Aboriginal oral testimony, hearsay rule and the reception theory of admissibility. Issue 3 (2nd July 2016)

• Record Type: Journal Article
• Authors: Akhtar, Zia
• Is Part Of: Commonwealth law bulletin. Volume 42:Issue 3(2016)
• Page Start: 396
• Page End: 424
• Publication Date: 2016-07-02
• Subjects: Law -- Commonwealth countries -- Periodicals; 349.11241
• DOI: 10.1080/03050718.2016.1259077
• Languages: English
• ISSNs: 0305-0718

Abstract

Abstract : Aboriginal peoples title claims are presumed upon spatial and time connections to the lands of their ancestors. In making their submissions, litigants have to circumvent the rule against hearsay and rely upon oral narratives to substantiate their claims of customary ties to land. The obstacles they face is that evidence based on informal anecdotes can cause problems in common law courts, which have long been dependent on textual evidence for probative value. In many Native cultures the idea of time is cyclical, while in the Judeo-Christian calendar time is linear. There is also the fact that oral narratives cannot be viewed in the abstract and the histories are closely linked to inter-generational continuity. The perspective of a narrator is relevant as the sources are often repositories of observation, knowledge and personal belief rather than clear factual understanding of the issue involved. This paper argues for the receptive theory of oral evidence to be adopted in common law courts, which would lead to a fair hearing of Aboriginal claims to land title in Australian and Canadian courts. The paper will distinguish the courts' current approach to oral testimony submitted by aboriginal people and raise the possibility of an integrated approach based on the recourse to 'episteme', which is the appreciation derived from synthesis that accepts that several methodologies may exist and interact at the same time by being parts of various knowledge systems.