More later but note this ruling out of the Supreme Court of Canada today and study it...all of you! From the headnote:
A practice undertaken for survival purposes can be considered integral to an aboriginal community’s distinctive culture. The nature of the practice which founds an aboriginal right claim must be considered in the context of the pre‑contact distinctive culture. “Culture” is an inquiry into the pre‑contact way of life of a particular aboriginal community, including means of survival, socialization methods, legal systems, and, potentially, trading habits. The qualifier “distinctive” incorporates an element of aboriginal specificity but does not mean “distinct”. The notion of aboriginality must not be reduced to racialized stereotypes of aboriginal peoples. A court, therefore, must first inquire into the way of life of the pre‑contact peoples and seek to understand how the particular pre‑contact practice relied upon by the rights claimants relates to that way of life. A practice of harvesting wood for domestic uses undertaken in order to survive is directly related to the pre‑contact way of life and meets the “integral to a distinctive culture” threshold.More later.
Update: here is an example of how evidence was introduced in the case. Note even though it was oral evidence by an elder, the Crown could have used historical records to refute it, therefore making it subject to external crtical analysis:
29 In the Gray prosecution, the trial judge declared the defence witness, Mr. Sewell, an expert “regarding oral traditions and customs which have been passed down through the generations and more particularly in the field of describing practices and customs relating to the use of and gathering of wood by aboriginals in the geographical area encompassed by the terms of the charge” (Arsenault Prov. Ct. J., at p. 3). As previously mentioned, Mr. Sewell is Mi’kmaq and a status Indian who is recognized as an elder and historian within his community. Arsenault Prov. Ct. J. stated that:So these examples are basically a simple description of pre-colonial practices that are consistent with the historical record, thus valid evidence.I have found and I do find that the evidence of Mr. Sewell was reliable and extremely useful to this court and I might point out that it was in no way diminished by cross-examination nor did the Crown in this case elect to contradict it by any documentary evidence or the evidence of any historian. [p. 23]30 Mr. Sewell testified about the many uses to which wood was and continues to be put. He spoke of using the inner bark of a cedar tree for rope, and of cutting strips of it to be used in the construction of the old birch bark canoes. Birch bark and ash were used to make baskets. Birch, poplar and black spruce were fashioned into paddles. Any leftover birch or maple was used for firewood. He spoke of using cedar to make drums, and of how the aboriginal peoples were also carvers. He testified that some of the figure-heads on the first ships to arrive in Canada were done by aboriginals. Mr. Sewell spoke of building camps and making pots out of wood. He testified that the pots were made out of large logs, using fire first to burn out the centre and then chiselling it out. He spoke of using bird’s eye maple and curly maple in the construction of axe handles and boat paddles, either for sale or for gifts. He confirmed that the extraction of sap from maple and birch trees had been known to the Mi’kmaq for centuries (testimony of Gilbert Sewell, presented during examination-in-chief, October 4, 2000, pp. 16-19 (A.R., at pp. 80-83). Finally, he spoke of the practice of fashioning spears for fishing out of ash (A.R., at p. 94).