The Pleasure of the Crown. Dara Culhane
that many Canadians hold dear—like respect for the rule of law, a belief in equality, and a commitment to human rights—continue to be legitimized in the 1990s? These are the questions that shape this book. By looking behind, around, and through the interconnections between law, history, culture, and power, I offer a long answer to the elders’ question.
Human Being, Citizen, Anthropologist
The landmark case of Delgamuukw v. The Queen heard in British Columbia during 1987-1991 represented a crystallizing moment in the history of Aboriginal peoples and the law in British Columbia. All the variously interested parties to the dispute came together in one forum to present their positions, their arguments, and their supporting evidence. History followed them into the courtroom, and they carried the future out with them when they left.
I wrote this book as a contribution to the ongoing discussions that are taking place in British Columbia and Canada about the possibilities for justice in Aboriginal/non-Aboriginal relations; as a commentary on a particular dispute in one corner of the globe that is linked to more general struggles for social justice around the world; and, as an intervention in debates in the academic fields of anthropology and law. I write as a human being, a citizen, and an anthropologist. I present an explanation of issues and events that is necessarily one interpretation among many possibilities. Like any account, mine arises from and is shaped by some fundamental assumptions, principles, experiences and positions that I will set out as honestly as I can.
My inquiry begins and ends with the basic claim that all human beings are fundamentally equal and worthy of respect, and the simple assertion that Canadian law should reflect these principles, both in theory and in practice. My argument is that, in relation to Aboriginal peoples, this has not historically been, nor is it now, the case. I have come to this conclusion by way of a number of different paths.
Long before I began this study of the Delgamuukw v. R. case, (and former Chief Justice Allan McEachern’s Reasons for Judgment); and long before I had ever heard of the Gitksan or Wet’suwet’en First Nations, I was imbued as a child with certain understandings of both the danger of the law when it is abused as a weapon of terror, and of the promise of the law when it is employed to achieve and protect justice. Members of my Irish father’s family were assassinated by English soldiers in the early years of this century: I was raised with few illusions about British justice. My mother’s Jewish family fled pogroms in Czarist Russia and witnessed the Holocaust: I was taught to respect law as an alternative to brutality, and to value scholarship in the service of justice. These general understandings represent, to me, who I am and, as such, they shape how I interpret the world I live in.
I began thinking seriously about the particular questions that constitute the subject matter of this book in the early 1970s, when I married a First Nations man, lived in his reserve community on the Central Coast of British Columbia, and became involved in the movement for recognition of Aboriginal title.4 I cannot remember when I first began to “believe” the simple truth that British Columbia First Nations hold unsurrendered Aboriginal title to their lands. If I ever thought differently, and there indeed was such a “moment of revelation” when I changed my mind, it happened so long ago that I cannot recall it now. For as long as Is can remember, this position has appeared to me as simple common sense: Aboriginal peoples were here, Europeans arrived. No wars of conquest were fought, no treaties were entered into. Hence, no Aboriginal title or rights were surrendered. These issues remain unresolved, so mutually-respectful negotiations should begin. These fundamental factual and moral “truths” are, to me, obvious. Nothing I have heard, seen, read, learned or experienced in the last twenty-five years has caused me to think or feel differently.
I have brought up two Aboriginal children in contemporary British Columbia. I know something of the depths of racism in this province and in this country. I recognize, in the erudite language of the law, the same cruelty I have seen and heard directed to Aboriginal people in Canadian schools, hospitals, legislatures and many other “public” spaces. As a human being, I consider racism a violation of human rights. This is the first premise from which I write.
Sometime during the last twenty or so years, I also began to understand how the denial of Aboriginal title and rights in this context was simultaneously a denial of human equality. This understanding emerged first from learning how British and Canadian property law differentiates between categories of citizens according to their relationship to private property: fully “matured” citizens may own land, and others may not. These legal classifications mirror, and are mirrored by, cultural beliefs that accord greater value and worth to persons with property, than to those without. Ownership of private property stands as both criteria for, and evidence of, successful citizenship. Knowing this, when I hear Aboriginal people say that they are deeply hurt when governments and courts repeatedly refuse to recognize Aboriginal title and acknowledge Aboriginal rights, I interpret the injury they express as reflecting their very perceptive understanding of the meaning and value of property in the dominant Canadian culture, and the law’s reflection of these meanings. That is to say, regardless of how diverse Aboriginal peoples may feel about property, they know how Canadian law feels about it, and they therefore rightly ascertain that they are being insulted—treated as second class citizens—by the law.
As a citizen, I wish to live in a just and democratic nation, and I object to the fact that Canadian sovereignty relies for its legitimacy on assumptions of human inequality: of European superiority and Aboriginal inferiority. The second premise I write from takes the form of an assertion of the democratic authority of a citizen to critique the law, and to insist that its practices accord with its avowed principles in ways that are comprehensible and transparent to the average person. I am neither a lawyer nor a legal scholar. I am, in this professional way, an “outsider” looking at the law. But as a citizen I am inevitably and irrevocably “inside” the law. The law claims to speak in the name of all people, and therefore the people should be able to discern the law’s reasoning and the factual foundation it claims to rest on. All this I learned from my parents and other wise people. I brought these understandings and points of view with me when I began studying anthropology in 1982.
Anthropology, historically, has been about western intellectuals investigating the ways of life—the “cultures”—of those classified as “others” in dominant European social theory: non-western, non-industrial, Indigenous peoples; and, to a lesser extent, marginalized groups within the borders of western nations. One of the central tasks of this traditional anthropology was identified as that of cross-cultural translation. Anthropologists sought to immerse themselves in the lives of the people they studied and, in this way, to achieve an “insider’s” point of view. The next step in the anthropological enterprise was then to describe and explain—to translate and represent—these “Native points of view,” and their different cultural perspectives on the human condition, to western audiences.
Contemporary anthropology questions many of the foundations of this academic discipline. Most importantly, classical anthropology is undergoing a thorough re-examination by those “subjects” who were constituted as “objects” of study by earlier generations of ethnographers. Formerly colonized peoples, members of minority communities in the west, women, and other “Others” who were historically written about and analyzed by anthropologists, are turning the microscope around and scrutinizing those who originally examined them. They are reading and critiquing traditional ethnographic representations of themselves; conducting their own research into the cultures of both colonizers and colonized, oppressors and oppressed; producing a critical “anthropology of anthropology.” More and more, western and non-western anthropologists are studying their own societies: exploring the cultures they are always already immersed in, re-examining the histories that have produced them, and questioning their own taken-for-granted assumptions about the past, the present, and the future. This process is exciting and profoundly challenging. Errors in fact are being corrected. Alternative explanations of world history are being considered. Diverse visions of possible futures are being contemplated. We now struggle to read the “great works” of the European intellectual tradition through the eyes of these “Others.” It is now marginalized peoples’ analyses of the centres, as well as of the margins, that we must try to grasp.
Traditionally, an