St. Catherine’s Milling and Lumber Co. v. R. (1885) 10 or 196 (Ont.Ch.); (1886) 13 OAR 148 (Ont.CAO); (1887) SCR 577(SCC); (1888) 14 AC 46 (PC).
10. A “usufructuary right” means the right to use property owned by another, as long as that use is permitted by the rightful owner, and does not interfere with the owner’s rights or desires.
11. “Title in fee simple” refers to the most privileged form of individual ownership of private property protected by Canadian law. Most Canadian homeowners hold “title in fee simple” to their property, subject of course to the good graces of their banks and mortgage companies.
12. quoted in Kulchyski 1994: 30.
13. Cotterrell 1984:10 quoted in Burtch 1992: 3.
14. For a more thorough discussion of the St. Catherine’s Milling and Lumber Company case, see Slattery 1987; Macklem 1991.
15. White 1985, 1990.
16. Re Southern Rhodesia [1919] A.C. 211 at 233-4.
17. Amodu Tijani v. Southern Nigeria [1921] 2 A.C. 399(p.c.) at 403.
18. See Stocking 1987, 1991, 1992, 1995.
19. See Vincent 1990.
20. Sahlins 1972. See also Lee and DeVore 1966.
21. McNeil 1989.
Chapter 6: White Papers and Legal Tests
Legal orders may embody asymmetrical power relations, but power is always an interactional process. Dominant groups enjoy legally protected privileges, but they are also constrained by the law. And subordinated groups that suffer under particular legal systems may find that law offers them, the less powerful, a measure of protection from the powerful, just as it sometimes offers them resources for action.
—Anthropologists June Starr and Jane Collier, 1989, History and Power in the Study of Law: New Directions in Legal Anthropology.
Law, Power and Resistance
Theoretical debates in the field of anthropology, politics and law center around questions of domination and resistance, justice and power: can marginalized groups, such as Aboriginal peoples, realize their aspirations for social change through legal processes?1
The most fundamental and traditional forms of legal critique in the western world are arguments and stories that expose the absence of neutrality or autonomy in law and legal processes. Feminists critique male dominance and sexist bias2; people of colour bring charges of systemic racism3; colonized and formerly colonized peoples reveal the legacy of imperialism;4 advocates of labour and the poor unmask alliances between powerful business interests and members of the judiciary.5 In response to the perennial question of how autonomous the law is from economic and political interests in “the last instance,” the British theorist, E. P. Thompson, wrote: “Well, for most of the time when I was watching, law was running quite free of economy, doing its errands, defending its property, preparing the way for it, and so on…. But…on several occasions, while I was actually watching, the lonely hour of the last instance actually came. The last instance, like an unholy ghost, actually grabbed hold of law, throttled it, and forced it to change its language and to will into existence forms appropriate to the mode of production, such as enclosure acts and new case-law excluding customary common rights. But was law ‘relatively autonomous’? Oh, yes. Sometimes. Relatively. Of course (emphasis in the original).”6
For Aboriginal peoples, as for other disempowered groups, the legal arena is a complex and often contradictory one in which to pursue social change.7 On the one hand, entering into a legal battle requires that all parties accept the language and the rules of the court. Critics of this strategy argue that the extent of “translation” required, for example, to explain Aboriginal spiritual beliefs in the language of the law changes the meaning of those beliefs.8 On the other hand, limited gains and protection of some historical rights have been achieved through legal struggles.
Many argue that Aboriginal peoples do not have the luxury of choosing not to engage in litigation to secure and protect rights.9 As small minority communities—geographically dispersed and politically and economically marginalized and dispossessed—Aboriginal peoples in Canada have limited resources to draw upon in their struggles for economic justice, political rights, and cultural survival. There are many locations where resistance is mounted: maintaining and reproducing kinship-based communities and strong family bonds in everyday life; insuring personal and familial survival; continuing to hunt, fish, trap, and gather on the land; engaging in ritual and ceremony; negotiating with governments; litigating in the courts; and participating in civil disobedience. In British Columbia, struggles have been fought at each of these sites consistently and simultaneously since Europeans first arrived.
Certainly, law is not monolithic. This is demonstrated by appeal courts overturning lower court rulings, and by the publication of majority and dissenting opinions by panels of judges who fail to reach consensus among themselves on key points. The history of resistance through law waged by First Nations in B.C. illustrates the “use of law as a ‘resource for action’” that Starr and Collier refer to. However, this history also raises questions about whether, looked at over the long term, the legal victories of Aboriginal peoples aren’t short-lived and quickly co-opted, leaving exhausted human and financial resources behind in their wake. The history of legal struggles over Aboriginal title in B.C. raises the question of whether law, after all is said and done, inevitably turns out to be a servant of the rich and powerful.
Logic, Legal Hysteria, and Rifle Shots on Vancouver Island
There is no clear, evolutionary logic in the historical development of Aboriginal rights…(in the courts)…. In spite of after-the-fact stories that have tried to imply a consistent logic…there was a basic incoherence, an instability and set of contradictions embodied in the original approach…. It is a history of sustained, often vicious struggle, a history of losses and gains, of shifting terrain, of strategic victories and defeats, a history where the losers often win and the winners often lose, where the rules of the game often change before the players can make their next move, where the players change while the logic remains the same, where the moves imply each other just as often as they cancel each other out. It is a complex history whose end has not been written and whose beginnings are multiple, fragmentary and undecidable.
—Historian Peter Kulchyski, 1994, Unjust Relations: Aboriginal Rights in Canadian Courts.
The questions that have been before the courts in British Columbia and Canada can be summarized briefly: (1) Did First Nations have legally recognizable title to their lands before the assertion of British sovereignty? (2) If they did have such title, does it continue today, or has it been extinguished? (3) If Aboriginal title and rights have not been extinguished, how can federal or provincial governments lawfully contravene or extinguish them?
During the years 1963-1991 a number of important cases were litigated in Canada concerning Aboriginal rights of various kinds. Those most relevant to the issues in dispute in the Gitksan and Wet’suwet’en case were: R. v.White & Bob; Calder v. R; The Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development; Guerin v R.; R. v. Bear Island Foundation; and R. v. Sparrow.10 Together, these six cases represent the legal context in which Delgamuukw v. R. was initiated, heard, and ruled on.
In the process of ruling on the six cases listed above, and others, different
