Indigenous storytelling and admissibility in common law courts: Developing the protocols for the reception theory of evidence
| Author | Zia Akhtar |
| DOI | http://doi.org/10.1177/13657127231155922 |
| Published date | 01 April 2023 |
| Date | 01 April 2023 |
| Subject Matter | Articles |
Indigenous storytelling and
admissibility in common law courts:
Developing the protocols for the
reception theory of evidence
Zia Akhtar
LLB (Lon), LLM (Lon), Gray’s Inn, Coventry University, UK
Abstract
The claims for the restitution of legal estate by the Indigenous peoples are often without the
benefit of a written agreement when they have to prove a spatial and temporal connection
with ancestral lands. The witness testimony from a storyteller who is keeper of the historical
records is in the absence of documentary evidence and the court has to be convinced of the
probative value of the evidence before the oral testimony is admissible as an exception to the
rule against hearsay. This presents immense obstacles to Indigenous litigants, who are governed
by customary laws and whose narratives regarding the claims on land are conveyed intergener-
ationally. The court structures based on common law exclude such evidence as hearsay, which
has prevented claims on land in North America, and in Norway, which has a Eurocentric court
structure. There is a need for a framework in the procedural codes of the common law courts
and by extension of all courts where Indigenous people own lands or exercise rights over them
to formalise the reception theory of evidence. This will contextualise the terminologies,
expressions and idioms that are included in Indigenous story testimony and their authenticity
can be framed in protocols which courts could resource before ruling whether the narrative
testimony is admissible.
Keywords
Hearsay rule, admissibility, Federal Rules of Evidence, best evidence rule, Indian Claims
Commission, Canadian Constitution Act 1982 ss 25 and 35, Sami-digital storytelling,
episteme, protocols
Corresponding author:
Zia Akhtar, LLB (Lon), LLM (Lon), Gray’s Inn, Coventry University, UK.
Email: pagraduate@gmail.com
Article
The International Journal of
Evidence & Proof
2023, Vol. 27(2) 143–166
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/ 13657127231155922
journals.sagepub.com/home/epj
Introduction
The Indigenous societies are part of the framework of colonised peoples who were once a majority in
their homelands. Their real estate was appropriated by the European settlers who laid claim to title on
the basis that the lands were terra nullius.
1
The local cultures practised a sedentary or nomadic lifestyle
which meant that they did not have a literal record or lingua franca to write their historical records. The
conveyance of land was conducted by oral transactions and the lack of literacy enabled the Europeans to
acquire lands through treaties or by purchasing the estates on their terms. In order to recover the real estate
the Indigenous peoples have to issue claims in the courts and this presents procedural hurdles because
their testimony meets the objection of hearsay evidence. The approach of the Eurocentric courts needs
to be revised based on the reception theory of evidence, which takes into consideration the epistemology
of the Indigenous peoples and compares storytelling to virtual reality. This can be achieved if protocols
are developed that can serve to convey to the judges the rules for the admissibility of evidence.
The Western court structures which adjudge Indigenous claims on land are often discriminatory in
practices, which leads to the oral testimony based on the truth of the facts asserted being excluded as
hearsay. This is because common law courts rely heavily on expert evidence in order to establish facts
and this requirement is a condition in a claim that is based on oral testimony and concerns a dispute
on land.
2
There are obstacles in the admissibility because of the Best Evidence Rule that has to be
met at the pre-trial hearings, directional and the disclosures stages.
3
In common law countries the
court systems rely on documentary evidence as the only means of establishing a case where there is sub-
stantive proof in the title deeds by the formality of the transaction and the protocols observed in the case.
In the Indigenous storytelling tradition, ‘After oral knowledge is given as evidence, it becomes written
text, available to be read by Native peoples and non-Native peoples alike’, which becomes documentary
record of the case (Buchanan and Darian-Smith, 2011). There is less emphasis on understanding the trad-
itional knowledge and the Indigenous communities’reliance on customs, modes of expression and con-
servation which have been narrated by their keepers of tradition, which is a repository of their mainstre am
histories for centuries.
The tribal communities that belong to the American Indian nations have rights that are composed of
many Native American nations’customary law. They are diametrically opposed to the concept of indi-
vidual rights as codified in American law and ‘To grant sub-groups a special status or alternative basis for
defining themselves calls into question the “substantiality of the ethical order”that defines “rights”in
terms of individuals’(Torres and Milun, 1990: 657).
The oral histories inform how Native American nations maintain cultural ties to their lands, which is
crucial for their physical, cultural and spiritual well-being (Inter-American Commission on Human
Rights, 2010). The communities who have traditionally used and inhabited lands consider the lands to
be part of their cultural identity.
4
The consequent loss of title of Indigenous peoples through the treaties
and transactions conducted with them by the colonial authorities and successor governments has been
extenuated by the licences issued to mining companies; building of dams and reservoirs; and the
1. The concept that land had no title when colonised was based on the Papal Bulls of the 15th Century. The Romanus Pontifex, 1452
proclaimed by Pope Alexander gave permission to King Alfonso of Portugal ‘to capture, vanquish and subdue all Saracens,
Pagans, and other enemies of Christ, to take all their possessions and property, and to put them into perpetual slavery’
(Gardiner, 1917: 20–22).
2. In Folkes vChadd (1782) 3 Doug KB 15 the first rules of the admissibility of opinion evidence were set out by Lord Mansfield.
3. The ruling in Folkes v. Chadd was accepted in the leading case in the US. In Lincoln vThe Saratoga and Schenectady Railroad
Company, 23 Wend, 425 (1840) the Chief Justice of the New York Supreme Court stated that Folkes vChadd was the precedent
on the law of expert witnesses, and this case has been quoted in many US courts, including most recently in the Supreme Court in
the case of Federal Power Commission vFlorida Power & Light Co in 1972, 404, US 453 (1972).
4. Sawhoyamaxa Indigenous Community vParaguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No.
146 (Mar. 29, 2006)
144 The International Journal of Evidence & Proof 27(2)
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