the law.
As a citizen, I wish to live in a just and democratic nation, and I object to the fact that Canadian sovereignty relies for its legitimacy on assumptions of human inequality: of European superiority and Aboriginal inferiority. The second premise I write from takes the form of an assertion of the democratic authority of a citizen to critique the law, and to insist that its practices accord with its avowed principles in ways that are comprehensible and transparent to the average person. I am neither a lawyer nor a legal scholar. I am, in this professional way, an “outsider” looking at the law. But as a citizen I am inevitably and irrevocably “inside” the law. The law claims to speak in the name of all people, and therefore the people should be able to discern the law’s reasoning and the factual foundation it claims to rest on. All this I learned from my parents and other wise people. I brought these understandings and points of view with me when I began studying anthropology in 1982.
Anthropology, historically, has been about western intellectuals investigating the ways of life—the “cultures”—of those classified as “others” in dominant European social theory: non-western, non-industrial, Indigenous peoples; and, to a lesser extent, marginalized groups within the borders of western nations. One of the central tasks of this traditional anthropology was identified as that of cross-cultural translation. Anthropologists sought to immerse themselves in the lives of the people they studied and, in this way, to achieve an “insider’s” point of view. The next step in the anthropological enterprise was then to describe and explain—to translate and represent—these “Native points of view,” and their different cultural perspectives on the human condition, to western audiences.
Contemporary anthropology questions many of the foundations of this academic discipline. Most importantly, classical anthropology is undergoing a thorough re-examination by those “subjects” who were constituted as “objects” of study by earlier generations of ethnographers. Formerly colonized peoples, members of minority communities in the west, women, and other “Others” who were historically written about and analyzed by anthropologists, are turning the microscope around and scrutinizing those who originally examined them. They are reading and critiquing traditional ethnographic representations of themselves; conducting their own research into the cultures of both colonizers and colonized, oppressors and oppressed; producing a critical “anthropology of anthropology.” More and more, western and non-western anthropologists are studying their own societies: exploring the cultures they are always already immersed in, re-examining the histories that have produced them, and questioning their own taken-for-granted assumptions about the past, the present, and the future. This process is exciting and profoundly challenging. Errors in fact are being corrected. Alternative explanations of world history are being considered. Diverse visions of possible futures are being contemplated. We now struggle to read the “great works” of the European intellectual tradition through the eyes of these “Others.” It is now marginalized peoples’ analyses of the centres, as well as of the margins, that we must try to grasp.
Traditionally, an anthropologist might be expected to study the cultural beliefs and practices that First Nations draw on to support their appeals for legal recognition of Aboriginal title. I recognize and respect the fact that it is a consequence of persistent Aboriginal resistance that these issues are before the courts at all. Aboriginal litigants perpetually challenge the law, and occasionally jurists acknowledge some legitimacy to their claims. In these ways, First Nations have influenced Canadian law significantly. But I did not undertake this study for the purpose of learning what the evidence and testimony presented in Delgamuukw v. R. might tell us about Gitksan and Wet’suwet’en cultures and histories, or to unravel how legal strategies have shaped the representation of such issues in the courtroom. These are interesting questions, of course. But they are not the questions that have guided my inquiry. Rather, I take as given—as “common sense”—that the Gitksan’s and Wet’suwet’en’s fundamental position is valid. That is, I take for granted that regardless of what forms their social structures and cultural beliefs took at the time, they owned the territory in dispute when the British arrived in the eighteenth century, and they have not ceded, sold, lost or surrendered their title or rights to these lands and their resources under the terms of either Aboriginal, British or Canadian law. The Gitksan and Wet’suwet’en, and other First Nations in British Columbia, have sought recognition by Canadian courts of these facts in order that provincial and federal governments could be compelled to negotiate a mutually respectful relationship with them. First Nations have sought peaceful co-existence with newcomers who, like my own predecessors, came from many parts of the world—for myriad reasons—to live here, in Canada. I believe this is a just goal, and it is one I share. I take this position to constitute “good sense.”5
What I consider not readily accessible to common sense, and not a reflection of good sense, and therefore in need of explanation and criticism, are the Crown’s positions and the evidence and theories relied upon to support them. This book is therefore a project in the anthropology of European colonialism: a study of power and of the powerful. I turn my anthropologist’s spyglass on the law, an institution that quintessentially embodies and reproduces Western power. This is the third premise from which I write.
As an anthropologist, I have tried to make sense of the law on Aboriginal title in British Columbia by placing the Gitksan and Wet’suwet’en case within the historical and contemporary political context of British and Canadian relations with First Nations, and considering the ways that law reflects and reinforces Euro-Canadian cultural beliefs, practices and diverse interests. I have explored how law shapes relations between people outside the courtroom as well as inside. Contrary to the image law holds of itself as a world unto itself, I understand law as inextricably enmeshed in society.
The first obligation of any responsible critic is to thoroughly investigate the object of critique, and I have tried to do so. In order to understand the story of Delgamuukw v. R., I read, watched, listened to and discussed commentaries on the case by a wide range of people. I conducted a “close reading” of the various texts of this case: expert witness reports; transcripts of the trial; Reasons for Judgment; academic and popular commentaries on the case itself and the issues it raised. By “close reading,” I mean studying the texts not only for their literal or “factual” content, but also to understand the various ways they communicate meanings directly and subtly, by using language in particular ways; by writing and speaking in rhetorical styles; by deploying metaphor and evoking certain images and emotions; by using grammar, and constructing each text as a whole along specific lines. That is to say, I read these documents as cultural texts, using the tools of anthropological and cultural criticism. And, since particular texts do not make sense outside the broader context in which they are written and read, I have also studied related work in the fields of anthropology, history, law, and northwest coast ethnography.
However, Chief Justice Allan McEachern’s Reasons for Judgment in Delgamuukw v. R., was not written as a work of fiction or ethnography. Judicial rulings carry with them a great deal of power and authority, based largely on assumptions that they represent reasonable and coherent conclusions drawn from a basis in empirical fact. I therefore considered it important to try to understand and critique this text on its own terms first. I began by analyzing the judge’s ruling within its own context: the law on Aboriginal title in British Columbia. I considered it as a recent link in a long historical chain of Aboriginal title and rights cases that began when the British Empire began, and gave rise to the legal precedents that continue to shape contemporary judgments. My first task, then, was to trace the history of the law that Chief Justice McEachern claimed forced him to arrive at the ruling that he did.
I conducted my critique from three positions, or points of view. First, I tried to step inside the law to understand it. I asked whether the law has followed its own rules and met its own criteria. As an anthropologist, the question that I sought to answer was whether or not the judge’s rulings that relied on history and anthropology reflected reliable findings based on reputable research in these fields. Second, I stepped back outside the law, and read these texts from a position informed by a conventional anthropological critique
