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Nov Advocate 2017

THE ADVOCATE 823 VOL. 75 PART 6 NOVEMBER 2017 On the other hand, when historical or anthropological issues are of central importance and a mass of material must be assessed and weighed, expert assistance may be welcomed. In Lac La Ronge Indian Band v. Canada, for example, the trial judge held: “The documentary evidence is voluminous; one might well say mountainous. It would be foolish to reject assistance in understanding and appreciating the content of the documents.”13 In William v. British Columbia, the Tsilhqot’in Aboriginal title case, the trial judge rejected a challenge to the evidence of a Ph.D. anthropologist. Vickers J. held: “The meaning and importance of some historical documents are far from self evident. Some require interpretation; all require evaluation for internal consistency and some explanation of the context in which they were written.”14 In Ross River Dena Council v. The Attorney General of Canada, the plaintiffs challenged a report by a legal historian on the background to the 1870 Rupert’s Land Order on the basis, inter alia, that it was unnecessary in view of legislative history and other evidence available. The trial judge rejected the challenge, finding that the historical context was relevant and that “the field of study of the political and legal history of the time is not one from which I find myself able to draw inferences and conclusions without the assistance of an expert such as Dr. McHugh”.15 (b) Relevance Prima facie admissibility is established if, as stated in Mohan, the expert evidence in question is “so related to a fact in issue that it tends to establish it”.16 This “logical relevance” is a matter to be decided by the trial judge.17 For example, in Sawridge Band v. Canada,18 an action challenging Indian Act provisions governing the authority of the plaintiff Band to decide its own membership, the Band sought to introduce five reports prepared for a committee of the United Nations involving “a general outline of treaties concluded between indigenous peoples and states” around the world.19 The Federal Court noted that the material was “very much about claims to full sovereignty and nationhood”20 and that while contextual evidence was necessary, a discussion at such a high level of generality would not “be helpful or relevant”.21 In Squamish Indian Band v. Canada,22 which dealt with the administration of reserve lands, the plaintiff Band sought to introduce a report “about the general policies and practices of the federal Department of Indian Affairs from an historical perspective”, including on “the duties and practices of Indian Agents”.23 Justice Simpson of the Federal Court refused to admit the report. She noted that the opinions and conclusions expressed were based on events which were “not even similar to the events” in the case in question.24


Nov Advocate 2017
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