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Oral History on Trial: Recognizing Aboriginal Narratives in the Courts

By Bruce Granville Miller

November 4, 2013

Review By Bruce Granville Miller

Telling It To The Judge and Oral History On Trial tackle the problematic reception by Canadian courts of ethno-history and oral history presented by First Nations and their experts. However, Arthur Ray and Bruce Miller have chosen very different ways to present their material. The contrast is aptly demonstrated by the opening sentence of each book. Ray, the historian, tells a story: “In 1985 Calgary lawyer Ken Saroszik phoned me at the University of British Columbia and asked me if I would be willing to appear as an historical expert in a treaty rights case in Alberta (Regina v. Horseman 1986)” (3). Miller, the anthropologist, challenges the reader to think in new ways: “At one time, in conducting their legal affairs, the ancestors of the people who created English common law depended on the performance of actions that appealed to the human senses of touch, smell, hearing, and taste” (1). As a result, Oral History On Trial is informative and entertaining, while Telling It To The Judge is not such an easy read, but definitely worth the effort.

In the process of recounting his adventures in the archives and in court, Ray introduces the reader to the arcane pleasures and frustrations of this rarefied world. The Regina v. Horseman case marked his debut appearance as an expert witness. His historical report and testimony on behalf of the defendant First Nation were accepted by the trial judge (pleasure), but the Supreme Court of Canada reversed her decision on other grounds (frustration). The second chapter presents his version of the oft-told tale of the viciously adversarial aboriginal title case, Delgamuukw v. Regina (1991). He then presents a detailed account of his extensive research on a number of Ontario fishing claims, none of which came to trial. This chapter provides an excellent primer for the aspiring researcher. Three chapters are devoted to his involvement in a series of ground-breaking Metis claims, beginning with Regina v. Powley (1998), and ending with Regina v. Hirsekorn and Jones (2010).

In each chapter Ray provides illuminating extracts from his frustrating courtroom exchanges with Crown counsel and judges. In the concluding chapter Ray ruminates on his role as “teacher,” attempting to educate a single “student,” the trial judge, in the unusual scholastic setting of the courtroom. He concludes that judges, bound by the manifold rules of court, make unpredictable if not downright contrary students. An excellent example of this is provided in Ray’s chapter on the case of Victor Buffalo v. Regina (2005). Ray and seven colleagues presented evidence that the Samson Cree did not understand Treaty 6 to include a cession of their territory to the Crown, while the two Crown experts, Thomas Flanagan and Alexander von Gernet, presented evidence to the contrary. The judge preferred the evidence of the Crown experts and rejected the claim. To Ray, this decision is inexplicable.

Bruce Miller’s book is also much concerned with a perceived bias of the courts toward the evidence of Crown experts. However, the problems experienced by First Nations with respect to the treatment of their ethno-history pale in comparison to the wall of resistance encountered in their attempts to have their oral history taken seriously by the courts. As thoroughly documented by Miller, judges do not seem to know what to make of oral history, especially when it comes to weighing it in the scale against more familiar forms of evidence. He discusses why this is so, and offers possible remedies.

Miller’s first chapter provides useful background, mostly from an anthropological perspective. In Chapter Two he contrasts the points of view of “tribal archivists” and “Crown researchers”. Chapter Three features the response of Sto:lo “oral historian” Sonny McHalsie to the “problem of contamination” as raised by Crown experts (97). This is perhaps the best and most original section of the book. For example, McHalsie responded to the issue of “contamination from reading academic sources” as follows: “When I read Duff or Hill-Tout [each a well-known ethnographer], I’m not reading what he wrote, but what the person who told him said. I’m not in Duff’s mind, but that of the persons who told him” (97). In a neat turnabout, McHalsie goes on to highlight the problem of distortion by academics. The central task undertaken by Chapter Four is a detailed dismemberment of a typical report prepared by star Crown expert, Alexander von Gernett. The final two chapters present various proposals for “the way forward,” but according to Miller, “Ultimately, the strongest approach is to accept qualified oral historians as experts in their own right” (149). Miller acknowledges that this will require a much broader understanding, acceptance, and incorporation of indigenous law than the courts are at present prepared to consider. Miller’s work is important for the contribution he makes to the complex task of finding new ways for First Nations and the Canadian courts to work together.

In sum, Ray’s book is retrospective and Miller’s prospective. Telling It To The Judge provides a rare first-hand account of the historical researcher’s lot, and a welcome introduction to the nitty-gritty of archival research, written in a style which should attract a wide audience. Oral History On Trial is more academic in style, and will be of most interest to those already working in the field of Aboriginal rights litigation. Both authors are inspiring for their long-standing commitment to the search for justice by First Nations in Canada, and for their courage in raising uncomfortable questions about the ability of the Canadian courts to see that justice is done.

Telling it to the Judge: Taking Native History to Court
By Arthur J. Ray
Montreal and Kingston: McGill-Queen’s University Press, 2011. 304pp, $27.95 paper

Oral History on Trial: Recognizing Aboriginal Narratives in the Courts
By Bruce Granville Miller
Vancouver: UBC Press, 2011. 212pp, $29.95 paper