The Pleasure of the Crown. Dara Culhane

Generalized map of British Columbia showing Territories claimed by Gitksan and Wet’suwet’en Peoples (not to scale).

PART I

       JUSTITIA OMNIBUS

       (JUSTICE FOR ALL)

Chapter 1: How Did the Crown Acquire Title?

       The Indian elders in British Columbia question why they must subject their relationship to the land to a non-Indian court’s strict scrutiny: why they must explain their use of the land to obtain ‘rights’ abstractly defined by others.

       They believe that the Indians have rights to their land because their people go back with the land for thousands of years. What they do not understand is how the Crown acquired its ‘rights’ to their land.

      —Lawyer Louise Mandell, 1987, Native Culture on Trial.

The Long and the Short of It

      Law, we are taught to believe by our educational institutions, embodies justice. Our courts’ formal rules of evidence, and their procedures, enable the discovery of truth through the application of reason. “Judicial neutrality”—the absence of bias among judges—guarantees that fair and equitable resolutions to disputes between any and all people(s) will be arrived at. Equality before the law, we are told, is the linchpin of the Canadian judicial system; and justice, we are assured, is the outcome of legal processes. It follows from these official premises, and by this reasoning, that if contemporary Canadian sovereignty and Crown title and rights to land are confirmed by law, they must have been justly acquired.

      Of course, in these cynical times, few claim the Canadian legal system is infallible. Charges that interests other than the pursuit of justice may be at play in legal processes do not usually generate widespread alarm. Increasingly, we understand that what we call “facts” are frequently matters of interpretation that reflect particular points of view rather than unequivocal certainty. We have come to appreciate that something called “culture,” and more specifically, “cultural differences,” come between Aboriginal¹ peoples and Canadian law, disrupting communication and mutual understanding. Suggestions that judges’ decisions often reflect prejudices common in contemporary society at large, rather than being strictly determined by exclusively legal concerns, are hardly shocking revelations.

      However, periodically a particular judicial decision comes to public attention that shocks even the most complacent or embittered cynic. Allan McEachern, the former Chief Justice of the Supreme Court of British Columbia, created just such a controversy when he handed down his 1991 judgment against the Aboriginal claimants in the high profile Gitksan² and Wet’suwet’en³ land rights case, also known as the case of Delgamuukw v. The Queen. Judge McEachern ruled that, before Europeans arrived in the late eighteenth century, the First Nations had been too “primitive” to have had property laws or institutions of governance. Today, he declared, they have no Aboriginal rights whatsoever. Charges of racism were hurled at the judge. He was accused of shamelessly favouring the interests of big forestry companies and non-Aboriginal elites against the rights of First Nations. The Chief Justice defended himself, using the letter of the law as his shield. He protested that he was compelled by historical precedents to repeat the rulings of previous judges that dated back hundreds of years. Chief Justice McEachern admitted that his decision might not be just, but he was convinced that it was definitely legal.

      Indeed, law and justice have not always walked hand

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