peoples under western economic and cultural domination. This trajectory therefore now reflects historical experience, rather than theoretical hypotheses, they claim. Anthropologists like Wilson Duff, while they respected and supported First Nations peoples and were devoted to preserving their cultures, applied class-based western notions of “high” and “low” culture to their analyses of Indigenous cultures.33 Peoples like the Nishga, therefore, with their abstract art, ornate carving, sophisticated architecture, and elaborate ceremonial life were judged within this framework to be “highly cultured.” Like rural people and urban working classes whose cultures are classified as “low,” some Aboriginal peoples without material cultural objects like totem poles, masks and carvings desired by Europeans, or elaborate ceremonial rituals like potlatches, are classified as “simple.” Unexamined evolutionary assumptions continue to incipiently and insidiously influence literature and the arts, and to inform “common sense” and popular culture.34
From Law to Politics and Back Again
I feel like a man who has been told he is going to die and is now being asked how he would like to be killed.
—First Nations leader George Manuel, responding to the White Paper Policy, Kamloops, 1969.
On August 8, 1969, at a press conference in Vancouver, B.C., newly-elected Canadian Prime Minister Pierre Elliot Trudeau was asked whether his government would recognize Aboriginal title and rights in British Columbia. He replied: “Our answer is no. We can’t recognize aboriginal rights because no society can be built on historical ‘might have beens’.”35 Trudeau’s Minister of Indian and Northern Affairs, Jean Chretien, oversaw the drafting and publication of a new Canadian Indian Policy that was released later in 1969. The Liberal government’s infamous “White Paper Policy” began with the statement, “…aboriginal claims to land…are so general and undefined that it is not realistic to think of them as specific claims capable of remedy except through a policy and program that will end injustice to Indians as members of the Canadian community.”36
The White Paper Policy advocated the dissolution of any distinct legal or political status for Indigenous peoples, or their lands, and the rapid assimilation of Aboriginal peoples into the mainstream of Canadian society. Three B.C. provincial Indian organizations met in Kamloops, B.C. in 1969 to plan strategies for responding to the White Paper Policy. Unanimity was as elusive as ever, but, with equal consistency, was finally found in the fundamental premise that Aboriginal title had existed prior to European contact and still did. Several months later an “All Bands Assembly” in Vancouver agreed to have non-Aboriginal experts prepare an historical-legal argument in support of the recognition of Aboriginal title, to be presented to a parliamentary committee.37 Opposition to the White Paper Policy’s assimilationist goals was voiced by Aboriginal representatives across the country, and for the first time in Canadian history, First Nations organized themselves on a Canada-wide basis, mobilizing their members to present a united front in defence of their cultural and political survival.
Four years later, in 1973, when the Supreme Court of Canada handed down their decision in Calder v. R., ruling that Aboriginal rights had in fact existed in British Columbia before contact with Europeans, and perhaps had not been extinguished, Prime Minister Trudeau was moved to allow that First Nations without treaties “May have more rights than we thought.”38 The federal government revisited its position and instituted the “Comprehensive Claims Policy” whose terms of reference mirrored the Supreme Court’s judgment in Calder. Aboriginal nations were invited to bring forth claims to land that had been used and occupied by their ancestors, and that they themselves were still using. The story of the Calder decision and the Comprehensive Claims Policy is an archetype of the relationship between law and government policy in Aboriginal matters. The legal tail wags the political dog, and man’s best friend rarely strays outside the yard the law fences in. Law is a force that politicians, bureaucrats, and Aboriginal peoples alike reckon with.
The Honour of the Crown Below Par
…Indians have a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown…. The nature of the Indians’ interest is therefore best characterized by its general inalienability, coupled with the fact that the Crown is under an obligation to deal with the land on the Indians’ behalf when the interest is surrendered…. Any description of Indian title which goes beyond these two features is both unnecessary and potentially misleading. 39
—Chief Justice Dickson, 1984, Reasons for Judgment, Guerin v. R.
The next significant court case was fought in the 1970s in British Columbia by the Musqueam First Nation. In 1950, federal officials of the Department of Indian Affairs and Northern Development (DIAND) arranged for the Musqueam Indian Band—whose reserve forms a small enclave located in the elite urban neighbourhood of south-west Vancouver—to lease a portion of their land to the exclusive Shaughnessy Golf and Country Club. Land values were assessed, and a lease agreement was ratified by the Musqueam Chief and Council by way of a band referendum. Since, under the Indian Act, First Nations lands are held in trust for them as wards of the Crown who, like children, are not able to enter into legal contracts, representatives of the Department of Indian and Northern Affairs signed the final contract with the Shaughnessy Golf and Country Club on behalf of the Musqueam. In 1970, Musqueam Chief Delbert Guerin learned that before they had signed the final contract, DIAND officials had reduced the value of the land and agreed to terms significantly more favourable to the Shaughnessy Golf and Country Club than to the Musqueam First Nation. These were not the terms that the band membership had agreed to in their referendum, and DIAND officials did not advise the Chief and Council that they had renegotiated the contract before they signed it.
The Musqueam sued the federal government for breach of trust and the federal court awarded them $10 million in damages. The Federal Court of Appeal overturned this decision. The Musqueam then appealed to the Supreme Court of Canada who found that, indeed, the Crown and its agents have a fiduciary obligation to act in the best interests of Indians, and that this had not been done in the case before them. While “failing to uphold their fiduciary obligations” may seem an undeservedly polite way to describe the deceit and duplicity engaged in by government representatives in this case, the Guerin decision did mark a recognition by the courts of at least once instance of these all too common practices in the history of government relations with Aboriginal peoples.
It is the sections of the Supreme Court’s decision that bear directly on the issue of Aboriginal title that are important to the story being told here. First, Chief Justice Brian Dickson’s ruling in Guerin reiterates these fundamental points: that the Crown in the form of the hovering sovereign holds underlying title to all land, and that Aboriginal title is not proprietary and can only be surrendered to the Crown. However, the significance of Dickson’s judgment is that he ruled that Aboriginal rights can apply to off-reserve lands. Second, the Supreme Court of Canada in Guerin ruled that the Crown’s fiduciary duty is legally rooted in Aboriginal title, and not, as was argued by the Crown, in the discretionary benevolence of the Crown or the Department of Indian Affairs. Third, the Guerin decision provides a precedent that future judges could adopt to recognize that Aboriginal rights pre-existed European arrival and are inherent: recognized, and not created, by the British sovereign. Fourth, in the Guerin decision the Supreme Court of Canada confirmed that Aboriginal title and rights are sui generis: “of their own kind; constituting a class alone; unique; peculiar.”40 The Courts, the ruling continued, have almost “inevitably found themselves applying somewhat inappropriate property law”41 to the determination of Aboriginal title and rights. The characterization of the legal nature of Aboriginal title as sui generis provided Canadian courts with the opportunity to explore beyond the confines of English property law to determine the scope and content of Aboriginal title and its relationship with the Crown’s interest.”42
