- The Canadian legal system relies on the Parties to present useful, reliable and fair evidence, to allow an impartial judge to decide the facts and the law.
- The Preamble of the Specific Claims Tribunal Act, SC 2008, c 22 recognizes that:
(a) it is in the interests of all Canadians that the specific claims of First Nations be addressed;
(b) resolving specific claims will promote reconciliation between First Nations and the Crown and the development and self-sufficiency of First Nations;
(c) there is a need to establish an independent tribunal that can resolve specific claims and is designed to respond to the distinctive task of adjudicating such claims in accordance with law and in a just and timely manner; and,
(d) the right of First Nations to choose and have access to a specific claims tribunal will create conditions that are appropriate for resolving valid claims through negotiations.
- Subsection 13(1) of the Specific Claims Tribunal Act provides:
(13)(1) The Tribunal has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all the powers, rights and privileges that are vested in a superior court of record and may
(b) receive and accept any evidence, including oral history, and other information, whether on oath or by affidavit or otherwise, that it sees fit, whether or not that evidence or information is or would be admissible in a court of law, unless it would be inadmissible in a court by reason of any privilege under the law of evidence;
(c) take into consideration cultural diversity in developing and applying its rules of practice and procedure…
- It is recognized by the Parties that the historical record for this specific claim (Claim) consists mainly of the documentary record and may not include the First Nation’s perspective which is usually recounted orally.
- It is recognized by the Parties that Elder oral history testimony can contribute to an understanding of Indigenous perspectives on the Claim and its historical context.
- Reconciliation requires courts and tribunals to find ways of making rules of procedure relevant to the Indigenous peoples’ perspectives, and to properly provide useful, reliable and fair evidence for a court or tribunal to comprehensively consider all evidence on both sides and make a determination of the issues.
- To reflect the above principles, the Parties understand that the Tribunal wishes to proceed with its hearings with appropriate safeguards in place in compliance with current public health COVID-19 guidelines.
- Since the COVID-19 outbreak and public health restrictions, judicial virtual hearings held across Canada have been operationally successful. Canadian courts, including the Federal Court of Canada, have issued remote hearing protocols to govern the conduct of remote hearings with witnesses, including the decision of the Federal Court in Rovi Guides Inc v Videotron Ltd, 2020 FC 637.