¹ Alan Dundes, Sacred Narrative: Readings in the Theory of Myth l (1984).

² In litigation there can be a concern with the authenticity of claims about genealogy. The literature on this subject discusses the potential for the invention of tradition or spurious claims about tradition. An example of scholarship that takes up the use of creation myths to bolster claims about identity is Nygrenös, Anja, Struggle over Meanings: Reconstruction of Indigenous Mythology, Cultural Identity, and Social Representation 45 Ethnohistory 31 (1998)CrossRefGoogle Scholar. See also Alan Dundes, Folklore Matters 1-39(1989).

³ See Quane, Helen, The United Nations and the Evolving Right to Self-Determination, 47 Int’l & Comp. L.Q. 537 (1998)CrossRefGoogle Scholar; Trifunovska, Snezana, One Theme Two Variations—Self-Determination for Minorities and Indigenous Peoples, 5 Int’l J. on Minority & Group Rts. 175 (1998)CrossRefGoogle Scholar; Lam, Maivan Clech, Making Room for Peoples at the United Nations: Thought Provokedby Indigenous Claims to Self-Determination, 25 Cornell Int’l L. J., 603 (1992)Google Scholar. The question is whether people can be defined on the basis of ethnic, linguistic, or religious criteria, i.e., do ethnic minorities constitute “peoples” who can legitimately claim the right to self-determination? See Alonso, William, Citizenship, Nationality, and Other Identities, 48 J. of Int’l Aff., 585 (1995)Google Scholar. Some prefer to relegate such claims to minority rights regimes.

⁴ See w. Ofuatey-Kodjoe, The Principle of Self-Determination in International Law (1977).

⁵ For an overview of this subject, see S. James Anaya A, Indigenous Peoples in International Law (1996). Anaya mentions the misinterpretation of self-determination as a problem in the United Nations: “This express affirmation of indigenous self-determination has been slow to command a broad consensus among governments participating in the standard-setting work of the United Nations, mostly as a result of the misguided tendency to equate the word self-determination with decolonization procedures or with an absolute right to form an independent state.” (p. 86)

⁶ Quane traces the development of the legal right to self-determination from the Un Charter 1(2), and 55 onward; supra note 3.

⁷ The two human rights covenants are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).

⁸ For a summary of the some of the decisions of the Human Rights Committee, see Anaya, supra note 5, at 162-66.

⁹ Though one might have expected groups to use the ICESCR instead, the more useful provision is Article 27 of the ICCPR. For an overview of the decisions of the Human Rights Committee interpreting Article 27, see McGoldrick, Dominic, Canadian Indians, Cultural Rights and the Human Rights Committee, 40 Int’l & Comp. L.Q. 658 (1991)CrossRefGoogle Scholar. McGoldrick explains that cases found inadmissible under Article 1 are considered admissible under Article 27.

¹⁰ This methodology has been used for a long time. The definitive treatment of it is in Jan Vansina, Oral Tradition: A Study in Historical Methodology (H.M. Wright trans., 1965)

¹¹ Delgamuukw v. British Columbia, Supreme Court of Canada, 1997 Can. Sup. Ct. Lexis 96 (Dec. 11, 1997). The decision and commentary can be found in Stan Persky, Delgamuukw: the Supreme Court Decision on Aboriginal Title. The trial judge rejected the evidence of oral history and dismissed the action against Canada.

The earlier decisions were: Delgamuukw v. British Columbia, British Columbia Court of Appeal, 104 D.L.R. 4th 470, June 25, 1993, British Columbia Supreme Court 79 D.L.R. 4th 185; 25 A.C.W.S. (3d) 1012, Mar. 8, 1991, British Columbia Supreme Court, 55 D.L.R. 4th 73; 12 A.C.W.S. (3d) 263, Nov. 14, 1988.

¹² The Canadian Supreme Court ruled that First Nations peoples have a unique claim to land, that provinces cannot arbitrarily extinguish title, and that oral history is acceptable evidence, not barred by the hearsay rule.

¹³ There was a four-year trial (1987-1991) with 370 days of testimony, more than 600 witnesses, 23,000 pages of trial transcript and $25 million in expenditures. Judge Allan McEachern dismissed all the oral histories in his 400-page decision (Persky, supra note 11, at 8).

¹⁴ For a review of the earlier Canadian cases on aboriginal title along with a critique, see Macklem, Patrick, What’s Law Got to Do with It? The Protection of Aboriginal Title in Canada, 35 Osgoode Hall L.J. 125–137 (1997)Google Scholar. Maćkiem gives an account of the narrative of the Commission on Aboriginal Peoples and the counternarrative focusing on the relative bargaining power of the Aboriginal litigants and Canada (p. 135).

¹⁵ In fact, the creation story is really a creation myth. The use of oral tradition in the litigation may involve legends but not myths.

¹⁶ The trial judge characterized the oral history as a form of hearsay but used an exception the fact that because the information came from the deceased, there was no other was to obtain it: “Although the trial judge recognized that the evidence at issue was a form of hearsay, he ruled it admissible on the basis of the recognized exception that declarations made by deceased persons could be given in evidence by witnesses as proof of public or general rights... He affirmed that earlier ruling in his trial judgment, correctly in my view, by stating, at p. 18 that the adaawk and kungax were admissible ‘out of necessity as exceptions to the hearsay rule’ because there was no other way to prove the history of the Gitkssan and Wet’suwet’en nations” (Persky, supra note 11, at 79-80). Clay McLeod says that this rule was first applied to First Nations peoples in the Delgamuukw case (p. 1288). He explains that this kind of evidence is: “trustworthy because of the ‘public nature of the rights, which tends to preclude individual bias and lessen the danger of misstatements by exposing them to constant contradiction.” McLeod, Clay The Oral Histories of Canada’s Northern People, Anglo-Canadian Evidence, and Canada’s Fiduciary Duty to First Nations: Breaking Down the Barriers of the Past. Alberta Law Review, Vol. 30, Issue No. 4, pp. 1276–1290, (1992)Google Scholar.

¹⁷ One issue is the variation in myths, which makes it difficult for judges to find the account “objective.” See Firth, Raymond, The Plasticity of Myth: Cases from Tikopia, in Sacred Narrative Readings in the Theory of Myth, 207 (Dundes, A. ed., 1984)Google Scholar.

¹⁸ Callison, Cynthia, Appropriation of Aboriginal Oral Traditions, 29 U. of Brit. Colum. L.R. 165 (1995)Google Scholar.

¹⁹ Id. at 168. Callison considers the use of the oral tradition by experts to be cultural appropriation and discusses the challenge of protecting the intellectual property rights of indigenous peoples.

²⁰ See the trial judge’s ruling on the admissibility of hearsay evidence. Uukw (Tait) et al. v. R. [1987] 6 W.W.R. 155.

²¹ The oral tradition was not considered “objective” partly because there were various versions. Consequently, oral traditions were not deemed to be a reliable basis for historical evidence. Callison explains the dilemma: “When ethnohistoric and ethnographic data are used in litigation, it becomes painfully evident that the destinies of Aboriginal societies depend on how these oral traditions are interpreted and by whom” (supra note 18, at 168).

²² For a discussion of the significance of the Court of Appeals decision, see Dara Culhane, the Pleasure of the Crown: Anthropology, Law and First Nations 329-333 (1998); McLeod, Clay, The Oral Histories of Canada’s Northern People, Anglo-Canadian Evidence Law, and Canada’s Fiduciary Duty to First Nations: Breaking Down the Barriers of the Past, 30 Alberta L.R. 1276 (1992)Google Scholar.

²³ Persky, supra note 11, at 16-17. The earlier decisions reflected the Eurocentric view that written documents carry more weight than oral histories.

²⁴ ‘The implication of the trial judge’s reasoning is that oral histories should never be given any independent weight and are only useful as confirmatory evidence in aboriginal rights litigation. I fear that if this reasoning were followed, the oral histories of aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system,” Persky, supra note 11, at 81.

²⁵ Persky takes this view (supra note 11, at 1, 13): “To greatly simplify these issues, the Court decided that (1) stories matter, and (2) not only is aboriginal title recognized in both common and constitutional law, but it has specific content and implications. The phrase’ stories matter’ refers to the Court’s precedent-establishing decision that aboriginal oral histories must be given significant weight in any subsequent legal proceedings” (p. 13). Critics said the decision “raises as many questions it as answers, especially about the relationship between Aboriginal title and provincial land laws, and about the extent to which infringements of such title will be justifiable,” Foster, Hamar, Aboriginal Title and the Provincial Obligation to Respect It: Is Delgamuukw v. British Columbia “Invented Law” 56(2) The Advocate 221-231 (1998), p. 224 Google Scholar.

²⁶ Jack and Charlie v. the Queen [ 1985] S.C.R. 332. The case has been cited elsewhere as an example of judicial bias against indigenous culture. See Mandeli, Louis, Native Culture on Trial, in Equality and Judicial Neutrality 358-365 (Mahoney, Sheilah & Mahoney, Kathleen E. eds., 1987)Google Scholar.

²⁷ The appellants were members of the Tsartlip Band of Indians, one of the bands making up the Coast Salish people.

²⁸ An anthropologist, Dr. Barbara Lane, testified to the trial court that the Coast Salish believe that the dead relatives have desires for things they left behind and that the living have an obligation to provide the food. Failure to do so can lead to retribution.

²⁹ One commentator explained that the chief and elders of the Tsartlip Indian Band only decided to describe their religious belief system after careful consideration because they were afraid their traditions would be subjected to ridicule. Jackson, Michael, The Articulation of Native Rights in Canadian Law, 18(2) U. of Brit. Colum. L.R. 283 (1984)Google Scholar. More than 100 people from the Band attended the trial.

³⁰ There was protracted litigation: Chapman v. Tickner, Chapman and Others v. Minister for Aboriginal and Torres Strait Islander Affairs and Others (Sg57 of 1994); Barton and Another v. Minister for Aboriginal and Torres Strait Islander Affairs and Others (Sg78 of 1994), Federal Court of Australia—General Division, 133 A.L.R. 74, (Feb. 15, 1995) Adelaide. Norvill and Another v. Chapman and Others; Norvill and Another v. Barton and Others Tickner v. Chapman and Others; Tickner v. Barton and Others, Federal Court of Australia—General Division, 133 A.L.R. 226, (Dec. 7, 1995) Adelaide. Chapman and Another v. Luminis Pty. Ltd. and Others, Federal Court of Australia—General Division, 42 I.P.R. 604, (Sept 4, 1998) Adelaide. Re Chapman and Anor and Minister for Aboriginal and Torres Strait Islander Affairs, Administrative Appeals Tribunal, 43 A.L.D. 139, (June 26, 1996) Melbourne.

³¹ This is a common dilemma faced by indigenous groups trying to protect their sacred sites. Courts demand to know the precise location of the sites, which means divulging information that is not supposed to be divulged to outsiders. To prevail in the dominant legal system, indigenous peoples have to violate their own folk law.

³² For a detailed account of “the Hindmarsh affair,” see Tonkinson, Robert, Anthropology and Aboriginal Tradition: The Hindmarsh Island Bridge Affair and the Politics of Interpretation, 68(1) Oceania 1 (1997)CrossRefGoogle Scholar.

³³ One commentator concluded: “The different narratives surrounding the Hindmarsh Island Bridge case, then manner in which these have been played out in the legal system and the privileging of the dominant narrative suggests that current regimes and processes for the protection of Aboriginal cultural heritage, within Aboriginal terms, are inadequate. It is difficult to foresee how the dominant system can provide protection when its mechanisms for protection ultimately require intrusions into that heritage with little or no place for Aboriginal voices. Tehan, Maureen, A Tale of Two Cultures, 14-21 (1) Alternative L.J. 10 (1996)Google Scholar.