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Indigenous - Evidence - Oral History. Little Black Bear First Nation v. Kawacatoose First Nation
In Little Black Bear First Nation v. Kawacatoose First Nation (Fed CA, 2024) the Federal Court of Appeal dismissed a JR challenging a Specific Claims Tribunal (SCT) claim, here where the SCT excluded certain First Nations as beneficiaries from Indian Reserve No. IR 80A.
Here the court considers oral history authorities as a source of evidentiary precedent:[43] Finally, the Tribunal considered precedents on the use of oral history evidence in the adjudication of historical claims. The Tribunal employed the term "“Indigenous perspectives”" to describe the perspectives of the First Nation Elders and life speakers (Elders) who appeared as witnesses, regardless of whether or not the information was passed down by ancestors or these witnesses had personal knowledge.
[44] The Tribunal noted that the oral history authorities referred to by the parties arose in a different context – Indigenous rights and title litigation. However, it observed that "“the principles of necessity, reliability, relevance, and reconciliation are not logically restricted to that setting.”" (Decision at para. 153).
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(2) Conclusions on oral history evidence
[46] The Tribunal heard evidence from 14 Elders called by some of the Claimants to testify as to their First Nation’s use of, sense of entitlement to, and historical relationship with IR 80A.
[47] The Tribunal found that, in sharing their Indigenous perspectives, the Elders had "“accurately recounted the information passed down to them”" (Decision at para. 250). However, the Tribunal also concluded that the Elders had different understandings regarding the entitlement of their First Nations and other First Nations to IR 80A. The oral history evidence of the witnesses "“conflicted from one First Nation to another as well as internally among witnesses from the same First Nation”" (Decision at para. 245). The Tribunal comments that the differences, variations and inconsistencies" “undermined their evidence, both on an individual and overall basis”" (Decision at paras. 249, 251). This finding included the Applicants’ witnesses (Decision at paras. 245-246).
[48] In addition to its comment concerning inconsistencies, the Tribunal expressed skepticism about the testimony of some of the Claimants that their entitlement to IR 80A stemmed from an oral promise that was part of, or related to, Treaty 4. The Tribunal stated that this testimony came "“with little elaboration or underlying factual basis”" and the evidence as presented "“was not sufficiently developed to support a finding that a promise of fishing station reserves was made at the time of Treaty adherence…”" (Decision at para. 252).
[49] Finally, the Tribunal discussed evidence to the effect that all Claimants used IR 80A. The Tribunal found that this evidence demonstrated all Claimants had a strong attachment to IR 80A through their historical use and cultural perspective. However, it added that this attachment would not be enough to establish entitlement to IR 80A "“unless it can be shown that the Crown was aware of it and was motivated to act upon it.”" (Decision at para. 262).
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