be recognized in Canadian law emerged; and Aboriginal Elders, anthropologists, and other expert witnesses became an integral part of contemporary legal processes. Aboriginal and non-Aboriginal plaintiffs and defendants, lawyers and judges, witnesses and researchers involved in Aboriginal title and rights litigation since the 1960s have studied, created, defended, and opposed the evidence, arguments and rulings that emerged in these cases. In order to understand the strategies adopted by the parties to Delgamuukw v. R., it is necessary to comprehend, at least in skeletal form, this legal and historical context.
In British Columbia, the first of the modern Aboriginal rights cases was initiated in the spring of 1963 when Clifford White and David Bob,11 two members of the Saalequn (Nanaimo) First Nation of central Vancouver Island in British Columbia, went deer hunting on the south slope of Mount Benson, a few miles inland from Nanaimo. They were arrested and charged under the Game Act of British Columbia (R.S.B.C. 1960) for being “in possession of deer during the closed season.”12 White and Bob argued that their right to hunt and fish for food on unoccupied Crown lands was guaranteed to them under the terms of a treaty signed between Saanich Chief Whut-Say-Mullett, and Governor James Douglas in Fort Victoria on February 7, 1852.13 The case came to the attention of Thomas Berger, then leader of the British Columbia New Democratic Party and a practising lawyer in Vancouver. White and Bob’s legal counsel argued that this treaty was protected by the Indian Act which, as federal legislation, was paramount over provincial legislation such as the Game Act. The Province of B.C. argued that the treaty of 1852 did not constitute a treaty between the Crown and an Aboriginal nation but rather was a commercial conveyance between some individuals who were members of a group that were not a state and had no international personality, and a privateenterprise, the Hudson’s Bay Company, represented by its Chief Factor, James Douglas, who doubled as Governor of the Colony of Vancouver Island at the time. In other words, the Crown argued that the document was not a treaty but a private exchange of cash for land. The ancestors of White and Bob, the Crown claimed, had sold their land, and therefore their descendants had no rights on it, or to it.
The White & Bob case was the first to require a provincial government of British Columbia, and their lawyers, to develop legal arguments to defend their historical denial of Aboriginal title and rights. The province’s solicitors adopted a position based in legal positivism and referred to the St. Catherine’s Milling precedent, arguing first that Aboriginal title could only exist if it was created by a sovereign. The king had chosen not to create such rights because the Aboriginal peoples of British Columbia were “too primitive” according to the Re: Southern Rhodesia precedent. The province’s legal argument relied on a particular interpretation of history that described the First Nations of British Columbia as minimally evolved nomads lacking law or government when Europeans first arrived. For the first time in court, the province articulated an interpretation of the Royal Proclamation of 1763 that was to become a hallmark of British Columbia’s legal arguments in all subsequent cases. The province’s lawyers claimed that, since British Columbia did not appear on most maps drawn by British cartographers (who had, in 1763, not yet travelled to the west coast), the Royal Proclamation of 1763 was not intended to apply to Aboriginal peoples here. What the sovereign (or, in this case, his mapmakers) did not see, did not exist.
Furthermore, they referred to the use of the present tense by the writers of the Proclamation in the phrase “the Indians with whom we are connected” as evidence that the authors’ intentions were to exclude any Aboriginal groups with whom the Crown had not yet made contact. Berger argued that the present tense is the grammar of legal statutes, proclamations, and constitutions which are usually considered, legally, to “speak until they are repealed.” The B.C. Crown’s interpretation of the Royal Proclamation has been described by historians and legal scholars as “implausible,” “indefensible” and “ridiculous.”14 It has, however, been argued repeatedly by prestigious lawyers, and declared “fact” by eminent judges, for 30 years.
The next line of legal attack developed by the Province of B.C. in the White & Bob case and in subsequent litigation, was that if there had, in fact, been some form of Aboriginal title before the arrival of Europeans in British Columbia, it was extinguished by the assertion of sovereignty by Britain, and by the enactment of land use legislation by the colonial legislature.
The absence of any First Nations consent to extinguishment of their land title was, within the framework of legal positivism, irrelevant: if Aboriginal rights are created and extinguished only by the sovereign, then Aboriginal consent is not required to do either. Anyway, concluded provincial lawyers, Indians “implicitly” consented to extinguishment of title. This, they argued, was “proven” by the fact that First Nations in British Columbia did not wage armed rebellions, appeared (according to non-Aboriginal interpretations) to acquiesce to colonial domination, were now believed to be assimilated into mainstream Canadian society, and were therefore no longer racially or culturally “pure.” Crown lawyers pointed to Aboriginal “culture” measured by language, religion, clothing, food, weapons, modes of earning a living, housing, and means of transportation, for evidence. Any cultural change since contact with Europeans was presented as the natural outcome of a passive, inferior culture coming into contact with an active, superior one. Only those activities whose origins could be traced to pre-contact Aboriginal cultures and which continued to be practiced, could be classified under this rubric as “truly Aboriginal.” This is referred to in law as the “frozen rights” theory, wherein Aboriginal cultures are “frozen” at the moment of “discovery,” and any developments since that moment are interpreted as resulting from European influence. In other words, “ignoring Indian title was…seen as extinguishing it. Put another way, the argument asserted that the ordinary operation of a British colonial government had the effect of wiping out the legitimacy of any preexisting aboriginal arrangements…. The argument of implicit extinguishment through ordinary legislation has not been raised in other parts of Canada.”15
This represents one of many “double binds” in legal and popular discourses on Aboriginal rights. A double bind is a “damned if you do and damned if you don’t” situation in which the outcome is always pre-determined, and in which explanations are arrived at by reasoning backwards from consequences to causes. From a social evolutionary perspective, to the extent that Aboriginal cultures are understood as not having changed after contact with Europeans, they are analyzed as being “arrested” at a “lower stage” of development, and incapable of “advancement.” Such “primitive” peoples must not have had any concepts of property or law, and clearly cannot—today—be considered capable of being granted the same rights as those of “civilized” peoples. They are too different to be considered equal. To the extent, on the other hand, that Aboriginal cultures are understood as having changed and adapted some European ways to their own, then they are said to have voluntarily “assimilated” into the colonial culture, and clearly then have no grounds on which to claim “special” rights different from everyone else’s. They are too equal to be considered different. Heads, the Crown wins. Tails, Indians lose.
When legal scholar, Patrick Macklem, tried to ascertain the way concepts of cultural similarity and cultural difference had impacted on “how the law has contributed to the current status of First Nations in Canada,” he found that “Native difference is denied where its acceptance would result in the questioning of basic premises concerning the nature of property, contract, sovereignty or constitutional right. Native difference is acknowledged where its denial would achieve a similar result.”16 Macklem concluded that this discourse on cultural similarity and difference constituted a “rhetoric of justification” for legal judgements.
Anthropologists entered the legal fray in the White & Bob case, led by Wilson Duff.17 Initially, anthropological research was principally concerned with documenting and describing various Aboriginal peoples’ practices surrounding land and resource ownership and use, translating this data into language that lawyers and judges could understand, and considering whether or not these concepts of “Aboriginal title” were commensurable with concepts of property
