Aboriginal Law, Indigenous Law, Oral History, Evidence, Truth and Reconciliation
Oral history is the only past record in many Aboriginal groups in Canada. In 1997, in Delgamuukw, the Supreme Court of Canada recognized that the strict approach to evidence law with respect to oral history had to be relaxed for Aboriginal peoples to be able to pursue claims to Aboriginal rights or Aboriginal title. This was a necessary element of the attempt to achieve reconciliation between Aboriginal and non-Aboriginal peoples. Yet, while evidence law has become increasingly n exible when it comes to accommodating Aboriginal peoples, courts have struggled with how to value oral traditions. A review of the case law since Delgamuukw reveals that courts typically m nd oral testimony evidence admissible but give it little weight. They tend to favour written records when they conn ict with oral testimony evidence. The Eurocentric preference towards written records is undermining the potential for reconciliation.
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Jimmy Peterson, "Judicial Treatment of Aboriginal Peoples’ Oral History Evidence: More Room for Reconciliation" (2019) 42:2 Dal LJ 484.