The expert witness-fully grown or fully owned?

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A Department of Fisheries and Oceans posting on MERX, a website that lists available government contracts, lists a position for a treaty fishing rights researcher and expert witness. The job will pay between $500,001 and $1 million.

A Department of Indian Affairs and Northern Development posting offers between $250,001 and $500,000 for a research position in its litigation management branch.

According to several respected academics, the government is offering a lot more for this work than the going rate. Are federal government departments looking for people to research arguments against assertions of Aboriginal and treaty rights in court?

Indian Affairs spokesperson Bernice Timmers told Windspeaker her department's posting was routine and that the previous contract had expired. She said the contract was for research only and defended the amount of money offered by saying, "litigation is expensive."

Department of Fisheries and Oceans spokesperson Lorraine Kinney denied the government is over-spending on its request for proposal.

"I think it's $250,000 . . . up to $250,000 a year for three or four years or possibly five," she said. "It's not a million a year. It's for total project costs."

But every one of the half-dozen academics interviewed in connection with this story said the dollar amounts were several times the rate for research contracts.

When shown the Department of Fisheries and Oceans posting, Dr. Dara Culhane, a Simon Fraser University professor of anthropology, said the contract compensation was indeed not normal.

"The average SSHRC (the Social Sciences/Humanities Research Council), which is the major funding source for social sciences, the average grant that an anthropologist would get- and be really happy with- would be maybe $50,000 over three years. Five hundred thousand, million dollar grants, we never hear about them. To do this kind of research, it's a huge amount of money. When you think about what is there, in terms of documentation, to examine. When you consider that the Crown rarely talks to Aboriginal people or Elders, what exactly is involved in this type of research? It's basically reviewing and interpreting historical documents."

Some academic observers were outraged the government was offering such a lucrative contract for research. Professor Andrea Bear Nicholas of St. Thomas University's Native studies department backed up Culhane's assessment of the going rate for academic research.

"Exactly, and those are like hen's teeth. You don't get them just every day," she said.

Bear Nicholas described the amount of money offered in the government request for proposal as "shocking" and "astonishing," and well above accepted averages. She believes the amount of money is bound to have an impact on a researcher's approach because no one would want to alienate a future employer that pays so well.

"How could it not? How could it not? How could it not?" she asked.

Culhane stopped short of saying the amount of money the government is offering is an obvious attempt to influence a scientist's findings.

"Not necessarily. But if you look at the record of Crown witnesses, that's what you find. Crown expert witnesses have tended . . . if you look right back to the James Bay trials in the mid-1970s, there's a pattern, and a similar pattern in the United States, of Crown witnesses being people whose careers are based in and often limited to being Crown witnesses," she said. "They tend to not be people who have academic positions. They tend to be people whose work has not been subjected to peer review within their profession. They tend to be people who don't hold teaching positions or academic positions."

Many Crown witnesses put forth ideas in court that have not been through the critical examination of a peer review. And academics that haven't secured tenure have also not seen their research analyzed and criticized by senior professors. Academics who put forward ideas that haven't been peer rviewed are seen as taking short cuts, Culhane said.

"You know, it's like doctors practising without a license," Culhane said. "You just can't appoint yourself a doctor. Since the Supreme Court (of Canada) Delgamuukw decision, . . . the court said oral history has to be taken seriously, it has to be given equal weight. Yet, the Crown is still hiring people whose work completely excludes Aboriginal history or any research into Aboriginal oral history. They're still hiring people whose expertise is based only on reviewing fur traders' journals and Crown documents."

Pitting one side against the other in court is not the best way to get to the bottom of questions of scientific or historical knowledge, Culhane said.

"It's completely dominated by the adversarial legal system as opposed to really looking at what does the historical research say or what are the principles of justice at work. It's all about winning, losing, hair-splitting, twisting arguments, you know, lawyers' games. Over the years there have been lots of proposals about other ways of doing this. Having expert witnesses who are . . . licensed isn't the word I'm looking for but, you know, who go through a review by an independent panel who are not affiliated with either party to the case," she said. "An expert review so that expert witnesses are accredited by independent bodies, maybe by professional associations. That's been one proposal that's been put forward a lot. Another proposal is that the judge or the Supreme Court should have an expert who reviews all the expert testimony, who would also be an independent person. That would at least give the expert evidence some sort of credibility and would not be subordinated to the winner/loser, who can make the most abstract kind of bamboozling argument in court . . . It would give expert testimony some kind of credibility whereas now it's you hire your expert and I'll hire mine and we'll waste a few million dollars. To what end? In my point of view, that's ot justice."

The non-Native academic saw a contradiction between the federal government's fiduciary obligation and that government awarding a million-dollar contract to argue against Native rights.

"It's a wonder that the courts seem so frequently, or at least occasionally, to not take account of the Crown's evidence. But I think one of the major issues is that by continuing to hire people who have very little credibility in their fields and who construct evidence in support of legal arguments, the pursuit of justice becomes subordinated to the adversarial, winner/loser mode of the legal system. Also, I think a big question is, what's become of the ruling in Delgamuukw that the oral history and the testimony of Aboriginal Elders should be given the same weight as other expert evidence?"

First Nations are trying to meet government halfway in breaching the cultural divide, but the government isn't budging, she said.

"The point is that First Nations are trying to develop systematic ways of presenting oral history and creating rules on how information can be presented, etc. But hiring somebody to just say, 'Oh well, stories change over the centuries.' Well, duh! If I could get paid $500 a day to do that, I'd retire.

"It's just like shooting frogs in a barrel. You can always pick away at things, but is that really the point? Isn't the point to find justice and ways of respecting oral history?" she asked. "Which doesn't mean being completely uncritical. First Nations themselves have said there's a difference between oral history and whatever any particular chief might say or not say. It's a systematic way of holding or transmitting knowledge in the same way that whatever any white guy on the street has to say can't be taken as the legitimated history. There are different systems of legitimating knowledge and First Nations have different systems, but they have systems. And I think the kinds of critiques . . . that rest on the fact that once upon a time they talked toan Indian that didn't agree with another Indian-well, so?"

University of Lethbridge Professor of Native American Studies Tony Hall agrees with Culhane's view of the Crown's use of expert witnesses. He, too, has seen relatively unaccomplished academics present testimony on behalf of the Crown.

"That's one of her main arguments," he said of Culhane's work, "that the Crown cultivates this class of transient experts and pays them really well. She noticed that on . . . could I say the Indian side, that their witnesses were tenured people. People who didn't need the money and, presumably, the people who are in a position to be objective. Whereas the other, on-contract folks, well, they need the contracts and the major employer pretty well makes it clear what type of information they're supposed to come up with or what their interpretation is supposed to be."

Old school anthropologists and historians tend to represent the government in court. Scientists who have come to grips with the mistakes and biases of the past tend to represent First Nations, Hall said. Old style anthropological methods treated Indigenous peoples as historical curiosities, as remnants of a dead culture. Native people found that attitude dismissed them and denigrated their cultures and, in recent years, anthropologists have examined the pro-European bias responsible for that approach and admitted their discipline helped in the dispossession of Indigenous peoples, he added.

"Anthropology has this history, the discipline sort of grew up in connection with imperialism. They would hire themselves out to the British Colonial Office and write about different Indigenous peoples in different parts of the world with the view of helping different empires to govern those people. Anthropology has worked hard to distance itself from that legacy, you know, good people within the discipline have owned up to the responsibility of that. In fact, now you'll get a certain amount of criticism that anthropology has so