Nuchatlaht v British Columbia, 2021 BCSC 370

Motion dismissed. The Province opposed the admission of an archaeologist’s report on culturally modified trees in an underlying Aboriginal title claim. It raised issues of bias or impartiality, novel approach, qualifications and necessity of the opinion. The report reached the threshold of requirement of admissibility.

Indigenous Law Centre CaseWatch Blog

Mr. Earnshaw, an archaeologist, was asked to address the following by plaintiff’s counsel in an underlying Aboriginal title claim: 1) perform reconnaissance surveys within the Nuchatlaht claim area to understand the condition of recorded Culturally Modified Trees [“CMT”] sites as well as search out and record other previously unrecorded archaeological sites; 2) prepare written reports outlining findings; and 3) prepare a written expert report that includes the extent of archaeological research into the claim area, and what the archaeological record shows concerning the use and occupation of the claim area.

Mr. Earnshaw defined CMTs as archaeological features that refer to any tree with modifications related to the cultural use of the forest by Indigenous people. He testified he was impartial with respect to his opinion (White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23). Experts are experts because they focus on a particular area. They may even express an opinion or theory in their writings, for example, that the less tread there is in a tire the tire more susceptible it is to hydroplaning. That does not mean that their evidence within that area should not be admitted.

Novel theory must be scrutinised at the admissibility stage (R v Bingley, 2017 SCC 12; R v J-L-J, 2000 SCC 51). However, the closer the opinion gets to the ultimate issue, the greater the scrutiny (R v Mohan, [1994] 2 SCR 9). Here the opinion does not approach the ultimate issue. The basis for Mr. Earnshaw’s opinion is not completely untested as it was contained in his thesis and one peer-reviewed article, and he has acknowledged the limits of the report. For example, he said he could not determine which groups were responsible for creating the archaeological sites. This is not a scientific report with formulas and calculations that makes it impossible for the Court to assess.

Mr. Earnshaw completed his master’s thesis on CMT studies on the Northwest Coast and is working on multiple archeology sites in BC, including several along the coast. He might not be a senior person in his field, but he meets the threshold requirement for admissibility (R v Marquard, [1993] 2 SCR 223). Mr. Earnshaw’s report may not give the near-conclusive evidence needed for the plaintiffs but nevertheless it is not irrelevant. The overall question of whether the pitfalls of admitting the report outweigh its usefulness, the Court concludes the report ought to be admitted.

Cowichan Tribes v Canada (AG), 2019 BCSC 1922

Indigenous peoples’ claims require flexibility in order to be fairly adjudicated, but that is not a blanket admissibility of evidence. As with oral history, proving colonial documents has similar difficulties and should only be submitted following an assessment of their reliability.

Indigenous Law Centre
Indigenous CaseWatch Blog

The plaintiffs seek declarations related to Aboriginal title to lands along the south shore of Lulu Island in the City of Richmond. They also claim fishing rights as the Cowichan people had a semi-permanent fishing village called Tl’uqtinus along the south arm of the Fraser River. There is heavy reliance on oral history and hearsay evidence contained in thousands of historical documents and on expert evidence to provide an opinion on the nature and character of the occupation by the Cowichan peoples in the past.

The plaintiffs submit that the defendants improperly objected to the admissibility of the documents. They submit that all of the documents should be admissible for the prima facie truth of their contents, leaving the question of reliability to be considered when assessing the ultimate weight given to the documents. The plaintiffs acknowledge that hearsay is presumptively inadmissible, however, in Aboriginal rights claims under s 35 of the Constitution Act, 1982, the rules of evidence should be broad, flexible and applied purposively to promote truth finding and fairness for plaintiffs faced with having to prove facts across a gulf of centuries (Mitchell v MNR, [2001] 3 CNLR 122 [“Mitchell”]).

Admitting a document into evidence for prima facie truth of its contents does not bind the court to the contents of the document. In some circumstances, however, hearsay evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding (R v Khelawon, 2006 SCC 57 [“Khelawon”]). To address this, there have been common law exceptions to the rule against hearsay and the Supreme Court of Canada [“SCC”] developed the principled approach employing a more flexible, case-by-case approach to assessing admissibility. Under this principled approach, hearsay can be admitted if the party tendering it establishes on a balance of probabilities that the twin criteria of necessity and threshold reliability are satisfied (Khelawon). The trial judge acts as a gatekeeper to protect trial fairness and the integrity of the truth-seeking process by protecting against the admission of unreliable evidence (R v Bradshaw, 2017 SCC 35).

In regards to hearsay in Indigenous claims, the SCC recognized the need for a flexible adaption of the traditional rules of evidence in Aboriginal claims cases, but made it clear that the rules of evidence are not to be abandoned. The flexible approach to evidence does not mandate blanket admissibility, and the threshold for reliability, while not high in Aboriginal claims cases, does continue to exist (Mitchell). Historical Aboriginal claims and rights cases have inherent evidentiary challenges. Necessity is almost automatically met given that these cases rely heavily on ancient documents and hearsay evidence of the deceased (Mitchell; Delgamuukw v British Columbia [1998] 1 CNLR 14 (SCC); Tsilhqot’in Nation v British Columbia, 2014 SCC 44).

That assessment may be fairly automatic if the document falls within certain categories, such as public documents, or official communications between persons responsible for stewardship of government. The court can rely on the evidence of experts to provide it with the information necessary to conduct a reliability assessment. The fact that an expert relies on a document does not automatically establish reliability of the document for the court, but it is evidence that the expert finds the document to be reliable. Courts need the assistance of experts to evaluate and understand historical documents. One of the difficulties in this case is that no living person can be called to give eye witness evidence of what was happening in the claim area before, at the time of, and for many decades after first contact with European settlers (Tsilhqot’in Nation v British Columbia, 2004 BCSC 1237 [“Tsilhqot’in BCSC”]).

It is abundantly apparent the parties must rely on historical documents, oral history and traditions, ethnography and archaeology in the proof of their cases. The meaning of documents is not always self-evident and can only be understood in context. That is particularly true of historical documents where it cannot be properly evaluated until the court knows who wrote it, for whom it was written, and, most importantly, why it was written (Tsilhqot’in BCSC). The distinction between threshold reliability and ultimate reliability remains, and the trial judge still must act as a gatekeeper to keep the record free from unreliable hearsay and to protect the fairness and integrity of the trial.