The Pleasure of the Crown. Dara Culhane
belief reflected in law that Europeans arrived to lands without organized societies or laws is false. Legal scholar Brian Slattery has stated this flatly: “All national myths involve a certain amount of distortion,” Slattery writes, “but some at least have the virtue of broad historical accuracy, roughly depicting the major forces at work. The myth that underlies much legal thinking about the history of Canada lacks that redeeming feature.”17
To answer the question of why the option of recognizing the sovereignty of already existing Aboriginal nations, behaving as guests, and attempting to live by Aboriginal laws does not appear to have been taken up by early European jurists and settlers, we have to look to British and Euro-Canadian law and culture, rather than to Aboriginal beliefs and practices.
1. Said 1975: 1.
2. McEachern, Reasons 1991: 82. There are, however, debates about this date. Anthropologist Andrea Laforet commented: “Although McEachern sees this as a fixed date, receding relentlessly into the past, there is an alternative interpretation, i.e. that in 1275 the British defined 86 years as the measure of a very long time” (Laforet 1993:2). Lawyer William Henderson offers another correction, writing “…1189 is the date of the accession of Richard I (the ‘Lionheart’)” (Henderson, William B. 1991: 14 ftnt:45).
3. Hill 1958.
4. Canny 1973: 583, writes: “The questions that we must pose are how, at the mid-sixteenth century, the Irish, a people with whom the English had always had some familiarity, came to be regarded as uncivilized, and what justifications were used for indiscriminate slaying and expropriation?”
5. Ibid.,580.
6. “Transhumance” refers to the practice of owners and/or herders moving livestock on a seasonal basis between mountains and lowland pastures. It is contrasted to agricultural settlement where pasture lands remained fixed in one location.
7. Historically, when British settlers, first in Ireland, then in the American colonies, and later in British Columbia, looked to history and law for moral and political legitimization in their struggles for independence from the British Crown, they constructed a rhetoric recalling a “Golden Age” of “natural law” that, their story went, existed prior to the Norman invasion of Britain. See Andrews, Canny, Hair (eds.) 1973; and Knafla 1986(b). This local, or common, law has come to be known by the phrase “the fundamental laws of all Englishmen,” which Robert Williams describes as “the opinion that the Anglo-Saxons of England lived as free and equal citizens under a form of representative government that was inspired by divine principles of natural law and the common rights of all individuals” (Williams, R. A. 1990:253).
8. “Racialization” refers to the ideological process whereby biological, genetic, or phenotypical characteristics are employed to classify categories of people. The most common example of the historically and socially constructed nature of racial categories is illustrated by the varying ways Jews have been classified throughout European history, where they have sometimes and in some places been classified as a distinct “race” of people, and at other times and in other places, not.
9. For an interesting examination of the process of racialization see Ignatiev, Noel 1995. The book examines the role played by identification with the dominant Caucasians and collusion in the oppression of Aboriginal and African-Americans in the historical ascendancy of Irish immigrants in the United States of America.
10. The notion that the morality of a person’s actions can only be evaluated on the basis of their intentions is a central tenet of Kantian idealist philosophy. This privileges the subject’s articulated interpretations and intentions, as compared to the interpretations and consequences experienced by others as a result of the subject’s actions. This formulation assumes that individuals and their intentions and actions are not always already embedded in relationships, but can be decontextualized and considered independently. See Miles 1989 for a fuller discussion of “judging by intentions” in contexts of racial domination and subordination.
11. See Dauenhauer and Dauenhauer (eds.) 1994; Lips 1966; Wickwire 1994.
12. Maine (1861)1970: 15.
13. Fabian 1983.
14. For detailed discussions about mutinies in the early American colonies and the South Pacific, respectively, see Andrews et al (eds.)1973; and Obeysekere 1992.
15. See Koppel 1995.
16. See Alexander and Glaze 1996; Hudson 1997.
17. Slattery 1985: 114.
Chapter 4: Beginning at the Beginning
Aboriginal peoples, of course, did not go around talking about their rights; mostly, they spoke in a discourse of responsibilities and respect. But that discourse was circulated among themselves. When others came and established—or forced—dominance, it became relevant to speak of rights as a way of negotiating relations.
—Historian Peter Kulchyski, 1994, Unjust Relations: Aboriginal Rights in Canadian Courts.
Regardless of how the inhabitants themselves perceived their connections with the land, in every case a physical and economic relationship necessarily existed. Quite simply, when the English arrived, these people were already there, using lands in accordance with their own needs and their own ways of life, as people everywhere do.
—Legal scholar Kent McNeil, 1989, Common Law Aboriginal Title.
Aboriginal Peoples Were Here
When Britain became engaged in the colonization of the Americas, British legal rules were already in place that addressed several major questions which arose whenever British settlers established themselves in another territory. The “not-Christian enough” rationale, developed to cope with the Irish situation, became codified in law in Calvin’s Case in 1608, when Britain’s Chief Justice Coke articulated what has become known as the infidel rule: “if a Christian King should conquer a kingdom of an infidel, and bring them under his subjection, there ipso facto the laws of the infidels are abrogated, for that they be not only against Christianity, but against the law of God and of nature.”1
A memorandum of the Privy Council of Great Britain in 1722 consolidated imperial law by setting out rules for establishing British sovereignty in two possible situations. The first option, alternatively referred to as the doctrine of discovery, or the doctrine of occupation, or the doctrine of settlement, was to be applied in circumstances where the land discovered was terra nullius— uninhabited by human beings.2 The second option, the doctrine of conquest, was to be applied where Indigenous populations were encountered.
In the case of terra nullius, Britain simply proclaimed sovereignty by virtue of discovery and British law became, automatically, the law of the land. Where Indigenous populations were found inhabiting the desired land, the law required that British sovereignty had first to be won by military conquest, or achieved through the negotiation of treaties, before colonial law could be superimposed.
Of course, Britain never had colonized and never would colonize an uninhabited land. Therefore, the doctrine of discovery/occupation/settlement based in the notion of terra nullius was never concretely applied “on the ground.” Rather, already inhabited nations were simply legally deemed to be uninhabited if the people were not Christian, not agricultural, not commercial, not “sufficiently evolved” or simply in the way. In British Columbia, the doctrine of terra nullius has historically legitimized the colonial government’s failure to enter into treaties with First Nations. The application of the doctrine of conquest to First Nations in British Columbia, which would have required recognition of the fact of their prior occupation, and their status as human beings, was available within the confines of British imperial law but was rejected by colonial governments in British Columbia. When Aboriginal people say today that they have had to go to court to prove they exist, they are speaking not just poetically, but also literally.
Oh, What a Tangled Web We Weave When First We Practice to Deceive…