Ordinarily, we think of language as describing a fact or a state of affairs…but a special capacity which is particularly inherent in the law makes things true simply by saying them…. This power is of course the attribute of judges and judicial decisions, among others. The texts of the law are thus quintessentially texts which produce their own effects.
—Sociologist Pierre Bourdieu, 1987, The Force of Law: Towards a Sociology of the Juridical Field.
The early history of British imperialism and its legal expressions constitute the beginning—“the first step in the intentional construction of meaning”—of the story which law itself tells about British and Canadian relations with First Nations in British Columbia. In law’s imagination, a fundamental inequality was evident and established at the first moment of contact. This hierarchical relationship forms the cornerstone of the legal relations between Aboriginal peoples and Canadian governments, and is at the heart of each and every case of land rights litigation. It constitutes the foundational principles upon which the architecture of the Canadian state is built: the ultimate power of the British Crown to assert its will through simply declaring its sovereignty over foreign lands and peoples, supported, if necessary, by armed force; the fundamental relationship of Euro-Canadian domination and Aboriginal subordination;3 and, the protection and advancement of the interests of the wealthy and the powerful classes of colonial society.
In these first moments in the story law tells us—in its assertion of terra nullius—we see the central role played by abstraction and theory in western law and culture: the world is conceived, and acted upon, as if reality can simply be conjured up in whatever form suits the desire of the powerful at the moment.4 Within this ideology, human beings can be considered, legally, not to exist, and can be treated accordingly. At this most fundamental, common sense level, a study of British and Canadian law in relation to Aboriginal title and rights therefore begins not “on the ground,” in concrete observations about different peoples’ diverse ways of life, but rather “in the air,” in abstract, imagined theory. Hovering, like the sovereign, who embodies this abstraction, over the land. In the practices legitimized by this initiatory unleashing of the “will to power” we can see the antiquity of what continues to be a fundamental contradiction, paradox, or deceit in British and Canadian culture: an enduring abstract philosophical commitment to humanism—defined at the most elementary level as the fundamental equality of all human beings—co-exists with an enduring concrete material practice of inequality, and the domination of one group of people by another. It is within this space between the ideal and the real that ideologies of justification are constructed in law, government, imagination, and popular culture. This is the space wherein lies are legitimized and truths silenced. In the histories of colonial laws we can see both the mendacity and the crudeness of the original lie of European supremacy, and the shockingly unsophisticated nature of the edifice built upon it.
This same space between theory and practice, between avowed principles and lived experience, between the letter and the practice of the law, is one of the sites where Aboriginal peoples historically and contemporarily mount their resistance struggles. First Nations repeatedly expose both the failure of colonial law to obey itself in relation to Aboriginal peoples,5 and the presence of systemic racial and cultural bias in the justice system.6 When government policies and practices that systematically discriminate are juxtaposed with the Canadian state’s formal commitment to democratic equality, hypocrisy is revealed.7 In these ways, Aboriginal peoples strike repeated blows to the heart of Canada’s liberal self-image and international personality.
So begins the long dance we call Aboriginal/nonAboriginal relations in Canada: a tango of domination and subordination, of resistance and repression, of compromise and intransigence, of accommodation and denial, of life and death.
Eclecticism
The English, in fact, were eclectic in their choice of aims and methods; at one time or another they tried almost everything…. Late-comers to the New World, they had an abundance of precedents from which to choose. No other colonial empire employed so wide a range of legal devices in establishing settlements, or allowed so many diverse forms of social, religious, and economic organization.
Many factors contributed to this diversity: a habit of eclectic borrowing; differences in time, place, and circumstance; differences in personality and purpose; and the absence of sustained interest and continuous effective control by the central government.
—Historian K. R. Andrews, 1973, in The Westward Enterprise: English Activities in Ireland, the Atlantic and America, 1480-1650.
In Canada, France preceded England in settlement, and entered into treaties with the Micmac, Maliseets, Montagnaix-Naskapi, Huron and Abenaki to secure them as allies against both the Iroquois and the English. Throughout the seventeenth century, numerous agreements were entered into between and among Aboriginal peoples and the French and English. Many of these treaties were verbal agreements, solemnized through assembly and gift exchange, and symbolized by, for example, wampum belts. Other treaties were written in French, and later, English, by colonial representatives, and signed by themselves and by Aboriginal representatives.
Before the arrival of Europeans, different Aboriginal Nations had political and economic agreements with each other regarding trade and commerce, war and peace. These initially served as models for the treaties they entered into with Europeans.8 An important characteristic of early Indian-European treaty-making was that it conformed to Aboriginal political practices more than to European ones, reflecting the real balance of power that existed when Aboriginal peoples formed both the vast majority of the population, and possessed the necessary knowledge and skills to live in the North American environment.9 Current legal and political conflicts revolve around issues of competing interpretations of the intentions of the original treaty-makers, the obligations of governments that arise out of the treaties, and whether these obligations have been honoured or not.
In some cases, Aboriginal peoples, relying primarily on oral histories, argue that their ancestors entered into “peace and friendship” agreements with Europeans that allowed the newcomers certain rights to travel and harvest resources. These treaties, they say, were never understood to be final surrenders of lands, rights or political sovereignty. Rather, they were agreements that would be renegotiated as needed to respond to changing conditions, and renewed regularly through deliberations and ceremonies like the ones from which they had originally emerged.
Against this, the Crown consistently argues that treaties should only be considered within the context of British law, without regard for Aboriginal legal practices at the time the treaties were made. It claims that the treaties are permanent and binding legal land cessions that also yield political sovereignty; and that the money paid to Indians constituted a trade of money for land, not lease or rental fees, or a toll, or a ceremonial exchange of gifts.
A significant challenge to the Crown’s position also emerges from within British and Canadian law and centres on debates about the nature of informed consent. Contractual agreements like treaties are only valid if both parties were fully aware of the terms and the consequences of the contract they entered into. In some cases, Aboriginal representatives are asking courts to consider whether or not Crown representatives made their interpretation of the meaning of treaties clear, verbally, to the Aboriginal peoples they were negotiating with. If not, and if the Aboriginal signatories to the treaties were not English speakers, readers, or writers, what is the legality of those treaties signed with an “X” scrawled next to an anglicized Aboriginal name printed by the governments’ treaty negotiators?
Imperialist Competitions in Terra Nullius
Englishman, although you have conquered the French, you have not yet conquered us. We are not your slaves. These lakes, these woods and mountains, were left to us by our ancestors…they are our inheritance; and we will part with them to none. Your nation supposes that we, like the white people, cannot live without bread, and pork and beef! But, you ought to know, that He, the Great Spirit and Master of Life, has provided food for us, in these spacious lakes, and on these woody mountains.