Witness to the Human Rights Tribunals: How the System Fails Indigenous Peoples

Review By Daniel L. Boxberger

September 12, 2023

BC Studies no. 219 Autumn 2023  | p. 130-132

Witness to the Human Rights Tribunals is the latest in a long list of Bruce Miller’s publications on First Nations and Native Americans, and their experiences with the legal system, a topic which Miller has more experience then any other academic anthropologist working in British Columbia and Washington State. Divided into two parts, Part 1: Anthropology and Law focuses on the role of the anthropologist as expert witness in Canada and the US. Part 2: The Tribunal examines case studies of First Nation cases before the BC Human Rights Tribunal. In both parts Miller utilizes his skills as an anthropologist to lay bare the inherent biases in First Nations experiences with the courts through his own participation and observation.

In Canada and the US “Indians” constitute a legal category possessing Aboriginal and treaty rights that other citizens do not. Confusion over what these rights entail has been the driving force of most litigation involving First Nations from the beginning of North American colonization. Miller points out that for anthropologists of his (and my) generation who work in Indigenous communities an overriding concern has been to understand and aid the movement towards Indigenous sovereignty and autonomy (page 16), and to rectify the role our discipline has played in the colonial process.

Anthropology and Law gives a brief history of colonialism and law in Canada and the US originating in the Royal Proclamation of 1763. After the Royal Proclamation both countries recognized a nation to nation relationship with the Indigenous population, a relationship that was increasingly diluted in the nineteenth century by the gradual (or in the US, not so gradual) displacement of First Nations through conquest and treaties. British Columbia stands apart from this process because, except for the Vancouver Island Douglas treaties, BC did not start the treaty process until 1991.

Miller outlines the pitfalls for the academic who engages in expert witness testimony. First, writing reports for litigation is not highly regarded as an academic pursuit. The reports may be held up for years in the courts and thereby the young academic is restricted from publishing, a necessary requirement for tenure and promotion. Second, expert witnesses are retained to provide an opinion for the court, not the client. Expert witnesses in British Columbia must abide by the Rules of Court. Therefore the expert witness must refrain from appearing as an advocate of Indigenous rights, a near impossible task since advocacy is a necessary requisite for gaining a community’s trust, a process which takes years to build. Miller discusses these pitfalls in some detail and makes suggestions as to how the role of the expert witness might better serve the court and the client. Miller also delves into the questions of what should lawyers teach anthropologists, how can anthropologists better serve their clients by educating the court over what he calls “dueling epistemologies,” and how can anthropologists assist with the ongoing struggle over the legitimacy of oral history as evidence? Miller discusses each of these with much personal insight.

The Tribunal details the experience of First Nation litigants with the BC Human Rights Tribunal and focuses on two cases Miller was involved in. From his perspective the anthropologist can gain a stronger view of how anthropologists and others might better enter their ideas into the legal system and achieve more understanding of the legal problems facing Indigenous people by looking at cases involving individuals in tribunals as opposed to cases involving First Nations’ collective legal battles over Indigenous rights to land, resources and self-governance.

Unfortunately the number of Indigenous decisions rendered by the BC human rights tribunal are few, averaging just seven a year from 1997 to 2014 (page 108). The major question Miller asks is “why has the tribunal generally failed First Nations?” The two case studies involve a UBC professor who was denied tenure and a woman who suffered physical abuse at the hands of the Vancouver Police Department.

Miller describes his observations of the tribunal McCue v. University of British Columbia, where June McCue brought a case against the university following her denial of tenure and promotion. McCue, a lawyer, argued that the denial was discriminatory because she met the terms of tenure in an Indigenous manner. Miller participated in the case as “anthropologist-expert” and “anthropologist-ethnographer.” Using excerpts from his field notes he details the pitfalls he described in Part 1, such as the issues of the qualification of experts, the diminution of evidence, and the question of who controls anthropological field notes. McCue lost the case, a loss Miller attributes to “symbolic violence” at the hands of the witnesses for UBC who “manifested a denial of Indigenous culture and the presence of Indigenous people at the university, despite saying otherwise” (page 159).

In Menzies v. Vancouver Police Department, Clara Menzies (a pseudonym) happened upon her teenage son as he was being arrested. When she attempted to talk with him the police carried her away from the scene and threw her to the ground. Miller submitted an expert report and appeared as expert witness in this hearing. Despite winning the case, the trauma Menzies experienced continued after the incident. The mistreatment from people who were supposed to be there to protect her and her family fostered a mistrust that could place her in danger in the future if she needs police assistance.

This book is a masterful analysis of the ongoing struggle over Indigenous litigation in Canada and the US, written by one of the leading experts on the subject. Anyone involved in or interested in Aboriginal rights and reconciliation will benefit from this work.