[1]         THE COURT:  The province seeks to enter four cartographic documents for hearsay purposes related to Captain Richards' 1859 survey of the Fraser River through cross-examination of Michael Layland, who was qualified at trial as a topographic surveyor and cartographer.

[2]         The four documents at issue are:

[3]         And collectively these four documents are referred to in this ruling as “the contested documents.”

[4]         The plaintiffs object to the admissibility of the Richards sheets and the 1860 Richards chart on the basis that they do not meet the criteria for threshold reliability set out by this court in Cowichan Tribes v. Canada (Attorney General), 2020 BCSC 1146, referred to as “the Kennedy documents ruling”.  The plaintiffs submit that the documents are not reliable with respect to the existence and locations of Indigenous villages.

[5]         I agree with the submissions of British Columbia that the plaintiffs have conflated threshold reliability and ultimate reliability.  At the stage of assessing threshold reliability I should not be assessing whether the documents prove the existence and location of Indigenous villages.  Instead I should consider whether the documents are sufficiently reliable to be admissible.

[6]         When considering the admissibility of a map for the truth of its contents, the court is particularly concerned with the map-maker's knowledge of the area.  Without competent knowledge of the information depicted in the map, the map merely represents the map-maker's opinion or belief and not his observation.

[7]         If the map-maker has some knowledge of the subject matter at issue and there are other indicia of reliability, then the requirement of threshold reliability is met.

[8]         The knowledge requirement of the map-maker may be fulfilled by residence or connection proximate to the area inferring personal knowledge or a duty from which the court can conclude the map-maker had the means and motive to be true and accurate.

[9]         I have heard the evidence of Dr. Kennedy that Captain Richards was second in command for the water portion of the Northwest Boundary Survey British contingent under Prevost and oversaw publication of Admiralty chart number 1917 in 1865.  He was an experienced surveyor and astronomer.  Dr. Kennedy testified that Richards travelled up the lower Fraser River in 1859 as far as Fort Langley and returned to the Fraser River in 1860, 1861 and 1862.

[10]      Richards' 1866 chart of “North America West Coast, Vancouver Island and Adjacent Shores of British Columbia” was marked in this trial as exhibit 717.  I note in passing that, similar to the contested documents, that chart also did not  indicate a Cowichan Village but referred to the stretch of Lulu Island across from Tilbury Island as Gravesend Reach and only noted the Katzie Indigenous village in that area.  Exhibit 717 was admitted because it met the test for threshold reliability.  I see no reason to apply different standards to these four documents.

[11]      Mr. Layland was questioned about the contested documents.  He explained how the survey work was conducted and recorded on the Richards sheets.  Mr. Layland testified that Richards and his hydrographers were experts in all of these techniques.  In his view, Richards' team would work to be as accurate as possible checking measurements against astronomical observations.  It is likely that Richards had a team of people on the shores of the Fraser River setting posts or beacons.

[12]      Mr. Layland was of the view that as a result of the 13 years that Richards' team devoted to charting the coast and adjacent waters of the islands and the mainland as far as Alaska, it was the most accurate and thoroughly surveyed of the world's coastlines.  He noted that Richards had to serve simultaneously four masters:  the hydrographer, the admiral commanding the Pacific station, the colonial governor, and Captain Prevost, Royal Navy of H.M.S. Satellite, his senior officer on the Internal Boundary Commission.

[13]      Mr. Layland also testified that the gold rush in the Thompson and Fraser Rivers brought about many prospectors through the Fraser River and the Plumper was given the urgent mission of surveying the treacherous Fraser estuary and upstream as far as Fort Langley.

[14]      The evidence I have summarized supports a conclusion that Richards had the skill, access and a duty to accurately record his observations to his four masters, as Mr. Layland put it.

[15]      Admission of the contested documents for hearsay purposes does not mean that they disprove the existence of the Cowichan village on the south arm of the Fraser River.  It shows that a map-maker who had personal knowledge of the area did not note the Cowichan village or several other Indigenous villages.  The reason for the omission is a matter left for argument.

[16]      The plaintiffs submit that there is a great deal of evidence contradicting Richards' omission of the Cowichan village.  This is argument going to the ultimate reliability of contested documents and not to admissibility.

[17]      I conclude Captain Richards had competent knowledge of the area, expertise as an astronomer and was under a duty to report his navigational surveys with accuracy as the second commander for the British Northwest Boundary Commission.  All four documents have met the test for threshold reliability and may be admitted for hearsay purposes.