Evidence Not in a Form Familiar to Common Law Courts: Assessing Oral Histories in Land Claims Testimony after Delgamuukw v. B.C.
AbstractThe Supreme Court of Canada's recent decision in Delgamuukw v. B.C. permits a reconsideration of the place of oral traditions in aboriginal land claims cases. The Court advises that oral histories be given "independent weight," and that at trial McEachern C.J. had not "assessed the oral histories correctly. " However, the Supreme Court of Canada's view of how to weigh oral history in testimony is troublesome, in that then-Chief Justice Lamer informs us that such key features of oral histories as "moral obligations " are "tangential to the ultimate purpose of the fact-finding process at trial — the determination of the historical truth." This article considers how courts will be able to evaluate oral histories in the future, if such key features of testimony are to be discarded.
Author(s) retain original copyright in the substantive content of the titled work, subject to the following rights that are granted indefinitely:
- Author(s) grant the Alberta Law Review permission to produce, publish, disseminate, and distribute the titled work in electronic format to online database services, including, but not limited to: LexisNexis, QuickLaw, HeinOnline, and EBSCO;
- Author(s) grant the Alberta Law Review permission to post the titled work on the Alberta Law Review website and/or related websites.
- Author(s) agree that the titled work may be used for educational or instructional purposes and/or in educational or instructional materials. The author(s) acknowledge that the titled work is subject to other such "fair dealing" provisions and applicable legislation.
- Author(s) grant a limited license to those accessing the titled work from an electronic database or an Alberta Law Review website to download the titled work onto their computer and to print a copy for their own personal, non-commercial use, subject to proper attribution.
To use the journal's content elsewhere, permission must be obtained from the author(s) and the Alberta Law Review.