The Pleasure of the Crown. Dara Culhane
draw on to support their appeals for legal recognition of Aboriginal title. I recognize and respect the fact that it is a consequence of persistent Aboriginal resistance that these issues are before the courts at all. Aboriginal litigants perpetually challenge the law, and occasionally jurists acknowledge some legitimacy to their claims. In these ways, First Nations have influenced Canadian law significantly. But I did not undertake this study for the purpose of learning what the evidence and testimony presented in Delgamuukw v. R. might tell us about Gitksan and Wet’suwet’en cultures and histories, or to unravel how legal strategies have shaped the representation of such issues in the courtroom. These are interesting questions, of course. But they are not the questions that have guided my inquiry. Rather, I take as given—as “common sense”—that the Gitksan’s and Wet’suwet’en’s fundamental position is valid. That is, I take for granted that regardless of what forms their social structures and cultural beliefs took at the time, they owned the territory in dispute when the British arrived in the eighteenth century, and they have not ceded, sold, lost or surrendered their title or rights to these lands and their resources under the terms of either Aboriginal, British or Canadian law. The Gitksan and Wet’suwet’en, and other First Nations in British Columbia, have sought recognition by Canadian courts of these facts in order that provincial and federal governments could be compelled to negotiate a mutually respectful relationship with them. First Nations have sought peaceful co-existence with newcomers who, like my own predecessors, came from many parts of the world—for myriad reasons—to live here, in Canada. I believe this is a just goal, and it is one I share. I take this position to constitute “good sense.”5
What I consider not readily accessible to common sense, and not a reflection of good sense, and therefore in need of explanation and criticism, are the Crown’s positions and the evidence and theories relied upon to support them. This book is therefore a project in the anthropology of European colonialism: a study of power and of the powerful. I turn my anthropologist’s spyglass on the law, an institution that quintessentially embodies and reproduces Western power. This is the third premise from which I write.
As an anthropologist, I have tried to make sense of the law on Aboriginal title in British Columbia by placing the Gitksan and Wet’suwet’en case within the historical and contemporary political context of British and Canadian relations with First Nations, and considering the ways that law reflects and reinforces Euro-Canadian cultural beliefs, practices and diverse interests. I have explored how law shapes relations between people outside the courtroom as well as inside. Contrary to the image law holds of itself as a world unto itself, I understand law as inextricably enmeshed in society.
The first obligation of any responsible critic is to thoroughly investigate the object of critique, and I have tried to do so. In order to understand the story of Delgamuukw v. R., I read, watched, listened to and discussed commentaries on the case by a wide range of people. I conducted a “close reading” of the various texts of this case: expert witness reports; transcripts of the trial; Reasons for Judgment; academic and popular commentaries on the case itself and the issues it raised. By “close reading,” I mean studying the texts not only for their literal or “factual” content, but also to understand the various ways they communicate meanings directly and subtly, by using language in particular ways; by writing and speaking in rhetorical styles; by deploying metaphor and evoking certain images and emotions; by using grammar, and constructing each text as a whole along specific lines. That is to say, I read these documents as cultural texts, using the tools of anthropological and cultural criticism. And, since particular texts do not make sense outside the broader context in which they are written and read, I have also studied related work in the fields of anthropology, history, law, and northwest coast ethnography.
However, Chief Justice Allan McEachern’s Reasons for Judgment in Delgamuukw v. R., was not written as a work of fiction or ethnography. Judicial rulings carry with them a great deal of power and authority, based largely on assumptions that they represent reasonable and coherent conclusions drawn from a basis in empirical fact. I therefore considered it important to try to understand and critique this text on its own terms first. I began by analyzing the judge’s ruling within its own context: the law on Aboriginal title in British Columbia. I considered it as a recent link in a long historical chain of Aboriginal title and rights cases that began when the British Empire began, and gave rise to the legal precedents that continue to shape contemporary judgments. My first task, then, was to trace the history of the law that Chief Justice McEachern claimed forced him to arrive at the ruling that he did.
I conducted my critique from three positions, or points of view. First, I tried to step inside the law to understand it. I asked whether the law has followed its own rules and met its own criteria. As an anthropologist, the question that I sought to answer was whether or not the judge’s rulings that relied on history and anthropology reflected reliable findings based on reputable research in these fields. Second, I stepped back outside the law, and read these texts from a position informed by a conventional anthropological critique of ethnocentrism that argues that all of humanity’s cultures are worthy of equal respect, and should be understood on their own terms. The rules or values of one culture should not be applied to the evaluation of another. From this perspective, the dominant western culture is but one among many, neither universal nor superior. I asked, “What cultural beliefs and practices did the Crown rely on to make sense of their arguments in Delgamuukw v. R.?” Interpreted from this position, the Crown’s arguments and the Chief Justice’s Reasons for Judgment read like archaic, eurocentric, colonial texts, with a uniquely local, British Columbian flavour. Finally, I read and wrote from a third position, that of a critic of the dominant order. From this position, I argue that a critique of ethnocentrism must necessarily be the beginning, but should not be the conclusion, of a project aimed at re-imagining law and justice, and re-thinking how Aboriginal and non-Aboriginal people may live together. From this location on the political margins, I asked questions that address the future, as well as the past: regardless of the cultural traditions these texts emerge from, what are the cultural prescriptions embedded in the Crown’s legal position and Chief Justice McEachern’s law. Particularly, what visions of nature and society, what models of human relationships, did the Crown’s defense of their position reflect, assert and defend? How are their images represented in the world they would create? What is the way of life they are empowered to command an army to defend? What kind of world/country/ province will we all, Aboriginal and non-Aboriginal, live in if desires like his continue to govern?
My interpretation and analysis therefore emerged from this critical “ethnographic reading” of the texts through which the law, and Delgamuukw v. R., has made itself known to the public. I did not observe the trial, and I have not interviewed or consulted with any of the participants. My writing has been a solitary project, not carried out in collaboration with any representatives of any parties to the dispute. I claim to represent no one but myself. I retell the story of the Gitksan and Wet’suwet’en case, from my point of view, as a detailed account of an important moment in our recent history: a snapshot that artificially freezes time and records the instant so that we may return to it and re-view it, see it from different perspectives, read it in different ways, and learn different lessons from it. Many people have engaged in similar studies and arrived at similar—and different—conclusions, and I have learned a great deal from their work. Believing that what people say is inseparable from how they say—or write—it, I have tried to bring some of these other observers and commentators into conversation with each other on the pages of my text. Of course, it is I who have chosen which of their words to select, and directed at what moments they should speak and to whom. In so doing, I have interrupted, interpreted and appropriated their meanings to my own ends. My sources are not responsible for the uses I have made of their words. Believing too that humour is one of the strongest forms of cultural criticism, when particular moments in this story have struck me as funny or ironic, satirical or sardonic, I have presented them as such. Learning to laugh at ourselves and with others must surely be a worthy goal in the pursuit of justice.
Any account of a process like the trial of Delgamuukw v. R. enacted over four years, that involved many people presenting complex evidence, debating obscure points of law, contradicting each other’s interpretations of history, disputing understandings of esoteric cross-cultural translations, must