The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50808
regional wrap-up on ancient explorer records T he B.C. ruling in Ahousaht v. Canada is providing Cana- dian courts guidance on how to use historical accounts introduced into aboriginal land claims and resource rights cases. "This is a very important ruling," says Ratcliff & Co. LLP's John Rich, lead counsel for the aboriginal plaintiffs, a B.C. coastal group. "The law has always been uncertain with how to regard ancient records as evidence." Mi- chael P. Doherty, representing the attorney gen- eral of Canada, agrees. "The treatment by the courts of the sort of documents that were at issue in the case — i.e., the records of early visitors to what is now British Columbia, often in modern reprinted version — has been inconsistent." At issue was how such records should be brought to court: in complete form or in por- tions, interpreted by experts or not. Doherty says the decision now places expert witnesses, includ- ing non-historians such as anthropologists, into "gatekeeper" roles. He refers to two documents of equal historical value, but only the one refer- enced by an expert would be admitted in court. The ruling was made in mid-trial with reasons provided in early June prior to the trial wrap- ping up. The plaintiffs were 11 First Nations, each claiming specific lands and offshore rights including fishing. "One of the central factual issues in this litigation is the question of the existence or non-existence of trade between the ancestors of the plaintiffs and possibly other aboriginal groups in fish or seafood. The reason that this question is so important is the plaintiffs' theory that such trade is the prehistoric, analogous activity to modern-day commer- cial fishing. In this case, the plaintiffs seek aboriginal rights to a commercial, not just food, social, and ceremonial fishery," Jus- tice Nicole Garson stated in her reasons. The AG denied such trade existed and attempted at trial to in- troduce the explorer records — 56 documents, mainly journals of maritime explorers, traders, and missionaries who came in contact with the plaintiff 's ancestors from 1774 to about 1874. The plaintiffs opposed, stating they should not be admissible in their own right as evidence because of ghostwriting, omissions, or embellishments in the reproduced text, unreliable transla- tions, errors in observation, and many other issues. "What the plaintiffs do say is that the explorer records are useful evidence for determining historical facts necessary to this case but that a proper assessment of the records requires the special skills of expert witnesses, such as anthropologists and ethnographers. As a result, they should only be admissible through the experts and not as stand-alone evidence," the judge wrote. Rich says one of the interesting aspects of the ruling on an- cient records is that Garson followed a modern view on hear- say evidence. She distinguishes between ancient documents and the ancient records in question. "Canada argues that these documents should be admitted as ancient documents. In my view that doctrine is inapplicable. First, the flexible approach to admissibility of hearsay evidence as described in R. v. Khan, R. v. Smith and subsequent jurispru- dence, has overtaken the traditional pigeonhole- type exceptions to the hearsay rule, although the exceptions may still be used. Second, and in any event, these documents are not ancient docu- ments," wrote Garson. "In the case at bar, the documents in question were primarily narrative accounts of events. In my view, the ancient documents exception was intended to apply to records that were less sub- jective in nature such as property deeds, docu- ments near to business records and other similar recordings of transactions. The exception was not intended to apply to the kind of narrative journal that are before me, but rather to prove more transactional types of events," she wrote. Instead, she refers to 2004's B.C. Supreme Court ruling Tsilhqot'in Nation v. British Colum- bia. "The meaning of documents is not always self-evident and can only be understood in context. This is par- ticularly true of historical documents where as stated by histo- rian Robin Fisher '(a) document cannot be properly evaluated until we know who wrote it, for whom it was written and most importantly, why it was written," says that ruling. Garson concluded that documents can be admitted if re- ferred to by an expert. "The reference by the expert . . . must be sufficient to permit the court to make a determination as to the threshold of reliability (not weight) of the record" and therefore allowing the court to determine admissibility. "If the document meets the threshold reliability test, the whole of the document may be admitted into evidence. The threshold should not, at least in aboriginal claims litigation, be a high one," she wrote, referring to the Supreme Court of Canada's Mitchell v. M.N.R. Garson also says the ruling did not limit parties from enter- ing into a document agreement with respect to the admission into evidence of all or part of the explorer records. Doherty maintains: "The bottom line for both plaintiffs and defendants' counsel in aboriginal litigation? Try to negotiate a thorough historical documents agreement between the parties." — JEAN SORENSEN jean_sorensen@telus.net www. Law ye rmag.com A UGUST 2008 7