trial, Wilson Duff responded to Berger’s question concerning the meaning of the term “tribal territories” for the Saalequn as follows:
Berger: When you say tribal territories, can you tell us what you mean by that? What use would the Indians have made of their tribal territories?
Duff: This could be a very complicated statement, because they used different kinds of territories…with different intensity. They would use the rivers, of course, for fish with great intensity, and the beaches with great intensity, and the mountains and forest with somewhat less intensity, yet they would go at least that far back, not only to hunt the land mammal, deer, and also other land mammals, but to get bark and roots for basketry and matting and such things. These territories would be definitely used by them and would be recognized by other tribes as belonging to them.18
The lower court found both defendants guilty and fined Clifford White and David Bob $100.00 (or 40 days in jail in default) each. Berger was successful in obtaining a new trial for White and Bob and went on to win a decision by the County Court of Nanaimo, which was then upheld by the B.C. Court of Appeal and the Supreme Court of Canada. The document signed by Whut-Say-Mullett and Governor James Douglas was in fact a treaty. White and Bob indeed had the right to hunt and fish for food on unoccupied Crown land. Mr. Justice Tom Norris of the B.C. Court of Appeal further ruled that the treaty was, like other treaties signed between the Crown and Canadian Aboriginal peoples, consistent with the direction of the Royal Proclamation of 1763. He wrote: “the aboriginal rights as to hunting and fishing affirmed by the Proclamation of 1763 and recognized by the Treaty…still exist.”19
The legal significance of this decision was that “for the first time a judge, and a well-respected British Columbia judge of conservative leanings at that, had presented a comprehensive opinion endorsing both the pre-existence and the continuing existence of aboriginal rights in British Columbia.”20
Civilization and the Whimsical Destruction of Property
The assessment and interpretation of the historical documents and enactments tendered in evidence must be approached in the light of present-day research and knowledge disregarding ancient concepts formulated when understanding of the customs and culture of our original people was rudimentary and incomplete and when they were thought to be wholly without cohesion, laws or culture, in effect a subhuman species. This concept of the original inhabitants of America led Chief Justice Marshall in his otherwise enlightened judgment in Johnson v. McIntosh…to say ‘the tribes of Indians inhabiting this country were fierce savages, whose occupation was war…. ‘We now know that that assessment was ill-founded…Chief Justice Marshall was, of course, speaking with the knowledge available to him in 1823. Chief Justice Davey…[of the B.C. Court of Appeal] with all the historical research and material available since 1823 and notwithstanding the evidence in the record…said of the Indians of the mainland of British Columbia: ‘…they were undoubtedly at the time of settlement a very primitive people with few of the institutions of civilized society, and none at all of our notions of private property.’ In so saying this in 1970, he was assessing the Indian culture of 1858 by the same standards the Europeans applied to the Indians of North America two or more centuries ago….
—Justice John Hall, Supreme Court of Canada, 1973, Dissenting Opinion, Reasons for Judgment in Calder v. R.
There is another aspect to the relationship between law, culture and power that is interwoven with the role law plays in enforcing particular rules in the interests of specific sectors of society. Law also “maintains power relations by defining categories and systems of meaning.”21 This defining and productive activity of law—setting the agenda, and constructing the parameters of what may be included and what must be excluded—is exemplified in the legal tests for Aboriginal title and rights. The tests are based on criteria the courts have established for evaluating claims brought before them by Aboriginal litigants.
Legal tests for Aboriginal rights reveal the power relations that are constitutive of legal encounters: judges construct the tests; claimants sit them; judges mark them: pass, fail or defer. Of course, the arguments and evidence presented by Aboriginal claimants, and political support for them from outside the courtroom, have also influenced the tests. That is to say, it is as a result of persistent Aboriginal resistance that these questions continue to be placed before the judiciary. To this extent, the evolution of the tests represents the outcome of contestation and negotiation. However, the Crown is the dominant partner in a hierarchical relationship with Aboriginal peoples in Canadian society; and this social inequality follows the parties into the courtroom in myriad ways. The Crown has greater access to more resources in every part of the legal process, and in every aspect of it. The playing field, as the popular expression goes, is not only theirs, it is far from level.
The history of legal tests for Aboriginal rights could start in 1550 with Valladolid. It could start in 1608 with Calvin’s Case and the infidel rule. It could start with the memorandum of the British Privy Council in 1722 that set out the doctrine of conquest and the doctrine of discovery/occupation/settlement. It could start with Lord Sumner’s dictum in Re: Southern Rhodesia based in an evolutionary framework. This is the history that followed First Nations, lawyers, and judges into court in British Columbia where the story of legal tests for Aboriginal title began in 1969 with what is now called “the Calder case,” or “the Nishga case.”22 Chief Frank Calder, on behalf of the Nishga Tribal Council, asked the Supreme Court of British Columbia for a declaration that:
(1) the Nishga held title to their territory prior to the assertion of British sovereignty;
(2) that this title had never been lawfully extinguished; and,
(3) that this title is a legal right.
In support of their claim that their Aboriginal title had never been ceded, sold, surrendered or lost in war, the Nishga relied upon written archival evidence that showed they had begun petitioning the Queen and Colonial officials for recognition of their title since first contact with Europeans in the eighteenth century. Five Nishga hereditary chiefs, Frank Calder, James Gosnell, William McKay, Harry Nyce, and Anthony Robinson; one provincial archivist, Willard Ireland; and one anthropologist, Wilson Duff, testified as expert witnesses.23 Both the chiefs and the expert witnesses focused on demonstrating extensive Nishga use and occupation of the Nass Valley.24 Wilson Duff, acting as cultural translator, explained that the Nishga system of property ownership is different from, but analogous to, English common law property ownership. The skeleton of a legal test for Aboriginal title emerged in the following exchange between B.C. Supreme Court Judge Gould and Wilson Duff:
The Court: I want to discuss with you the short descriptive concept of your modern ownership of land in British Columbia, and I am going to suggest to you three characteristics (1) specific delineation of the land, we understand is the lot.
Duff: Yes.
The Court: Specifically delineated down to the lot, and the concept of the survey; (2) exclusive possession against the whole world, including your own family. Your own family, you know that, you want to keep them off or kick them off and one can do so; (3) to keep the fruits of the barter or to leave it or to have your heirs inherit it, which is the concept of wills. Now, those three characteristics…are you with me?
Duff: Yes The Court: Specific delineation, exclusive possession, the right of alienation, have you found in your anthropological studies any evidence of that concept being in the consciousness of the Nishgas and having them executing such a concept?
Duff: My lord, there are three concepts.
The Court: Yes, or a combination of them.
Duff: Specific delineation…Physical landmarks, physical characteristics. The exclusive
