UBC profs say Aboriginal oral history misunderstood

Recognized by the Supreme Court of Canada as a legitimate form of evidence in 1997, Aboriginal oral history is too often cast aside as an inferior or even illegitimate form of proof in the Canadian justice system, according to scholars at the University of British Columbia.

It's that lack of information and deep-seated bias towards Aboriginal culture and ways of knowing that they hope to address in "Aboriginal Oral Histories in the Courtroom: More than a matter of evidence" a panel discussion at the University on Wednesday, February 8.

"It's controversial because we tend to regard law as written documents. The second thing is that lawyers get nervous about it because the idea of hearsay: other than experts, people aren't allowed to talk about things they haven't heard or seen (first hand), but oral history evidence seems to, at first glance for people who aren't familiar with the idea, violate that bedrock of common law system. So people are upset about it," explains Bruce Miller, a professor of Anthropology at UBC and author of Oral History on Trial: Recognizing Aboriginal Narratives in the Courts, who will be speaking on the panel.

Oral history's use in the court system goes back decades, Miller says, but it came to prominence in the 1991 Delgamuukw v. British Columbia case when judge Allan McEachern ruled Aboriginal oral history was inadmissible evidence. The Gitxsan and Wet'suwet'en defendents took the case all the way to the Supreme Court of Canada where in 1997 a final decision was made that oral histories are just as important and acceptable as evidence as written history.

Despite the ruling, Linc Kesler, director of UBC's First Nations House of Learning and chair of the First Nations Studies Program at the University, says oral history is still misunderstood in the courts.

"(The Supreme Court's) decisions gave legal status to oral testimony, but it didn't really define what that status was in any kind of detail," says Kesler, who will be moderating Wednesday's discussion. "Although there's been a general recognition that oral history must be taken seriously in court processes, how to do that and how to evaluate it is an ongoing question."

Other speakers on the panel include Sophie McCall, a Simon Fraser University English professor and author of First Person Plural: Aboriginal Storytelling and the Ethics of Collaborative Authorship, and Darlene Johnston, an associate professor of law at UBC.

Although tickets for the discussion itself have been sold out, those interested in learning more about how oral history plays a role in current land claims negotiations, and the relationship between the Aboriginal cultural system of oral history with the westernized court system can follow a live Twitter feed under @UBCPress #UBCOralHistory or watch video of the event posted on Youtube in the days following.

The discussion, says Miller, will only be a part of a complex challenge to see oral history given its due in the Canadian system, however.

"I think it's part of the ongoing conversation on this topic, and making it more visible, and get people from different disciplines engaged (at the panel), we're giving it a little bit more visibility," he told The Tyee.

"I was invited back to Ottawa to talk to the department of justice about this, and there are many of these conversations going on now, and it takes this: we need to move the venue out of the courtroom, into a place where we could talk productively."

Katie Hyslop reports on education and other topics for The Tyee.

By Katie Hyslop February 6, 2012