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Supreme Court of British Columbia
Chief Justice
17 July 1987
Casenote by Greg McIntyre
The Chiefs of two Indian Nations situated in the Province of British Columbia are seeking declarations in the Supreme Court of Canada.
(a) That they own and have jurisdiction in their territory including rights to manage the lands and natural resources and govern the territory in accordance with their laws and institutions.
(b) That the rights of the Queen in Right of the Province of British Columbia to lands, minerals and royalties is subject to the rights of the Indians.
(c) That the Provincial Crown cannot interfere with the Indians' rights or authorise the use of their lands or resources within their territory without their consent.
They also seek damages for wrongful appropriation of their lands.
In the course of what the Chief Justice describes as "this massive action for aboriginal title" the Plaintiffs are obliged to establish their case by testimony of declarations by deceased persons of many details of their history, laws, traditions and culture, and its antiquity.
The Court considered whether this evidence fits within an exception to the rule against admissibility of hearsay evidence.
The Court ruled that the relevant oral history of a people can be given in evidence under an exception to the Hearsay Rule for it could not otherwise be proven, that is, it satisfies the test of necessity.
The Court ruled that there was no distinction between history, on the one hand and tradition, laws, culture and social organisation on the other.
The Court, however, drew a distinction between historical and "anecdotal" evidence. The Chief Justice justified this distinction by reference to the test of trustworthiness applied to reputation evidence in Wigmore (Chadbourne Revision, Vol. 5, c.55 p.545).
The Court drew a parallel between its distinction and Wigmore's distinction between "general history" or "facts of a general and public nature" on the one hand and details or particular facts of historical events on the other.
This ruling of the Court was made in July 1987, part-way through the hearing of evidence, which will proceed again in November 1987 or January 1988. The procedure to be adopted by the Court will be to receive questionable evidence with a view to determining admissibility at the conclusion of the trial.
The Canadian case of Delgamuukw parallels the Mabo case now before the High Court of Australia. In Mabo the trial judge was proposing to rule in the alternative as to whether a particular piece of hearsay evidence was admissible under any of the various well-known exceptions to the hearsay rule. The Judge was also poised to consider the Plaintiff's contention that there is an exception relating to "traditional evidence" by reference to precedent in various countries adopting the English legal system. The Supreme Court of Canada seems to accept this kind of exception by reference to the rationale of the hearsay rule rather than strict adherence to the precedent of exceptions.
The parties in Mabo have agreed to adjourn the trial of the proceedings until after the Plaintiff's demurrer, dealing with all the essential threshold questions of law, is heard by the Full Bench of the High Court on 8 March 1988. This course was adopted at least in part because it was recognised that the question of the existence of a traditional evidence hearsay exception is inextricable from the question of whether traditional rights can exist as part of the Common Law applicable in Australia.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1987/63.html