Oral Aboriginal History Evidence

From Criminal Law Notebook

General Principles

The laws of evidence must accommodate oral history evidence of aboriginal peoples in order to give it "equal footing" with other types of historical evidence such as historical documentation.[1] Assessment of whether to accept the evidence is on a "case-by-case" basis.[2]

Assessment of reliability should not be on a community-based standard but must be objective.[3] Evidence that "creates only suspicion, surmise or conjecture is, of course, insufficient."[4]

  1. Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 SCR 1010 at para 87 ("Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents. This is a long-standing practice in the interpretation of treaties between the Crown and aboriginal peoples ... given that most aboriginal societies “did not keep written records”, the failure to do so would “impose an impossible burden of proof” on aboriginal peoples, and “render nugatory” any rights that they have...")
  2. Delgamuukw, ibid. at para 87
  3. Canada v. Benoit, 2003 FCA 236 (CanLII) per Nadon JA
  4. Benoit, ibid. at para 25