Lawyer pulls out the stops to discredit Crown expert

Page 7

Thomas Flanagan, a former policy advisor to the Reform Party and author of First Nations? Second Thoughts, the Donner Prize winning book that is critical of what the author calls "Aboriginal orthodoxy," is seen by many First Nations leaders as an arch political foe. He was subjected to five grueling days of cross-examination in Federal Court in Calgary in his role as an expert witness called by the Crown in a $1.5 billion lawsuit brought by the Samson Cree and Ermineskin Cree nations.

Ed Molstad, the lawyer for the Samson Cree, told this publication that his approach with this witness was "more detailed" than usual.

The two Alberta bands instructed their lawyers to argue that Flanagan was not an expert on matters related to their actions against the Crown as they seek legal rulings on a number of issues, including oil and gas revenues. They also claim that Flanagan has a bias that renders his opinions of little use to the court. His credibility was challenged on dozens of fronts.

He was put forth by the federal Crown as an expert who was qualified to rebut reports submitted as evidence by academics in the employ of the band. The case at the bar is Victor Buffalo v the Crown, a claim for allegedly unpaid oil and gas royalties.

The examination of the witness began in early January but was interrupted when the judge became ill. Court resumed on May 6 with a procedural matter and Flanagan returned to the witness stand on May 8.

Early on, Molstad attempted to impeach the witness's credibility by suggesting he had taken information from other academic's work and had not properly footnoted it. The lawyer used the word plagiarism and drew a sharp denial from Flanagan. When court resumed in May, Molstad attempted to introduce criticisms of the professor's research methods by reading critical reports authored by other academics. Judge Teitelbaum ruled that Molstad should call those academics as witnesses if he wished to use their words to discredit the Flanagan. The ruling forced the lawyer to change tactics focus on Flanagan's book, First Nations? Second Thoughts.

The lawyer appeared to score points by dissecting one passage in the book. In a section dealing with the Samson Cree Nation, Flanagan wrote that "band members especially young people, use their share of (oil and gas) royalties to buy high-powered trucks. Too many drive them too fast, too often under the influence of alcohol and other drugs. It's the worst kind of stereotype-a true one."

Molstad said, "I put it to you, sir, that that statement is a slanderous, racist statement against the Samson Cree people."

Flanagan said he disagreed.

When he was asked what sources he relied on to substantiate the things he wrote as facts in that passage, Flanagan said he needed to check his records. The next day he returned to court and said the sources were a couple of newspaper stories. One of the stories was about an attempt, later abandoned, by an automobile insurance company to stop providing insurance to drivers in the area code that includes the Samson Cree Nation because that area had an unusually high number of motor vehicle accidents.

The professor admitted the passage did not reflect good academic research methodology.

"I would say those sentences also contain a certain amount of inference," he testified. "And having had a chance to reflect upon it, I would say that I probably shouldn't have written those sentences the way that I did."

Molstad continued the offensive.

"They're not true are they?" he asked.

"They contain a mixture of truth and hypothesis, and they should have been better...better written to distinguish what is demonstrably true and what is hypothesis that requires further testing," Flanagan replied.

The judge, as he rarely did during the examination, interjected with a question of his own.

"And when you read the newspaper article, did you check to see if the newspaper article was correct, that what he stated in the newspaper articlewas a fact, that you now quote as a fact, or did you just take it as a given? And is that how you do your work generally, you take as a given what is stated in a newspaper?" the judge asked.

Flanagan said that was not how he usually worked.

Molstad then asked him to point out in his source material where it said that Samson members drive their vehicles under the influence of alcohol and drugs.

Flanagan admitted it wasn't there.

"I wish I had rewritten those sentences to make clear the difference between reported facts and inferences," he said.

Later, Molstad pointed out an error in source material that Flanagan had quoted in another book. Flanagan had not detected the error and it had made its way into his work.

Once again, the judge questioned the witness.

"Do you not proofread what you write?" he asked.

Flanagan said he did, but this error "slipped through."

Clarke Hunter, the lawyer representing the federal Crown, agreed that Flanagan had been given a rougher ride than most expert witnesses.

"I would say it was lot more extensive than you would usually see. He stood up pretty well I thought," he said.

Samson members were upset that the Crown would call an Alliance party member as an expert witness in a case involving First Nations matters.

"A couple of points," Hunter said when asked about that issue. "We're not calling him as an expert to speak about policy issues; we're calling him to speak as an expert about history."

Molstad spent six hours of court time in January narrowing down the areas where Flanagan can claim to have expertise in Native issues, getting him to admit that he has never done research on reserve and has never spent any time working directly with Native people. Flanagan, who holds a PhD in political science from Duke University in North Carolina, also admitted he has never taken a single course in Canadian history or Canadian Aboriginal history.

"The second point is that at the time he was retained and prepared his report, he hd no involvement with the Canadian Alliance at that point," continued Hunter. "He had had some involvement with the Reform Party but he had quit and it's only in light of Stephen Harper's involvement that he has re-involved himself in politics.

"When we originally retained him we would have expected his evidence would have been heard a long time ago. He wrote his report in 1997 and early 1998 and then, for a variety of reasons, it's taken this long to get where we are."

Asked if it was fair to say that the Crown knew that Flanagan's interpretation of events would be affected by his Alliance point of view and thus the Crown-the federal government-was espousing a point of view it claimed not to embrace in order to win the lawsuit, Hunter said no.

"I guess the question is . . . you know, everyone starts from somewhere but what you hope and what we believe Dr. Flanagan is capable of doing and has done, is to look at things objectively," he said. "When you're on under oath and on the stand testifying as an expert witness on matters of history, you have to express your opinion and call it the way you see it based on the objective evidence. We believe that's what he's doing. Of course, everyone comes from a certain place. Dr. Flanagan would acknowledge that. So do all of the experts called by the plaintiff. All of the experts called by the plaintiff have testified, if they've testified at all, only for Aboriginal interests."

Samson members also say that Flanagan's evidence in the recent Benoit Treaty 8 tax exemption case was given no weight by the judge. They see it as a very cynical move for the Crown to call him as a witness again.

"Again, we retained Dr. Flanagan in 1998," Hunter said in reply to that argument. "The Benoit decision is very recent; it's under appeal. We don't know what view will ultimately be taken of Dr. Flanagan's evidence. We don't think it's quite fair to say that Dr. Flanagan's views were given no weight. On matters of history, the judge quotd him for certain things. But the judge's interpretation was that there was an element of legal argument in Dr. Flanagan's report and [the judge] disagreed with that aspect of it. But if you read the judgement, you'll see that on some matters of pure history- what happened-the judge cites and relies upon Dr. Flanagan's report."

Mr. Justice Max Teitelbaum was expected to rule just after Windspeaker's publication deadline that he would hear Flanagan's evidence while holding in reserve his decision regarding the objections of Samson and Ermineskin lawyers.