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Delgamuukw : A Legal Straightjacket for Oral Histories?

Published online by Cambridge University Press:  18 July 2014

Val Napoleon
Val Napoleon
Affiliation:
School of Native Studies and Faculty of Law, University of Alberta, Edmonton (Alberta) Canada, muskwah@shaw.ca
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Abstract

The courts' continuing treatment of aboriginal oral histories as cultural artefacts is appallingly ethnocentric despite recommendations to consider the perspectives of aboriginal peoples and adapt the law of evidence. In this paper, I describe how Chief Justice McEachern of the British Columbia Supreme Court responded when a Gitksan witness, Gwaans, presented her adaawk as evidence of Gitksan land ownership and social organization. The Court was not able to hear or accept the adaawk as presented - a legal and political institution rather than a simple cultural artefact or chronological history record. The forms of expression, symbolism, and inter-connections between the worlds of spirits, humans, and animals proved to be beyond the grasp of the trial judge. Will the adaawk be treated any differently in future litigation? This paper addresses a number of concerns such as having the judiciary (1) apply a reductionist approach to the adaawk, and (2) evaluate the adaawk according to the rules of court instead of those inherent in the adaawk.

Résumé

C'est avec désolation qu'on constate l'ethnocentrisme continu des cours dans leur traitement des histoires orales autochtones comme artefacts culturels, en dépit des recommandations de tenir compte des perspectives des peuples autochtones et d'y adapter les règles de la preuve. Dans cet article, je décris comment le Juge en chef McEachern de la Cour suprême de la Colombie Britannique répondait à un témoin gitksan, Gwaans, lorsqu'elle présentait son adaawk comme preuve de l'organisation sociale Gitksan et de leur propriété sur les terres. La cour fut incapable d'entendre ni d'accepter l'adaawk tel que présenté—une institution juridique et politique plutôt qu'un simple artefact culturel ou le rapport d'une histoire chronologique. Les formes d'expression, le symbolisme et les liens entre les mondes des esprits, des humains et des animaux dépassaient la compréhension du juge. Est-ce que lors de litiges futures le adaawk sera traité différemment? L'article aborde un ensemble de questions inquiétantes, notamment le fait que le pouvoir judiciaire (1) adopte une approche réductionniste face au adaawk et (2) évalue l'adaawk selon les règles de la cour plutôt que celles propres au adaawk.

Type
Dossier: Aboriginal Rights Issues / Questions de droits autochtones
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 20 , Issue 2 , August 2005 , pp. 123 - 155
Copyright
Copyright © Canadian Law and Society Association 2005

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References

1 Delgamuukw v. The Queen (March 8, 1991) Smithers 0843 (B.C.S.C.) [Delgamuukw, (BCSC)], (transcript of the direct examination of Chief Gyoluugyat [Mrs. Mary McKenzie], the first Gitksan witness on the third day of the trial, 13 May 1987) at 190–91.

2 The adaawk are the ancient formal, collective, and owned oral histories of the Gitksan that form the key intellectual foundation for Gitksan law. The Wet'suwet'en equivalent is the kungax (spiritual songs and dances that connected the Wet'suwet'en to the land).

3 While I appreciate the danger of essentializing western law or presenting it as a static monolith, my focus herein is on the courts' prevailing treatment of aboriginal oral histories. Indeed it would be fascinating to contrast how the common law of the 1600s might treat oral histories given that at that time, customs with the force of law were unwritten. Such law could not be made or created by charter or Parliament “which are Acts reduced to writing (…) [when] it can be recorded and registered no-where but in the memory of people.” See “A Preface Dedicatory” (1604–1612) Report of Cases and Matters in Law, Ireland Reports, Court of Kings Bench, 1 at 3.

4 Delgamuukw (BCSC), supra note 1. While Chief Justice McEachern's decision is almost fifteen years old now, the adaawk specifically and oral histories generally are not considered as evidence of indigenous laws.

5 The most common current spelling is Gitksan.

6 Delgamuukw was brought by the Gitksan and their Athapaskan neighbours, the Wet'suwet'en.

7 The Delgamuukw case actually started in 1984.

8 Delgamuukw v. British Columbia (1993), 104 D.L.R. (4th) 470 (B.C.C.A.). This decision is erroneously cited as Uukw v. British Columbia.

9 Delgamuukw v. British Columbia, [1997] 153 D.L.R. (4th) 193 (S.C.C.) [Delgamuukw (SCC)].

10 Ayook means law, custom, or precedent.

11 Gitksan plaintiff, Gwis Gyen (the late Stanley Williams) cited in Monet, Don and Skanu'u, (Ardythe Wilson), Colonialism on Trial: Indigenous Land Rights and the Gitksan and Wet'suwet'en Sovereignty Case (Philadelphia: New Society, 1992) at 101.Google Scholar

12 Smith, Gavin, “He Holds Him With His Glittering Eye: Intellectuals and the Recovering of the Past” in Blue, Gregory, ed., Memory at the Margins: Essays in Anthropology and World History (Victoria: World History Caucus, 1995) 1 at 22Google Scholar [Smith].

13 Anderson, Margaret & Halpin, Marjorie, eds., Potlatch at Gitsegukla: William Beynon's 1945 Field Notebooks (Vancouver: University of British Columbia Press, 2000) at 35Google Scholar [Anderson & Halpin].

14 Cruikshank, Julie, The Social Life of Stories: Narrative and Knowledge in the Yukon Territory (Vancouver: University of British Columbia Press, 1998) [Cruikshank].Google Scholar

15 Ibid. at 162.

16 Marsden, Susan, Anderson, Margaret Seguin & Nyce, Deanna, “Tsimshian” in Magocsi, Paul R., ed., Aboriginal Peoples of Canada: A Short Introduction (Toronto: University of Toronto Press, 2002) at 264Google Scholar [Marsden, Tsimshian].

17 Wa, Gisday & Uukw, Delgam, The Spirit in the Land (Gabriola, BC: Reflections, 1989) at 7Google Scholar [Gisday Wa & Delgan Uukw].

18 The basic conceptual political unit in Gitksan society is the wilp (House). It is the House that is the territory–and fishing site–owning entity. Each Gitksan person is born into his or her mother's House, a matrilineal kinship group of about 150 persons who share a common ancestry. The term House originates from the historic long houses, although members of the same House did not actually live under the one roof. Rather, House members were and are widely scattered by marriage and occupation. House members also have important rights and responsibilities in other Houses by virtue of their roles as spouses and clan members. Each House belongs to one of the four larger clans that share a broader history–the Ganeda (Frog), Gisgahast (Fireweed), Lax Gibuu (Wolf), and Lax Skiik (Eagle).

19 The Feast is a complex political, legal, economic, and social institution in which the main business of the hosting House is transacted and formally witnessed by the guest Houses. Jurisdiction among the Gitksan is exercised through the Feast. In former times, Feasts were held for all other major legal, social, and political transactions such as marriage, shame, cleansing (to restore spirits after serious injury), restitution, birth, graduation (to celebrate achievements) naming, reinstatement (for Gitksan people who disobeyed the laws), coming of age, smoke (for obligations related to organizing settlement feasts), grave-stone raising, settlement (repayment of obligations arising from a death), pole raising, divorce, etc. The adaawk is usually recounted at a pole-raising feast. Anderson & Halpin, supra note 13 at ix.

20 Ibid. at 254.

21 Anderson, Margaret S. & Blumhagen, Tammy, “Memories and Moments: Conversations and Re-Collections” (1994) 104 BC Studies 85 at 96–97Google Scholar [Anderson & Blumhagen].

22 See generally, Marsden, Susan, “Defending the Mouth of the Skeena: Perspectives on Tsimshian Tlingit Relations” in Cybulski, Jerome S., ed., Perspectives on Northern Northwest Coast Prehistory (Hull: Canadian Museum of Civilization, 2001) 61 at 62–63CrossRefGoogle Scholar [Marsden, “Tsimshian Tlingit Relations”].

23 Anderson & Halpin, supra note 13 at 15.

24 Ibid. at 16.

25 Gisday Wa & Delgam Uukw, supra note 17 at 26.

26 Overstall, Richard, “Encountering the Spirit in the Land: ‘Property’ in a Kinship-Based Legal Order” in McLaren, John, ed., Despotic Dominion: Property Rights in British Settler Societies (Vancouver: University of British Columbia Press) at 40 [Overstall].Google Scholar

27 Anderson & Blumhagen, supra note 21 at 94.

28 Ball, Erica, “Using Adaawk” (April 2002) [unpublished, archived by the author in Hazelton, B.C.].Google Scholar For a critical argument about the Gitksan stories forming the basis for Gitksan pedagogy, see Smith, Jane, Returning the Feathers, (D. Thesis 2004) [unpublished, archived by the author in Hazelton, B.C.].Google Scholar Also see Smith, Jane, Returning the Feathers: Five Gitxsan Stories (Smithers: Creekstone Press, 2004).Google Scholar

29 Delgamuukw (BCSC), supra note 1 (transcript of the direct examination of Chief Gyoluugyat [Mrs. Mary McKenzie] 13 May 1987) at 187–88.

30 According to one report, there are upwards of 1,000 court cases dealing with aboriginal and treaty rights. This figure does not include the 200 residential school cases currently underway. See Barnsley, Paul, “White Paper Revisited? Assault on Rights” (2003) 20:11Windspeaker 14.Google Scholar

31 Baker Lake v. Canada (Minister of Indian and Northern Development) (1979), 107 D.L.R. (3d) 513 (FCA), online: QL [Baker Lake].

32 Ibid. at 21. In this decision, the Federal Court relied on the racist evolutionary standard set out by Re: Southern Rhodesia, [1919] A.C. 211 (P.C.) 233–34.

33 Yagalahl, (Dora Wilson), “It Will Always Be The Truth” in Cassidy, Frank, ed., Aboriginal Title in British Columbia: Delgamuukw v. The Queen (Lantzville, B.C.: Oolichan Books, 1992) 199 at 203.Google Scholar

34 Asch, Michael, “Errors in Delgamuukw: An Anthropologist Perspective” in Cassidy, Frank, ed., Aboriginal Title in British Columbia: Delgamuukw v. The Queen (Lantzville, B.C.: Oolichan Books, 1992) 221 at 239.Google Scholar

35 Ibid.

36 Delgamuukw (SCC), supra note 9 at 253. In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria: (1) the land must have been occupied prior to sovereignty, (2) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (3) at sovereignty, that occupation must have been exclusive. In clarifying its test, the S.C.C, determined that British sovereignty was conclusively asserted over British Columbia by the Oregon Boundary Treaty of 1846. Regarding the issue of exclusivity, the S.C.C, decided that shared exclusivity was acceptable. On the proof of occupancy question, the S.C.C, noted that aboriginal laws in relation to land (e.g., land tenure) that existed at sovereignty would be relevant to establishing the requisite occupation of lands.

37 For an in-depth analysis of the evidentiary issues relating to aboriginal oral histories, see: Buss, Karen E. & Johnson, Elizabeth, “Taking the Mystery out of Oral History: the Not-So-Unique Evidentiary Issues in Aboriginal and Treaty Rights Litigation” (Rupert's Land Colloquium, Oxford, England, 2002) [unpublished, archived with the authors in Edmonton, Alberta].Google Scholar

38 Roness, Lori Ann & McNeil, Kent, “Legalizing Oral History: Proving Aboriginal Claims in Canadian Courts” (2000) 39:3J. of the West 66 at 68Google Scholar [Roness & McNeil].

39 Delgamuukw (BCSC), supra note 1 at 45. For an explanation of “kungax,” see supra note 2.

40 Ibid. at 57.

41 Ibid.

42 Ibid. at 58–59. Ironically, McEachern C.J. has himself been incorporated into a Gitksan adaawk of the House of Hanamuxw. See Overstall supra note 26 at 30. A 1991 poleraising feast included a naxnox performance depicting the tin-eared Chief Justice McEachern issuing his Delgamuukw decision. Overstall explains that a group may have other spiritual relations that are not connected with territory and crests, but form powers that function independently and are represented in songs, dances, and masks that are called naxnox (at 29).

43 Ibid. at 58, 75.

44 Ibid. at 58.

45 The S.C.C, commented that at trial the plaintiffs claimed ownership and jurisdiction, but at the S.C.C., changed the claim to aboriginal title. The province argued that they were disadvantaged and prejudiced by the claim change. Also, the S.C.C. noted that the case was too complex for a higher court to sift through the record, therefore a new trial was warranted so that the oral histories could be considered according to the S.C.C. principles. See Delgamuukw (SCC), supra note 9 at 203, 240.

46 Ibid. at 236.

47 Ibid. at 239.

48 Ibid. at 231.

49 Ibid. at 232.

50 Choksi, Angali, “Aboriginal Oral Histories and Narratives in the Canadian Courts” (Paper presented at the Pacific Business & Law Institute Conference, September 2003) at 6 [unpublished, archived with the author at the law offices of Hutchins, Soroka, and Grant in Montreal]Google Scholar, [Choksi].

51 Ibid. at 73.

52 Roness & McNeil, supra note 38 at 73.

53 For example, see Mitchell v. M.N.R., [2001] 3 C.N.L.R. 122 (S.C.C.); R. v. Marshall, [1999] 3 S.C.R. 456; Lac La Ronge Indian Band v. Canada, [2000] 1 C.N.L.R. 245 (Sask. QB); R. v. Morris, [2002] 4 C.N.L.R. 222 (BCSC); R. v. Ironeagle, [2000] 2 C.N.L.R. 163 (Sask. Prov. Ct.); and R. v. Bretton, [1998] 3 C.N.L.R. 122 (Alta. QB).

54 There were eleven numbered treaties concluded between 1871 and 1923 in Canada.

55 Benoit v. Canada, [2002] F.C.J. No. 257 (FCTD), online: QL at para. 209 [Benoit (FCTD)].

56 In the 1970s, approximately 200 interviews were conducted with elders concerning Treaty 8 as part of the Treaty and Aboriginal Rights Research (TARR) project (a research initiative of the Indian Association of Alberta).

57 Benoit (FCTD), supra note 55 at para. 211.

58 Report of Commissioners for Treaty No 8, 22nd September, 1899, excerpted in Borrows, John & Rotman, Leonard, Aboriginal Legal Issues: Cases, Materials & Commentary, 2nd ed. (Markham, Ont.: Butterworths, 2003) at 148–49.Google Scholar

59 Ibid.

60 Benoit (FCTD), supra note 55 at para. 212.

61 Benoit v. Canada, [2003] F.C.J. No. 923 (F.C.A.) online: QL [Benoit (FCA)].

62 The Crown's expert witness, anthropologist Dr. von Gernet, described the TARR interviews (see supra note 56) as the worst oral history project that he had ever seen. The TARR project included interviews with elders from Treaty 6 and 7, with isolated peoples that entered the treaties later, and with people who said they did not know anything. Other interviews were specific to reserve boundaries, resource rights, and mineral rights. See Choksi, supra note 50 at 13.

63 Ibid. at 16. The Court also considered position papers that were drafted in the 1970s regarding the Indian Act, and which did not mention taxation or exemption.

64 Ibid. at 14.

65 Benoit (FCA), supra note 61 at paras. 103–104.

66 Ibid. at para. 104.

67 Choksi, supra note 50 at 15.

68 Ibid. at 16.

69 Benoit (FCA), supra note 61 at para. 111.

70 Ibid. at para. 113.

71 Ibid. at para. 114.

72 For example, see the curricula materials produced by the Tenimgyet and the Gitwangak Education Society from 1992 to 1995 [unpublished, archived with the Gitwangak Education Society, Gitwangak, B.C.]. Also see generally Delgamuukw (BCSC), supra note 1 (transcript of the cross-examination of Chief Gyoluugyat [Mrs. Mary McKenzie] 13 May 1987 and the transcript of the evidence of Chief Tenimgyet [Mr. Art Mathews]) 18 March 1988.

73 Anderson & Halpin, supra note 13 at 34.

74 See generally, Cruikshank, supra note 14 and Overstall, supra note 26. Also see Daly, Richard, Our Box Was Full: An Ethnography for the Delgamuukw Plaintiffs (Vancouver: University of British Columbia Press, 2005)Google Scholar and Fuller, Lon, “Human Interaction and the Law” (1969) 14 Am. J. Juris. 1.CrossRefGoogle Scholar

75 For a critical analysis several other cases that dealt with aboriginal oral histories (i.e., Newfoundland v. Drew, [2001] 2 C.N.L.R. 256 (N.S.C.A.) and Bernard v. The Queen, [2003] 55 (N.B.C.A.), see Choksi, supra note 50.

76 [1999] 2 S.C.R. 456.

77 Such unwarranted optimism is illustrated by Howes, David, “Introduction: Culture in the Domains of Law” (2005) 20:1C.J.L.S. 9CrossRefGoogle Scholar, who writes (at 18), “The Supreme Court of Canada decision in the Delgamuukw affair ushered in a highly creative and volatile period in Canadian jurisprudence regarding the legal definition of Aboriginal cultural practice and title–a period in which orality became the new medium and ‘distinctness’ the new bar.”

78 The transcript of Gwaans' direct and cross examinations is over 1,000 pages. There are over 25,000 pages of Delgamuukw trial transcripts. Combined transcripts, expert witness reports, and other documentation total over 50,000 pages.

79 Gwaans actually presented two adaawks to the Court.

80 Delgamuukw (BCSC), supra note 1 (transcript of the direct examination of Gwaans [Mrs. Olive Ryan] 10 June 1987) at 1008.

81 See Anderson & Halpin, supra note 13 at 41, 16. “[A] pole is a carrier of social, spiritual, territorial, and economic rights and privileges.” The carved poles display the crests or ayub–the specific privileges derive from the adaawk and are owned cultural property. According to Gwaans, if a House does not have a pole raised in their village, the other chiefs will not recognize the House. Without a pole, the House is in danger of losing its dax gyet (power). See Delgamuukw (BCSC), supra note 1 (transcript of the direct examination of Gwaans [Mrs. Olive Ryan], 10 June 1987) at 1049, 1051.

82 For simplicity, I will refer to the House by the Head Chiefs name-in this case, Hanamuxw. Many Houses also have another name, but increasingly it is the practice to refer to the House by the Head Chiefs name. The actual name of Hanamuxw's House is Xsi an woowax. See Delgamuukw (BCSC), supra note 1 (transcript of the direct examination of Gwaans [Mrs. Olive Ryan], 10 June 1987) at 1048.

83 In the House of Hanamuxw, Gwaans is one of three Wing Chiefs, Hanamuxw is the Head Chief.

84 A two-week series of pole raisings, feasts, and associated activities was documented at that time by William Beynon, and his notes were recently published. See Anderson & Halpin, supra note 13. Gitksan people receive several names over their lifetime. These are in addition to the naxnox names that are also held. Gwaans is a Wing Chief's name, and it was Olive Ryan's third and last name.

85 Hanamuxw testified later in the trial.

86 Delgamuukw (BCSC), supra note 1 (transcript of the direct examination of Gwaans [Mrs. Olive Ryan] 10 June 1987) at 1033.

87 Ibid. (transcript 11 June 1987) at 1093–94).

88 Ibid. at 1052.

89 lbid. at 1097.

90 The wil ‘na t’ ahl Houses share an earlier adaawk and are closely aligned. The father's side is also very important to each Gitksan person because it accords specific responsibilities and privileges. The Houses on the father's side are called the wilxsi'witxw.

91 Delgamuukw (BCSC), supra note 1 (transcript of the direct examination of Gwaans [Mrs. Olive Ryan], 10 June 1987) at 1029.

92 Ibid. (transcript 11 June 1987) at 1110–17.

93 Ibid. (see generally transcripts 16–18 June 1987).

94 Ibid. (transcript 16 June 1987) at 1319.

95 Ibid. at 1348–49.

96 Ibid. (transcript 18 June 1987) at 1438–40.

97 Delgamuukw (SCC), supra note 9 at para. 186.

98 Delgamuukw (BCSC), supra note 1 (transcript of the direct examination of Chief Antgulilibix [Mrs. Mary Johnson] 28 May 1987) at 703.

99 Ibid. at 708.

100 Ibid. at 738–39.

101 Cruikshank, supra note 14 at 52.

102 Ibid. at 64.

103 Delgamuukw (SCC), supra note 9 at 232.

104 Borrows, John, “Listening for a Change: The Courts and Oral Tradition” (2001) 39:1Osgoode Hall L.J. 1 at 24 [Borrows].Google Scholar

105 Ibid. at 26.

106 Delgamuukw (SCC), supra note 9 at 256.

107 Delgamuukw (BCSC), supra note 1 (transcript of the cross-examination of Chief Gyoluugyat [Mrs. Mary McKenzie] 13 May 1987) at 207.

108 Ibid. (transcript 25 May 1987) at 533–34.

109 Ibid. (transcript 28 May 1987)at 715 [emphasis added].

110 Kew, Michael, “Anthropology and First Nations in British Columbia” (1993) BC Studies 78 at 79.Google Scholar

111 Delgamuukw (BCSC), supra note 1 (transcript of Chief Gyoluugyat [Mrs. Mary McKenzie] 28 May 1987) at 720 [emphasis added].

112 Ibid. (transcript 21 May 1987) at 455 [emphasis added].

113 Smith, supra note 12.

114 For an account of Gitksan land tenure, see Overstall, supra note 26.

115 Katie Ludwig, Gitksan language teacher, personal interview (April 16, 2003). According to Ms. Ludwig, the form for adding to the adaawk is to say eegyuun (and now) while speaking at the Feast before proceeding to recount the adaawk's addition. Also see Anderson & Halpin, supra note 13 at 97. A naxnox called the Japanese Warrior was performed at the 1945 feast series in Gitsegukla.

116 Anderson & Blumhagen, supra note 21 at 94.

117 Ball, supra note 28.

118 See generally Borrows, supra note 104.