Oral tradition becoming a hard sell in the Canadian courts

Canada and the provinces are, “waging a war against Aboriginal oral tradition in the courts,” said lawyer Paul Williams, “and it’s part of the larger war and, yes, it’s part of land and resources and survival. It always is.”

Williams spoke on the state of oral tradition in Canadian law at an event organized by the University of Toronto Aboriginal Law Program on Jan. 8. Described as a “great warrior of the law”, Williams has represented Indigenous nations and communities, including the Haudenosaunee and the Anishinaabeg, for the last 40 years.

Indigenous people face enormous obstacles using oral tradition in court, said Williams, the basis of which is the huge divide between Aboriginal cultures, values, languages and norms, and the European worldview that is the foundation of Canada’s court system.

“You’re dealing with stuff that’s 400 years old,” he said. “How do you get that across? And across not just time, but culture and language.”

The courts have been steadily placing standards and conditions on oral tradition, Williams said. In the Temagami case in the 1980s, Chief Gary Potts testified about the oral tradition of the community. The judge did not accept Potts’ evidence, said Williams, for a number of reasons.

Potts, who was in his early forties, was too young to be a custodian of oral tradition. His mother was white. He didn’t speak Ojibway fluently and there were older people available.
“That’s the first time that a court that I know of in Canada set a series of qualifications on who can produce oral tradition evidence,” Williams said.

In the 1980s, the Benoit case, when it went to the court of appeal, “added a new wrinkle to oral tradition testimony,” Williams said. To be part of oral tradition, the information can’t be transmitted privately, the court said.

“It has to be transmitted in a public manner because that way it can be scrutinized,” said Williams, presumably by mainstream experts like anthropologists.

In anticipation of using oral tradition in court, communities should be making every effort to record elders’ evidence on video, Williams wrote in an email following up his talk.

“Have them begin by saying that they’ve agreed the information should be recorded because they’re concerned they might die before it can be used,” he said. “Doing this right makes the evidence ‘in contemplation of death’ which is an exception to the hearsay rule… Let people talk. It’s always worth having more than you need rather than miss something because you were in a hurry… And people need to tell their stories.”

Make sure the knowledge gets passed on, Williams said, and it might be worth starting a tradition of public performance to do this. There is some knowledge, however, that is none of the court’s business, for example, knowledge that belongs to secret societies and medicine societies.

“Putting a court case together is like doing a jigsaw puzzle,” Williams wrote, “and there are many kinds of pieces, and oral history is an important kind but can’t be relied upon by itself.”

Oral tradition fits into a tapestry that includes primary historical documents, books and articles written by academics, songs, places, and wampum belts are powerful evidence, Williams wrote.

“Oral tradition’s legitimacy is enhanced as it is coupled with other kinds of evidence that corroborate it,” he said. “The more times we show that the oral tradition confirms other facts, or enhances them, the more credibility we give oral tradition in general.”

One of the things Williams learned from working with traditional chiefs, he told the audience, is their understanding that the relationship between First Nations and the Crown has three fundamental elements – respect, trust and friendship.

Respect comes first, he said. It’s a prerequisite. He thinks there ought to be standards of conduct for the Crown in dealing with cases where people are struggling to put their culture, their history and their traditions in front of a judge in a way that the judge can accept. The judge is already having problems crossing that bridge into a different culture, a different language, a different time, and then struggling just to be able to believe.
It’s not up to the Crown, Williams said, to be disrespectful and tell the judge ‘what these people are saying is not the truth. It’s just what they believe and they don’t have the qualifications to be credible.’

When we get into court, the issue really gets down to that first step that the traditional chiefs told him about.

“It’s a matter of respect.”