DANIELA O’CALLAGHAN, ASSOCIATE PROWSE CHOWNE LLP

Using Aboriginal Traditional Knowledge (ATK) in Legal Proceedings

Topics for Discussion

What is Aboriginal Traditional Knowledge (ATK)? Where can ATK be used? What does the common law say about ATK? How is Aboriginal Traditional Knowledge used in legal

proceedings? Practice Issues relating to use of ATK in legal proceedings Protocols to Protect ATK

What is Aboriginal Traditional Knowledge? Definition: “The summation of all knowledge, information, and

traditional perspectives relating to the skills, understandings, expertises, facts, familiarities, justified beliefs, revelations, and observations that were owned, controlled, created, preserved and disseminated by a particular indigenous community (Assembly of First Nations)

Oral culture: general practice by Aboriginal communities of maintaining history by oral and not written evidence

Differs from nation to nation, universally sacred

What is Aboriginal Traditional Knowledge? A distinction is sometimes drawn between: “oral tradition” and “oral history”

“Oral Tradition”: Histories that are passed down from generation to generation, it is not first hand

knowledge and may include such things as stories, legends, customs or traditions Commonly referred to knowledge held by Elders or influential members

“Oral History”: An account of events that occurred during the life of the witness Providing information about location of hunting or trapping activities and relaying

information about those experiences Commonly an account of traditional land users

Where can Traditional Knowledge be used?Negotiations with industry:

Roundtable discussions to inform/discuss project impactsRegulatory Proceedings:

To prove a party is directly and adversely impacted by a proposed development/project Traditional Land Use Studies

Court proceedings: To prove Aboriginal Title, Aboriginal Rights, Judicial Reviews involving the Duty to

Consult Affidavit Evidence, Oral Evidence, Traditional Land Use Studies

Environmental Assessments: CEAA s. 5(1)(c)(iii) – the “effect … of any change that may be caused to the

environment on” “the current use of lands and resources for traditional purposes”

Where can Traditional Knowledge be used?Legislation: The Species at Risk Act, S.C. 2002, c. 29

Preamble: …”the roles of Aboriginal peoples of Canada “in the conservation of wildlife in this country are essential” “…the traditional knowledge of the aboriginal peoples of Canada should be considered in the assessment of

which species may be at risk and in developing and implementing recovery measures” Establishment of the National Aboriginal Council on Species at Risk

Legislative Process: Courtoreille v. Canada, 2014 FC 1244 Federal Court confirmed duty to consult in the legislative process is limited to providing notice of

proposed legislation’s impacts to the Mikisew’s treaty rights. Duty triggered by introduction of Omnibus Bills in Parliament.

Possibly a further opportunity to incorporate Aboriginal Traditional Knowledge in the legislative process

Decision under appeal

The Law and Traditional Knowledge Leading Case: Delgamuukw v. British Columbia (SCC), [1997] 3 S.C.R.

“Many features of oral histories would count against both their admissibility and their weight as evidence of prior events in a court that took a traditional approach to the rules of evidence [para 86]” “The most fundamental of these is their broad social role not only “as a repository of historical

knowledge for a culture” but also as an expression of “the values and mores of [that] culture”, i.e. they are interwoven with legend, politics and moral obligations which are tangential to the ultimate purpose of the fact-finding process at trial – the determination of the historical truth.

Another feature of oral histories which creates difficulty is that they largely consist of out-of-court statements, passed on through an unbroken chain across the generations of a particular aboriginal nation to the present-day. These out-of court statements are admitted for their truth and therefore conflict with the general rule against the admissibility of hearsay.

The Law and Traditional Knowledge The Supreme Court in Delgamuukw adapted the rules of evidence to make way for the

effective use of Aboriginal Traditional Knowledge in legal proceedings

“Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents [Para 87]. “…[G]iven that most aboriginal societies “did not keep written records”, the failure to do so

would “impose an impossible burden of proof” on aboriginal peoples and “render nugatory” any rights that they have.”

“This process must be undertaken on a case-by-case basis.”

The Law and Traditional Knowledge Take away points from Delgamuukw:

Oral histories are not only useful as confirmatory evidence in aboriginal rights litigation (i.e. to confirm documented historical evidence). If this were the case then oral histories of aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system.

Need not provide all the answers and be assessed as relevant to proving a certain point

The Law and Traditional Knowledge The Supreme Court of Canada’s approach to the use of Aboriginal

Traditional Knowledge has been codified in the Federal Court Aboriginal Litigation Guidelines on Elder and Oral History.

Tribunals are not typically bound by the laws of evidence and may adopt even more accommodating evidentiary standards.

Where can Traditional Knowledge be used?

Proving existence of Aboriginal Right over certain lands Powley test to prove Aboriginal Right

Prior to control – oral tradition evidence (creation of stories, legends, customs, and traditions) can establish time of control

Continuity – genealogical evidence, current use and occupation and continuity with past use and occupation

Proving a right – see Powley Test Juditcial ReviewTsleil-Waututh Nation v. National Energy Board (Duty

to Consult, triggered? and Scope) Traditional knowledge provides “prima facie” evidence of the existence of

the right as well as the strength of the claim and the seriousness of potential adverse impacts

A Court or Tribunal’s Ability to Receive Traditional Knowledge

No prior experience hearing Aboriginal Traditional Knowledge or background in Aboriginal law and/or aboriginal cultures

Typically decision-makers are not trained to receive ATK Understanding how traditional knowledge is delivered Contextualizing traditional knowledge

Role of legal counsel for Aboriginal litigant Lead evidence re: traditional knowledge and its use through experts Telling stories through maps (location of storytelling, spatial overlap

between project area and traditional land use)

Cross-Examination of ATK Witness

Requires a culturally-sensitive approach Appreciation for the manner in which Traditional Knowledge is delivered Modification of the manner in which an Elder or Community Member is

questioned Perception of the reliability and credibility of witness by decision-maker

Testing the Reliability of Traditional Knowledge Person’s place in the community and whether that person possesses the

knowledge and ability to transmit that knowledge Are there protocols in place by the community to test that knowledge?

How is Traditional Knowledge Protected?

Use of Traditional Knowledge in public proceedings results in knowledge entering the public domain

Aboriginal peoples holding ATK may be vulnerable to theft, misuse or misappropriation Theft: taking ATK without express and freely granted permission Misuse: using ATK in a way contrary to the views expressed by the

ATK holding resulting in misleading interpretations, or otherwise directly violating the intent and value of the knowledge

Misappropriation: plagiarism and fraudulent use of the ATK (selling for profit to companies)

How is Traditional Knowledge Protected?

Some Aboriginal Communities are using Traditional Knowledge Protocols to protect Traditional Knowledge

Examples: Prior informed consent to undertake Traditional Knowledge Project Confidentiality of Traditional Knowledge product unless disclosure

required by law or by consent Statement of Non derogation of s. 35 rights A number of groups including United Nations agencies are involved in

addressing the protection of traditional knowledge under the existing intellectual property rights system

THE END

Questions or Comments?

Daniela O’Callaghan, Associate LawyerProwse Chowne LLPPhipps-McKinnon Building1300- 10020-101A Avenue, Edmonton, AB T5J 3G2780-739-7171, Extension 232docallaghan@prowsechowne.com