should be understood on their own terms. The rules or values of one culture should not be applied to the evaluation of another. From this perspective, the dominant western culture is but one among many, neither universal nor superior. I asked, “What cultural beliefs and practices did the Crown rely on to make sense of their arguments in Delgamuukw v. R.?” Interpreted from this position, the Crown’s arguments and the Chief Justice’s Reasons for Judgment read like archaic, eurocentric, colonial texts, with a uniquely local, British Columbian flavour. Finally, I read and wrote from a third position, that of a critic of the dominant order. From this position, I argue that a critique of ethnocentrism must necessarily be the beginning, but should not be the conclusion, of a project aimed at re-imagining law and justice, and re-thinking how Aboriginal and non-Aboriginal people may live together. From this location on the political margins, I asked questions that address the future, as well as the past: regardless of the cultural traditions these texts emerge from, what are the cultural prescriptions embedded in the Crown’s legal position and Chief Justice McEachern’s law. Particularly, what visions of nature and society, what models of human relationships, did the Crown’s defense of their position reflect, assert and defend? How are their images represented in the world they would create? What is the way of life they are empowered to command an army to defend? What kind of world/country/ province will we all, Aboriginal and non-Aboriginal, live in if desires like his continue to govern?
My interpretation and analysis therefore emerged from this critical “ethnographic reading” of the texts through which the law, and Delgamuukw v. R., has made itself known to the public. I did not observe the trial, and I have not interviewed or consulted with any of the participants. My writing has been a solitary project, not carried out in collaboration with any representatives of any parties to the dispute. I claim to represent no one but myself. I retell the story of the Gitksan and Wet’suwet’en case, from my point of view, as a detailed account of an important moment in our recent history: a snapshot that artificially freezes time and records the instant so that we may return to it and re-view it, see it from different perspectives, read it in different ways, and learn different lessons from it. Many people have engaged in similar studies and arrived at similar—and different—conclusions, and I have learned a great deal from their work. Believing that what people say is inseparable from how they say—or write—it, I have tried to bring some of these other observers and commentators into conversation with each other on the pages of my text. Of course, it is I who have chosen which of their words to select, and directed at what moments they should speak and to whom. In so doing, I have interrupted, interpreted and appropriated their meanings to my own ends. My sources are not responsible for the uses I have made of their words. Believing too that humour is one of the strongest forms of cultural criticism, when particular moments in this story have struck me as funny or ironic, satirical or sardonic, I have presented them as such. Learning to laugh at ourselves and with others must surely be a worthy goal in the pursuit of justice.
Any account of a process like the trial of Delgamuukw v. R. enacted over four years, that involved many people presenting complex evidence, debating obscure points of law, contradicting each other’s interpretations of history, disputing understandings of esoteric cross-cultural translations, must necessarily be selective and partial. I have tried to provide enough detail and sufficient references that interested readers may take my account as an entry into, rather than the final word on, or an exit from, the many complex issues this story brings up.
This is not, however, a “dialogue with texts.” This is a “dispute with texts,” particularly with the texts of the Province of British Columbia’s legal arguments in Delgamuukw v. R., and with Chief Justice McEachern’s Reasons for Judgment. At the same time, this book is not intended to be a polemic expressing an idiosyncratic or unique perspective. I have tried to present a meticulously documented, well-supported, and passionately reasoned, argument. I hope to persuade readers of the soundness of my position, and the weakness of the Crown’s; of the injustices of the Crown’s actions; and, of the desirability of an alternative vision for the future.
The story of litigation on Aboriginal title and rights in Canada, and particularly in British Columbia, is at one and the same time as remarkably simple as it is extraordinarily complex, as obtuse as it is simple-minded, and as familiar as it is strange. Truth and lies, fact and fiction, noble intentions and shameful motivations crisscross, undercut, and override each other as they dance across the pages of legal texts and treatises, creating a bewildering maze of claims and counter claims, accusations and denials. But when all is said and done, and many possible interpretations have been explored, the important questions remain: Has truth, by anyone’s criteria, been told? Has justice, by anyone’s measure, been done? Most importantly: how can justice be achieved in the present and protected in the future?
Stories like that of Delgamuukw v. R. illustrate how complex, and often contradictory, our feelings about law are. On the one hand, there is widespread cynicism in the public at large about the tenuous relationship between law and justice in Canada, especially in relation to Aboriginal peoples. And, there are hundreds of government reports, and volumes of academic research that support these criticisms. On the other hand, we continue to believe in the possibility that the law will be just. Most importantly, we continue to demand that the law should be just, in both its theories and its practices. We can never cease to insist on this. How could we? Law, after all, is supposed to represent the principles and rules by which we have all agreed to live together in this nation-state, to constitute our particular social and cultural world. To cease trying to hold the law accountable to justice, no less than to condone law answering only to itself, would be to surrender to nihilism, despair and totalitarianism. The consequences of legal rulings are complex and far-reaching. Law’s decisions are accompanied by powers of enforcement, including the exclusive right to legitimately use weapons and violence to resolve disputes. None of us can ignore the force of the law: it insists itself upon us in myriad ways every day. When it comes to law, then, critical skepticism, passionate outrage, perpetual hope, sardonic amusement, sheer terror, and utopian dreams of a moral social order are inevitably interwoven in our thinking, feeling, writing and conversation.
My initial goal was to make sense of the law. My next goal was to critique it. My long term goal is to help make the law sensible, and the society it reflects, just. I hope this book will challenge how you think about Aboriginal title and Canadian law, and how you choose to participate in shaping our collective future.
1. Language is important. Throughout this text I use a variety of terms to refer to the peoples whose ancestors lived on the North American continent before Europeans. Each term has diverse connotations. “Indigenous” is the most all-encompassing and is the term of global representation chosen by the United Nations. Some people feel it erases the specificity of particular Nations, and suffers from an imprecise time frame, i.e. some people who others consider “settlers” identify themselves as “indigenous” because their families have lived in a region for many generations. “Indian” began with Christopher Columbus’ error: landing in the Caribbean, he believed he had reached his destination of India, and so he called the people he encountered “Indians.” “Indian” is a term used in many legal documents, and in historical records. Some people find it offensive and feel its continued use reproduces its colonial legacy. “First Nation” is a term of recent emergence that is particularly popular in British Columbia. It is the language used in the Constitution Act 1982. Some people, particularly Metis representatives, interpret the “first” in “First Nation” as an implicitly hierarchical term that renders them “Second Nations.” “Aboriginal” is also a recent term that encompasses First Nations, Metis, Inuit, and Non-Status people. It is also used in legal documents, including the Constitution Act 1982. Some people feel that it is too broad and general and blurs important differences and erases diversity. I use all these various terms either because they are appropriate to the topic or time frame being discussed, or to the particular context. In unselfconscious contemporary everyday language, I hear all these terms deployed by Aboriginal and non-Aboriginal people and I use all these terms. I have reproduced this normal usage in the text. I regret if any readers are offended by any of these words.
