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Overcoming Challenges: Expert Witnesses in Aboriginal Court Cases

Aug 9, 2023 | 0 comments

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Aug 9, 2023 | Essays | 0 comments

The Aboriginal people have always had laws, governments, and some means of settling disputes within their communities. The Aboriginal societies in northern America had dynamic cultures that constantly adapted to meet the circumstances that changed. According to Bell (23), they have never given up their original rights of governing themselves in line with 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. Expert witnesses face many numerous challenges 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 languages. The essay will discuss the challenges the expert witnesses face in court cases, how they overcome them, and the experiences of expert witnesses in cases involving Aboriginal issues.


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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 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 to retell 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 these debate spheres that overlap and their performance; for the scholars or the expert witnesses, the past remains open and is alive to reinterpretation, while the courts need the historical facts that will lead to cases being decided and closed.

Weight is 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 ethnohistory by the Canadian courts as presented by the witness experts. Ray (53) highlighted the frustrations and pleasures of the witness experts when dealing with 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 affected by mental or physical health disability. However, research evidence, none of the cases came to trial, and even the courts cited frustrations in dealing with cases.

Bell (25) explained the frustrating exchanges in the courtrooms with the judges and the crown counsel. The expert witness doubles and plays the role 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 familiar forms of research should address pediatric infections and resistant organisms in Aseptic Technique for peripheral IV insertions. There is much evidence.

Discourse in the courts

Profound differences exist between the Aboriginal and the other dominant justice systems, which is a great challenge to the expert witnesses. Other justice systems in 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, adversarial, guilt, confrontation, retribution, criticism, and argument are alien to the expert witnesses. Furthermore, witness experts find it challenging to criticize others as it is at odds with the non-interference principles, freedom, and individual autonomy. The idea that innocence and guilt can be decided on an argument basis is incompatible with expert witnesses as their work is presented as scholarly evidence based on oral and written history (Culhane, 67).

The contraindications in the dominant justice system result in a heavy burden being placed on expert witnesses. Criticisms and accusations when giving adverse testimony that is required in the dominant justice systems, according to (Fisher, 35), precluded in the value systems of the witnesses, which try to avoid confrontation and criticism. This is an excellent challenge as reluctance or refusal to testify, or when making a testimony, an individual gives anything most emotionless. Still, the barest recital of events is because of the culture shock upon arriving in the United States. These students must understand cultural behavior that is deeply rooted. It is ethically wrong in Aboriginal societies to say very critical, hostile, implicitly wrong things about an individual in their presence.

Language issues

The expert witnesses in court cases have language problems with the Aboriginal communities, which is a great problem. The courts do not offer interpreters for the Aboriginal people. This brings the fundamental question of whether the pressing omission and whether they understand the concepts that underlie the languages used in the legal system, even translators and interpreters are used. The problem is that the courts, lawyers, and police conduct business in a language that is neither the Aboriginal people’s mother tongue nor the Aboriginal people’s second language (Patterson, 19). Moreover, another serious challenge is whether the dominant society’s legal terms can be translated into the Aboriginal languages. However, is the same concept being relayed if it can be done?

Moreover, expert witnesses say only what they experienced or observed. Culturally ingrained habits, such as respect for others and other people’s opinions, being willing to be corrected, and 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 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 law enforcement against the Aboriginal people. Unless the country believes that Aboriginal people may do whatever they wish, with no respect to the prevailing laws, it is significant that a boundary is drawn between the universal laws and the laws that must be bent to protect the treaty and Aboriginal people by the courts.

There have also been proposals by the expert witnesses as part of a carefully constructed strategy to the parts of their communities and their Aboriginal leaders to test specific laws for their Aboriginal people. Similarly, in the cases of an individual product choice, where an Aboriginal person is accused of going against the law, and they argue a right of a treaty to do an offense. Reid (2) pointed out that many individuals lack native community support. However, it is possible to adopt a case for an individual for the native community.


In conclusion, many lessons can be learned from the experiences and the challenges that expert witnesses experience in Canadian law courts. The strongest approach that expert witnesses and the government should adopt is to accept qualified expert witnesses and oral historians as qualified experts in their 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 consider presently. This concept is an important contribution to the complex task of developing new ways for the Canadian courts and the aboriginal communities to work together.

Work Cited

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 Majesty’s Loyal Anthropologist” BC Studies 95 (1992): 66-92. Retrieved from http://ojs.library.ubc.ca/index.php/bcstudies/article/view/1438/1482

Fisher, the Robin, judging History: Reflections on the Reasons For Judgement in Delgamuukw v. B.C.” 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: McGill 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.

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