Noel 1995. The book examines the role played by identification with the dominant Caucasians and collusion in the oppression of Aboriginal and African-Americans in the historical ascendancy of Irish immigrants in the United States of America.
10. The notion that the morality of a person’s actions can only be evaluated on the basis of their intentions is a central tenet of Kantian idealist philosophy. This privileges the subject’s articulated interpretations and intentions, as compared to the interpretations and consequences experienced by others as a result of the subject’s actions. This formulation assumes that individuals and their intentions and actions are not always already embedded in relationships, but can be decontextualized and considered independently. See Miles 1989 for a fuller discussion of “judging by intentions” in contexts of racial domination and subordination.
11. See Dauenhauer and Dauenhauer (eds.) 1994; Lips 1966; Wickwire 1994.
12. Maine (1861)1970: 15.
13. Fabian 1983.
14. For detailed discussions about mutinies in the early American colonies and the South Pacific, respectively, see Andrews et al (eds.)1973; and Obeysekere 1992.
15. See Koppel 1995.
16. See Alexander and Glaze 1996; Hudson 1997.
17. Slattery 1985: 114.
Chapter 4: Beginning at the Beginning
Aboriginal peoples, of course, did not go around talking about their rights; mostly, they spoke in a discourse of responsibilities and respect. But that discourse was circulated among themselves. When others came and established—or forced—dominance, it became relevant to speak of rights as a way of negotiating relations.
—Historian Peter Kulchyski, 1994, Unjust Relations: Aboriginal Rights in Canadian Courts.
Regardless of how the inhabitants themselves perceived their connections with the land, in every case a physical and economic relationship necessarily existed. Quite simply, when the English arrived, these people were already there, using lands in accordance with their own needs and their own ways of life, as people everywhere do.
—Legal scholar Kent McNeil, 1989, Common Law Aboriginal Title.
Aboriginal Peoples Were Here
When Britain became engaged in the colonization of the Americas, British legal rules were already in place that addressed several major questions which arose whenever British settlers established themselves in another territory. The “not-Christian enough” rationale, developed to cope with the Irish situation, became codified in law in Calvin’s Case in 1608, when Britain’s Chief Justice Coke articulated what has become known as the infidel rule: “if a Christian King should conquer a kingdom of an infidel, and bring them under his subjection, there ipso facto the laws of the infidels are abrogated, for that they be not only against Christianity, but against the law of God and of nature.”1
A memorandum of the Privy Council of Great Britain in 1722 consolidated imperial law by setting out rules for establishing British sovereignty in two possible situations. The first option, alternatively referred to as the doctrine of discovery, or the doctrine of occupation, or the doctrine of settlement, was to be applied in circumstances where the land discovered was terra nullius— uninhabited by human beings.2 The second option, the doctrine of conquest, was to be applied where Indigenous populations were encountered.
In the case of terra nullius, Britain simply proclaimed sovereignty by virtue of discovery and British law became, automatically, the law of the land. Where Indigenous populations were found inhabiting the desired land, the law required that British sovereignty had first to be won by military conquest, or achieved through the negotiation of treaties, before colonial law could be superimposed.
Of course, Britain never had colonized and never would colonize an uninhabited land. Therefore, the doctrine of discovery/occupation/settlement based in the notion of terra nullius was never concretely applied “on the ground.” Rather, already inhabited nations were simply legally deemed to be uninhabited if the people were not Christian, not agricultural, not commercial, not “sufficiently evolved” or simply in the way. In British Columbia, the doctrine of terra nullius has historically legitimized the colonial government’s failure to enter into treaties with First Nations. The application of the doctrine of conquest to First Nations in British Columbia, which would have required recognition of the fact of their prior occupation, and their status as human beings, was available within the confines of British imperial law but was rejected by colonial governments in British Columbia. When Aboriginal people say today that they have had to go to court to prove they exist, they are speaking not just poetically, but also literally.
Oh, What a Tangled Web We Weave When First We Practice to Deceive…
Ordinarily, we think of language as describing a fact or a state of affairs…but a special capacity which is particularly inherent in the law makes things true simply by saying them…. This power is of course the attribute of judges and judicial decisions, among others. The texts of the law are thus quintessentially texts which produce their own effects.
—Sociologist Pierre Bourdieu, 1987, The Force of Law: Towards a Sociology of the Juridical Field.
The early history of British imperialism and its legal expressions constitute the beginning—“the first step in the intentional construction of meaning”—of the story which law itself tells about British and Canadian relations with First Nations in British Columbia. In law’s imagination, a fundamental inequality was evident and established at the first moment of contact. This hierarchical relationship forms the cornerstone of the legal relations between Aboriginal peoples and Canadian governments, and is at the heart of each and every case of land rights litigation. It constitutes the foundational principles upon which the architecture of the Canadian state is built: the ultimate power of the British Crown to assert its will through simply declaring its sovereignty over foreign lands and peoples, supported, if necessary, by armed force; the fundamental relationship of Euro-Canadian domination and Aboriginal subordination;3 and, the protection and advancement of the interests of the wealthy and the powerful classes of colonial society.
In these first moments in the story law tells us—in its assertion of terra nullius—we see the central role played by abstraction and theory in western law and culture: the world is conceived, and acted upon, as if reality can simply be conjured up in whatever form suits the desire of the powerful at the moment.4 Within this ideology, human beings can be considered, legally, not to exist, and can be treated accordingly. At this most fundamental, common sense level, a study of British and Canadian law in relation to Aboriginal title and rights therefore begins not “on the ground,” in concrete observations about different peoples’ diverse ways of life, but rather “in the air,” in abstract, imagined theory. Hovering, like the sovereign, who embodies this abstraction, over the land. In the practices legitimized by this initiatory unleashing of the “will to power” we can see the antiquity of what continues to be a fundamental contradiction, paradox, or deceit in British and Canadian culture: an enduring abstract philosophical commitment to humanism—defined at the most elementary level as the fundamental equality of all human beings—co-exists with an enduring concrete material practice of inequality, and the domination of one group of people by another. It is within this space between the ideal and the real that ideologies of justification are constructed in law, government, imagination, and popular culture. This is the space wherein lies are legitimized and truths silenced. In the histories of colonial laws we can see both the mendacity and the crudeness of the
