The challenges facing expert witnesses dealing with Aboriginal People issues

Aboriginal people

Introduction

The Aboriginal people have always had laws, governments and some means of settling their disputes within their own communities. The Aboriginal societies in the northern America had dynamic cultures that constantly adapted to meet the circumstances that change. According to Bell (23), they have never given up their original rights of governing themselves in line to their cultures and customs. Although successive governments have tried diminishing or interfering with that right, and making a replacement with their “Aboriginal governments” concepts, they have been unsuccessful. There are many numerous challenges faced by expert witnesses in court cases dealing with Aboriginal issues. Culhane (66) asserted that the systemic, daily cultural discrimination inflicted on the Aboriginal people by the existing justice systems, diminishes and demeans the relevance and importance of their cultures, beliefs and their languages. The essay will discuss the challenges faced by the expert witnesses in court cases, how they overcome the challenges and the experiences of expert witnesses in the court cases involving the Aboriginal issues.

The challenges facing expert witnesses in a court of law when dealing with Aboriginal issues 

  1. Lack of knowledge of the history of the Aboriginal people by the judges and court officials

In his book, “Telling It to the Judge,” Ray (39) elaborated on the problem which expert witnesses experience in courts. The role of the expert witnesses is to educate the courts on the place of the aboriginal people in the Canadian history. However, the challenge faced by the expert witnesses is the lack of understanding by the court judges of the histories of the aboriginal people and their treaties. The scholarly duty of the expert witnesses of retelling these histories along critical and complex lines is bound up by the ever-changing legal understanding of the rights of the aboriginal people. Ray (39) further pointed out the differences between this debate spheres that overlap and their understanding, for the scholars or the expert witnesses, the past remains open and is alive to reinterpretation while the courts needs the historical facts that will lead to cases being decided and closed.

  1. Weight given to the oral evidence by the court officials

Another challenge faced by the expert witnesses is the problematic reception of the oral history and ethno history by the Canadian courts as presented by the witness experts. Ray (53) highlighted the frustrations and pleasures of the witness experts when dealing with the aboriginal issues in the courts. For instance, the oral evidence presented in the courts in the extensive research on many Ontario fishing claims. After producing much evidence, none of the cases come to trial and even the courts cited frustrations in dealing with cases.

Bell (25) provided a detailed explanation of the frustrating exchanges in the court rooms with the judges and the crown counsel. The expert witnesses doubles and plays the roles of a teacher who attempts to educate the judges, in the unusual courtroom which is not a scholarly setting. Culhane (69) also observed that the judges of the court  seem not to know what to do with the oral history, particularly when it comes to analyzing and weighing it in the scale compared to other forms of evidence that are familiar.

  1. Discourse in the courts

There exists profound differences in the Aboriginal and the other dominant justice systems, and this is a great challenge to the expert witnesses. Other justice systems in the European traditions are always adversarial. After an accusation has been made against a person, the legal advisers representing the defendants and the plaintiff confront each other before a jury or an impartial judge, and the witnesses are called to testify. Bell (24) pointed out that the concepts of accusation, adversarialism, guilt, confrontation, retribution; criticism and argument are alien to the expert witnesses. Furthermore, witness experts find it challenging to criticize others as it is in odds with the non-interference principles, freedom and individual autonomy. The idea that innocence and guilt can be decided on argument basis is incompatible with expert witnesses as their work is present scholarly evidence based on oral and written history (Culhane, 67).

The contraindications in the dominant justice system, results in heavy burden being placed on expert witnesses. Criticisms and accusations when giving adverse testimony that are required in the dominant justice systems, are according to (Fisher, 35), precluded in the value systems of the witnesses which tries to avoid confrontation and criticisms. This is a great challenge as reluctance or refusal to testify, or when making a testimony, an individual gives anything most emotionless, but the barest recital of events is because of the cultural behavior that is deeply rooted. It is ethically wrong to in Aboriginal societies to say very critical, hostile, implicitly wrong things on an individual in her or his presence.

  1. Language issues

The expert witnesses in court cases have language problems with the Aboriginal communities, and this is a great problem. The courts do not offer interpreters for the Aboriginal people. This brings the fundamental question whether of the pressing omission, and if whether they understand the concepts that underlie their languages used in the legal system, even translators and interpreters are used. The problem is that the courts, lawyers and police conducts business in a language that is neither the mother tongue of the Aboriginal people nor the second language of the Aboriginal people (Patterson, 19). Moreover, another serious challenge is whether the dominant society’s legal terms can be translated to the Aboriginal languages. However, if it can be done, is the same concept being relayed?

Moreover, the expert witnesses say only what they experienced or observed. Habits that are culturally ingrained such as respect for others and other people’s opinions, of being willing to be corrected, of doubt concerning a person’s righteousness, account s for the willingness and readiness with which the Aboriginal witnesses readily appear to change their testimony.

How these expert witnesses overcome these challenges

Ray (32) suggested that the issues of the native rights should be discussed and negotiated between the native leaders and the government. For the past decade, the issue that has cropped up is whether there exists a right that prevents the law enforcement against the Aboriginal people. Unless the country believe that Aboriginal people may do whatever they wish, with no respect to the dominant laws, it is significant that boundary be drawn between the universal laws and the laws that must be bent to protect treaty and Aboriginal people by the courts.

There have also been proposals by the expert witnesses as part of carefully constructed strategy to the parts of their communities and their Aboriginal leaders to test certain laws to their Aboriginal people. Similarly, the cases of individual’s product choice, where an Aboriginal person is accused of going against the law, and she or he argues a right of a treaty to do an offence. Reid (2) pointed out that many of the individual have no native community support. However, it is possible to adopt a case for an individual for the native community.

Conclusion

In conclusion, there are many lessons that can be learning from the experiences and the challenges that the expert witnesses experience in the Canadian law courts. The strongest approach that expert witnesses and the government should adopt is to accept the qualified expert witnesses, and oral historians as qualified experts in their own rights. This will need much broader acceptance, understanding and incorporation of the aboriginal laws. This will be better than what the courts are ready to prepare and to consider presently. This concept is an important contribution to the complex task of coming up with new ways for the Canadian courts and the aboriginal communities to work together.

Work Cited

Bell, D.G., “Historians and the Culture of the Courts” Acadiensis 28 (1) 1988: 23 – 26. Retrieved from http://journals.hil.unb.ca/index.php/acadiensis/article/view/10829/11637

Culhane, Dara, “Adding injury to insult: Her Majestry’s Loyal Anthropologist” BC Studies 95 (1992): 66-92. Retrieved from http://ojs.library.ubc.ca/index.php/bcstudies/article/view/1438/1482

Fisher, Robin, :judging History: Reflections on the Reasons For Judgement in Delgamuukw v. BC” BC Studies 95 (1992): 34-54. Retrieved from http://ojs.library.ubc.ca/index.php/bcstudies/article/view/1436

Patterson, Stephen E., “Historians and the Culture of the Courts” Acadiensis 28 (1) 1988:18-2. Retrieved from http://journals.hil.unb.ca/index.php/acadiensis/article/view/10828/11635

Ray, Arthur J., Telling it to the judge: Taking Native History to court, Montreal: Mcgrill Queen’s University Press, 201. Retrieved from

https://bcstudies.com/reviews.php?id=838777

Reid, John G., Williams C. Wicken, Stephen E. Patterson, D.G. Bell, “History, Native Issues and the Courts: A forum” Acadiensis 28 (1) 1998: 1-5. Retrived from http://www.jstor.org/stable/30303162

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Fault lines in Canadian Society

The Aboriginal /non-Aboriginal Fault lines in Canadian Society

Introduction

There are existing tensions or fault lines in Canada amongst different regions. Fault lines according to Bone (2012) are the geological phenomenon where there are cracks on the crust of earth due to the tectonic forces. In relation to Canada, fault lines are political, social and economic cracks that divide people and regions and they also threaten to destabilize the integrity of Canada as a nation. According to Bone (2012), the geography of Canada is characterized by four tensional fault lines, and they include; English and French Canadians, Aboriginal and non-Aboriginal people, centrist and decentrist forces, and the immigration forces. These are the forces that have ensured Canada remain a nation of regions. There are six regions in Canada and they include Quebec, Atlantic Canada, Western Canada, Ontario, territorial north and British Columbia. The essay will majorly discuss the Aboriginal/ non- Aboriginal fault line by comparing and contrasting the circumstances of their current existence in certain physiographic regions in Canada.

The Aboriginal/no-Aboriginal fault line

The 1982 Constitutional Act referred to the indigenous people of Canada which includes Métis, Indians and the Inuit as Aboriginal peoples. This means that they are the Canadian people who trace their ancestry to the native inhabitants of Canada who came from North America before the Europeans came in 15th century. The non Aboriginal people have no ancestry or blood relations to the Aboriginals. Status (registered) Indians has certain rights according to 1985 Indian Act and registered and acknowledged by the federal government such as exemption from generated tax from reserves. The non-status Indians are not registered but have Indian ancestry hence has no rights according to the Indian act. Similarly, the Treaty Indians are registered Indians who can prove descent from the band that signed treaties and hence has legal rights of living in reserves. The Inuit are located mainly in Arctic, while the Métis are individuals of North American and European Indian ancestry.

Harring & OSCLH (2013) pointed out that the Aboriginal/non Aboriginal front line in Canada is the most complex one. Its complexity is as a result of the historical relations tangled between the European settlers and the Aboriginal people. The first entanglement occurred between the Aboriginal peoples and the British crown and later Ottawa. According to Bone (2012), the class between the settlers and the natives for land, the federal governments’ forced assimilation policies added to the complexity and further solidified the distrust of the Aboriginal people to the crown and the Canadian state. The policies which failed to create a big difference between the Aboriginal people and the other parts of Canada. The consequence later was a disaster to the Aboriginal people who were pushed to the Canadians society’s margin, faced racism, ended up dependant on Ottawa and became ignored and invincible Canadian society members. An example of their isolation as observed by Harring & OSCLH (2013) are the treaty Indians got the vote participate in federal elections only in 1960

Circumstances of the current existence of Aboriginal people in Eastern Woodlands of south Ontario and Quebec in the Grand River Valley

  1. The Haldimand Grant

In 1763, the British formed an alliance with Pontiac, the chief of Odawa as well as other Indian leaders with an aim of holding the Ohio valley lands. George III strategically issued a royal proclamation in 1763 which west of Appalachian Mountains as the lands for the Indians (Bone, 2012).

However, after the American Revolution in which the Americans won, the proclaimed Indian lands in the Ohio valley ceased existing as many settlers hungry for land spread across the Appalachian Mountains. Moreover, the defeated Indians moved to Canada where they received the first major land grant termed as the “Haldimand Grant of 1784” (Harring & OSCLH, 2013). According to Bone (2012), the main purpose of the grant was to reward the Indian Iroquois who fought alongside the British during the American Revolution. Bone (2012) highlighted that lord Haldimand, the Governor of Quebec, in his proclamation prohibited the sale or lease of the land to anybody but only the government. The said tract of land extended from Grand River source in the present southwester Ontario to the river’s mouth at Lake Ontario. This explains the circumstances of the existence of the Aboriginal people and non existence of the non Aboriginal people around the area of the Grand River between lakes Huron, Erie and Ontario.

Circumstances of the current existence of Aboriginal people in Nunavut, Northwest Territories, Quebec ad Labrador

  1. Taking over of the Indian rights by Canada

The 1867 British North America Act shifted the responsibility for the Aboriginal people from Great Britain to Canada (Harring & OSCLH, 2013). Subsequently, the government of Canada enacted the restrictive Indian act. The effect of the legislation was to isolate the Indian tribes from the rest of the Canadian society, in addition to stripping them governance powers. This was based on assumptions that the Indians cannot govern themselves or manage their affairs. Therefore, the federal government through the Department of Indian Affairs was entrusted with the duty to be their guardian until they were fully integrated into the Canadian society (Harring & OSCLH, 2013). This was in contrast to the Haldimand Grant which gave the aboriginal people land, allowed them to govern themselves and did not implement restrictive laws to the Indians.

Bone (2012) indicated that the federal department consequently intervened in many issues including management of the Indian lands, band issues, money, and resources with the main aim of assimilating them into the Canadian society. This promoted dependency and left the affairs of the bands on the hands of the local agents who were Indians, hence suppressing the initiatives of the Indians (Bone, 2012). The isolation of the Indians in Canada was done by denying them citizenship rights including voting rights. In contrast, the British crown did not create dependency from the aboriginal people. Moreover, they did not manage the land on behalf of the Indians like the federal government of Canada does.

As much as the Indians were being suppressed in reserves, the Métis and the Inuit were not included in the Act but they also had to live in the Canadian society where they were not fully accepted. Currently, the Inuit have homes in Nunavut, Quebec and even Labrador.

  1. Land claim treaties

With almost the whole of the British Columbia province tied up in several land treaties, the relationship between the Aboriginal and the non Aboriginal communities are highly strained. According to Harring & OSCLH (2013), the Aboriginal rights are collective rights that originate from the occupation of land by the Aboriginal people before contact. These treaty rights apply mostly to the Inuit and the status Indians unlike the Métis who are less protected by the rights. When the governance of the federal government and the British crown are compared, there are similarities in that both embraced treaties with the aboriginal communities on land and settlement issues

  1. Métis Rights

The less protection of the Métis by the Aboriginal rights stems back from 1870 when the Ottawa accepted that the Métis has Aboriginal rights because of the Indian ancestry (Bone, 2012). The government further gave individual members of the Métis community land grants in a three component agreement. The first component of the agreement indicated that the occupied land before 1870 by the Métis became private property, second the Métis children had eligibility of 140  acres, and lastly each Métis family head received in scrip 160 acres which could be sold or claimed in Manitoba. Furthermore, the federal government of the day set 1.4 million acres in Manitoba for the estimated 10,000 Métis children in 1871(Bone, 2012). However, the allocation was increased to 240 acres after census which found there only 5000 Métis children (Bone, 2012). However, Harring & OSCLH (2013) pointed out that few Métis people claimed their land allocated to them and majority sold leaving them landless. Compared to the Indians of the Grand River Valley, there is similarity because both Métis and Indians were given land by the authorities of the day

As much it is a historic fact that many Métis dispersal from the Red River Valley, the reasons for their dispersal remains a controversy with two interpretations. According to Ottawa, the rights were distinguished in accordance to Manitoba Act of 1870 by giving the scrip to the Métis. This is supported by Harring & OSCLH (2013) who argued that the federal government of that time did not act in bad faith as much it was slow in settling the claims by the Métis. In contrast, Bone (2012) argued that the Métis communities were victims of federal government’s deliberate conspiracy to prevent the land of Métis community in Manitoba. However, the matter was settled by the Supreme Court in 2013, in a case filed by Manitoba Métis Foundation, which ruled in favor of the Métis.

  1. Treaty rights

The treaties favored the Aboriginal people because they defined the reserve lands that were collectively held by the band in addition to negotiating other beneficial rights for the communities. Harring & OSCLH (2013) elaborated that there were different reasons for signing treaties and it depended on the historical contexts. For instance, late 19th century treaties were signed to remove others tribes for the settlers. To the Aboriginal people, any treaty to them was a land promise as well as a shift support from hunting and nomadism to more settled farming. Therefore, this was a protection from the influx of the settlers during that time and a guarantee of government protection.

Bone (2012) pointed out that the conflicting ideas from the crown authorities and the first nation, on the treaties significance shaped the relations between non Aboriginal and Aboriginal people. For instance, during the crown authorities viewed the treaties as mechanisms for extinguishing the rights of the Aboriginals and the land titles and hence opening up the lands for the settlers to do agriculture. In contrast, the Aboriginal people understood the treaties as agreements between the authorities to share resources and land. With the diverse perceptions, it was inevitable to have disagreements between the Aboriginal and the non Aboriginal people.

Modern treaties

For many years the legal meaning of Aboriginal land title has changed until 1970, when Ottawa recognized two land rights forms, which are the reserve land and the crown land. The reserve land was a type of ownership or right where the government of Canada held land for the Indian people. In contrast, the Indians had limitless right to use the crown land for trappings and hunting. This implies that the Indians were allowed to freely enjoy and use the crown land the crown lands without making any claims on it in form of ownership. According to (Harring & OSCLH, 2013), the crown lands included the lands where there were no settlements in Canada. However, the Aboriginals, the Métis, Inuit and Indian families lived and used the crown lands to fish, trap and hunt. However, Bone (2012) pointed out that the provincial governments and the federal governments could sell the crown lands to corporations or individuals or even lease them for specific purposes such as logging or even mineral exploration without compensating the Aboriginal inhabitants and users of the land.

As much as many groups among the Aboriginal people did not have treaties with the federal government and therefore no control over the lands, many events changed this situation radically. To begin, the emergence of the emergence of educated leaders who understood legal and political systems who used the courts to force the provincial and federal governments to address issues o the Aboriginals concerning land claims. For instance, the Nisga’a residing in northern British Columbia took their claim for land in court in a case known as the Calder case. As much as the Supreme Court in 1973 ruled against their favor narrowly, six out of the seven judges were in agreement that the title for Aboriginal on the land existed at the confederation time in brutish Columbia. Similarly, that same year, the federal government was in agreement that the Aboriginal people who had not signed a treaty may also have a claim on the crown lands (Bone, 2012).

Conclusion

In conclusion, as Bone (2012) proposed, there exist fault lines in Canadian society. The current existence of the Aboriginal/ non Aboriginal fault line in Canada in some parts of Canada has been due to many circumstances. The Haldimand Grant occurrence saw the existence of the Aboriginal people around the Grand River valley. The taking over of the Indian rights by Canadian federal governments has seen suppression, restriction and confinement of the Aboriginal people in reserves and this also explains there existences in certain parts. Moreover, the treaties signed between the Aboriginals and the crown authorities and also with the cabadian federal   governments in a bid to protect their land rights have seen the existence of the Aboriginals in certain parts of the country.

References

Bone, R. M. (2012). The Canadian north: Issues and challenges. Don Mills, Ont: Oxford University Press.

Harring, S. L., & Osgoode Society for Canadian Legal History. (2013). White man’s law: Native people in nineteenth-century Canadian jurisprudence. Toronto, Ont: Published for the Osgoode Society for Canadian Legal History by University of Toronto Press.

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