on the question of Aboriginal title and rights. How did the British Crown acquire its rights to the territory we now call British Columbia? Many Canadians would respond, with pride, that unlike Americans, we gained sovereignty over the lands we live on, and established political jurisdiction over its Indigenous inhabitants, through the rule of law, rather than by military force.
In fact, the Crown acquired its title to First Nations’ lands and resources by simply asserting sovereignty and ignoring Aboriginal title in contravention of British colonial law. British and then Euro-Canadian rule was enacted by sheer force of numbers as settlers overwhelmed fragments of Aboriginal populations who had survived the first waves of epidemic diseases brought by European fur traders during the eighteenth century. Aboriginal peoples were simply deemed, by law, not to exist. The colonists then established their own legal regime that validated their self-proclaimed sovereignty and jurisdiction. For over 100 years, the governments and the courts of the Province of British Columbia have defended their predecessors’ initial trespass on Aboriginal lands, and their transgression of British law, by whatever means necessary: coercion, deceit, compromise, seduction, force. Law.
Aboriginal peoples have steadfastly insisted that they surrendered neither ownership of their lands, nor their political autonomy. Nor did they cease to exist. However, it was not until the late 1960s that First Nations—after over a century of petitioning—succeeded in compelling Canadian courts to begin adjudicating their disputes with the governments about who owns the land in British Columbia.
When called upon to justify its actions in law, the Province of British Columbia retreats to a legal fortress, the cornerstone of which is the mystical “original moment” when Britain asserted sovereignty over First Nations in British Columbia, often without their knowledge, and always without their consent. The Crown’s defense begins by giving legal sanction to this crude act of aggression, and then proceeds from this starting point to call upon a range of social theories, historical fictions, and popular “common sense” ignorance and prejudice to justify its actions. Crown lawyers present as evidence stereotypical caricatures of Aboriginal peoples as “backward” and “primitive” when Europeans arrived. Grisly tales of “war-like savages” are juxtaposed with an heroic epic of “advanced” and “civilized” white settlers who, it is claimed, brought Christianity, reason, and the rule of law to the untamed wilderness of British Columbia. The stark contrast in “development” between the two “races,” the Crown argues, made the superimposition of British sovereignty over Aboriginal sovereignty a “natural” outcome of the “progress” of history, and rendered inevitable the subordination of Aboriginal peoples to non-Aboriginal governance. A short answer to the Aboriginal elders’ question is that the Crown acquired its ‘rights’ to their land by simply seizing it: through the force of law.
How could this have happened in this way? Here, in British Columbia, in Canada? More importantly, how can this violation of values that many Canadians hold dear—like respect for the rule of law, a belief in equality, and a commitment to human rights—continue to be legitimized in the 1990s? These are the questions that shape this book. By looking behind, around, and through the interconnections between law, history, culture, and power, I offer a long answer to the elders’ question.
Human Being, Citizen, Anthropologist
The landmark case of Delgamuukw v. The Queen heard in British Columbia during 1987-1991 represented a crystallizing moment in the history of Aboriginal peoples and the law in British Columbia. All the variously interested parties to the dispute came together in one forum to present their positions, their arguments, and their supporting evidence. History followed them into the courtroom, and they carried the future out with them when they left.
I wrote this book as a contribution to the ongoing discussions that are taking place in British Columbia and Canada about the possibilities for justice in Aboriginal/non-Aboriginal relations; as a commentary on a particular dispute in one corner of the globe that is linked to more general struggles for social justice around the world; and, as an intervention in debates in the academic fields of anthropology and law. I write as a human being, a citizen, and an anthropologist. I present an explanation of issues and events that is necessarily one interpretation among many possibilities. Like any account, mine arises from and is shaped by some fundamental assumptions, principles, experiences and positions that I will set out as honestly as I can.
My inquiry begins and ends with the basic claim that all human beings are fundamentally equal and worthy of respect, and the simple assertion that Canadian law should reflect these principles, both in theory and in practice. My argument is that, in relation to Aboriginal peoples, this has not historically been, nor is it now, the case. I have come to this conclusion by way of a number of different paths.
Long before I began this study of the Delgamuukw v. R. case, (and former Chief Justice Allan McEachern’s Reasons for Judgment); and long before I had ever heard of the Gitksan or Wet’suwet’en First Nations, I was imbued as a child with certain understandings of both the danger of the law when it is abused as a weapon of terror, and of the promise of the law when it is employed to achieve and protect justice. Members of my Irish father’s family were assassinated by English soldiers in the early years of this century: I was raised with few illusions about British justice. My mother’s Jewish family fled pogroms in Czarist Russia and witnessed the Holocaust: I was taught to respect law as an alternative to brutality, and to value scholarship in the service of justice. These general understandings represent, to me, who I am and, as such, they shape how I interpret the world I live in.
I began thinking seriously about the particular questions that constitute the subject matter of this book in the early 1970s, when I married a First Nations man, lived in his reserve community on the Central Coast of British Columbia, and became involved in the movement for recognition of Aboriginal title.4 I cannot remember when I first began to “believe” the simple truth that British Columbia First Nations hold unsurrendered Aboriginal title to their lands. If I ever thought differently, and there indeed was such a “moment of revelation” when I changed my mind, it happened so long ago that I cannot recall it now. For as long as Is can remember, this position has appeared to me as simple common sense: Aboriginal peoples were here, Europeans arrived. No wars of conquest were fought, no treaties were entered into. Hence, no Aboriginal title or rights were surrendered. These issues remain unresolved, so mutually-respectful negotiations should begin. These fundamental factual and moral “truths” are, to me, obvious. Nothing I have heard, seen, read, learned or experienced in the last twenty-five years has caused me to think or feel differently.
I have brought up two Aboriginal children in contemporary British Columbia. I know something of the depths of racism in this province and in this country. I recognize, in the erudite language of the law, the same cruelty I have seen and heard directed to Aboriginal people in Canadian schools, hospitals, legislatures and many other “public” spaces. As a human being, I consider racism a violation of human rights. This is the first premise from which I write.
Sometime during the last twenty or so years, I also began to understand how the denial of Aboriginal title and rights in this context was simultaneously a denial of human equality. This understanding emerged first from learning how British and Canadian property law differentiates between categories of citizens according to their relationship to private property: fully “matured” citizens may own land, and others may not. These legal classifications mirror, and are mirrored by, cultural beliefs that accord greater value and worth to persons with property, than to those without. Ownership of private property stands as both criteria for, and evidence of, successful citizenship. Knowing this, when I hear Aboriginal people say that they are deeply hurt when governments and courts repeatedly refuse to recognize Aboriginal title and acknowledge Aboriginal rights, I interpret the injury they express as reflecting their very perceptive understanding of the meaning and value of property in the dominant Canadian culture, and the law’s reflection of these meanings. That is to say, regardless of how diverse Aboriginal peoples may feel about property, they know how Canadian
