Indigenous Oral History as Evidence: Cowichan Tribes v. Canada (AG) [2022]

Author K.S.

Since Delgamuukwⁱ, the oral histories of Indigenous peoples have been recognized as being put on “an equal footing” with documentary evidence.ⁱⁱ Oral history is a means to transmit information orally to record history and preserve Indigenous knowledge.ⁱⁱⁱ The Cowichan^iv case was a voir dire to determine the threshold reliability of the oral history evidence of Grant, Guerin and Chief Wayne Sparrow and to allow them to testify without interruption.^v A brief analysis of the case shows an example of the ongoing relationship of Indigenous oral history as a form of evidence in the court, and that it is moving in a better direction.  

As expressed in Delgamuukw^vi, oral histories share the perspective of Indigenous people and play a “crucial role” in the litigation of Indigenous rights, Delgamuukw.^vii Oral histories are defined as out-of-court statements that are passed on through generations to the present day, and by being admitted for the truth of their contents, they conflict with the general rule against the admissibility of hearsay evidence.^viii Therefore, the law of evidence must be adapted and applied in a flexible manner to accommodate oral histories as they are a means to express Indigenous law, through the expression of values and morals, and weaving history, legend, politics and moral obligations with accounts of witnesses learned from “deceased individuals from their community concerning genealogy and traditional activities and practices.^ix 

For oral history to be admissible, it must be useful by proving a fact relevant to the issue in the case. As evidence, it may be useful where it offers evidence of ancestral practices and their significance that would not otherwise be available, or to prove an Indigenous perspective on the rights claimed.^x From Khelawon^xi, hearsay evidence is admissible if the criteria of necessity and reliability are met. Inquiries into historical events, such as the Cowichan case, necessity is typically established through the result of the deaths of those who observed the event; therefore, the test relies heavily on the assessment of its threshold reliability.^xii 

Mitchell shows that with both admissibility and weight, it may be appropriate to question the witness’s ability to know and testify about oral history, and while it is not required, there may be an inquiry made into whether the witness represents a reasonable, reliable source of the specific people’s history.^xiii Following the establishment of usefulness and necessity, to consider threshold reliability, many factors were considered; the list is not exhaustive, nor do all need to present as it is determined on a case-by-case basis.^xiv It is not required for a formal process to exist for keeping and sharing oral history, with steps to check for accuracy is not a prerequisite to admissibility, but it may affect weight, and to acknowledge that the mode of transmitting oral history differs amongst Indigenous communities, and within a single community.^xv Therefore, a difference in opinions between witnesses does not detract from the weight to be given to the evidence.^xvi If an elder or storyteller is the source of the oral history that the witness shares, then that may enhance reliability, but having multiple potential sources may weaken the reliability.^xvii  

The voir dire was based on the submission of the plaintiffs that the Musqueam had not provided evidence of a clear framework for the transmission of oral history evidence.^xviii As the Musqueam had not called for expert evidence, therefore the court did not have the benefit of independent assistance to identify a standard to assess the oral history.^xix The plaintiff’s claimed it was problematic, despite both parties agreeing that expert evidence that established the framework was not a prerequisite to its admission.^xx They further submitted that the testimony of the three individuals was inconsistent as it relates to the transmission of oral history, as the three had testified to different views of the transferring of knowledge.^xxi  

The Musqueam submitted that the opinion evidence of an ‘expert’ who is an outsider of an Indigenous people cannot be a prerequisite to admissibility of oral history evidence from that people, as it is discriminatory to assume oral history is self-serving and unreliable.^xxii  Ultimately, the Judge agrees that expert evidence is not required to allow for the court to assess the threshold reliability of oral history, and that regardless of the inclusion of an expert opinion would mean that there would be consistency with the evidence of the manner of the transmission of oral history or a consensus of how a community transmits oral history.^xxiii  

Therefore, since the witnesses all presented their evidence in a sincere manner, two were recognized as knowledge keepers, and one was a highly respected member of their community, amongst other factors, the Musqueam had ultimately provided sufficient evidence of the framework for the transmission of oral history that allows for the Judge to assess the threshold reliability of oral history evidence.^xxiv The Judge also mentioned that to require an expert opinion it would be a disservice to the Musqueam perspective, and that since there is a sliding scale when it comes to the level of formality of transmission and the informally transmitted oral history is still admissible, but perhaps may be accorded less weight.^xxv 

The ruling regarding the admissibility of the oral history evidence, the Judge stated that for the most part, the “witnesses have given evidence about the sources of their oral history knowledge, the reputation of the source as knowledge keepers, their personal relationships with the sources, and the significance and context of the teachings that were shared with the witnesses.^xxvi The Judge notes that the case law demands a flexible and purposive approach to assess threshold reliability and that it be consistent with the general factors from William #1 2004.^xxvii  Oral accounts of the past include a great deal of subjective experience, and therefore, they are not simply detached factual retellings of an event but are facts “enmeshed in the stories of a lifetime.”^xxviii Therefore, one cannot decline oral histories that do not separate from fact and from belief.^xxix As well, there is the suggestion that it is acceptable to accept some oral history evidence that contains interferences or descriptions of motivations for certain conduct.^xxx Therefore, from a review of jurisprudence, interpretation is a part of the living oral history; however, there is a line between interpretation as a part of oral history and drawing inferences that are distinct from the oral history conveyed. If a witness draws ‘problematic’ interferences or puts forward an inference as proof of a fact, then a court may find that the evidence is inadmissible, or admissible for a limited purpose or has little or lesser weight.^xxxi  

The Judge agreed with the Musqueam, ultimately, that the submission of oral history should not be fragmented to remove facts from inference and context, and that it is not necessary for him to characterize inferences and context that are contained in oral history as lay opinion evidence, including that doing so would be inconsistent with the principles from Mitchell.^xxxii  

Reflection 

In conclusion of the case, the oral history evidence of the witnesses was admissible, with a few exceptions.^xxxiii While the case primarily focusses on determining whether the evidence was admissible in court, and less so on the weight of the oral history when coming to a conclusion of the issues at the centre of the ongoing litigation, the statements made by the Judge may imply a potential for a change in the weight given to the oral history of Indigenous peoples in the litigation relating to Aboriginal title and rights.  

The Judge had stated that oral history evidence, while being hearsay evidence and subject to the same treatment, there was an exception when there was a need to keep in mind “the promise of reconciliation embodied in s. 35(1).”^xxxiv As well, with the Judge stating that it was not necessary to have an outside expert, the statements made by the Judge show an opportunity for the court to place an equal weight on oral evidence to written evidence, or at least in a manner that respects Indigenous perspectives in Aboriginal cases. 

While the Judge did not directly interact with the submissions of the Musqueam that it would be discriminatory to require evidence from an expert who was an outsider to the community, one can infer that by agreeing that there was no need for an expert, perhaps there is weight to the claim of discrimination. It is also included that it would be discriminatory to conclude that oral history is self-serving, and by mentioning the previously accepted historical documents as admissible that were hearsay evidence, without the need for expert evidence. By including such statements, there is a sense that both perspectives are to be treated equally, and that there is, in some sense, some inappropriateness when submitting a claim that the evidence from an Indigenous knowledge keeper is inadmissible or lacked a backing framework to apply a standard to assess the oral history due to a lack of expert evidence.  

In addition, the judge noted the sliding-scale of formality of the transmission of oral history and would therefore be a consideration for the court in determining the weight of the evidence. By doing so, it respects the ways in which the Musqueam share knowledge and acknowledges that the court must take that into consideration, and not view all the oral history shared as being collectively weakened by the flow of formality. Of course, that is rooted in optimism and based under the assumption that those statements will hold enough weight to truly influence the decision-making process and not just be brushed off. 

In conclusion, Cowichan [2022] shows a potentially positive change in the viewing of oral history as evidence within the court system, and while a voir dire is not necessary in establishing admissibility of oral history as evidence, the statements made by the Judge are in support of the oral history shared by the three individuals and the fact that there was no need for expert evidence. The Judge could have very well followed that it was necessary for there to be an expert. 

Endnotes:

^[i] [1997] 3 S.C.R. 1010 at para 87 [Delgamuukw].

^[ii] Cowichan Tribes v. Canada (Attorney General), [2022] BCJ No. 1463 at para 12 [Cowichan].

^[iii] Cowichan Ibid at para 4; Jim Reynolds, Aboriginal Peoples and the Law: A Critical Introduction, (Vancouver: UBC, Purich Books, 2017) at 103.

^[iv] [2022] BCJ No. 1463.

^[v] Cowichan Ibid at para 1-3.

^[vi] Supra note 1 at para 84.

^[vii] Cowichan supra note 2 at para 10.

^[viii] Supra note 1 at para 86; Cowichan supra note 2 at para 11.

^[ix] Delgamuukw at para 87; Mitchell v. M.N.R.), 2001 SCC 33 [Mitchell] at paras. 29-31; Cowichan supra note 2 at para 6.

^[x] Cowichan supra at note 2, para 13.

^[xi] [2006] SCC 57.

^[xii] Cowichan at para 15.

^[xiii] Mitchell at para 33; Cowichan at paras 16-17.

^[xiv] Cowichan at paras 17-18.

^[xv] Ibid at para 19.

^[xvi] [2007] BCSC 1700 at para 167; Cowichan at para 19.

^[xvii] [2021] ONSC 4181 at para 60; Cowichan at para 60.

^[xviii] Cowichan at para 22.

^[xix] Ibid.

^[xx] Ibid.

^[xxi] Ibid at para 23.

^[xxii] Supra note 2 at para 26.

^[xxiii] Ibid at par 30.

^[xxiv] Ibid.

^[xxv] Ibid.

^[xxvi] Ibid at paras 53-54.

^[xxvii] Ibid at para 55.

^[xxviii] Delgamuukw at para 86; Tsilhqot’in at paras 135-137; Cowichan at para 66.

^[xxix] Cowichan at para 67.

^[xxx] Ibid at para 70.

^[xxxi] Ibid at para 74.

^[xxxii] Ibid at para 75.

^[xxxiii] Ibid at para 641.

^[xxxiv]Ibid at para 14.