Protocol for Elder Testimony and Oral History

v His Majesty the King in Right of Canada

Purpose of this Document: The Specific Claims Tribunal (Tribunal) is committed to remaining accessible to the Parties during this extraordinary time, while still ensuring the safety and health of all those who are involved in the Tribunal’s process. To this end, some hearings will be continuing virtually as videoconferences.

This draft document has been prepared and made available to the Parties by the Tribunal for informational purposes only. It is not provided as legal or technical advice and should not be relied upon as such.

1. Background

• The Canadian legal system relies on the Parties to present useful, reliable and fair evidence, to allow an impartial judge to decide the facts and the law.
• The Preamble of the Specific Claims Tribunal Act, SC 2008, c 22 recognizes that:

(a) it is in the interests of all Canadians that the specific claims of First Nations be addressed;

(b) resolving specific claims will promote reconciliation between First Nations and the Crown and the development and self-sufficiency of First Nations;

(c) there is a need to establish an independent tribunal that can resolve specific claims and is designed to respond to the distinctive task of adjudicating such claims in accordance with law and in a just and timely manner; and,

(d) the right of First Nations to choose and have access to a specific claims tribunal will create conditions that are appropriate for resolving valid claims through negotiations.

• Subsection 13(1) of the Specific Claims Tribunal Act provides:

(13)(1) The Tribunal has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all the powers, rights and privileges that are vested in a superior court of record and may

…

(b) receive and accept any evidence, including oral history, and other information, whether on oath or by affidavit or otherwise, that it sees fit, whether or not that evidence or information is or would be admissible in a court of law, unless it would be inadmissible in a court by reason of any privilege under the law of evidence;

(c) take into consideration cultural diversity in developing and applying its rules of practice and procedure…

• It is recognized by the Parties that the historical record for this specific claim (Claim) consists mainly of the documentary record and may not include the First Nation’s perspective which is usually recounted orally.
• It is recognized by the Parties that Elder oral history testimony can contribute to an understanding of Indigenous perspectives on the Claim and its historical context.
• Reconciliation requires courts and tribunals to find ways of making rules of procedure relevant to the Indigenous peoples’ perspectives, and to properly provide useful, reliable and fair evidence for a court or tribunal to comprehensively consider all evidence on both sides and make a determination of the issues.
• To reflect the above principles, the Parties understand that the Tribunal wishes to proceed with its hearings with appropriate safeguards in place in compliance with current public health COVID-19 guidelines.
• Since the COVID-19 outbreak and public health restrictions, judicial virtual hearings held across Canada have been operationally successful. Canadian courts, including the Federal Court of Canada, have issued remote hearing protocols to govern the conduct of remote hearings with witnesses, including the decision of the Federal Court in Rovi Guides Inc v Videotron Ltd, 2020 FC 637.

2. Principles

• The Parties are agreeable to hold a hearing to receive Elder testimony and oral history evidence (the Hearing), based on the need to preserve Elders’ evidence and the benefit of allowing the Parties to consider their positions, having heard the First Nation perspective.
• Elders who testify will be treated with respect, dignity and sensitivity.
• Elder’s testimony, including oral history evidence, will be approached with sensitivity and respect to the norms and practices of the Elder’s Indigenous culture and the needs of the Elder testifying.

3. Disclosure and Preliminary Matters Concerning the Hearing

• The Claimant will provide the Respondent with the list of Elders it intends to call to give oral history evidence no later than days before the Hearing.
• The Claimant will provide the Respondent with a list of proposed translators or interpreters, if required, by no later than days before the Hearing.
• The Parties will make a joint request for translators or interpreters to the Tribunal by no later than days before the Hearing.
• The Claimant will provide the Respondent with Will-Say Statements which summarize the anticipated evidence each witness will tender at the Hearing at least days prior to the start of the Hearing. The Will-Say Statements should contain sufficient details to allow for challenges to the proposed evidence by the other parties on the basis of relevancy and for effective preparation of cross-examination, including the basis of the witness’ knowledge and information about his or her community’s practices or protocols associated with the transmission of oral history.
• The Parties agree that the Party calling an Elder may have a community member to introduce the Elder and confirm his or her status as an Elder. The Claimant will provide the name of the community member at least one week prior to the Hearing. In accordance with the Aboriginal Litigation Practice Guidelines, dated 2016, the Claimant will provide information about the Elder and the basis of his or her knowledge through the provision of Will-Say Statements, introduction of the Elder at the Hearing, or a combination of both.
• The Claimant will advise the Respondent and the Tribunal as to any special ceremonies that will take place prior to the Hearing no later than before the Hearing.

4. Oral History Evidence Hearing

• The Hearing may be held in the Claimant’s community, if possible, although it may be held at another location or by videoconference at the request of the Claimant. The Claimant will provide a choice of location no later than days before the Hearing.
• The Parties agree to minimize disruptions of the flow of a witness’ testimony. Any objections during examination-in-chief, cross-examination and re-examination will not be made at the Hearing but will follow at a Case Management Conference if necessary or a hearing convened by the Tribunal for that purpose.
• Counsel will be mindful of the witnesses’ age and physical health, and will plan for and propose breaks as needed. More frequent breaks may be required for hearings by videoconference.
• An Elder may testify in the presence of other Elders or in the presence of the community in accordance with their custom for truth telling. Elders may also testify as a panel or have someone accompany them while they testify.

5. Admissibility and Weight

• The admissibility and weight of the testimony of an elderly witness, which may include oral history, is a matter to be determined by the presiding Tribunal member hearing this Claim. It may be appropriate to obtain a ruling on the admissibility of the evidence prior to the validity hearing of this Claim. Should the Respondent wish to challenge the admissibility of any Elder’s testimony, notice of such a challenge shall be provided to the Claimant and the Tribunal at least days before the day on which the validity hearing begins.
• Based on the Will-Say Statements, if the Respondent intends to raise a preliminary objection to the admissibility of the evidence, the Respondent will inform the Claimant of this no later than before the Hearing.
• It is acknowledged that respect for Elders might involve not directing an Elder’s words and that an Elder unfamiliar with court proceedings might testify on unexpected topics. If an Elder gives more extensive evidence during examination- in-chief at the Hearing, the Respondent is not precluded from raising the issue of admissibility after the Hearing.
• The Parties agree to a flexible application of the rules of evidence in a manner commensurate with the inherent difficulties posed by Indigenous claims, subject to the Tribunal’s direction.

6. Resolution of Other Matters

• Any other matters not specifically referred to in this Protocol will be dealt with by discussion and agreement of the Parties. If the Parties cannot reach a resolution, they will seek direction from the Tribunal.

Agreed to this day of .