DickFest Festschrift Contribution

Thick Descriptions and Judicial Notice of Aboriginal Customary Order

Personal and Academic Relationship - Relationship that spans more than forty years - Goals not academic but the means of achieving them often were - Probably best described as mutual fieldwork where I combed Dicks knowledge, experience and opinions for tools for alternately bridging with and protecting from external Euro-Canadian world. - Cree Way Project experience resulted in an appreciation of a need for academic or formal training in order to be a better scout, with the result that Dick became mentor, eventually part of a consulting group to Cree Programs and eventually Phd supervisor. - Cree Way had evolved to a Cree Science & Technology Program but continues to be hands on as teacher in an Alternative Education, Independent Pathways to Learning transitional program between elementary school and senior high school. - More recently, last six years, devoted to an exploration of Canadian legal system in search of protection and support of Aboriginal (particularly Cree) customary order. - Dicks previous mentoring and influence proved invaluable. My resulting MA thesis cites: Preston (1999:152-153) this researcher intuited hypotheses, tested them further in relevant contexts, edited these hypotheses in accordance with the inconsistencies apparent during testing, tested them in further relevant contexts, etc. etc.. This researcher repeated this process until a thick description had been produced, which in the words of Gilbert Ryle (1968:16), allowed this researcher to march along some stretches of some of his old tracks, pacing this time not interrogatively but didactically able to pilot others along ways along which no one had piloted him and delete some of the queries that he had inscribed on his own, originally hypothetical signposts. Preston, Richard Joseph III 1999 Reflections on Culture, History, and Authenticity, Theorizing the Americanist Tradition, Lisa Philips Valentine and Regna Darnell, eds., Toronto, ON: University of Toronto Press - Looked at papers that were written for Dick about 35 years ago, Fantasy and the Development of a Symbolic Mode of Thought; and, 1

DickFest Two Notions of Reality. Though ideas are much more developed since, basic contrast of intuitive vs analytical, tacit vs explicit or designed little changed. Researching and Asserting Aboriginal Rights - Expert qualifications and opinion evidence in a judicial context depend on a foundation of experience of probative relative facts - treatises are hearsay inadmissible except as adopted by qualified expert as a tool to explain experience of probative relative facts. Thick descriptions derived from field work are admissible, scholarly analysis of literature by itself is not. - Aboriginal customary order is endogenous, spontaneous order navigated by leadership, embedded government or state; whereas statutory order is exogenous, designed order, navigated by coercive force, that is, an external state or government. - customary, spontaneous order especially suited to vast territory with sparse food-animal resources, populated by diverse inhabitants - Canadian version of liberal democracy the result of constitutional protection of substantive cultural behaviours learned early in life and highly resistant to change (voluntary or otherwise) - The Constitution Act, 1982, Charter of Rights and Freedoms created a spontaneous order, forcing the state to depend on leadership and reasonable accommodation of cultural diversity rather than depend on a coercive means to force all citizens to accept the norms of a numerical majority. - Such accommodation of diverse but substantive Aboriginal cultural behaviour, base on judicially admissible thick descriptions was enunciated by Judge Samuel C. Monk in 1867 at Connolly v. Woolrich [1867] 11 L.C. Jur. 197: It is easy to conceive, in the case of joint occupation of extensive countries by Europeans and native nations or tribes, that two different systems of civil and even criminal law may prevail. History is full of such instances, and the dominions of the British Crown exhibit cases of that kind. The Charter did introduce the English law, but did not, at the same time, make it applicable generally or indiscriminately it did not abrogate the Indian laws and usages. - Rights are the creations of a legal system, in the Aboriginal case, a customary legal system. Though not always apparent in spite of its statutory appearance, the Canadian legal system, increasingly has adopted the characteristics of 2

DickFest customary law an accepted way of achieving important shared objectives, navigated by opinio juris (a sense of justice done) - The English Law (and Canadian) approach for giving judicial notice to the Aboriginal customs that create Aboriginal rights is based on elders and other experts presenting relative probative evidence. At common law enunciated at Angu v. Atta [1916] Gold Coast Privy Council Judgments, 1874-1928, at para 43, by the Judicial Committee of the Privy Council: .it has to be proved in the first instance by calling witnesses acquainted with the native customs until the particular customs have, by frequent proof in the courts, become so notorious that the courts will take judicial notice of them. Angu v. Atta [1916] - The common law requirement that general or formal understandings of customs must logically emerge from such thick descriptions of their practice is synonymous with the methods preferred by Dick Preston and Geertz - legal systems are engaged with formal understandings of motive, intent, method, behaviour, etc.. At common law, character evidence is inadmissible unless the assertion of motive, intent, method, behaviour, etc., is supported by similar relevant and probative facts of similar acts. Such similar facts of similar facts must prove generalizations beyond the level of coincidence and their probative value must outweigh their prejudicial effect. This common law requirement is comparable to Dick and Geertzs preoccupation with what elements of culture meant to the particpants themselves. - Again the sequence of researching thick descriptions, emerging sterotypes, testing and refining stereotypes until Aboriginal customs become so notorious that notice is taken of them. - For me, Dick has been the man between the seasons from whom important guidance was needed in order to find summer