on behalf of the Gitksan and Wet’suwet’en, and those submitted on behalf of the Crown, was alarming in terms of their respective professional credibility. Furthermore, the Gitksan’s and Wet’suwet’en’s evidence and arguments accorded more obviously with conventional notions of what constitutes facts and logical argument than did the Crown’s. Most importantly, the judge’s crucial legal findings were based on particular interpretations of history and explanations of cultural differences. Clearly, the Crown’s arguments and the testimony of their expert witnesses had appeared the more credible to Chief Justice McEachern. Why? What criteria had the judge used to evaluate the evidence he had heard?
I read more of the transcripts and more of the legal analyses. I found in the texts of the Delgamuukw v. R. case an intense debate not only about Aboriginal land rights but also about moral visions, social theories and political strategies. In presenting their cases, the “Plaintiffs” and the “Defendants” disputed how stories would be told about the past, present and future of British Columbia; and about who could tell them. Above all, they competed for the judge’s verdict: whose account would the law declare to be “the truth”? Whose story would have an army at its disposal?
I decided to write my doctoral dissertation on the Delgamuukw case. I began with law’s history.
1. Glavin, Terry 1991: B3.
2. Palmer, Vaughn 1990, quoted in Tennant, P. 1990: 237.
3. Previously, the First Nations of the Nass Valley of British Columbia were called “Nishga.” Currently, this First Nation spells its name as “Nisga’a.”
4. For a personal account of one lawyer’s experience of this event, see Pinder, Leslie Hall 1991.
5. Empiricism is a theory of knowledge usually associated with the natural and physical sciences. Its basic tenets are that all “factual knowledge” originates in observation and experience, and can be falsified by observation and experience. “Empiricism” is usually understood as being opposed to other theories of knowledge that take greater account of the way social-cultural context and the subjectivity of the researcher and the reader can shape the meanings derived from observation and experience.
6. Canadian Press 1991: B3.
7. Ibid.
8. The literature on this subject is huge, multidisciplinary and growing rapidly. Texts that have become classics in the study of European constructions of “others” include: Asad (ed.)1973; Clifford and Marcus (eds.) 1986; Deloria 1969; Fabian 1991; Fanon 1963; McCrane 1989; Trinh T. Minh-ha 1989; Said 1978, 1992; Spivak 1988; Todorov 1982; West 1993; Wolf 1983.
9. Tennant 1991: 76.
10. See Miller (ed.) 1992.
11. An oxymoron is defined as “a combination of contradictory or incongruous words (as cruel kindness),” Webster’s New Collegiate Dictionary, 814.
PART II
TERRA NULLIUS
(UNOCCUPIED, EMPTY LAND)
Chapter 3: Cultures Similar and Different
Law is essentially historical, not just in the sense that the life histories of legal systems can be chronicled, but more importantly in the sense that it is characteristic of law to anchor justification to the past. Time is the soil of the lawyer’s thinking.
—Philosopher Gerald Postema, 1991, On the Moral Presence of Our Past.
Creating Race in the Interests of Empire
“The point at which a storyteller chooses to begin,” Edward Said wrote, “is the first step in the intentional construction of meaning.”1 The Gitksan and Wet’suwet’en begin their story—locate their origins as sovereign peoples with title and rights to specific lands—in “time immemorial,” when the Creator placed them on specific territories, and charged them with the responsibility of looking after the sentient beings who lived in and from and with these lands. They adopted the legal term, “time immemorial,” as a way of representing and translating—communicating—to English language courts their belief that they have been there since the beginning of time.
Chief Justice McEachern rejected what he considered the “non-specific” nature of Gitksan and Wet’suwet’en history, writing in his Reasons for Judgment, “I am not able to conclude on the evidence that the plaintiffs’ ancestors used the territory since ‘time immemorial’ (the time when the memory of man ‘runneth not to the contrary’). ‘Time immemorial,’ as everyone knows, is a legal expression referring to the year 1189 (the beginning of the reign of Richard II), as specified in the Statute of Westminster, 1275.”2
Another common starting point for legal historians to begin their rendition of the story of European/Aboriginal relations in the Americas is the year Europeans call 1492: when Columbus sailed the ocean blue. The controversies that followed Columbus’ arrival in the Caribbean concerning the moral and political legitimacy of conquest and colonialism culminated in the Conference of Valladolid. In 1550, King Charles V of Spain brought together clerics, lawyers and other scholars in the Spanish city of Valladolid and asked them to address the question of whether Indigenous peoples were part of the same human race, or species, as Europeans; and, depending on the answer to this fundamental question, how they should be treated by European colonial powers. The king asked a philosopher, Juan Gines de Sepulveda, and a Dominican monk, Bartolomeo de Las Casas, to answer the question: “How can conquests, discoveries and settlements in the king’s name be made to accord with justice and reason?” Both Sepulveda and Las Casas agreed that all human beings, including Indigenous peoples, were of one species. Both also agreed that it was the duty of Europeans to convert all the world’s peoples to Christianity, disagreeing only on method and rationale.
Sepulveda argued, relying on Aristotle, that some races are inferior to others, and that some people are born to slavery. By this reasoning, Europeans, a superior race, were justified in subjugating Indigenous peoples, an inferior race. Sepulveda used stories of cannibalism as evidence of the alleged inherent inferiority of the Indigenous peoples of South America. The technological achievements and complex social organization of the Aztecs and Incas, then as obviously sophisticated by prevailing European standards as they are universally acknowledged to be now, were absent from Sepulveda’s analysis. Las Casas argued, on the other hand, that these “Indians” possessed an evolved culture, with social, economic and religious institutions. He claimed that Indigenous peoples were rational beings, fit to be compared to the Greeks and Romans. Las Casas did not argue that Spain should not conquer the Indigenous Peoples of the Americas, but rather that its only justification for doing so should be to Christianize them. He was distraught that the cruelty of the conquistadors was inhibiting his mission of conversion.
The choice of the conference at Valladolid as the origin story of European/ Indigenous relations in America, has been popularized in Canada by Judge Thomas Berger, a long time supporter of Aboriginal rights, and well-respected for having headed a public inquiry into the potential impacts of a proposed oil and gas pipeline on the Aboriginal peoples of the Canadian north. In his book, A Long and Terrible Shadow: White Values, Native Rights in the Americas, 1492-1992, Berger writes of the deliberations at Valladolid: “Here was the very debate that I heard centuries later in the Mackenzie Valley Pipeline Inquiry.” The “Berger Inquiry” broke with the traditional colonial reliance on non-Aboriginal experts that had historically characterized such processes, and encouraged and respected the participation of Aboriginal communities in its proceedings. The inquiry’s findings and recommendations supported the Aboriginal peoples’ opposition to the pipeline and their aspirations for local control. Berger proposed a ten-year moratorium on resource development to allow time for environmental and social impact studies to be completed, and for First Nations to consolidate their vision of self determination. (As it turned out, the oil and gas companies eventually abandoned their plans to build the pipeline for “economic reasons”: it became an unprofitable proposition.)
The