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Chapter 2: In Search of Reason

It is the law that aboriginal rights exist at the “pleasure of the Crown,” and they may be extinguished whenever the intention of the Crown to do so is clear and plain…. The plaintiffs’ claims for aboriginal rights are accordingly dismissed.

—Chief Justice Allan McEachern, 1991, Reasons for Judgment, Delgamuukw v. R.

The Law in its Majesty

Thus spoke Chief Justice Allan McEachern of the British Columbia Supreme Court as he rendered his long-awaited judgment in the most lengthy and costly Aboriginal land title litigation in Canadian history. The “Gitksan and Wet’suwet’en case,” also commonly referred to as “the Delgamuukw case,” or “Delgamuukw v. the Queen,” had been four years at trial, beginning in Smithers, British Columbia, on May 11, 1987, and concluding in Vancouver, B.C., on March 8, 1991. A total of 318 days of evidence from over 61 witnesses had been heard, additional evidence had been supplied by affidavit, and legal argument had taken up an additional 56 days in court. Verbatim transcripts of testimony now fill 23,503 pages of text, 82 binders of authorities now hold 9,200 pages of exhibits. An estimated 25 million dollars of public funds had been spent.

The issue before the court can be stated simply: The Gitksan and Wet’suwet’en had asked for legal recognition of their ownership and jurisdiction over 22,000 square miles of land and resources in the northwest region of the Province of British Columbia, Canada. They based their claim on the fact that they are descendants of people who lived there, in the same territory, since the beginning of time as they conceptualize it. When the Europeans arrived during what they call the eighteenth century, the ancestors of contemporary Gitksan and Wet’suwet’en peoples were already living there. Neither the Gitksan nor the Wet’suwet’en ever entered into treaties with Britain or Canada, the governments representing the interests of the newcomers. Nor was there a war in which their territory was conquered militarily by the new colonial forces. Nor were any rights to land or resources ever sold by Indigenous peoples to any individual settlers, or to the British or Canadian governments. The Gitksan and Wet’suwet’en, therefore, continue to consider themselves the rightful owners and governors of the territory in question. They say they hold “Aboriginal title and rights” to this land.

The Province of British Columbia and the Government of Canada opposed the Gitksan’s and the Wet’suwet’en’s claims. The Crown asked the court for “a declaration that the Plaintiffs have no right, title or interest in and to the Claim Area, and the resources thereon, thereunder or thereover.” Since 1871, when British Columbia joined Canadian Confederation, all successive governments of that province had taken the position that no Aboriginal rights recognizable by “civilized law” existed prior to Britain declaring sovereignty over the territory. And even if those rights had existed, the Province of British Columbia’s argument continued, the simple act of assertion of sovereignty by a European power over those lands was sufficient to extinguish any pre-existing Aboriginal title and rights. Legally, the Province of B.C. told First Nations, you do not exist. This position provided the rationale for provincial governments’ consistent refusals, until 1990, to participate in any discussions or negotiations with federal government and Aboriginal representatives on Aboriginal title and rights issues.

During the week preceding the release of Chief Justice McEachern’s decision in the Delgamuukw case, the Vancouver Sun, British Columbia’s largest circulation daily newspaper, ran a series of articles entitled “Judgment Day” in which spokespeople from government, industry, labour and the general public expressed the view that at least a partial court victory for the Aboriginal plaintiffs was anticipated by all concerned. Gitksan and Wet’suwet’en Tribal Council representative Herb George told the press that he expected to see “the last little trace of honour in the Crown” reflected in the judgment. “We’re not naive,” George said, “but we can still dream.”¹

There seemed to be good cause for George’s cautious optimism. Between 1987, when the Delgamuukw v. R. trial began, and 1991, when it concluded, some significant changes had occurred in the legal and political landscape of Aboriginal and non-Aboriginal relations in British Columbia. In 1989, the First Nations Congress, representing most of the 180 First Nations in B.C., had initiated discussions with representatives of the province’s leading forestry, fishing and mining companies. The First Nations leaders’ goals were to educate the business sector about the historical and legal bases of Aboriginal title, to calm industry fears about potential threats to economic stability in the event of recognition and settlement of Aboriginal claims, and to begin to build a foundation for direct negotiations between industry and First Nations governments on issues of economic development.

Following these conferences, held at the exclusive Whistler Mountain Resort in the traditional territory of the Squamish First Nation, British Columbia Social Credit Premier Bill Vander Zalm appointed a “native affairs advisory council” to serve as a consultative committee. The advisory council held meetings with key players throughout the province during the spring and summer to discuss Aboriginal land claims. Vancouver Sun columnist Vaughn

Palmer observed that, “The thinking in government circles is that the court will probably recognize aboriginal title…that it still exists today.”²

On May 31, 1990, less than a year before Chief Justice McEachern’s judgment in the Delgamuukw case was delivered, the Supreme Court of Canada had overturned earlier decisions of the British Columbia Supreme Court and the B.C. Court of Appeal in the case of Regina v. Sparrow. The Supreme Court concluded that certain Aboriginal rights—in this case the fishing rights of the Musqueam First Nation—had existed in British Columbia prior to the arrival of Europeans; had not been extinguished by the simple assertion of British sovereignty during the colonial era; and were now protected by section 35(1) of the Constitution Act (1987), the supreme law of Canada.

Although the Supreme Court of Canada, in their decision in the Sparrow case, upheld the position that, since Britain declared sovereignty, the “underlying title to all land” in Canada is vested in the Crown, they ruled that Aboriginal rights could not be implicitly extinguished by the mere declaration that British sovereignty had been asserted. Rather, the Crown would have to explicitly express their “clear and plain intention” in order to legally extinguish Aboriginal title to land. The first premise of the Province of British Columbia’s position since 1871 had been that no legally-recognizable Aboriginal title existed at the time the British arrived in what is now British Columbia. Therefore, according to the Province of B.C., an explicit expression of intent to extinguish title was neither required nor appropriate: what does not exist, could not be recognized. What could not be recognized, need not be extinguished.

The Supreme Court of Canada’s rejection of the implicit extinguishment argument in the Sparrow case, their reaffirmation of the requirement that the Crown make their intention to extinguish Aboriginal title explicit, and their finding that this had not been done, and hence Aboriginal rights still existed in the province, was a significant victory for B.C. First Nations: the provincial government could now be legally required to acknowledge their existence.

The Sparrow decision was hailed by many as the judgment that would bring an end to the long—and increasingly contentious—chapter in Canadian legal history in which colonial law, justified by archaic nineteenth-century notions of European superiority and Aboriginal inferiority, had dominated the courts. It was hoped that the Sparrow decision would provide the required legal framework within which a new, more equitable relationship between Aboriginal and non-Aboriginal people in Canada could be developed, a relationship that would reflect contemporary commitments to social justice and equality in a multicultural Canada. Lower courts in British Columbia during 1990-1991 had granted several First Nations’ applications for injunctions, halting development on their lands until the Aboriginal title question was settled by the courts.

Public opinion polls conducted during 1990 and 1991 had consistently shown that the majority of people in British Columbia thought the provincial government should reconsider its historic refusal to discuss land claims with the First Nations and should proceed, finally, to negotiate an agreement with them. Premier Vander Zalm—heeding the courts, public opinion polls, and increasing pressure from corporate representatives seeking government guarantees that British Columbia could indeed boast a “safe investment climate”—had allowed that the issue of land rights negotiations with First Nations should be revisited. For the first time in the province’s 119-year history, a provincial Ministry of Aboriginal Affairs had been inaugurated in the Fall of 1990.

After nearly 100 years of political lobbying for the right to even file such a petition in court, the Nisga’a³ First Nation—neighbours of the Gitksan and Wet’suwet’en—had been the first to launch a legal claim for recognition of their Aboriginal title in 1969. On March 7th, 1991, the day before Chief Justice McEachern’s ruling in the Gitksan and Wet’suwet’en case was handed down, a landmark tripartite agreement between the Nisga’a Tribal Council and the federal and provincial governments was announced.

No one had anticipated what did happen on March 8, 1991.

Chief Justice Allan McEachern had not been swayed by public opinion polls or newspaper editorials, or by the Supreme Court of Canada’s Sparrow decision, or by the copious evidence in support of the Gitksan and Wet’suwet’en claim that he had listened to for four years. In his 400 page Reasons for Judgment, the Chief Justice analyzed the testimony, reviewed the relevant points in law, and then dismissed the Gitksan and Wet’suwet’en claim. No Aboriginal title or rights had pre-existed European settlement, he ruled; and even if they had, they had been extinguished by the simple fact of Britain asserting sovereignty. Treaties had not been made, nor compensation paid, nor Aboriginal consent acquired. Nor were they required, he ruled.

Late One Night at the Legion

Like most everyone else interested in Aboriginal issues, especially in British Columbia, the judgment caught me off guard. The early morning CBC radio news on March 8, 1991, announced that the judgment had been released to the lawyers, who were in a “lock up” with the document until noon.⁴ I, too, had assumed that the outcome of this case would be relatively positive for the claimants: an historic turning point in the legal struggle for recognition of Aboriginal title and rights. When I turned on the CBC radio midday news it was not with bated breath or apprehension, but rather with curiosity to know the details of the judgment and what the implications were for all parties to this case. To say I was shocked by what I heard on the radio is an understatement.

During the years 1988 to 1991, I had been a graduate student in Anthropology at the University of British Columbia and at Simon Fraser University. These were also the years that the Gitksan and Wet’suwet’en case was being heard in the British Columbia Supreme Court. While I was not directly involved in the trial in any way, I had followed developments in this case through media, attended public information sessions, special lectures, support demonstrations, benefit dances and fund-raising performances; and bought raffle tickets. Social movements in general, and Aboriginal politics in particular, form both the central focus of my work, and the personal and social milieu in which I live my everyday life. Therefore, the progress of this high-profile court case had been the subject of countless informal discussions among friends and relatives over the course of its four-year duration.

For days following the release of Chief Justice McEachern’s ruling, the trial and the judgment were being talked about everywhere I went: at home, at the university, at social gatherings. Everyone I encountered had something to say about the Gitksan and Wet’suwet’en case and the Chief Justice’s decision. Most were shocked. Many were outraged. A few were smug. Others were bitter. Some said the Gitksan and Wet’suwet’en should never have gone to court to begin with: what can you expect from the white man’s courts? Since when could justice be found in law? Others felt betrayed by a legal system they had previously believed to be fundamentally fair. Some people were critical of the lawyers and the way they had conducted the case—some said they had asked for too much and overwhelmed the judge with mountains of data. Others said they had not asked for enough, and that they should have called even more evidence. Some said the Delgamuukw decision was an anomaly and didn’t represent the thinking of the judiciary as a whole. Others said the opposite: McEachern had simply used unfashionable words and precedents to express what his colleagues, who had learned to obscure these ideas with more “politically correct” language, really thought.

Anthropologists were insulted by the Chief Justice’s wholesale rejection of ethnographic evidence. Many were dismayed that anthropologists like Hugh Brody, Richard Daly and Antonia Mills—who had served as expert witnesses— had been summarily dismissed and reprimanded by the judge for being “advocates” whose participant observation research was not “credible.” Others were critical of the anthropology presented, and the anthropologists who had testified on behalf of the Gitksan and Wet’suwet’en: Hugh Brody had been too caustic. Richard Daly had been too obtuse. Antonia Mills had been too ethereal. They had presented too seamless a case. Others said they had indulged themselves in idealism and ideology: empiricism⁵ should have ruled the day.

Most Aboriginal people I spoke with were less shocked by the judgment than their non-Aboriginal peers. They were disappointed, and deeply hurt by the Chief Justice’s words. More than anything, they were angry at what they saw as the judge having insulted the Chiefs and Elders by his charge that their testimony had been “untrue.” Some Aboriginal people muttered resentfully about how much money the lawyers and the expert witnesses had made. Some asked why the anthropologists had ever been involved in the first place. Why hadn’t the Gitksan and Wet’suwet’en stood by their own Chiefs and Elders and refused the need for “representation and translation” by white anthropologists?

In an unprecedented gesture, the government of British Columbia bound Chief Justice McEachern’s Reasons for Judgment in book form and distributed it widely throughout the province. Rumour had it that the Chief Justice hoped his text would form the basis of a public school curriculum. Shock turned to incredulity as the volume circulated among scholars and other people knowledgeable about British Columbia history and Aboriginal cultures. The Canadian Anthropology Society, representing 405 scholars, told the press that the judgment “gratuitously dismisses scientific evidence, is laced with ethnocentric bias and is rooted in the colonial belief that white society is inherently superior.”⁶ University of British Columbia anthropology Professor Robin Ridington added that “if an Anthropology 100 student wrote anything like that in a paper, not only would you write a lot of red ink over it, you would say ‘Look, please come in and talk to me. You have real problems.’”⁷

When I read the Reasons for Judgment, I found the text very familiar. I was immersed at university in the study of critiques of colonialism and western culture, written largely by colonized and formerly colonized people. This work focuses on how European social theories classify and represent non-European peoples as inferior “Others,” justifying colonial domination and exploitation by western powers. Within the borders of the west, similar processes of “othering” had long legitimated the subordination of women, minorities, gays, lesbians, the poor, the disabled, and political dissidents by dominant classes.⁸ Chief Justice McEachern’s text read like a caricature of everything I was studying. The rendition the Reasons for Judgment offered of British Columbia’s history repeats what can be read in the blunt, unselfconscious language of Indian Agents’ reports found in archival records, and in the memoirs of pioneers, missionaries and settlers that form the corpus of popular history in B.C.: what political scientist, Paul Tennant, has called “the founding myth of White British Columbians.”⁹ These local stories of Aboriginal primitivism, European superiority, and the historical inevitability of colonial domination are repeated throughout the colonized world. One can hear very similar stories in Australia, New Zealand, and South Africa. They are self-justifying accounts, told by a colonial people whose ongoing doubts and insecurities about the moral legitimacy of their occupation of Indigenous lands require that these stories be told, and retold. Having lived in a small coastal community in British Columbia for many years, I recognized in the Chief Justice’s tome what I had long ago nicknamed the “late one night at the Legion” version of B.C.’s history.

A month or so after the Delgamuukw judgment was released, I attended a meeting of anthropologists and historians at the University of British Columbia to discuss how we might responsibly respond. We agreed that we would each write an article on a specific aspect of the anthropological and historical evidence that had been presented during the case. These papers would be compiled in a special edition of the journal, B.C. Studies.¹⁰ I chose to write a critique of the opinion report, testimony, and cross-examination of the expert witness who had provided anthropological evidence for the Crown, Dr. Sheila Robinson.

I approached this project expecting to find in Dr. Robinson’s evidence an interpretation of facts presented within a coherent, logical argument. I anticipated that I would likely disagree with Robinson’s analysis, on a professional basis. Debate, after all, we like to think, is the foundation of scholarly integrity. I was shocked to find that her opinion report did not include an up-to-date review and analysis of relevant theoretical or substantive literature. Instead I found oxymoronic¹¹ argument, and the substitution of theoretical speculations for empirical facts. I also read the reports and testimony of the anthropologists who testified for the Gitksan and Wet’suwet’en. I found issues to debate with Richard Daly, Antonia Mills and Hugh Brody, but the important difference between their submissions and those made on behalf of the Crown was that the former were meritorious, scholarly documents while the latter were not. The stark contrast between the expert opinion reports in anthropology and history submitted on behalf of the Gitksan and Wet’suwet’en, and those submitted on behalf of the Crown, was alarming in terms of their respective professional credibility. Furthermore, the Gitksan’s and Wet’suwet’en’s evidence and arguments accorded more obviously with conventional notions of what constitutes facts and logical argument than did the Crown’s. Most importantly, the judge’s crucial legal findings were based on particular interpretations of history and explanations of cultural differences. Clearly, the Crown’s arguments and the testimony of their expert witnesses had appeared the more credible to Chief Justice McEachern. Why? What criteria had the judge used to evaluate the evidence he had heard?

I read more of the transcripts and more of the legal analyses. I found in the texts of the Delgamuukw v. R. case an intense debate not only about Aboriginal land rights but also about moral visions, social theories and political strategies. In presenting their cases, the “Plaintiffs” and the “Defendants” disputed how stories would be told about the past, present and future of British Columbia; and about who could tell them. Above all, they competed for the judge’s verdict: whose account would the law declare to be “the truth”? Whose story would have an army at its disposal?

I decided to write my doctoral dissertation on the Delgamuukw case. I began with law’s history.

1. Glavin, Terry 1991: B3.

2. Palmer, Vaughn 1990, quoted in Tennant, P. 1990: 237.

3. Previously, the First Nations of the Nass Valley of British Columbia were called “Nishga.” Currently, this First Nation spells its name as “Nisga’a.”

4. For a personal account of one lawyer’s experience of this event, see Pinder, Leslie Hall 1991.

5. Empiricism is a theory of knowledge usually associated with the natural and physical sciences. Its basic tenets are that all “factual knowledge” originates in observation and experience, and can be falsified by observation and experience. “Empiricism” is usually understood as being opposed to other theories of knowledge that take greater account of the way social-cultural context and the subjectivity of the researcher and the reader can shape the meanings derived from observation and experience.

6. Canadian Press 1991: B3.

7. Ibid.

8. The literature on this subject is huge, multidisciplinary and growing rapidly. Texts that have become classics in the study of European constructions of “others” include: Asad (ed.)1973; Clifford and Marcus (eds.) 1986; Deloria 1969; Fabian 1991; Fanon 1963; McCrane 1989; Trinh T. Minh-ha 1989; Said 1978, 1992; Spivak 1988; Todorov 1982; West 1993; Wolf 1983.

9. Tennant 1991: 76.

10. See Miller (ed.) 1992.

11. An oxymoron is defined as “a combination of contradictory or incongruous words (as cruel kindness),” Webster’s New Collegiate Dictionary, 814.