them, are, like culture itself, constructed by people—not given by nature or God—and they change over the course of history as contexts and social relations change. Being created by people, these fluid boundaries can also be challenged, changed and recreated by people over time, as indeed, historically, they often have been.
The story of Aboriginal and non-Aboriginal relations in British Columbia that I am telling here begins with England’s sixteenth-century colonization of Ireland, rather than with Columbus’ landing in the Caribbean, for a number of reasons. First, there is the obvious historical continuity: the British colonized British Columbia, the Spaniards did not, although they “discovered” the territory before the British. Second, the story of the colonization of Ireland tells of recurring hostilities among people of the same “race” and “cultural group.” Rather than illustrating universal, ahistorical and immutable conflict based in “natural” racial or cultural difference, the history of England and Ireland is an example of contests for economic and political domination, and the historical process of “racialization” of the “other” so fundamental to colonial law and cultures.8 The image I wish to evoke is easily recognizable in contemporary debates about critical multiculturalism and post-colonial politics: same-culture colonizers, and same-culture colonized.9
Finally, the appeal of Berger’s choice of Valladolid as the preferred origin story for the history of Aboriginal legal rights in Canada may also be found in its acceptance of the historical inevitability, and hence justification, of European colonial conquest. Its insistence that colonial powers were and are motivated by good intentions and paternalistic—yet humanitarian—concerns for the best interests of the colonized, also reinforces familiar legitimations of colonial dominance.
“All this was done with the best intentions. We can only ask what would have happened had government’s intentions not been good?” Phrases like this have become a common cliché used by the Canadian media to wrap up stories about how another government program, or lack thereof, has been implicated in some tragic chain of events in an Aboriginal community.
Assessing history solely on the basis of the intentions of the powerful, without reference to the consequences for the powerless, is a time-honoured tradition in western thought. Within this framework, the morality of a person’s actions can only be judged on the basis of his or her intentions. This is based on the premise that people should not be held responsible for events beyond their control that contribute to their original actions having unintended consequences. At a very basic philosophical level, this is, of course, only fair. We as individuals are the only ones who know what our intentions are in the first place. Other people know our intentions only when we choose to communicate them. Our intentions motivate us to act in particular ways in relation to others, and our actions have consequences for ourselves and for those others. If our intentions, according to our own account, are honourable, but a person who experiences the consequences of our actions suffers, how is this to be resolved? The issue becomes more complex in real life where the questions “what ought you to know before you act?” and “whose intentions will be acted upon and thus enabled to have consequences?” must also be asked. “Judgment by intention” may be reasonable if “the individual” is considered as an isolated entity, but it becomes problematic when an individual is understood as a human being who lives in relationships with others in society.
The legal answer to this question in the liberal tradition is to grant rights to individuals, thereby hoping to ensure that the limit of one individual’s rights is formed by the boundary at which another individual’s liberty is inhibited.10 In order for groups or collectivities or peoples to have similar protection within such a regime, they must be recognized in law as having legal rights. The history of Aboriginal/non-Aboriginal relations in Canada has been one in which courts and governments have repeatedly refused to recognize Aboriginal rights, while continuing to insist that their actions have been, and continue to be, guided by their “good intentions” in relation to First Nations. This “justification by intention” argument has been repeated by governments for hundreds of years now, despite the fact that the consequences of legally-sanctioned government policies have been, and continue to be, devastating for Aboriginal peoples. The federal government, in particular, has been repeatedly stymied by the unanticipated consequences of their good intentions. An option yet to be tried in the realization of governments’ good intentions towards First Nations is the recognition of Aboriginal title to land, and rights to self-government.
Mutiny and Desertion as Common Sense
The initial conditions for theorizing and reflecting on property rights in America are of a European people who arrive on a continent of roughly five hundred established Aboriginal nations and systems of property…and who do not wish to become citizens of the existing Aboriginal nations, but wish to establish their own nations and systems of property in accordance with their European institutions and traditions.
—Philosopher James Tully, 1993, An Approach to Political Philosophy: Locke in Contexts.
Before the arrival of Europeans, approximately 500 Aboriginal nations existed in North America. These nations were diverse in modes of living, language, religion, social organization and relationships to land and resources. Therefore, the first rational option available to early European explorers and settlers was to behave as guests or immigrants, to recognize the sovereignty of already existing Indigenous nations, to live by their laws and to seek acceptance by their people.
But many deeply ingrained assumptions and widely held beliefs limit and constrain the possibility of contemporary people immersed in the dominant western culture imagining this as a practical or viable choice. European theories arising from psychoanalytic traditions have argued that fear and hostility are instinctive human responses to encounters with cultural “others.” However, the weight of contemporary knowledge belies the proposition that such a reaction is either universal or natural. Oral historians and linguists have investigated the diverse ways in which non-Europeans have identified people other than themselves, including Europeans, at first contact. They found a variety of impressions and responses varying from adoration to repulsion, fear to amusement, hospitality to hostility and curiosity to indifference. Europeans have been represented in Indigenous thought by analogies as diverse as Gods, Devils, clowns and monkeys.11
European images of Indigenous peoples have varied across time and space as well. Early visitors to “new” worlds, like explorers and traders, frequently expressed both interest in and admiration for the peoples they met on their travels. Later visitors wishing to claim these lands as their own, such as colonial governors and settlers, portrayed Indigenous peoples as wild savages. Most influential in western thinking, however, have been various theories about social and cultural evolution that postulate a hierarchical series of stages through which it is claimed all human societies must proceed. “Primitive” societies, in which people live from hunting, fishing and gathering, represent the “first stage” in this scheme; while “civilized” industrial societies exemplify the “highest stage” of human development. In the field of jurisprudence, Sir Henry S. Maine’s 1861 volume, Ancient Law, sets out a conjectural history of the evolution of law from “primitive custom” that “mingled up religious, civil, and merely moral ordinances without any regard to differences in their essential character;” to “civilized law,” which “severs law from morality, and religion from law.” The purported independence of law from the social conditions of its emergence, and law’s professed autonomy from the society in which it is practiced, were evidence, for Maine, that western law “belongs very distinctly to the later stages of mental progress.”12
Another common idea that arises from the same social evolutionary premises is the analogy drawn between the stages of individual psychological development hypothesized by western developmental psychology, and the social organization of non-western societies. In this framework, adults are to children as Europeans are to Aboriginals. Within historical analyses, contemporary Indigenous societies,
