of meaning.”1 The Gitksan and Wet’suwet’en begin their story—locate their origins as sovereign peoples with title and rights to specific lands—in “time immemorial,” when the Creator placed them on specific territories, and charged them with the responsibility of looking after the sentient beings who lived in and from and with these lands. They adopted the legal term, “time immemorial,” as a way of representing and translating—communicating—to English language courts their belief that they have been there since the beginning of time.
Chief Justice McEachern rejected what he considered the “non-specific” nature of Gitksan and Wet’suwet’en history, writing in his Reasons for Judgment, “I am not able to conclude on the evidence that the plaintiffs’ ancestors used the territory since ‘time immemorial’ (the time when the memory of man ‘runneth not to the contrary’). ‘Time immemorial,’ as everyone knows, is a legal expression referring to the year 1189 (the beginning of the reign of Richard II), as specified in the Statute of Westminster, 1275.”2
Another common starting point for legal historians to begin their rendition of the story of European/Aboriginal relations in the Americas is the year Europeans call 1492: when Columbus sailed the ocean blue. The controversies that followed Columbus’ arrival in the Caribbean concerning the moral and political legitimacy of conquest and colonialism culminated in the Conference of Valladolid. In 1550, King Charles V of Spain brought together clerics, lawyers and other scholars in the Spanish city of Valladolid and asked them to address the question of whether Indigenous peoples were part of the same human race, or species, as Europeans; and, depending on the answer to this fundamental question, how they should be treated by European colonial powers. The king asked a philosopher, Juan Gines de Sepulveda, and a Dominican monk, Bartolomeo de Las Casas, to answer the question: “How can conquests, discoveries and settlements in the king’s name be made to accord with justice and reason?” Both Sepulveda and Las Casas agreed that all human beings, including Indigenous peoples, were of one species. Both also agreed that it was the duty of Europeans to convert all the world’s peoples to Christianity, disagreeing only on method and rationale.
Sepulveda argued, relying on Aristotle, that some races are inferior to others, and that some people are born to slavery. By this reasoning, Europeans, a superior race, were justified in subjugating Indigenous peoples, an inferior race. Sepulveda used stories of cannibalism as evidence of the alleged inherent inferiority of the Indigenous peoples of South America. The technological achievements and complex social organization of the Aztecs and Incas, then as obviously sophisticated by prevailing European standards as they are universally acknowledged to be now, were absent from Sepulveda’s analysis. Las Casas argued, on the other hand, that these “Indians” possessed an evolved culture, with social, economic and religious institutions. He claimed that Indigenous peoples were rational beings, fit to be compared to the Greeks and Romans. Las Casas did not argue that Spain should not conquer the Indigenous Peoples of the Americas, but rather that its only justification for doing so should be to Christianize them. He was distraught that the cruelty of the conquistadors was inhibiting his mission of conversion.
The choice of the conference at Valladolid as the origin story of European/ Indigenous relations in America, has been popularized in Canada by Judge Thomas Berger, a long time supporter of Aboriginal rights, and well-respected for having headed a public inquiry into the potential impacts of a proposed oil and gas pipeline on the Aboriginal peoples of the Canadian north. In his book, A Long and Terrible Shadow: White Values, Native Rights in the Americas, 1492-1992, Berger writes of the deliberations at Valladolid: “Here was the very debate that I heard centuries later in the Mackenzie Valley Pipeline Inquiry.” The “Berger Inquiry” broke with the traditional colonial reliance on non-Aboriginal experts that had historically characterized such processes, and encouraged and respected the participation of Aboriginal communities in its proceedings. The inquiry’s findings and recommendations supported the Aboriginal peoples’ opposition to the pipeline and their aspirations for local control. Berger proposed a ten-year moratorium on resource development to allow time for environmental and social impact studies to be completed, and for First Nations to consolidate their vision of self determination. (As it turned out, the oil and gas companies eventually abandoned their plans to build the pipeline for “economic reasons”: it became an unprofitable proposition.)
The appeal of the Valladolid story, for liberal Canadians like Berger, may in part lie in its archetypal legal story form: a triangle consisting of a good learned person (Las Casas); a bad learned person (Sepulveda); and a benevolent sovereign (Charles), pondering a deeply important and complex issue in a quasi-judicial forum. Berger constructs the law’s uninterrupted historical narrative from Columbus’ encounters in Central and South America to contemporary Canada. This evokes notions of political conflict rooted in racial or cultural differences, often thought to be universal characteristics of all human societies in all historical periods, and thus to be immutable. The dominant image evoked is easily recognizable in contemporary liberal discourses on multiculturalism and identity-politics: white European colonizers, and brown Indigenous colonized.
While the impact of Spanish colonization on the Americas is important, it is British imperialism and colonial law that is specifically of interest to this story, a story that differs from Spanish colonial history in some important ways. British imperial law traces its origins to the common law tradition that emerged in the fifth century A.D. when the Anglo-Saxons invaded what is now called England and conquered the indigenous Britons. The Anglo-Saxons went on to absorb immigrant Danes and Gauls, others of whom (having become, over the course of the ensuing five centuries, Normans) in turn conquered the Anglo-Saxons in 1066. The Norman conquest of 1066 brought to Great Britain a centralized state and church, and the arbitrary power of the king. Under the Norman-derived legal regime, the king, or sovereign, who mystically embodies the “underlying title to all land” and the implicit consent of all the people to his reign, is said to “hover over the land.” The origin of the sovereign’s legal title is to be found in this abstract, imaginary vision, made concrete through the exercise of power as the sovereign became the symbolically omnipotent source of law, and his will its practical execution. A feudal regime, sometimes referred to as the “Norman Yoke,” was established, against which Anglo-Saxons, Britons, Danes, Gauls and some Normans (now having become English and Scots) waged civil war.3
At the same time as Sepulveda and Las Casas were debating in Valladolid, English jurists were confronting similar problems regarding colonization in Ireland. Their dilemma was not precipitated by the sudden “discovery” of seemingly strange and alien peoples. Rather, the problem of justifying expropriations of lands and massacres of native populations that faced British imperial policy-makers was that of recategorizing as radically “different” their Irish neighbours who had hitherto been similar and familiar.4
That the Irish were Christian was never doubted by the Normans or their successors, but Christianity in Gaelic Ireland did not fully conform to Roman liturgical practice, and many pre-Christian traditions and customs had been only slightly veneered in these territories by Christianity. On this basis, the Irish were classified by British imperial law as atheists or infidels. Although, unlike “certain savage tribes,” the Irish were rarely accused of cannibalism, they were described as “little better than Cannibals….”5 In addition, the Englishtook the Irish practice of transhumance6 as proof that the Irish were nomads, hence barbarians. The English colonists thus developed a social theory that said the Irish had evolved to a level of cultural development analogous to the stage the ancient Britons existed at before they were civilized by the Romans. The Irish should therefore be made subservient to the colonizing English, (the true inheritors of Roman civilization) so that, through subjugation, they could come to appreciate civility and thus eventually achieve freedom as the former Britons had done.7 This belief that meting out punishment to subordinated peoples and individuals “for their own good” will result in their eventual emancipation, while an enduring one, is belied by the historical record which offers more support for the theory that cruelty breeds brutality.
My point is straightforward:
