Doubting What the Elders Have to Say: A Critical Examination of Canadian Judicial Treatment of Aboriginal Oral History Evidence

DOI10.1350/ijep.2010.14.4.361
AuthorDavid Milward
Date01 October 2010
Published date01 October 2010
Subject MatterArticle
IJEP14-4-final.vp CANADIAN JUDICIAL TREATMENT OF ABORIGINAL ORAL HISTORY EVIDENCE
Doubting what the
Elders have to say:
A critical examination
of Canadian judicial
treatment of Aboriginal
oral history evidence
By David Milward*
Assistant Professor of Law, Faculty of Law, University of Manitoba

Abstract The Supreme Court of Canada has articulated several legal principles
that mandate the flexible and generous treatment of Aboriginal oral history
evidence in support of Aboriginal rights claims. Lower courts, however,
continue to devalue such evidence, often displaying explicit disregard for the
legal principles, in order to defeat rights claims and subordinate Aboriginal
interests to state sovereignty. This has no rational basis, since it is now clearly
established that documentary historical evidence does not have any innate
superiority over oral history evidence when it comes to ascertaining what
happened in the past. This article proposes several solutions. These include
educating judges on the potential value and accuracy of oral history evidence,
enhancing oral history evidence through flexible use of the doctrines of
inference and judicial notice, and using court-appointed experts to assure
greater objectivity.
Keywords Aboriginal oral history; Aboriginal rights litigation; Historical
reconstruction; Judicial impartiality; Canadian evidence law
n ongoing and contentious issue in Canada is the struggle of its
Aboriginal peoples to gain legal protection of their rights under the
A Canadian constitution, which includes rights to practices that are
*
Email: milward@cc.umanitoba.ca.
doi:10.1350/ijep.2010.14.4.361
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CANADIAN JUDICIAL TREATMENT OF ABORIGINAL ORAL HISTORY EVIDENCE
integral to their cultures, and treaty rights. A potentially valuable source of
evidence that can be used in support of Aboriginal rights claims is the oral
histories of Aboriginal societies. Canadian rules of evidence have evolved to
recognise that Aboriginal oral histories may provide proof of past events as a
principled hearsay exception, so long as it meets the requirements of necessity
and reliability. Aboriginal oral histories also do not need to be corroborated by
other evidence. Evidence in support of Aboriginal rights claims is also not to be set
to the near impossible task of providing conclusive proof of facts alleged.
Since the enunciation of these principles, however, Canadian courts have consis-
tently demonstrated hostile treatment of oral history evidence with the
consequence of dismissing Aboriginal rights claims. One method is to draw on a
principle that Aboriginal oral history should not be given more weight than it can
reasonably support. Another is to habitually characterise written historical and
documentary evidence as more reliable and persuasive than oral history evidence.
Another is to downplay what is described by oral history evidence so as to sever any
link of relevancy between the evidence and the facts sought to be proved. These
developments may on the surface reflect legitimate judicial concerns about
requiring cogent proof of facts. The article will suggest, however, that these
tendencies reflect a more deep-seated agenda to devalue oral history evidence
with the natural consequence of suppressing Aboriginal rights claims. Canadian
sovereignty is thereby sustained at the expense of Aboriginal interests. The focus
then turns to how to address this.
One set of possibilities is to direct some needed reminders to the Canadian
judiciary. Written methods of conveying the historical past are themselves not
immune to methodological constraints and difficulties, and to conveying
inaccurate or mistaken depictions of the past. It is a legal principle that written
history and documentary evidence be subjected to the same degree of scrutiny as
other kinds of evidence, yet this does not seem to manifest in practice. At the same
time, Aboriginal societies often had strict protocols to preserve the integrity of
their oral histories, and their transmission from generation to generation. Studies
have continued to confirm that Aboriginal oral histories have provided reliable
accounts of the past, sometimes displaying only negligible divergences from
anthropological, archaeological, or historical conclusions. There is perhaps a real
need to make judges aware of the realities behind the various kinds of evidence by
incorporating appropriate seminars or courses into judicial education.
Other possibilities explore potential uses of other rules of evidence. The principle
of inference allows a finding of one fact if it flows logically from another proven
fact. This principle could, where appropriate, be utilised to enhance the probative
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CANADIAN JUDICIAL TREATMENT OF ABORIGINAL ORAL HISTORY EVIDENCE
value of oral history evidence. For example, the fact that oral history contains
references to treaty terms that are not in the text of the treaty or had any reference
in the documentary evidence does not necessarily mean that it amounts to mere
belief on the part of the Aboriginal signatories. A logical and appropriate
influence is that the oral history contains references to those treaty terms because
of representations by Crown officials during negotiations. This becomes material
to issues such as the honour of the Crown being at stake during treaty negotia-
tions, and avoiding the appearance of sharp dealing.
Another possibility is the doctrine of judicial notice, which allows a judge to make
a finding of fact without evidentiary proof provided by the parties. Canadian juris-
prudence recognises that judicial notice can operate to find facts that are
distinctive to specific communities. This can include, for example, notice of local
geography and historical facts. If the Aboriginal oral historians make credible and
reliable representations that certain understandings of the oral histories, and
related facts, were not subject to significant challenge among members of the
local Aboriginal community, this may be an appropriate context for applying
judicial notice.
Another possibility represents an attempt to solve problems associated with
partisan expert testimony during adversarial proceedings. The suggestion is that,
where this is a problem, judges should seriously consider recourse to court-
appointed expert witnesses. An independent expert witness can then work in an
environment that stresses open and cooperative dialogue with the Aboriginal oral
historians in order to present a reasonably ascertainable truth to the court. The
article first begins with briefly explaining what Aboriginal oral history evidence
is, and its relevance to Aboriginal rights claims.
Aboriginal oral histories and Aboriginal rights
Aboriginal oral histories are histories that have not been written down, but have
been passed orally from generation to generation. They are more than a
description of past events, but are also suffused with an Aboriginal society’s
spiritual beliefs, worldviews, and cultural values. The Royal Commission on
Aboriginal peoples states:
Oral accounts of the past include a good deal of subjective experience.
They are not simply a detached recounting of factual events but,
rather, are ‘facts enmeshed in the stories of a lifetime’. They are also
likely to be rooted in particular locations, making reference to
particular families and communities. This contributes to a sense that
there are many histories, each characterized in part by how a people
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see themselves, how they define their identity in relation to their
environment, and how they express their uniqueness as a people.1
While oral histories may be an important part of Aboriginal cultures, they are also
taking on increasing contemporary relevance as evidence used to prove Aboriginal
rights claims before the Canadian legal system.
The basis for constitutional Aboriginal rights is s. 35(1) of the Constitution Act
1982, which reads: ‘The existing aboriginal and treaty rights of the aboriginal
peoples of Canada are hereby recognized and affirmed’.2 Within this provision is
more than one category of rights. Inherent Aboriginal rights are rights based on
practices that were integral to a distinctive Aboriginal culture prior to contact
with Europeans.3 For the Métis, a distinctive group of Aboriginal peoples with
ancestral ties to both First Nations and European settlors, the temporal threshold
is when Canada assumed legal control over their territories, as opposed to first
contact with Europeans.4 Another category is Aboriginal land title, rights to use a
claimed parcel of land when all three of the following questions are answered in
the affirmative: (1) Did the Aboriginal society occupy the land prior to the
assertion of Crown sovereignty? (2) Is there continuity between present
occupation and pre-sovereignty occupation? (3) Was the Aboriginal society in
exclusive occupation of the land at sovereignty?5 Another category is treaty rights,
rights stemming from a solemn agreement between the Crown and an Aboriginal
society.6
Aboriginal rights claims that are asserted but not yet proven in court can also
trigger Crown duties, if the Crown has real or constructive notice that its actions
can potentially have an adverse effect on Aboriginal interests, until the claims are
finally resolved. Claims...

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