Like Rip Van Winkle, after a long sleep, here we go again.
I just re-visited the well-researched 2008 book - Disrobing The Aboriginal Industry - The Deception Behind Indigenous Cultural Preservation, Frances Widdowson and Albert Howard. Of course, despite the extremely damning revelations in this tome, they don't come as a surprise. The research is thorough and largely unassailable (I am not aware of any errors, but the authors are human, after all).
To me, as a lawyer and a judge, the role of the institutions of the law in Canada - the legal profession, the courts (particularly the Supreme Court of Canada) and senior governments - in the creation and institutionalization of the deception mentioned in the sub-title is particularly disgusting and disturbing. No doubt there are many lawyers and judges who privately believe that a supreme travesty has been perpetrated on Canadians, but few have had the courage to speak out against it. It takes more couraqe than most people have to stand and be counted against the expected charges of racism, elitism, colonialist attitudes, etc., that are certain to be part of the counter-attack by the Indian Industry.
I have not mentioned the role of the media in all of this, but suffice it to say that without the eagerness of the often ignorant, lazy and frequently dishonest reporters of media, the deceptions of the Indian Industry would not be as powerful or damaging to Canada.
At the outset I repeat the 1997 words of Justice Antonio Lamer of the Supreme Court of Canada in the Gitksan Wet'suwet'en case relating to the admission of and reliance on oral histories recited by Indian elders as proof of historical facts adequate to found important decisions about so-called 'aboriginal title' to Canadian land:
'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on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents.'
What Lamer is really saying is that hearsay 'evidence', for hundreds of years known and recognized by our courts and judges as unreliable, likely to be tainted by faults and tricks of memory and influenced heavily by subjective desires and perspectives, should, in the case of Indian stories of events and circumstances well beyond the memories of living persons, be accepted as reliable evidence. This is tantamount to turning evidentiary rules, developed over centuries for good and valid reasons, on their heads and turning a blind eye to the problems with relying on such non-evidence. Why was this done? It is obvious to any moderately objective observer that it amounts to replacing law and evidence with political expediency to achieve a desired result. In reaching such a decision the Supreme Court has not only made itself a laughing stock, but done great damage to Canada, for huge tracts of land and major 'rights' have been given over to Canadian Indians, to the detriment of Canadians as a whole.
Alexander von Gernet, an anthropologist who has analyzed the use of oral histories in court cases, has said that the Supreme Court's view "will almost certainly be regarded sy some not as merely as an effort to level the field or lower the standard, but as an outright abandonment of the rigorous scrutiny that is essential to any fact-finding process. When taken to its logical conclusion this would seem unworkable in conflict resolution and, as others have noted, it would open the way for a radical re-invention of the law itself.' This was taken from an article by von Gernet entitled "What My Elders Taught Me", 22, quoted in Flanagan, First Nations, 159.
Interestingly, the reliance on such false evidence has resulted in challenges to the Supreme Court's decision, with new lawsuits coming from other Indian groups who assert that their historical memories are the true 'facts', not the ones asserted by the Gitksan. As Widdowson and Howard say, this is: 'Because the memories of elders have no corrobating evidence, they are open to challenge from competing "oral histories".'
Why was and is there such a powerful force resulting in such a judicial travesty? Noel Dyck, an associate professor of anthropology at Simon Fraser University in Vancouver, B.C., states that not only do most anthropologists ignore or give short shrift to awkward but pressing social and political problems at the reserve or settlement level, but that "moral and ethical constraints" are at the roots of the discipline's failings, since anthopologosts are reluctant to compromise the political agenda of those whom they study, and that they are expected to identify personally with the people they study and to protect their 'subjects' interests. It is pretty clear that the testimony of anthopologists has gone far in influencing the Supreme Court to overthrow centuries of good and valid legal protections against false or unreliable evidence.
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