Doubting what the Elders have to say: A critical examination of Canadian judicial treatment of Aboriginal oral history evidence

The Supreme Court of Canada has articulated several legal principles that mandate the flexible and generous treatment of Aboriginal oral history evidence in support of Aboriginal rights claims. Lower courts, however, continue to devalue such evidence, often displaying explicit disregard for the legal principles, in order to defeat rights claims and subordinate Aboriginal interests to state sovereignty. This has no rational basis, since it is now clearly established that documentary historical evidence does not have any innate superiority over oral history evidence when it comes to ascertaining what happened in the past. This article proposes several solutions. These include educating judges on the potential value and accuracy of oral history evidence, enhancing oral history evidence through flexible use of the doctrines of inference and judicial notice, and using court-appointed experts to assure greater objectivity.