a direct frontal close-up of the witness’
face. The recordings are the property of the Court and a certified true copy
of the video and audio recording of the Phase I proceedings shall be marked as
a trial exhibit.
24.
Notwithstanding the commencement and completion
of Phase I of the trial, the parties shall be entitled, subject to any
direction of the case management or trial judge, to:
a.
Conduct further discovery of officers and
employees of the party opposite in accordance with the Federal Courts Rules
prior to the commencement of Phase II of the trial;
b.
Serve Notices of Intention to elicit expert evidence
prior to Phase II of the trial; and
c.
Serve such Notices as permitted under the Evidence
Act (Canada or Alberta) up to but not after 7 days prior to the opening of
Phase II of the trial.
25.
Other than issues arising from this Order, which
shall be dealt with by the trial judge, the case management judge will continue
to manage this action under the Federal Courts Rules and will decide all
pre-trial matters, unless in his view, the matter would best be directed to the
trial judge.
26.
Each party shall bear its own costs of these
motions.
"Russel W. Zinn"
Appendix “A”
Diagram of Courtroom
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