Invention of Anthropology in British Columbia's Supreme Court: Oral Tradition as Evidence in Delgamuukw v. B.C.

Abstract

In the case of Delgamuukw v. 5.C., three anthropologists were among the witnesses asked to provide expert testimony. One purpose of their evidence was to provide the court with a minimal context for understanding how indigenous oral traditions demonstrate Aboriginal land ownership in north­ western British Columbia. Chief Justice Allan McEachern overwhelmingly rejected the evidence from anthropology. Then he went on to invent his own anthropology, proposing it as a framework for assessing evidence pre­ sented by Gitksan and Wet'suwet'en hereditary chiefs.1 Richard Daly, Antonia Mills, and Hugh Brody were the anthropologists who individually prepared detailed testimony. Each was cross-examined at length in court. The judge provided no serious discussion of either their written evidence or their sworn testimony; in fact, only Daly's evidence receives more than a sentence in the final judgment. The judge offers two complaints about Daly's evidence: first, that he shows bias because he cites the Statement of Ethics of the American Anthropological Association2 and, secondly, that his evidence is "exceedingly difficult to understand" ( McEachern : 51). Mills is likewise dismissed as being too closely identified with the plaintiffs and, for no apparent reason, Brody seems to have dropped out of the judgment entirely. In this way, more than 1,000 pages of written evidence and of three weeks' cross-examination are dismissed without further reference.