Cowichan Tribes v. Canada (Attorney General)

2022 BCSC 2053 Cowichan Tribes v. Canada (Attorney General)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cowichan Tribes v. Canada (Attorney General), 2022 BCSC 2053 Date: 20221124 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, His Majesty the King 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 Before: The Honourable Justice Young Ruling on Plaintiffs' Application to Admit Musqueam Interviews, Meeting minutes and Recordings Counsel for the plaintiffs: J.T. Riddell Counsel for Musqueam: M.L. Macaulay, K. Shupe T.A. Arsenault, and C.M. Clemente Place and Date of Trial/Hearing: Victoria, B.C. October 25 - 28,2022 November 1, 2022 Place and Date of Judgment: Victoria, B.C. November 24, 2022 Introduction [1] The plaintiffs seek to enter four documents recently disclosed by Musqueam during the plaintiffs' reply case. Those documents are as follows: a) March 1990 interview with Herman Bob Guerin and Pat Berringer, in two parts: i. audio

of Part 1A (document SC18596) and updated transcript (document SC18629); ii. audio of Part 1B (document SC18597) and updated transcript (document SC18630); b) May 11, 1990 interview of Dominic Point by Pat Berringer, side A audio recording (document SC18600) and transcript (document SC18601); c) June 20, 1995 minutes of meeting with Vincent Stogan, Jack Stogan, Louis Stogan, Sharon Stogan, Walter Stogan, Leila Dan (Vivian Stogan), Bob Guerin, Pat Berringer, Malcolm MacLean and Susan Roy (document SC18603); and d) July 19, 1996 audio recording of meeting with Chief Joe Becker, Dominic Point, Jordan Point, Linden Pinay, Arnold Guerin, Lyle Sparrow Jr., Mike Charles, Larry Grant and Rhonda Campbell (document SC18612), and transcript (document SC18609). [2] Musqueam opposes the entry of the first three documents primarily because they are of marginal relevance and not proper reply. Musqueam opposes admission of the July 19, 1996 recording primarily on grounds of privilege. [3] In a ruling in these proceedings indexed at 2022 BCSC 1586 at para. 109, I found that certain documents were in Musqueam's possession or control because they were created for Musqueam by an employee or agent of Musqueam acting in that capacity. After that release of this ruling, Musqueam reviewed its disclosure obligations and produced recordings and transcripts of 24 interviews not previously disclosed. Some

of these fell into the category of recordings created by an employee or agent of Musqueam acting in that capacity. Musqueam considers these recordings to be of marginal relevance. [4] The plaintiffs submit that these recordings and transcripts should have been produced pursuant to an order I made in 2019. In a ruling indexed at 2019 BCSC 1107, I ordered production of relevant portions of transcripts and recordings in Musqueam's possession or control that could be used to prove or disprove a material fact at trial by June 14, 2019. [5] The plaintiffs submit that they have been prejudiced by this late disclosure. They have not been able to lead evidence about these documents in their case or cross-examine Musqueam's witnesses on them. They have conducted some limited discovery by way of interrogatories. As the plaintiffs learned of the existence of the documents during their reply case, they submit that the only remedy is to permit them to enter the documents now in reply. The plaintiffs acknowledge that these are not the kind of documents that would typically be tendered in reply. [6] Musqueam submits that the documents at issue are of marginal relevance. The plaintiffs have not been prejudiced. The late disclosure of these documents should not result in a relaxation of the rules of evidence. [7] I agree with Musqueam that late disclosure does not give rise to a presumption of

prejudice. With respect to admissibility, each document must be considered to determine its probative value in this case. However, I also agree with the plaintiffs' submission that a rigid approach to permissible reply evidence in the context of late disclosed documents would be unfair to the plaintiffs given that they did not have the opportunity to rely on these documents in their own case. [8] My findings with respect to the admissibility of each document are set out below. March 1990 Interview with Herman Bob Guerin and Pat Berringer [9] The plaintiffs seek to admit the audio recording and transcripts of the March 1990 interview with Herman Bob Guerin and Pat Berringer as oral history evidence. [10] The plaintiffs acknowledge that there is generally a dearth of evidence about Herman Bob Guerin in this case. There is some evidence of his lineage, including that he was the older brother of Arnold Guerin Sr., who in turn was Morgan Guerin's grandfather. There is evidence that Arnold Guerin Sr.'s parents were Johnny Guerin and Joanna George of Lummi. In terms of his reputation and knowledge, in answer to interrogatories, Devin Sharma, Chief Administrative Officer of Musqueam Indian Band, advised that the band records do not indicate whether Herman Bob Guerin was considered a Musqueam elder and/or knowledge holder. [11] The plaintiffs submit that some information can be gleaned

from the face of the interview, in which Herman Bob Guerin speaks to his traditional upbringing. For example, he stated that he danced the mask and "our tree had the highest rated mask". He said that in 1915, he went to Duncan and got information from Chief Johnny about how to dance. He also talked about Steveston and the canneries, and how "in those days you could rent a boat and a net from the cannery, and they would take one-third the price of each salmon and you'd get two-thirds". He said when he was a teenager, he rented a boat from the cannery and fished, including with an elderly Musqueam. [12] The plaintiffs submit that, given what is known about Herman Bob Guerin's lineage, and based on the face of the interview, threshold reliability is met. [13] Musqueam submits that the plaintiffs have not established whether Herman Bob Guerin held certain knowledge of Musqueam or had oral history. The information before the Court about Herman Bob Guerin's lineage does not establish whether Herman Bob Guerin was recognized as a Musqueam knowledge holder or whether he had oral history. In the interview, Herman Bob Guerin stated that he was born in 1896 and left Musqueam in 1917. There is no evidence as to whether or not he returned to Musqueam. Musqueam submits that on the face of the document, it appears his knowledge about Musqueam was limited and his statements were focused on his

personal knowledge of Musqueam in the early 20th century. Further, he stated that his brother Arnold Guerin had a better understanding of the Musqueam side of his family than he did. [14] Musqueam does not say that Herman Bob Guerin had no oral history, but rather there is no evidence about his reputation or what oral history he may have held. [15] The plaintiffs say that Herman Bob Guerin must have returned to Musqueam at some point given that he was interviewed by Pat Berringer. I find this argument is speculative. The audio recording does not indicate where the interview occurred. [16] However, I am satisfied that the plaintiffs have established the threshold reliability of these documents. There is evidence before the Court that Herman Bob Guerin belonged to a high-ranking family as the brother of Arnold Guerin Sr. and the great-uncle of Morgan Guerin. On the face of the recording, Herman Bob Guerin speaks to a traditional upbringing and gives oral history. The interview was recorded at the time it was given, and later transcribed by Musqueam Archives. It is necessary because Herman Bob Guerin and Pat Berringer are deceased. Submissions about limitations or gaps in Herman Bob Guerin's knowledge go to weight and may be made at the end of trial. Passage 1 [17] The plaintiffs seek to enter the following excerpt from the 20-minute mark on side 1A of the recording and page 13 of

the transcript: Herman Bob Guerin: But the Musqueams lost their language. Most of them went across the Gulf to Kuper Island to school. Pat Berringer: And started- Herman Bob Guerin: Arnold didn't talk Musqueam. He talked that language over there, which is just a variation from the Musqueam language. Pat Berringer: Yeah. He had to learn when he was an older man. [18] The plaintiffs submit that this excerpt is relevant to oral history disruption and the use of dialect. It is also necessary because Arnold Guerin is deceased. [19] Musqueam submits that this excerpt is of limited relevance and probative value. The best evidence of oral history disruption is contained in exhibit 707 of the Musqueam Reference Grammar at e-page 12 which is already in evidence. The plaintiffs cross-examined Canada's expert Dr. Lovisek on this excerpt on day 240. Musqueam submits that the plaintiffs are attempting to bolster the evidence they already elicited from Dr. Lovisek. Musqueam notes that Dr. Kennedy also referred to the Musqueam Reference Grammar in her report at exhibit 114 on e-page 44. Further, sʔəyəɬəq (Larry Grant) testified that hən̓q̓əmin̓əm̓ went to sleep at Musqueam. [20] Musqueam submits this is not proper reply evidence. [21] The answers Herman Bob Guerin gave are on the same topic as those in the Musqueam Reference Grammar and sʔəyəɬəq's evidence, but Herman Bob Guerin expands on the

evidence when he says that Arnold Guerin did not speak Musqueam. I find that the evidence is admissible. [22] Musqueam submits, and the plaintiffs do not object, that if I find this excerpt admissible then the following additional passage should also be admitted: Herman Bob Guerin: I went to North Vancouver Boarding School. Pat Berringer: Oh, did you? Herman Bob Guerin: On Indian River. Pat Berringer: Oh, yes. How long were you there? Herman Bob Guerin: Two or three, four years. Pat Berringer: Did you come home weekends? Herman Bob Guerin: No. Pat Berringer: No, you had to stay? Herman Bob Guerin: We just had- let's see, I think we just had three weeks' vacation a year. ___ Pat Berringer: Oh, gosh. That's terrible. But when you came home, were you speaking Musqueam, when you came back home? Herman Bob Guerin: I used to talk Squamish when I was at North Vancouver. Pat Berringer: Were you punished at that school for speaking Squamish? Herman Bob Guerin: No. Pat Berringer: Oh, good. Some of the schools punished people. Herman Bob Guerin: I don't know they never stopped them from talking, using their own language. [23] This additional passage will be admitted. Passage 2 [24] The next excerpt the plaintiffs seek to admit is found shortly after the 0:35:54 timestamp on side 1A of the audio recording and starts at page 22 of the transcript: Herman Bob Guerin: My mother was Lummi

and my father is Musqueam. Pat Berringer: Aha, that's a perfect example. Herman Bob Guerin: And her - my mother's father is a high-upper. Her mother came from Kuper Island and married her father, see. So she's got Kuper Island, part Lummi. and the woman from Kuper Island went to Lummi then and score her a husband. Pat Berringer: Usually, the woman would go to the husband? Herman Bob Guerin: Yeah, where the husband's home is. Pat Berringer: And on your father's side, what about his parents? Do you remember? Herman Bob Guerin: I don't remember that, the male side of my father. Pat Berringer: Your father's father was Musqueam, though, I think. Herman Bob Guerin: Yeah. [Brief pause in conversation] I don't remember the male side. [25] The plaintiffs submit that this passage is relevant to identify Herman Bob Guerin, his lineage, and his relations in Kuper Island, Lummi and Musqueam. This evidence matches that of Morgan Guerin, who testified that his grandfather was Arnold Guerin, whose mother was from Lummi and whose father was from Musqueam. [26] Musqueam submits that picking a small portion of the discussion about Herman Bob Guerin's genealogy risks factual error at trial. It is unclear how this evidence is responsive to Morgan Guerin's evidence and whether Herman Bob Guerin's understanding of his own genealogy is relevant to this litigation. It does not contradict Morgan

Guerin's evidence. It is not clear why this limited genealogy would have assisted the plaintiffs' experts. Herman Bob Guerin's statements are not related to the Penelakut connection that Morgan Guerin discusses in his evidence. Morgan Guerin's evidence refers to Moses Johnny and the arranged marriage of Arnold Guerin to Jenny Johnny. These are different connections on different sides of the family. [27] I agree with Musqueam's submission. I do not see the relevance of this evidence. It does not appear to be responsive to the evidence of Morgan Guerin. I will not admit this passage. Passage 3 [28] The plaintiffs seek to admit the following passage found shortly after the 00:42:15 timestamp on side 1B of the audio recording and page 26 of the transcript: Pat Berringer: Do you know - can you tell me anything about the summer villages or any other Musqueam villages on the south branch of the Fraser? Do you know where there were places? May be before your time, but places you've heard about. Herman Bob Guerin: No. George Guerin: I asked you one about that before. Herman Bob Guerin: Huh? George Guerin: Why is it Musqueam always claims one piece of an island? You know it was the Musqueam Number One. That's where the south end of Pattullo bridge is. Herman Bob Guerin: Yeah. George Guerin: Now, there's another one that Musqueam always claims, and it's over - it's a little island just

off the Pitt River. Herman Bob Guerin: Well, past- George Guerin: It's a little island just out from Pitt River. Herman Bob Guerin: What is the Pitt River? George Guerin: Up by Coquitlam. Herman Bob Guerin: Oh. George Guerin: Musqueam always claimed that one. Herman Bob Guerin: Oh. Yeah. Well, if - Kwikwetlem is Musqueam, you see, and whatever's near there would be Musqueam too, would've been Musqueam too, I'm sure. George Guerin: I think that's the connotation they're trying to say, but they can't put it together. Herman Bob Guerin: Oh. George Guerin: I think that's what - Herman Bob Guerin: Yeah. Well, it only take - it would've taken one family to move to that place to become - Pat Berringer: A Musqueam reserve. Herman Bob Guerin: -- a certain tribe's. It's all it takes is one family, and that becomes theirs because nobody else had it. [00:44:05] Pat Berringer: And were there other places like that along the Fraser, the lower Fraser? Herman Bob Guerin: I would imagine it, yeah. Pat Berringer: Do you know anything about Steveston, the people who lived at Steveston? Herman Bob Guerin: Steveston? No, it's just a place to go in the summertime for fishing. The canneries, see at Steveston, canneries upon canneries all the way to the mouth of the river, going up towards New Westminster. The canneries were just that thick. Some of them were just right together. They had lots of

fishermen. [29] The plaintiffs submit this passage is relevant because Herman Bob Guerin is asked about Musqueam villages on the south branch of the Fraser River, including in respect of places that were "before his time", and discusses it with George Guerin. These statements are relevant to Musqueam use and occupation of the south arm. The plaintiffs point to both Herman Bob Guerin and George Guerin's lack of reference to villages on the south arm and submit that the absence of evidence may be evidence of absence. The discussion about Steveston as a place to go in summer for fishing with canneries is also relevant. [30] Musqueam submits that if the Court admits this passage, additional statements which show that Herman Bob Guerin was talking about Steveston during his own lifetime must be admitted. He spoke about renting a boat when he was a teenager, which means his statements refer to the early 20th century. Musqueam maintains that the entire discussion about Steveston is irrelevant to this litigation, given both the location and the time period that the statements refer to. [31] In response to the plaintiffs' submission that absence of evidence may be evidence of absence, Musqueam submits that Herman Bob Guerin's lack of knowledge is not probative. There is no basis to conclude that if a village existed, Herman Bob Guerin ought to have known about it. The fact that George

Guerin does not give evidence about villages on the Fraser River is also not probative. George Guerin was not interviewed. [32] Musqueam submits that there is no prejudice from late disclosure of this recording that would justify its admission. It is not proper reply evidence and it is of limited probative value. [33] This evidence has some relevance to these proceedings as it relates to Musqueam use and occupation of the south arm of the Fraser River. Its weight will be determined at the end of the day but I am prepared to extend some latitude in admitting this document as reply evidence given its late production. [34] I will also admit the following passage requested by Musqueam and consented to by the plaintiffs, which commences at 00:44:56 of the audio recording and page 28 of the transcript: Herman Bob Guerin: And in those days, you could rent a boat from the cannery. Boat and a net from the cannery, and they would take one-third the price of each salmon and you'd get two-thirds. Pat Berringer: Oh, I see. Herman Bob Guerin: Really, the fishermen would get two-thirds. When I was just a teenager, I rented a boat from the cannery and fished. Pat Berringer: You did that several summers in a row? Herman Bob Guerin: Mm-hmm. Pat Berringer: Did you fish with other people? Herman Bob Guerin: Yeah, there was an elderly Musqueam man that I fished with. He had the rights, and I was

just a - what they called a boat puller, a boat puller. I was just a helper. But he put me and gave me the work you were supposed to be doing, and he made himself the helper. Pat Berringer: I see. May 11, 1990 Interview of Dominic Point [35] The plaintiffs seek to admit excerpts of the interview of Dominic Point found at pages 2-3, 21-24 and 38 of the transcript. Musqueam consents to the excerpts on pages 2 and 3 together with the intervening dialogue, as well as the excerpt at page 38. Admission of the excerpts at pages 21-24 is contested. [36] The first contested excerpt is at timestamp 22:00 to 22:47 and provides: Dominic Point: See we were having a -- we were having a canoe race over at Ambleside Park. Pat Berringer: Mm-hmm. Dominic Point: Just across from Stanley Park there. Pat Berringer: Mm-hmm. Dominic Point: And the wind was blowing from the southwest and all of the canoes were rolling. And Simon Baker was sitting alongside of me. There's a white woman there. She asked me, "That wind, where is it coming from?" Pat Berringer: Mm-hmm. Dominic Point: I says "Oh, that's Musqueam." Pat Berringer: [Laughs] Dominic Point: That's the Musqueam wind. "That's Musqueam there?" Yes, that's Musqueam right along here. It's the English Bay, they call it the English Bay. It's Musqueam right along -- around the Point, right down to the main north of -- north arm of the Fraser

River. [37] The second excerpt is at timestamp 24:22 to 24:35 and provides: Dominic Point: So it - Simon had admitted that Squamish women come from the Howe Sound, you know, and and that Musqueam is coming right from Point Grey, you know? [38] The plaintiffs submit that these passages are relevant to the meaning of the place 'Musqueam' which is relevant to the identity of the Musqueam people. Dominic Point indicates his understanding of Musqueam which he describes as English Bay right along around the point right down to the main north arm of the Fraser River. The plaintiffs also submit that this passage clarifies the excerpts that are consented to at pages 2 and 3 when Dominic Point refers to Point Grey. It also provides some context for the excerpt that is consented to at page 38. [39] Musqueam submits that Dominic Point is not relaying oral history, but rather recalling a discussion with Simon Baker about his understanding of what Musqueam means. Musqueam points to exhibit 2725 as evidence that Simon Baker was the Chief of Squamish. [40] Musqueam submits that this conversation is about whether Simon Baker agrees that Point Grey is part of Musqueam's traditional territory. It is Dominic Point's story about this encounter and how Simon Baker admitted something that is contrary to the position that Squamish took at that time. A large portion of the interview refers to Squamish

place names. The dispute between Squamish and Musqueam with respect to Point Grey is not relevant to this litigation and Musqueam submits that the statements should not be admitted as evidence about the extent or location of Musqueam. It is not a description of Musqueam territory and the plaintiffs are taking the text out of context. [41] In reply, the plaintiffs submit that the context Musqueam provided does not change the fact that the statements are admissible oral history of Dominic Point's understanding of the geography of the place called Musqueam. [42] I agree with the plaintiffs' submission that this passage provides evidence of Dominic Point's understanding of Musqueam territory. Much of Musqueam's submissions are more appropriately made with respect to weight. Dominic Point, now deceased, was a source of oral history evidence and Musqueam's witnesses have testified to his reputation as a knowledge holder. I am extending some latitude to the plaintiffs due to the late disclosure of this evidence and find that it is admissible in reply. June 20, 1995 meeting minutes [43] The plaintiffs seek to admit an excerpt of meeting minutes dated June 20, 1995. The minutes are entitled "Family History Meeting" and indicate that Vince Stogan, Bob Guerin, Pat Berringer, Malcolm MacLean and a number of others were present at the meeting. [44] The plaintiffs submit that the below

passage from pages 3-4 of the meeting minutes is relevant to the use and occupation of the south arm by the Cowichan and Musqueam: Vince was told about different things such as the reserve at New Westminster which was sold. The Musqueam, Katzie and Langley used to have a campground there called ( ) [KeKait] . Three nations had a campground. The people from the Island camped at St. Mungo Cannery site. This location was the campsite of the people from Vancouver Island. That is where they camped for fishing. [45] The plaintiffs submit that this passage relates to the St. Mungo cannery site on the south arm of the Fraser River. Musqueam's witness sʔəyəɬəq (Larry Grant) testified about the St. Mungo cannery site and Ed Sparrow discusses it on a recording that is in evidence. The plaintiffs seek to admit this excerpt as recorded oral history of Vincent Stogan. sʔəyəɬəq, Morgan Guerin and Chief Wayne Sparrow all testified that Vincent Stogan was a respected knowledge holder and leader. Although I previously ruled that qiqéyt [spelled KeKait in this passage] is not geographically relevant, the plaintiffs submit the reference is relevant because it provides important context to the oral history about people from Vancouver Island camping at St. Mungo's cannery site. [46] Musqueam submits that, consistent with my previous ruling, the portion of the passage about qiqéyt [or KeKait] is

irrelevant. Musqueam questions the threshold reliability of the minutes because there is no indication of who prepared them. The minutes are not a verbatim recording and there is no audio recording. [47] Musqueam filed affidavit no. 10 of Monica Shackelly made October 24, 2022 in support of its response to this application. Exhibit "J", entitled "Notice of Meeting" provides some additional background for the meeting. Handwritten notes, authored by Pat Berringer, are appended to the notice. Those notes refer to Glenrose cannery, rather than St. Mungo's cannery. Musqueam submits that these notes are inconsistent with the minutes and undermine the plaintiffs' submission that the meeting minutes are reliable at a threshold level. Further, no witness at this trial was present at the June 20, 1995 meeting and it is unclear how the plaintiffs could have established the threshold reliability of this document if Musqueam had produced it sooner. Musqueam submits that the plaintiffs have not been prejudiced by the late disclosure of this document. [48] In response, the plaintiffs submit that a map attached to Dr. Lovisek's report establishes that the St. Mungo cannery and Glenrose cannery were adjacent to one another. The plaintiffs submit that the threshold reliability of the document has not been undermined. The plaintiffs would consent to admission of Pat Berringer's notes (document

SC18627) along with the June 20, 1995 minutes. [49] I find the passage from the June 20, 1995 minutes is relevant because it relates to where people from Vancouver Island camped for fishing. There is evidence before me that Vincent Stogan was a respected and reputable knowledge holder. While the minutes lack an identified author, given the notes of Pat Berringer, I am satisfied that issue is more appropriately dealt with as a matter of weight. This passage is admissible. Pat Berringer's notes provide context for the statements recorded in the minutes and are also admissible. July 19, 1996 audio recording of a meeting with Chief Joe Becker, Dominic Point and others [50] The July 19, 1996 recording and transcript arose in the context of confidential internal treaty discussions at Musqueam. Both the recording and transcript were disclosed in error as part of Musqueam's recent document production. When the inadvertent disclosure came to Musqueam's attention, Musqueam wrote all parties and advised them that the recording and transcript were produced in error and should be listed under part 4 of their list of documents as privileged documents. They requested that all parties destroy the documents. [51] The plaintiffs accept that Musqueam has established that these documents meet the criteria for settlement privilege, or if necessary, case-by-case privilege. However, the plaintiffs

submit that Musqueam has waived privilege over the documents, or alternatively, has waived privilege over portions of the documents relating to discussions about a resource sharing agreement. [52] The plaintiffs seek to admit several passages of the 1996 recording, found at pages 7-8 and 25-39, variously as either oral history, admissions against interest or under the principled exception to the hearsay rule. Musqueam submits that it has not waived privilege, and in any event, the passages the plaintiffs rely on are inadmissible hearsay. The plaintiffs' submissions on waiver [53] The plaintiffs accept that Musqueam did not waive privilege through inadvertent disclosure of the document alone. Rather, the plaintiffs submit that Musqueam impliedly waived privilege through producing documents about the same subject matter and entering a related document into evidence. The plaintiffs say this had the effect of waiving privilege over the entire document, or alternatively over those portions of the interview that relate to resource sharing at pages 25-39. [54] In particular, the plaintiffs submit that Musqueam disclosed minutes of a meeting that occurred on July 18, 1996 between elders where they discussed the treaty process and treaty negotiations. This meeting took place the day before the meeting that the contested recording relates to. [55] The plaintiffs also disclosed a memo to

Musqueam fisheries department from Musqueam legal department dated June 28, 1996 regarding the south coast intertribal fisheries resource sharing agreement. The memo states that the original draft agreement "was worded in such a way as to lead to an inference that the all First Nations' fisheries resources throughout the south coast region were to be managed by all south coast first nations collectively." Legal counsel recommended some amendments to the draft agreement. Attached to the memo is a draft of the agreement with edits made in strike-through. [56] The plaintiffs disclosed a fax cover sheet from Lawrence R. Fast to Joe Becker dated July 2, 1996 which purports to attach a copy of the draft memo regarding the south coast intertribal fisheries resource sharing agreement. [57] The plaintiffs submit that the July 19, 1996 recording includes discussion of the subject matter addressed in the June 28, 1996 memo and the July 2, 1996 fax. [58] The plaintiffs also referred to exhibit 2714, which is a letter dated August 7, 1996 from George Harris of the Hul'qumi'num Treaty Group (HTG) to Chief Joe Becker saying that the six Chiefs of the HTG did not have adequate time to review the resource sharing agreement but are enclosing a signed copy. This exhibit was entered by Musqueam during its case. The 1996 recording includes a discussion of the same agreement. The plaintiffs say that

Musqueam waived privilege over discussions about the resource sharing agreement when they tendered exhibit 2714. [59] The plaintiffs also submit that Musqueam impliedly waived privilege of the 1996 recording when they produced documents from the elder meeting held the previous day. It would be inconsistent to include the July 18, 1996 meeting minutes and not the July 19, 1996 recording. [60] The plaintiffs submit that Musqueam seeks to rely on the resource sharing agreement while claiming privilege over evidence about Musqueam's deliberations with respect to whether to sign it. This is a relevant issue given that Musqueam has led evidence about agreements between the plaintiffs and Musqueam in the 1990s and 2000s and various meetings to reach agreements around protocol and fishing arrangements, and this is part of that context. [61] In the alternative, the plaintiffs submit that portions of the 1996 recording dealing with the resource sharing agreement should be admitted and the remainder of the document redacted to protect any privileged communications. In this alternative submission, they seek to admit pages 25-39 of the document that contain discussions about resource sharing and a lengthy passage of oral history from Dominic Point. [62] They submit that the discussion by Joe Becker, Jordan Point, Larry George, and Lyle Sparrow about resource sharing is admissible under the

principled exception to the hearsay rule or as evidence of the position that Musqueam took with respect to the resource sharing agreement with Hul'qumi'num bands. On page 39 of the transcript there is a statement by Jordan Point that the plaintiffs seek to rely on as an admission. Musqueam's submissions on waiver [63] Musqueam submits that there is no implicit waiver of privilege over either the whole or part of the July 19, 1996 recording. Fairness does not require waiver for any reason. Musqueam submits that a claim to privilege over the entire recording is not inconsistent or unfair. They deny that their disclosure of exhibit 2714 and the minutes of the elders' meeting means that they waived privilege implicitly. Those documents were not created through the British Columbia Treaty Commission (BCTC) process and do not amount to partial disclosure of the 1996 recording nor do they amount to waiver of privilege entirely. [64] Musqueam submits the entire document is privileged. Musqueam says that the plaintiffs' position is inconsistent because they previously objected to discussions at the treaty table as both irrelevant and privileged in their entirety. [65] Musqueam denies that it has cherry picked documents from previous files to suit its case. The 1996 recording is clearly a BCTC strategy meeting. Musqueam does not rely on this meeting or any other Musqueam BCTC strategy

meetings in this case. [66] Musqueam submits that they are not claiming privilege over one but not other parts of the treaty negotiations. The elders' meeting held on July 18, 1996 was not part of the negotiation meetings. [67] Musqueam submits that I distinguished between oral history shared in the context of treaty committee meetings for the purpose of treaty negotiations and other instances of oral history transmission that did not arise in a privileged context in a ruling in these proceedings indexed at 2020 BCSC 1507. In that ruling, the plaintiffs were not seeking to adduce evidence about the substantive content of the treaty committee meetings and I found they did not implicitly waive privilege over the oral history given in the context of treaty meetings. Musqueam does not intend to benefit from the privileged content of the Musqueam leadership treaty meetings. [68] In response to the plaintiffs' submission that the discussions regarding the resource sharing agreement with the Hul'qumi'num bands should be severed, Musqueam submits that this argument runs counter to the purpose of settlement privilege which is to promote negotiated resolutions of disputes by allowing for open discussion and the sharing of information. Musqueam relies on British Columbia (Attorney General) v. Lee, 2017 BCCA 219 at paras. 40-42 for the proposition that severance of part of a communication

is not appropriate where severance would undermine the purpose of the privilege. [69] Musqueam acknowledges that it did put the 1996 letter with the attached resource sharing agreement into evidence as exhibit 2714 but submits that it did so for the limited purpose of establishing the composition of south coast intertribal fisheries membership. This position is controversial because the exhibit was admitted as a business record with no restrictions. [70] Musqueam submits that it is not inconsistent or unfair for Musqueam to enter and rely upon the exhibit and also claim privilege over the July 19, 1996 recording. Exhibit 2714 is a copy of an agreement signed by six Hul'qumi'num chiefs and not Musqueam. The link between the exhibit and the recording is weak. The discussion at the meeting was not about whether to sign the resource sharing agreement but rather about resource sharing with other First Nations in the treaty context in future. [71] Musqueam submits that the memorandum of June 28, 1996 from the Musqueam legal department and the July 2, 1996 fax cover sheet are irrelevant. Further, Musqueam says that these documents were produced by the plaintiffs and so they do not engage any issues of fairness or consistency. [72] Musqueam submits that the elders' meeting minutes do not contain any confidential BCTC treaty negotiations and the minutes are not in evidence in this

trial. The fact that Linden Pinay introduced himself as a contractor working with the Musqueam treaty directorate does not render this document privileged. This meeting did not include settlement discussions or information about the internal treaty process for Musqueam's treaty negotiations. That renders the minutes distinct from the July 19, 1996 recording. Law of Waiver [73] I briefly considered the principles that apply to waiver of privilege in a ruling indexed at 2020 BCSC 1507 at para.

102. The evidentiary burden to demonstrate waiver of privilege rests with the party asserting waiver. Waiver is established where the possessor of the privilege (1) knows of the existence of the privilege, and (2) voluntarily evinces an intention to waive that privilege: Sauvé v. Insurance Corporation of British Columbia, 2010 BCSC 763 at para. 21. [74] Waiver may occur in the absence of an intention to waive where fairness and consistency so require, such that waiver of privilege over part of a communication will result in waiver as to the whole communication: Pacific Concessions, Inc. v. Weir and Weir, 2004 BCSC 1682 at para. 13, citing Fraser v. Houston, 2002 BCSC 1378 at para.

22. In Pacific Concessions at para. 24, Justice Kirkpatrick (as she then was) considered the scope of waiver in the context of partial disclosure of solicitor-client privileged communications, relying on Sopinka, Lederman and Bryant's The Law of Evidence in Canada, 2nd ed. (Butterworths, 1999): Similarly, if a client testifies on his or her own behalf and gives evidence of a professional, confidential communication, he or she will have waived the privilege shielding all of the communications relating to the particular subject-matter. Moreover, if the privilege is waived, then production of all documents relating to the acts contained in the communication will be ordered. This statement of the law was cited in Casino Tropical Plants Ltd. v. Rentokil Tropical Plant Services Ltd. (1998), 161 D.L.R. (4th) 750 (B.C.S.C.). [75] In Ross River Dena Council v. Canada, 2016 YKSC 51 the court found that reliance on a document in court proceedings did not result in waiver of privilege over related documents. In that case, the Ross River Dena Council applied to admit a letter and email chain relating to a settlement offer, in circumstances where a different letter, also dealing with settlement, was marked as an exhibit in related court proceedings. The court found the documents at issue were protected by settlement privilege and considered whether the reference to a settlement offer in the letter marked as an exhibit waived privilege over the negotiations generally. [76] The court held that waiver will occur where fairness and consistency will not permit a person to disclose a portion of a communication while claiming privilege over the remainder: para. 19, citing Hallman v. Pure Spousal Trust (Trustee of), [2009] O.J. 3890 (S.C.J.) at para.

16. Partial waiver may also lead to full waiver where the former may be the result of cherry picking and therefore be misleading: para. 20, citing Bone v. Person, [2000] M.J. No. 107 (C.A.) at para.

10. The court concluded "that waiver of part may lead to waiver of all of a communication where it would be unfair, inconsistent or misleading for a party to rely upon the partial disclosure": para.

21. The court held that to the extent the exhibit could be taken as partial waiver of the settlement offer, it did not lead to waiver of privilege over the documents at issue: para.

23. Ruling [77] The July 19, 1996 meeting was held to discuss treaty negotiation strategy. There was discussion of certain agreements, including the intertribal resource sharing agreement, in the context of developing a treaty negotiation strategy. The members of the meeting were not discussing their position on signing the resource sharing agreement. They were discussing what their strategy would be at the treaty negotiation table on issues of fishery resources. As above, the plaintiffs concede that the document meets the criteria for settlement privilege and case-by-case privilege. I accept that this document is protected by settlement privilege, or alternatively, case-by-case privilege. [78] There has been no intentional waiver of privilege over the July 19, 1996 recording and transcript. These documents were produced in error. The plaintiffs acknowledge that Musqueam did not waive privilege through inadvertent disclosure of the documents alone. [79] I find the disclosure of the elders' meeting minutes and the resource sharing agreement and related documents do not constitute an implied waiver of privilege over the July 19, 1996 recording. I am not certain how the plaintiffs obtained access to the June 28, 1996 memo which appears to be legal advice to Musqueam about whether or not to sign the resource sharing agreement. It is not an exhibit in this trial. [80] The oral

history of Dominic Point, Larry Grant, Lyle Sparrow and Jordan Point all related to treaty negotiations. This is demonstrated by Joe Becker's comment at timestamp 1:34:23 on epage 35. Jordan Point's comments at epage 39 also relate to treaty negotiation strategy. I agree with Musqueam that the link between the subject matter of the meeting and the subject matter of the disclosed documents is weak. [81] I do not find that fairness and consistency require that, because Musqueam disclosed the elder meeting minutes and tendered the resource sharing agreement, the whole or portions of the July 19, 1996 recording must be disclosed. Further, their disclosure, without the July 19, 1996 recording, is not misleading. [82] Musqueam has not waived privilege over the whole of the recording and transcript or over any portions of it, including those related to the resource sharing agreement. The July 19, 1996 recording is inadmissible. "The Honourable Justice Young"