IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Lax Kw’alaams Indian Band v. Canada (Attorney General), |
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2008 BCSC 447 |
Date: 20080416
Docket: L023106
Registry: Vancouver
Between:
The
Lax Kw’alaams Indian Band, represented by
Chief Councillor Garry Reece on his own behalf and
on behalf of the members of the Lax Kw’alaams Indian Band,
and others
Plaintiffs
And
The Attorney General of Canada and
Her
Majesty the Queen in Right of the
Province of British Columbia
Defendants
Before: The Honourable Madam Justice Satanove
Reasons for Judgment
| Counsel for the plaintiffs: |
John R. Rich |
| Counsel
for the defendant, |
James M. Mackenzie |
| Counsel
for the defendant, |
Keith J. Phillips |
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Date and Place of Trial: |
November 20 – 24; 27 – 30, |
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Vancouver, B.C. |
TABLE OF CONTENTS
| Heading |
Page |
| I. INTRODUCTION A. Outline of Claim B. General Legal Principles |
5 5 7 |
| II. TYPES OF EVIDENCE A. Primary, Secondary and Tertiary Sources B. Archaeology C. Historical Documents D. Ethnography E. Oral Histories 1. Boas 2. Tate 3. Barbeau 4. Beynon 5. Garfield F. Lay Witnesses G. Expert Witnesses 1. Dr. George F. MacDonald 2. Dr. Margaret Anderson 3. Dr. Steven Langdon 4. Dr. Joan Lovisek 5. Conclusion on Expert Witnesses |
15 16 17 18 19 21 28 29 30 30 31 32 32 32 33 39 40 41 |
| III. NATURE OF THE CLAIM A. The Amended Statement of Claim B. Right to Harvest and Sell all Species C. Right to Sustain the Community D. Food, Social and Ceremonial purposes |
42 43 46 47 49 |
| IV. DATE OF CONTACT |
51 |
| V. THE COAST TSIMSHIAN PRE-CONTACT SOCIETY A. Organized Society 1. Houses and House Groups 2. Clans 3. Tribes a) Seasonal Round B. Descendants C. Rank D. Wealth 1. Types of Wealth Goods 2. Means of Obtaining Wealth |
54 56 56 57 58 64 68 69 71 71 73 |
| VI. CLAIMED TERRITORIES 1. Skeena River Mainstream 2. Zymoetz River 3. Zimacord River and Valley 4. Dundas Island Group 5. Nass River and Fishery Bay VII. HARVESTING OF FISH RESOURCES AND PRODUCTS A. The Seasonal Round B. Harvesting C. Types of Fish 1. Salmon 2. Eulachon 3. Halibut 4. Herring 5. Other Resources 6. Processing and Preserving D. Fishing Rights/Laws E. Conservation |
77 79 82 82 83 84 85 87 89 90 91 92 93 94 94 94 96 98 |
| VIII. TRADE IN GENERAL A. Economic Anthropology 1. Market Economy 2. Kinship Economy a) Gift Exchange b) Trade Relationships B. Surplus Production C. Standard Units of Exchange D. Specialization E. Wealth Goods 1. Slaves 2. Coppers 3. Dentalium 4. Other Trade Goods F. Trade Routes G. Post-Contact Trade |
100 102 103 105 108 110 112 114 116 118 118 120 121 121 122 123 |
| IX. TRADE IN FISH A. Dr. MacDonald B. Dr. Anderson 1. Texts 2. Oral Histories C. Dr. Langdon D. Dr. Lovisek 1. Archaeology 2. History 3. Ethnography |
133 134 138 141 143 149 156 157 158 159 |
| X. CONCLUSION OF ABORIGINAL RIGHTS |
165 |
| XI. FIDUCIARY DUTY AND HONOUR OF THE CROWN A. Facts B. The Law C. Honour of the Crown |
169 171 174 176 |
I. INTRODUCTION
A. OUTLINE OF CLAIM
[1] The plaintiff Lax Kw’alaams is an Indian Band whose name means “place of small wild roses”. It is comprised of approximately three thousand members. Most members reside on the Lax Kw’alaams Indian Reserve located approximately 30 km North of Prince Rupert.
[2] They are known colloquially as a “fishing people” and claim to have descended from nine Tsimshian tribes (the “Coast Tsimshian”) who long before contact with any European soul, occupied territories and fishing sites in or near the coastal area of Northwest British Columbia, along and between the Lower Skeena and Nass Rivers, and on the inlets and islands between their estuaries, and extending to the North end of Grenville Channel (the “Claimed Territories”).
[3] They also claim to have utilized the fruits of the seas and rivers in their Claimed Territories for food, social, ceremonial and commercial purposes long before the white man came, and would have continued to do so to the present day but for the unjustifiable interference of the Government of Canada as represented by the defendant.
[4] The plaintiffs claim that their right to fish on a commercial scale is an integral part of their distinctive culture, and ask this court to declare it as such. They say that the Fisheries Act, R.S.C. 1985, c. F-14 and the Fisheries Act, R.S.B.C. 1996, c. 149 and ancillary legislation infringes on this aboriginal right and breaches the protection granted to aboriginal rights under s. 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982 c. 11, reprinted R.S.C. 1985, App. II, No. 44. They also say that the defendant has breached its unique duty to the plaintiffs based on fiduciary principles and the honour of the Crown.
[5] The defendant Canada vehemently denies that the Lax Kw’alaams have any aboriginal right to fish commercially. It maintains that before the arrival of the Europeans, any trading in fish other than eulachon by the Coast Tsimshian was low volume, personal, opportunistic, irregular, for food, social and ceremonial purposes and incidental to kinship relations, potlatches and ranked Coast Tsimshian society. In the alternative, it denies any infringements of the plaintiffs’ aboriginal rights, or says that such infringements are justified for valid and compelling legislative objectives and consistent with the fiduciary duty of the defendant.
[6] Thus, an aboriginal rights suit is born.
[7] Counsel on both sides have meticulously and conscientiously advanced their clients’ positions throughout this year long trial. It must be recognized that aboriginal cases are unusual in that they find their genesis in a time before written historical records, continue through hundreds of years of recorded history, and rely on the views of scholars, authors and critics to collate and interpret (and sometimes speculate!) on what took place in a time that pre-existed the memory of any living being today. It must also be recognized that no matter how unusual the subject matter, or how politically sensitive some of these issues are, aboriginal cases are law suits and must be treated as such. That means the party who has the burden of proof on an issue must establish on the evidence that what they assert is more probable than not. As with any court proceeding, a decision in a civil suit cannot be decided on sympathy or emotional feelings of any sort.
[8] At the end of the day, the parties have chosen to bring their claim to a court of law, not to a political forum, and they are entitled to receive an impartial adjudication that resolves their dispute by the application of the laws of Canada to the facts as I find them from the evidence before me.
[9] Having said that, I am cognizant of the admonition of Madam Justice McLachlin in Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911 that the rules of evidence must be applied flexibly in these cases, in a manner commensurate with the inherent difficulties posed by such claims, and the promise of reconciliation embodied in Section 35(1) of the Constitution Act, 1982.
B. GENERAL LEGAL PRINCIPLES
[10] Fortunately for trial judges, the Supreme Court of Canada has set down helpful guidelines to provide a framework within which to decide the complex and sometimes esoteric issues that arise in aboriginal cases. These guidelines have evolved over the last decades and no doubt will continue to be refined as different aboriginal cases make their way through the legal system. At present, the significant guiding principles can be summarized as follows:
1. In 1982, Section 35(1) of the Constitution Act was passed to recognize and affirm the existing aboriginal and treaty rights of the aboriginal peoples of Canada.
2. The doctrine of aboriginal rights exists, and is recognized and affirmed, because when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land and participating in distinctive cultures as they had done for centuries. Therefore, a declaration of substantive rights must be directed towards the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown (R. v. Van der Peet, [1996] 2 S.C.R. 507, 23 B.C.L.R. (3d) 1).
3. “Existing”, as the term is used in Section 35(1) of the Constitution Act, means rights that were in existence when the Act came into effect. It also means unextinguished. It suggests that those rights are affirmed in a contemporary form rather than in their primeval simplicity and vigour (R. v. Sparrow, [1990] 1 S.C.R. 1075, 46 B.C.L.R. (2d) 1). The evolution of practices, customs and traditions into modern forms will not prevent their protection as aboriginal rights, provided that continuity with pre-contact practices, customs and traditions is demonstrated (R. v. Van der Peet). Although the nature of the practice must be considered in the context of a pre-contact distinctive culture, the nature of the right must be determined in light of present day circumstances (R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686).
4. The time relevant for identification of aboriginal rights is the period prior to the arrival of the Europeans (R. v. Sparrow; R. v. Van der Peet; R. v. Gladstone, [1996] 2 S.C.R. 723, 23 B.C.L.R. (3d) 155; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, 66 B.C.L.R. (3d) 285). If the pre-contact activity was an integral part of the aboriginal community’s culture prior to contact with the Europeans, the fact that it continued after the arrival of the Europeans and adapted in response to their arrival is not relevant. On the other hand, where the practice, custom or tradition arose solely as a response of European influences then it will not meet the standard for recognition of an aboriginal right (R. v. Van der Peet).
5. There are three basic steps to assessing a claim to an aboriginal right:
1. Identify the nature of the right being claimed. In this step, the court should consider:
(a) the nature of the action which the claimant says was done pursuant to an aboriginal right;
(b) the nature of the governmental regulation, statute or action being impugned; and
(c) the practice, custom or tradition being relied upon to establish the right.
The right claimed must be characterized in context and not distorted to fit the desired result. It must be neither artificially broadened nor narrowed. An overly narrow characterization risks the dismissal of valid claims and an overly broad characterization risks distorting the right by neglecting the specific culture and history of the claimants society (R. v. Pamajewon, [1996] 2 S.C.R. 821, 27 O.R. (3d) 95).
2. Establish the aboriginal right protected under Section 35(1) by proving:
(a) the existence of the ancestral practice, custom or tradition (i.e. the activity advanced as supporting the claimed right);
(b) that the activity was integral to the pre-contact society (i.e. that it was marked as distinctive); and
(c) reasonable continuity between the pre-contact practice and the contemporary claim.
(Mitchell v. M.N.R.; R. v. Van der Peet)
3. Establish the effect of the legislation on the proven, existing aboriginal right:
(a) if the legislation imposes unreasonable limits, or undue hardship, or denies the holders of the right their preferred means of exercising that right, then the legislation represents a prima facie infringement under Section 35(1). The onus of proving prima facie infringement is on the holder of the right.
(b) if a prima facie interference is found, the onus shifts to the government to establish that the legislation is justified. Factors to consider on justification include:
i) the legislative objective. Is it compelling and substantial, not just reasonable? (R. v. Sparrow, R. v. Côté, [1996] 3 S.C.R. 139, 138 D.L.R. (4th) 385).
ii) the extent of the infringement. Does the infringement unduly restrict the aboriginal right, or has there been as little infringement as possible to effect the desired result? (R. v. Sparrow, R. v. Côté).
iii) the honour of the Crown. Is the special trust relationship and responsibility of the government vis a vis the aboriginals preserved? (R. v. Sparrow, R. v. Côté).
iv) consultation. Has there been a reasonable effort to inform and consult with respect to the implementation of legislative measures? (R. v. Nikal, [1996] 1 SCR 1013, 19 B.C.L.R. (3d) 201).
v) expropriation. Is there compensation available? (R. v. Sparrow).
6. In order to be an aboriginal right protected by Section 35(1) of the Constitution Act, an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.
7. “Integral to the distinctive culture” means:
(a) a central and significant part of a society’s distinctive culture, one of the things that made this society truly what it was (R. v. Van der Peet);
(b) “distinctive” does not mean “distinct”. The use of the word distinctive as a qualifier is meant to incorporate an element of aboriginal specificity (R. v. Sappier);
(c) “culture” means the pre-contact way of life of a particular aboriginal community including their means of survival, socialization methods, legal systems and potentially their trading habits (R. v. Sappier).
In other words, the court must identify a practice that helps to define the distinctive way of life of this particular aboriginal group as an aboriginal community.
8. Aboriginal rights are not generally universal. Their scope and content must be defined on a case by case basis. The words “distinctive culture” refer to the aboriginal specificities sought to be captured. A court must focus on:
(a) the specific practices, customs and trades of the particular aboriginal group claiming the right (R. v. Van der Peet); and
(b) the specific sites of these activities and recognize that a right to perform a site specific activity does not become an abstract right exercisable anywhere; it continues to be a right to exercise an activity on the tract of land in question (R. v. Adams, [1996] 3 S.C.R. 101, 138 D.L.R. (4th) 657; R. v. Côté; Mitchell v. M.N.R. and R. v. Powley 2003 SCC 43, [2003] 2 S.C.R. 207).
9. In determining whether a claimant has produced evidence sufficient to demonstrate that the activity is integral to a distinctive aboriginal culture, a court should:
(a) approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times when there were no written records of the activities engaged in (R. v. Van der Peet);
(b) note that evidence of an activity that was part of a distinctive culture at contact will generally be sufficient to demonstrate that prior to contact the activity was also significant to that particular culture (R. v. Côté);
(c) admit evidence of post-contact activities to prove continuity with pre-contact practices, customs and traditions (Mitchell v. M.N.R.);
(d) accommodate, where appropriate, the admission of oral histories, but not imbue them with more weight than they can reasonably support (Delgamuukw v. British Columbia);
(e) be prepared to draw necessary inferences about the existence and integrality of a practice when direct evidence is not available; and
(f) be flexible when engaging in the R. v. Van der Peet analysis because the object is to provide cultural security and continuity for the particular aboriginal society. Flexibility is also important with regard to the relevant time frame being the period prior to contact with Europeans.
10. The court must take into account the perspective of the aboriginal claimants; however, that perspective must be framed in terms cognizable to the Canadian legal and constitutional structure (R. v. Van der Peet).
11. The Crown has a fiduciary duty to aboriginals with the result that in dealings between the Government and aboriginals the honour of the Crown is at stake. Section 35(1) must be given a generous and liberal interpretation (R. v. Van der Peet).
[11] The above guidelines are relatively general and apply to most aboriginal cases. As I deal with the specific aspects and issues of the case before me, I will have resource to further, more detailed principles of law. In the meantime before characterizing the plaintiffs’ aboriginal right, or analyzing the evidence to determine if they have established that right, and whether it has been prima facie unjustifiably infringed by the defendant, I wish to review in more detail the kind of evidence with which I was provided and analyze its strengths and weaknesses.
II. TYPES OF EVIDENCE
[12] The types of evidence adduced in this case runs the ambit from expert to lay witnesses, historical to modern documents, and primary to secondary to tertiary sources. The disciplines of archaeology, anthropology, ethnography, sociology, economics and biology all make their appearance, some more extensively than others.
[13] I have chosen to describe in the present tense all written works by expert witnesses, or the written sources on which they rely, because it is my view that these scholarly works, like case law and legislation, may have been written in the past but still speak to us currently. In order to differentiate between an expert witness’ testimony and his or her report, I have chosen to describe the testimony in the past tense as something that took place during the trial and is now completed.
A. PRIMARY, SECONDARY AND TERTIARY SOURCES
[14] There is no doubt that the best evidence of historical facts is the most immediate evidence. Artefacts that existed, or the observations of a person who was present, at the relevant time and place provide direct evidence of what happened. Depending on how much time has passed since the historical event, such evidence can be oral, written or demonstrative and is considered primary evidence. Secondary evidence usually consists of oral or written hearsay, composed by a person who collects or comments on the original information provided by the primary source. Tertiary sources consist of works where the author uses primary sources to provide factual data about the past that may be incomplete or selective, together with secondary sources to provide interpretations of the factual data, such as the theses and other scholarly works with which I was provided.
[15] Examples of primary evidence in the context of this case are artefacts and impressions from archaeological sites, ships’ logs, journals and charts of fur traders, and later accounts of missionaries. There is no actual primary oral evidence available to me because no eye witnesses to the events of the 18th and 19th centuries are still alive; however, the oral traditions of the Coast Tsimshian people that have been collected by various ethnographers from informants who lived in the 19th and early 20th centuries are a valuable source of information. The secondary literature that contains collections and discussions of these oral traditions also provide valuable insight, as do some of the theses and scholarly works that would be considered tertiary sources.
[16] Each of these forms of evidence has its strengths and weaknesses, as do the academic disciplines seeking to interpret them. For the purposes of this lawsuit, I have taken into account these strengths and weaknesses in determining the weight to be given to the sources, and consequently the weight of the expert opinions that have relied upon them.
B. ARCHAEOLOGY
[17] In some ways archaeology may seem to be the most concrete form of evidence available to speak of prehistoric times. Extracting tangible objects from archaeological survey sites can produce information about many aspects of the society that occupied the lands from which the objects are uncovered. For example, the plaintiffs submit that the discovery of exotic materials in their Claimed Territories leads to an inference of trade. Archaeology alone, however, will not tell us how or when exotic material arrived at a site, only that it was transported from one place to another. To interpret their findings, archaeologists must rely on the ethnographic record and other data.
[18] Furthermore, archaeology is limited by the durability of the object in question. Organic, faunal material is not usually preserved in a manner that allows it to survive through long passages of time, although shell casings and fish bone remnants have been recovered from areas of interest in this case.
[19] Therefore, archaeological evidence is useful, but too limited to support conclusions on its own.
C. HISTORICAL DOCUMENTS
[20] By definition, no historical documents exist prior to European contact with the oral culture of aboriginal societies. The maritime fur traders’ records and those of the Hudson Bay Company (“HBC”) are probably the most contemporaneous with European contact; these records contain observations of activity between indigenous peoples at the time of contact. Evidence of such activity may reasonably support an inference that similar activity took place pre-contact.
[21] The plaintiffs criticize the maritime and HBC trade journals because they argue that the writers did not pay sufficient attention to the indigenous economy. The plaintiffs’ expert anthropologist, Dr. Margaret Anderson, testified that the trading vessels were only in the territory of the plaintiffs in the summer and the traders only recorded their own transactions with the aboriginals. This is Dr. Anderson’s explanation for why there is no mention in the journals of aboriginal groups trading amongst themselves for the years 1787 to 1831. Of course, another possible explanation is that no such trading took place within the observation of the fur traders.
[22] The defendant’s expert anthropologist, Dr. Joan Lovisek, agreed that the maritime reports did not distinguish between aboriginal groups, but she maintained that they focused on the material aspects of the aboriginal culture which included fishing and trading. She was of the opinion that if inter-aboriginal trading had been taking place, the maritime fur trade reports would have noted it.
[23] I accept that the maritime and HBC records are limited by the geographical areas within which the traders explored, and by the extent of the aboriginal activities to which they were privy; however, I find the reports clearly set out where the reporter is directly observing something and where he is only speculating. Those observations carry weight and should be accepted as direct evidence of what was being recorded.
[24] The plaintiffs submit that the lack of observation of certain activities cannot be taken as conclusive proof that they did not occur, only that they were not observed. I agree, but I must also consider Dr. Lovisek’s comment that the maritime fur traders, and especially the HBC traders, were in the area for a commercial purpose. They recorded in detail each business transaction they had with the “natives” and their focus was on the goods and materials for which the aboriginals were eager to trade furs. As will be seen, the fur traders in an effort to cut out the middle men, began to trade indigenous as well as European goods to the aboriginals. I cannot accept that they would not be impressed by the existence of indigenous trade and record it, although they may not have been afforded much opportunity to observe it.
D. ETHNOGRAPHY
[25] Ethnography is an attempt to describe a culture on the basis of data collected from the memories of informants about an earlier time. Most ethnographers, and particularly the ones discussed below, use “salvage ethnography”, which relies on “memory culture”, that is, the memories of elders to provide information, post-contact, about the past. The information derives from memory, and thus the actual activity or event is rarely observed by either the informant or the ethnographer.
[26] Ethnographers speak to an “ethnographic present” as representing an aboriginal time in the past. Unfortunately, such data contains little time depth, and can be misleading.
[27] Archaeologists David Archer, Paul Prince and Bruce Trigger, all caution generally against using the “ethnographic present” to reconstruct past cultures.
[28] The reason for the concern is that most ethnographic data was collected in the twentieth century without sufficient distinction or allowance made for European influences on the cultures. Ethnographers did not consult historical documents to measure time depth, nor did they compare their data against archaeological evidence that would have highlighted discrepancies.
Ethnographers working on the Northwest Coast have not generally sufficiently appreciated the fact that, for the most part, their informants were not recounting facts about an unchanging “traditional” past. Rather they were mixing information about more than one time period from an era of very rapid cultural change. Insufficient historical controls make such ethnographic data a shaky base for generalization. (Leland Donald, “The Slave Trade on the North West Coast of North America” (1984) 6 Research in Economic Anthropology 121 at 126).
As will be seen, this temporal conflation is largely responsible for some divergent opinions amongst the experts, both in this case and within the scholarly community.
E. ORAL HISTORIES
[29] Much of the ethnographic data for the study of the Coast Tsimshian culture is in the form of Tsimshian oral histories or transcriptions of interviews with Tsimshian elders recorded by a select group of ethnographers. Although these oral histories are referred to by the plaintiffs’ experts as “adaawx”, true adaawx are more than just oral histories.
[30] Dr. Anderson explains in her report that an adaawx is an epic recounting of a family’s quest for its own territories, acquisition of land, and defence of it. These histories are safeguarded by each of the matrilineal House Groups (see section V. A. 1. Houses and House Groups) and are recounted in abbreviated form at feasts. A much longer and more complex version is taught to members of the House Group who are in line for important roles. The longer versions include details of territories and resources and the knowledge that is needed to care for them, and information on relationships between House Groups, privileges, crests and names belonging to the family.
[31] The important feature of a true adaawx is that the public recounting of it is a statement of rights that is affirmed by witnesses. Dr. Anderson states:
When told at a feast, the guests acknowledge the right of the hosts to their adaawx and their claims made at the feast, rather than the literary merit or literal factuality of all events recounted in an adaawx.
[32] The plaintiffs’ expert archaeologist, Dr. George MacDonald, testified that adaawx actually means “true witnessed histories” in Tsimshian, with the emphasis on the word “witnessed”. He said they were transferred from one generation to the other in a ceremonial, ritual occasion where the attending witnesses were essentially paid for their duty through the distribution of potlatch goods. He likened it to our form of court.
[33] Dr. Anderson testified that it is acceptable to vary the style of an adaawx, and embellish it with mythical material. There are a large number of versions of the same histories with minor differences; however, she insisted that the story of how the House Group acquired its rights and territories and passed them down the generations remains firm at the core. She stated that a naive reading of English translations of a few adaawx may be virtually useless, whereas patient analysis of the entire body of adaawx allows a reader to recognize intrusive mythic episodes.
[34] Dr. Anderson also pointed out that is important to realize that the adaawx are not focused on economic activities or trade, but such information is frequently included in narratives incidental to accounts of the acquisition of a privilege, or territory, or a migration to a new area.
[35] The difficulty is that true adaawx are not widely known in communities now and there are few occasions on which they are publicly recounted. Dr. Anderson advised that very few Tsimshian are able to recount their adaawx. This sad loss has been exacerbated by the loss of language, the influence of missionaries, teachers and government regulations and the suppression of the feast system. None of the members of the plaintiffs’ Band who testified before me was able to recount any true adaawx.
[36] Other forms of oral history are the malsk (folktales that drift from tribe to tribe), hero myths (myths of origin of a clan, crest or chief), stories of war, battles or migrations and remembrances of individuals (life histories as opposed to oral traditions). These other forms of oral history do not have the same safeguards of accuracy because they are not recounted in a formal ceremony with witnesses who contradict or confirm the accuracy of the recitation.
[37] It is also important to note that the directions of the Supreme Court of Canada to trial judges on how to treat oral histories in the context of aboriginal cases usually pertain to true adaawx, or at least to testimonies of declarations made by a now deceased member of a Band as to land use and traditions.
[38] In Delgamuukw v. British Columbia, the court finds that the importance of the adaawx was underlined by the fact that they were repeated at important feasts where dissenters had the opportunity to object if they questioned any detail and in this way helped to ensure authenticity.
[39] In Mitchell v. M.N.R. the court says that oral histories (both adaawx and declarations of deceased persons) are admissible as evidence if they are both useful and reliable. Such oral histories may meet the test of usefulness by firstly, offering evidence of ancestral activities and their significance that would not be otherwise available, and secondly, by providing the aboriginal perspective on the right claimed. Oral histories reflect the distinctive perspectives and cultures of the communities from which they originate and should not be discounted simply because they do not conform to the expectations of the non-aboriginal perspectives. They should not be rejected simply because they do not convey historical truth, or contain elements that may be classified as mythology, or lack precise detail, or embody material tangential to the judicial process, or are confined to the community whose history is being recounted.
[40] Once such oral history evidence has adhered to the admissibility threshold, however, it is imperative that the laws of evidence operate to ensure that the aboriginal perspective is given due weight by the courts, but not interpreted or weighed in a manner that fundamentally contravenes the principles of the laws of evidence. Evidence adduced in support of an aboriginal claim can run the ambit of cogency from the highly compelling to the highly dubious. Claims must still be established on the basis of persuasive evidence demonstrating their validity on the balance of probabilities. Placing due weight on the aboriginal perspective, or ensuring that its supporting evidence is on equal footing with more familiar forms of evidence, emphasizes the words “equal” and “due”. While the evidence presented by aboriginal claimants should not be undervalued simply because that evidence does not conform precisely to the evidentiary standards that would be applied in a private law case, neither should it be tasked to carry more weight than it can reasonably support (R. v. Van der Peet; Mitchell v. M.N.R.; R. v. Sappier).
[41] Therefore, the rules of evidence must be adapted to accommodate oral histories, but the admissibility and weight of such evidence must be determined on a case-by-case basis. I agree with the list of factors that the defendant submits may affect the admissibility and weight to be given to oral history evidence:
a) the date and context in which the data was collected including the instructions under which the fieldworker was operating;
b) the identity of the informants, their age, tribal affiliation and connection to the Aboriginal culture;
c) whether a narrative is an adaawx, and, if so, whether or not it was recorded within the context of a feast;
d) whether the information that is to be relied upon is part of the “core” of the narrative;
e) the source and nature of the data upon which any conclusions are based from ethnographic summaries prepared by ethnographers; and
f) a comparison of alternative versions of oral narratives historical or archaeological data.
[42] The oral history evidence in the case before me was adduced by way of ethnographic collections. It did not arise from recounting at a feast but rather through an interview by an ethnographer, or individual trained by an ethnographer to gather information on the ethnographic present. Dr. Anderson admitted that she did not know anyone from the plaintiffs’ band with whom she would be confident in receiving a true adaawx. She maintained that the continuity of the adaawx has been “ruined” by Canadian laws over the years (referring to the banning of feasts where these were recounted) and thus we have to rely on oral histories preserved by the ethnographers. Dr. Anderson agreed with anthropologist James McDonald who states that “Oral histories have a way of changing over time, especially when they are important and not subject to the scrutiny of public recitation provided by the context of the feast”. (James A. McDonald, “An Historic Event in the Political Economy of the Tsimshian: Information on the Ownership of the Zimacord District” (1983) 57 B.C. Studies 24 at 37).
[43]