The Pleasure of the Crown. Dara Culhane
he had listened to for four years. In his 400 page Reasons for Judgment, the Chief Justice analyzed the testimony, reviewed the relevant points in law, and then dismissed the Gitksan and Wet’suwet’en claim. No Aboriginal title or rights had pre-existed European settlement, he ruled; and even if they had, they had been extinguished by the simple fact of Britain asserting sovereignty. Treaties had not been made, nor compensation paid, nor Aboriginal consent acquired. Nor were they required, he ruled.
Late One Night at the Legion
Like most everyone else interested in Aboriginal issues, especially in British Columbia, the judgment caught me off guard. The early morning CBC radio news on March 8, 1991, announced that the judgment had been released to the lawyers, who were in a “lock up” with the document until noon.4 I, too, had assumed that the outcome of this case would be relatively positive for the claimants: an historic turning point in the legal struggle for recognition of Aboriginal title and rights. When I turned on the CBC radio midday news it was not with bated breath or apprehension, but rather with curiosity to know the details of the judgment and what the implications were for all parties to this case. To say I was shocked by what I heard on the radio is an understatement.
During the years 1988 to 1991, I had been a graduate student in Anthropology at the University of British Columbia and at Simon Fraser University. These were also the years that the Gitksan and Wet’suwet’en case was being heard in the British Columbia Supreme Court. While I was not directly involved in the trial in any way, I had followed developments in this case through media, attended public information sessions, special lectures, support demonstrations, benefit dances and fund-raising performances; and bought raffle tickets. Social movements in general, and Aboriginal politics in particular, form both the central focus of my work, and the personal and social milieu in which I live my everyday life. Therefore, the progress of this high-profile court case had been the subject of countless informal discussions among friends and relatives over the course of its four-year duration.
For days following the release of Chief Justice McEachern’s ruling, the trial and the judgment were being talked about everywhere I went: at home, at the university, at social gatherings. Everyone I encountered had something to say about the Gitksan and Wet’suwet’en case and the Chief Justice’s decision. Most were shocked. Many were outraged. A few were smug. Others were bitter. Some said the Gitksan and Wet’suwet’en should never have gone to court to begin with: what can you expect from the white man’s courts? Since when could justice be found in law? Others felt betrayed by a legal system they had previously believed to be fundamentally fair. Some people were critical of the lawyers and the way they had conducted the case—some said they had asked for too much and overwhelmed the judge with mountains of data. Others said they had not asked for enough, and that they should have called even more evidence. Some said the Delgamuukw decision was an anomaly and didn’t represent the thinking of the judiciary as a whole. Others said the opposite: McEachern had simply used unfashionable words and precedents to express what his colleagues, who had learned to obscure these ideas with more “politically correct” language, really thought.
Anthropologists were insulted by the Chief Justice’s wholesale rejection of ethnographic evidence. Many were dismayed that anthropologists like Hugh Brody, Richard Daly and Antonia Mills—who had served as expert witnesses— had been summarily dismissed and reprimanded by the judge for being “advocates” whose participant observation research was not “credible.” Others were critical of the anthropology presented, and the anthropologists who had testified on behalf of the Gitksan and Wet’suwet’en: Hugh Brody had been too caustic. Richard Daly had been too obtuse. Antonia Mills had been too ethereal. They had presented too seamless a case. Others said they had indulged themselves in idealism and ideology: empiricism5 should have ruled the day.
Most Aboriginal people I spoke with were less shocked by the judgment than their non-Aboriginal peers. They were disappointed, and deeply hurt by the Chief Justice’s words. More than anything, they were angry at what they saw as the judge having insulted the Chiefs and Elders by his charge that their testimony had been “untrue.” Some Aboriginal people muttered resentfully about how much money the lawyers and the expert witnesses had made. Some asked why the anthropologists had ever been involved in the first place. Why hadn’t the Gitksan and Wet’suwet’en stood by their own Chiefs and Elders and refused the need for “representation and translation” by white anthropologists?
In an unprecedented gesture, the government of British Columbia bound Chief Justice McEachern’s Reasons for Judgment in book form and distributed it widely throughout the province. Rumour had it that the Chief Justice hoped his text would form the basis of a public school curriculum. Shock turned to incredulity as the volume circulated among scholars and other people knowledgeable about British Columbia history and Aboriginal cultures. The Canadian Anthropology Society, representing 405 scholars, told the press that the judgment “gratuitously dismisses scientific evidence, is laced with ethnocentric bias and is rooted in the colonial belief that white society is inherently superior.”6 University of British Columbia anthropology Professor Robin Ridington added that “if an Anthropology 100 student wrote anything like that in a paper, not only would you write a lot of red ink over it, you would say ‘Look, please come in and talk to me. You have real problems.’”7
When I read the Reasons for Judgment, I found the text very familiar. I was immersed at university in the study of critiques of colonialism and western culture, written largely by colonized and formerly colonized people. This work focuses on how European social theories classify and represent non-European peoples as inferior “Others,” justifying colonial domination and exploitation by western powers. Within the borders of the west, similar processes of “othering” had long legitimated the subordination of women, minorities, gays, lesbians, the poor, the disabled, and political dissidents by dominant classes.8 Chief Justice McEachern’s text read like a caricature of everything I was studying. The rendition the Reasons for Judgment offered of British Columbia’s history repeats what can be read in the blunt, unselfconscious language of Indian Agents’ reports found in archival records, and in the memoirs of pioneers, missionaries and settlers that form the corpus of popular history in B.C.: what political scientist, Paul Tennant, has called “the founding myth of White British Columbians.”9 These local stories of Aboriginal primitivism, European superiority, and the historical inevitability of colonial domination are repeated throughout the colonized world. One can hear very similar stories in Australia, New Zealand, and South Africa. They are self-justifying accounts, told by a colonial people whose ongoing doubts and insecurities about the moral legitimacy of their occupation of Indigenous lands require that these stories be told, and retold. Having lived in a small coastal community in British Columbia for many years, I recognized in the Chief Justice’s tome what I had long ago nicknamed the “late one night at the Legion” version of B.C.’s history.
A month or so after the Delgamuukw judgment was released, I attended a meeting of anthropologists and historians at the University of British Columbia to discuss how we might responsibly respond. We agreed that we would each write an article on a specific aspect of the anthropological and historical evidence that had been presented during the case. These papers would be compiled in a special edition of the journal, B.C. Studies.10 I chose to write a critique of the opinion report, testimony, and cross-examination of the expert witness who had provided anthropological evidence for the Crown, Dr. Sheila Robinson.
I approached this project expecting to find in Dr. Robinson’s evidence an interpretation of facts presented within a coherent, logical argument. I anticipated that I would likely disagree with Robinson’s analysis, on a professional basis. Debate, after all, we like to think, is the foundation of scholarly integrity. I was shocked to find that her opinion report did not include an up-to-date review and analysis of relevant theoretical or substantive literature. Instead I found oxymoronic11 argument, and the substitution of theoretical speculations for empirical facts. I also read the reports and testimony of the anthropologists who testified for the Gitksan and Wet’suwet’en. I found issues to debate with Richard Daly, Antonia Mills and Hugh Brody, but the important difference between their submissions and those made on behalf of the Crown was that the former were