The Pleasure of the Crown. Dara Culhane

The Indian elders in British Columbia question why they must subject their relationship to the land to a non-Indian court’s strict scrutiny: why they must explain their use of the land to obtain ‘rights’ abstractly defined by others.

They believe that the Indians have rights to their land because their people go back with the land for thousands of years. What they do not understand is how the Crown acquired its ‘rights’ to their land.

—Lawyer Louise Mandell, 1987, Native Culture on Trial.

The Long and the Short of It

Law, we are taught to believe by our educational institutions, embodies justice. Our courts’ formal rules of evidence, and their procedures, enable the discovery of truth through the application of reason. “Judicial neutrality”—the absence of bias among judges—guarantees that fair and equitable resolutions to disputes between any and all people(s) will be arrived at. Equality before the law, we are told, is the linchpin of the Canadian judicial system; and justice, we are assured, is the outcome of legal processes. It follows from these official premises, and by this reasoning, that if contemporary Canadian sovereignty and Crown title and rights to land are confirmed by law, they must have been justly acquired.

Of course, in these cynical times, few claim the Canadian legal system is infallible. Charges that interests other than the pursuit of justice may be at play in legal processes do not usually generate widespread alarm. Increasingly, we understand that what we call “facts” are frequently matters of interpretation that reflect particular points of view rather than unequivocal certainty. We have come to appreciate that something called “culture,” and more specifically, “cultural differences,” come between Aboriginal¹ peoples and Canadian law, disrupting communication and mutual understanding. Suggestions that judges’ decisions often reflect prejudices common in contemporary society at large, rather than being strictly determined by exclusively legal concerns, are hardly shocking revelations.

However, periodically a particular judicial decision comes to public attention that shocks even the most complacent or embittered cynic. Allan McEachern, the former Chief Justice of the Supreme Court of British Columbia, created just such a controversy when he handed down his 1991 judgment against the Aboriginal claimants in the high profile Gitksan² and Wet’suwet’en³ land rights case, also known as the case of Delgamuukw v. The Queen. Judge McEachern ruled that, before Europeans arrived in the late eighteenth century, the First Nations had been too “primitive” to have had property laws or institutions of governance. Today, he declared, they have no Aboriginal rights whatsoever. Charges of racism were hurled at the judge. He was accused of shamelessly favouring the interests of big forestry companies and non-Aboriginal elites against the rights of First Nations. The Chief Justice defended himself, using the letter of the law as his shield. He protested that he was compelled by historical precedents to repeat the rulings of previous judges that dated back hundreds of years. Chief Justice McEachern admitted that his decision might not be just, but he was convinced that it was definitely legal.

Indeed, law and justice have not always walked hand in hand through British Columbia’s history, and nowhere is the distance between them greater than on the question of Aboriginal title and rights. How did the British Crown acquire its rights to the territory we now call British Columbia? Many Canadians would respond, with pride, that unlike Americans, we gained sovereignty over the lands we live on, and established political jurisdiction over its Indigenous inhabitants, through the rule of law, rather than by military force.

In fact, the Crown acquired its title to First Nations’ lands and resources by simply asserting sovereignty and ignoring Aboriginal title in contravention of British colonial law. British and then Euro-Canadian rule was enacted by sheer force of numbers as settlers overwhelmed fragments of Aboriginal populations who had survived the first waves of epidemic diseases brought by European fur traders during the eighteenth century. Aboriginal peoples were simply deemed, by law, not to exist. The colonists then established their own legal regime that validated their self-proclaimed sovereignty and jurisdiction. For over 100 years, the governments and the courts of the Province of British Columbia have defended their predecessors’ initial trespass on Aboriginal lands, and their transgression of British law, by whatever means necessary: coercion, deceit, compromise, seduction, force. Law.

Aboriginal peoples have steadfastly insisted that they surrendered neither ownership of their lands, nor their political autonomy. Nor did they cease to exist. However, it was not until the late 1960s that First Nations—after over a century of petitioning—succeeded in compelling Canadian courts to begin adjudicating their disputes with the governments about who owns the land in British Columbia.

When called upon to justify its actions in law, the Province of British Columbia retreats to a legal fortress, the cornerstone of which is the mystical “original moment” when Britain asserted sovereignty over First Nations in British Columbia, often without their knowledge, and always without their consent. The Crown’s defense begins by giving legal sanction to this crude act of aggression, and then proceeds from this starting point to call upon a range of social theories, historical fictions, and popular “common sense” ignorance and prejudice to justify its actions. Crown lawyers present as evidence stereotypical caricatures of Aboriginal peoples as “backward” and “primitive” when Europeans arrived. Grisly tales of “war-like savages” are juxtaposed with an heroic epic of “advanced” and “civilized” white settlers who, it is claimed, brought Christianity, reason, and the rule of law to the untamed wilderness of British Columbia. The stark contrast in “development” between the two “races,” the Crown argues, made the superimposition of British sovereignty over Aboriginal sovereignty a “natural” outcome of the “progress” of history, and rendered inevitable the subordination of Aboriginal peoples to non-Aboriginal governance. A short answer to the Aboriginal elders’ question is that the Crown acquired its ‘rights’ to their land by simply seizing it: through the force of law.

How could this have happened

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