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Digest of the Week — Admissibility of Oral History Evidence


Blood Band v. R. |
2015 CarswellNat 6179 |
Federal Court


Aboriginal law | Practice and procedure | Evidence | Miscellaneous

Plaintiff band members of B Tribe brought action claiming that land provided to it by Canada was less than that agreed upon under provisions of Treaty 7 — B Tribe sought order confirming that action would be heard in three phases — In Phase I, court would receive evidence of oral traditions of B Tribe and oral history evidence of Elders; in Phase II, court would receive evidence of Canada and any rebuttal evidence; and in Phase III, court would deal with remedy, if necessary — Both parties and court were agreeable to that manner of proceeding — Agreement to have Elder testimony heard earlier than remainder of trial evidence was made because Elders proposed to be called as witnesses were aging and some might not be available or able to testify later — B Tribe brought motion seeking confirmation of three phases — Canada brought cross-motion seeking order setting out protocol for hearing of Phase I evidence — Canada's protocol included will say statements by elders — B Tribe submitted that requiring will say statements created entirely new process that is not part of civil trial conducted in accordance with law of evidence and rules of court — Motion and cross-motion granted — This action was not like other civil cases — In other civil actions, evidence of Elders would not be admitted or, if admitted, would be given little weight, as it was hearsay — In this action, as in other aboriginal litigation, evidence was prima facie admissible because B Tribe does not have tradition of written history; it has oral tradition — Unlike usual civil action, there had been no examination for discovery of B Tribe's representatives, and thus Canada had no opportunity to ask questions to learn what evidence B Tribe proposed to offer through its Elders to support claim — Federal Court's Aboriginal Litigation Practice Guidelines, developed after extensive consultation with all stakeholders, specifically envisages that there is to be disclosure prior to Elder testifying — Court has jurisdiction to order that party provide will say statements and indeed, it has done so previously in aboriginal matters — B Tribe ordered to prepare and deliver will say statements to Canada respecting Elders' testimony.
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