Do you have a legal opinion that supports Merv's column regarding the End of Delgamuukw? I'm a freelance journalist and founding editor of . . .
We have no legal opinions either way. We have studied Delgamuukw extensively and express this opinion based on the appelate courts statements regarding the presentation and acceptance of oral evidence, that which was presented in the Haisla and Delgamuukw trials.
Here is some text from the Delgamuukw appeal ruling respecting these matters;
(Remember Delgamuukw case was a traditional land issue and the Haisla case was a traditional court issue. Both required oral historical evidence of the existance of such.) 96 The trial judge, however, went on to give these oral histories no independent weight at all. He held, at p. 180, that they were only admissible as "direct evidence of facts in issue . . . in a few cases where they could constitute confirmatory proof of early presence in the territory". His central concern that the adaawk and kungax could not serve "as evidence of detailed history, or land ownership, use or occupation". I disagree with some of the reasons he relied on in support of this conclusion.
97 Although he had earlier recognized, when making his ruling on admissibility, that it was impossible to make an easy distinction between the mythological and "real" aspects of these oral histories, he discounted the adaawk and kungax because they were not "literally true", confounded "what is fact and what is belief", "included some material which might be classified as mythology", and projected a "romantic view" of the history of the appellants. He also cast doubt on the authenticity of these special oral histories (at p. 181) because, inter alia, "the verifying group is so small that they cannot safely be regarded as expressing the reputation of even the Indian community, let alone the larger community whose opportunity to dispute territorial claims would be essential to weight". Finally, he questioned (at p.181) the utility of the adaawk and kungax to demonstrate use and occupation because they were "seriously lacking in detail about the specific lands to which they are said to relate".
98 Although he framed his ruling on weight in terms of the specific oral histories before him, in my respectful opinion, the trial judge in reality based his decision on some general concerns with the use of oral histories as evidence in aboriginal rights cases. In summary, the trial judge gave no independent weight to these special oral histories because they did not accurately convey historical truth, because knowledge about those oral histories was confined to the communities whose histories they were and because those oral histories were insufficiently detailed. However, as I mentioned earlier, these are features, to a greater or lesser extent, of all oral histories, not just the adaawk and kungax. The implication of the trial judge's reasoning is that oral histories should never be given any independent weight and are only useful as confirmatory evidence in aboriginal rights litigation. I fear that if this reasoning were followed, the oral histories of aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system, in contradiction of the express instruction to the contrary in Van der Peet that trial courts interpret the evidence of aboriginal peoples in light of the difficulties inherent in adjudicating aboriginal claims.
(c) Recollections of Aboriginal Life
99 The trial judge also erred when he discounted the "recollections of aboriginal life" offered by various members of the appellant nations. I take that term to be a reference to testimony about personal and family history that is not part of an adaawk or a kungax. That evidence consisted of the personal knowledge of the witnesses and declarations of witnesses' ancestors as to land use. This history had been adduced by the appellants in order to establish the requisite degree of use and occupation to make out a claim to ownership and, for the same reason as the adaawk and kungax, is material to the proof of aboriginal title.
100 The trial judge limited the uses to which the evidence could be put. He reasoned, at p. 177, that this evidence, at most, established "without question, that the plaintiff's immediate ancestors, for the past 100 years or so" had used land in the claimed territory for aboriginal purposes. However, the evidence was insufficiently precise to demonstrate that the more distant ancestors of the witnesses had engaged in specific enough land use "far enough back in time to permit the plaintiffs to succeed on issues such as internal boundaries". In the language of Van der Peet, the trial judge effectively held that this evidence did not demonstrate the requisite continuity between present occupation and past occupation in order to ground a claim for aboriginal title.
101 In my opinion, the trial judge expected too much of the oral history of the appellants, as expressed in the recollections of aboriginal life of members of the appellant nations. He expected that evidence to provide definitive and precise evidence of pre-contact aboriginal activities on the territory in question. However, as I held in Van der Peet, this will be almost an impossible burden to meet. Rather, if oral history cannot conclusively establish pre-sovereignty (after this decision) occupation of land, it may still be relevant to demonstrate that current occupation has its origins prior to sovereignty. This is exactly what the appellants sought to do.
107 The trial judge's treatment of the various kinds of oral histories did not satisfy the principles I laid down in Van der Peet. These errors are particularly worrisome because oral histories were of critical importance to the appellants' case. They used those histories in an attempt to establish their occupation and use of the disputed territory, an essential requirement for aboriginal title. The trial judge, after refusing to admit, or giving no independent weight to these oral histories, reached the conclusion that the appellants had not demonstrated the requisite degree of occupation for "ownership". Had the trial judge assessed the oral histories correctly, his conclusions on these issues of fact might have been very different.
108 In the circumstances, the factual findings cannot stand. However, given the enormous complexity of the factual issues at hand, it would be impossible for the Court to do justice to the parties by sifting through the record itself and making new factual findings. A new trial is warranted, at which the evidence may be considered in light of the principles laid down in Van der Peet and elaborated upon here. In applying these principles, the new trial judge might well share some or all of the findings of fact of McEachern C.J.
This new decision by Punnett stands with McEachern.
One could be certain to find legal opinions to support each position.
We believe if the Punnett decision stands unchallenged it will support the McEachern point of view and substantially diminish all aboriginal claims to historical and traditional land and social rights.
The entire ruling can be found here; http://www.woodwardandcompany.com/media/pdfs/Delgamuukw.pdf
This is the first trial since 1997 to expressly diminish the claims of the oral testimony of elders and Hereditary Chiefs. More significantly it was an INAC Band Council challenging their own Hereditary Chiefs legitimacy.
As we wrote in this article http://www.terracedaily.ca/show8647a0x300y1z/_KITIMAT_VILLAGE_COUNCIL_INAC_AND_JUDGE_DECEIVE_HAISLA
this was simply a coup d'etat by the elected over the traditional. The impact however is on all First Nations peoples and the entire foundation of Delgamuukw.
This is the can of worms, ripped wide open, that exposes the entire issue to challenge and debate. Does the First Nations of BC, their hereditary and traditional life stand as a legitimate sovereign way of life or does it not?
Punnett, by dismissing the testimony of the elders and the Hereditary Chiefs as to their evidence of their traditional courts and culture of conflict resolution, has dismissed all similar testimony, that which was considered necessary to value in a more substantive manner by the Appeal Court of the Supreme Court of Canada. This therefore puts into question all claims of traditional authority over all land questions.
So your question, do we have a legal opinion? No, just our own review of the facts, our untrained legal opinion.
If perchance you find a dissenting point of view, please send it to us. We would like to hear what others think.
Thank you for allowing us an opportunity to clarify this position of understanding.
Please feel free to ask anything regarding this situation. We attended the full trial and took copious quantities of notes. The Justice, in our opinion, was incredible paternalistic. The bias was evident from the first day of court. He could not hide his smirks and laughter, stating at one point when asked by the Cousel for the Plaintiffs if he would give the defendents lawyer a chance to speak, responded in a condesending tone, "We were always going to give him a 'chance'."
This case has us concurring with Premier Clark on cameras being allowed into the courts. Punnett would be laughed off of the stand if his actions had been broadcast to the general public. He is an embarrasment to anything resembling justice, in our not so humble opinion.