"Oral History" and "Oral Tradition" In Court

Lorraine Weir, University of British Columbia, has published 'Oral Tradition' as Legal Fiction: The Challenge of Dechen Ts'Edilhtan in Tsilhqot'In Nation v. British Columbia in the International Journal for the Semiotics of Law (2015). Here is the abstract.

Often understood as synonymous with “oral history” in Indigenous title and rights cases in Canada, “oral tradition” as theorized by Jan Vansina is complexly imbricated in the European genealogy of “scientific history” and the archival science of Diplomatics with roots in the development of property law and memory from the time of Justinian. Focusing on "Tsilhqot’in Nation v. British Columbia", which resulted in the first declaration of Aboriginal title in Canada, this paper will discuss Tsilhqot’in law (Dechen Ts’edilhtan) in the context of the court’s deployment of Vansina’s theory and its genealogy, and conclude that “oral tradition” functions as a legal fiction enabling the court to remain in the familiar archive of its own historiography while claiming to listen to the Elders.

The full text of the article is not available from SSRN.