Why are courts enticed by explorer records (and why should they not be)?
Embracing problematic narratives to determine contemporary’ rights is puzzling and provocative for the questions it engenders. The charitable explanation may' be that courts simply wish to accommodate the aboriginal plaintiffs’ difficulty' in admitting evidence. The use of flexible principles, however, may in fact be the only prudent strategy'. Without it, there would be no familiar evidentiary' form to prove the critical element of the case.61 Reliance on the observational and authorial skill of early explorers to North America seems indispensable.
A softened or diminished evidential threshold requires more considered attention in its application to the explorer record. It privileges an imperial narrative, one which prioritizes the perspectives of agents of dispossession, subverting Canada’s reconciliatory efforts vis-à-vis First Nations.62 The liberal admission also has the effect of reinforcing culturally' entrenched assumptions about what constitutes good legal evidence and foreclosing a meaningful interrogation of these assumptions. In Narrative Fallacy,63 Doron Menashe and Hamutal Esther Shamash address the potentially' harmful impact of hegemonic stories in legal fact-finding.64 These accounts “provide familiar and comprehensible narrative frameworks within which to process information.”65 Easier admission of already conventional histories—those that are easiest to process cognitively—allows “fact-finders or parties to rely' on generally' accepted narratives to fill out stories about specific events.”66 Menashe and Shamash note that “fact-finders will assess relative plausibility of those ostensibly specific stories on the basis of their coherence with the general socially constructed narratives.”67 The imperial story' becomes entrenched as an epistemic paradigm, which cannot help but subordinate aboriginal perspectives in contradiction to the SCC’s efforts at their accommodation.
Archival practices
Explorer records are alluring to all parties in litigation. But how does one begin to assess judicial practices as a product of seduction rather than prudence? Ahousaht demonstrates not only juridical attachment to the authority of explorers, but also suggests a necessary’ proclivity' for archival associations. Why? Simply, the archive provides cover for what are otherwise problematic documents. It allays potential reliability concerns. The affinity' is particularly evident in the Court’s chosen lexicon. Use of the terms primary, records, repository.
and collection to describe the writings may have been convenient, but they also had the effect of being tropes for authority and credibility.
The plaintiff’s counsel was adamant that the Explorer Records were secondary’ sources. During the May 26, 2008 Mid-Trial Hearing, the plaintiff’s attorney stated:
It’s our submission that these records are secondary' sources in the way that they' have been compiled both in ancient times or at least in the 1700s and 1800s and they' have been reproduced now. In both circumstances, the way' they’ve been prepared makes them secondary sources, and these are sources that the experts have relied upon, have turned to.68
Despite the plaintiff’s contentions, the Court chose to call the documents primary. The Court stated:
The experts relied on a combination of what I will call primary evidence and secondary evidence. Characterized loosely, primary evidence is original evidence in the sense of being a first-hand description of an observation of an event. Primary' evidence may also be a study' of original artifacts ... Secondary' evidence is what I would call commentary. For convenience, I will characterize the Explorer Records as primary' evidence, though I acknowledge that they are not necessarily so in the truly historical sense.69
Despite the disclaimer, the approach is hazardous. By choosing to couch the documents in primary terms, the Court also enhanced their promise and status. Readers will perceive primary documents to occupy a privileged place from which authority and authenticity flows and from which factual inferences are more easily justified. The judicial choice of phrasing bolsters the archival association (as the root arch also denotes chief, principal, earliest in time). The danger resides in the exercise of rhetorical license to help construct an artificial, perhaps non-existent reality.70
The Court’s fact-finding process relied on accessing primary records and collections and then ordering, classifying, and generally disciplining such data in order to reach some factual finality—that is, a legal truth. It is difficult to resist the obvious comparisons: court as archive, judge as archivist, and judicial fact-finding as a process of archivization. Although parsing, ordering, and classifying are not unusual for courts, their relation to the concept of archive in Ahousaht is inescapable.
Underlying the Court’s method is a powerful mimetic force for archival action: legitimizing the explorer literature and justifying its own interpretation of this literature. Tom Nesmith’s comments on archival process are compelling for understanding the Court’s strategies:
Archivists not only attempt to acquire primary (or original) sources, or records, which are thus thought to have special (even unique) integrity as means of access to the past; they believe that providing information about the record “origin ” and respecting the original order of their creation are essential to ensure that archiving is a neutral means of communication of the recorded past?1
The Court defined certain historical events as relevant, and proceeded to measure and catalogue them into historical periods.72 The Court adopted an active role in constructing a “neutral” chronicle, while ensuring protection of the conventional historical narrative, at least as told by the European sources. Judicial Archivization cannot be entirely innocent or objective. The chosen facts have not merely been found, nor have past events simply retrieved or transmitted dispassionately. Instead, they have been disciplined to reflect cultural choices:
This mediation of reality occurs as archivists interact with broader process of archivization. Their personal backgrounds and social affiliations, and their professional norms, self-understanding, and public standing, shape and are shaped by their participation in the process. As they selectively interpret their experiences of it, archivists help fashion formative contexts of their work, which influences their understanding of recorded communication and position particular archives to do particular things.73
