Definition and interpretation of fact in Canadian Aboriginal title litigation: A comment on Delgamuukw

• Author(s) / Creator(s)

  • Asch, Michael
  • Bell, Catherine

• Professors Asch and Bell argue that Aboriginal title litigation presents a unique set of evidentiary problems both for Aboriginal plaintiffs and the courts. The elements of proof of title are themselves imbued with an ethnocentrism which serves to ignore Aboriginal systems of land ownership and property transfer. Furthermore, the common law and statutory rules of evidence are at odds with Aboriginal oral historical traditions. The result is the rejection of much of the evidence adduced by plaintiffs in support of title, as illustrated by the decision in Delgamuukw. Our courts, they argue, will be appropriate fora for the just resolution ofAboriginal title claims only when the ethnocentric bent of Canadian law is acknowledged, and then replaced by an approach to fact-finding which starts from a premise of equality.

• Date created

  1994

• Subjects / Keywords

  • Native Title--British Columbia
  • Admissible Evidence
  • British Columbia
  • Land Titles--British Columbia
  • Indigenous Peoples--British Columbia
  • Culture
  • Law--Methodology

• Type of Item

  Article (Published)

• DOI

  https://doi.org/10.7939/R33X8411Q

• License

  © 1994 C. Bell, M. Asch, and the Queen's Law Journal. Archived with permission.