Madame Justice Bertha Wilson, the first woman to be appointed to the Supreme Court of Canada and one of the judges sitting on the bench when the case was heard, wrote in her contribution to the Guerin judgment that: “…the bands do not have the fee in the lands; their interest is a limited one. But it is an interest which cannot be derogated from or interfered with by the Crown’s utilization of the land for purposes incompatible with the Indian title, unless, of course, the Indians agree.” (Emphasis added.)43 This legitimated the position that Native consent should be required in order for Aboriginal title to be legally extinguished or contravened. Through this ruling, Justice Wilson created a precedent which was available to be adopted by judges when ascertaining whether or not particular Aboriginal peoples have consented to extinguishment of their Aboriginal title. Not only did the Guerin decision mark an instance of legal recognition that Aboriginal peoples in fact exist, but it suggested that it might be appropriate, morally just, and legal for their consent to be required before they could be “extinguished.”
The Supreme Court of Canada’s Calder decision marked a significant departure from the archaic legal positivism that had preceded it. And the Guerin decision went several steps further. However, in both cases, all the Supreme Court judges were unanimous in upholding the legitimacy of Britain’s assertion of sovereignty, and the hovering sovereign’s possession of the “underlying title to all the land.” If extinguishment of Aboriginal title had not been properly effected historically, then the judges said it should be now, and they set out ways for extinguishment to be recognized and/or accomplished.
The final goal that courts and governments have shared—the desired outcome of litigation, as well as land claims and treaty negotiations—is the extinguishment of Aboriginal title, absolutely and forever; and the confirmation of the singular sovereignty of Crown title, absolutely and forever. Legal and political recognition of Aboriginal title and extinguishment of Aboriginal title have been inextricably interdependent and mutually defining. The assertion of dominance and the surrender of autonomy must occur at the same instant. This demand for a forced coupling of recognition of Aboriginal title with extinguishment of Aboriginal title was upheld by every legal decision up to 1997 in Canada, and is reflected in the Comprehensive Claims Policy’s requirement that the settlement of any claim and the signing of any modern-day treaty is dependent on the Aboriginal peoples’ surrender of Aboriginal title, and agreement to its extinguishment. To Aboriginal peoples this demand is unjust and humiliating. Those First Nations who have entered into modern-day treaties—often under tremendous pressures in the face of potential environmental crises—have agreed to legal extinguishment of Aboriginal title for the purposes of resolving contemporary claims. In each set of negotiations, however, compliance with the demand for extinguishment has been resisted by First Nations representatives to the last moment, and it has only been with tremendous reluctance that extinguishment has been agreed to. It is a question that divides Aboriginal communities, and many continue to refuse to take this final step.
The 1970s marked the beginning of the contemporary period of B.C. Aboriginal politics in which debates concerning the relative merits and effectiveness of civil disobedience, political negotiation, and litigation are ongoing. The preferred tactic, as evidenced by the resolutions of provincial and national Aboriginal conferences, has always been political negotiation. The strength of their legal position, and the refusal of successive British Columbia governments until 1990 to recognize the legal existence of Aboriginal peoples in the province, has led British Columbia First Nations into the courts primarily as a means to achieve a strong enough bargaining position to “bring the government to the table.” First Nations have principally used the courts, not to settle the dispute, but to acknowledge its validity, after which nation-to-nation negotiations could honourably begin.
1. Clifford 1988(b); Just 1992; Lazarus-Black and Hirsch (eds.) 1994; Merry 1992; Mertz 1988. See also Danielson and Engle (eds.)1995; Hart and Bauman (eds.)1996; Leonard 1995.
2. The literature on this topic is vast. See, for a sample, Adelberg and Currie (eds.) 1993; Chunn, and Lacombe (eds.)1998; Smart 1989.
3. Turpel 1991(b); 1991(c); Williams, P. 1991.
4. Comaroff and Roberts 1981; Moore 1986.
5. There is a huge literature concerning the relationship between law and the economy, and questions about the role of law in class relations in western societies. For a survey see Hunt 1981; Snyder 1981.
6. Thompson 1978 quoted in Starr and Collier (eds.) 1989:25.
7. For a detailed explication of this issue see Coombe 1989.
8. For an articulation of this argument in the Canadian case see Turpel 1991(a).
9. For an articulation of this argument in the Canadian case see Henderson, J. Y. 1985; and Williams, R. A. 1987. The debate about the pitfalls and promises of using the law to achieve radical social change has been most thoroughly developed by feminist legal scholars. See Cornell 1992; Young 1991. Razack 1991 describes a case study in which these questions were grappled with.
10. There have been other important cases tried during this period of time. I have selected for focus here only those most relevant to British Columbia in general, and the Delgamuukw case in particular. For detailed summaries of discussions surrounding arguments and judgments in these cases, and others, see Kulychyski, Peter (ed.)1994.
11. R. v. White & Bob (50 Dominion Law Reports (2d) [1965], 620.
12. Berger 1981:49.
13. Ibid.
14. See Tennant 1990:216-217. Tennant says: “This was a lawyer’s argument contrived retrospectively. No one associated with any aspect of the Indian land question had previously read the Proclamation as not extending to the western edge of the continent(216).” Of the B.C. Crown’s lawyers’ analysis of the meaning of the use of the present tense, Tennant says: “Had the British monarch issued another proclamation stating that a royal biscuit was to be given to ‘any person with whom We are having tea,’ it would be ridiculous to argue that the provision applied only to persons at the table with the monarch at the moment of signing and that it did not apply to future tea parties. Today the Canadian Charter of Rights and Freedoms uses the present tense in expressing its guarantees: no sane person would maintain that its guarantees were intended to apply only at the moment the Charter was approved (216).”
15. Tennant 1990:217.
16. Macklem 1991:392.
17. For a survey of anthropologists’ involvement in First Nations legal struggles during the last thirty years see Kew 1993-94.
18. Berger 1981:52-53.
19. R. v. White & Bob (50 Dominion Law Reports (2d) [1965], 620, cited in Berger 1981:53.
20. Tennant 1990:219.
21. Merry 1992. See also Danielson and Engle (eds.)1995; Hart and Bauman (eds.) 1996; Leonard, 1995.
22. Calder et al v. A.G.B.C. (1969), 8 Dominion Law Reports (3d), 59-83, [S.C.B.C.]. The “Nishga” now spell their name “Nisga’a.”
23. Kulchyski 1994:61-126.
24. Berger 1981; Kulchyski 1994.
25. Kulchyski 1994:96-98.
26. Fanon 1963.
27. McGrane 1989.
28. Clifford 1988; Said 1992.
29. Calder et
