"The right to hunt and fish as their ancestors did":
By David McRobert
Specific Evidence Issues in Aboriginal Cases
Speculations on Future Problems
The historical prevalence of oral tradition in native culture poses special problems of evidence in litigating claims made about both aboriginal rights and land claims. Over the past fifteen years the Canadian courts have wrestled with these special problems of proof and the difficult evidentiary issues that arise from native litigation. This paper will survey some the issues that have arisen and speculate as to those that will likely continue to remain important in the future.In addition, some of the recent case law on what is required to prove aboriginal title and the existence of aboriginal rights will be considered.
At the outset it should be stressed that the evidence tests described below for native litigation have developed rapidly in an extremely politicized environment. As Henderson (1) observes, these tests are being formulated in the context of the ”Constitution Act, 1982•, which has been heralded as a major breakthrough on human rights by most conventional thinkers.(1a) Moreover, many recent cases launched by native people seriously challenge the legitimacy and authority of provincial and territorial jurisdiction over land management and environmental protection.(1b) These factors have already influenced both the nature of the tests applied by the courts and the rules of construction and interpretation employed in native litigation and are likely to continue to do so in the future.
The contents of this paper may be outlined as follows. The first section of this paper will describe the goals of evidence in litigation and concepts of "truth" that underly the rules of evidence employed in the common law courts. The second section of the paper will consider some of the difficulties that arise because of cross-cultural differences between aboriginal groups and Euro-Canadians. Historically the common law has rested a large degree of its legitimacy on the accuracy of written documentation. However, the oral traditions of native people in Canada can and should be accomodated by our courtsdespite the socio-cultural discrepancy between oral and written cultures. The third section of the paper will examine some of the specific evidentiary issues that have arisen in native litigation over the past fifteen years. Through discussion of issues such as judicial notice and expert opinion, the attempt to accomodate native oral history and other cultural traditionswill be highlighted. In addition, the evidentiary standards applied for proof of aboriginal title will be examined. This discussion will show that the issues posed by native people in Canada require both innovation and imagination on the parts of our legal institutions and especially the judiciary.
The fourth section will suggest certain areas that are likely to become more controversial in the future and argue in favour of certain reforms which would facilitate proof of aboriginal custom and the admission of land use studies.
The final section will be a short conclusion, reviewing the implications of some of the broader themes described below.
”Evidence and the Common Law•
As a point of departure, it is necessary to discuss the nature and purpose of trial and the relationship between trials and the laws of evidence. (2)
In ”Jones v National Coal Board• (3) Lord Denning stated that the trial judge's object, "above all, is to find out the truth, and to do justice according to law." From this viewpoint, the laws of evidence must reflect and serve the nature and purpose of the trial. In its ”Report on the Law of Evidence• (4), the Ontario Law Reform Commission commented on this point as follows:
...the laws of evidence form a vitally important part of the judicial process in the search for truth... There must be guidelines which control the admissibility of evidence, but the guidelines must be such that they will not defeat the tribunal in its search for truth.
Despite this lofty description of the trial as a search for truth, it is important to bear in mind that this search is intended to resovle a dispute between plaintiff and defendant. Thus a trial differs from pure science:
A law suit is not an abstract scientific investigation to discover absolute truth. It is a very practical affair aimed at resolving disputes between parties within a reasonable time and at a reasonable cost. Consequently the desirability of obtaining the truth must be balanced against the need to resolve disputes expeditiously. (5)
Within these terms it is also arguable that this dispute resolution process must be seen as morally acceptable and just. (6) This last consideration has probably coloured the efforts by the Canadian courts to deal with native people more than any of the others mentioned above. Given the format and structure of the litigation process, how arethese factors reflected in the statutory and common law on evidence.According to Phipson (7), the laws of evidence are intended to address the following problems:
- what evidence may be received;
These four problems will underlie the discussion of the issues of evidence and proof in aboriginal litigation. However, prior to dealing with certain specific issues related to evidence and burdens of proof in aboriginal cases, it is necessary to consider the socio-cultural sources of the issues.
”Native Oral Tradition and Written Culture•
Written culture and oral tradition provide two distinct approaches to knowledge, developed in different socio-cultural contexts and based on markedly different assumptions. To the extent that the common law has drawn on both written and oral traditions to derive its resilience, our courts have provided native people with a forum to present their arguments in Canadian courts. However, the discrepancy between these two approaches to knowledge has also posed some unique problems for the courts. Thus, it is necessary to probe some of the aspects of the discrepancy between oral and written tradition in greater detail.
In essence the key difference between oral cultures and those which rely more heavily on the written word is that history takes on a greater degree of importance. The ability to store information accurately has allowed agricultural societies to expand their domain and communicate over vast distances, as Innis showed so graphically in ”Empire and Communication•.(7a) Finally, written cultures can accumulate a record of experiences with technology and share that experience between generations throughthe written word. This last principle is effectively illustrated bythe ability to transmit values and morals through vectors such as the Bible, a religious technology.
While oral cultures do not lack a capacity to transfer knowledge between generations, they rely heavily on the memory and discretion of those people in their communities who are designated as story-tellers and shamen. This places the community in an adaptable position but it also lessens the accuracy of the information passed on. In contrast,written cultures, like the elephant, "never forget" and this creates a different structure of knowlege and power.(7b) As lawyers know, those who write and interpret text have enormous power in written cultures, although part of this power is an ideological construct. In contrast, comparable amounts of power are not really held by those who employ "word magic" in oral cultures.(7c)
The strength of the common law is derived in part through combining both oral tradition and written culture in its structure of knowledge.(8) Written media allows the contributions of many different generations to accumulate and, in turn, come under scrutiny of different individuals in various eras. This has shaped the common law dispute resolution process and entrenched the principle of ”stare decisis• as the pillar of Anglo-American legal culture.The common law courts also have relied on numerous aspects of oral story-telling, however, as we will see in the discussion below.
The ability to transport the English common law to far-flung colonies during the Mercantile era posed a number of problems in terms of deciding what laws had been received in different jurisdictions.In general, this problem has come to be seen as that of "reception".(9) For the most part the courts did not address an even bigger question, however. That question was recognition of the validity of the legal institutions and social norms that aboriginal peoples had employed for generations prior to contact with Europeans. (9a)The refusal to acknowledge a competing system of collectiveland rights had enormous implications for the continuance of numerous traditional societies all over the world. In fact,E.P. Thompson has recently argued that this process has strong parallels to that demonstrated in the mass evacuation of land held by commoners in England prior to the enclosure movement in the 17th and 18th centuries.(9b)
In the modern era there have been numerous attempts by academics and some ambitious lawyers to reconcile the common law and the traditional customs and practices of aboriginal people. (10) Nevertheless, it is apparent that certain obstacles, such as those described herein, have been encountered.
The most important obstacles which delayed the development of rules of evidence and law to accomodate native litigators in Canada were twofold: 1) aboriginal peoples did not have money to hire lawyers; and 2) aboriginal peoples lacked the legal capacity to seek redress in the courts under the various versions of the ”Indian Act•.(10a) Arguably, these barriers prevented the courts from gaining experience with aboriginal issues and caused the delay of development of laws of evidence to accomodate the oral traditions of Canada's aboriginal peoples.
Due the activism of certain officials and the strenous lobbying of native organizations, the legal capacity of status Indians to seek redress through the courts was granted in 1957. (11) Greater financial support became a reality in the 1970s as band management of funds was decentralized and the federal Department of Indian Affairs and Northern Development (DIAND) came under pressure to provide money to settle northern land claims in the Mackenzie Valley prior to the construction of a massive pipeline. (12) Never the less, money is still a problem for many groups that wish to launch cases, particularly because they usually must approach the federal government to get funding for any litigation they wish to undertake. In addition, a lack of funding often can limit the number of experts hired and this, in turn, will make the native case more difficult. As argued below, the other important factor which delayed the development of rules of evidence on native litigation was the attitude of the judiciary towards oral tradition and the validity of aboriginal title. This attitude stemmed, to a large degree, from the fact that the judges could not match their own experience with the world-view of hunter-gatherers and had a distrust of the legitimacy of oral history.
The problem of meshing the unique combination of admissibility rules that guides common law practice and the oral tradition of aboriginal culture extends from several premises related to this difference in world-view. First, there is always a problem with ascertaining the accuracy of the data obtained from informants when information is not recorded in written form. The existence of independent confirmation of oral information through written documents has been viewed as determinative of the reliability of the recall capabilities of informants. Conversely, the absence of such documentation, even though it may only partially confirm the oral testimony, poses certain difficulties for courts. As an example consider how the modern courts approach issues in contract law. Written communication, correspondance and other documentation often provide the courts with a basis for assessment of the intention of parties with respect to negotiations over contracts. In cultures where oral tradition predominates and written documentation is a relatively recent phenomena, such evidence may be non-existent. Moreover, even if it is available it often does not deal with crucial matters that are relevant to the matters that the courts deal with today.
These difficulties are not necessarily insurmountable, however. The common law has historically employed the technique of testing informant reliability through cross-checking between a number of witnesses to see whether or not testimony is consistent. Moreover, it is apparent that the recall of many aboriginal peoples is highly reliable. (12) When allowance is made for cultural selectivity in what is recollected the living memory of adults within fifty years of the incident recalled is often corroborated in great detail. Similarly, recall is still reliable even a century after the event, as Arima contends. (13) While some loss of content and beginnings of formalization of the event into an element of legendary narrative will become evident, the most important facts about events are often retained accurately for several generations and in some cases, hundreds of years. This kind of information is sometimes required in cases on ascertaining treaty rights but usually most of what is recalled is not the subject of dispute in modern native litigation.
Another problem with oral tradition is that empirical and non-empirical phenomena are often interwoven. (14) Brody has shown this in his work on the Inuit (15). If the courts attempt to rely on oral history for more detailed information it will become apparent that fantastic, imaginative episodes are often interspersed with other data that is recalled. Given the bias of common law courts to rationalism, this can prove unsettling to both counsel and members of the bench.(15a)
A third premise which underlies the difficulty experienced in meshing oral tradition and the common law rules of evidence is the idea of hearsay. In the case of historical information that may have been passed on through generations. Cross-checking between informants only establishes consistency of information within the group of people being questioned. Thus, cross-checking does not necessarily establish the congruence of this information with empirical reality. However, it has been argued that the probability of objective accuracy increases as the number of informants who agree with certain facts increases. (16)
Whether or not this third premise should carry much weight is debatable. It is arguable that written information often reflects certain values which are widely held as part of a dominant paradigm within a socio-cultural complex. Thus, written versions of certain stories that we relate as history may be no more truthful than oral ones to the extent that the texts reflect the biases of the writers.
A convenient example of the relationship between this phenomenon is provided by Euro-Canadian attitudes towards aboriginal peoples as reflected in Canadian and American literature. (17) The attitudes in this literature served to either denigrate aboriginal culture or, in the alternate, celebrate it as evidence of the fact that slavery, bondage and poverty were strictly European inventions. Neither perspective was realistic but thelegacy of these attitudes is still apparent in the paternalism of Indian policy today.
To a large degree these attitudes were derivative of the view that aboriginal peoples were closer to nature because they roamed the land as did wild animals. As agriculturalists who were somewhat obsessed with notions such as "improvement of land", Europeans viewed Indian land use as wasteful and inefficient. Consequently other cultural and social institutions were also seen as backwards. (18) However, considerable anthropological data isnow available which demonstrates that native land use patterns were often extremely well adapted to their environment and,in view of modern environmental problems, an excellent example of sustainable economic development. (18a)
Probably the most graphic illustration of the consequences of European ideas about "backwardness" is found in the example of title to land. Written culture has facilitated mapping-making, a technique for the determination of boundaries and the delineation of property rights. (19) In association with mapping-making, Euro-Canadians have also devised systems of land transfer based on deeds and other written instruments. The functional significance of this approach to land transfer may be viewed in terms of the desire of farmers to have a crucial component of their means of production secured and confirmed through the legitimate claim written proof connotes on the landowner.
In contrast, aboriginal societies have not relied on written documents to confirm the transfer of land title between generations. Effective transfer was actualized by memorization of the landscape features and actual animal harvesting on the land. The weakness of aboriginal title was related to the fact that it was not readily transferable and this constrained the mobility of the possessor. Where population densities were low and, ”inter alia•, the possibility of adverse possession was small, this approach to land transfer was adaptive. Rather than being irrational, it was predicated on common sense. Oral tradition, occupancy and memory were the basis of title -- not a written deed that allows absentee landowners to wreaksocial or ecological turmoil through displacement of traditional land occupants. (19a)
It has been difficult to convince lawyers and judges immersed in European land law (and endowed with considerable land) of the efficacy of rights based on a traditional model of title. While the early administrators of the colonies in North America recognized the indisputable fact that native people occupied vast areas and utilized the game and animals in them, this was a reflection of the political realities of the period as Trigger (19b) has shown so effectively. As time wenton, the force of law became increasinglyassociated with European culture and institutions. (20)
In the modern era, the notion that Indians have their own laws and systems of land tenure has become divorced from this historical context and incomprehensible to generations oadministrators,s,politicians, lawyers and judges. Since Confederation, most of these people haveassociated land ownership with standards of proof flowing from safeguards such as ”Statue of Frauds• and deeds rather than land use patterns and occupancy (21).
The typical atitude of the Canadian judiciary towards the legitimacy of aboriginal title prior to ”Calder• case (22) has been aptly described by Thomas Berger (23). In his reflections on the failure of the British Columbia Court of Appeal to recognize the nature of native culture and oral tradition, Berger(24) said this about the Chief Justice of the Court:
Chief Justice Davey was one of British Columbia's finest judges: he was patient, scholarly and upright. Yet he could not understand the native peoples had sopisticated concepts of legal relations and legal rights. He could not accept that people without written language can, nevertheless, have an elaborated legal system of their ownœ. And, as for their aboriginal title, how could the court acknowledge it? It was ill-defined, it was not recorded in a system of title deeds, and it was not a form of private property but property held communally by the tribe.
Strong arguments have been made that the common law cannot serve aboriginal peoples who are interested in the preservation ofcollective rights for these reasons. Thus, the leading Canadiantext on native rights recommended that native people attempt to accomodate the interest of the courts in traditional well-definedbundles of rights. Once the existence of these rights was proventhey then could be exchanged for more traditional rights
To the extent that the common law is an abstract and intellectual process with a firm epistemologial basis in positivist European ideas, these arguments do seem persuasive. However, they fail to acknowledge that the ancient roots of common law land-holding are in oral customary law,as scholars such as Hay have demonstrated. (**) The erosion of theserights was part of a trend towards market capitalism that would accelerate remarkably after the 1750s. Moreover, there is growing evidence that this process was ideological in both conception and execution.
Whatever the origins of modern attitudes towards collective landholding, I do not believe that native peoples should be required to abandon their interest in collective ownership and management of land. Experience suggests that while certain individuals within native bands may benefit because they are able to increase their relative power and wealth,this power is often obtained through promoting land development that is neither ecologically sound nor socially desirable. It seems important that the courts begin to recognize these kinds ofunderlying concerns in their deliberations on the validity of aboriginal collective rights to block mega-projects and somehow factor these concerns into the balancing process that lies at the core of the rule of law.
I have argued elsewhere that the courts are not an appropriate forum to actualize the social changes that are required to deal with the structural barriers to greater aboriginal control over theirsocio-economic, political and environmental problems.(**)Ideally more emphasis should be placed on educating the public about aboriginal rights and promoting a conserver society in the metropole, a hungry and dangerous beast that is constantly invading the hinterlands in pursuit of more resources.At the same time, I do not subscribe to the view that the courts cannot offer any suitable remedies to native people. In fact, I believe that over the past decade the courts have demonstrated considerable sympathy to the unique problems of evidence and proof that aboriginal litigants have faced. In the section below many of these innovations are surveyed. In addition, I will speculate on areas where further reforms may be necessary.
”Specific Issues in Native Litigation•
Numerous evidentiary issues arise with respect to native litigation and it is not possible to deal with them all here in any detail. In this section I intend to examine the following topics: Judicial Notice, Opinion Evidence and Expert Witnesses, Agreed Facts, Documentary Evidence, Proof of Aboriginal Title and Admissibility of Oral History.
1) Judicial Notice
The phrase "taking judicial notice" refers to the process by which propositions of fact and law are established without formal proof and the particular propositions are accepted by juries and judges. Some examples of types of judicial notice are described below:
a) The stated as well as the unstated use of general knowledge is a familiar example of judicial notice. The meaning of words, the hours in the day and the driving of a car are all examples of this type of notice.
b) The use of factual and legal material known to the judge is a second example.
c) A third example is the use of factual material known to the jury. (This is generally not very relevant to native litigation since juries are relied on infrequently.)
d) A final example is factual material which the judge but not the jury may use.(25)
How these general examples actually translated into practice by the courts depends on the approach of the judiciary. The classic statement on the law which has dominated interpretations of the concept is that the fact must be widely known and understood by ordinary people in the community. (26) While subsequent experiences have suggested that this view is too narrow, how it may be expanded by the courts is not readily apparent.
The most difficult aspect of this general statement is that the courts have acted on matters within their personal knowledge in some instances and refused to act on similar matters in other instances. (27) Thus, the courts have most often taken the view that they are not permitted to take judicial lnotice of matters that can be reasonably disputed. (28) This produces distinctions that seem arbitrary. In ”Warren v. Pilkington• (29) it was held that judicial notice could not be taken of the times of sunset and sunrise although it was possible to take notice that the sunset was never later than a certain time in a nearby town. Similarly, in another unusual leading English precedent, (30) it was held that judicial notice could be taken of the duriation of the normal period of gestation but could not be taken of the fact that a child born to a woman 360 days after she last had intercourse with her husband could not be his child.
Two major reasons have been offered to justify the taking of judicial notice. The first argument popularized by Wigmore (31) is that judicial notice is a time-saving device which eliminates the necessity of formal proof where dispute is unlikely. Since it is often difficult to prove certain matters formally, permitting the courts to refer to generally accepted sources saves both time and cost. To the extent that the common law depends on analogous process of reasoning in terms of ”stare decisis•, it could be argued that the trial process could not function without employing various species of judicial notice.
The second main argument that is made in favour of judicial notice is that it reinforces the credibility of the trial system (32). This argument rests on the notion that the courts should be permitted to receive and act upon material not formally proved in accordance with the rules of evidence and not supplied by the parties but which is not reasonably open to dispute.
The use of judicial notice in litigation on aboriginal rights has a lengthy history in Canada and elsewhere. In many jurisdictions judicial notice was historically employed as a technique to control the extent to which customary law and aboriginal rights could be asserted. For example, Seidman (33) argues that the courts manipulated the rules of recognition in Zimbabwe prior to 1981. The civil servants and appellate courts controlled...
the texts they would consult,... [and] the use of textbooks, witnesses and judicial notice to create a law that could have ressembled the law of the people only in its grosser outlines. They inevitably imposed their values upon the law, but in most cases without explaining them.
Thus to the extent that judicial notice is part of a legal reasoning process, it is a concept that is pliable and manipulable and should be subject to careful scrutiny by appellate courts and scholars.
The Canadian judiciary has also used the judicial notice concept to diminish native rights historically. In ”Calder•, Mr. Justice Hall summarized the consequence of this historical pattern for modern jurisprudence on aboriginal rights:
The assessement and interpretation of the historical documents and enactments tended in evidence must be approached in light of present-day research and knowledge disregarding ancient concepts formulated when understanding of the customs and culture of our original people was rudimentary and incomplete and when they were thought to be wholly without cohesion, laws or culture, in effect a sub-human species.(34)
Hall J. went on to render a more enlightened minority decision on aboriginal title than previous judgments would have suggested possible. Despite the fact that the case was decided against the Nishga on a technicality,the decision is recognized now as a major breakthrough bymost commentators. Hall J. accomplished this breakthrough by taking judicial notice of a significant body of anthropological and historical evidence(35) cited to him by an able counsel, Thomas Berger. This ambitious lawyer was later to become aBritish Columbia Supreme Court Justice, and remains today,a well-known advocate for aboriginal peoples. (35a)
Justice Hall's views on the evidence that was cited to him were suggested in the following passage from the judgment:
...What emerges from the... evidence is that the Nishgas in fact are and were from time immemorial a distinctive cultural entity with concepts of ownership indigneous to their culture and capable of articulation under the common law... (36)
Mr. Justice Hall's progressive approach has been widely praised by many commentators and cited favourably in many key precedents on aboriginal rights in common law juridictions. However, while the judgment was important, it is essential to acknowledge that the substrate of the case was provided by Berger. His detailed research, careful direct examinations (cited throughout Justice Hall's judgment at great length) and reasoned strategy probably played as important a role in the final outcome as the sensitivity of Hall J. and his colleagues.(37) Berger captured the essence of the special chemistry in ”Calder• and why it was important in the following passage from his book ”Fragile Freedoms•: In the judgment of Mr. Justice Hall you will find that sense of humanity -- that stretch of mind and heart -- that enabled him to look at the idea of aboriginal rights and to see it as the Indian people see it. This required some idea of the place Indian history in our own history. He suggested that Chief Justice Davey, in assuming that the Nishgas were at the time of settlement "a very primitive people with few of the institutionsof civilized society and none at all of our notions of private property", had assessed the Indian culture of 1885 by Europeans standardsapplied to the Indians of North America two or more centuries before.(38)
Justice Hall rejected these archaic approaches.Instead, he took notice of the historical facts aboutaboriginal land tenure, and, in the process, engineered a formalrecognition of aboriginal title. The repercussions of the decision were numerous but most importantly, the ”Calder• case forced the Trudeau Liberals to recognize aboriginal rights and begin to negotiate with Indians in James Bay and the Mackenzie Valley on comprehensive land claims. (38a) Moreover, ”Calder• also signaled that a new approach to many aspects of evidence was required in aboriginal litigation.
The implications of Justice Hall's comments on the biases present in historical documents (including precedents) continue to be felt today. These comments were recently endorsed by the Supreme Court of Canada in ”R. v. Simon• (39). In that case the Crown had cited a ”ratio• from a dated Nova Scotia precedent, ”R v. Syliboy• (40). Where the trial judge had held that "the savages rights of sovereignty even of ownership were never recognized." When this case was commended to the Supreme Court of Canada in ”Simon•, Chief Justice Dickson said this:
It should be noted that the language used by Patterson J. in this passage, reflects the biases and prejudices of another era in our history. such language is no longer acceptable in Canadian law and indeed inconsistent with a growing sensitivity to native rights in Canada. (41)
This should signal that historical abuses of judicial notice are no longer to guide interpretrations of aboriginal rights in Canada. However, this does not necessarily clarify how the modern courts are supposed to employ judicial notice in the future.
Since the ”Calder• case, the courts have made liberal use of judicial notice in many cases on aboriginal rights. However, most of the Appeal Court decisions have not yet rendered a more precise indication as to the extent to which judicial notice could be employed and how it should be used. For example, it could be asked:just how far can a judge go in taking judicial notice? In ”R. v. Bartleman• (42) Lambert J. A. indicated that he had carried out archival research within the ambit of judicial notice. Among the sources that he drew upon were government archives which allowed him to construe the treaty at issue in a light that otherwise would have been difficult, if not impossible, to have shed in court through formal proof.
In the view of Esson J. A., this research went too far and he declined to comment on whether judicial notice includes such study. This raises important questions about how far judicial notice should be expanded in the future, an issue to which we will return in the next section of this paper.
2) Proof of Aboriginal Title and Aboriginal Rights
Another issue which has gained prominence in recent yearsis proof of aborignal title. Since many of the special rights that native peoples assert are tied to aboriginal title, (43) the evidentiary requirements surrounding proof of title merit consideration here.
The leading cases in Canada on the requirements to show proof of aboriginal title are ”Baker Lake• (44) and ”Bear Island• (45). The first of these cases arose out of an interesting set of circumstances, so it is useful to review here as a prelude to considering the tests for proof of aboriginal title.
In essence ”Baker Lake• arose because the Inuit plaintiffs were concerned about the impacts being caused by exploration for uranium as permitted under federal legislation. Some scientific research had shown that population numbers forthe Kaminuriak caribou herd that calved in an area north of Baker Lake had fallen dramatically. It was suspected that the mining and exploration activities were to blame. The Inuit felt it was necessary to protect their right to harvest caribou; in the Federal court they sought declarations that their aboriginal rights could not be abrogated in this way and an injunction against the exploration activity.
In the end Mahoney J. refused to grant the requested injunction and held that radical title to the land was retained by the Crown. Moreover, he held that the scientific evidence on impacts to the caribou was not persuasive. The case was widely criticized and articles by scholars (46) after its release suggest ”Baker Lake• should be considered an anomaly rather than a meaningful decision on aboriginal title.
In retrospect it is interesting to note that Mahoney J. was probably justified in his skepticism about the correlation between the activity of the uranium companies and the decline of the caribou populations. Subsequent research has shown that the scientific researchers failed to realize that the caribou herd in this case used two calving grounds instead of one. Thus, estimates based on a count of adult caribou at only one site served to suggest a drastic decline had taken place, when in fact this was inaccurate. (47)
This background to the ”Baker Lake• has been described here in detail because it serves to illustrate that many of the claims made by aboriginal groups overlap with other difficult evidentiary areas, such as proof of damages due to exposure to toxic chemicals and damages caused by impacts on wildlife habitat. (48) To the extent that the onus of proof in these cases continues to rest upon the aboriginal plaintiffs to show they are aggrieved, it is likely that native groups will be frustrated in their attempts to gain legal relief in these complex cases. This would seem to argue in favour of the courts devising better tests to accomodate the admission of scientific evidence. (49)
The most important point about this case is that it set out the addtional burdenof proof that must be met in order to assert a claim of aboriginal rights in the Canadian courts. According to Mahoney J. the following four-pronged test must be met to demonstrate aboriginal title:
1) The claimants and their ancestors were members of an organized society.
In support of this four-pronged test for proof of aboriginal title under the common law, Mahoney J. cited the Supreme Court of Canada decisions in ”Calder• and ”Kruger v. The Queen• (50). He also considered several dated and anarchronistic precedents of the Unitd States Supreme Court including ”Johnson v. M'Intosh• (51) and ”Worcester v. The State of Georgia•. (52)
In the result, these requirements impose significant burdens on aboriginal groups. Moreover they were further elaborated in ”Bear Island• and made even more stringent. Steele J. held that the claimants must show
1) the nature of aboriginal rights enjoyed at the relevant date of
the treaty or coming of settlement (53)
This latter elaboration on the ”Baker Lake• test is very stringent and Henderson doubts many aboriginal groups could meet it. (54) Since the ”Bear Island• land claim is under litigation despite past attempts to settle the caseby the Ontario government (55), an appeal judgment on the validity of this test will likely be rendered in the next fewyears. However it is difficult to believe that an appeal court would decide to uphold the ”Bear Island• approach, and it seems more conceivable that ”Baker Lake• would be followed. If the ”Bear Island• test is upheld, profound consequences will flow for native groups and the likelihood of entrenchment of aboriginal self-governmentin Canadian society will diminish considerably.(**)
I would argue that even the ”Baker Lake• test should not be followed, however. Two elements of the four-pronged ”Baker Lake• test seem unreasonable, particularly in view of aboriginal customs on land tenure and social development. For example, consider the problem of proof of exclusive occupation.In ”Baker Lake•, expert testimony was provided by archaeologists as to the degree to which occupation of the area under claim had been permanent and exclusive. (56) At issue was whether the Indian tribes to the south of the community had made periodic intrusions into the zones claimed. One of the archaeologists, Dr. Harp, who had studied historical land use and occupancy,said that to be fair, he
...ought to admit that both these peoples [Inuit and Indians] have from time to time, penetrated this transitional zone so as to exploit it for their own cultural purposes... In the final analysis, both of them have not been able to maintain successfully, for any signmificant length of time, permanent occupation in the country. They have each had to retreat or withdraw, whether southward or northward, out to the coast, to more congenial environments, which they know how to cope with and exploit with a greater degree of success. (57)
The implication of this testimony is that it was unlikely the Inuit in the Baker Lake area could prove continuous and exclusive occupation. Accordingly, the third prong of Justice Mahoney's four-pronged test aboriginal title would fail, a result which seems unjust and perhaps even absurd. In the end Mahoney J. did recognize a limited aboriginal title but it is apparent that many other native groups in more densely populated areas would not be able to meet this test because of their failure to maintain exclusive possession of the area claimed since 1763 or whenever sovereignty was asserted. Moreover, it is apparent that what underlies this test is a notion of land tenure based on agricultural production andand most aboriginal societies could not present information on land use sufficient to meet tests based on European notions about land tenure.(58)
Proof of social organization and its implications for future land use on lands claimed is also a questionable element in the four-pronged ”Baker Lake• test.Mahoney J. interpreted the evidence in ”Baker Lake• to substantiate the fact that the Inuit had an organized society, but only to the extent that they were "organized to exploit the resources available on the barrens." (59) Consequently he went on to hold that the aboriginal title asserted by the Inuit encompassed "only the right to hunt and fish as their ancestors did." (60) In view of the modern aspirations of the Inuit, this approach seems particularly unfair. While the information presented to the court was intended to confirm aboriginal title, it was not the expectation of the plaintiffs that it would be used as a straitjacket to prevent social innovation in the future.
To summarize, it is apparent the tests for proof of aboriginal title are unnecessarily stringent. In fact, it could be argued that the approach taken to customary land law in England provides a workable alternative model. Since customary land rights are only enforceable when they existed at the accession of Richard I in 1189 and this is practically impossible to prove, the courts have developed certain rules of evidence to facilitate proof of custom. (61) Accordingly it could be argued that our courts should develop similar rules for proof of aboriginal land use and exclusive occupation.
3. Agreed Facts
The principle behind the practice of agreeing to certain facts is analogous to that of judicial notice. In brief, agreed statements will simplify problems of proof faced by counsel and allow the court to focus more attention on other issues. (62)
One of the subjects upon which agreement has been possible includes anthropological evidence as to mode of life. For example, in ”Calder• both the Crown and the Nishga Nation were able to agree on the proposition that in the pre-contact situation the Indians had recognized some degree of ownership and possession of land. According to Henderson, this agreement allowed the court to clarify the issues and the parties to present consistent oral testimony which bolstered the claimant's case. (63)
In ”Baker Lake• agreement was obtained on many of the Inuit allegations, primarily to facilitate and expedite the litigation process. (64) However, this was a unique case since the Crown was effectively defending both its own previous disposition of land under the ”Territorial Lands Act• and the subsequent exploration activities undertaken by the defendent uranium companies. Perhaps for this reason the Crown was willing to accomodate the claimants. In addition, the national publicity that the case attracted and the general atmosphere in which the litigation took place probably encouraged the Crown to agree to more points than they might otherwise have agreed to.
In contrast, the inability to achieve agreement on certain facts poses serious problems for both parties in dispute and may generate considerable confusion about the consequences of the litigation. For example, in the ”Martin• case all the facts and law were contested in court. (65) What was at issue was whether logging of Meares Island (really?) could go ahead as planned by the defendant, Mac Blo?.It was argued that the interim relief hould be granted on the basis of analogy to the ”Baker Lake• pre-trial injunction (66). In that case the plaintiffs had introduced ”viva voce• evidence but the defendant Minister of Indian Affairs and Northern Development did not. As a result, the court adopted a conservative approach, finding that the weight of evidence fell "plainly on the side of granting an interim injuction. The minerals, if they, will remain; the caribou presently there, may not." (67)
In the British Columbia Supreme Court this analogy failed to impress the court of first instance for ”Martin•. Caribou are, afterall, quite different from trees on Meares Island. Trees do not migrate over vast distances or maintain complex social relations and they are not eaten as a staple dietary item. Moreover, the court contended that the affidavit material did not set out sufficient facts from which one could infer the existence of aboriginal title according to the ”Baker Lake• test developed by Mahoney J. and described above. (68)
The court also noted that enormous consequences would flow from a favourable decision for the claimants. This conclusion rested on evidence presented by the Crown that aboriginal claims had been presented to DIAND's Office of Native Claims for three-quarters of the province and accepted as potentially meritorious of a land settlement. The court went on to hold that if the claimants were successful in the instant application, a rash of similar injuctions might be launched. No doubt the prospect of this flood of litigation would fighten even most progressive judges and lawyers into common law rigour mortis. In this viewthe decision here seems perfectly predictable.
As Henderson argues, this evidence should not have been weighed as heavily by the court as it apparently was for at least two reasons.(**) First, the policy under which land claims are accepted the Office of Native Claims involves no formal adjudication on rights. (69) Secondly, it also alerted the court to consequences far exceeding the issue at hand. Thus, the evidence could have been questioned on the ground that it was irrelevant.These arguments were raised on appeal however, and the British Columbia Court of Appeal reversed the lower court decision on the grounds that the balance of convenience test had been met. (70) Thus, the pre-trial injunction was granted. However, a final determination on this matter will likely not be rendered on this matter because negotiations to establish a park in the area have been undetaken by the Haida Indians and the provincial and federal governments.
To conclude, it is apparent that agreement as to facts has enormous strategic significance in aboriginal litigation. Where the Crown is the opposing party, it may be possible to achieve agreement on many elements of a case. However, it is clear that such agreement will be more difficultto achieve where the party opposing a land claim or the assertion of rights is private industry.
4. Documentary Evidence
Archival documents have already provided important sources of information for the courts, as the discussion on judicial notice above suggests. (71) Archives of Churches, government agencies and various other private and public organizations have been relied on in the past two decades. These archives can provide detailed information on population and historical land use.
The issue as to interpretation of certain words and phrases in treaties and contracts was considered by the Ontario Court of Appeal in ”R. v. Taylor and Williams• (72). In that case it was held that the ambiguities should not be construed to the prejudice of Indians. Thus, ambigous words and phrases must be interpreted in light of evidence as to the understanding of the meaning of the words by native people at the time that the documents were entered into, rather than more modern interpretations.
The approach taken in ”Bear Island• to interpretation of certain words and phrases in treaties and contracts recognized the innovations of the ”Taylor• case. Despite this Steele J. was unable to find that a legal trust relationship exists between the Crown and Indians and distinguished ”Guerin v. R•. (73) on the grounds that such a relationship could only be based on a finding of fact on a balance of probabilities and not upon speculations. (74) The Supreme Court of Canada has recently suggested that the approachtaken in ”Bear Island• will be restricted and not followed by the courts.Decisions in the last two years show that the Supreme Court is attempting to relax thestandards of evidence required to prove aboriginal rights exist in orderto deal withÜf potential problems that arise due to a lack of documentary evidence. For example, in ”Simon• Chief Justice Dickson held that a Micmac Indian who lived in a certain geographicdistrict in Nova Scotia was a descendant of a tribe who had agreed to a treatyin 1752 although no documentation was available to support the claim. (76)
How the lower courts will apply these different standards to consider the validity of treaty rights and land claims in the future is an open question. However, it is apparent that the Supreme Court feels that documentary evidence on treaties should not be determinative of the extent of the rights asserted by native groups, particularly if there is other evidence which suggests the transaction has been misrepresented by the written record. .s5). Opinion Rules and Expert Evidence
Opinion evidence coninues to play an important role in litigation on aboriginal issues. Consequently it is relevant to briefly review the rules on opinion evidence in Canada (77) and other common law jurisdictions and their application on aboriginal cases.
In ”Black's Dictionary•, "Opinion Evidence" is defined as "what the witness thinks, believes or infers in regard to facts in dispute, as distinguished from his personal knowledge of the facts themselves. The rules of evidence ordinarily do not permit witnesses to testify as to opinion or conclusions." (78) It should also be noted that this definition does not preclude use of personal knowledge of the facts by someone offering an opinion.
In Canada, the common law rules on opinion evidence have been relaxed by the courts to reflect some of the difficulties experiencedin seperating opinion and fact. In ”R. v. German• (79) it was held that tthe opinion rule is not absolute and tha "a person of ordinary intelligence may be permitted to give evidence of his opinion upon a matter of which he has knowledge."
The weight that will be attached to this evidence may not be that great however. This stems from the proposition that whenever a witness expresses opinion on certain facts, it is coloured by what "he thinks or believes he saw or heard ... In the result, everything a witness says becomes a personal judgment. (80) This metaphysical conundrum has been further elaborated in ”Graat v. R•. (81) where it is stated:
...Except for the sake of convenience, there is little, if any, virtue in any distinction resting on the tenous and frequently false anti-thesis between fact and opinion.
This decision also opened the Canadian courts to consider the opinion of a lay witness who is able to "accurately" express the facts perceived and form an opinion on them. (82) This rule ispositive insofar as it would appear to allow the courts to receiveevidence from native peoples or other interested parties such as social workers on aboriginal rights issues.However, it is apparent that this liberal approach should be applied with care andit remains to be seen how it will be employed by the courts in aboriginal cases in the future.
a) ”Expert Testimony•
While expert testimony has not played as important a role in aboriginal cases recently this matter has received attention in the past and should be dealt with here.Expert testimony is a species of opinion evidence offered by some person possesses special skills and for knowledge of a profession, science or business which is not common to average person. (83) Generally, this expert opinion evidence must not be "superfluous and within the common knowledge of the jury." (84) Moreover, the expert evidence must be given by a person whose area of expertise is relevant to the issues being tried. (85)
An ancillary and related question which is often controversial in relation to the issue of expertise is whether the expert possesses sufficient skill and knowldege to render him an expert in the field. According to the leading cases, this is a matter for the judge to decide. (86) However, counsel has a right to challenge the expert's qualifications, by way of cross-examination, before it is received. (87)
Some of the difficulties related to the use of expert testimony include the fact that there is no requirement for corroboration of expert opinions. (88) This, however, is balanced by the fact that expert opinions are not conclusive of the fact which is sought to be proved. (89) Moreover, "where the opinion tendered involves what is a mixed question of law and fact, the opinion is not admissible." (90) The fact that the courts cannot tender their own expert evidence(91) often will ensure reliance on expert testimony in aboriginal cases,however.
b). What Constitutes Adequate Expertise
The issue as to what constitutes adequate expertise to be considered a sound basis for opinion evidence has arisen frequently in recent cases on aboriginal rights. In ”Baker Lake•, Mahoney J. considered the admissibility of the Evidence-in-Chief offered by numerous parties testifying on behalf of the Inuit. Most striking is his assessment of the evidence of Dr. Peter Usher, a geographer who has done impressive interdisciplinary research in northern Canada and had worked with various native groups for fifteen years before the trial was heard. Mahoney J. said that this previous experience had coloured Dr. Usher'sÜf perceptions and his evidence "had more the ring of a convinced advocate than a dipassionate professional. There was a lot of prognosis." (92) Reviewing Usher's published work on the issues of native land claims, northern resource development and social impact assessment (93) this comment is difficult to dispute. Usher subscribes to the view that native people need help defending their rights against massive forces such as multinational corporations and government agencies seeking to promotedevelopment in the Canadian North. Mahoney J. went further than merely criticizing Dr. Usher's political views. He also attempted to discredit Dr. Usher on the grounds that his training in geography did not qualify him to form opinions on "political, sociological, behavioural, psychological and nutritional matters." (94) While Usher's testimony on economic matters was admissible, it was acknowledged by the court to the extent that it corroborated the views of another anthropologist, Dr. M. R. Freedman, who Mahoney J. viewed as less partisan.
The disqualification of major parts of Dr. Usher's testimony and his affidavit of evidence as either not within his competence or offering no material evidence and only pure opinion(95) was an important element in the failure of the Inuit's claim. In part the failure may be attributed to Justice Mahoney's invocation of the rule in ”Karam v. N.C.C.• (96) where it was held that an affidavit should be detailed as possible insetting out the factual basis of the claimant's case. Thus, a key lesson in this case with respect to evidentiary burden is that Rule 482 (97) must be followed to the letter of the law, and not merely its spirit.
Another qualification of the rule on expert testimony is that arguments as to customary practices made by ethnologists cannot be made by analogy. (98) This matter was dealt with by Steele J. in ”Bear Island• when he considered the weight to be given to the testimony of Dr. Rogers.
...I am not so concerned about the credibility and weight to be given to the expert testimony of person such as Dr. Rogers... [he] is an ethnologist and any opinions that he may formulate based on information received from living Indian as to their oral traditions are admissible in court. Unfortunately, in the present case he had made no study of Temagami Indians, and his evidence relates to other groups and bands. He expressed opinions about the defendants primarily by analogy. If his study had been of the Temagami Indians directly, his evidence would be clearly admissible and of considerable weight. As it is, it must be considered in the context in which it was given. (99)
This approach seems to make sense in terms of requirements about expertise. However, it could pose problems for those bands who might be unable to find an expert sufficiently qualified to testify on their behalf. (100) Moreover it sometimes will be the case that few experts will be available and an opposing party will be able to hire the best qualified experts. This has already taken place in a claim launched by the Manitoba Metis against the Federal government last spring.(101) The federal government has placed dozens of experts on the Metis on retainer and will no doubt have considerable influence over what is presented to the court by whom. This will no doubt complicate the case that must be made by the Metis, if the matter evergoes to trial. In view of this discussion, I would suggest that an argument can be made forrelaxing opinion rules as applied in cases such as ”Baker Lake•. The viewsof interdisciplinary scholars such as Dr. Usher should not necessarily be excluded as a general rule because the consequences for aboriginal groups could be severe.
6) Admissibility of Oral History
Another way that the Canadian courts have attempted to accomodate the unique nature of aboriginal society through bending rules on hearsay to allow presentation of oral testimony on land use and customs.
The general rule on oral history in aboriginal land claim cases is that it is admissible where a band's or native group's history was never recorded in writing.(102) This rule does not detract from the Best Evidence Rule (103), however. Thus, a court has an obligation to weigh evidence presented as oral history and decide whether it is best evidence. If it is not deemed best evidence and it is apparent that other evidence could have been presented, the court may choose to either disregard the oral history presented or make an adverse finding against the person or group that failed to produce the better oral evidence.
The applicability of this Best Evidence Rule was demonstrated recently. In ”Bear Island•, no original copies of certain documents relating to the treaty process were available.(104) As a result it was necessary for the native litigants to employ other methods of proof of certain facts. In essence, the main thrust of their strategy was to employ oral history as passed down to the head of the Teme-agama Anishnabay band, Chief Potts. According to Steele J. excessive reliance on Chief Pott's testimony to the exclusion of many of the elders undermined the band's case.(105) In addition, the band had relied heavily on the expert testimony of certain historians and anthropologists. Taken together, Steele J. did not find approach to be persuasive:
...In summary, I believe that a small dedicated and well-meaning group of white people, in order to meet the aspirations of the current Indian defendants, has pieced together a history from written documents, archaeology and analogy to other bands, and then added to that history a study of physical features and other items, together with limited pieces of oral tradition. (106)
This patchwork approach lead Steele J. to rule that the Best Evidence Rule had not been met and to "doubt the credibility of the oral evidence introduced," and reduce the weight given to the evidence of non-Indian witnesses."
In view of Justice Steele's comments in ”Bear Island• as to the inadequacy of the oral testimony presented it is unclear as to exactly what requirement must be met should be met with regard toproof of facts in terms of oral history. In the ”Baker Lake• case, Mahoney J. suggested that some kind of limit must be placed on the amount of evidence heard because "it would have been outrageously costly to maintain the court in Baker Lake long enough to hear all the Inuit necessary to confirm the list [of relatives and associated place names]...."(107) Mahoney J. went on to admit the list as "indicating the places of origin of the entire local Inuit population" (108) although it could well have been argued that much of this information was hearsay.
In cases such as ”Baker Lake• where Inuit lived in relative isolation from other native groups in a fairly tightly knit community this kind of approach makes sense. However it is less clear that such an approach is desirable in southern areas of Canada where populations will likely have been more mobile. Obtaining a representative sample of elders to testify in these situations may prove more difficult but, as the ”Bear Island• case suggests, itis probably more important in the eyes of the court.
”Potential Sources of Difficulty in the Future•.
In this last section of the paper certain evidentiary issues which seem likely to arise in the future native litigation are examined. Each area demands a clear signal from either the Supreme court or Parliament in order to establish a clearer basis for the predicrtion of outcomes in native litigation.
1) Evidence on Customary Law
Another issue which is likely to become more important in the next decade is what evidentiary burden should be required to prove elements of native usages or customs not related to land. Examples of such customs include traditional marriages and adoptions (109). The trend towards recognition of these customs probably begunm in 1961 when Sissons J. recognized that customary Inuit marriages were valid in ”Re Noah Estate• (110). The argument offered in that case for recognition of aboriginal legal relations rested on the view that it was practical to do so or that to do otherwise would cause unnecessary hardship (111). However, this rather tenative argument has now been bolstered by the ”Constitution Act, 1982•. In ”Re Tagornak Adoption Petition• (112), Morrow J. took the view that customary adoption was recognized and affirmed under sec. 35 of the ”Constitution Act, 1982• and went on to set out a legal test for recognition of a customary adoption (113). One of the requirements of this four-pronged test is that the party seeking judicial recognition of a customary adoption demonstrate that a rationale exists for the custom, such as the survival of the group.The difficulty with this requirement is that it may indeed be difficult to prove the existence of a rationale for certain customs and indeed the requiement seems to confleict with constitutionsl recognition of the custom in terms of the maxim sometimes applied by the court: ”cesante rationale lex, cesante lex•.
Moreover, it is unclear as to what weight should be placed on aboriginal customs when assessing damage claims. Grant (114) has described a case in the British Columbia Supreme Court (115) which held that evidence as to special damages incurred by the plaintiff, a chief in the village prior to an auto accident, was admissible. However, the description of the facts and the background to the case does suggest that many of the damages claimed could be viewed as frivolous and highlights some of the difficulties that could arise in the future should insurance companies or other parties challenge the validity of this evidence. Thus it would seem timely to define more carefully through either amendmentof the ”Constitution Act, 1982• or statutory mechanisms the place of aboriginal customary laws in the Canadian courts.
2) Admission of Land Use Studies
The experience of Inquiries in the northern parts of Canada's provinces and the territories north of 60 degrees lattitude have influenced current attitudes towards the admission of evidence in aboriginal litigation and created certain false impressions aboutevidence rules. Generally, the key impact relates to the impression that anthropological data establishing land use and occupancy patterns can and should be admitted into court and construed as a basis for the assertion of rights to land. Although such information has been admitted over the past few years by the courts, numerous conditions have been imposed on its admission as the ”Baker Lake• and ”Bear Island• cases show. Thus, it is important to briefly consider some of the arguments surrounding the future admission of this information (116). As the discussion above has suggested, the modern work of anthropologists and historians has contributed enormously to our appreciation of the dynamics of land occupancy in aboriginal societies. Land mapping projects in the Northwest Territories (117), the Yukon (118), Labrador (119) and British Columbia (120) demonstrate that native people have rich and detailed mental maps and recognize numerous spiritual,mythological and geographicÜf features in the landscape. Thus, while it is clear that aboriginal people do not assert land title in a conventional sense, their geographies of the land and representation of land use are as real to them as our own are to us. However, as noted above, this "evidence" could also be viewed as a species of "hearsay" in that the compiled information that it is based on often relies on the descriptions of land use practices of elders and parties who are not available to the court because they are already deceased.
The Berger Inquiry was an important innovation not only because this "hearsay" was admitted but also because it was given considerable weight (121). Despite the protests of the Arctic Gas Consortium (122) who complained that surveys and questionnaires are normally not allowed as evidence since there is no real opportunity to cross-examine on them, Justice Berger (as he thenwas) held that a flexible approach should be taken to this information. Since he was not bound to the laws of evidence, Berger J. also allowed a wide range of expert evidence to be given despite the fact the scientific data base upon which the opinions were based was sketchy. (123)
Whether Berger should have taken this approach is still a matter of controversy among certain northern scholars, primarily becauseBerger used the information to support the view that no pipelineshould be built as long as native claims were unresolved.In the eyes of his critics, Berger'sacceptance of enormous bodies of evidence and testimony about everything from nutritional matters to historic cultural practiceswas an educational and political exercise thatdid not necessarily confirm that native people had the right to freeze development in the Canadian north. Moreover, they felt thatBerger had unwittingly mislead many native people by adopting this approach and perhaps suggesting that our institutions would always be willing to admit oral history to confirm aboriginal title and rights.
Since the Berger Inquiry, the use of land use studies has becomemore important in many spheres of public policy-making that influences aboriginal rights. However, the acceptability of this evidence in court is by no means a settled point of law as the cases described abovehave shown and one probably cannot expect anything better than a collection of precedents, confusing or not, to emerge over the next decade in the courts.
In view of the potential for confusion on this matter,I would suggest that a special test should be devised to accomodate the admission of land use studies.One of the strongest arguments in favour of the admission of land use and occupancy research rests on the concept of natural justice. This deeply engrained principle of the common law requires that each party in an adversarial process be entitled to be given a proper hearing before a determination is made affecting their rights. (124) It is also important that the parties feel that they have had an adequate opportunity to place their case fairly before the decision-maker and perhaps the challenge and meet the evidence tendered against them.
Since aboriginal groups do not possess the documentary evidence confirming their "title to land" (and indeed often express disdain for the concept of land ownership) it would be unjust to allow decisions to be made on legal issues to the exclusion of this type of evidence. It could be argued that many aboriginal groups can only feel that their case has been fairly placed before a court or tribunal once this information on their economic history has been recognized as legitimate. Anything less than admission of this evidence would ensure that aboriginal groups continue to view our common law system as alien and unjust (125). Moreover I would contend that the growing sense among many aboriginal peoples that the common law can provide "legitimate justice" would be unravelled if this evidence is not admitted in a more lenient way in the future. .s3) Problems with the Current Approach to Judicial Notice
The discussion of judicial notice and other aspects of the laws of evidence have shown that discretion is often exercized in litigation on aboriginal matters. Thus, decisions on whether particular evidence tendered at trial is relevant or not often are uncertain.
In view of this discussion of the Canadian case law on judicial notice in aboriginal litigation, it is apparent that the Canadian position is unclear. The weight of authority supports the view that courts are prepared to act upon materials not formally proved and that are open to dispute. This appears to depart from the common law doctrine that resort to readily accessible documentary sources should only take place where the source is of indisputable accuracy and the matter is so notorious that it is not the subject of dispute among reasonable men.(126*)
The attempts in ”Calder• and to extend the scope of judicial notice in aboriginal cases raises the important issue of procedural fairness. When judges are allowed to inform themselves in the areas of history and anthropology by reference to text books and encyclopedias, the issue arise as to what procedural safeguards are needed for the parties to ensure that one particular view of the "truth" does not dominate the adjudication process. It could be argued that the Federal government and other opposing parties should be able to make submissions on whether the research should be carried out and have the right to put forward material and challenge materials used by the judge. (127)
This uncertainty creates particular difficulty for lawyers for numerous reasons of course, the first problem with widespread use of discretion is that certain judicial officers may abuse it (128). However, this does not seem likely to take place since native litigation is fairly infrequent. A second problem that is more serious is that uncertainity about admissibility of evidence may creae confusion because parties will not know how to prepare their case and may be unable to form an assessment of their prospects of success at trial.
An argument has been made that judicial notice does not in fact belong in the law of evidence but rather is part of the process of reasoning. Professor J. S. Thayer contends that judicial notice should not be rgarded as a matter of rules of evidence and perhaps does not deserve consideration here.(129) Similarly Eggleston (130) argues that a judge or juror cannot avoid drawing on personal experience but that in doing so he or she is not taking judicial notice.
In view of these different positions, what approach would seem to be appropriate in the future. One argument against the further expansion of current scope of judicial notice as the discussion of ”Bartleman• shows, stems from predictability. Any expansion of the right to act on materials not formally produced to the court would introduce unpredictability into the trial system. For example, it could be argued that it is always open to aboriginal groups to prove the propositions that are adopted by the courts. The problem is that the cost of such a process would likely be prohibitive and in the result, inequitable for aboriginal groups.
The propensity of the Canadian judiciary for use of judicial notice in aboriginal cases reflects an attempt to balance these inequities. Cynics might suspect that thecourts are attempting to make up for past misdeeds with respect to recognition of aboriginal rights through liberal use of the principle.In favour of this more liberal approach are case law in the United States which show that the common law on constitutional matters has developed in a similar way. (131) However, limits mustalso be ascertained and an argument could be made that this is a matterwhich ultimately requires the attention of Parliament. ”
This paper has sought to examine the evidentiary issues that have affected litigation on native land claims and customary law over the past few decades. My goal has been to show that certain innovations such as judicial notice have, on balance, served to redress imbalances, which might extend from formidable burdens of proof imposed by the courts in most civil litigation. While I generally endorse a liberal approach to this and other devices described above and support the progressive views of Chief Justice Dickson on rules of interpretation and construction as articulated in ”Simon•, it is also apparent modification of evidentiary rules are merely a surrogate for other changes. The sentiments that underly this interventionism may be admirable but perhaps the Canadian judiciary are merely covering festering wounds with band-aids. What is required are not new evidentiary tests but new statutory provisions for recognition of aboriginal title, customary law and other related matters such as self-government.
The advent of those rights may be some time off in the future, however. Thus, it seems indisputable that evidentiary issues will continue to play an important role in native litigation. If as Berger argues, "aboriginal rights are the axis upon which our relations with [Canada's] native peoples revolve"(132) then the evidentiary rules which shape recognition of those rights determine whether the axial revolutions move forward or backwards. Right now, I would suggest that the wheel is turning slowly but at least it is moving forward.
Some citations are incomplete
1. W. B. Henderson, "Litigating Native Claims" (1985), 19 L.S.U.C Gazette 174 at 185. Hereinafter: "Litigating Native Claims" See also "Problems of Proof in Native Litigation" (1986), Paper presented to "Practising Law for the Native Clientele," Canadian Bar Association - Ontario Section Seminar, February 6-7, 1986. Hereinafter: "Problems of Proof" Henderson is a leading Canadian practitionerin the area of native litigation. These two works (and deficiencies I percieved in them) partly inspired this paper and are cited liberally below.
2. For a more detailed analysis on this theme, see R.J. Delisle, Evidence:Principles and Problems (1984). Toronto: Carswell; at 2. See also, R. O. Lempert and S. A. Saltzsburgh, A Modern Approach to Evidence (1977). St. Paul: West Publishing.
3. 1975 2 Q. B. 55 at 63.
4. (1976). Toronto: Queen's Printer at p. xi.
5. Law Reform Commission of Canada, Report on Evidence(1975). Toronto: Ministry of Supply and Services, at p. 52.
6. K. L. Chasse, Reassessing the Law of Evidence (1975). Ottawa: Department of Justice, at 77.
7. Phipson on Evidence, 12th edition (1976). London: Sweet and Maxwell, at para. 3.
8. For a comparison of oral andwritten evidence in general terms, see L. Re, "Oral v. Written Evidence:The Myth of the Impressive Witness"(1983), 57 Australian Law Journal 680.Re shows that many of the ideas held about the validity of oral testimony (e.g. ability to detect liars, the psychological impact of written evidence)are not proved by modern research.
9. J.E. Cote, "The Reception of English Law"(1977), 15 Alberta LawReview 29.
10. Bryan A. Keon-Cohen, "Native Justice in Australia, Canada and the U.S.A.: A Comparative Analysis" (1982), 5(2+3) Canadian Legal Aid Bulletin 187.
11. See B. Morse, "Aboriginal Peoples and the Law" (1985) In: B. Morse (ed) Aborignal Peoples and the Law: Indian, Metis and Inuit Rights in Canada. Toronto: Carleton Library Series.
12. M. Harris, Cultural Anthropology (1983). New York: Harper and Row, at 29-32. Üf ÜŒ13. E. Y. Arima, "An Assessment of the Reliability of Informant Recall" (1976) in M. R. Freeman (ed.) Report of the Inuit Land Use and Occupancy Project. Ottawa: Department of Indian and Northern Affairs, pp. 31-38.
14. N. Rees, "Police Interrogation of Aborigines" in Bastens et al. (eds) The Criminal Injustice System (1982). Sydney: Stevens.
15. H. Brody, The People's Land (1975). Markham: Penguin. Anotherexcellent source on this discrepancy between oral and written culture is J. Cruickshank, "Legend and Landscape: The Convergence of Oral and Scientific Traditions in te Yukon Territory" (1981), 18(2) Arctic Anthropology 67. Cruickshank shows that native oral tradition cancontribute to western scientific knowledge in the Canadian North whenthe information yielded and the native subjects are approached sensitively.
16. For a critical assessment of the reliability of informant recall in the Inuit land use occupancy studies, see E. Y. Arima, supra note 13 , pp. 31-38.
17. For a detailed analysis on this theme, see J. E. Chamberlin, The Harrowing of Eden: White Attitude toward Native Americans (1975). New York: Seabury Press.
18. Bruce Trigger, Natives and Newcomers: Canada's Heroic Age' Reconsidered (1985). Montreal: McGill-Queen's University Press.
19. Although certain aboriginal societies also possessed map-making techniques they lacked media to transfer their knowldege between generation. Maps were "usually drawn in outline upon sand or snow, using a stick or fragment of bone to mark the surface of the medium" according to anthropologists. See J. Spink and D. W. Moodie, "Inuit Maps from the Canadian Eastern Arctic" (1976) in M. R. Freeman (ed.) Report of the Inuit Land Use and Occupancy Project. Ottawa: Department of Indian and Northern Affairs.
20. See Harris, supra note 12 at 109.
21. See Cote, supra note 9 at 69. Cote's discussion is based on the reception precedent, Sinclair v. Mulligan (1886), 3 Man L. R. 481 where it was held that a grantee could not make a transfer of land orally despite the fact that such a transfer would seemto accord with community norms because of the operation of the Statuteof Frauds.
22. Calder v. Attorney General of British Columbia (1968) 8 D.L.R. (3rd) 59 (B.C.S.C); 13 D.L.R. (3d) 64 (B.C.C.A.);Üf Ü rev'd 1973 S.C.R. 313. (Hereinafter: Calder) For an account of the legal and political background to the case, see D. Sanders,"The Calder Case" (1973), British Columbia Studies No. 19, Autumn 1973, pp. 1-25.
23. For discussion of the background to the Calder case, see T. Berger, Fragile Freedoms: Human Rights and Dissent in Canada (1982). Toronto: Irwin Publishing, at 219.
24. Ibid at 242.
25. Delisle, supra note 2 at 257. See also, J. Sopinka and Lederman, The Law of Evidence in Civil Cases (1974). Toronto:Butterworths.
26. J. M. McGuire, Evidence, Common Sense and Common Law (1947). Chicago: The Foundation Press at 24.
27. J. B. Weinstein and M. A. Berger, Weinstein's Evidence(1982). New York: Matthew Bender at 200-3.
28. Holland v. Jones (1917), 23 C.L.R. 149, at 153 per Isaac J.
29. 1960 Tas. L. R. 6, at 8-9.
30. Preston-Jones v. Preston-Jones, 1951 AC 391. For critical comments on this decision, see E. M. Morgan, Some Problems of Proof under the Anglo-American System of Litigation (1956). New York: Columbia University Press at 61.
31. Wigmore, Supra note at para 2583.
32. Morgan, Supra note 30 at 43. See also A. J. Keffe, W. B. Landis and R. B. Shaad "Sense and Nonsense About Judicial Notice" (1949-50), 2 Stanford Law Review 664 and P. B. Carter "Judicial Notice: Related and Unrelated Matters" in E. Campbell and L. Waller (eds.) Well and Truly Tried (1982). Sydney: Law Book Co. at 88.
33. R. B. Seidman, "Rules of Recognition in the Primary courts of Zimbabwe: On Lawyer's Reasoning and Customary Law" (1983), International and Comparative Law Quarterly 871, at 890;Cited in Henderson, "Problems of Proof", supra note 1 at 4.Henderson also reviews one or two aspects of judicial notice in "Litigating Native Claims", supra note 1 at 179-80.
34. Calder, supra note 22 at 169.Technically the first key precedent on judicial notice in native litigation was R v. White and Bob (1964), 10 D.L.R. (2d) 613 (B.C.C.A.). In that case Norris, J. A. held that the court was entitled to take judicial notice of the facts of history in interpreting theÜf Ü meaning of a statute. In Calderat 145, Hall J. extended this principle and confirmed that an appellate court may take judicial notice of facts for the first time and draw inferences from them, a contentious practice, as Sopinka and Lederman, supra note 25 point out at 365. Hall formulated the rule as follows: "The Court may take judicial notice of the facts of history whether past or contemporaneous (MonarchS.S. Co. v. A/B Karlshamas Oljefabiker, 1949 A.C. 196 at 234) and the court is entitled to rely on its own historical knowldege and research: Read v. Lincoln (Bishop), 1892 A.C. 644, Lord Halsbury at pp. 652-4." This passage was cited with approval by Morrow J. in Re: Paulette's Application, etc., 1973 6 W.W.R. 97 (N.W.T.S.C.)at 126 and has subsequently been upheld in numerousother lower court decisions, as the discussion, infra, suggests.
35. Berger, Supra note 23 at 242.
36. Calder, Supra note 22 at 169.
37. A discussion on this point is presented by J. Kaplan, "Decision Theory and the Fact-Finding Process" (1968), 20 Stanford Law Review 1065.
38. Berger, Supra note 23 at 243.
39. Simon v R. (1985), 20 D.L.R. (4th) ____.
40. R v. Syliboy, 1929 1 D.L.R. 307 (N.S. Cnty. Ct.).
41. Simon, supra note 39 at ___.
42. R. v. Bartleman (1984), 12 D.L.R. (4th) 73 (B.C.C.A.).
43. For a review of key ideas related to the doctorine of aboriginal title, see D. W. Elliott, "Aboriginal Title" (1985) in B. Morse (ed.) Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada. Toronto: Carleton Library Series; pp. 48-121.
44. Hamlet of Baker Lake v. Minister of Indian and Northern Affairs, 1980 1 F.C. 518 (F.C. Trial Division).
45. A. G. Ont v. Bear Island Foundation (1984), 15 D.L.R. (4th) 321.
46. For discussions of the case, see D. W. Elliott, "Baker Lake and the Concept of Aboriginal Title" (1980), 18 Osgoode Hall Law Journal 653 and J. E. Bickenbach, "The Baker Lake Case: A Partial Recognition of Inuit Aboriginal Title" (1980), 38 University of Toronto Law Review.Üf ÜŒ
47. Personal Communication from Mr. John Donihee, Director, Renewable Resources Department, Government of the Northwest Territories, Yellowknife, June 8, 1983.
48. For recent cases where aboriginal groups have acted as plainfiffs because of perceived environmental impacts eroding their aboriginal rights, see Palmer v. Nova Scotia Forest Industries (1984), 9 D.L.R. (4d) ___ and Bolton et al. v.Forest Pest Management Institute et al., 1986 2 C.N.L.R. 26 (B.C.C.A.). In both cases, the plaintiffs lost but the former case gained national attention and after it the federal Minister of the Environment said that the onus should have been on the the company to prove chemicals are safe prior to using them rather than upon the plaintiffs to show thatthere was a risk.For an argument in favour of reversing the onus (to shift it onto the companies), see D. W. Elliott, "Herbicides or Human Kind?: The Common Law Lessons of Palmer" (1986), Osgoode Hall Law Journal (forthcoming). Elliott acted as counsel for the plaintiffs.For the viewpoint of the opposing counsel, see George T. Cooper, "2,4,5 - T:A Case History in Regulation" (1984), Paper presented to the Seminar on Herbricides and Forest Renewal, Ottawa, Ont., Nov. 15, 1984.An innovative argument in favourof relaxing rules of proof but not shifing the onus is presented in E. J. Imwinkelried, "A New Era in the Evolution of Scientific Evidence -- A Primer on Evaluating the Weight of Scientific Evidence" (1981), 23 William and Mary Law Review 261.
50. 1978 1 S.C.R. 104.
51. (1823), 8 Wheaton 543.
52. (1832), 6 Peters 515.
53. In Bear Island this date was 1763 but the general rule according to Steele J. would be the coming of settlement to the claim area. Problems could arise with this test, however, as case law on reception shows. In essence, it is difficult to prove when the coming of settlement actually took place because there are not any threshold tests as to how many colonists constitute a settlement: for further discussion see Cote, supra note 9.
54. Henderson, "Problems of Proof" supra note 1 at 2-3.
55. R. Sutton, "$30 Million offered in Indian Land Claim", Toronto Star,Oct. 1, 1986, p. A19.
56. Baker Lake, supra note 44 at 533.
57. Ibid. Üf ÜŒ58. Elliott, supra note 43.
59. Baker Lake, supra note 44 at 558.
61. See, New Windsor Corp. v. Meller, 1975 3 All E. R. 44 (C.A.).
62. Procedures are available under both Federal and Ontario rules. the usual practice in the Federal court of Canada is to sere and file "Notice to Admit Facts and Documents" under Rule 468 (2) and (3). The content of the notice is then agreed to before filing. Moreover, it is noteworthy that under rule 346, costs will be imposed against a party who fails to admit agreed facts without reasonable cause. In the Ontario courts, rules 51 and 22.04(a) provides for agreement on material facts, the latter dealing with special cases. Thus, agreement to facts is an important an element of strategy in the litigation of native claims.
63. Henderson, "Litigating Native Claims" supra note 1 at 190.
65. Martin v. The Queen and Macmillan Bloedel Ltd., 19842 C.N.L.R. ____.
66. (1978), 87 D.L.R. (3d) at 344.
67. Ibid at 348.
68. Martin, supra note 65 at 35-6
69. See Office of Native Claims, In All Fairness: A Comprehensive Claims Policy for Canada, (1981). Ottawa: Department of Indian Affairs and Northern Development. This point is made in Henderson, "Litigating Native Claims", supra note 1 at 190.
70. Meares Island 1985 2 W.W.R. 577 (B.C.C.A.), leave to appeal tothe Supreme Court of Canada denied. For a critique of the decision and a consideration of Bear Island, supra note 45, see N. Bankes,"Judical Attitudes to Aboriginal Resource Rights and Title" (1985), 13Resources: The Newsletter of the Canadian Institute of Resources Law1.
71. On the use of archival information, see generally D. Pearce, "The Courts and Government Information" (1976), 10 Australian Law Journal 513. For a discussion of documentary evidence and the use of ancient documents, see Sopinka and Lederman, supraÜf Ü note 25 at 344.
72. (1981), 34 O.R. (2d) 360 (C.A.) at 367.
73. Guerin v. R. (1984), 13 D.L.R. (4th) 321 at 339 (SCC).
74. Supra, note 45 at 129.
76. Supra note 39.
77. For a summary of Canadian cases on the opinion rules, see Delisle, supra note 2 at 265. A critical view of these cases is also expressed in D.C. McDonald, "Opinion Evidence" (1978), 16 Osgoode Hall Law Journal 321.
78. 5th Edition, at 985.
79. 1947 O. R. 395 (C.A.) at 409.
80. R v. Miller (1959), 29 W.W.R. 124 (B.C.C.A.) at p. 136.
81. (1983), 31 C.R. (3d) 299 (S.C.C.) 305.
82. Ibid at 306.
83. German, supra note 79 at 409
84. R. v. Scopelliti (1981), 34 O. R. (2d) 524 (c.a.)
85. Cooper and Beatty Ltd. v. Alpha Graphics Ltd. (1980), 49 C.P.R. (2d) 145 (F.C.T.D.)
86. R v. Trait (1980), 5 Sask 19 (C.A.) and Baker v. Hutchinson (1977), 13 O.R. (2d) 591 (C.A.).
87. Baker, Ibid at 595.
88. R. v. Macdonald (1982), 52 N.S.R. (2d) 372 (C.A.)
89. R v. Erlendson (1981), 9 Man. R. (2d) 304 (Co. Ct. and R v. Medvedew (1978), 43 C.C.C. (2d) 434 (Man. C.A.).
90. R v. Fisher (1961) O.W.N. 94 (C.A.); aff'd 1961 S.C.R. 535.
91. On the question of appointment of court experts, seePhillips v. Ford Motor Co. Of Canada (1967), 2 O.R. 637 (Ont. C.A.). Here the court held that no statutory authorityÜf Ü exists to allow for the appointment of expert witnesses to assist the court. For an assessment of this rule and a review of numerous callsfor reform, see Delisle, supra note 2 at 297.
92. Baker Lake, supra note 44 at 552. For a general discussionon hearsay and expert evidence presented in the courts, see R. Pattenden, "Expert Opinion Evidence Based on Hearsay", 1982 Criminal Law Review 85.
93. Two representative works are P.J. Usher, The Bankslanders: Economy andEcology of a Frontier Trapping Community (1971), 3 Vols. Ottawa: Departmentof Indian Affairs and Northern Development; and P.J. Usher and Graham Beakhust, Land Regulation in the Canadian North (1973). Ottawa: Candain Arctic Resources Committee.For further discussion on expert evidence and partisan views in the contextof native claims, see P. T. Mahon, "Expert Evidence" Address to the 49th Congress of AN 2 AAS (1979), 6 New Zealand Law Journal 123.
94. Baker Lake, supra note 44 at 553.Compare these critical comments with Mr. Justice Morrow's attitude in Re: Paulette's Application, etc., supra note 34 to the evidence presented by Father R. Fumoleau, who has also made his passionate commitment to helping native people clear. It could be argued that the key differences here were (in order of importance) the nature of the evidence presented, the attitude of the court towards aboriginal rights and the issue being litigated and its consequences. Moreover, the evidence presented by Father Fumoleau was primarily historical and went towards explanation of the context in which Treaty 11 was signed, it was less contentious and notice of it could be more easily than that presented by Dr. Usher on behalf of the Inuit.
95. Ibid at 554.
96. 1978 1 F. C. 403 at 406. In this decision, Thurton C. J. of the Federal Court of Appeal held that "when an expert's affidavit does not contain a sufficiently detailed statement of the expert's reasoning so that the court could, in the absense of attack, adopt that reasoning as its own and decide the question that is the subject of his evidence on the basis of it, the party should not be allowed to supplement it by verbal testimony until a supplementary affidavit is filed containing such reasoning and the other side and the court have had an opportunity to consider it."
97. Rule 482 is set out in Baker Lake, supra, note 44 at551.
98. H. A. Hammelmann, "Expert Evidence" (1947), 10 Modern Law Review 32. Üf ÜŒ99. Bear Island, supra note 45 at 339.
100. M. S. Guttmacher, "Problems Faced by the Impartial Expert Witness in Court: the American View" (1961), 34 Temple Law Quarterly 369.
101. Rudy Plaitel, "Feds have all Experts, Manitoba Metis Claim"Globe and Mail, Feb. 25, 1986. For background on the Metis claim, see "Thomas Berger on Metis Land Claims", (1986) Canadian Dimension, (March-April).
102. See discussion, infra, at 38-41. For an argument in favourof admission of oral history though repetitive and often largelyhearsay, see Re Paulette's Application, etc., supranote 34. In that case, Mr. Justice Morrow stated the general rule on the admissibility of oral history as follows:.lm10.rm65.sp1 ... in my treatment of the sometimes repetitious statements of many Indian witnesses as to what their ancestors did, I have considered them as coming within the exception to the hearsay rule relating to declarations of deceased persons about matters of public and general rights. (at 126).lm5.rm70.sp1.s In favour of this proposition, Morrow J. cited the Australian precedent, Milirrpum v. Nabalco Pty. Limited (1971), 17 F.L.R. 141.Mr. Justice Morrow also noted at 119 that he found the oral history of the Indians most "interesting and intriguing" part of the case.
103. See Sopinka and Lederman, supra note 25 at 278 for discussionof the Best Evidence Rule in general terms.
104. Bear Island, supra note 45.
105. Ibid at 131-2.
106. Ibid at 133.
107. Baker Lake, supra note 44 at 553.
108. Ibid. He rested his admission on the proposition that an adequate sample of its contents was verified by the evidence which was admissible and presented by William Noah, the mayor of Baker Lake. .s.
109. N. Zlotkin, "Judicial Recognition of Aboriginal Customary Law in Canada: Selected Marriage and Adoption Cases", 1984 C.N.L.R. 1. For a general discussion on the rules of recognition in customary law cases and arguments about what is required to prove this in court, see Seidman, supra note 33 at 881.
110. (1961), 32 D.L.R. (2d) 185 (N.W.T.S.C.).Üf ÜŒ
111. Zlotkin, supra note 109.
112. 1984 1 C.N.L.R. 185 (N.W.T.S.C.).
113. Ibid at 187.
114. Peter R. Grant, "Role of Traditional Law in Contemporary Cases" (1982), 5(2+3) Canadian Legal Aid Bulletin 105
115. Gawa v. Horton and Watson (1982), Unreported. For adescription of evidence presented, see Grant, ibid at 109-10.
116. The author was a student researcher on land use patterns and socio-economic patterns in the summer of 1984 for the Yukon Indian Lands Mapping Project. A description of the project is presented in F. Duerden et el. "Mapping the Use Potential of Yukon Lands" (1983), In: J. W. Frazier et al (eds.) Papers and Proceedings of Applied Geography Conference, Vol. 6, pp. 193-197.
117. For Inuit studies, see Freeman, supra note 19. See also, M. Watkins (ed.) Dene Nation: The Colony Within (1977). Toronto: University of Toronto Press, for information on Dene land use.
118. Duerden, supra note 116.
119. See C. Brice-Bennett (ed.) Our Footprints are Everywhere: Inuit Land Use and Occupancy in Labrador. (1977) Nain: Labrador Inuit Association.
120. H. Brody, Maps and Dreams: Indians and the British Columbia Frontier (1983). Markham, Ontario: Penguin Books. Brody shows that the native interpretation of land is much more fluid but maintains that the excellent mental maps of hunter-gatherers are testimony to the close spatial connection they maintain with land. How this connection compares with the attachment demonstrated by agriculturalists to land is difficultto ascertain though. Undoubtedly this conundrum is at the rootof some of the difficulties that the courts have had with the idea of aboriginal title.
121. T. Berger, Northern Frontier, Northern Homeland: The Report of the Mackenzie Valley Pipeline (1977). Toronto: James Lorimer and Company Limited. See also,P. A. Larkin, "Science and the North: An Essay on Aspirations" (1978) In: Northern Transitions. Ottawa: Canadian Arctic Resources Committee for a discussion of the poor scientific record that Canada has in the Arctic. Nevertheless, although this scientific work is pioneering it is still defensible in terms of the rulesÜf Ü of "normal science" described by Karl Popper. For an analysis as to why such evidence should be admitted, see M. McCormick "Scientific Evidence: Defining a New Approach to Admissibility" (1982), 67 Iowa Law Review 879.
122. For a description of the Arctic Gas strategy, see R. Page, Northern Development: The Canadian Dilemma (1986). Toronto McClelland and Stewart.
123. This experience parallels that of many tribunals in common law jurisdictions that are not bound by the laws of evidence. For example, certain adminstrative appeals have the power to control the proceedings before them and decide how to weigh and act on the evidence tendered before them. In such tribunals unwritten rules can develop to control the admission of evidence, particularly where the issue involves a specific wrong-doing and hearsay evidence might have a bearing on the result. For further discussion, see J. Evans et al, Administrative Law: Cases, Notes and Materials (1984). Toronto: Emond-Montgomery, at 191..s
124. For an analysis of the dangers of excessive discretion and its consequences for the public perception of justice, see Lord Denning, Freedom Under the Law: The Hamlyn Lectures (1949). London: Stevens and Sons Limited, at p. 89-90. Denning cites cases where rental and pension tribunals acted without hearing evidence and without giving the party the opportunity to deal with the evidence and then goes on to argue "these cases do show that it is not possible to dispense with rules of evidence and procedure altogether. Rough justice may become so rough that it ceases to be justice." See also Evans et al., Ibid at_____.
125. See L, Nader and H. F. Todd Jr. "Introduction: The Disputing Process" (1978) in L. Nader and H. F. Todd (eds.) The Disputing Process -- Law in Ten Societies. New York: Columbia University Press; pp. 1-40.
126. K. C. Davis, "A System of Judicial Notice Based on Fairness and Convenience" (1969) Perspectives of Law. (Ed.) M. Weinberg. Berkeley: University of California. For another critical perspective on judicial notice, see G. D. Nokes " The Limits of Judidicial Notice" (1958), 74 Law Quarterly Review 370.
127. N. Brooks, "The Judge and the Adversary System" in A. M. Linden (ed.) The Canadian Judiciary (1976). Toronto: Osgoode Hall Law School, York University.
128. Davis, supra note 126.
129. According to Thayer, only the exclusionary rules properly form the subject matter of the laws of evidence. In his famous text, A Preliminary Treatise on Evidence at the Common Law,Üf Ü (1969).London: Rothman Reprints, he argues that the laws of evidence are not brought into operation until the relevant evidence is ascertained. Accordingly, the topics of relevance, burden of proof, judicial notice and presumptions should all be categorized as belonging under the head of legal reasoning.
130. R. Eggleston, Evidence, Proof and Probability, 2nd edition, (1983). London: Weidenfeld and Nicolson, pp. 143-4.
131. J. D. Holmes, "Evidence in Constitutional Cases" (1949), 23 A.L.J. 235.
132. Berger, supra note 23 at ____..pgedts