community considerations for indigenous knowledge by darwin hanna of callison hanna, barristers solicitors 3945 w. 51

1. Community Considerations for Indigenous Knowledgeby Darwin Hanna of Callison & Hanna, Barristers & Solicitors3945 W. 51st Avenue, Vancouver, B.C. V6N 4C5Tel. 604-222-2374Fax 604-2374Email: darwin@chlaw.ca

2. Aboriginal Rights Section 35 of the Constitution Act, 1982: The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed Van der Peet Test In order to be an Aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right

3. Van der Peet & Delgamuukw rights and title may be established through oral history evidence. courts must �come to terms with oral histories of aboriginal societies�. A court must take into account the perspective of the aboriginal people claiming the right. aboriginal rights demand a unique approach to the treatment of evidence which accords due weight to the perspective of Aboriginal peoples. courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims and must interpret that evidence in the same spirit. To adapt the laws of evidence in order that oral histories as proof of historical facts can be accommodated and placed on an equal footing with the types of historical evidence the courts are familiar with.

4. Consultations Government and industry have a duty to provide full information to First Nation regarding proposed activity, development or decision Seek information from Aboriginal group about the impact a decision or action may have on the rights or interests of a First Nation Government and industry has a duty to fully inform itself on the practices of the Aboriginal group Avoid or minimize infringement Substantially address concerns Accommodate economic interests

5. Taku River Tlinglit 2002 BCCA Taku River Tlinglit expressed their concerns regarding the proposed re-opening of a mine in terms of Sustainability as a people Interference with their asserted aboriginal rights Systematic nature of the Tlinglit�s land use practices Reliance on land use system for sustenance

6. Taku River Tlinglit and Haida Nation 2002 BCCA Government and industry have a fiduciary duty to consult before there is determination that the First Nation has existing aboriginal rights Government and industry have a legally enforceable duty to consult with aboriginal people in good faith and to seek workable accommodations between aboriginal interests and the public interest, both aboriginal and non-aboriginal.

7. Taku River Tlinglit and Haida Nation Accommodation of concerns and economic objectives of aboriginal people Accommodation may be achieved through Amendment to plans addition of conditions to an activity; Creation of employment opportunities; Sharing of economic opportunities; and Opportunities for sub-contracting

8. Community determines outcome Assert community and economic interest to lands and resources Support development with accommodation of interests Take steps to honour way of life

9. Her Majesty The Queen In Right Of Canada v. Charles Benoit et al 2003 FCA 236 Trial Decision: Treaty 8 included promise of no tax Dene and Cree people believed that Canada promised a tax exemption Decision based on the following evidence at trial: 1899 Commissioners� Report, viva voce (oral evidence) of 3 witnesses, and an interview transcript Appeal Issue: Crown submitted that no weight should be afforded to Aboriginal oral evidence and that the Judge ignored contrary evidence Decision: evidence adduced at trial cannot support the conclusion

10. Judge wrongly excluded TARR Interviews: over 100 elders interviewed did not refer to taxation Judge erred by not considering: Oral History Interviews (1991 & 1999) 29 of 30 elders interviewed in the Cree language 1991 did not mention tax promise elders interviewed by an anthropologist in 1999 Bishop Breynat Affidavits from 1930�s � 49 affidavits - no mention of tax promise Father Fumoleau Book (1973) - no reference to tax promise Special Joint Committee Hearing (1946-8) to Review Indian Act - no submissions by Treaty 8 beneficiaries respecting Treaty tax exemption Trial Judge accepted one TARR translated interview (1972 &1975) Crown argued interview �rambling, repetitive and far from definitive� [para. 60] and agreed by judge Did not say beneficiaries given a blanket exemption Testimony at Trial � Viva Voce Evidence 1. elder � contradictory Evidence characterized as �sparse, doubtful and equivocal� � �not deserving any weight� [para. 69] 2. member - �equivocal and inconclusive� [para. 73] does not meet community standard as elder 3. elder - unswown affidavit � words of drafter not deponent evidence �sparse, doubtful and equivocal� [para. 98]

11. Stone J.A. quoted a Crown anthropologist regarding the weight of oral history evidence �oral history evidence cannot be accepted, per se, as factual, unless it has undergone the critical scrutiny that courts and experts, whether they may be historians, archaeologist, social scientists, apply to the various types of evidence which they have to deal with� �depending on the nature of the oral history at issue, corroboration may well be necessary to render it reliable�

12. Testimony of Knowledge Keepers Holders of Indigenous Knowledge may be questioned about the reliability of their knowledge: �� inquiries as to the witnes�s ability to know and testify to orally transmitted aboriginal traditions and history may be appropriate both on the question of admissibility and the weight to be assigned the evidence if admitted�: Mitchell v. M.N.R. [2001] 1 S.C.R. 911 at para. 33

13. Researching Oral History Be strategic and respectful Research provides insight into relationships extends the boundaries of existing knowledge Research can correct false or incorrect knowledge

14. Research Considerations Purpose Consent and Confidentiality Methodology Translation and Transcription Copyright.

15. Copyright Issues Copyright Act: rights & obligations Sole right of the copyright owner to reproduce or distribute in any material form, broadcast or perform any original literary, dramatic, musical or artistic work. Protects the form ideas or concepts are expressed in Requirement: originality & fixed Original Work: originate from author Product of labour & skill Expression of thoughts Fixation: Material form Capable of identification Permanent endurance Profit and control work Right to publish or prohibit others Term: Author�s life plus 50 years Expiration -> public domain

16. Oral Knowledge & Copyright Can stories be protected by Copyright? Must be original & fixed Creation story: storytellers version stresses, develops, deletes or modifies parts of story Stories are not protected unless fixed (i.e. taped, transcribed, written, translated) Multi-layers of copyright: storyteller, translator, transcriber, editor, compiler

17. Solutions to Copyright Protocol/Terms of Reference Agreement Release Assignment Informants retain copyright by agreement Held in Trust by Community Permitted and authorized uses

18. Informed Consent Research Guidelines to obtain consent from informants: Informed consent be obtained Consent should be in writing Provide information about research No pressure applied Free to withdraw Informed of the degree of confidentiality

19. Confidentiality Agreement & Policy Interview information will be kept confidential informants will be the copyright holders interview materials will be held in trust Informant is to receive copy of tape and transcript The interview information is for only specific purposes method for the informant to revoke their consent not publish, disclose or release interview information without the prior written approval on the informant

20. ABORIGINAL ORAL HISTORY: � continue to be vibrant maintain a record legal acceptance used for many purposes research considerations

21. Types of Oral History oral traditions of the community those oral traditions collected, translated transcribed, and published since contact.

23. STORIES communicate aspects of the culture socialize people into a cultural tradition validate hereditary claims to authority, prestige, lands & resources provide Information to undertake activities and practices provide entertainment

24. Uses of Oral History Constitution self-government service organization community plans, disputes, processes business endeavours specific land claims Consultations school cases aboriginal rights & title co-management

25. Stories provide: knowledge of the past An understanding about the origin of life instruction on beliefs, morals, and philosophy understanding for current events education