2005 BCSC 131 William et al v. British Columbia et al

Before: The Honourable Mr. Justice Vickers

Reasons for Judgment

Counsel for the Plaintiff:	D. Rosenberg P. Hutchings
Counsel for the Defendants, Province of British Columbia and Regional Manager of the Cariboo Forest Region:	T. Leadem, Q.C. K. Tyler E. Christie
Counsel for the Defendant, the Attorney General of Canada:	M. Doherty C. Cameron
Dates and Place of Trial/Hearing:	November 10, 2004 January 19, 2005
	Victoria, B.C.

[1] Nancy Jean Turner PhD. is a distinguished ethnobotanist and ethnoecologist. She has prepared a report for plaintiff’s counsel and counsel seeks to have this report and her oral evidence admitted. Counsel wishes to have Dr. Turner qualified “as an expert in ethnoecology and ethnobotany, qualified to express opinions on traditional ecological knowledge; the general relationship between First Nations and land and resources; processes and timelines for the acquisition of ecological knowledge and development of social, cultural and spiritual connections to the land and its resources; Tsilhqot’in and Xeni Gwet’in relationships to their traditional lands; transfer of traditional ecological knowledge and resources between First Nations in British Columbia; and the impact of industrial development on traditional relationships between First Nations and their land and resources.”

[2] On November 10, 2004 counsel advanced their arguments on the admissibility of Dr. Turner’s report. The defendants argued the report and her evidence was inadmissible on the following grounds:

i. Dr. Turner purports to give evidence on matters in which she is not sufficiently qualified to be considered an expert;

ii. Her evidence lacks objectivity as she appears to be an advocate for the plaintiff; and,

iii. Counsel for the plaintiff was improperly involved in the preparation the report.

[3] Counsel for both defendants acknowledge that Dr. Turner is an expert in the field of ethnobotany, confined to “the traditional knowledge and customs of a people concerning plants; the scientific study or description of such knowledge and customs.” Oxford English Dictionary, online, 2nd 1989. They argue that she has exceeded her field of expertise and that her report failed to meet the required standard of impartiality to be admitted as expert evidence.

[4] On November 10, 2004 I had the benefit of Dr. Turner’s curriculum vitae and her report dated August 2004. She had not appeared as a witness and I had not heard her evidence bearing on her qualifications. At the conclusion of argument, I felt uncomfortable ruling on the admissibility of her evidence without having the benefit of hearing her discuss her lengthy curriculum vitae which covers, in detail, a distinguished career of over 40 years. Accordingly, I advised counsel I intended to hear the entirety of her evidence subject to their objections. I invited counsel to advance further arguments on the issue of the admissibility of her report at the conclusion of her evidence, if they considered additional argument necessary. These arguments were made on January 19, 2005.

[5] On that day counsel provided transcript references to support their original arguments. In their submission, Dr. Turner is not qualified to express an opinion on the length of time that the Tsilhqot’in and Xeni Gwet’in have been in the claim area. They argue that such an opinion is without precedent. They challenge Dr. Turner’s interdisciplinary qualifications. They say she is qualified as a botanist and ethnobotanist but is not qualified to express opinions touching on the fields of anthropology and linguistics. In their submission, ethnoecology is an emerging field of study whose boundaries have not been properly defined. It is a field of study the court cannot rely upon because of the broad scope it purports to take into account. They renewed arguments on Dr. Turner’s lack of objectivity and on the involvement of counsel in the preparation of her report.

[6] Counsel for Canada argued that they were not told that Dr. Turner was going to express opinions in the field of ethnoecology until a few short days before she was called to testify. The original CV provided with her report, within the time limits of Rule 40A of the Rules of Court, made no reference to that field but was confined to her expertise as an botanist and ethnobotanist. Counsel argued the notice of her being called to testify as an ethnoecologist did not comply with the 60 day time limit for notice set out in Rule 40A.

[7] I acknowledge that there is no mention of Dr. Turner as an ethnoecologist in the CV first provided to counsel. But a reading of that CV would have lead to the conclusion that she was a person qualified in that field. Of more importance, there was no prejudice to the defendants caused by the plaintiffs seeking to qualify Dr. Turner in the additional field of ethnoecology. Accordingly, while there may not have been a strict compliance with Rule 40A, I am not prepared to say her report and her evidence in the field of ethnoecology is inadmissible in the absence of any prejudice to the parties.

[8] Counsel for the plaintiff, Mr. Murray W. Browne, sent a retainer letter to Dr. Turner on December 3, 2002. She was retained to do a general report on the relationships between First Nations, plants and the environment including a discussion on the relationships between the Tsilhqot’in people, plants and the environment. The central question to be addressed in this report was “did the Tsilhqot’in occupy the claim area historically through the management or repetitive harvesting of plants?” In addition, Dr. Turner was retained to prepare a specific report to cover the “repetitive use of plants and occupation or management of sites” and, “the potential impacts of industrial clear-cut logging on the Tsilhqot’in relationships with plants and the environment.”

[9] On July 16, 2003 counsel wrote to Dr. Turner instructing her to combine the two reports and new sections on “time depth,” “carrying capacity” and “trade” were to be added. In that regard the letter reads as follows;

3. Time Depth

a) Based on the information in historical records and your interviews with Elders, what is the shortest amount of time it would have taken for Tsilhqot'in or Xeni Gwet'in people to acquire the level of knowledge and spiritual connection they have about plants, plant uses and plant locations in the area?

b) Based on your professional experience, would it have been possible for the Tsilhqot'in and the Xeni to acquire this knowledge and develop this connection within the last 150 years?

4. Carrying Capacity

a) Based on best available information, how many people or how many families would the plant resources from Potato Mountain have been able to sustain in a given year prior to 1846?

b) Based on best available information, what population range could the Claim Area have supported prior to 1846?

c) What other information would you require to provide a more accurate estimate of the carrying capacity of the Claim Area?

5. Trade

a) Is there any evidence of the Tsilhqot'in trading plants or medicines with other First Nations?

b) Based on your knowledge of Tsilhqot'in ethnobotany and of plant trade by other First Nations, would you expect that the Tsilhqot'in would have traded plants with other First Nations prior to the early 1800s?

[10] Dr. Turner’s report expresses the following, inter alia, opinions:

i. Indigenous people in general, including the Tsilhqot’in, cared for their resources and habitats and managed them sustainably;

ii. The Tsilhqot'in belief system is similar to that of other North American Aboriginal groups and Interior First Nations, for example the neighbouring Ulkatcho, Wits'uwiten and Secwepmec. Namely, there is a spirit or soul in every part of the environment, both living and non-living: rocks, mountains, water, plants, animals, birds, etc.

iii. Indigenous peoples in general have a kin-centric belief system in which all life forms are seen to be related to humans. The Tsilhqot'in believe that all life forms including plants are related to humans; they are regarded as family, as relations.

iv. The Tsilhqot'in people hold a deep respect and appreciation for all the resources that they use. They have an ethic that prohibits waste and disrespect of the environment.

v. ... the Tsilhqot'in have occupied the Claim Area historically through the use, management and repetitive harvesting of plants.

vi. The Tsilhqot'in are long residents of their territory and have long-standing relationships with other peoples in neighbouring territories. The Tsilhqot'in were and are familiar with, and use all parts of, the landscape in their home territory.

vii. ... the Tsilhqot'in and Xeni Gwet'in people have been resident for at least 250-300 years in their Claim Area.

viii. ... it would not have been possible for the Tsilhqot'in and Xeni Gwet'in to have acquired this knowledge and developed this connection to the plant resources in their territory within the last 150 years.

ix. There is ample evidence that the Tsilhqot'in traded plants and medicines with other First Nations.

x. ... the Tsilhqot'in would have traded plants with other First Nations prior to the early 1800s.

xi. The Xeni Gwet'in and Tsilhqot'in will potentially be negatively affected in many ways by impacts of industrial logging within their Claim Area.

xii. Large-scale cattle grazing in the subalpine parkland ecosystems of the Claim Area has resulted in significant reductions in the size and productivity of berries and root vegetables like mountain potatoes and dwarf mountain blueberries in various areas throughout the Claim Area. Other impacts include pollution of water sources, introduction of invasive weedy species through cattle feed, and soil compaction and erosion.

xiii. The exclusion or alienation of indigenous peoples, including the Tsilhqot'in, from the land through government activities and regulations, industry and privatisation has resulted in great hardship, loss of self-sufficiency and loss of access to traditional food and medicine, ultimately negatively affecting people's health and well-being.

xiv. The Tsilhqot'in economy was, is, and will be dependant upon their homeland resources and habitats.

[11] In a letter to Dr. Turner dated November 19, 2002 Mr. Browne said in part,

“I hope you are now in a position to work on your expert report so we can protect the aboriginal rights and title of the Xeni Gwet’in and the Tsilhqot’in in the upcoming court case.”

[12] With reference to her report he said that

“The primary focus is using ethnobotany to assist in proving that the Xeni Gwet’in and Tsilhqot’in used and occupied their territory and had a relationship with the eco-system long before European contact.”

[13] Counsel for the defendants argue that the foregoing instructions are evidence that Dr. Turner’s report was not to be objective but was to be specifically designed to assist in the proof of the claims for aboriginal rights and title advanced in this litigation.

[14] On January 27, 2003 Mr. Browne sent Dr. Turner “some addition materials that may be relevant to your expert opinion”, including:

· The affidavits of Annie Williams, former Chief of the Xeni Gwet'in,

· Excerpts from Robert Tyhurst's PhD Dissertation relating to ethnobotany,

· "Chilcotin Ethnoarchaelogy: Culture History and Subsistence", UBC, by Robert Tyhurst,

· an excerpt from a paper by Robert Tyhurst,

· a report entitled "The Heritage Significance of the Fish Lake Study Area: Ethnography:, and

· excerpts from a report by Diana Alexander et al entitled "A Preliminary Ethnoarchaeological Investigation of the Potato Mountain Range and the Eagle Lake Area," re: Permit No. 1984-14, (Can. Ethnic Studies Program/NVIB Council).

[15] On October 22, 2003, Mr. Browne wrote to Dr. Turner seeking clarification of her draft report. In that letter with reference to a specific paragraph in the report he said:

“... Delete this question and any references to population estimates. After having discussed this issue with you, we agree that there is insufficient data at this point for anyone to draw conclusions.”

[16] On July 8, 2004 Mr. Browne sent an email transmission to Dr. Turner correcting her references to the story of Ts’il?os and ?Eniyud and the story of Lendischoch. He said, in part that:

“... In my understanding, ?Eniyud and Lendischoch both speak of mountain potatoes but they are separate stories. If this is true, could you please correct or clarify the sentence in question?”

[17] On March 26, 2003 Mr. Browne sent another email transmission to the attention of Dr. Turner’s research assistant and attached a copy of the report in which he had made amendments, suggested a number of passages of text he had drafted and proposed other changes to the report.

[18] As a result of the issues raised by counsel for the defendants concerning his conduct, Mr. Browne filed an affidavit prior to the arguments advanced in November. He says that from the outset it was always intended to combine the general and specific reports. The reason for their initial separation was that Dr. Turner was not able to write about her field work with members of the Tsilhqot’in community until certain confidentiality issues were resolved.

[19] On the addition of “Time Depth” to her report, Mr. Browne said that he had no idea that Dr. Turner was able to express opinions in this area until he met with her at some point after the first retainer letter was sent. In his affidavit Mr. Browne pointed out that the email transmission dated March 26, 2003 sent to the attention of Dr. Turner’s research assistant read as follows:

“Here are my comments on Dr. Turner's draft report. In general, the draft report is excellent. Dr. Turner can provide more detail in the second report after we have sorted out the confidentiality issues relating to certain Tsilhqot'in Elders.

I have highlighted my suggested revisions to the draft report. For the most part, my suggested comments are aimed at asking Dr. Turner to include comments I have heard her make and at adding more detail to some of the statements in her draft. In a few cases I have also suggested that she include more detail from the sources she is citing.

Can you please ask Dr. Turner to review these to see if they are acceptable to her. I would also welcome alternative suggestions. This is, after all, her report: she has the final say.”

[20] Mr. Browne’s affidavit expresses regret at his choice of language in the letter dated November 19, 2002. He says it was his attempt to respond to questions advanced by Dr. Turner concerning the nature of the litigation. In self defence he points out that in a letter dated December 3, 2002 addressed to Dr. Turner he said, in part, the following:

Expert, Not Advocate
Ordinarily, evidence of facts is admissible in court proceedings, but evidence of opinions is not. An exception to this rule is made where the opinion tendered is an expert opinion. Expert witnesses who have the court's confidence assist it by drawing inferences from facts, or assumed facts, that the court lacks the expertise to draw itself. Thus, the credibility of an expert, and the impact of an expert's opinion, depend upon the expert adopting an objective and dispassionate approach to the formation and presentation of that opinion; by contrast, and expert's credibility and impact will be diminished or eliminated altogether by a partisan and biased approach. Therefore, it is imperative that we as lawyers for the plaintiff only call as witnesses experts who independently hold opinions that assist us in advancing the claim for aboriginal rights and title, as distinct from experts who will strive to find a way to say things that are helpful to Roger William, the Xeni Gwet'in or the Tsilhqot'in.

Argument or advocacy that is presented as expert opinion can be, and has been, ruled inadmissible by courts in British Columbia. In order to avoid any appearance of holding opinions that were not independently formed but, rather, have been shaped and moulded to accommodate the aboriginal claim and to advocate for that position, you must all times bear in mind that your role is not that of an advocate, but rather to express the independently-formed expert opinions that you genuinely hold.

[21] On January 19, 2005 counsel renewed their attack on counsel for the plaintiff’s participation in the preparation of Dr. Turner’s report. They point out that Mr. Browne failed to advise the court that he had travelled to the claim area with Dr. Turner during her field trip. They say there must have been considerable conversation during this lengthy period of time as well as the possibility of his taking part in a “brainstorming” that Dr. Turner did during the drive from Williams Lake to the Nemiah Valley. In short, it was not until Dr. Turner testified that Mr. Browne’s potential participation in the preparation of her report was fully understood.

[22] Dr. Turner testified over a day and a half concerning her qualifications. She explained that ethnobotany is one of those professions that crosses disciplines, incorporating into its area of expertise, a number of fields. I conclude there are people who are called ethnobotanist who have focused their studies in particular areas such as anthropology, botany, linguistics, oral history, anthropology or archaeology. What all of them have in common, as well as a depth of knowledge in a particular field, is a breadth of knowledge that pertains to the study of interrelationships between peoples and plants.

[23] From Dr. Turner’s evidence I understand that the science of ecology is a biological science that studies the interrelationships between organisms and each other and their environments. The word ecology comes from the Greek word oikos meaning house. Hence, ecology is the study of our home place essentially, the places where we live, and all of the connections among the different elements of those places. Ethnoecology is another interdisciplinary study and it is a study of peoples’ knowledge of the ecological relationships within their home places, their own territories or environments. It is a discipline which is inclusive of ethnobotany, ethnozoology, ethnoarchaeology, ethnoanthropology and all of the other sub-fields within a broader or more integrated study.

[24] Dr. Turner commenced her academic studies mainly in the field of botany. She attended the department of biology at the University of Victoria where she studied zoology and botany. Her main degree was a degree in biology. She obtained her PhD. through the department of botany at the University of British Columbia. She explained that her program was specially designed and she took courses in taxonomy, geography, anthropology and ethnobotany. She studied with pioneers in the area of what came to be known as "folk science" or "ethnoscience," a folk classification system of biological entities. With the assistance of her distinguish academic supervisors she developed a doctoral research program in the interdisciplinary area of folk classification systems. Her studies and lifelong career have taken her into an interdisciplinary realm which includes linguistics, archaeology, anthropology, botany and biology.

[25] Dr. Turner holds the unique title of Distinguished Professor in the School of Environmental Studies at the University of Victoria. She has had a distinguished career in the fields of ethnobotany and ethnoecology and is the holder of many prestigious honours. There can be no doubt she is qualified to express opinions in those fields.

[26] In my view, the attacks on the field of ethnoecology as a field of study too broad to be relied upon do not go to the admissibility of Dr. Turner’s report and her evidence. They raise issues that go to the weight the court will give to the report and the opinions she expresses.

[27] Counsel argue that some of the opinions expressed by Dr. Turner are outside her field of competence. In that regard they say she is not qualified to express opinions on trade and on processes and timelines for the acquisition of ecological knowledge and development of social, cultural and spiritual connections to the land and its resources (“time depth”). Counsel for British Columbia says that the opinion concerning large scale industrial logging is based entirely on what she has been told by others. It is entirely hearsay and not admissible on that ground. I do not agree with these submissions. The opinions expressed are within her fields of expertise. The opinion on large scale logging is not the opinion of an informant. A published informant supports the opinion she expresses, based in part on her personal observations.

[28] In addition, counsel argue that Dr. Turner’s evidence is more in the nature of advocacy and does not reflect the unbiased views of an expert. Dr. Turner has spent her entire career studying the First Nations people of British Columbia and their relationships with plants and their ecology. It is expected she will have firm opinions to express on such matters and the impact of the Europeans on the First Nations people and their environment. The fact that her opinions are sympathetic to the positions advanced by the plaintiff in this case does not transform her into an advocate for the plaintiff. The manner in which she expresses those opinions, in writing and orally, and her demeanour under cross examination all bear on whether the opinions she expresses can be relied upon.

[29] In my view, the foregoing issues raised by counsel as issues concerning the admissibility of the report all bear on the weight to be given to the opinions she expresses. The weight of her opinions must be measured against all of the evidence, including the evidence of other “experts” called by the parties to testify at this trial.

[30] The real issue that has caused me concern is the role of counsel in the preparation of Dr. Turner’s report. The fact that counsel felt the need to prepare and file an affidavit, thus potentially putting his own evidence to the test of cross examination, speaks to the seriousness of this issue. Counsel at trial should make every effort to avoid this kind of situation.

[31] It is essential that a person called to give expert evidence be independent and impartial. Such a person is called to assist the court in areas that require expertise. The court must be able to rely on the opinions expressed as those of the expert and no one else. Those opinions cannot be influenced by the adversarial demands of the litigation nor by the demands of counsel retaining the expert: Kirby Lowbed Services Ltd. v. Bank of Nova Scotia, 2003 BCSC 617.

[32] In National Justice Compania Naviera SA v. Prudential Assurance Co Ltd (“The Ikarian Reefer”), [1993] 2 Lloyd’s Rep 68, QBD (Com Ct), Cresswell J. said the following concerning the duties and responsibilities of expert witnesses:

B. THE DUTIES AND RESPONSIBILITIES OF EXPERT WITNESSES

The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v Jordan, [1981] 1 WLR 246 at p 256, per Lord Wilberforce).

2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd v Commercial Union Assurance Co Plc, [1987] 1 Lloyd's Rep 379 at p 385 per Mr. Justice Garland and Re J, [1990] FCR 193 per Mr. Justice Cazalet). An expert witness in the High Court should never assume the role of an advocate.

3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract form his concluded opinion (Re J sup).

4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

5. If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one (Re J sup). In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report (Derby & Co Ltd and Others v Weldon and Others, The Times, Nov 9, 1990 per Lord Justice Staughton).

6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side's expert's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.

7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports (see 15.5 of the Guide to Commercial Court Practice).

[33] Often counsel is able to state a set of facts to an expert witness and have that witness express an opinion based upon those assumed facts. The weight to be given the opinion is, in part, based upon whether the court is able to make the findings of fact upon which the expert opinion is based. In this case that option did not appear open to counsel because Dr. Turner’s opinions are based, in part at least, on her own field research. Thus, in part, the facts upon which she expresses her opinions are founded in the research she has undertaken.

[34] The exchange of correspondence between counsel and Dr. Turner contained unfortunate language which left open the argument that counsel dictated the opinion required and Dr. Turner complied with the dictates of counsel. Counsel’s editing of the report left open a similar argument. Counsel should strive, at all times, not to place themselves in the position where their conduct becomes a focal point of the court’s concerns.

[35] Mr. Browne did not make reference to his trip to the Nemiah Valley with Dr. Turner and others, in his affidavit. This too is unfortunate, because it left open an additional attack on his participation in Dr. Turner’s research and report. I conclude that while he spent several hours in the company of Dr. Turner this did not play any part in the opinions she expressed. I think the “brainstorming” referred to by Dr. Turner was a personal and private assessment of the research task she was to undertake in the days to follow. Mr. Browne did not take part in this “brainstorming”. If I am wrong in that regard then his participation was so minimal that it left no impression on Dr. Turner so that she was able to say she had no recollection of his taking part in the “brainstorming.”

[36] I accept the explanations which Mr. Browne has set out in his affidavit but I do so expressing regret that it became necessary for him to file an affidavit explaining his conduct. I have no doubts about Mr. Browne’s integrity. The question is whether his inappropriate language and his time with Dr. Turner in the field caused the opinions expressed to be those of Dr. Turner or those of counsel.

[37] In the end, the matter is determined on a judgment of Dr. Turner's integrity and trustworthiness. I am entirely satisfied having heard her testify over a period of five days that the opinions she expressed to the court in her report and in her oral testimony are her own opinions founded on the evidence she obtained and a lifetime of experience in the fields of ethnobotany and ethnoecology. They are not opinions dictated to her by counsel. Whether these opinions are accepted in whole, in part, or not at all, will depend upon a consideration of all of the evidence at the end of this trial. At this time, I do not want what I have said above to be taken as an expression of an acceptance of her opinions.

[38] For now, the only conclusion I reach is that Dr. Turner is a distinguished ethnobotanist and ethnoecologist entitled to express opinions in the areas outlined by counsel. The opinions contained in her report, marked as an exhibit in these proceedings, are her opinions. The report and her evidence is admissible.

[39] In the course of cross examination, two other issues arose and arguments were made with respect to these issues on January 19, 2005. These issues are:

a) Is the plaintiff entitled to mark as an exhibit a book entitled Time Perspectives in Aboriginal American Culture, A Study in Method, by E. Sapir?

b) Is additional work by Dr. Turner, prepared during a period of adjournment in response to a question advanced in cross examination admissible and accordingly, should this work be marked as an exhibit in these proceedings?

[40] In the course of his cross examination of Dr. Turner, counsel for Canada asked her if she had read a book by E. Sapir entitled, Time Perspectives in Aboriginal American Culture, A Study in Method. This was marked Ex. CCC for identification. This appears to be a published geological survey produced for Canada, Department of Mines and published in 1916. Dr. Edward Sapir was a linguist and anthropologist. He was Chief Anthropologist for the Canadian National Museum from 1910 to 1925. Dr. Turner replied that she had read excepts but not the entire book. She acknowledged she had not cited his work in any of her publications. Counsel says that generally speaking, Dr. Turner did not take into account those factors identified by Sapir as relevant to the length of time that certain terms are said to have been in use. In re-examination counsel for the plaintiff sought to mark Sapir’s book as an exhibit in these proceedings.

[41] Where individual excerpts from texts and treatises have been put to witnesses and where it is apparent that the entire text is not relied upon, the excerpts have not been marked as exhibits because only the references that counsel wish to rely upon form a part of the transcript of evidence. There is no need to clutter the record with paper that is adequately referred to in the transcript of evidence.

[42] But where it is clear that counsel intend in the future to make references to texts, then the entire publication has been marked. This procedure has been followed relying upon the authority of Delgamuukw v. British Columbia, (1989), 38 B.C.L.R. (2d) 176, [1989] B.C.J. No. 1549 (S.C.). Dr. Sapir’s book has been recognised as a scholarly work in these proceedings by expert witnesses, Dr. Hudson, Dr. Dinwoodie and Dr. Turner. There is no reason why the same procedure should not be followed with respect to the text authored by Dr. Sapir. Where counsel intend to make future references to that text it should be marked as an exhibit in the proceedings.

[43] Ex. AAA for identification is a document entitled “Tsilhqot’in Plant Names That Are Apparently Unique to This Language.” Ex. BBB for identification is a document entitled “Comparative Plant Names: Tsilhqot’in & Neighbouring & Athapaskan Languages”. Both documents were prepared by Dr. Turner during a 20 day break between the days during which she testified. They post date her report.

[44] In the course of cross examination, counsel for Canada asked Dr. Turner if she had analysed Tsilhqot'in plant names and done a comparison between Tsilhqot'in plants and other Athapaskan names for those same plants. She replied that she had done a comparison of Tsilhqot’in and Ulkatcho Carrier names. In that comparison she found 8 distinct Tsilhqot’in plant names for plants within Tsilhqot’in territory and in the claim area. Counsel then told her that “if others come back to you during the course of my cross-examination, feel free to just interrupt and give those to me at that time.”

[45] She was asked if, with regards to those plants, she had been able to do a comparison between those and other Athapaskan languages to see if similar plants might have similar names. She responded that she had done such a comparison but my reading of the evidence is that the comparison was very limited.

[46] Both documents, Ex. AAA and Ex. BBB, were written and produced by Dr. Turner over the long delay during which it was not possible to have her return to testify. She prepared them in an effort to be responsive to the questions asked of her in open court and not because anyone told her to undertake this task.

[47] Counsel acknowledges that if, in answer to his questions Dr. Turner had said “yes, and incidentally, here is a written copy of my conclusions”, it would have been a complete answer to his question and the document would have to have been marked as an exhibit. He says the delay allowed her to go away and prepare an answer and on her return he was, in effect, ambushed with the complete answer. He says her answer is an addition to her report and contravenes Rule 40 A of the Rules of Court.

[48] Counsel opened this field of inquiry and invited the witness to add to the original list of eight plants. If the question was relevant then the entire answer is relevant. Dr. Turner cannot be faulted for giving the question some additional thought over the long break. The answer is as admissible after the break as it was if it had been available when the question was first answered. Accordingly, both documents should now be marked as exhibits.

“D.H. Vickers, J.”
The Honourable Mr. Justice D.H. Vickers

Citation:	*William et al v. British Columbia et al,*
	2005 BCSC 131