The Aboriginal people have always had laws, governments and some means of settling their disputes within their own communities. The Aboriginal societies in the northern America had dynamic cultures that constantly adapted to meet the circumstances that change. According to Bell (23), they have never given up their original rights of governing themselves in line to their cultures and customs. Although successive governments have tried diminishing or interfering with that right, and making a replacement with their “Aboriginal governments” concepts, they have been unsuccessful. There are many numerous challenges faced by expert witnesses in court cases dealing with Aboriginal issues. Culhane (66) asserted that the systemic, daily cultural discrimination inflicted on the Aboriginal people by the existing justice systems, diminishes and demeans the relevance and importance of their cultures, beliefs and their languages. The essay will discuss the challenges faced by the expert witnesses in court cases, how they overcome the challenges and the experiences of expert witnesses in the court cases involving the Aboriginal issues.
The challenges facing expert witnesses in a court of law when dealing with Aboriginal issues
- Lack of knowledge of the history of the Aboriginal people by the judges and court officials
In his book, “Telling It to the Judge,” Ray (39) elaborated on the problem which expert witnesses experience in courts. The role of the expert witnesses is to educate the courts on the place of the aboriginal people in the Canadian history. However, the challenge faced by the expert witnesses is the lack of understanding by the court judges of the histories of the aboriginal people and their treaties. The scholarly duty of the expert witnesses of retelling these histories along critical and complex lines is bound up by the ever-changing legal understanding of the rights of the aboriginal people. Ray (39) further pointed out the differences between this debate spheres that overlap and their understanding, for the scholars or the expert witnesses, the past remains open and is alive to reinterpretation while the courts needs the historical facts that will lead to cases being decided and closed.
- Weight given to the oral evidence by the court officials
Another challenge faced by the expert witnesses is the problematic reception of the oral history and ethno history by the Canadian courts as presented by the witness experts. Ray (53) highlighted the frustrations and pleasures of the witness experts when dealing with the aboriginal issues in the courts. For instance, the oral evidence presented in the courts in the extensive research on many Ontario fishing claims. After producing much evidence, none of the cases come to trial and even the courts cited frustrations in dealing with cases.
Bell (25) provided a detailed explanation of the frustrating exchanges in the court rooms with the judges and the crown counsel. The expert witnesses doubles and plays the roles of a teacher who attempts to educate the judges, in the unusual courtroom which is not a scholarly setting. Culhane (69) also observed that the judges of the court seem not to know what to do with the oral history, particularly when it comes to analyzing and weighing it in the scale compared to other forms of evidence that are familiar.
- Discourse in the courts
There exists profound differences in the Aboriginal and the other dominant justice systems, and this is a great challenge to the expert witnesses. Other justice systems in the European traditions are always adversarial. After an accusation has been made against a person, the legal advisers representing the defendants and the plaintiff confront each other before a jury or an impartial judge, and the witnesses are called to testify. Bell (24) pointed out that the concepts of accusation, adversarialism, guilt, confrontation, retribution; criticism and argument are alien to the expert witnesses. Furthermore, witness experts find it challenging to criticize others as it is in odds with the non-interference principles, freedom and individual autonomy. The idea that innocence and guilt can be decided on argument basis is incompatible with expert witnesses as their work is present scholarly evidence based on oral and written history (Culhane, 67).
The contraindications in the dominant justice system, results in heavy burden being placed on expert witnesses. Criticisms and accusations when giving adverse testimony that are required in the dominant justice systems, are according to (Fisher, 35), precluded in the value systems of the witnesses which tries to avoid confrontation and criticisms. This is a great challenge as reluctance or refusal to testify, or when making a testimony, an individual gives anything most emotionless, but the barest recital of events is because of the cultural behavior that is deeply rooted. It is ethically wrong to in Aboriginal societies to say very critical, hostile, implicitly wrong things on an individual in her or his presence.
- Language issues
The expert witnesses in court cases have language problems with the Aboriginal communities, and this is a great problem. The courts do not offer interpreters for the Aboriginal people. This brings the fundamental question whether of the pressing omission, and if whether they understand the concepts that underlie their languages used in the legal system, even translators and interpreters are used. The problem is that the courts, lawyers and police conducts business in a language that is neither the mother tongue of the Aboriginal people nor the second language of the Aboriginal people (Patterson, 19). Moreover, another serious challenge is whether the dominant society’s legal terms can be translated to the Aboriginal languages. However, if it can be done, is the same concept being relayed?
Moreover, the expert witnesses say only what they experienced or observed. Habits that are culturally ingrained such as respect for others and other people’s opinions, of being willing to be corrected, of doubt concerning a person’s righteousness, account s for the willingness and readiness with which the Aboriginal witnesses readily appear to change their testimony.
How these expert witnesses overcome these challenges
Ray (32) suggested that the issues of the native rights should be discussed and negotiated between the native leaders and the government. For the past decade, the issue that has cropped up is whether there exists a right that prevents the law enforcement against the Aboriginal people. Unless the country believe that Aboriginal people may do whatever they wish, with no respect to the dominant laws, it is significant that boundary be drawn between the universal laws and the laws that must be bent to protect treaty and Aboriginal people by the courts.
There have also been proposals by the expert witnesses as part of carefully constructed strategy to the parts of their communities and their Aboriginal leaders to test certain laws to their Aboriginal people. Similarly, the cases of individual’s product choice, where an Aboriginal person is accused of going against the law, and she or he argues a right of a treaty to do an offence. Reid (2) pointed out that many of the individual have no native community support. However, it is possible to adopt a case for an individual for the native community.
In conclusion, there are many lessons that can be learning from the experiences and the challenges that the expert witnesses experience in the Canadian law courts. The strongest approach that expert witnesses and the government should adopt is to accept the qualified expert witnesses, and oral historians as qualified experts in their own rights. This will need much broader acceptance, understanding and incorporation of the aboriginal laws. This will be better than what the courts are ready to prepare and to consider presently. This concept is an important contribution to the complex task of coming up with new ways for the Canadian courts and the aboriginal communities to work together.
Bell, D.G., “Historians and the Culture of the Courts” Acadiensis 28 (1) 1988: 23 – 26. Retrieved from http://journals.hil.unb.ca/index.php/acadiensis/article/view/10829/11637
Culhane, Dara, “Adding injury to insult: Her Majestry’s Loyal Anthropologist” BC Studies 95 (1992): 66-92. Retrieved from http://ojs.library.ubc.ca/index.php/bcstudies/article/view/1438/1482
Fisher, Robin, :judging History: Reflections on the Reasons For Judgement in Delgamuukw v. BC” BC Studies 95 (1992): 34-54. Retrieved from http://ojs.library.ubc.ca/index.php/bcstudies/article/view/1436
Patterson, Stephen E., “Historians and the Culture of the Courts” Acadiensis 28 (1) 1988:18-2. Retrieved from http://journals.hil.unb.ca/index.php/acadiensis/article/view/10828/11635
Ray, Arthur J., Telling it to the judge: Taking Native History to court, Montreal: Mcgrill Queen’s University Press, 201. Retrieved from
Reid, John G., Williams C. Wicken, Stephen E. Patterson, D.G. Bell, “History, Native Issues and the Courts: A forum” Acadiensis 28 (1) 1998: 1-5. Retrived from http://www.jstor.org/stable/30303162
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