nature of the edifice built upon it.
This same space between theory and practice, between avowed principles and lived experience, between the letter and the practice of the law, is one of the sites where Aboriginal peoples historically and contemporarily mount their resistance struggles. First Nations repeatedly expose both the failure of colonial law to obey itself in relation to Aboriginal peoples,5 and the presence of systemic racial and cultural bias in the justice system.6 When government policies and practices that systematically discriminate are juxtaposed with the Canadian state’s formal commitment to democratic equality, hypocrisy is revealed.7 In these ways, Aboriginal peoples strike repeated blows to the heart of Canada’s liberal self-image and international personality.
So begins the long dance we call Aboriginal/nonAboriginal relations in Canada: a tango of domination and subordination, of resistance and repression, of compromise and intransigence, of accommodation and denial, of life and death.
Eclecticism
The English, in fact, were eclectic in their choice of aims and methods; at one time or another they tried almost everything…. Late-comers to the New World, they had an abundance of precedents from which to choose. No other colonial empire employed so wide a range of legal devices in establishing settlements, or allowed so many diverse forms of social, religious, and economic organization.
Many factors contributed to this diversity: a habit of eclectic borrowing; differences in time, place, and circumstance; differences in personality and purpose; and the absence of sustained interest and continuous effective control by the central government.
—Historian K. R. Andrews, 1973, in The Westward Enterprise: English Activities in Ireland, the Atlantic and America, 1480-1650.
In Canada, France preceded England in settlement, and entered into treaties with the Micmac, Maliseets, Montagnaix-Naskapi, Huron and Abenaki to secure them as allies against both the Iroquois and the English. Throughout the seventeenth century, numerous agreements were entered into between and among Aboriginal peoples and the French and English. Many of these treaties were verbal agreements, solemnized through assembly and gift exchange, and symbolized by, for example, wampum belts. Other treaties were written in French, and later, English, by colonial representatives, and signed by themselves and by Aboriginal representatives.
Before the arrival of Europeans, different Aboriginal Nations had political and economic agreements with each other regarding trade and commerce, war and peace. These initially served as models for the treaties they entered into with Europeans.8 An important characteristic of early Indian-European treaty-making was that it conformed to Aboriginal political practices more than to European ones, reflecting the real balance of power that existed when Aboriginal peoples formed both the vast majority of the population, and possessed the necessary knowledge and skills to live in the North American environment.9 Current legal and political conflicts revolve around issues of competing interpretations of the intentions of the original treaty-makers, the obligations of governments that arise out of the treaties, and whether these obligations have been honoured or not.
In some cases, Aboriginal peoples, relying primarily on oral histories, argue that their ancestors entered into “peace and friendship” agreements with Europeans that allowed the newcomers certain rights to travel and harvest resources. These treaties, they say, were never understood to be final surrenders of lands, rights or political sovereignty. Rather, they were agreements that would be renegotiated as needed to respond to changing conditions, and renewed regularly through deliberations and ceremonies like the ones from which they had originally emerged.
Against this, the Crown consistently argues that treaties should only be considered within the context of British law, without regard for Aboriginal legal practices at the time the treaties were made. It claims that the treaties are permanent and binding legal land cessions that also yield political sovereignty; and that the money paid to Indians constituted a trade of money for land, not lease or rental fees, or a toll, or a ceremonial exchange of gifts.
A significant challenge to the Crown’s position also emerges from within British and Canadian law and centres on debates about the nature of informed consent. Contractual agreements like treaties are only valid if both parties were fully aware of the terms and the consequences of the contract they entered into. In some cases, Aboriginal representatives are asking courts to consider whether or not Crown representatives made their interpretation of the meaning of treaties clear, verbally, to the Aboriginal peoples they were negotiating with. If not, and if the Aboriginal signatories to the treaties were not English speakers, readers, or writers, what is the legality of those treaties signed with an “X” scrawled next to an anglicized Aboriginal name printed by the governments’ treaty negotiators?
Imperialist Competitions in Terra Nullius
Englishman, although you have conquered the French, you have not yet conquered us. We are not your slaves. These lakes, these woods and mountains, were left to us by our ancestors…they are our inheritance; and we will part with them to none. Your nation supposes that we, like the white people, cannot live without bread, and pork and beef! But, you ought to know, that He, the Great Spirit and Master of Life, has provided food for us, in these spacious lakes, and on these woody mountains.
—Chippewa leader Minivavana, to an English trader, at Michilimackinac, Fall 1761.10
By the Treaty of Utrecht in 1713, France ceded control over the Canadian Maritime regions to England, while retaining Cape Breton Island, Ile St. Jean and miscellaneous islands in the Gulf of St. Lawrence. In 1759 the British captured Quebec after seven years of war, and the subsequent Peace of Paris, signed in 1760, temporarily sorted out disputes between France, England and Spain. France ceded all its remaining territories in Canada and its territories east of the Mississippi River. Spain ceded Florida to Britain, but retained its territories west of the Mississippi captured from France in 1759. As conflicts between colonial powers intensified, a pattern developed that would continue into the present: European powers, and later federal and provincial governments, engaged in disputes with each other over lands and resources, that excluded Aboriginal peoples. As if they didn’t exist.
Imperialist Nostalgia11 in Terra Nullius
“In the beginning all the world was America.”
—Political philosopher John Locke, 1672.12
While the Treaty of Utrecht and the Peace of Paris were being negotiated and signed, eighteenth-century British society was undergoing rapid industrialization and urbanization. Members of the new middle and professional classes became concerned about the human costs of this process, represented by the plight of former peasants who increasingly formed impoverished rural and urban populations. Europeans increasingly looked to science for guidance in social policy at home, and for rationalizations of colonial policies abroad. Various treatises emerged that claimed to explain the whole history of all humankind in systematic and coherent ways, and that all began with theories about human origins. Although available information about Aboriginal ways of life was principally limited to explorers’ and traders’ idiosyncratic and unsystematic records, the authors of the “grand theories” of Enlightenment Europe usually began with an evocation of so-called “primitive life in the New World,” meant to illustrate “raw human nature” and “original human society.” For romantics like Jean Jacques Rousseau, the “state of nature” was to be found in a simple Garden of Eden, and Indigenous peoples in America, imagined as “noble savages,” provided Europeans, steeped in the popular “common sense” of evolutionism, with appealing fantasies of their own primitive origins.
At the opposite extreme, for philosophers like Thomas
