photo by Paul David Shea/courtesy of Photographers Without Borders

We congratulate Stk’emlupsemc te Secwepemc Nation on setting this important precedent even before the main hearing in their title case! In his decision, Justice Patrice Abrioux of the BC Supreme Court allowed “panel deposition” testimony of four Secwepemc elders.

Unlike the usual proceedings in the Canadian court system, where witnesses individually give evidence in court or by deposition, the four elders will testify as a group in order to align proceedings with the historical way Indigenous people give their evidence.

Why is this important?

The ruling by Judge Abrioux is another important step toward recognizing and honouring Indigenous legal traditions within Canadian court process. The landmark Delgamuukw case, followed by Tsilhqot’in,  recognized the validity of Indigenous oral history as valid evidence in a court of law. Previously, Canadian courts only recognized direct oral testimony or written records, dismissing Indigenous oral history as “hearsay”.

Secwepemc customs for truth-telling and the intergenerational transmission of oral history and knowledge dictate that oral histories be told in groups, rather than by individuals. Allowing elders to provide deposition oral history evidence in a panel format would accord with Secwepemc customs and accommodate the elders’ needs during a deposition.

“In Secwepemc culture, the way you present oral history evidence is as a collective. These are histories that are being passed on from generation to generation,” said Sarah Hansen, legal counsel for the Secwepemc. “It’s important to reflect what that traditional way of telling stories is — we’re really trying to right this historical wrong that we felt has happened throughout all of these Aboriginal title claims.”

Hansen said it was important to make this step because the system currently works against First Nations in their attempts to present evidence in a way that is more closely aligned with their traditions.

Defendants KGHM Ajax and British Columbia opposed the Secwepemc motion.

The ruling will have consequences beyond the Secwepemc title case, setting a template for evidence collection in other Indigenous land claims.

What’s a deposition?

Unlike testimony in court, where the judge has the opportunity to hear evidence directly, seek immediate clarification from the witness and rule on parties’ objections, deposition evidence is taken outside of the courtroom and in the judge’s absence. Proceedings are recorded, and are conducted in the presence of both the plaintiff (in this case, Stk’emlupsemc te Secwepemc Nation), and the defendants (Canada, British Columbia and KGHM Ajax mining company).

There are several reasons for taking deposition evidence as opposed to courtroom testimony. In some cases it can save time and costs. In this case, depositions will be taken from elders who may be frail or in poor health, far in advance of a hearing date (which has not yet been set).