UBC Theses and Dissertations
Bringing water to the land : re-cognize-ing indigenous oral traditions and the laws embodied within them Walkem, Ardith Alison
This is a study of whether, in the introduction of Indigenous oral traditions as evidence in court, they are being in the complex cultural interplay that occurs in courts, and whether, given the central role of oral traditions in Indigenous cultures, the nature of Indigenous Peoples are being transformed in the process when their rights are adjudicated before the courts. Chapter 2 discusses the ways that the Supreme Court of Canada has defined s. 3 5 Aboriginal Title, Rights and Treaty Rights (as unlimited or lawless and therefore a danger to general public interests; assimilated into Canadian sovereignty; removing the source of these rights from the land in their legal definition; and, removing Indigenous laws from their definition). Chapter 3 examines the role that history has played in the legal interpretation of oral traditions, and argues that a primarily historical consideration obscures the alive, legal, and dynamic elements of oral traditions. Chapter 4 discusses the ways in which a methodology of suspicion has operated to reduce and diminish Indigenous oral traditions when they are introduced as evidence in court (rating them as faulty, light weight historic evidence while obscuring their legal content) through a survey of cases that have considered oral traditions at the trial level. Chapter 5 explores the devaluation of the Indigenous laws contained in oral traditions through an acceptance of the common sense assumption that Canadian conservation and safety laws are both rational and necessary. Chapter 6 argues that recognition (or denial) of Indigenous laws is politically contingent, and that despite limited legal recognition (in cases such as Delgamuukw v. B.C. and R. v. Van der Peef), these laws have yet to flow back onto the land, and are yet to be invigorated in Canadian law. There remains a lack of recognition of the legal content of oral traditions, and Indigenous jurisprudences risk being subsumed and transformed when they are introduced as evidence in Canadian courts.
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