Sawridge Band v. Canada

Sawridge Band v. Canada
Court (s) Database
Federal Court Decisions
Date
2005-05-03
Neutral citation
2005 FC 607
File numbers
T-66-86A, T-66-86B
Decision Content
Date: 20050503
Docket: T-66-86A and T-66-86B
Citation: 2005 FC 607
Ottawa, Ontario, this 3rd day of May, 2005
Present: The Honourable Justice James Russell
BETWEEN:
SAWRIDGE BAND
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
and
TSUU T'INA FIRST NATION
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
TABLE OF CONTENTS
Page
THE MOTION.............................................................................................................................. 4
BACKGROUND .......................................................................................................................... 9
The Involvement of Hugessen J. ................................................................................... 10
The Involvement of Russell J. ....................................................................................... 19
THE PRESENT IMPASSE ........................................................................................................ 44
THE PLAINTIFFS' MATERIALS ........................................................................................... 50
THE LAW ................................................................................................................................... 57
THE PLAINTIFFS' ORAL ARGUMENT ............................................................................... 64
Apprehension of bias in the Federal Court - Fundamentals ......................................... 66
How Muldoon J. Influenced Hugessen J. ...................................................................... 70
How Hugessen J. Influenced Russell J. ........................................................................ 83
June 29, 2004, Amendments to Pleadings ..................................................................... 91
October 18, 2004 - the Will-Say Issue ......................................................................... 100
November 25, 2004 - The Plaintiffs' suggestions for a Workable Solution ............... 112
Will-Say Statements - Change of Position by Crown and Interveners ...................... 133
Pre-Judging ................................................................................................................... 146
Comments Directed at Plaintiffs' Counsel .................................................................. 151
Spurious and Disingenuous .......................................................................................... 160
Rank Opportunism ....................................................................................................... 166
The Reprimand .............................................................................................................. 190
The Fundamental Issue ................................................................................................ 198
THE PLAINTIFFS' WRITTEN ARGUMENT ...................................................................... 201
Allegations Against the Federal Court ........................................................................ 208
Allegations Against Hugessen J. ................................................................................. 225
Allegations Against Russell J. ..................................................................................... 229
Conclusions on the Plaintiffs' Memorandum of Argument ......................................... 254
GENERAL CONCLUSIONS .................................................................................................. 257
CONDUCT ISSUES ................................................................................................................. 261
ORDER ..................................................................................................................................... 269
REASONS FOR ORDER AND ORDER
THE MOTION
[1] In this motion, the Plaintiffs are asking the Court to find a reasonable apprehension of bias against the trial judge, Russell J., and seek an order that he recuse himself from the proceedings, even though the trial has yet to begin.
[2] In addition, the Plaintiffs say that the Federal Court itself has demonstrated a pattern of apprehended bias towards them in these proceedings that requires relief. In their Notice of Motion, the Plaintiffs asked the Court to consent to a transfer of the proceedings to the Alberta Court of Queen's Bench or, in the alternative, that a judge of either the Federal Court or the Alberta Court, and mutually agreed upon by the Plaintiffs and the Crown, be appointed to hear the trial.
[3] This request was modified at the hearing of the motion and the Plaintiffs' asked for a recommendation from the Court that the Chief Justice of the Federal Court appoint a judge acceptable to both the Plaintiffs and the Crown. The Crown does not consent to this proposal.
[4] As regards Russell J., the grounds for an apprehension of bias set out in the Notice of Motion are as follows:
(a) Russell J. has demonstrated apprehended bias, the particulars of which include but are not limited to:
(i) making statements which indicate a predisposition against the Plaintiffs with respect to the central allegation raised by the Plaintiffs, namely their alleged right to self-government;
(ii) interfering with the Plaintiffs' right to adduce evidence in presenting their case to support, inter alia, their right of self-government;
(iii) using sarcastic, disrespectful language reserved for the Plaintiffs only;
(iv) making unfounded comments suggesting that Plaintiffs' counsel were acting in a professionally unethical manner;
(v) unfairly attributing in Reasons improper conduct and motive to the Plaintiffs and their counsel;
(vi) making comments which could be reasonably inferred as indicating that he has prejudged the credibility of the Plaintiffs' evidence about, inter alia, their alleged right to self-government;
(vii) making decisions which reasonably viewed constitute a breach of the rules of natural justice;
(viii) appearing to have reviewed evidence which was not before him to find support for a position asserted by the Crown;
(ix) making, without foundation, a "devastating finding of credibility against the Plaintiffs";
(x) not providing Plaintiffs' counsel his concerns before releasing his reasons where he intended and did make serious finding;
(xi) manufacturing a reason to attribute improper motive to a Plaintiff counsel to allow him to interfere with the Plaintiffs' right to present their case;
(xii) repeatedly treating the Plaintiffs unfairly. He:
1. Adopted submissions made by counsel opposite the Plaintiffs directed against the Plaintiffs which were obviously incorrect and misleading;
2. Allowed counsel opposite the Plaintiffs to repeatedly make submissions which were obviously disingenuous and relied on same despite repeated efforts by Plaintiffs' counsel to correct those submissions;
3. Used the authority and weight of the Court to attempt to prevent Plaintiffs' counsel from making submissions on behalf of the Plaintiffs to support their case. He reprimanded Plaintiffs' counsel when they pointed out to him that opposite counsel were making obvious misleading submissions to him; and
4. Mischaracterized, in his Reasons, arguments presented by the Plaintiffs before dismissing them summarily;
(xiii) began treating the Plaintiffs more fairly only after he became aware of the allegation of apprehended bias;
(xiv) expressing concern, after becoming aware of the allegation of apprehended bias, about his own impartiality;
(xv) engaging in private conversations with the Crown;
[5] At the hearing, ground (xv) - "engaging in private conversations with the Crown" - was withdrawn.
[6] As regards the Federal Court, the Plaintiffs merely allege in their Notice of Motion that the Court "has demonstrated a pattern of apprehended bias with respect to the within proceedings," but then go on to elaborate grounds in their written submissions that include actions by Muldoon J. (the judge in the first trial), Hugessen J. (the case management judge following the first trial), the former Associate Chief Justice of the Federal Court, and Russell J. (the judge appointed to preside over the second trial) that both severally and cumulatively, they say, give rise to an apprehension of bias against the Plaintiffs within the Federal Court. In fact, notwithstanding that the motion was ostensibly based upon a reasonable apprehension of bias, the Plaintiffs also said in their written submissions that there was evidence to support a finding of actual bias. When the implications of such an allegation were pointed out by the Court at the hearing, Mr. Shibley, who presented the oral argument for the Plaintiffs on this motion, withdrew the offensive wording from paragraph 3 of the Plaintiffs' Memorandum of Argument which said "There is however some evidence to support such a finding [i.e. actual bias]."
[7] Unfortunately, this does not remove the problem entirely because there are statements throughout the written materials that are, in fact, allegations of actual bias.
[8] The Plaintiffs' apprehensions about other judges of the Federal Court who are not actually identified are somewhat ambivalent. Some of their witnesses appear to suggest that the Federal Court does have judges who would give them a fair trial; others are not so sanguine.
[9] In their Memorandum of Argument, the Plaintiffs say that "although they believe that there may be Federal Court trial judges who would be fair, they do not believe that those who have been assigned to this case to date have been and are concerned about what would happen if another Federal Court trial judge not mutually agreed to was assigned to hear this case."
[10] In other words, there "may be" fair judges within the Federal Court, but there may not be, so that unless the Plaintiffs are given a say in the appointment of a new trial judge, their concerns in this regard cannot be assuaged.
BACKGROUND
[11] The proceedings of which the present motion is a part have a long and tortuous history that goes back to 1986.
[12] The first trial took place in 1993 and 1994 before Muldoon J. who reached a judgment and issued reasons in 1995.
[13] The Plaintiffs appealed that decision and the Federal Court of Appeal ordered a new trial on the basis that the reasons of Muldoon J. gave rise to a reasonable apprehension of bias.
[14] For purposes of the present motion, it is the procedural history since the Federal Court of Appeal's decision in 1997 that is important.
[15] That procedural history is difficult to ascertain from the Plaintiffs' materials because they conflate argument and evidence. The choice of facts is, of course, an interpretive act in itself, but when facts are combined with argument, opinion and commentary, there are distinct dangers that I will come to later when I address the problems associated with the Plaintiffs' evidence and their written materials generally.
[16] For purposes of providing a dispassionate framework for understanding the issues at play in this motion, I have relied upon the Court record available to me. To assist understanding, I intend to give only a skeletal account here, and that will be supplemented later with the details needed to assess the separate allegations made by the Plaintiffs.
[17] Following the Federal Court of Appeal decision in 1997 that ordered a new trial, Hugessen J. was appointed as case management judge on June 12, 1997.
The Involvement of Hugessen J.
[18] On June 13, 1997, Hugessen J. sent a memorandum to all counsel involved in the proceedings and invited them to apply jointly for a new trial date. No one responded.
[19] The lack of response eventually prompted the equivalent of a notice of status review on May 20, 1998 that required the parties to show cause why the action should not be dismissed for delay.
[20] This elicited a response from the Plaintiffs who advised Hugessen J. that they intended to seek an amendment to the pleadings so that they could take advantage of Supreme Court of Canada jurisprudence, including the decision in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.
[21] A show cause hearing was held on June 26, 1998.
[22] On September 23, 1998, the Plaintiffs brought a motion to amend their Statement of Claim. In their written submissions they made the following important arguments about the nature of their claim:
This is an action in which the plaintiffs seek a declaration of certain provisions added to the Indian Act in 1985 ("Bill C-31") granting membership rights in the plaintiffs Bands, are inconsistent with the provisions of section 35 of the Constitution Act, 1982, in that they interfere with the aboriginal and treaty rights of those Bands to determine their own memberships. ...
The proposed formulation of the rights to be asserted by the plaintiffs, and the application of the current law to those rights to be alleged by the plaintiffs, remain sufficiently closely connected to the plaintiffs' existing pleading that an additional second action is not necessary. Multiplicity of proceedings ought to be avoided.
The right to determine membership is a core right and even an essential element of any self-government claim. In fact, the defendant Crown accepts that there is an inherent right of self-government which includes at least some form of the right to determine membership.
Factum of the Plaintiffs, served September 21, 1998, at paras. 3, 5, and 7
Motion Record of the Plaintiffs dated July 21, 1998, at Notice of Motion, at para. 6, and Affidavit of Martin Henderson, paras. 1, 5, 6
...
[23] It is also significant that at the 1998 Amendment Motion hearing, Plaintiffs' counsel made the following statement:
...In fact, we are alleging, in my submissions the narrowest possible formulation of a jurisdictional right. We are saying, as a government, we have the right to determine who our citizens are.
Short of writing out the rules we apply, you can't be more specific than that. And that is exactly what Chief Justice Lamer says I have to be. I do have to define it as rationally and as centrally as possible. I can't be broad.
So when I put forward the new claim, we are not saying we have a right to self-government at large. That is not what this case is about. We are saying we have a right to this fundamental aspect of our self-government.
...
In fact, the original action and the new action are not inconsistent. The new pleading is simply an explication based on the old one. [emphasis added]
Transcript of September 23, 1998 Motion, at page 37:1 - 10; 37:16 - 37:22 and 123:17 - 17
[24] These statements are important because there is now disagreement between the Plaintiffs and the Crown as to what the amendments allowed by Hugessen J. in 1998 were intended to encompass in terms of the concept of self-government.
[25] Hugessen J.'s Order of September 23, 1998, granted amendments to the Statement of Claim on condition that the Plaintiffs, the Crown and the Interveners would provide a detailed list of those parts of the transcript from the first trial that they objected to being used as evidence in any new trial on the pleadings.
[26] On March 10, 1999, the Plaintiffs filed Fresh as Amended Statements of Claim.
[27] The Plaintiffs, however, did not like the condition regarding the use of the transcript from the first trial and objected to it. They took the position that evidence from the first trial should not be used in a re-trial because it had been tainted by the comments of Muldoon J.. The Crown and the Interveners took the position that all of the evidence from the first trial could be used at a re-trial except for the trial judge's comments and interventions.
[28] Hugessen J. rejected the Plaintiffs' position. He was concerned that allowing counsel to call witnesses who had already given their evidence would represent a huge expenditure of time and money, both private and public, and would not be cost efficient. As a result, on December 7, 2000, following a motion for directions arising out of his Order of September 23, 1998, Hugessen J. ordered that the transcript of any evidence from the first trial could be used in a re-trial, and that witnesses who had given evidence at the first trial could not give the same evidence in the second trial, although they could give other evidence.
[29] In making his Order of December 7, 2000, Hugessen J. said in his December 13, 2000 reasons that the "issues of the second trial are fundamentally the same as they were at the first," and he also observed that the "factual matrix" remained essentially the same. These words are important because the Plaintiffs now say that they show Hugessen J. attempting to contain the lis and influence the scope of the re-trial, even after he had granted amendments in 1998 that allowed the Plaintiffs to take advantage of new jurisprudence and to marshall new evidence to support the self-government aspects of their claim.
[30] The Plaintiffs appealed Hugessen J.'s Order of December 7, 2000, but did not challenge his characterization of the issues or his assessment of the factual matrix. Nor did the Plaintiffs
allege any kind of bias against Hugessen J.. This is important because, on the motion presently before the Court, the Plaintiffs now say that the statements made by Hugessen J. concerning the issues at play and the factual matrix were inappropriate and give rise to a reasonable apprehension of bias on the part of Hugessen J. in that he was attempting to control the scope of the re-trial in a way that would not allow them to mount their case for self-government. What is more, the Plaintiffs say that these statements have influenced Russell J.'s subsequent handling of the proceedings to an extent that has given rise to a reasonable apprehension of bias on the part of Russell J..
[31] The Plaintiffs' appeal against the December 7, 2000 Order of Hugessen J. was dismissed. The Plaintiffs also appealed Hugessen J.'s Order of September 23, 1998. That appeal was also dismissed.
[32] Hugessen J. continued to encounter difficulties in moving the proceedings towards trial. It seems that orders he made simply were not followed. This necessitated his having to take tighter control of the case management process.
[33] For instance, on September 28, 2001, Hugessen J. decided that he had to set limits on the discovery rights of the parties:
...
I will, however [in lieu of setting a trial date as sought by an intervener], make a number of provisions which are intended to see to it that the parties move the matter forward. Obviously, the orders that I have made to date, which have largely not
been complied with, have not been adequate to bring the matter on. Therefore I propose to do a number of things.
First, I am going to place a limit on examinations for discovery. All examinations are to be completed by May 1, 2002...
Sawridge Band v. Canada, [2001] F.C.J. No. 1488, paras. 8 - 9
...
[34] The record shows that Hugessen J. found himself having to deal with "a pattern of uncooperative and obstructive behaviour on the part of the Plaintiffs'' counsel" which he felt was "worthy of serious reprimand." As a consequence he found he had to reduce the Plaintiffs' discovery time.
[35] On November 30, 2001, Hugessen J. reduced the Plaintiffs' time for discovery of the Crown's representative by five days in the Sawridge action and ten days in the Tsuu T'ina action. The reasons he gave for doing this suggest that he was encountering extreme difficulties with moving the actions forward, and that he observed uncooperative and obstructive behaviour by Plaintiffs' counsel:
(a) in the Sawridge Action:
The most important single issue raised by the Motion is the plaintiff's failure to provide proper documentary production. The action is not new. One trial has already been held. It is literally years since a new trial was ordered...
In my view, the transcript of the examination of the plaintiff herein reveals that counsel for the plaintiff has not complied with either the [earlier] Order of this Court [to answer objected questions under reserve of objection] or Rule 241.
Beyond an order designed to oblige the plaintiff's counsel to remedy this situation forthwith, I also propose to impose a procedural sanction on the
plaintiff for this unacceptable behaviour. As a part of a previous scheduling Order, I granted a number of days to each party for completing their discoveries. Because she has abused the discovery time allotted to her, the plaintiff shall forfeit five days of discovery time previously allotted to her for the examination of the Crown's representative. [emphasis added]
Sawridge Band v. Canada, [2001] F.C.J. No. 1841, at paras. 12, 16 and 17
(b) in the Tsuu T'ina Action:
First, it must be clear from what I have already said that I regard the failure to produce the plaintiff Starlight on September 13 and 14 as inexcusable...
Subsequent to the bringing of this Motion, the conduct of the plaintiff and his counsel has, if anything, gotten worse...
Finally, the transcript of Crowchild's examination has been provided to me and reveals that counsel for the plaintiff has not complied with either the Order of this Court [to anser objected questions under reserve of objection] or Rule 241.
Crown counsel has provided numerous examples where counsel for the plaintiff has failed to comply with this order and acted inappropriately. I am satisfied that the transcript evidences a pattern of uncooperative and obstructive behaviour on the par of plaintiff's counsel which, in my view, is worthy of serious reprimand. Repetition of this conduct will not be tolerated and I would order the plaintiff to remedy the situation forthwith.
As in a related case, I propose to sanction plaintiff's conduct, which is particularly bad, by forfeiting a number of days previously assigned to this plaintiff for his discovery of the Crown's representative. The conduct being significantly worse than in the other case, the number of forfeited days will be ten. [emphasis added]
Starlight v. Canada, [2001] F.C.J. No. 1840, at paras. 12 - 16
...
[36] But the difficulties did not end here. The Plaintiffs sought leave to put written interrogatories to each of the Interveners in this case. In reasons dated June 19, 2002, Hugessen J. found that some of the questions were "extraordinarily burdensome and would require a vast
amount of work" that would serve no ultimate purpose. At this stage, Hugessen J. also said in the same Order:
Finally, and this too plays a large part in my exercise of discretion. This case has not had an easy path to date, and I do not see it having an easy path in the next months and years as we strive, all of us, to bring it on to trial. I do not impute motives to anybody because I accept that all parties and the Interveners have a genuine interest in having the case tried. I accept that unreservedly but if these interrogatories were allowed to stand, they would inevitably and beyond any shadow of a doubt add enormously to the time, already far too long, which would be required between now and the date when finally the Plaintiffs will stand and open their case before the Trial Judge.
Sawridge Band v. Canada, [2002] F.C.J. No. 933 at paras. 5, 6 and 8 and 9.
[37] However, in 2003, the Plaintiffs served 14,000 written interrogatories on the Crown which Hugessen J. struck as an abuse of the Court and ordered costs of $20,000.00 against the Plaintiffs.
[38] Discovery continued to be difficult. The Crown brought six motions in each action regarding problems encountered during discovery; the problem included unfounded refusals and failures to provide timely answers to undertakings.
[39] Eventually, a pre-trial conference was held on February 27, 2004 and an Order issued dated March 26, 2004 that provided a comprehensive road map to take the matter to trial on January 10, 2005.
[40] Hugessen J.'s Pre-Trial Order of March 26, 2004 is central to what follows and is reproduced here in full:
1. The trial of these matters will take place at Edmonton, Alberta, starting January 10, 2005.
2. Completion of discoveries:
(a) Plaintiffs' answers to Crown's interrogatories to be served and filed by April 30, 2004;
(b) New Crown affidavit of documents to be served by April 30, 2004;
(c) Documents for which claims of privilege expire by lapse of time to be made available as expiry dates come due;
(d) Other "gap" documents (ie., omitted by error from previous production) to be produced by June 30, 2004.
3. Any discovery questions arising out of new documentary production are to be written interrogatories following leave obtained on motion pursuant to Rule 369.
4. Subject to any further directions from the Trial Judge the trials are to be held concurrently.
5. All expert reports for use at trial are to be served by July 15, 2004.
6. Rebuttal expert reports (which shall be limited to answering or contradicting any expert reports produced by others) are to be served by October 29, 2004.
7. Any other expert reports may only be produced by leave of the Court obtained on prior motion.
8. Any person desiring to lead oral history evidence shall serve a detailed summary thereof no later than June 30, 2004.
9. All persons intending to lead evidence at trial (including oral history evidence) shall serve witness lists and "will say" statements (including language if other than English and name of interpreter if known) on or before September 15, 2004.
10. Use of transcripts from the first trial is governed by the Order of December 8, 2000; persons intending to use such transcripts shall inform all other of which transcripts are intended to be so used on or before June 30, 2004.
11. Transcripts from discoveries intended to be read in by any person are to be served no later than November 15, 2004.
12. Any amendments to the pleadings shall be on leave obtained on motion brought pursuant to Rule 369 on or before May 18, 2004.
13. It is hoped to convene an early trial management conference to be presided by the Trial Judge to deal inter alia with:
(a) the formation of a document database for the trial;
(b) any problems relating to the interpretation of the evidence given in a language other than English.
14. The participation of interveners at the trial is the subject of Orders previously given by McNair J. on September 14, 1989 and Hugessen J. on May 26, 2000.
15. Interveners shall respect the various dates set out in the foregoing Order.
[41] Russell J. was appointed trial judge in late March, 2004 and, at this point, Hugessen J. ceased to have any further involvement with the proceedings.
The Involvement of Russell J.
[42] After being appointed trial judge, Russell J.'s first order of business was to deal with applications from both the Crown and the Plaintiffs to amend the pleadings. The Crown sought leave to amend its Statement of Defence and the Plaintiffs sought leave to further amend their Fresh as Amended Statements of Claim.
[43] Russell J. allowed some amendments but disallowed others for both the Crown and the Plaintiffs. The important matter to note, however, is that the Plaintiffs' proposed amendments would have included within their pleadings a general claim to self-determination at large.
[44] The Crown opposed the self-determination at large amendments on the grounds that they were not proper and went far beyond the pleaded position of the Plaintiffs' rights to control their own membership.
[45] The Plaintiffs disagreed with the Crown's position and said that their proposed amendments "do not affect the prayer for relief and do not create a new course of action."
[46] For reasons expressed in his Order of June 29, 2004, Russell J. disallowed those amendments proposed by the Plaintiffs that dealt with a new claim for self-determination, or that raised allegations about First Nations other than the Plaintiffs.
[47] This is what Russell J. said in his June 29, 2004 Order on this issue:
...
26. The contentious aspects of the Band's proposed amendments are objectionable for several reasons:
a) some of the proposed amendments to paragraph 8 conflict with previous rulings made by this Court that the Plaintiff in the action is the Band itself in its own right; and
b) some of the amendments would have the effect of enlarging the nature of the action and would bring in a new claim of self-determination; and
c) some of the amendments would further broaden the claims by raising allegations about first nations other than the Band.
27. In my view, the objectionable amendments I will later refer to do not clarify and focus issues for the Court. They raise new and contentious issues that will require further discovery and will further delay the trial. The late stage at which these amendments are proposed, their number and importance, the degree to which previously held positions are changed, and the inevitable prejudice that will result to
the Crown (see Maurice v. Canada (Minister of Indian Affairs and Northern Development), [2004] F.C.J. No. 670, 2004 FC 528 at para. 10) convinces me that these amendments should not be allowed. In addition, some of them are just not relevant to the issues in dispute. As NSIAA points out, the effect of some of the amendments proposed by the Band would be "to put the Crown on trial for all of its conduct with respect to all First Nations in Canada. A trial that is now anticipated to take months could end up taking years to resolve." In addition, other amendments would "substantially expand the scope of this action and raise issues where there has been no discovery" in a context where "the amendments add nothing substantive to the Plaintiff's claim that it has an aboriginal right to determine its own membership ... ." In fact, it seems to me that the words "First Nation" now mean the plaintiff Band and only the plaintiff Band. No purpose is really served by having two different terms ("plaintiff" and "First Nation") to refer to the Band even though I have no real objection to this if the Band wishes to use both terms.
...
[48] The Plaintiffs did not appeal Russell J.'s June 29, 2004 Order dealing with the amendments, and certainly did not raise in any other way that the Order or its reasons displayed a reasonable apprehension of bias towards them.
[49] This is important because, in the present motion, the Plaintiffs claim that there is an apprehension of bias that can be traced back through the June 29, 2004 Order to rulings and comments made by Hugessen J.. Essentially, they say that since the Federal Court of Appeal judgment in 1997, Hugessen J. and Russell J. have been supporting the Crown (or there is at least a reasonable apprehension that they have been supporting the Crown) to ensure that the concept of self-government (as they now wish to define it) is kept out of these proceedings and that the Plaintiffs not be allowed to lead evidence on that issue.
[50] Notwithstanding the June 29, 2004 Order of Russell J. that specifically denied proposed amendments dealing with self-determination, the Plaintiffs say they only realized much later (December, 2004) that there was an apprehension of bias, which is why they did not appeal the June 29, 2004 Order of Russell J..
[51] Russell J.'s first meeting with counsel for all parties occurred on September 17, 2004 in Edmonton. The general purpose of the meeting was to ascertain if there were any issues that still needed resolution following Hugessen J.'s Pre-Trial Order of March 26, 2004 and to discuss practical matters related to the administration of the trial that was due to commence on January 10, 2005.
[52] Russell J. discovered that all was not well between the parties. There were still important differences that needed to be resolved before the trial could begin. In fact, the points of contention were much more pressing than any of the practical and administrative topics that were raised.
[53] For purposes of the present motion before the Court, it is important to note that, on September 17, 2004, the Crown immediately raised with the trial judge fundamental concerns about "philosophical differences" between the Crown and the Plaintiffs over what the pleadings encompassed, and the nature of the witness list and will-say statements that the Plaintiffs had
served on September 15, 2004, which was the deadline set by the Pre-Trial Order of Hugessen J. for the filing of those materials.
[54] The transcript of the September 17, 2004 Trial Management Conference indicates that the Crown felt there was a:
... basic difference in philosophy for some of the issues raised. It is the Crown's position that this case should be run in accordance with the pleadings, as amended, and therefore we have our view of relevance. What we see the potential for is expanding the scope of this trial beyond what is in the pleadings...
Transcript of September 17, 2004 Conference, Mr. Kindrake at 25:20 to 26:1
[55] As regards the will-says of the Plaintiffs, the Crown's position was that they were inadequate and did not comply with Hugessen J.'s Pre-Trial Order.
[56] The Court felt these were problems of such a magnitude that they needed to be dealt with quickly and before the trial began.
[57] The Plaintiffs were represented on September 17, 2004 by Mr. Henderson, Mr. Healey, and Ms. Twinn. The transcript shows that Mr. Henderson agreed with the Court that important matters of relevance should be dealt with before the trial began. This is significant because Mr. Henderson ceased to be involved with the proceedings soon after the September 17, 2004 meeting, and Mr. Healey subsequently began to resist the Crown's attempts to raise scope and relevancy issues with the Court.
[58] The other important factor to note is that, on September 17, 2004, the Crown clearly connected its will-say concerns with the pleadings. The Crown's position from the beginning was that the issue of self-government required an interpretation of the pleadings, as amended, to discover what was determinative for the relevance of any evidence to be called at trial. The Crown has made it very clear, as part of the present motion and on previous occasions, that it does not take the position that there is no aspect of self-government in the pleadings. What the Crown disputes is the notion that the pleadings encompass a broad, generalized claim to self-government at large. Hence, the Crown objects to the Plaintiffs calling new evidence on that issue.
[59] The Court took the position that these were matters of such import that they required full argument and should not be decided as part of a trial management conference. In fact, the Court directed, inter alia, that the will-say concerns of any party should be raised by way of motion, and the motions would be heard together.
[60] Following the September 17, 2004 Trial Management Conference, the Crown brought two motions related to the Pre-Trial Order of Hugessen J. dated March 26, 2004.
[61] In the first motion, the Crown sought an extension of time within which to serve the Crown's rebuttal expert reports under s. 6 of Hugessen J.'s Order. But, as pointed out in his
Order of October 18, 2004, Russell J. felt the Crown was conflating two separate issues. The first issue was whether Dr. von Gernet, the Crown's expert, should be given more time to file rebuttal expert evidence. The second issue was whether, as part of his rebuttal evidence, Dr. von Gernet should be allowed to address the Plaintiffs' oral history evidence, and whether he should be allowed to do so at a time during the trial after oral histories had been entered by the Plaintiffs.
[62] While Russell J. allowed the Crown an extension to file expert rebuttal reports, he agreed with the Plaintiffs that Dr. von Gernet should not be allowed to comment upon the reliability of the oral history evidence of a particular witness after that evidence was given. The position he took was that the credibility or truthfulness of a particular witness is for the Court to decide.
[63] On the second motion, the Crown applied to the Court to strike the Plaintiffs' witness list and will-say statements that had been served on September 15, 2004 for failure to comply with the Pre-Trial Order of Hugessen J.. The Crown also asked the Court to direct that the Plaintiffs should not be allowed to call any of the witnesses on the list at the trial. The Plaintiffs did not bring a motion at this time concerning any perceived deficiencies in the will-says of the Crown or the Interveners.
[64] The Crown's motion required an interpretation of Hugessen J.'s Pre-Trial Order as it related to will-say matters, and Russell J.'s decision sets out how he went about doing that and the conclusions he reached.
[65] He decided that the witness list and the will-says presented by the Plaintiffs were deficient and were not adequate for preparation and effective trial procedure for a variety of reasons:
a) They were not individualized and were merely a large pool of potential witnesses and a list of topics;
b) The language to be used by each witness was not identified as required by paragraph 9 of Hugessen J.'s Pre-Trial Order;
c) The Plaintiffs had merely provided a list of topics rather than a synopsis of what each individual witness would say;
d) The statements pertaining to oral histories did not identify the actual past practices, customs and traditions of the community in question.
[66] Notwithstanding these deficiencies, the Court did not do what the Crown wanted it to do, which was to exclude the individual witnesses identified from giving evidence.
[67] The Court was cognizant of the dispute between the Crown and the Plaintiffs concerning scope and relevance. So the Court struck the witness list and the will-says served by the Plaintiffs on October 18, 2004, for non-compliance and gave the Plaintiffs leave to apply to the Court with proposals for a "workable solution" to the problems caused by their non-compliance:
Bearing in mind the amount of time that remains before the trial begins on January 10, 2005, the Plaintiffs have leave to apply to the Court with proposals for a workable solution to the problems caused by their non-compliance with the Pre-Trial Order and their production of deficient witness lists and will-says.
[68] This approach needs to be placed in the context of what the Plaintiffs had argued before the Court in responding to the Crown's motion on the witness list and will-says. These matters are set out in Russell J.'s Order of October 18, 2004.
[69] First of all, the Plaintiffs took a very hard line and refused to acknowledge that there was anything wrong with the witness list and will-says they had produced on September 15, 2004, even though they were obviously not individualized and merely said that certain persons would "provide their testimony in their indigenous language." So the Plaintiffs did not ask for any additional time to complete their will-says or suggest ways in which the deficient materials they had produced could be improved.
[70] Also very telling was the fact that the list of potential witness identified between 140-150 names. Such a large body of witnesses had not been brought to Hugessen J.'s attention before he made his Pre-Trial Order of March 26, 2004.
[71] So there was new factors for the Court to consider that had not been disclosed to Hugessen J. when he made his Pre-Trial Order of March 26, 2004.
[72] As for the issue of relevance to the pleadings, the Plaintiffs merely asserted that they had an absolute right