From Tradition to Testimony: The Role of Indigenous Oral History as Evidence

Authors: Dena Aminzadeh and Tess Poulton

Indigenous oral history transfers knowledge and laws throughout generations and has increasingly been used as evidence in Canadian courts. A failure to adequately consider oral history within legal disputes would be problematic in the wake of Canada’s ongoing attempts at reconciliation.

When considering the use of oral history as evidence before a court, it is important to consider the nature of oral history; how it has been treated by the courts as a form of evidence; and the issues that come from importing Indigenous oral history into the common law system without adequate structures in place.

Using Indigenous oral history as a form of evidence in the courtroom highlights the difficulties that arise when the common law system attempts to integrate Indigenous law and traditions in a non-holistic way.

I.              Oral history

Indigenous traditions of recording history differ from Western traditions in many ways, especially because it is done orally. Such traditions are passed down throughout generations in the form of legends, histories, stories, and lessons.[1] Oral history may form the foundation of some Indigenous societies.[2] It serves to connect the speaker and listener in a communal experience that connects the past and present in memory.[3] Oral history is important for passing down Indigenous law, culture, and identity throughout generations. As such, oral history may be valuable evidence during a legal dispute.

Oral history may communicate Indigenous laws and other organizational tools that inform how to respond to harms.[4] For example, stories are treated as past precedents that can function together to guide people in the resolution of disputes.[5] Given the form of Indigenous laws, the common law system has historically failed to recognize them as anything more than supporting evidence.

Canada operates within a system of legal pluralism that includes common law, civil law, and Indigenous legal orders. Despite this, Indigenous legal orders are often overlooked in the face of common or civil law disputes.

The resurgence of Indigenous law is growing in academia, within Indigenous communities, and within society at large.[6]  However, during litigation, the provincial and federal governments and their legal representatives often work to deny its existence and relevance.[7] 

For example, in Tsilhqot’in Nation v British Columbia, Indigenous laws were considered at the evidentiary stage. Oral history evidence is often treated as a form of historical evidence even though it has been proven that it contains ancestral knowledge and Indigenous law.[8] By denying the relevance of oral history as a form of law when appropriate, the common law system suggests that it is a historical artifact, rather than an evolving body of jurisprudence much like its common and civil law counterparts.

II.            Oral History in the Courtroom

Indigenous oral history has played an increasingly important role in the litigation of Indigenous rights.[9] The SCC has extolled the virtues of oral history, writing that it contains unwritten norms that inform and sustain the Canadian Constitution.[10]

Oral history has been brought before the courts to prove long-standing relationships between Indigenous peoples and their environments.[11] Indigenous litigants present this evidence hoping that courts will attach legal significance to ancient relationships and afford them corresponding protection and rights.[12]

As evidence, oral history presents both risk and insight as it converges events that took place in the past and the meaning that people ascribe to these events.[13] This blending presents unique challenges in verifying oral history, as its ideas can be different from documentary reconstructions of the past.[14] 

There is a pervasive bias against oral history, stemming from a contrast between the transmittance of written history and its perceived permanence. However, the presence of explicitly subjective elements of oral history can potentially yield a more nuanced understanding of historical events than a mere recitation of facts.[15]

III.          Delgamuukw v British Columbia[16]

 In Delgamuukw, the SCC acknowledged problems with interpreting oral history. The SCC wrote that a special approach was required for admitting evidence from Indigenous claimants when it does not conform with common law standards.[17] The sui generis nature of Aboriginal rights justified a unique approach that provides due weight to the perspectives of Indigenous peoples.[18] 

To uphold this principle, the SCC instructed that judges should adapt the laws of evidence to give due weight to Indigenous perspectives on their practices, customs, traditions, and relationship with the land.[19] This approach aims to ensure the judiciary gives oral history adequate weight, placing it on equal footing with the types of historical evidence courts are familiar with.[20] 

The SCC emphasized that these modifications of evidentiary rules were necessary for litigating Aboriginal rights. Otherwise, there would be an impossible burden of proof on Indigenous societies that did not keep written records, invalidating the rights they possess. [21]

IV.          Mitchell v M.N.R.[22]

Mitchell created a more restrictive approach to oral history than Delgamuukw or previous case law.[23] In considering oral history, the SCC emphasized recognition of the special nature of Indigenous claims does not negate the operation of general evidentiary principles.[24]

The SCC believed that to ensure Indigenous oral evidence is on proportionate footing means it should be treated equally and with due treatment.[25] While the evidence presented by Indigenous claimants should not be undervalued merely because it does not conform precisely to the rules of evidence, the SCC explained that it cannot be extended “to carry more weight than it can reasonably support.”[26]

This reasoning is problematic as it perpetuates a negative framework for assessing oral history. Subsequent case law shows that Mitchell is often used to exclude rather than include Indigenous oral history as evidence.[27] In cases where oral history is included, it is often given little to no weight.[28] This has exacerbated an already large set of issues related to the use of Indigenous oral history as evidence.

V.            Cowichan Tribes v Canada (Attorney General)[29] 

Cowichan Tribes is a recent example of how Canadian courts attempt to reconcile issues that arise when Indigenous litigants present oral history as evidence. It highlights how courts must pursue creative solutions to help meaningfully integrate Indigenous perspectives into disputes involving Indigenous litigants.

In Cowichan Tribes, the British Columbia Supreme Court (BCSC) conducted a voir dire to determine the admissibility of the Musqueam Indian Band’s oral history evidence.[30] A voir dire is a trial-within-a-trial conducted to settle discrete legal issues.[31] The BCSC acknowledged that it was preferable to hear the evidence in its entirety by voir dire to avoid repeated objections from counsel during the statements of Indigenous elders.[32] 

For oral history to be admissible, it must be useful by proving a fact relevant to the issues in the case.[33] The BCSC emphasized that determining the admissibility of oral evidence requires a case-by-case approach.[34] This allows for judicial discretion in identifying factors important for assessing threshold reliability based on the circumstances of the case.[35] Furthermore, there is no rigid set of requirements to be met during transmission for oral history to be considered.[36]

Ultimately, the BCSC rejected the plaintiff’s arguments that the Musqueam Indian Band had not provided sufficient evidence of the framework for the transmission of oral history evidence.[37] It acknowledged the witnesses’ experiences in learning and transferring oral history from Big House Ceremonies to kitchen table chats.[38]

The BCSC also rejected the plaintiffs’ arguments that expert evidence was required to enable the court to assess the threshold reliability of oral history.[39] Expert opinions do not guarantee a consistent understanding or agreement on how oral history is (or should be) transmitted within an Indigenous community.[40]

VI.          Issues with Using Oral History as Evidence

Despite the growing importance of Indigenous oral history as evidence, several obstacles persist. Particularly, the oral nature of this evidence creates challenges as it violates hearsay rules.[41] 

Hearsay is an out-of-court statement of fact that is offered during a court proceeding to prove the truth of its contents.[42] The party that presents the statement is seeking to have it treated like testimony coming from the witnesses themselves without actually calling on the person who knows the facts stated.[43] A key justification for the exclusion of hearsay is that the memory of what is heard may be less reliable than what is seen, and assessing the statement’s truthfulness is difficult in the absence of the original speaker.[44] Therefore, courts and legal professionals are weary about admitting oral history because of their internal biases against hearsay evidence.

There has not been an adequate response to effectively integrate oral history as evidence. Judges may not have the foundational knowledge to understand the implicit meaning behind the explicit messages in oral history.[45] Without a deeper understanding of the imagery and cultural meaning contained in oral history, judges may have difficulties acknowledging the meaning that Indigenous people give to the facts they present in court.[46] This puts Indigenous litigants in a difficult position. No matter how carefully an oral history is performed in the courtroom, an appreciation of its messages requires a receptive audience.[47]

This may suggest the need to use amicus curiae, a “friend of the court,” to ensure that all relevant evidence and arguments are presented.[48] Amicus curiae could help bridge the gap between the Indigenous and common law perspectives by providing further context and meaning that may be lost on a court that is unfamiliar with the nature of oral history.

Furthermore, as Cowichan Tribes exhibits, courts can be more creative when integrating oral history. For example, a voir dire could help ensure that meaning is not lost from the oral history in the process of gathering evidence.

VII.        Oral History Challenges the Common Law

Indigenous oral history questions the foundation of the Canadian legal and constitutional structures. Oral history documents the unjust imposition of common law and constitutional regimes that were frequently achieved through dishonesty and deception, resulting in Indigenous lands and rights being taken without consent.[49]

Oral history holds the memories of the government’s deception, lies, theft, and broken promises, highlighting the unjust imposition of Canadian common law and constitutional regimes.[50] It speaks of the unequal and inhumane treatment of Canada’s Indigenous peoples.[51] Oral history remembers the suppression of language and the denial of legal, political and religious rights.[52] It exhibits the economic sanctions, forced physical relocation, and plunder and despoliation of traditional Indigenous territories.[53] Oral history is threatening to civil and common law’s claim to legitimacy itself.

VIII.     Conclusion

The issues with using oral history as evidence in a common or civil law proceeding largely arise because courts attempt to integrate a facet of Indigenous culture and law without any of its surrounding structures or meaning. To use this form of evidence out of context has been, and will continue to be, a barrier for Indigenous litigants and witnesses, especially when a major source of their knowledge is transmitted orally across time.

artist brush

[1] Erin Hanson, “Oral Traditions” (2009), online: <indigenousfoundations.arts.ubc.ca/oral_traditions/>.

[2] Ibid.

[3] Ibid.

[4] John Borrows, “Heroes, Tricksters, Monsters, and Caretakers: Indigenous Law and Legal Education” (2016) 61:4 McGill LJ 795 at 825.

[5] Ibid.

[6] Fraser Harland, “Taking the ‘Aboriginal Perspective’ Seriously: The (Mis)use of Indigenous Law in Tsilhqot’in Nation v British Columbia” (2018) 16:17 Ind L Rev 21 at 22.

[7] Ibid.

[8] 2014 SCC 44 [Tsilqot’in]; Harland, supra note 6 at 24.

[9] John Borrows, “Listening for a Change: The Courts and Oral Tradition” (2001) 39:1 Osgoode Hall LJ 1 at 22 [Borrows].

[10] Reference re Secession of Quebec, 1998 CanLII 793 (SCC) at para 49.

[11] Borrows, supra note 9 at 22.

[12] Ibid.

[13] Ibid at 5.

[14] Ibid.

[15] Ibid at 11.

[16] Delgamuukw v British Columbia, 1997 CanLII 302 (SCC) [Delgamuukw]

[17] Ibid at paras 81-82.

[18] Ibid at para 82.

[19] Ibid at para 84.

[20] Ibid.

[21] Borrows, supra note 9 at 23.

[22] Mitchell v M.N.R., 2001 SCC 33 [Mitchell].

[23] Ibid.

[24] Ibid at para 38.

[25] Ibid at para 39.

[26] Ibid.

[27] Alexandra Potamianos, “The Challenges of Indigneous Oral History Since Mitchell v Minister of National Revenue (2021) 26:3 Review of Current Law and Law Reform 5 at 12 [Potamianos].

[28] Ibid.

[29] Cowichan Tribes v Canada (Attorney General), 2022 BCSC 933 [Cowichan Tribes].

[30] Mary Locke Macaulay, Aboriginal & Treaty Rights Practice, (Westlaw Edge Canada: Thomson Reuters Canada Limited, 2024) at 9:9 [Macaulay].

[31] David M. Pacciocco, Palma Paccioco & Lee Struesser, The Law of Evidence, 3rc ed (Toronto: Irwin Law Inc, 2020) [Paccicco].

[32] Jack Woodward, Aboriginal Law in Canada, (Westlaw Edge Canada: Thomson Reuters Canada Limited, 2024) at 20:43.

[33] Cowichan Tribes, supra note 31 at para 13.

[34] Ibid at para 18.

[35] Ibid at para 17.

[36] Ibid at para 33.

[37] Macaulay, supra note 32.

[38] Cowichan Tribes, supra note 31 at para 31.

[39] Macaulay, supra note 32.

[40] Cowichan Tribes, supra note 31 at para 30.

[41] Potamianos, supra note 27 at 7.

[42] Pacciocco, supra note 31 at 135.

[43] Ibid.

[44] Bryan P. Schwartz, An Indigenous Oral History Reader (Winnipeg: Bryan P. Schwartz, 2022) at 106.

[45] Borrows, supra note 11 at 31.

[46] Ibid.

[47] Potamianos, supra note 27 at 9.

[48] Government of Canada, “Legal Representation of Children in Canada” (3 February 2023) online (webpage): <justice.gc.ca/eng/rp-pr/other-autre/lrc-rje/p5.html>.

[49] Borrows, supra note 11 at 25.

[50] Borrows, supra note 11 at 26

[51] Ibid.

[52] Ibid.

[53] Ibid.