legal story form: a triangle consisting of a good learned person (Las Casas); a bad learned person (Sepulveda); and a benevolent sovereign (Charles), pondering a deeply important and complex issue in a quasi-judicial forum. Berger constructs the law’s uninterrupted historical narrative from Columbus’ encounters in Central and South America to contemporary Canada. This evokes notions of political conflict rooted in racial or cultural differences, often thought to be universal characteristics of all human societies in all historical periods, and thus to be immutable. The dominant image evoked is easily recognizable in contemporary liberal discourses on multiculturalism and identity-politics: white European colonizers, and brown Indigenous colonized.
While the impact of Spanish colonization on the Americas is important, it is British imperialism and colonial law that is specifically of interest to this story, a story that differs from Spanish colonial history in some important ways. British imperial law traces its origins to the common law tradition that emerged in the fifth century A.D. when the Anglo-Saxons invaded what is now called England and conquered the indigenous Britons. The Anglo-Saxons went on to absorb immigrant Danes and Gauls, others of whom (having become, over the course of the ensuing five centuries, Normans) in turn conquered the Anglo-Saxons in 1066. The Norman conquest of 1066 brought to Great Britain a centralized state and church, and the arbitrary power of the king. Under the Norman-derived legal regime, the king, or sovereign, who mystically embodies the “underlying title to all land” and the implicit consent of all the people to his reign, is said to “hover over the land.” The origin of the sovereign’s legal title is to be found in this abstract, imaginary vision, made concrete through the exercise of power as the sovereign became the symbolically omnipotent source of law, and his will its practical execution. A feudal regime, sometimes referred to as the “Norman Yoke,” was established, against which Anglo-Saxons, Britons, Danes, Gauls and some Normans (now having become English and Scots) waged civil war.3
At the same time as Sepulveda and Las Casas were debating in Valladolid, English jurists were confronting similar problems regarding colonization in Ireland. Their dilemma was not precipitated by the sudden “discovery” of seemingly strange and alien peoples. Rather, the problem of justifying expropriations of lands and massacres of native populations that faced British imperial policy-makers was that of recategorizing as radically “different” their Irish neighbours who had hitherto been similar and familiar.4
That the Irish were Christian was never doubted by the Normans or their successors, but Christianity in Gaelic Ireland did not fully conform to Roman liturgical practice, and many pre-Christian traditions and customs had been only slightly veneered in these territories by Christianity. On this basis, the Irish were classified by British imperial law as atheists or infidels. Although, unlike “certain savage tribes,” the Irish were rarely accused of cannibalism, they were described as “little better than Cannibals….”5 In addition, the Englishtook the Irish practice of transhumance6 as proof that the Irish were nomads, hence barbarians. The English colonists thus developed a social theory that said the Irish had evolved to a level of cultural development analogous to the stage the ancient Britons existed at before they were civilized by the Romans. The Irish should therefore be made subservient to the colonizing English, (the true inheritors of Roman civilization) so that, through subjugation, they could come to appreciate civility and thus eventually achieve freedom as the former Britons had done.7 This belief that meting out punishment to subordinated peoples and individuals “for their own good” will result in their eventual emancipation, while an enduring one, is belied by the historical record which offers more support for the theory that cruelty breeds brutality.
My point is straightforward: the boundaries separating categories of people, and, more importantly, the significance of differences between and among them, are, like culture itself, constructed by people—not given by nature or God—and they change over the course of history as contexts and social relations change. Being created by people, these fluid boundaries can also be challenged, changed and recreated by people over time, as indeed, historically, they often have been.
The story of Aboriginal and non-Aboriginal relations in British Columbia that I am telling here begins with England’s sixteenth-century colonization of Ireland, rather than with Columbus’ landing in the Caribbean, for a number of reasons. First, there is the obvious historical continuity: the British colonized British Columbia, the Spaniards did not, although they “discovered” the territory before the British. Second, the story of the colonization of Ireland tells of recurring hostilities among people of the same “race” and “cultural group.” Rather than illustrating universal, ahistorical and immutable conflict based in “natural” racial or cultural difference, the history of England and Ireland is an example of contests for economic and political domination, and the historical process of “racialization” of the “other” so fundamental to colonial law and cultures.8 The image I wish to evoke is easily recognizable in contemporary debates about critical multiculturalism and post-colonial politics: same-culture colonizers, and same-culture colonized.9
Finally, the appeal of Berger’s choice of Valladolid as the preferred origin story for the history of Aboriginal legal rights in Canada may also be found in its acceptance of the historical inevitability, and hence justification, of European colonial conquest. Its insistence that colonial powers were and are motivated by good intentions and paternalistic—yet humanitarian—concerns for the best interests of the colonized, also reinforces familiar legitimations of colonial dominance.
“All this was done with the best intentions. We can only ask what would have happened had government’s intentions not been good?” Phrases like this have become a common cliché used by the Canadian media to wrap up stories about how another government program, or lack thereof, has been implicated in some tragic chain of events in an Aboriginal community.
Assessing history solely on the basis of the intentions of the powerful, without reference to the consequences for the powerless, is a time-honoured tradition in western thought. Within this framework, the morality of a person’s actions can only be judged on the basis of his or her intentions. This is based on the premise that people should not be held responsible for events beyond their control that contribute to their original actions having unintended consequences. At a very basic philosophical level, this is, of course, only fair. We as individuals are the only ones who know what our intentions are in the first place. Other people know our intentions only when we choose to communicate them. Our intentions motivate us to act in particular ways in relation to others, and our actions have consequences for ourselves and for those others. If our intentions, according to our own account, are honourable, but a person who experiences the consequences of our actions suffers, how is this to be resolved? The issue becomes more complex in real life where the questions “what ought you to know before you act?” and “whose intentions will be acted upon and thus enabled to have consequences?” must also be asked. “Judgment by intention” may be reasonable if “the individual” is considered as an isolated entity, but it becomes problematic when an individual is understood as a human being who lives in relationships with others in society.
The legal answer to this question in the liberal tradition is to grant rights to individuals, thereby hoping to ensure that the limit of one individual’s rights is formed by the boundary at which another individual’s liberty is inhibited.10 In order for groups or collectivities or peoples to have similar protection within such a regime, they must be recognized in law as having legal rights. The history of Aboriginal/non-Aboriginal relations in Canada has been one in which courts and governments have repeatedly refused to recognize Aboriginal rights, while continuing to insist that their actions have been, and continue to be, guided by their “good intentions” in relation to First Nations. This “justification by intention” argument has been repeated by governments for hundreds of years now, despite the fact that the consequences of legally-sanctioned government policies have been, and continue to be, devastating for Aboriginal peoples. The federal government, in particular, has been repeatedly stymied by the unanticipated consequences of their good intentions. An option yet to be tried in the realization of governments’ good intentions towards First Nations is the recognition of Aboriginal title to land, and rights to self-government.