Ahousaht Indian Band and Nation v. Canada
Although the use of the explorer writings as evidence is not uncommon in the proceedings, Ahousaht Indian Band and Nation v. Canada22 is particularly notable for its robust discussion surrounding the explorer record. The litigants introduced a wide range of historical documents, offering readers a veritable archive of early explorer writings from Canada’s west coast. We find various journal narratives representing: texts at various stages of completion; conflicting texts or versions of the same account; and distinct classes of authorship, from questing-conquering authors and fur traders, to captive-victim writers and even non-observing editorial interveners. Moreover, the case also illustrated the attraction of explorer records for both the aboriginal plaintiff, who relied on explorer and trader journals to frame and sustain a viable claim, and defendants, who turned to many of the same explorers to refute the plaintiffs claims.
The plaintiffs were five aboriginal bands whose territories are on the west coast of Vancouver Island. Among their claims, the plaintiffs asserted an aboriginal right to fish on a commercial basis, a position refitted by governmental authorities. Aboriginal parties claimed that Canada Fisheries’ statutory and policy regimes unjustifiably infringed their right to catch and sell fish, severely limiting their harvesting opportunities, particularly on a commercial level. As a rights claim. Plaintiffs understood the need to prove that at 1774, the date of their first contact with Europeans, they already fished and traded in fish. The plaintiffs maintained that since before contact with Europeans, continuing to the present, they (and their ancestral predecessors) owned, used, and occupied territories within the claim areas. They also alleged that prior to and at contact they were a fishing people, whose way of life was characterized by trade, including the trade in fish. As required by the relevant legal test, the plaintiffs argued that these pre-contact practices translated into a modern aboriginal right to continue to harvest all species of fisheries resources within the claim areas and to do so for any purpose—from food and ceremonial reasons to trade on a commercial scale.
The complexity of fact-finding emerged at an early stage of the trial, during the May 26, 2008, Mid-Trial Hearings on the Admissibility of Ancient Explorer Records. The parties disagreed over the admissibility of the documents referred to by the Court as the Explorer Records.23 Dating from 1774 to 1874, the collection was comprised of “primarily the journals of the maritime explorers, traders, and missionaries who came into contact with the plaintiffs’ ancestors.”24 The defendant government requested that “Explorer Records be admitted into evidence for the truth of their contents,”25 despite their status as hearsay. The defendant relied on an obscure doctrinal “ancient document” exception to the hearsay rule or, alternatively, under the principled exception to the hearsay rule as described in R v Kahn, [1990] 2 SCR 531 and R v Smith, [1992] 2 SCR 915. The defendants went further, contending that the whole collection should be admitted (for the Court’s consideration) without the necessity' of providing independent evidence of their reliability, such as the testimony of an expert.26 The aboriginal plaintiffs countered that the Explorer Records were not ancient documents entitled to an exception to the hearsay' rule, were not free from suspicion, and were not admissible as evidence in their own right, for the truth of their content. The historical record, the plaintiffs submitted, was suspect because of “ghost written manuscripts, omission or embellishments in the reproduced text, unreliable translations, errors in observation and many other issues.”27
Despite their concerns, the plaintiffs nonetheless understood the value of these writings, asserting that Explorer Records were “necessary', useful evidence for determining historical facts necessary' to this case.”28 However, they insisted on a more measured assessment, which would require the special interpretive skills of expert witnesses, such as “anthropologists and ethnographers.”29 They maintained that experts could place records in context. The plaintiffs also advanced a narrower position that only' those passages specifically referred to by' the experts should form part of the evidentiary record. Critically, the disagreement demonstrated that the ultimate evidentiary' question for the Court was one of how to admit, and not whether to admit the Explorer Records into the evidentiary’ record.
Having to determine historical events, the Court chose admission of the hearsay evidence, as permitted by a principled method.30 The Court’s MidTrial ruling also seemed to split the difference between the parties: Madam Justice Garson would not limit the narratives’ admission to specific passages, but instead would admit entire documents. However, the Court would have to determine reliability, which could require the use of expert witnesses.31 The Court paved a way for early explorers to be “present” in the contemporary proceedings:
These Explorer Records were used testimonially, mostly as eyewitness accounts of post-contact indigenous activities. And with the aid of expert witness testimony to construct a framework for inference, the Explorer Records were submitted, in particular, to support the first element of the claim: the existence of pre-contact trade by the plaintiffs ancestors ,..32
The Court thus “received testimony” from Captain James Cook; the Spanish explorers Juan Perez, Bruno de Hezeta, and Don Estevan Josef Martinez; the Spanish naturalist Jose Mariano Mozino; the American fur trader (captive of the Nuu-chah-nulth and Chief Maquinna) John R. Jewitt; Alexander Walker of a British fiir trade expedition commanded by James Strange; British fur trader John Mears; and several other “explorers” and early “ethnographers” of the west coast and island of Vancouver.
Ultimately, the Court was swayed by the plaintiffs rights-based claims. As far as the weight of evidence is concerned, the Cook and Jewitt journals,33 in particular, seemed to persuade the Court. John R Jewitt was a captive of the Nootka from 1803 to 1805, who published his journal in 1807. The plaintiffs (and plaintiffs expert) relied principally on this version. Subsequently, Richard Alsop interviewed Jewitt and published The Adventures and Sufferings of John R. Jewitt (1815). The defendant’s experts relied on this version of Jewitt’s account. The judge, as the appellate court noted, also placed “some reliance” on the narratives of Gilbert Sproat, Scenes and Studies of Savage Life,34 a settler and colonial bureaucrat whose ethno graphic report was published in 1868.35 The factual findings were also tempered by a court coming to terms with its own limitations. The Court stated:
The task facing courts in aboriginal rights and title cases is one usually reserved for historians, anthropologists, archaeologists, and ethnographers. Courts have sufficient difficulty determining what happened a few months or years ago, never mind a few centuries ago.36
These concerns were not new. Indeed, Madam Justice Garson adopted Justice Binnie’s analysis in an earlier aboriginal rights case before the SCC (R v Marshall): “The Courts have attracted a certain amount of criticism from professional historians for what these historians see as an occasional tendency on the part of judges to assemble a ‘cut and paste’ version of history” (Binnie’s citations omitted).
Madam Justice Garson continued, referring to Justice Binnie’s view that:
While the tone of some of this criticism strikes the non-historian as intemperate, the basic objection as I understand it, is that the judicial selection of facts and quotations is not always up to the standard demanded of the professional historian, which is said to be more nuanced. ... The law sees a finality of interpretation of historical events where finality, according to the professional historian, is not possible. The reality of course is that the courts are handed disputes that require for their resolution the finding of certain historical facts. The litigating parties cannot await the possibility of a stable academic consensus. The judicial process must do as best it can.37
The Court’s ambivalence manifested an acute self-awareness of its discipline’s limitations, while implicitly exposing an attachment to the law’s narrative: (1) that history’ is knowable and determinate and (2) that there exists a specific site that contains the necessary knowledge for the determination of facts. It must be so. Without the existence of historical quarry' from which to mine facts, disputes over aboriginal rights and title could never be resolved and adjudicated. The Explorer Record, the archive, exists to service the legal tests for aboriginal rights and title.
