Archiving memory: Explorer and trader accounts as evidence in aboriginal rights and title litigation

Luis Roberto Campos
Law, University of Toronto
June, 2016


This project examines the extensive use of explorer and trader narratives as evidence in aboriginal rights and title litigation. It is difficult to reconcile the conflicting--and often extreme--interpretations of these texts as mostly imaginative literature, a view increasingly held outside of the law, and as authoritative evidence, a position adopted in legal proceedings. Generally, my work reconsiders epistemic practices in aboriginal rights and title proceedings. Specifically, it turns to a literary framework to reflect on the empirical value of historical narratives. Additionally, by utilizing the concept of archive as a critical tool, my work also seeks to comprehend the law's continuing predilection for these texts. Ultimately, while evidential proceedings are generally regarded as oriented toward generating trial knowledge, I argue that in fact the substantive law has driven courts to the imperial texts and has, in effect, constructed the conditions of their necessity and reliability. Both the loosening of evidential rules--to create a story-telling space-- and the unique criteria-legal tests has contributed to their evidential hegemony, often at the expense of aboriginal histories, which are seen as anthropological curiosity. Significantly, this thesis does not suggest the imperial narratives have no empirical or evidential value. It does, however, urge trial actors to account for their limitations. And, by doing so, a broader objective may be served: a fresh examination of the current substantive criteria of aboriginal rights and title law, particularly as it impacts evidential parity between the aboriginal and imperial stories.