Indigenous perspectives in the courtroom

Abstract

All around the world, indigenous peoples struggle to ascertain their rights to the lands they have traditionally occupied. Court litigation is one possibility for indigenous peoples to seek the affirmation of these rights. However, such proceedings present many challenged for indigenous claims, in particular with regard to evidentiary rules. While courts have long favoured the written word, indigenous peoples can often only rely on their oral history and traditions to prove their extensive relationship to the land in question. In order to assess indigenous claims fairly, there is a need for adapting the court procedures and general approach to the specificities of these claims.

Keywords:

• indigenous rights
• aboriginal title
• oral evidence
• legal pluralism

Acknowledgements

The author would like to thank Professor Robert McCorquodale for comments on a draft version of the article.

Notes

Erica-Irene A. Daes, ‘Indigenous Peoples and their Relationship to Land’, Final working paper prepared for the Sub-Commission on the Promotion and Protection of Human Rights of the Commission on Human Rights, Fifty-third session, 2001, para 13, 7.

For a definition of legal pluralism, see Rob Riley ‘Aboriginal law and its importance for Aboriginal people: observations on the task of the Australian Law Reform Commission’, in Indigenous Law and the State, ed., Bradford W. Morse and Gordon R. Woodman (Dordrecht: Foris Publications, 1987), 66. For a categorisation of different normative systems, see Brian Z. Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’, Sydney Law Review 30 (2008), 375, 396–399. Tamanaha distinguishes six different normative systems with one being the ‘official’ or ‘positive’ legal system and the others being normative systems of a ‘customary’, ‘religious’, ‘economic/capitalist’, ‘functional’ or ‘community/cultural’ nature. As a result, legal pluralism refers to ‘the interaction between competing and conflicting official legal systems or between an official legal system and one or more of the other normative systems’. Note that while this categorisation is helpful in understanding the discourse on legal pluralism in the context of this article, I would argue against the use of the term ‘official’ when referring to a state's legal system as, in the views of indigenous populations, their own normative system, qualified by Tamahana as ‘customary’, would qualify as ‘official’. On the notion of ‘hybrid legal space’, see Paul Schiff Berman, ‘Global Legal Pluralism’, Southern California Law Review 80, (2007): 1158.

It was for example the norm throughout Europe, from the Roman Empire, which allowed the law of the locals to remain in force, until states, in accordance with the Westphalian model, started to consolidate the laws in force on their respective territories. See Brian Z. Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’, Sydney Law Review 30 (2008):375, 379.

See Tamanaha, ‘Understanding Legal Pluralism’, 382. See also Bradford W. Morse ‘Indigenous law and state legal systems: conflict and compatibility’, in Indigenous Law and the State, Bradford W. Morse and Gordon R. Woodman ed. (Dordrecht: Foris Publications, 1987), 102, where he states that, before the forming of a government by the colonising powers, ‘early travellers, traders and colonists willingly chose to accept local Indian law as governing their affairs in the Canadian Prairies’, thus subjecting themselves to the lex loci, i.e. the indigenous law. This was of course not always the case, see for example the account of atrocities committed by the conquistadores against indigenous peoples reported by Bartholome de Las Casas in his sixteenth century writings. Note that Las Casas was nevertheless keen to convert indigenous populations to Christianity and thus impose on them the colonialists' system of beliefs, see Daniel Castro, Another Face of Empire: Bartolomé De Las Casas, Indigenous Rights, and Ecclesiastical Imperialism (Durham, Toronoto: Duke University Press, 2007).

For a chronological summary of colonial rule in the Americas, see Paul Havemann ‘Euro-American Law of Nations and Indigenous Peoples’ in Indigenous Peoples' Rights in Australia, Canada and New Zealand, ed., Paul Havemann (Oxford: Oxford University Press, 1999), 13–17.

Tamanaha, ‘Understanding Legal Pluralism’, 383, who notes that during these processes, the nature of the customary laws taken into account was often modified by the colonising powers because of misinterpretation.

See Paul Havemann, ‘The indigenization of social control in Canada’, in Indigenous Law and the State, ed., Bradford W. Morse and Gordon R. Woodman (Dordrecht: Foris Publications, 1987), who states since the Second World War indigenous rights were only recognised within the state legal system but that there was no right to recognition of indigenous non-state legal systems.

This form of legal pluralism could also be called ‘quasi-legal pluralism’. As it will be developed in the analysis of the case law, this wider acceptation of the legal pluralism refers in this article to the acceptance and recognition of indigenous laws and traditions within common law court proceedings.

In general, see S. James Anaya, Indigenous Peoples in International Law, 2nd edition (Oxford: Oxford Unversity Press, 2004). See also Federico Lenzerini, ‘The Trail of Broken Dreams: The Status of Indigenous Peoples in International Law’, in Reparations for Indigenous Peoples – International and Comparative Perspectives, ed., Federico Lenzerini (Oxford University Press; Oxford, 2008), 73–116. For a chronological summary of the international legal context, see Paul Havemann, ed., ‘Twentieth-Century Public International Law and Indigenous Peoples, in Indigenous Peoples' Rights in Australia, Canada and New Zealand (Oxford University Press, Oxford, 1999)’, 18–21. With regard to the relationship between the international legal context and domestic systems, see Catherine J. Iorns Magallanes, ‘International Human Rights and their Impact on Domestic Law on Indigenous People's Rights in Australia, Canada, and New Zealand’, in Indigenous Peoples' Rights in Australia, Canada and New Zealand, ed. Paul Havemann (Oxford University Press, Oxford, 1999), 235–276.

Article 2 paragraph 1 of the International Labour Organisation Convention No 107 on Indigenous and Tribal Populations of 1957.

Article 2 paragraph 1 of the International Labour Organisation Convention No 169 on Indigenous and Tribal Peoples of 1989.

On the ILO Convention 169 and its monitoring system, see Claire Charters, ‘Indigenous Peoples and International Law and Policy’, in Indigenous Peoples and the Law – Comparative and Critical Perspectives, ed., Benjamin J. Richardson, Shin Imai and Kent McNeil, (Portland: Hart Publishing, 2009), 167–170.

The negation of indigenous rights concerning the lands they have traditionally occupied is known as the doctrine of terra nullius. For more on this doctrine in relation to indigenous populations, see the Australian case of Mabo v. Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992) in which the legal fiction of terra nullius was abolished. The case brought by members of the Meriam people sought the affirmation of land rights to the Murray Islands. In its landmark decision, the High Court of Australia also recognised the existence of aboriginal title at common law. This decision echoed the 1975 decision of the International Court of Justice in its Advisory Opinion on Western Sahara which had rejected the terra nullius doctrine under which even inhabited territories could be acquired through occupation, see the ICJ Advisory Opinion of 16 October 1975 on Western Sahara, which was in fact cited by Justice Brennan in the Mabo decision. The Mabo decision was subsequently codified in the Native Title Act 1993 (amended in 1998), which renders title claims possible within a limited framework. See Fred Tanner, ‘Land Rights, Native Title and Indigenous Land Use Agreements’, in Indigenous Australians and the Law, ed., Elliott Johnston, Martin Hunton and Daryle Rigney (London: Routledge-Cavendish: London, 2008), 107. On the terra nullius doctrine and the significance of the Mabo decision, see Henry Reynolds, ‘New Frontiers – Australia’, in Indigenous Peoples' Rights in Australia, Canada and New Zealand, ed., Paul Havemann (Oxford: Oxford University Press, 1999), 129–140, in parallel with his previous pre-Mabo writing, The Law of the Land (Victoria: Penguin Books, 1987). See also Peter H. Russell, Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler (Durham: University of Toronto Press, 2005). See also S. James Anaya, Indigenous Peoples in International Law (Oxford: Oxford University Press, 2004), 108 and Catherine J. Iorns Magallanes, ‘International Human Rights and their Impact on Domestic Law on Indigenous People's Rights in Australia, Canada, and New Zealand’, in Indigenous Peoples' Rights in Australia, Canada and New Zealand, ed., Paul Havemann (Oxford: Oxford University Press, 1999), 249–250. For the historical background of the terra nullius doctrine, see Lindsay G. Robertson, Conquest by Law (Oxford: Oxford University Press, 2005), 144, on the Johnson v. M'Intosh case, which contains the discovery doctrine according to which colonialists acquired the rights to ownership of all discovered lands.

The International Covenant on Civil and Political Rights was adopted on 16 December 1966 and entered into force on 23 March 1976. The International Covenant on Economic, Social and Cultural Rights was adopted on 16 December 1966 and entered into force on 3 January 1976.

See the Preamble of UNDRIP. UNDRIP was adopted on 13 September 2007, with 144 states in favour, 11 abstentions and four votes against. The four states that voted against the Declaration, namely Australia, Canada, New Zealand and the United States (all states with an indigenous population), have since then endorsed UNDRIP. See Claire Charters, ‘Indigenous Peoples and International Law and Policy’, in Indigenous Peoples and the Law – Comparative and Critical Perspectives, ed., Benjamin J. Richardson, Shin Imai and Kent McNeil (Portland: Hart Publishing, 2009), 175–176.

Article 8 paragraph 1 of UNDRIP.

Article 13 of UNDRIP.

See Article 25 of UNDRIP, which states that ‘indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard’. According to Article 26 paragraphs 1, ‘Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired’. And its paragraph 2 states that ‘Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired’.

See for example Catherine J. Iorns Magallanes, ‘International Human Rights and their Impact on Domestic Law on Indigenous People's Rights in Australia, Canada, and New Zealand’, in Indigenous Peoples' Rights in Australia, Canada and New Zealand, ed., Paul Havemann (Oxford: Oxford University Press, 1999), 253–258.

At the time of the adoption of the UNDRIP, 143 UN member states voted in favour of its adoption and only the four CANZUS states voted against it. Note that all of the CANZUS states have now endorsed the UNDRIP.

See Canada's statement of support on the UNDRIP, http://www.international.gc.ca/indig-autoch/un_declaration_nov2010_onu.aspx?lang=eng.

Ibid.

While 17 states had ratified ILO Convention 107, 22 states have now ratified the ILO Convention 169. The ratification tables are available at http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C107, and http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169.

On the development of indigenous rights in Canada, see Mark D. Walters, ‘Promise and Paradox: The Emergence of Indigenous Rights Law in Canada’, in Indigenous Peoples and the Law – Comparative and Critical Perspectives, ed., Benjamin J. Richardson, Shin Imai and Kent McNeil (Portland: Hart Publishing, 2009), 2150.

For a historical account of Canada's colonial past, see for example Ken Coates, ‘The “Gentle” Occupation – The Settlement of Canada and the Dispossession of the First Nations', in Indigenous Peoples' Rights in Australia, Canada and New Zealand, ed., Paul Havemann (Oxford: Oxford University Press, 1999), 141–161. With regard to Canada's domestic policy towards its indigenous populations until the early 1980s, see for example Paul Havemann et al., Law and Order for Canada's Indigenous People: A Review of Recent Research Literature Relating to the Operation of the Criminal Justice System and Canada's Indigenous People (Ottawa: Ministry of the Solicitor General of Canada, 1984). For an account of the issues relating to indigenous rights in Canada since the 1970s, see Murray Dobbin's interview with Paul Chartrand, ‘Aboriginal Peoples in Canada – Aspirations for Distributive Justice as Distinct Peoples’, in Indigenous Peoples' Rights in Australia, Canada and New Zealand, ed., Paul Havemann (Oxford: Oxford University Press, 1999), 88–107.

See for example Bradford W Morse ‘Indigenous law and state legal systems: conflict and compatibility’, in Indigenous Law and the State, ed., Bradford W. Morse and Gordon R. Woodman (Dordrecht: Foris Publications, 1987), 108. In the common law courts, not much consideration was given to traditional laws until the 1970s, when courts started to consider their application, in particular with regard to fishing and hunting regimes. See for example Peter R. Grant, ‘Recognition of traditional laws in state courts and the formulation of state legislation’, in Indigenous Law and the State, ed., Bradford W. Morse and Gordon R. Woodman (Dordrecht: Foris Publications, 1987), 263.

With close to 200 distinct First Nations (Indian bands) co-existing in BC, there is an inherent added complexity to this context with issues arising from the overlaps associated with various land claims. Note also that, according to the latest available statistics, the Aboriginal population consists of 4.8 per cent of the total population of BC (in comparison, the Aboriginal population consists of 3.8 per cent of the entire Canadian population).

See the BC Statistical Profile of Aboriginal Peoples based on the 2006 Census of Canada, http://www.bcstats.gov.bc.ca/data/cen01/abor/aborbc.pdf.

For a review of land claims throughout Canada, see Bradford W. Morse, ‘Peoples of Canada and Their Efforts to Achieve True Reparations’, in Reparations for Indigenous Peoples – International and Comparative Perspectives', ed., Federico Lenzerini (Oxford: Oxford University Press, 2008), 271–316.

The term of treaty, just like in international law, refers to a government-to-government agreement, here the government of British Columbia and the First Nation in question. It is also a reference to the historic agreements signed by the British Crown and First Nations, which were also called treaties. See for example the Douglas Treaties, which were signed between 1850 and 1854. See for example, R. Cole Harris, Making Native Space – Colonialism, Resistance, and Reserves in British Columbia (Vancouver: UBC Press, 2002).

See the Mission Statement of the BC Treaty Commission, http://www.bctreaty.net/files/pdf_documents/Mission_Statement.pdf.

See the Six-Stages: Policies and Procedures, http://www.bctreaty.net/files/sixstages.php.

This treaty came into effect on 3 April 2009, http://www.gov.bc.ca/arr/firstnation/tsawwassen/default.html.

For example, land included within the Nisga'a Treaty comprises approximately eight per cent of the nation's traditional territory, http://www.bctreaty.net/files/issues_landres.php.

It seems that the treaty process can lead to a settlement of as little as 5 per cent of the claimed territory.

Peter R A Gray, ‘“Do the Walls have Ears”: Indigenous Title and Courts in Australia’, Australian Indigenous Law Reporter 5, no. 1 (2000).

Note that common law jurisdictions have developed a series of exceptions to this general rule on the inadmissibility of hearsay evidence, in particular when it is deemed necessary and trustworthy. In civil law jurisdictions, the lack of a rule providing for the general inadmissibility of hearsay is based on the role of the judicial authority itself in the selection of the evidence that is heard in court and the examination of the witnesses. See for example Anthony Good, ‘Cultural Evidence in Courts of Law’, Journal of the Royal Anthropological Institute (2008), pp 47–60.

Peter R. A. Gray, “Do the Walls have Ears”. Indigenous Title and Courts in Australia' Australian Indigenous Law Reporter 5, no. 1 (2000).

On the development of the case law on Aboriginal title in Canada and other common law jurisdictions, see for example Louis A. Knafla and Haijo Westra (eds), Aboriginal Title and Indigenous Peoples: Canada, Australia and New Zealand (Vancouver: UBC Press, 2010).

See for example the Crown of British Columbia in Delgamuukw (below), where it insisted indigenous land rights had been extinguished.

Some exceptions can however be noted, such as the post-Calder modern treaty processes, the adoption of section 35 on the rights of Aboriginal people in the 1982 Constitution, as well as the acceptation of the inherent right to self-government with regard to specific issues.

Calder et al., v. Attorney General of British Columbia [1973] SCR 313 (‘Calder’).

Calder, 376.

Section 35(1) of the Constitution Act 1982.

Note that this judgment led the parties to enter negotiations that concluded with the agreement to the Nisga'a Final Agreement in 1999, of which the Act is available here: http://laws.justice.gc.ca/en/N-23.3/index.html.

See Michael Asch ‘From Calder to Van der Peet – Aboriginal Rights and Canadian Law, 1973–96’ in Indigenous Peoples' Rights in Australia, Canada and New Zealand, ed., Paul Havemann (Oxford: Oxford University Press, 1999), 428–446. See also Hamar Foster, Heather Raven, Jeremy Webber, Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver: UBC Press, 2008).

Section 35(3) of the Constitution Act 1982.

When this land is surrendered, the Crown has a fiduciary obligation towards the indigenous peoples who surrendered the land in question. See Guerin v. The Queen [1984] 2 SCR 335, p 336 and 382. This case regarded a land lease entered by the federal government on behalf of the Musqueam First Nation, on less favourable terms than first agreed with them. While the Musqueam had won damages at the trial level, the decision was overturned on appeal but the Supreme Court ruled in favour of the Musqueam.

See J. Dickson in Guerin v. The Queen at 382: ‘It appears to me that there is no real conflict between the cases which characterise Indian title as a beneficial interest of some sort, and those which characterise it a personal, usufructuary right. Any apparent inconsistency derives from the fact that in describing what constitutes a unique interest in land the courts have almost inevitably found themselves applying a somewhat inappropriate terminology drawn from general property law. There is a core of truth in the way that each of the two lines of authority has described native title, but an appearance of conflict has nonetheless arisen because in neither case is the categorization quite accurate.’ With regard to Aboriginal title described as a personal usufructuary right, see Attorney-General for Quebec v. Attorney-General for Canada [1921] 1 AC 401 (P.C.).

R. v. Sparrow, [1990] 1 S.C.R. 1075. At trial and appeals, the decisions went against the Aboriginal claimant, a member of the Musqueam Nation, who was seeking the recognition and affirmation of his Aboriginal right to fish. The Supreme Court of Canada affirmed the constitution protection of this right.

See Chief Justice Lammer in R. v. Van der Peet, [1996] 2 SCR 507 (‘Van der Peet’). The Supreme Court of Canada did not recognise the right to sell fish as a right falling under the protection of the Constitution and thus it did not recognise as an existing Aboriginal right.

Van der Peet, 4.

On Van der Peet and its influence, see Michael Ash ‘From Calder to Van der Peet – Aboriginal Rights and Canadian Law, 1973–96’, in Indigenous Peoples' Rights in Australia, Canada and New Zealand, ed., Paul Havemann (Oxford: OUP, 1999), 435– 446.

Van der Peet, pp. 50–54. Note that it must not be unique to the claimant Aboriginal group but it must reflect the particular history or custom of that group, an element that has to be decided independently with each situation.

The relevant time period includes the period prior to the arrival of Europeans, see Van der Peet, 54–55.

For another contextual example, see for example the Australian case of Mabo v. Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 60.

Sparrow, 1112.

Van der Peet, 50.

Van der Peet, 58.

Delgamuukw v. British Columbia [1997] 3 SCR 1010 (‘Delgamuukw’).

Although the stories presented, mainly the ‘adaawk’, are deemed true history within the culture of the Gitksan Nation. See Nell Sterritt, ‘Implementing Delgamuuk'w’, paper given at the Implementing Delgamuuk's Conference of March 1999, http://www.ubcic.bc.ca/files/PDF/017_NSTERRITT.pdf.

Delgamuukw para 96, 66: ‘The trial judge, however, went on to give these oral histories no independent weight at all’.

Delgamuukw, 67, para 98.

See Kent McNeil, ‘Indigenous Land Rights’, in Indigenous Peoples and the Law – Comparative and Critical Perspectives, ed., Benjamin J. Richardson, Shin Imai and Kent McNeil, (Portland: Hart Publishing, 2009), 271–273.

See Mitchell v. MNR, [2001] 1 SCR 911 (‘Mitchell’), at para 31 and 34. There is thus no blanket admissibility of oral histories.

The three categories consisted of adaawk and kungax (most formal category), recollections of Aboriginal life and territorial affidavits. For a detailed commentary on these categories, see Stephanie P. Lysyk, ‘Evidentiary issues – oral tradition evidence’, Aboriginal Practice Points, 2006.

See Nell Sterritt, ‘Implementing Delgamuuk'w’, paper given at the Implementing Delgamuuk's Conference of March 1999, http://www.ubcic.bc.ca/files/PDF/017_NSTERRITT.pdf.

See Mitchell, para 39: ‘Claims must still be established on the basis of persuasive evidence demonstrating their validity on the balance of probabilities’.

See Mitchell at para 51: ‘Sparse, doubtful and equivocal evidence cannot serve as the foundation for a successful claim’.

Tsilhqot'in Nation v. British Columbia (2007, BCSC 1700) (‘Tsilhqot'in’), also called the William case after Chief Roger William who introduced the legal proceedings.

Tsilhqot'in, para 23 and 60–100.

Tsilhqot'in, para 24–25.

Tsilhqot'in, para 26.

Tsilhqot'in, para 28. For more on the region and the location, see Tsilhqot'in, para 29–39 and 40–56. Note that the Tsilhqot'in Nation includes six distinct communities totaling about 3,000 people.

For a commentary on the case written by the claimants' counsels, see Jack Woodward, Pat Hutchings and Leigh Anne Baker, ‘Rejection of the “Postage Stamp” Approach to Aboriginal Title: The Tsilhqot'in Nation Decision’, prepared for the Continuing Legal Education Society of British Columbia, January 2008, http://www.cle.bc.ca/practice%20points/REAL/01%2030%20Tsilhqotin.pdf.

In the judgment this has been described as a ‘historic sitting of the Court’, Tsilhqot'in, para 11.

Tsilhqot'in, para 167: ‘Some elders said that certain oral traditions (myths and legends) could only be told after sunset, others disagreed. Those witnesses who would not tell stories until after the sun had set were accommodated by the Court holding special evening sittings. Other witnesses were comfortable telling the stories during the normal daylight sitting hours. Formalities about story telling varied with the witnesses. These differences of opinion on the formalities of storytelling do not detract from the weight to be given to the oral histories and traditions.’

Tsilhqot'in, paras 131–196, referring to Jan Vansina, Oral Tradition as History (Madison: University of Wisconsin Press, 1985). At paragraph 143, Justice Vickers notes that ‘[A]ppellate Courts, including the Supreme Court of Canada, have used the terms oral history and oral tradition interchangeably. In situations involving claims for declarations of Aboriginal title and rights, it would appear that the evidence tendered includes both oral tradition and oral history evidence. However, it is the oral tradition evidence in Aboriginal rights and title cases which may be the only available evidence relating to an event or situation which occurred prior to sovereignty assertion or first contact’.

See Jan Vansina, Oral Tradition as History (Madison: University of Wisconsin Press, 1985), 12–13.

One example of oral history given in the case is when a witness related having participated in seasonal rounds to gather resources, Tsilhqot'in, para 146.

See Jan Vansina, Oral Tradition as History (Madison: University of Wisconsin Press, 1985), 27–30.

One example of oral tradition given in the case is when the evidence presents a description of how and where ancestors participated in seasonal rounds to gather resources, Tsilhqot'in, para 146.

Tsilhqot'in, para 143.

Tsilhqot'in, paras 163–165.

For example, no particular authority is necessary to transmit oral traditions, see Tsilhqot'in, para 167.

Example: witness describes a battle with another nation, which is said to have happened centuries ago.

William et al. v. British Columbia et al., 2004 BCSC 148, para 24.

Tsilhqot'in, para 153.

Tsilhqot'in, para 154.

Tsilhqot'in, para 196. However, one can argue that the ethnocentric view was not avoided in the historical narrative, which divides the periods into pre-historic, proto-historic and historic periods, these periods being divided according to European migration. When considering the history of the native population, which has inhabited the area (or at least portions of) claimed from time immemorial, one should not refer to past periods as ‘pre-historic’ versus ‘historic’. Note however, that Justice Vickers did recognise this issue, para 205 and underlined the need to consider Tsilhqot'in oral history to ‘balance and complete the picture.’

From all of the testimonies heard on behalf of the claimants, 29 were Tsilhqot'in witnesses and 19 non-Tsilhqot'in experts speaking on their behalf. The court was assisted by interpreters and word spellers for hearing evidence in the native language, see Tsilhqot'in, para 10.

Tsilhqot'in, para 203.

Members of the Yorta Yorta Aboriginal Community v. Victoria & Ors [1998] FCA 1606 of 18 December 1998.

Yorta Yorta, para 33.

See for example Kirsten Anker, ‘Law in the Present Tense: Tradition and Cultural Continuity in Members of the Yorta Yorta Aboriginal Community v. Victoria’, Melbourne University Law Review (2004).

The evidence presented in Delgamuukw was described as ‘sacred “official” litany, or history, or recital of the most important laws, history, traditions and traditional territory of a House.’ See Delgamuukw, para 93 and Tsilhqot'in, para 161.

Tsilhqot'in, para 168.

Tsilhqot'in, para 168.

See Stephanie P. Lysyk, ‘Evidenciary issues – oral tradition evidence’, Continuing Legal Education Society of British Columbia, Aboriginal Law: Procedural and Dispute Resolution Issues, October 2006. See also Mark D. Walters, ‘Promise and Paradox: The Emergence of Indigenous Rights Law in Canada’, in Indigenous Peoples and the Law – Comparative and Critical Perspectives, ed., Benjamin J. Richardson, Shin Imai and Kent McNeil (Portland: Hart Publishing, 2009), 41–42.

Tsilhqot'in, para 106–129.

The Vancouver Province, ‘Huge win for Interior natives’, 22 November 2007.

Tsilhqot'in, para 7.

Tsilhqot'in, para 18.

Tsilhqot'in, para 21.

The appeal was heard in November 2010 at the BC Court of Appeal and the judgment was reserved. See also Michael P. Doherty, ‘Recent Developments in Aboriginal Rights and Title Cases’, prepared for the Continuing Legal Education Society of British Columbia, June 2009, 2, http://www.cle.bc.ca/practice%20points/LIT/Aboriginalrights.pdf.

At the beginning of the legal process, the plaintiffs' costs were covered through the support of various donors, including the Assembly of First Nations. See Jack Woodward, Pat Hutchings and Leigh Anne Baker, ‘Rejection of the “Postage Stamp” Approach to Aboriginal Title: The Tsilhqot'in Nation Decision’, prepared for the Continuing Legal Education Society of British Columbia, January 2008, 13.

This was agreed and upheld by the BCCA in Tshilhqot'in Nation v. British Columbia 2006 BCCA 2 and the Supreme Court of Canada.

Tsilhqot'in at para 102. For the test for title, see Delgamuukw at para 149.

Tsilhqot'in at para 105.

See the 2010 Statement of the BC Assembly of First Nations on ‘Fair Land and Resource Settlements’, http://www.bcafn.ca/files/fair-lands-and-resources.php.

Delgamuukw at para 80.

See Bruce Debelle, ‘Aboriginal Customary Law and the Common Law’, in Indigenous Australians and the Law, Elliott Johnston, Martin Hunton and Daryle Rigney (London: Routledge-Cavendish, 2008), 107. Unfortunately, when a claim rests on confidential information that cannot be revealed, the risk of controversy is high, see for example the dispute over the Hindmarsh Island Bridge in Australia, which was built on a site the Ngarrindjeri community described as sacred for the women of the community for reasons that had to remain secret. A commission inquiry decided that such secret elements on which the claim rested did not exist.

The application of this principle may be best ensured through a clear amendment of the legislation, as it has already been done in some jurisdictions. For example, South African Restitution of Land Rights Act 22 of 1994 points to an international acceptance of oral tradition, and oral evidence and hearsay evidence in general in land claims involving indigenous communities, without giving any guidance as to how the courts should handle oral tradition, oral evidence and hearsay evidence. More recently, an amendment has recently been implemented in Australia through the Evidence Amendment Act 2008 according to which Section 72 reads: ‘ [T]he hearsay rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group.’

See for example Rob Riley, ‘Aboriginal law and its importance for Aboriginal people: observations on the task of the Australian Law Reform Commission’ in Indigenous Law and the State, ed., Bradford W. Morse and Gordon R. Woodman (Dordrecht: Foris Publications, 1987), 68 where he suggests that that one should consider ‘how the Australian legal system can fit inside the … parameters of customary law’ while at the same time recognising it is unrealistic.

The courts, as established by governments that are the defendants in land claims instituted by indigenous groups, may indeed be criticised for not being the appropriate avenues for indigenous claims by a fear of bias. However, the Canadian case law shows that the judiciary, in accordance with the separation of powers, is an institution, independent from the executive, which is able to balance the interests in presence. This includes the respect of different legal concepts from the ones established by the state, thus ensuring legal pluralism.

Excluding the barriers presented in the paragraph above.

Except for Guerin and Sparrow where the Supreme Court ruled in favour of the indigenous claimants.