Indigenous Oral History in the Courts
Indigenous oral history conveys information that has been passed down from generation to generation. When oral history is presented as evidence in Canadians courts, it goes against the general rule against hearsay. This creates serious challenges in Aboriginal rights and title litigation where claimants are required to prove certain features of their pre-contact society.
Because oral history constitutes hearsay evidence in court, parties wishing to rely on it must demonstrate that it is both necessary and reliable. The courts have divided oral history evidence into three categories: (i) creation stories; (ii) genealogical stories; and (iii) stories of past practices, events, customs or traditions.[1] Each category brings with it unique issues of necessity and reliability.
It is generally straightforward to establish the necessity of oral history evidence because the original witnesses are no longer alive. In order to demonstrate reliability, however, parties will generally need to present evidence about the methods used by the Indigenous community to transmit their oral history and ensure its preservation. Information about the source of an individual witness’ oral history knowledge and his or her authority to provide oral history within the community may also be relevant.
The “best evidence” rule provides that even if none of the recognized exceptions to the hearsay rule apply, a judge may still admit oral history evidence if it is the best evidence available to an Indigenous party.[2]
The courts have slowly become more open to allowing Indigenous elders to testify in accordance with traditional customs and practices. The Federal Court has issued Practice Guidelines for Aboriginal Law Proceedings, which has the guiding principle of applying court rules flexibly to take into account Indigenous perspectives. The Guidelines provide for alternative modes of testimony and permit elder evidence to be presented through songs, dances, culturally significant objects and activities on the land.
The BC Supreme Court has recently permitted elders to testify in a panel.[3] Although the Court’s rules do not provide for group or panel evidence, there is no rule of evidence or procedure that specifically excludes it either. The Court has acknowledged the need to recognize the unique traditional methods by which Indigenous peoples transmit their oral history.
Despite these developments, parties to Aboriginal rights and title litigation continue to come before the courts to seek guidance on proper procedures for taking and presenting oral history evidence in court. The courts have resisted putting in place formal procedures for determining the admissibility of Indigenous oral history and have held that the decision is to be made on a case-by-case basis by the trial judge.[4] As it stands, this area of law continues to develop on a piecemeal basis.
[1] William et al. v. British Columbia et al., 2004 BCSC 148, para. 21 [William].
[2] Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (S.C.C.) [Delgamuukw].
[3] Ignace v. British Columbia (Attorney General), 2019 BCSC 10 [Ignace].
[4] See Ignace; William; Delgamuukw.