The Pleasure of the Crown. Dara Culhane
into, rather than the final word on, or an exit from, the many complex issues this story brings up.
This is not, however, a “dialogue with texts.” This is a “dispute with texts,” particularly with the texts of the Province of British Columbia’s legal arguments in Delgamuukw v. R., and with Chief Justice McEachern’s Reasons for Judgment. At the same time, this book is not intended to be a polemic expressing an idiosyncratic or unique perspective. I have tried to present a meticulously documented, well-supported, and passionately reasoned, argument. I hope to persuade readers of the soundness of my position, and the weakness of the Crown’s; of the injustices of the Crown’s actions; and, of the desirability of an alternative vision for the future.
The story of litigation on Aboriginal title and rights in Canada, and particularly in British Columbia, is at one and the same time as remarkably simple as it is extraordinarily complex, as obtuse as it is simple-minded, and as familiar as it is strange. Truth and lies, fact and fiction, noble intentions and shameful motivations crisscross, undercut, and override each other as they dance across the pages of legal texts and treatises, creating a bewildering maze of claims and counter claims, accusations and denials. But when all is said and done, and many possible interpretations have been explored, the important questions remain: Has truth, by anyone’s criteria, been told? Has justice, by anyone’s measure, been done? Most importantly: how can justice be achieved in the present and protected in the future?
Stories like that of Delgamuukw v. R. illustrate how complex, and often contradictory, our feelings about law are. On the one hand, there is widespread cynicism in the public at large about the tenuous relationship between law and justice in Canada, especially in relation to Aboriginal peoples. And, there are hundreds of government reports, and volumes of academic research that support these criticisms. On the other hand, we continue to believe in the possibility that the law will be just. Most importantly, we continue to demand that the law should be just, in both its theories and its practices. We can never cease to insist on this. How could we? Law, after all, is supposed to represent the principles and rules by which we have all agreed to live together in this nation-state, to constitute our particular social and cultural world. To cease trying to hold the law accountable to justice, no less than to condone law answering only to itself, would be to surrender to nihilism, despair and totalitarianism. The consequences of legal rulings are complex and far-reaching. Law’s decisions are accompanied by powers of enforcement, including the exclusive right to legitimately use weapons and violence to resolve disputes. None of us can ignore the force of the law: it insists itself upon us in myriad ways every day. When it comes to law, then, critical skepticism, passionate outrage, perpetual hope, sardonic amusement, sheer terror, and utopian dreams of a moral social order are inevitably interwoven in our thinking, feeling, writing and conversation.
My initial goal was to make sense of the law. My next goal was to critique it. My long term goal is to help make the law sensible, and the society it reflects, just. I hope this book will challenge how you think about Aboriginal title and Canadian law, and how you choose to participate in shaping our collective future.
1. Language is important. Throughout this text I use a variety of terms to refer to the peoples whose ancestors lived on the North American continent before Europeans. Each term has diverse connotations. “Indigenous” is the most all-encompassing and is the term of global representation chosen by the United Nations. Some people feel it erases the specificity of particular Nations, and suffers from an imprecise time frame, i.e. some people who others consider “settlers” identify themselves as “indigenous” because their families have lived in a region for many generations. “Indian” began with Christopher Columbus’ error: landing in the Caribbean, he believed he had reached his destination of India, and so he called the people he encountered “Indians.” “Indian” is a term used in many legal documents, and in historical records. Some people find it offensive and feel its continued use reproduces its colonial legacy. “First Nation” is a term of recent emergence that is particularly popular in British Columbia. It is the language used in the Constitution Act 1982. Some people, particularly Metis representatives, interpret the “first” in “First Nation” as an implicitly hierarchical term that renders them “Second Nations.” “Aboriginal” is also a recent term that encompasses First Nations, Metis, Inuit, and Non-Status people. It is also used in legal documents, including the Constitution Act 1982. Some people feel that it is too broad and general and blurs important differences and erases diversity. I use all these various terms either because they are appropriate to the topic or time frame being discussed, or to the particular context. In unselfconscious contemporary everyday language, I hear all these terms deployed by Aboriginal and non-Aboriginal people and I use all these terms. I have reproduced this normal usage in the text. I regret if any readers are offended by any of these words.
2. In recent years, many Aboriginal nations have adopted spellings of their names that more accurately reflect their own correct pronunciation, replacing those spellings previously developed by Anglophone and Francophone colonial officials to facilitate English or French language and accent versions of Indigenous names. The Gixsan First Nation has adopted a new spelling of their name since this court case. I use the spelling as it appears in documents concerning the case.
3. Similarly, the Witsuwit’en have changed the spelling of their name.
4. The Indian Act, as it was when I was married in 1975, conferred “Indian status” on non-Indian women when they married Indian men holding legal status. Conversely, when Indian women married non-Indian men, or Indian men who did not hold legal status, they and their children were dispossessed of their legal status as Indians. According to Canadian law, my marriage transformed me, in the eyes of the law, from a Canadian citizen of Jewish and Irish descent into a “Registered Indian,” member of the Nimpkish Band, and ward of the Crown. (The law was changed in 1985 so that today, marriage can neither confer nor take away legal Indian status.)
I understand that, on the basis of my legal classification, some legal analysts would consider me an “interested party” to Aboriginal title and rights litigation. My children would hold entitlements under any treaty or settlement that might result. I do not consider myself an “interested party” in the manner of a potential beneficiary, nor do I think this legalistic aspect of my position significantly influences my analysis of the issues at stake. However, I offer this detailed explanation by way of respecting an obligation to “put all my cards on the table” when engaging in critique and arguments about morality and “interests.”
5. The late Antonio Gramsci, an Italian theorist, differentiated between “common sense” and “good sense.” “Common sense,” he said, consists of widely-held assumptions that are seen as “natural,” or in some other sense immutable, and taken for granted. There appears to be no need to question or challenge “common sense” since its “facts” are considered “as obvious as the nose on my face.” “Good sense,” on the other hand, refers to systematic reflection and conscientious planning based on practical and moral values: the best ideas of an era or populace. I am indebted to Richard Daly for bringing Gramsci’s work on this to my attention. See Gramsci 1971.
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