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Chapter 6: White Papers and Legal Tests

Legal orders may embody asymmetrical power relations, but power is always an interactional process. Dominant groups enjoy legally protected privileges, but they are also constrained by the law. And subordinated groups that suffer under particular legal systems may find that law offers them, the less powerful, a measure of protection from the powerful, just as it sometimes offers them resources for action.

—Anthropologists June Starr and Jane Collier, 1989, History and Power in the Study of Law: New Directions in Legal Anthropology.

Law, Power and Resistance

Theoretical debates in the field of anthropology, politics and law center around questions of domination and resistance, justice and power: can marginalized groups, such as Aboriginal peoples, realize their aspirations for social change through legal processes?¹

The most fundamental and traditional forms of legal critique in the western world are arguments and stories that expose the absence of neutrality or autonomy in law and legal processes. Feminists critique male dominance and sexist bias²; people of colour bring charges of systemic racism³; colonized and formerly colonized peoples reveal the legacy of imperialism;⁴ advocates of labour and the poor unmask alliances between powerful business interests and members of the judiciary.⁵ In response to the perennial question of how autonomous the law is from economic and political interests in “the last instance,” the British theorist, E. P. Thompson, wrote: “Well, for most of the time when I was watching, law was running quite free of economy, doing its errands, defending its property, preparing the way for it, and so on…. But…on several occasions, while I was actually watching, the lonely hour of the last instance actually came. The last instance, like an unholy ghost, actually grabbed hold of law, throttled it, and forced it to change its language and to will into existence forms appropriate to the mode of production, such as enclosure acts and new case-law excluding customary common rights. But was law ‘relatively autonomous’? Oh, yes. Sometimes. Relatively. Of course (emphasis in the original).”⁶

For Aboriginal peoples, as for other disempowered groups, the legal arena is a complex and often contradictory one in which to pursue social change.⁷ On the one hand, entering into a legal battle requires that all parties accept the language and the rules of the court. Critics of this strategy argue that the extent of “translation” required, for example, to explain Aboriginal spiritual beliefs in the language of the law changes the meaning of those beliefs.⁸ On the other hand, limited gains and protection of some historical rights have been achieved through legal struggles.

Many argue that Aboriginal peoples do not have the luxury of choosing not to engage in litigation to secure and protect rights.⁹ As small minority communities—geographically dispersed and politically and economically marginalized and dispossessed—Aboriginal peoples in Canada have limited resources to draw upon in their struggles for economic justice, political rights, and cultural survival. There are many locations where resistance is mounted: maintaining and reproducing kinship-based communities and strong family bonds in everyday life; insuring personal and familial survival; continuing to hunt, fish, trap, and gather on the land; engaging in ritual and ceremony; negotiating with governments; litigating in the courts; and participating in civil disobedience. In British Columbia, struggles have been fought at each of these sites consistently and simultaneously since Europeans first arrived.

Certainly, law is not monolithic. This is demonstrated by appeal courts overturning lower court rulings, and by the publication of majority and dissenting opinions by panels of judges who fail to reach consensus among themselves on key points. The history of resistance through law waged by First Nations in B.C. illustrates the “use of law as a ‘resource for action’” that Starr and Collier refer to. However, this history also raises questions about whether, looked at over the long term, the legal victories of Aboriginal peoples aren’t short-lived and quickly co-opted, leaving exhausted human and financial resources behind in their wake. The history of legal struggles over Aboriginal title in B.C. raises the question of whether law, after all is said and done, inevitably turns out to be a servant of the rich and powerful.

Logic, Legal Hysteria, and Rifle Shots on Vancouver Island

There is no clear, evolutionary logic in the historical development of Aboriginal rights…(in the courts)…. In spite of after-the-fact stories that have tried to imply a consistent logic…there was a basic incoherence, an instability and set of contradictions embodied in the original approach…. It is a history of sustained, often vicious struggle, a history of losses and gains, of shifting terrain, of strategic victories and defeats, a history where the losers often win and the winners often lose, where the rules of the game often change before the players can make their next move, where the players change while the logic remains the same, where the moves imply each other just as often as they cancel each other out. It is a complex history whose end has not been written and whose beginnings are multiple, fragmentary and undecidable.

—Historian Peter Kulchyski, 1994, Unjust Relations: Aboriginal Rights in Canadian Courts.

The questions that have been before the courts in British Columbia and Canada can be summarized briefly: (1) Did First Nations have legally recognizable title to their lands before the assertion of British sovereignty? (2) If they did have such title, does it continue today, or has it been extinguished? (3) If Aboriginal title and rights have not been extinguished, how can federal or provincial governments lawfully contravene or extinguish them?

During the years 1963-1991 a number of important cases were litigated in Canada concerning Aboriginal rights of various kinds. Those most relevant to the issues in dispute in the Gitksan and Wet’suwet’en case were: R. v.White & Bob; Calder v. R; The Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development; Guerin v R.; R. v. Bear Island Foundation; and R. v. Sparrow.¹⁰ Together, these six cases represent the legal context in which Delgamuukw v. R. was initiated, heard, and ruled on.

In the process of ruling on the six cases listed above, and others, different answers were given by the courts to the key questions; a series of legal tests that set out the criteria through which Aboriginal title and rights could be recognized in Canadian law emerged; and Aboriginal Elders, anthropologists, and other expert witnesses became an integral part of contemporary legal processes. Aboriginal and non-Aboriginal plaintiffs and defendants, lawyers and judges, witnesses and researchers involved in Aboriginal title and rights litigation since the 1960s have studied, created, defended, and opposed the evidence, arguments and rulings that emerged in these cases. In order to understand the strategies adopted by the parties to Delgamuukw v. R., it is necessary to comprehend, at least in skeletal form, this legal and historical context.

In British Columbia, the first of the modern Aboriginal rights cases was initiated in the spring of 1963 when Clifford White and David Bob,¹¹ two members of the Saalequn (Nanaimo) First Nation of central Vancouver Island in British Columbia, went deer hunting on the south slope of Mount Benson, a few miles inland from Nanaimo. They were arrested and charged under the Game Act of British Columbia (R.S.B.C. 1960) for being “in possession of deer during the closed season.”¹² White and Bob argued that their right to hunt and fish for food on unoccupied Crown lands was guaranteed to them under the terms of a treaty signed between Saanich Chief Whut-Say-Mullett, and Governor James Douglas in Fort Victoria on February 7, 1852.¹³ The case came to the attention of Thomas Berger, then leader of the British Columbia New Democratic Party and a practising lawyer in Vancouver. White and Bob’s legal counsel argued that this treaty was protected by the Indian Act which, as federal legislation, was paramount over provincial legislation such as the Game Act. The Province of B.C. argued that the treaty of 1852 did not constitute a treaty between the Crown and an Aboriginal nation but rather was a commercial conveyance between some individuals who were members of a group that were not a state and had no international personality, and a privateenterprise, the Hudson’s Bay Company, represented by its Chief Factor, James Douglas, who doubled as Governor of the Colony of Vancouver Island at the time. In other words, the Crown argued that the document was not a treaty but a private exchange of cash for land. The ancestors of White and Bob, the Crown claimed, had sold their land, and therefore their descendants had no rights on it, or to it.

The White & Bob case was the first to require a provincial government of British Columbia, and their lawyers, to develop legal arguments to defend their historical denial of Aboriginal title and rights. The province’s solicitors adopted a position based in legal positivism and referred to the St. Catherine’s Milling precedent, arguing first that Aboriginal title could only exist if it was created by a sovereign. The king had chosen not to create such rights because the Aboriginal peoples of British Columbia were “too primitive” according to the Re: Southern Rhodesia precedent. The province’s legal argument relied on a particular interpretation of history that described the First Nations of British Columbia as minimally evolved nomads lacking law or government when Europeans first arrived. For the first time in court, the province articulated an interpretation of the Royal Proclamation of 1763 that was to become a hallmark of British Columbia’s legal arguments in all subsequent cases. The province’s lawyers claimed that, since British Columbia did not appear on most maps drawn by British cartographers (who had, in 1763, not yet travelled to the west coast), the Royal Proclamation of 1763 was not intended to apply to Aboriginal peoples here. What the sovereign (or, in this case, his mapmakers) did not see, did not exist.

Furthermore, they referred to the use of the present tense by the writers of the Proclamation in the phrase “the Indians with whom we are connected” as evidence that the authors’ intentions were to exclude any Aboriginal groups with whom the Crown had not yet made contact. Berger argued that the present tense is the grammar of legal statutes, proclamations, and constitutions which are usually considered, legally, to “speak until they are repealed.” The B.C. Crown’s interpretation of the Royal Proclamation has been described by historians and legal scholars as “implausible,” “indefensible” and “ridiculous.”¹⁴ It has, however, been argued repeatedly by prestigious lawyers, and declared “fact” by eminent judges, for 30 years.

The next line of legal attack developed by the Province of B.C. in the White & Bob case and in subsequent litigation, was that if there had, in fact, been some form of Aboriginal title before the arrival of Europeans in British Columbia, it was extinguished by the assertion of sovereignty by Britain, and by the enactment of land use legislation by the colonial legislature.

The absence of any First Nations consent to extinguishment of their land title was, within the framework of legal positivism, irrelevant: if Aboriginal rights are created and extinguished only by the sovereign, then Aboriginal consent is not required to do either. Anyway, concluded provincial lawyers, Indians “implicitly” consented to extinguishment of title. This, they argued, was “proven” by the fact that First Nations in British Columbia did not wage armed rebellions, appeared (according to non-Aboriginal interpretations) to acquiesce to colonial domination, were now believed to be assimilated into mainstream Canadian society, and were therefore no longer racially or culturally “pure.” Crown lawyers pointed to Aboriginal “culture” measured by language, religion, clothing, food, weapons, modes of earning a living, housing, and means of transportation, for evidence. Any cultural change since contact with Europeans was presented as the natural outcome of a passive, inferior culture coming into contact with an active, superior one. Only those activities whose origins could be traced to pre-contact Aboriginal cultures and which continued to be practiced, could be classified under this rubric as “truly Aboriginal.” This is referred to in law as the “frozen rights” theory, wherein Aboriginal cultures are “frozen” at the moment of “discovery,” and any developments since that moment are interpreted as resulting from European influence. In other words, “ignoring Indian title was…seen as extinguishing it. Put another way, the argument asserted that the ordinary operation of a British colonial government had the effect of wiping out the legitimacy of any preexisting aboriginal arrangements…. The argument of implicit extinguishment through ordinary legislation has not been raised in other parts of Canada.”¹⁵

This represents one of many “double binds” in legal and popular discourses on Aboriginal rights. A double bind is a “damned if you do and damned if you don’t” situation in which the outcome is always pre-determined, and in which explanations are arrived at by reasoning backwards from consequences to causes. From a social evolutionary perspective, to the extent that Aboriginal cultures are understood as not having changed after contact with Europeans, they are analyzed as being “arrested” at a “lower stage” of development, and incapable of “advancement.” Such “primitive” peoples must not have had any concepts of property or law, and clearly cannot—today—be considered capable of being granted the same rights as those of “civilized” peoples. They are too different to be considered equal. To the extent, on the other hand, that Aboriginal cultures are understood as having changed and adapted some European ways to their own, then they are said to have voluntarily “assimilated” into the colonial culture, and clearly then have no grounds on which to claim “special” rights different from everyone else’s. They are too equal to be considered different. Heads, the Crown wins. Tails, Indians lose.

When legal scholar, Patrick Macklem, tried to ascertain the way concepts of cultural similarity and cultural difference had impacted on “how the law has contributed to the current status of First Nations in Canada,” he found that “Native difference is denied where its acceptance would result in the questioning of basic premises concerning the nature of property, contract, sovereignty or constitutional right. Native difference is acknowledged where its denial would achieve a similar result.”¹⁶ Macklem concluded that this discourse on cultural similarity and difference constituted a “rhetoric of justification” for legal judgements.

Anthropologists entered the legal fray in the White & Bob case, led by Wilson Duff.¹⁷ Initially, anthropological research was principally concerned with documenting and describing various Aboriginal peoples’ practices surrounding land and resource ownership and use, translating this data into language that lawyers and judges could understand, and considering whether or not these concepts of “Aboriginal title” were commensurable with concepts of property recognized by Canadian law. During the R. v. White & Bob trial, Wilson Duff responded to Berger’s question concerning the meaning of the term “tribal territories” for the Saalequn as follows:

Berger: When you say tribal territories, can you tell us what you mean by that? What use would the Indians have made of their tribal territories?

Duff: This could be a very complicated statement, because they used different kinds of territories…with different intensity. They would use the rivers, of course, for fish with great intensity, and the beaches with great intensity, and the mountains and forest with somewhat less intensity, yet they would go at least that far back, not only to hunt the land mammal, deer, and also other land mammals, but to get bark and roots for basketry and matting and such things. These territories would be definitely used by them and would be recognized by other tribes as belonging to them.¹⁸

The lower court found both defendants guilty and fined Clifford White and David Bob $100.00 (or 40 days in jail in default) each. Berger was successful in obtaining a new trial for White and Bob and went on to win a decision by the County Court of Nanaimo, which was then upheld by the B.C. Court of Appeal and the Supreme Court of Canada. The document signed by Whut-Say-Mullett and Governor James Douglas was in fact a treaty. White and Bob indeed had the right to hunt and fish for food on unoccupied Crown land. Mr. Justice Tom Norris of the B.C. Court of Appeal further ruled that the treaty was, like other treaties signed between the Crown and Canadian Aboriginal peoples, consistent with the direction of the Royal Proclamation of 1763. He wrote: “the aboriginal rights as to hunting and fishing affirmed by the Proclamation of 1763 and recognized by the Treaty…still exist.”¹⁹

The legal significance of this decision was that “for the first time a judge, and a well-respected British Columbia judge of conservative leanings at that, had presented a comprehensive opinion endorsing both the pre-existence and the continuing existence of aboriginal rights in British Columbia.”²⁰

Civilization and the Whimsical Destruction of Property

The assessment and interpretation of the historical documents and enactments tendered in evidence must be approached in the light of present-day research and knowledge disregarding ancient concepts formulated when understanding of the customs and culture of our original people was rudimentary and incomplete and when they were thought to be wholly without cohesion, laws or culture, in effect a subhuman species. This concept of the original inhabitants of America led Chief Justice Marshall in his otherwise enlightened judgment in Johnson v. McIntosh…to say ‘the tribes of Indians inhabiting this country were fierce savages, whose occupation was war…. ‘We now know that that assessment was ill-founded…Chief Justice Marshall was, of course, speaking with the knowledge available to him in 1823. Chief Justice Davey…[of the B.C. Court of Appeal] with all the historical research and material available since 1823 and notwithstanding the evidence in the record…said of the Indians of the mainland of British Columbia: ‘…they were undoubtedly at the time of settlement a very primitive people with few of the institutions of civilized society, and none at all of our notions of private property.’ In so saying this in 1970, he was assessing the Indian culture of 1858 by the same standards the Europeans applied to the Indians of North America two or more centuries ago….

—Justice John Hall, Supreme Court of Canada, 1973, Dissenting Opinion, Reasons for Judgment in Calder v. R.

There is another aspect to the relationship between law, culture and power that is interwoven with the role law plays in enforcing particular rules in the interests of specific sectors of society. Law also “maintains power relations by defining categories and systems of meaning.”²¹ This defining and productive activity of law—setting the agenda, and constructing the parameters of what may be included and what must be excluded—is exemplified in the legal tests for Aboriginal title and rights. The tests are based on criteria the courts have established for evaluating claims brought before them by Aboriginal litigants.

Legal tests for Aboriginal rights reveal the power relations that are constitutive of legal encounters: judges construct the tests; claimants sit them; judges mark them: pass, fail or defer. Of course, the arguments and evidence presented by Aboriginal claimants, and political support for them from outside the courtroom, have also influenced the tests. That is to say, it is as a result of persistent Aboriginal resistance that these questions continue to be placed before the judiciary. To this extent, the evolution of the tests represents the outcome of contestation and negotiation. However, the Crown is the dominant partner in a hierarchical relationship with Aboriginal peoples in Canadian society; and this social inequality follows the parties into the courtroom in myriad ways. The Crown has greater access to more resources in every part of the legal process, and in every aspect of it. The playing field, as the popular expression goes, is not only theirs, it is far from level.

The history of legal tests for Aboriginal rights could start in 1550 with Valladolid. It could start in 1608 with Calvin’s Case and the infidel rule. It could start with the memorandum of the British Privy Council in 1722 that set out the doctrine of conquest and the doctrine of discovery/occupation/settlement. It could start with Lord Sumner’s dictum in Re: Southern Rhodesia based in an evolutionary framework. This is the history that followed First Nations, lawyers, and judges into court in British Columbia where the story of legal tests for Aboriginal title began in 1969 with what is now called “the Calder case,” or “the Nishga case.”²² Chief Frank Calder, on behalf of the Nishga Tribal Council, asked the Supreme Court of British Columbia for a declaration that:

(1) the Nishga held title to their territory prior to the assertion of British sovereignty;

(2) that this title had never been lawfully extinguished; and,

(3) that this title is a legal right.

In support of their claim that their Aboriginal title had never been ceded, sold, surrendered or lost in war, the Nishga relied upon written archival evidence that showed they had begun petitioning the Queen and Colonial officials for recognition of their title since first contact with Europeans in the eighteenth century. Five Nishga hereditary chiefs, Frank Calder, James Gosnell, William McKay, Harry Nyce, and Anthony Robinson; one provincial archivist, Willard Ireland; and one anthropologist, Wilson Duff, testified as expert witnesses.²³ Both the chiefs and the expert witnesses focused on demonstrating extensive Nishga use and occupation of the Nass Valley.²⁴ Wilson Duff, acting as cultural translator, explained that the Nishga system of property ownership is different from, but analogous to, English common law property ownership. The skeleton of a legal test for Aboriginal title emerged in the following exchange between B.C. Supreme Court Judge Gould and Wilson Duff:

The Court: I want to discuss with you the short descriptive concept of your modern ownership of land in British Columbia, and I am going to suggest to you three characteristics (1) specific delineation of the land, we understand is the lot.

Duff: Yes.

The Court: Specifically delineated down to the lot, and the concept of the survey; (2) exclusive possession against the whole world, including your own family. Your own family, you know that, you want to keep them off or kick them off and one can do so; (3) to keep the fruits of the barter or to leave it or to have your heirs inherit it, which is the concept of wills. Now, those three characteristics…are you with me?

Duff: Yes The Court: Specific delineation, exclusive possession, the right of alienation, have you found in your anthropological studies any evidence of that concept being in the consciousness of the Nishgas and having them executing such a concept?

Duff: My lord, there are three concepts.

The Court: Yes, or a combination of them.

Duff: Specific delineation…Physical landmarks, physical characteristics. The exclusive occupation did not reside in an individual. It rested in a group of people who were a sub-group of the tribe…The owners in this sense had certain rights of alienation. They could give up the tract of land, lose it in warfare, but in practice it would not go to anybody outside of the tribe, that is, a tract of Nishga land might change hands but it wouldn’t go to other than a Nishga family.

The Court: So am I correct in assuming that there are similarities in the Nishga civilization in the first two characteristics, but not the third? All that alienation means, of course, is that you can sell it to anybody you like?

Duff: Yes … The Court: I will give two more characteristics of ownership, the right to destroy it at your own whim, if you like, and the other, that the exclusive possession should be of indeterminable time, that is, cannot be terminated by a person’s life, that is, can be passed on to one’s heirs. That makes five. Now, you have dealt with three. Now the right to destroy at whim, set fire to your own house; these matters you have been dealing with, would a group within the Nishga have the right, if the buildings at the mouth of a certain river had been in their exclusive use some time and they will say, ‘Let’s set fire to it,’ would the tribe prohibit that?

Duff: I would think that they would have that right.

The Court: You would think they would have that right?

Duff: Yes.

The Court: Now, what about the duration of the right, not to destroy, but the right of exclusive ownership, would it go to their heirs?

Duff: Yes.

The Court: Or go back to the tribe for distribution?

Duff: In theory it belongs within that kinship group through time, with no duration in theory. It always remains with that same kinship group.

The Court: There is the matrilineal line?

Duff: Yes.²⁵

The Supreme Court of British Columbia ruled that the Nishga were too “primitive” in the nineteenth century to have held concepts of property that could be considered on an evolutionary developmental par with the concept of property upheld by British law.

European colonial cultural beliefs, or ideologies, set up relationships between colonizer and colonized as a hierarchical set of binary oppositions in which one member of the pair is always symbolically superior to the other.²⁶ Colonizers are rational, the colonized are irrational. Colonizers are guided by reason, the colonized are driven by instinct. Colonizers are industrious, the colonized are lazy. Colonizers are active agents, the colonized are passive objects.²⁷ But binary oppositions are two-way streets: when colonizers describe the characteristics of the colonized, they are simultaneously describing themselves, through defining the differences between themselves and their “Other.” Each description of the other is at the same time a description of self.²⁸ Interpreted from this perspective, Justice Gould’s ruling can be read as defining Euro-Canadian property law, and presumably the more highly evolved cultural values reflected in that law as: individually owning land, building fences around it and kicking your family off it, and burning down your house on a whim.

When the Nishga case was appealed, the Justices of the B.C. Court of Appeal declared that if any form of Aboriginal title had existed it had been explicitly extinguished by Britain’s assertion of sovereignty and “implicitly” extinguished by provincial land legislation prior to Confederation. The Nishga, on this basis, had no legal rights.

The Supreme Court of Canada, however, found differently when the case was appealed to them. In their 1973 decision, of the seven judges, one dismissed the case on a technicality and did not comment on the issues at trial. The remaining six found unanimously that Aboriginal title had existed prior to European arrival, based on long term occupancy. On the other important questions before them, the six judges split into two groups: Justices Ritchie and Martland supported the main judgment written by Justice Judson; while Justices Laskin and Spence supported the dissenting judgment written by Hall.²⁹ Judson, Ritchie and Martland agreed with the Province of British Columbia’s argument that the Royal Proclamation of 1763 was not meant to apply to the then-undiscovered British Columbia. Relying on the St. Catherine’s Milling and Lumber Co. precedent, they found that Aboriginal title was a “mere burden” on Crown title. From Chief Justice Marshall’s ruling in Johnson v. McIntosh they drew the conclusion that the Crown had the exclusive right to extinguish Aboriginal title; and that whatever Aboriginal rights might have existed were lawfully extinguished by Britain’s declaration of sovereignty. Judson, however, differed with the Crown on the nature of Aboriginal title. In what was to become an oft-quoted statement, he wrote: “…the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a ‘personal or usufructuary right’.”³⁰

On the other hand, Justice Hall, supported by Laskin and Spence, argued that the Royal Proclamation was meant to apply to British Columbia; that while the Crown did have the right to extinguish Aboriginal title it must state its intention to do so in “clear and plain language,” and it could not be concluded that “implicit” extinguishment had taken place by virtue of colonial authorities having simply ignored Aboriginal title. On the issue of the nature of Aboriginal title, Hall cited Lord Sumner’s decision in Re: Southern Rhodesia stressing the possibility that some Indigenous property systems were sufficiently well developed to be recognized by British law, and Lord Haldane’s caution in Amodu Tijani v. Secretary of Southern Nigeria, that non-British systems should be understood on their own terms and not only in relation to British law. Hall argued that, “to ascertain how far this latter development of right has progressed involves the study of the history of the particular community and its usages in each case. Abstract principles fashioned a priori are of but little assistance, and are as often as not misleading.”³¹ The Supreme Court of Canada appeal panel judges relied extensively on both the written historical record and the testimony of the expert witnesses, reserving their highest praise for the contribution of Wilson Duff. Hall wrote: “What emerges from the…evidence is the following: the Nishgas in fact are, and were from time immemorial a distinctive cultural entity with concepts of ownership indigenous to their culture and capable of articulation under the common law, having, in the words of Dr. Duff, ‘developed their culture to higher peaks in many respects than in any other part of the continent north of Mexico.’”

The Calder decision therefore marks a significant departure from the positivist theory of Aboriginal rights which gave legal standing only to rights recognized by a sovereign. The Supreme Court of Canada’s ruling in the Calder case was a victory for British Columbia First Nations and their supporters. Six Supreme Court of Canada judges agreed that Aboriginal title in fact existed, and three allowed that it may continue to exist.

Nevertheless, certain aspects of this landmark decision would haunt future Aboriginal land rights litigation in other parts of Canada. Justice Hall did not reject the test Lord Sumner set out in 1919 in Re: Southern Rhodesia, but affirmed it by using its criteria to distinguish the Nishga culture as qualifying for respect and recognition on the grounds of evolutionary theory. Hall’s reasoning allowed for the possibility that other Aboriginal peoples might fail Sumner’s and Haldane’s tests. While both rejected crude and archaic concepts and language, neither Duff’s anthropology, nor Hall’s law, rejected the philosophical or theoretical premises of “neo-evolutionary” theory that in 1973 remained current in academic anthropology and embedded in popular culture. Various iterations of neo-evolutionary theory have emerged throughout this century.³² Most recent versions eschew ethnocentric judgments, while still retaining beliefs in the determining role of the economy and technology in shaping culture. While rejecting the notion that all people progress through pre-determined “stages of development” from hunting and gathering to industrial capitalism, some neo-evolutionary theorists argue that European and European-derived cultures have brought most Indigenous peoples under western economic and cultural domination. This trajectory therefore now reflects historical experience, rather than theoretical hypotheses, they claim. Anthropologists like Wilson Duff, while they respected and supported First Nations peoples and were devoted to preserving their cultures, applied class-based western notions of “high” and “low” culture to their analyses of Indigenous cultures.³³ Peoples like the Nishga, therefore, with their abstract art, ornate carving, sophisticated architecture, and elaborate ceremonial life were judged within this framework to be “highly cultured.” Like rural people and urban working classes whose cultures are classified as “low,” some Aboriginal peoples without material cultural objects like totem poles, masks and carvings desired by Europeans, or elaborate ceremonial rituals like potlatches, are classified as “simple.” Unexamined evolutionary assumptions continue to incipiently and insidiously influence literature and the arts, and to inform “common sense” and popular culture.³⁴

From Law to Politics and Back Again

I feel like a man who has been told he is going to die and is now being asked how he would like to be killed.

—First Nations leader George Manuel, responding to the White Paper Policy, Kamloops, 1969.

On August 8, 1969, at a press conference in Vancouver, B.C., newly-elected Canadian Prime Minister Pierre Elliot Trudeau was asked whether his government would recognize Aboriginal title and rights in British Columbia. He replied: “Our answer is no. We can’t recognize aboriginal rights because no society can be built on historical ‘might have beens’.”³⁵ Trudeau’s Minister of Indian and Northern Affairs, Jean Chretien, oversaw the drafting and publication of a new Canadian Indian Policy that was released later in 1969. The Liberal government’s infamous “White Paper Policy” began with the statement, “…aboriginal claims to land…are so general and undefined that it is not realistic to think of them as specific claims capable of remedy except through a policy and program that will end injustice to Indians as members of the Canadian community.”³⁶

The White Paper Policy advocated the dissolution of any distinct legal or political status for Indigenous peoples, or their lands, and the rapid assimilation of Aboriginal peoples into the mainstream of Canadian society. Three B.C. provincial Indian organizations met in Kamloops, B.C. in 1969 to plan strategies for responding to the White Paper Policy. Unanimity was as elusive as ever, but, with equal consistency, was finally found in the fundamental premise that Aboriginal title had existed prior to European contact and still did. Several months later an “All Bands Assembly” in Vancouver agreed to have non-Aboriginal experts prepare an historical-legal argument in support of the recognition of Aboriginal title, to be presented to a parliamentary committee.³⁷ Opposition to the White Paper Policy’s assimilationist goals was voiced by Aboriginal representatives across the country, and for the first time in Canadian history, First Nations organized themselves on a Canada-wide basis, mobilizing their members to present a united front in defence of their cultural and political survival.

Four years later, in 1973, when the Supreme Court of Canada handed down their decision in Calder v. R., ruling that Aboriginal rights had in fact existed in British Columbia before contact with Europeans, and perhaps had not been extinguished, Prime Minister Trudeau was moved to allow that First Nations without treaties “May have more rights than we thought.”³⁸ The federal government revisited its position and instituted the “Comprehensive Claims Policy” whose terms of reference mirrored the Supreme Court’s judgment in Calder. Aboriginal nations were invited to bring forth claims to land that had been used and occupied by their ancestors, and that they themselves were still using. The story of the Calder decision and the Comprehensive Claims Policy is an archetype of the relationship between law and government policy in Aboriginal matters. The legal tail wags the political dog, and man’s best friend rarely strays outside the yard the law fences in. Law is a force that politicians, bureaucrats, and Aboriginal peoples alike reckon with.

The Honour of the Crown Below Par

…Indians have a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown…. The nature of the Indians’ interest is therefore best characterized by its general inalienability, coupled with the fact that the Crown is under an obligation to deal with the land on the Indians’ behalf when the interest is surrendered…. Any description of Indian title which goes beyond these two features is both unnecessary and potentially misleading. ³⁹

—Chief Justice Dickson, 1984, Reasons for Judgment, Guerin v. R.

The next significant court case was fought in the 1970s in British Columbia by the Musqueam First Nation. In 1950, federal officials of the Department of Indian Affairs and Northern Development (DIAND) arranged for the Musqueam Indian Band—whose reserve forms a small enclave located in the elite urban neighbourhood of south-west Vancouver—to lease a portion of their land to the exclusive Shaughnessy Golf and Country Club. Land values were assessed, and a lease agreement was ratified by the Musqueam Chief and Council by way of a band referendum. Since, under the Indian Act, First Nations lands are held in trust for them as wards of the Crown who, like children, are not able to enter into legal contracts, representatives of the Department of Indian and Northern Affairs signed the final contract with the Shaughnessy Golf and Country Club on behalf of the Musqueam. In 1970, Musqueam Chief Delbert Guerin learned that before they had signed the final contract, DIAND officials had reduced the value of the land and agreed to terms significantly more favourable to the Shaughnessy Golf and Country Club than to the Musqueam First Nation. These were not the terms that the band membership had agreed to in their referendum, and DIAND officials did not advise the Chief and Council that they had renegotiated the contract before they signed it.

The Musqueam sued the federal government for breach of trust and the federal court awarded them $10 million in damages. The Federal Court of Appeal overturned this decision. The Musqueam then appealed to the Supreme Court of Canada who found that, indeed, the Crown and its agents have a fiduciary obligation to act in the best interests of Indians, and that this had not been done in the case before them. While “failing to uphold their fiduciary obligations” may seem an undeservedly polite way to describe the deceit and duplicity engaged in by government representatives in this case, the Guerin decision did mark a recognition by the courts of at least once instance of these all too common practices in the history of government relations with Aboriginal peoples.

It is the sections of the Supreme Court’s decision that bear directly on the issue of Aboriginal title that are important to the story being told here. First, Chief Justice Brian Dickson’s ruling in Guerin reiterates these fundamental points: that the Crown in the form of the hovering sovereign holds underlying title to all land, and that Aboriginal title is not proprietary and can only be surrendered to the Crown. However, the significance of Dickson’s judgment is that he ruled that Aboriginal rights can apply to off-reserve lands. Second, the Supreme Court of Canada in Guerin ruled that the Crown’s fiduciary duty is legally rooted in Aboriginal title, and not, as was argued by the Crown, in the discretionary benevolence of the Crown or the Department of Indian Affairs. Third, the Guerin decision provides a precedent that future judges could adopt to recognize that Aboriginal rights pre-existed European arrival and are inherent: recognized, and not created, by the British sovereign. Fourth, in the Guerin decision the Supreme Court of Canada confirmed that Aboriginal title and rights are sui generis: “of their own kind; constituting a class alone; unique; peculiar.”⁴⁰ The Courts, the ruling continued, have almost “inevitably found themselves applying somewhat inappropriate property law”⁴¹ to the determination of Aboriginal title and rights. The characterization of the legal nature of Aboriginal title as sui generis provided Canadian courts with the opportunity to explore beyond the confines of English property law to determine the scope and content of Aboriginal title and its relationship with the Crown’s interest.”⁴²

Finally, 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 al v. A.G.B.C. (1973), 34 Dominion Law Reports (3d) [1973], 145-226. See also Sanders 1989.

30. Calder et al v. A.G.B.C. (1973), 34 Dominion Law Reports (3d) [1973], 145-226.

31. Calder:401.

32. See Durham 1990.

33. See Turner 1993.

34. Turner 1993.

35. Weaver 1981:3-4.

36. Canada, Government of, (1969) Department of Indian Affairs, Policy Statement:1.

37. Tennant 1990:171.

38. Tennant 1990:172.

39. Guerin v. R. (1984) 13 D.L.R. (4th) 321.

40. Webster’s New Collegiate Dictionary (1981) Toronto, Ontario: Thomas Allen &Son Limited, 1156.

41. Guerin v. R. (1984) 13 D.L.R. (4th) 339.

42. Bell and Asch 1997:48.

43. Guerin v. R. (1984) 13 D.L.R. (4th).155.