Sealing The Sacred: Court Protects Indigenous Cultural Information

Introduction

As Aboriginal rights and title claims continue being adjudicated, courts increasingly must confront how to treat, respect, protect, and hear as evidence Indigenous cultural information. As Chief Justice McLachlin recognized in Mitchell v. MNR, 2001 SCC 33, "[t]he flexible adaptation of traditional rules of evidence to the challenge of doing justice in aboriginal claims is but an application of the time-honoured principle that the rules of evidence are not 'cast in stone, nor are they enacted in a vacuum.'"

In Malii v. British Columbia, 2025 BCSC 242, the British Columbia Supreme Court provided helpful insight into how courts will tackle these important issues. The Court addressed the appropriate method of protecting sensitive Indigenous cultural information in the context of an Aboriginal rights and title action. Malii is part of a larger trend where courts have adopted flexible approaches to allow for Indigenous history and cultural knowledge to be heard in court.

Background

The plaintiffs in Malii represent the Gitanyow Nation (the Nation) in ongoing Aboriginal rights and title litigation in British Columbia. The Nation sought a publication ban, sealing order, and protective order over what the Court refers to as "Identified Cultural Information". The Identified Cultural Information includes oral history referred to as adaawk, certain songs or laments "of ancient times" called limx'oy, and crests known as ayuuks — described as sacred images that encapsulate oral history.

The Nation submitted that "[t]ogether, the adaawk, ayuuks, and limx'oy constitute the daxgyet (the authority) that a chief has over their wilp. They identify who the Gitanyow are as a people and as members of their wilps." The Nation intends to rely on the Identified Cultural Information as truth of its contents at trial, as proof of the existence of a system of land tenure law, as well as evidence of the Gitanyow's historical use and occupation of the area at issue in its title claim.

The Identified Cultural Information is contained in the Nation's deposition transcripts, excerpts from an expert report, and in video and audio recordings. The Hereditary Chiefs of the Nation (the Chiefs) gave permission for the Identified Cultural Information to be displayed and performed for the limited audience of the parties, their counsel, the experts, and the Court, for the limited purpose of proving the Nation's Aboriginal title. The Nation sought various orders to ensure that the Identified Cultural Information was not disseminated or used in a way which profanes the sacred information if disclosed to the general public.

The Nation submitted that its laws dictate when the oral histories and songs may be performed, where, and by whom. The Chiefs expressed concern that if the Identified Cultural Information was made public, others would steal the Nation's laws and customs and use the Identified Cultural Information in a manner contrary to Gitanyow'law, thus causing significant harm.

The decision

The Court granted the protective and sealing orders sought by the Nation. The Court acknowledged that it was important that the proposed protective and sealing orders were sought in the context of Aboriginal rights and title litigation. The Court found that the risk of harm from public disclosure was real and substantial, as unauthorized disclosure posed a serious threat to the Nation.

Notably, the Court's protective and sealing orders preserved the ability of the defendants and their experts to access the Identified Cultural Information, subject to confidentiality provisions.

Protective order

The Nation sought a protective order to preserve the confidentiality of materials produced among the parties. The Court held that a protective order was justified under the circumstances, particularly given the context of Aboriginal rights and title litigation. The Court determined that there was a real and substantial risk of harm if the Identified Cultural Information were disclosed without protection, and that the benefits of a confidentiality order outweighed any negative effects on open court proceedings.

The Nation had sought a condition in the order requiring a defendant to disclose and obtain approval for any expert retained to translate certain cultural materials. However, the Court declined to impose such a condition, finding no legal basis for it. Instead, the Court imposed a condition requiring that any translation expert retained by a defendant must sign a confidentiality agreement to protect the Identified Cultural Information.

Sealing order

The National also sought a sealing order to restrict access to certain materials in the court file. The Court issued a sealing order, finding that court openness posed a serious risk to an important public interest, namely the protection of Indigenous cultural information. No less restrictive alternatives would adequately address this risk.

The Court did not accept the argument of one of the defendants (Tsetsaut/Skii Km Lax Ha Nation) that the sealing order should be denied because the information was central to the proceeding. The Court found that the importance and sensitivity of the information justified the order, and the benefits of granting the sealing order outweighed its negative effects on court openness.

Publication ban

The Court adjourned the application for a publication ban. The Court was concerned that it was not clear how Identified Cultural Information would be identified such that an observer at trial would know that a publication ban applied to specific information within its definition. The Court directed the plaintiffs to consider how a publication band could be applied and to bring the matter back before the Court before trial.

Additional judicial approaches to Indigenous cultural information

Malii builds on the British Columbia Supreme Court's prior decision in Yahey v. British Columbia, 2021 BCSC 1287. In that case, the Court also addressed the issue of protecting Indigenous cultural information and granted a sealing order over certain sensitive exhibits. In granting the sealing order, the Court emphasized that the "public interest sought to be preserved by the sealing order is the public interest in the protection of Indigenous cultural and spiritual information".

Beyond granting sealing orders to protect cultural information, courts have applied flexible approaches to Indigenous cultural evidence. For example, in Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490, an Aboriginal title proceeding, the Court admitted into evidence an affidavit sworn in 2007 by an Elder who died in 2011. The Court recognized that there were few people still living with knowledge of oral history of the 1700s and 1800s. The evidence contained in the affidavit recalled the Cowichan Tribe's way of life and their village sites along the Fraser River in British Columbia. For more analysis on the decision in Cowichan, read our blog post, "The longest trial, a big impact: Cowichan's Aboriginal title victory".

Useful guidance is also found in the Federal Court's Practice Guidelines for Aboriginal Law Proceedings [PDF] (the Guidelines). The Guidelines set out guiding principles for developing a protocol for oral evidence. The Guidelines recognize that "[r]econciliation requires the courts to find ways of making its rules of procedure relevant to Indigenous perspectives without losing sight of the principles of fairness, truth seeking and justice." The established protocol should recognize the diversity amongst the Indigenous cultures across Canada and should achieve the flexibility suitable for the norms and practices of the Indigenous community.

Key takeaways

In Malii, the Court emphasized the unique context of Aboriginal rights and title litigation, noting that it is distinct from other forms of civil litigation. This unique context justified limits on the open court principle. The Court considered maintaining the integrity of the Nation's system of law and governance to be a particularly pressing public interest.

Courts are increasingly faced with determining how best to protect and respect sensitive Indigenous cultural information presented in court. Recent approaches taken in Malii and other cases have emphasized the need for flexibility and the need to facilitate access to justice for Indigenous litigants.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.