Indigenous Oral Traditions in Court: Hearsay or Foreign Law?

Abstract

Many Indigenous nations seek a renewed nation-to-nation relationship with Canada. To some, the language of a nation-to-nation relationship might seem aspirational but impractical. How can nation-to-nation relationships within a single state be effected on the ground, in our day-to-day lives? The short answer is that different Indigenous nations can have different visions of the practical instantiations of their nation-to-nation relationships. This chapter does not purport to dictate or determine the precise contours of any given nation-to-nation relationship. It merely analyzes one potential site of instantiation: the rules for the admissibility of Indigenous oral traditions as evidence within Canadian courts. This chapter argues that current rules fall short of reflecting a nation-to-nation relationship.