R. v. Joseph Date:, 2010 BCPC 401

Citation: R. v. Joseph Date: 20101203 2010 BCPC 0401 File No: 150799-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMES CARL JOSEPH RULING ON ADMISSIBILITY OF ORAL HISTORY EVIDENCE OF JAMES CARL JOSEPH OF THE HONOURABLE JUDGE JARDINE Counsel for the Crown: J. MacAulay, G. Thompson Counsel for the Defendant: G. Wool Place of Hearing: Surrey, B.C.

Date of Hearing: September 17 & December 2, 2010 Date of Judgment: December 3, 2010 [ 1 ] This is a preliminary inquiry into the admissibility of oral history, oral tradition evidence and oral cultural education, oral traditions, as well as legends, from the witness, James Carl Joseph, Jr. BACKGROUND AND TESTIMONY: [ 2 ] Mr. Joseph commenced his testimony in this area of the case on September the 17th, 2010 and continued with his testimony yesterday after counsel had raised a number of legal issues, particularly outlining the role of the trial judge as gatekeeper in respect of the admissibility of evidence.

The issue is struck in the context of the common law as it relates to the inadmissibility of hearsay evidence and the movement towards exceptions to the rule of inadmissibility of hearsay evidence occasioned by necessity and reliability. [ 3 ] Before I commence these reasons, I have clearly tried to characterize and describe First Nations and First Nations language by Anglicizing the descriptors in the interests of clarity. By doing so I mean no disrespect to First Nations people, with whom I have worked and with whom I have consulted over the years.

I do so in the interests of clarity and in the interests of not being disrespectful by mispronouncing language which I do not know. [ 4 ] Mr. Joseph was raised in the traditions of two peoples through interactions with his paternal grandmother at Quatsino, a Kwakiutl background, and through learning and attending to Alert Bay, the ancestral home of his mother. His early years were difficult. From birth to three years he was at Quatsino with his paternal grandmother.

His recall is not continuous due to the length of time that has transpired and his infancy at the time, but it would appear that his mother and father were also in and out of the picture during those years. He was sent to a residential school from ages six to nine. To say that that was difficult was characterized best in his evidence by him calling it "a form of hell." From age nine to 13 he was in Vancouver with his mother. That was a different form of prison. His mother was addicted to alcohol and she passed away due to the ravages of that disease when he was 13. Mr.

Joseph at that time had been in and out of foster care and from time to time he would be on the street. Initially he tried solvents to dull the pain, then as he got older he became an alcoholic and a street person. He related that he was stabbed three different times.

[ 5 ] Somewhere during the course of the latter stage of his teenage years he was moved to change. I would infer from his oral history that that was due to the intervention of his grandmother as well as his incarceration and his turning away from substance abuse to carving. He has been clean and sober now for some 31 years. He related that he quit drinking at 22 years of age. [ 6 ] His teenage years involved him interacting with his paternal grandmother and his education came both from public school and by the after-school interaction with his paternal grandmother.

These educational events were, of course, interspersed with his substance abuse and his acting out due to his own ravaged condition due to alcohol. However, during the course of his interaction with his paternal grandmother the oral history of his people was passed to him through his grandmother speaking with him. [ 7 ] The oral history of his people is passed through a matriarchal chain. His grandmother did not speak English well. Mr. Joseph was trying to learn, or re-learn, what he had from infancy to three years of age, his ancestral language.

His grandmother mostly impressed on him the need for him to maintain his mother tongue in order for him to understand it, and to speak it, and to know his lineage, his Indian name, and the cultural and traditions of his people. [ 8 ] As to how he came to learn his traditional cultural ways and the interaction of his peoples with wildlife, Mr. Joseph was clear. He said about his teachers, "They didn't tell us," they showed us how to do things. When they travelled, and I am referring specifically to his grandmother and Mr.

Joseph, to their traditional lands at Quatsino or when they went to Alert Bay they would enter back into the ways of life of their people. At Quatsino they lived on a small island across from Port Alice on the west coast of Vancouver Island. There were moose, sea lions, salmon, bear and berries. They came to know about collecting berries, fishing, hunting and potlatch at that time. [ 9 ] The initial stage was up to three years of age. Mr. Joseph related that he can remember being shown by his grandfather how to do things. He was told to watch and copy what his grandfather did.

He was also, he said, able to remember as early as three, and he is now some 50 years after that, that he was made aware that he came from a long line of carvers. He was taken to the potlatch house by his grandfather, he said. He remembered that when they were in the potlatch house the language spoken was native to the people at the place where the potlatch was being held. He recalled that he was to stay with his grandfather during the potlatch ceremony at the potlatch house and copy what his grandfather did. [ 10 ] Unfortunately, Mr. Joseph's grandfather passed away while Mr.

Joseph was at the residential school. He, therefore, lost contact with him. His step-grandfather, Godfrey Hunt, who was a carver for some 40 years, then became his mentor in relation to carving, showing him the interrelationship between canoes, totem poles and masks and the way in which those artifacts were created. [ 11 ] During his teenage years from time to time Mr. Joseph and his grandmother would leave Vancouver as I have related and stay on the reserves at either Quatsino or Alert Bay. During those visits, and I do not know the duration of those visits, Mr.

Joseph related that he was made aware of the carver lineage forming his family history. He was told by Godfrey Hunt and by his paternal grandmother that his great-great-grandfather was George Nelson from Quatsino. Mr. Nelson was an hereditary chief and a carver. A longhouse that he carved at Quatsino is, Mr. Joseph says, in the UBC Museum of Anthropology, something about which Mr. Joseph is extremely proud, as well he should be. [ 12 ] He was told of his grandmother's father, Harry Bee, who was a well known carver who evidently carved the longhouse in Quatsino. It was during these summer visits as a teen that Mr.

Joseph first experienced, within his clear memory, an oral history of attending potlatches at either Kingcome, Port Rupert or Alert Bay. He was instructed by his grandmother and by Godfrey Hunter mostly by modelling, it was not oral formal instruction. [ 13 ] An example is this: Mr. Joseph said that he was about three years of age when he and his sister were told by his grandmother that he was from the Killer Whale Clan as well as the Thunderbird Clan. He was told that killer whales had saved his people and that is why they were members of the Killer Whale Clan.

He was told that thunder had hit the boat carrying his mother while she was pregnant with him and that that is how he came to be of the Thunderbird Clan. Those stories were related to him by his grandmother and reiterated during his teenage years. That is how he remembered them. [ 14 ] From 18 to 22 years he was brought into carving. The only reasonable inference from the whole of his testimony and the portions of it which I am prepared to accept is that as he turned to his love of carving he was able to remain sober and turn away from substance abuse.

His grandmother and his step-grandfather emphasized that he should maintain and keep alive his family's history of carving. He was encouraged by them to follow the traditional ways. He was taken duck hunting, deer hunting and moose hunting. He recalled being shown how once one killed a moose one would cut out part of the heart and eat it, as well, cut out part of the liver and eat it, and as well drink the blood of the animal. It was part of the traditional ways, an understanding of the interplay between man and the animal which was providing sustenance for the family. [ 15 ] Mr.

Joseph related that he started learning about carving when he was about five years old. He started by drawing first. He was taught by his step-grandfather and at potlatches that carvings have a language of their own. That language is not written on paper or carved in stone. The circle of carvers is very close. They are a tight-knit group. They have their own language. It was during that time that he learned about masks and styles of carving by studying from art books like, and he related a title, "Art of the Kwakiutl." He was studying the pictures.

It was not written instruction but an understanding of the flow of the particular piece of art. [ 16 ] It was at that time when he was between 18 and 20 years of age, he is unclear as to whether it was when he was 18 or 19 or 20, but at some time around 33 years ago, that he studied for six months with Larry, and it is either Rousseau or Rosso, who was part Kwakiutl and part Haida Gwaii. Together with his oral history Mr.

Joseph was told by Larry Rosso of eagle masks, thunderbird masks and the roles of eagles, thunderbirds and eagle down regalia at potlatch and how carvers, in the making of those artifacts, are related to the tradition of the people attending potlatch ceremonies. In that sense Mr. Joseph gained further knowledge of the language of carvers, the lines, the drawings, the form and shape of masks and how they are important to the ceremonies of his people. [ 17 ] From the evidence before me I am satisfied that Mr. Joseph acquired a working ability to understand his native tongue but he can only speak it a bit.

He can only understand enough of what he hears to get by, he said. He described in his testimony that he characterizes this level of understanding as speaking the language "fluently." That is not what the word "fluently" means in that context.

A person who fluently speaks a language speaks it freely, being able to not only hear it, comprehend it or understand it but as well toexpress and articulate himself in the language easily. But Mr. Joseph was also clear and explained that he cannot speak the language, hecan understand it a bit, enough to get by. That clarification would indicate that this was not an attempt to mislead but an attempt toexpress himself clearly and honestly. [18] Mr. Joseph was also direct about how wildlife parts are acquired by the carvers.

Word is put out to the people and the people ofthe Bear Clan, the Eagle Clan or the like are asked to provide parts for the carvers to utilize in the mask being created. Trading is donein the tradition of potlatch to enable the acquisition of the parts of the wildlife sought. It is understood that those of the particular clanare the ones who go out and get those things. [19] From the whole of his testimony it is apparent that Mr. Joseph comes from a long and proud lineage of carvers and he is proud ofhis ancestry.

The emphasis in his grandmother's instructions to him was one of maintenance of their culture, their traditions, their way oflife and that Mr. Joseph try and learn the language in order to preserve it for another generation. It was not education in the oraltraditions and history of his people; it was instruction in his own lineage, his bloodline and the need for Mr. Joseph that proud tradition ofcarving. THE CROSS-EXAMINATION OF MR. JOSEPH: [20] The cross-examination by Mr. Thompson was focussed. It allowed us to understand clearly, and this is one that I am going to tryand pronounce correctly, Mr.

Joseph's father's tribe was Klawatsis, his mother's Kwakiutl. He is a registered aboriginal. He is not anelder. He is not a chief. He is not a band councillor. He has no authorization for the band to give oral traditions of the band's history. His answer was direct. He said, "I could get it but I don't have it here." Mr. Joseph last lived on traditional territory when he was eithertwo or three years of age. He actually backed it down to two years of age in his answer. Mr.

Joseph admitted that his people's culturalstories, legends, histories, backgrounds are passed through matriarchal storytelling, particularly by the women keeping the stories alivein oral tradition. [21] Those stories, legends, histories, backgrounds and lineage of families are also related at potlatch, where family histories arerelated by a designated speaker who would tell of the family lineage, the bloodlines, the Indian names and relate a particular family tolegends such as supernatural beings, the wise Ravens, the Thunderbirds, Copper, which is the chief bloodline of a particular familylineage.

There are potlatches in honour of marriage, death, name giving. Most of the potlatches attended by Mr. Joseph, and he said thelast one was some three years ago and he has attended only three in the last ten years, are memorial potlatches, mourning andremembering people who have passed. At potlatch, Mr. Joseph said, speakers would include matriarchal storytelling, designatedspeakers and the sponsor of the potlatch. In particular, Mr. Joseph clarified in cross-examination that his grandma asked him to keeppotlatch going and to keep it alive. He acknowledged that it is time he did one but he has not. [22] Mr.

Joseph was clear that he was incarcerated from 18 to 23 years of age and learned to carve while he was in the institution. Hewas careful to qualify that it was hard for him to retain his native tongue. The residential school was like being in hell and rubbed out hiscultural instruction from his grandma and his grandfather. His mom spoke their language but not his father. Mr.

Joseph was clear thathis first cousin, Martha, and he, became aware of the family tradition of carving together at his grandmother's because Martha wouldfrequently come by and he would have the opportunity to have this extended family member join him in understanding the proudtradition of carving on both sides of his mother's and father's families. ISSUES: [23] Of particular note for a trial judge in assessing the necessity and reliability of the admission of what is commonly referred to asoral history evidence are the following factors: 1. Mr.

Joseph's circumstances and his ability to remember and articulate what was said to him or what was taught by his grandmotherand his step-grandfather to him during the years when he could remember; 2. Who was the source of the event, the story, the tradition, the legend, and we know that, grandma, step-grandfather; 3. What is the relationship with the witness to Mr. Joseph, and we know that they are close family members; 4. The general reputation of the source or person. We have no evidence of the general reputation of Godfrey Hunt other than that heis a carver and was so for some 40 years. However, Mr.

Joseph has related that his grandmother was a shaman and that he comes from ahereditary line of chiefs and she clearly was a proud member of the tribe; 5. Was that person a witness of the event or was that person simply told of it by another. Really, the evidence about that that wasrelated to me in terms of the testimony of Mr. Joseph would relate only to George Nelson, who was the great-great-grandfather, andwhether or not Mr. Joseph's grandma had that by story or she had been able to witness some of that event. That was not clear in theevidence before me. 6.

And then most significantly, are there any other indicia of reliability such as confirmation by others, confirmation byarchaeological or historical evidence, public recountings of rights affirmed by witnesses such as elders, band councillors, others of Mr.Joseph's clan or band. Are there public statements or declarations made by a deceased member of the band as to the traditions, legends,stories of the band.

THE APPLICABLE LAW: [24] The law has been provided in the Crown's book of authorities and I have focussed on the following six cases in my attempt toanalyze and determine the appropriate ruling, having regard to Mr. Joseph's circumstances and the information which he has and wouldrelate. Those cases are: Ahousaht Indian Band v. Canada (Attorney-General) (2008), 2008 BCSC 769 BCJ 1095 in the(B.C.S.C.); Benoit v. Canada (2003), 2003 FCA 236 F.C.J. 923 (F.C.A.); Delgamuukw v. British Columbia (1997), 1997

302 (SCC), 3 SCR 1010 (S.C.C.); Mitchell v. Canada (Minister of National Revenue - M.N.R.) (2001), 2001 SCC 331 SCR 911 (S.C.C); Tsilhqot'in Nation v. British Columbia (2004), BCJ 252, (B.C.S.C.); and White Bear First Nations v.Saskatchewan (2009), SJ 242 (Sask. Q.B.). ANALYSIS AND CONCLUSION: [25] The evidence tendered in this court is vastly different from the evidence presented in Tsilhqot'in Nation v. British Columbia,supra, and Ahousaht Indian Band v. Canada (A-G), supra.

In those cases the evidence included expert archaeological testimony anddetailed outlines of the proposed testimony of the witness to assist in the determination of both the necessity test and the reliability testfor threshold admissibility. Nor have I, in the trial at bar, had the opportunity for the detailed analysis as set out in Benoit v. Canadasince the analysis conducted by Nadon, J.A., was an analysis at appellate review on a full record at trial.

How this relates to mydetermination in this case is understandable as here we have not proceeded by voir dire as was done in Ahousaht Indian Band whereMadam Justice Garson, as she then was, heard all of the proposed testimony. Here, pursuant to the procedures set out by Justice Vickersin Tsilhqot'in Nation v. British Columbia, we have had a preliminary examination of Mr. Joseph to determine whether the proposedtestimony meets the tests of threshold reliability and necessity such that it should be admitted. The questions are posed: Is the evidencenecessary?

Is the evidence reliable? [26] The law which informs that is most succinctly set out in paragraph 30 of Mitchell, supra. At paragraph 30 Madam JusticeMcLachlin's part of the paragraph provided useful guidance. She said: Underlying the diverse rules on the admissibility of evidence are three simple ideas. First, the evidence must be useful in the sense oftending to prove a fact relevant to the issues in the case. Second, the evidence must be reasonably reliable; unreliable evidence mayhinder the search for the truth more than help it.

Third, even useful and reasonably reliable evidence may be excluded in the discretionof the trial judge if its probative value is overshadowed by its potential for prejudice. Analytically, this is a trial by judge without a jury. I am not concerned about the prejudicial aspect, but I am concerned about the firsttwo tests outlined by the Chief Justice. [27] We are further guided in the context of that analysis by her earlier remarks in Mitchell at paragraphs 10 and 11.

At paragraph 10she said: Accordingly, European settlement did not terminate the interests of aboriginal peoples arising from their historical occupation and use ofthe land. To the contrary, aboriginal interests and customary laws were presumed to survive the assertion of sovereignty, and wereabsorbed into the common law as rights, unless (1) they were incompatible with the Crown’s assertion of sovereignty, (2) they weresurrendered voluntarily via the treaty process, or (3) the government extinguished them: see B. Slattery, “Understanding AboriginalRights” (1987), 66 Can.

Bar Rev. 727. [28] And as to the common law status of aboriginal rights and the constitutional aspects she continued at paragraph 11 in terms of theexplanation of the interplay between aboriginal rights recognized at common law and aboriginal rights falling within the constitutionalprotection of s. 35(1) as well as the aspect of justifiable reasons limiting them and the Gladstone analysis to which she referred, R. v.Gladstone, (SCC), [1996] 2 SCR 723.

So the context is in the assertion of aboriginal rights and the nature of theindividual assertion of those rights. [29] As to evidence, we have as well as Delgamuukw, supra, R. v. Van der Peet, (SCC), [1996] 2 SCR 507, whichestablishes, at the middle of paragraph 12, the following: Stripped to essentials, an aboriginal claimant must prove a modern practice, tradition or custom that has a reasonable degree of continuitywith the practices, traditions or customs that existed prior to contact.

The practice, custom or tradition must have been “integral to thedistinctive culture” of the aboriginal peoples, in the sense that it distinguished or characterized their traditional culture and lay at the coreof the peoples’ identity. It must be a “defining feature” of the aboriginal society, such that the culture would be “fundamentally altered”without it.

It must be a feature of “central significance” to the peoples’ culture, one that “truly made the society what it was." Thisexcludes practices, traditions and customs that are only marginal or incidental to the aboriginal society’s cultural identity, andemphasizes practices, traditions and customs that are vital to the life, culture and identity of the aboriginal society in question. (emphasisin the original) [30] For the purposes of this analysis I have also reviewed at length the process and the analysis of The Honourable Justice Vickers,as he then was, in Tsilhqot'in Nation v.

British Columbia, supra, in particular at paragraphs 18, 19 and 20. I have found this the mosthelpful to my assessment of the evidence in this case. He said, paragraph 18: If a particular event was witnessed by a person or persons and if one or more of these individuals are alive and able to testify at trial, itwill be possible to call them as witnesses to testify as to what was seen and heard.

If a witness or witnesses cannot be called because ofillness, infirmity, distance or death, then a case may be made that hearsay evidence of the particular event, what another person was toldby a person who witnessed the event, is necessary. Death of all who saw the event will more than likely make the case for necessity. [19] Then, still grappling with the question of admissibility the court must decide if the evidence being tendered is reliable enough to beadmitted.

In that regard the court would want to know: 1) some personal information concerning the witness' circumstances and ability to recount what others have told him or her; 2) who it was that told the witness about the event or story; 3) the relationship of the witness to the person from whom he or she learned of the event or story; 4) the general reputation of the person from whom the witness learned of the event or story;

5) whether that person witnessed the event or was simply told of it; and, 6) any other matters that bear on the question of whether the evidence tendered can be relied upon by the trier of fact to make critical findings of fact. [ 31 ] I am also mindful of the directions of Madam Justice McLachlin in Mitchell at paragraphs 38 and 39 in terms of how trial judges are to look at these facts, particularly, and I am not going to quote them at length, the direction that trial judges are to be sensitive to the difficulties of presenting evidence of oral histories.

In particular, at paragraph 39 she said: While the evidence presented by aboriginal claimants should not be undervalued “simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law torts case” ( Van der Peet , supra , at para. 68 ), neither should it be artificially strained to carry more weight than it can reasonably support.

If this is an obvious proposition, it must nonetheless be stated. [ 32 ] Having regard to the guidance set in those cases, as well as the others cited by counsel before me, we, at my direction, have followed the process set out by Justice Vickers in Tsilhqot'in Nation v. British Columbia at paragraph 29. [ 33 ] With those procedures and those principles in mind, I turn to the objections to the admissibility of the portions of Mr. Joseph's proposed testimony going to the oral traditions of the Kwakiutl and Klawatsis peoples.

The objection raised is not directed at his truthfulness but, rather, an objection that Mr. Wool and Mr. Joseph have not met the test for admissibility on either the necessity factor or as to the reliability of his testimony. The Crown objects on the basis of the character of his knowledge and the method by which he has received the information and educated himself in the respective histories, cultures, traditions, legends, myths and language of the Klawatsis and Kwakiutl. [ 34 ] Counsel presenting the evidence for Mr.

Joseph has argued, without providing a detailed outline of the testimony opposed, that the conversations over years between Mr. Joseph and his grandmother, together with Mr. Joseph's own personal characteristics, meet the threshold test for admissibility. Mr. Wool pointed out that it is a low test, it is one of relevance, of probative value, and he submitted that the necessity test is borne out by the deaths of grandparents and the grandmother. I have no other evidence before me as to whether or not there are others who were present during any public statements in the course of Mr.

Joseph's attendance to potlatch. [ 35 ] It was Mr. Wool's submission that given Mr. Joseph's status as an aboriginal person, an accomplished carver, and his ability to interpret the history of carvings, the meaning of the carvings, the stories surrounding the carvings and how they relate to eagles and eagle parts, as well as the information he has acquired on attendance on his grandmother, his grandfather and at potlatch, combined with the instructions by his family as to the ways of life of the two peoples, that the threshold has been met.

He further made reference to membership in the Native American Church and the subsequent oral histories of the use of eagles and eagle parts, as well as the interplay between wildlife and the training with Mr. Rosso as to use of wildlife parts in masks and other carvings. In that way Mr. Wool submitted that Mr. Joseph has sufficient foundation for the source knowledge such that he has met the test of reliability. [ 36 ] In my view, the evidence does not merit that conclusion. There was little or no detail provided in the testimony. There were no confirmatory factors related by Mr. Joseph.

A broad assertion without collateral details is not helpful to establish a particular fact. It is clear from the law that the onus is on the presenting party to provide the threshold elements of necessity and reliability such that the probative value of the proposed testimony may be assessed by the judge in the judge's role as gatekeeper. [ 37 ] I am mindful of that characterization in Justice Vickers' decision in Tsilhqot'in Nation when he made reference to the analogous aspect of expert testimony at paragraph 27.

He said: It must be borne in mind that anthropologists and archaeologists are called to testify as expert witnesses. A preliminary inquiry into their qualifications is appropriate and is always undertaken by counsel or the court. A Tsilhqot’in or Xeni Gwet’in person is not called in this trial as an expert witness. He or she is called to testify as an ordinary witness. Like any ordinary witness, the hearsay component of their evidence must meet the threshold tests of necessity and reliability on the issue of whether it is to be admitted as evidence at trial. [ 38 ] I have listened carefully to Mr.

Joseph and he knows that I have heard him because he has heard me outline that I accept his testimony, particularly as to the ancestry of his family. Mr. Joseph's way has not been an easy one, but it is clear from his recount that he has not embarked on a learning process outside of carving. He has not accessed the oral history of the bands with the elders over an extensive number of years. He has been actively engaged, to his credit, and maintained his sobriety for the past 33 years, but his energies have been directed at his love of carving.

He has not embarked on a research of written histories, ethnographic studies, nor has he provided evidence of public statements from elders, chiefs, band councillors or designated speakers at potlatch relating the customs, culture and traditions of his people in a general way back to contact. Mr.

Joseph's vague recall of what he was told when he was an infant to three years of age, and his recall during his troubled teens is not detailed or confirmed by collateral information or collateral sources. [ 39 ] I am mindful of that when I look at the test at this preliminary examination articulated at paragraph 27 of Justice Vickers' decision. In my view, the most important factor in my determination in this preliminary examination is the lack of reference by Mr.

Joseph to being educated in the general traditions or a particular tradition and the relation of those factors to individual events or a single story outside of his blood lineage and the tradition of his family as carvers. Mr. Joseph did not testify to any public statements as presented at a potlatch, a feast, ceremony, nor did he did refer to a folktale, myth or legend about the general traditions of either of his ancestry peoples.

Rather, his testimony was directly related to his particular ancestry, his grandparents , his bloodline and the proud tradition of carving throughout his family, which is distinct from and to be distinguished from the general traditions of the Kwakiutl or Klawatsis people. [ 40 ] In the result, it is my view that Mr.

Joseph may testify on the aboriginal rights portion of this trial and his testimony is admissible on his recollection of the oral history as related to him by his paternal grandmother, his grandfather, his step-grandfather and any sources in public ceremonies identified as to time, place and person, as to statements about the general traditions of either tribe. Conclusions or opinions drawn by Mr. Joseph are not admissible in evidence from him.

[ 41 ] My rationale for restricting his evidence to his own history is based on his ability as an accomplished carver and the information he has been provided directly by his grandmother, his grandfather, his step-grandfather and Mr. Rosso as to the history of his family, the history of carvings, the meanings of such carvings, the stories related to those carvings and how they are related to eagles and eagle parts. His proposed testimony as referred to by Mr. Wool in the general, in my view, does not meet the threshold test for admissibility. The outline by Mr.

Wool is too vague and lacks sufficient detail to enable me to properly assess how it would interrelate. Nor does it provide the Crown with the ability to test that evidence. I am mindful in that regard of the comments by Justice Vickers at paragraph 24. The four points set out in paragraph 24 in Tsilhqot'in Nation v. British Columbia require a detailed reference to not only the witness, but also the reasons why the witness would be testifying, what the practices were and what the source is for each of those pieces of evidence. [ 42 ] Accordingly, Mr.

Joseph may testify as to his oral history, as to his knowledge with respect to carvings and to the particular information provided to him by his grandmother, grandfather and his step-grandfather. _________________________________ Judge Jardine Provincial Court of British Columbia