Oral History as a Practice of Freedom: the Tsilhqot'in Title Case in Context
Friday, March 4, 7:00PM–9:00PM, Room 7000, SFU Harbour Centre
Co-sponsored by UBC's Department of English
Tsilhqot'in Nation v. British Columbia is well-known as the first Indigenous title and rights case in Canada to result in declaration of Aboriginal title. It is also widely cited as a victory for "oral history" evidence, following the Supreme Court of Canada's ruling in Delgamuukw that such evidence be "accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents."
This paper argues that in spite of Justice David Vickers' call to decolonize the courts and his close attention to the Plaintiff's evidence, his approach to "oral history" and "oral tradition" remains largely imbricated in the documentary and archival approach familiar to settler courts while avoiding the challenge of Tsilhqot'in law encoded in stories ancient and modern and presented in evidence at trial by Tsilhqot'in Elders and knowledge keepers. Laying out the path of healing from colonization, Tsilhqot'in law is central to what Plaintiff Chief Roger William refers to as the return to the ʔEsggidam (ancestors), a powerful reconnection with the time before colonial violence and a revitalization of the Tsilhqot'in nation. Much is at stake for settler courts in the recognition not only of territorial boundaries but of legal orders distinct from settler law.
Since 2013 Lorraine Weir has been working with Chief Roger William and the Xeni Gwet'in First Nation on a book-length oral history of the Tsilhqot'in case (BCSC 2007, BCSC 2012, SCC 2014)which resulted in the first declaration of Aboriginal title in Canada. She has written on "'Oral Tradition' as Legal Fiction" in the Tsilhqot'in case, on "time immemorial" in Calder, Van der Peet, and Tsilhqot'in, on spatial deixis in Tsilhqot'in, and is working on a book on concepts of time and space in relation to Tsilhqot'in law in the title case. Weir's initial focus was on Irish literature and theorizing 'orality' in relation to modernist constructs of memory in the work of James Joyce, followed by work on settler literatures in Canada, and then on discursive regulation. Weir teaches Indigenous Studies and theory in the English Department at the University of British Columbia Vancouver where she is a Professor.