Indigenous storytelling and admissibility in common law courts: Developing the protocols for the reception theory of evidence

Abstract

The claims for the restitution of legal estate by the Indigenous peoples are often without the benefit of a written agreement when they have to prove a spatial and temporal connection with ancestral lands. The witness testimony from a storyteller who is keeper of the historical records is in the absence of documentary evidence and the court has to be convinced of the probative value of the evidence before the oral testimony is admissible as an exception to the rule against hearsay. This presents immense obstacles to Indigenous litigants, who are governed by customary laws and whose narratives regarding the claims on land are conveyed intergenerationally. The court structures based on common law exclude such evidence as hearsay, which has prevented claims on land in North America, and in Norway, which has a Eurocentric court structure. There is a need for a framework in the procedural codes of the common law courts and by extension of all courts where Indigenous people own lands or exercise rights over them to formalise the reception theory of evidence. This will contextualise the terminologies, expressions and idioms that are included in Indigenous story testimony and their authenticity can be framed in protocols which courts could resource before ruling whether the narrative testimony is admissible.