i

ARCHIVING MEMORY: EXPLORER AND TRADER ACCOUNTS AS EVIDENCE IN ABORIGINAL RIGHTS AND

TITLE LITIGATION

by

Luis Roberto Campos

A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Sciences

Graduate Department of Law University of Toronto

Copyright by Luis Roberto Campos (2014)

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Title: Archiving Memory: Explorer and Trader Accounts as Evidence in Aboriginal Rights and Title Litigation

Degree: Doctor of Juridical Sciences (S.J.D.) Year: 2014 Department: Faculty of Law, University of Toronto Name: Luis Roberto Campos

Abstract This project examines the extensive use of explorer and trader narratives as evidence in

aboriginal rights and title litigation. It is difficult to reconcile the conflicting—and often

extreme—interpretations of these texts as mostly imaginative literature, a view

increasingly held outside of the law, and as authoritative evidence, a position adopted in

legal proceedings. Generally, my work reconsiders epistemic practices in aboriginal

rights and title proceedings. Specifically, it turns to a literary framework to reflect on the

empirical value of historical narratives. Additionally, by utilizing the concept of archive

as a critical tool, my work also seeks to comprehend the law’s continuing predilection for

these texts. Ultimately, while evidential proceedings are generally regarded as oriented

toward generating trial knowledge, I argue that in fact the substantive law has driven

courts to the imperial texts and has, in effect, constructed the conditions of their necessity

and reliability. Both the loosening of evidential rules—to create a story-telling space—

and the unique criteria-legal tests has contributed to their evidential hegemony, often at

the expense of aboriginal histories, which are regarded as anthropological curiosity.

Significantly, this thesis does not suggest the imperial narratives have no empirical or

evidential value. It does, however, urge trial actors to account for their limitations. And,

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by doing so, a broader objective may be served: a fresh examination of the current

substantive criteria of aboriginal rights and title law, particularly as it impacts evidential

parity between the aboriginal and imperial stories.

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Acknowledgement The completion of this thesis would not have been possible without the support of my

wife and children. Thank you, Cecilia. I will never forget your unending patience and the

enormous sacrifice made on my behalf. Gaby, Carlos, and Paola (my little treasures of

joy and inspiration): remember that with persistence, all goals are achievable. Special

recognition also goes to Audrey Macklin who has believed in the merit of my work. I will

always value her as a mentor and friend. Finally, I should acknowledge my committee

members, who have provided encouragement, as well as timely, thoughtful, and

insightful comments and guidance. Thank you all.

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Table of Contents

Introduction…………………………………………………………………………..........1 Chapter One, Aboriginal Rights and Title in Canada, the Substantive Problem of Proof……………………………………………………………………………………...17 Chapter Two, Factual Story-Telling in the Admission of Historical Evidence……………………………….…………………………………………………68 Chapter Three, The Archive at Trial……………………........……………………………………………………..……112

Chapter Four, Ahousaht v. Canada (Attorney General), Testing the Explorer Stories in Court……………………………………………………………………………………...148

Final Thoughts (Conclusion).…………………………………………………………..185

Appendix A…………………………………………………………………………….194

Introduction

Tales of discovery are commonly used as evidence in litigation over territory.1 Contemporary

land and frontier disputes have demanded an historical accounting of the physical space, which

has been met by turning to the literature of exploration. Evidential proceedings, specifically,

have included various forms of “historical” narratives, including medieval sagas, chronicles,

explorer journals and correspondence, travelogues, reminiscences and memoirs, sketches, and

nautical logs and charts. In court the historical narrative is at its fullest and most powerful, as its

perceived facticity tends to invite passivity, if not silence, in the institutional reader (litigants,

experts, and judges). What courts have not accounted for, however, is the possibility that such

literature may in fact harbour fictions in the sense that its authors “set out to encounter real

knowledge along imaginary roads.”2 Or perhaps they may constructed imaginary knowledge on

real roads.

Exploration accounts share several features, among them a common class of authorship: the

questing adventurer-interloper operating in “unfamiliar” spaces, particularly in zones of contact

populated by indigenous peoples. Their authors were typically hardened imperial or colonial

field agents charged with conducting visual reconnaissance, gathering data, and, above all,

documenting observations and experiences. They reported on geographic, climactic, and

topographic themes, as well as relating the conditions and activities of local populations—many

of the accounts having an eye toward resource valorization and commodification. The legal trial

1 Courts consider the narratives of explorers, traders, and early travelers as eyewitness testimony. These texts contain and convey assertions to knowledge of past territorial conditions and aboriginal activities. 2 Michael Wood, Literature and the Taste of Knowledge (Cambridge: Cambridge UP, 2005) at 190. In addition, the explorers’ writings are never purely descriptive: they comment, opine, and interpret and define patterns of behaviour [in groups] and social organization. By using fictions as a descriptive term, I do not mean to insinuate that the explorer writings are entirely fictitious, or that they are compilations of mistruths. Rather, literature generally, and fiction specifically, are highly imaginative and expressive genres of writing and use various narrative devices and artifices. The comparison may be apt. In the eighteenth and nineteenth centuries parallels between fiction and history were discussed and debated among novelists and critics. Both genres could be concerned with describing and moralizing about human behaviour and social institutions. In making the comparison, “it is important to consider the use each genre makes of the other,” as well as verisimilitude, probability, and the requirement that readers “suspend their disbelief.” Morroe Berger, Real and Imagined Words: The Novel and Social Science (Cambridge: Harvard UP, 1977) at 162.

has appropriated these narratives for their perceived evidential value. Litigants and courts have

deemed the writings to be necessary as evidence and their authors to be reliable witnesses of

what transpired on disputed lands. 3 It is not surprising then, that for legal tribunals the stories of

exploration remain relevant, indeed essential for interpreting and adjudicating the past.

Examples of their use abound.

In the 1933 Eastern Greenland case, the Permanent Court of International Justice reached far

back in time and regarded the medieval saga as evidence of ancient actions and transactions

connected to Greenland. During the proceedings, the court addressed territorial and historical

issues, including the legal status of Greenland prior to 1380. The tribunal surveyed the early

history of Greenland and, in doing so, relied on the 13th century Icelandic saga of

chieftain/politician, Sturla Thordarson. The court noted, “the historian, or saga writer, Sturla

Thordarson tells (about 1261) how the men of Greenland undertook to pay tribute, and how for

every man murdered, a fine should be payable to the King of Norway whether the dead man was

a Norwegian or a Greenlander and whether killed in the settlements or in the districts to which

people went for the summer even as far North as under the Pole Star”4

The proceedings of modern ICJ disputes connected to territorial boundaries and sovereignty in

former colonies also rely on explorer narratives. In its legal claim (1997) to disputed territory,

Namibia extensively cited Dr. David Livingstone’s Missionary Travels and Researches in South

Africa (and accompanying map), as well as F.C. Selous’ work, A Hunter’s Wanderings in Africa

published in 1895, and Dr. Benjamin Bradshaw’s Notes on the Chobe River, South Central

Africa published in 1881 (in the Proceedings of the Royal Geographical Society).5 Beyond

citation by the litigants, the court incorporated these texts into its opinion.

3 Today, legal tribunals mostly rely on subsequently published versions of explorer journals and writings. In the eighteenth and nineteenth centuries, third parties “worked over” the original manuscripts, mediating, editing, and even ghost writing narratives, converting then into publishable form for reading audiences. 4 As Audrey Macklin has pointed out, the Icelandic saga is the kind of narrative that straddles two genres. The historical circumstances indicate the storytellers were Icelanders who had settled in Greenland (settlers of European stock). The quote here clearly reflects a tension between the people existing at the margins of a Norwegian domain. On the one hand, the Iceland saga relies on the oral tradition passed from one generation to the next. Because of the oral storytelling, the saga seems like an aboriginal evidential form. However, as noted by the PCIJ, the author here is not an indigenous person and is identified as a historian and writer. Moreover, the Icelanders traveled west in search of new lands to inhabit. They were thus explorers. Thordarson’s writing was subsequently transcribed by a later generation and now constitutes a part of an extensive body of early Icelandic literature. 5 Memorial of the Republic of Namibia, Case Concerning Kasikil/Sedudu Island (Botswana/Namibia)(28 February 1997) at paras 68-78 (ICJ), online: .

Similarly, in 2002, the Republic of El Salvador submitted a petition to the ICJ for “Revision of

its Judgment” (the original 1992 judgment favored Honduras in a frontier dispute). El

Salvador’s new petition was founded on the “discovery” of a different version of the Carta

Esferica6 and report of the 1794 El Activo expedition. The Court observed, “the 1992 Chamber

paid particular attention to the chart prepared by the captain and navigators of the [Spanish]

vessel El Activo around 1796, described as a Carta Esferica, which Honduras had found in the

archives of the Madrid Naval Museum. That Chamber concluded from the foregoing that ‘the

reports of 1794 expedition and the Carta Esferica leave little room for doubt that the river

Goascoran in 1821 was already flowing in its present day course.’”7 To legally justify new

proceedings, El Salvador claimed to have uncovered a more accurate version of the Carta

Esferica in the Ayer Collection of the Newberry Library in Chicago.8 Despite the apparent

relevance of the archival discovery, the court ultimately rejected the claim.

The use of explorer literature is not limited to the international arena, as domestic land disputes

involving aboriginal parties have also included ample use of these types of narratives. Australian

and Canadian jurisprudence best exemplifies their prominence. Australian litigants often turn to

the pastoral journals of early pioneers in sorting historical facts in native title disputes.

Alexander Reilly questions their legal value and cultural significance: “The centrality of the

pioneer in Australian history is perpetuated by the authority granted pioneer histories in native

title litigation.”9 Reilly cites Australia’s Yorta Yorta case as a prime example, critically

underscoring how the Federal Court of Australia turned extensively to Edward Curr’s

Recollections of Squatting in Victoria in order to re-construct events in disputed areas.

The Canadian courts have also made prodigious use of the explorer and traveler writings. Justice

Vickers in a recent Canadian case from British Columbia observed: “I understand my task is to

6 The Spanish term Carta Esferica refers to a navigational chart or log, particularly as produced during the era of Spanish exploration and colonization. The carta esferica is not only a graphical depiction, but also a textual description of geographic and maritime spaces. 7 Judgment of Court, Application for Revision of the Judgment of September 11, 1992 in the Case Concerning the Land, Island, and Maritime Dispute El Salvador/Honduras: Nicaragua Intervening (18 December 2003) at paras 41-55 (ICJ), online: . Notably, the courts relied on various colonial narratives, including, for example, Archbishop Pedro Cortes y Larraz, Descripcion Geografico-Moral de la Diocesis de Goathemala, Biblioteca de Goathemala, Sociedad de Historia y Geografia de Guatemala, vol XX, Tome 1 (1958). Travelogues are also present in the proceedings, including: Dunlop, Travels in Central America: The Last Eruption of Mount Cosiguina (1846) at 15-17. 8 Both Cartas Esferica documented the same journey, but the Salvadorans claimed they were different as to “style, presentation, and quality, as well as content and geographic place names” (Ibid at 48). 9 Alexander Reilly, “The Ghost of Truganani Use of Historical Evidence as Proof of Native Title” (2000) 28 Fed L Rev 453 at 462.

be fair and try to avoid an ethnocentric view of the evidence.”10 Yet, the final opinion drew

heavily from the Hudson Bay Company (“HBC”) writings, ranging from narratives that suggest

the company’s interest in native resources-fauna: “The Chilkoetins are from the head of a river

[the Chilkotin]…they speak of their Country as plentifully stocked with all kinds of

animals…”11 to those accounts that would seem to provide little material that would satisfy (or

refute) fulfillment of substantive legal tests, including the following from Robert Homfray’s A

Winter’s Journey in 1861: “The Indian then slackened his hold, lifted up my arms, looked into

my mouth, to see if I were made like himself, as he had evidently never seen a white man

before.”12 These are just two examples of the extensive use of explorer and trader narratives in

the trial records. Indeed, the parties’ evidential binders and the appendices to court opinions

often resemble bibliographies of early Canadian exploration literature.

* * *

I am intrigued by the comfort with which colonial and imperial stories are recycled, re-told and

occasionally re-fashioned in Canadian aboriginal rights and title litigation. The law, unlike other

disciplines, has accepted explorer accounts as generally unproblematic. The texts are perceived

to yield sufficient descriptive accuracy to support (or deny) legal and factual claims of historical

events and circumstances. The textual production of explorers and traders has also drawn the

interest of historians, geographers, ethnographers, and literary scholars. These disciplines,

however, including in the areas of post colonial and cultural studies, have sharply questioned the

objectivity and factuality of exploration and discovery narratives. Clearly the law’s

methodologies and objectives differ from those of the social sciences and humanities, which will

account for the often radically divergent view. The law desires to simplify complex factual

situations to intelligibility and proceedings to predictability.”13 It ultimately seeks to fashion a

resolution based on the available data.14 Too much skepticism or excessively questioning the

predominant evidential body (and only writings available) is the kind of endeavour to be

avoided if disputes are to be resolved with some measure of finality. Whether motivated by

complacency or resignation, the resulting passivity is unfortunate. Despite the law’s

10 Tsilhqot’in v British Columbia, 2007 BCSC 1700 at para 196 [Tsilhqot’in] 11 From W Kaye Lamb, ed, The Letters and Journals of Simon Fraser (Toronto: Pioneer Books) 124-125, cited in Tsilhqot’in at para 231. 12 Ibid at para 265. 13 Kevin M Crotty, Law’s Interior, Legal and Literary Constructions of the Self (Ithaca: Cornell UP, 2001). 14 See comments of Justice Binnie in R v Marshall [1999] 3 SCR 456 at paras 36-37.

acknowledged epistemic limitations and litigation’s practical objectives, it is difficult to

reconcile the conflicting—and often extreme—interpretations of these texts as mostly

imaginative literature, a view increasingly held outside of the law, and as factual evidence, a

position adopted in legal proceedings.

This thesis more broadly considers the Supreme Court’s mandate for the accommodation and

more equitable treatment of aboriginal perspectives in rights and title litigation. Despite the

Court’s favourable rhetoric, the imperative’s implementation in the trial courts remains

uncertain. For example, treating the spoken history with the same level of credibility as the

written history continues to preoccupy, perhaps even confound, Canadian courts. Unlike

aboriginal narratives, the historical narratives inspire a different set of assumptions: “try as one

might, it is difficult to read these [written words] and not see in them events as they really

were.”15 Investigating questions of evidential parity, I believe, begins by re-examining and

unsettling the historical record so that both the written and spoken histories may have a more

level starting point. My project thus interrogates the conditions and circumstances that construct

the authority of colonial and imperial accounts in litigation. It seeks an accounting of these

stories as evidence, while (as expressed by M. Valverde) “putting in question our [white

Canadian] knowledge of ourselves, our institutions, and our rules.”16 In other words, it

examines those assumptions that impact, perhaps corrupt, fact-finding in aboriginal rights and

title cases. Although inspired by a body of critical scholarship, my work maintains a legal

footing, as it consistently reverts to the legal cases and legal framework, particularly the

concepts of evidential necessity and reliability, to question the hegemony of explorer and trader

narratives.

The colonial and imperial accounts are not easily classified or “pigeonholed” by form or genre.

One of the more well-known and oft-cited monographs treating these writings is Mary Louise

Pratt’s, Imperial Eyes, Travel Writing and Transculturation.17 Pratt provides extended analysis

of the genre, which she has termed travel writing. She attempts to categorize travel narratives

under two sub-headings: the accounts written by explorers and the writings of travelers.

Explorers undertook information gathering and their writings aspired to scientific status, while

travelers, on the other hand, adopted a more sentimentalist position and dramatized their own

15 See comments of Justice Vickers in Tsilhqot’in, supra note 10 at para 203. 16 Mariana Valverde, “‘The Honour of the Crown is at Stake’: Aboriginal Land Claims Litigation and the Epistemology of Sovereignty” (2011) UC Irvine Law Review 955 at 956. 17 Mary Louise Pratt, Imperial Eyes, Travel Writing and Transculturation (New York: New York, 1992) [Pratt].

personal experiences. The former aspired to observational detachment, directing their view

from above, while the latter made no issue of it. The explorer writings, like those that dominate

aboriginal rights litigation, do not fit neatly into categories (a point that Pratt similarly

recognized in subsequent essays).18 Indeed, the explorer literature now embedded in Canadian

litigation seems to incorporate elements of both sub-genres identified by Pratt, as it can be

highly expressive (by describing adventure and adversity in compelling, occasionally emotional

language) and yet seeks to firmly keep an empiricist and positivistic posture (by adhering to

institutional or patron’s rules of reporting and writing). Simply, as I will detail in this project,

the writings are complex; they are far from being simple objective renderings of North

American landscape and aboriginal life.

The collection of explorer literature, at least as treated in this thesis, is generally comprised of

administrative documents tied to the employees of the Hudson’s Bay Company, as well as the

journals, reports, logs, and correspondence of early explorers, surveyors, missionaries, and

pioneers to British North America (early Canada). The stories can be fascinating for the

dramatic events related, which continue to captivate modern audiences intrigued by their tales of

adventure, and by their seeming utility as a window to the past. In this thesis I have designated

these writings alternatively as explorer and trader narratives, literature, or stories, or simply the

imperial or explorer archive.19 Explorer archive is particularly compelling as a descriptive term

because early explorers and exploration evoke romance and adventure, which helps to account

for their allure, while also claiming authority in their imagined archival characteristics. In other

words, the explorer archive, like the individual stories, simultaneously enchants and reports. It

merits emphasis, however, that the explorer literature used in court proceedings is not archival,

but rather, it is mostly a body of edited accounts.

The explorer archive’s sources and authors deserve further elaboration. My primary emphasis is

the journals of early maritime explorers to North America’s Pacific West, geographic areas

today recognized as mainly coastal British Columbia. The most prominent author in this group

is Captain James Cook, but also includes other historical luminaries such as George Vancouver,

names familiar to most Canadians. The explorer narrative is specific to the late eighteenth

18 Mary Louise Pratt, “Scratches on the Face of the Country; or What Mr. Borrows Saw in the Land of the Bushmen,” in Henry Louis Gates, Jr, ed, Race, Writing and Difference (Chicago: U of Chicago Press, 1986) at 119-143. 19 I am not the first to use the term imperial archive, as this was the title of Thomas Richard’s 1993 monograph, The Imperial Archive, Knowledge and Fantasy of Empire (Verso: London/New York, 1993).

century and is not limited to British imperial exploration, but also includes the writings of

Spanish explorers, who generally pre-date British incursions to the Pacific Northwest. Indeed,

the translated journals of the Spanish navy are a compelling evidential form in cases originating

in coastal British Columbia.20 Significant attention is also drawn to the later journals and

correspondence of the “officers and gentlemen” of the Hudson’s Bay Company, who operated in

the interior areas of North America. The HBC traders worked throughout the northern realms of

the continent, including the interior of British Columbia (Columbia Plateau), an area subject to

much modern litigation. Contemporary courts that rely on HBC documents mostly address the

HBC writings of the 1820s to 1840s, at a time when the HBC undertook expansive projects of

commerce and interaction with indigenous populations. Notably, the HBC literature tends to

encompass more than voyage journals. As I will detail in this thesis, the HBC systematized the

writing enterprise, creating various reporting and documentary taxonomies and requiring strict

adherence to its prescribed rules by its officers, gentlemen, and servants.

The explorer literature is possessed of substantial cultural purchase. I would argue that although

constructed by their authors to validate an enterprise of territorial dispossession and deployed by

modern litigants to support legal argument of continued dispossession (or reclamation, as in the

case of aboriginal litigants), the explorer and trader stories also evoke the birth of Canadian

nationhood. Because they purport to document events in the field or on the ground, as the early

Canadian drama unfolded, they can be conceived as national, indeed cultural, patrimony. They

tell the story of Canada’s founding and—to some extent—its Anglophone identity. Today,

original manuscripts or earlier published versions of these documentary collections reside in or

are associated with public institutions, such as libraries (specifically, rare book rooms or special

collections), museums, as well as public and private archives. They are guarded, occasionally

displayed, and mostly venerated. These collections of early Canadiana, because of their

symbolical potency, can also be said to constitute a mythical archive representing a socially

imagined beginning, that is, where history begins for the Canadian people and for institutions,

like common law courts, that continue to drive and define Canadians’ social relations.

The use of the archival nomenclature is useful for several reasons. Whether genuinely archival21

or not, and they mostly are not, the early accounts have a contemporary association to archival

20 See Ahousaht discussion in Chapter 4. 21 The idea of what may be genuinely archival is not without controversy, but here I generally mean a primary document, in the sense that historians or archivists may use the term.

spaces, a supposition commonly voiced in the courtroom and legal record. I am also interested

in the denotation because the archive is taken to be a pure epistemic site for both law and

history. Both disciplines, as I will subsequently explain, share certain intellectual inclinations

and aspirations that rely on the presumed authority of archival materials.22 Moreover, the

archive is a provocative concept as it is increasingly seen “as the site where social memory has

been (and is) constructed—usually in support, consciously or unconsciously, of the meta-

narratives of the powerful . . .”23 In litigation the recurring theme and emotional attachment to

archive or knowledge repository functions as a powerful descriptive aid and aesthetic device. I

would argue that the concept of archive, as a descriptive tool for my work, deepens and

broadens discussion surrounding the judicial management of the explorer and trader stories at

trial.

Although my thesis considers the state of aboriginal rights and title litigation, fundamentally this

thesis treats how we speak and deploy evidence. Professional (lawyers and the judges) discourse

favours a jargon centred on its rules and doctrine. It tends to frame its inquiries in an auto-

referential, well-bounded, and formalistic manner. However, it is perhaps more the theory than

the practice of law that treats it [law] as an entity describable in its own terms.”24 And although

members of the legal academy may occasionally demonstrate willingness to escape the confines

of its internal discourse and engage the theoretical or the extra-disciplinary, they typically do so

reluctantly and in a limited manner to provide clarity to rules and procedures, to fill in the blank

spaces for which the rules may not have an answer.25 Explaining the evidential value of explorer

narratives as an instrument within the law’s knowledge system is not necessarily amenable to an

explanation in law’s terms. Sated differently, the extensive use of a form of literature is not

easily described by recourse to traditional legal doctrine. Hence, my choice here is to engage the

legal cases and evidential doctrine by reaching outside of law’s methodological and conceptual

22 The archive is where historians conduct their business of information gathering. The library (and increasingly, the database) is where the lawyer seeks earlier written material (precedent) to support or defend legal claims. Facts for the historian, as for the lawyer, have to be supported by convincing evidence, which is often located in the documentary repository. See Barbara J Shapiro, “‘Fact’ and the Proof of Fact in Anglo-American Law (c. 1500 -1850)” in Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey, eds, How Law Knows (Stanford: Stanford UP, 2007) at 53-55. Shapiro describes the parallels and intersection between the respective disciplines in the early modern period. She notes that many early modern historians were legally trained, citing the examples of Sir Thomas More and Sir Francis Bacon. 23 Terry Cook, “Fashionable Nonsense or Professional Rebirth: Postmodernism and the Practice of Archives” (Spring 2001) 51 Archivaria 14 at 27. 24 Crotty, supra note 13 at 87. 25 Ibid at 88. Crotty states that legal theory mainly seeks to “identify what makes law distinctively itself.” In this sense, it looks to other disciplines to set itself part and define the essence of law’s uniqueness.

boundaries to depict judicial values and strategies, both deliberate and unintentional.

At this juncture, I should dispel a common misconception and underscore that the explorer

archive is not a site exclusively accessed by non-aboriginal litigants. Aboriginal parties as well

as provincial and national governments and private commercial interests have appropriated and

deployed the explorer narratives as evidence. The reader should disincline him or herself to

believe that aboriginal parties rely on their oral traditions and histories, while the government

depends on historical documents to assert or defend claims. Aboriginal litigants frequently cite

to and defend the journals of imperial and colonial actors as proof of how their ancestors related

to land and its resources, while Crown or provincial authorities may occasionally be forced into

having to discredit these historical documents. The recent Ahousaht case, which will be

discussed at length in chapter four, is a notable example of this kind of discursive, evidential

code switching.

Because much has been written about aboriginal rights and title litigation, I should delineate

additional parameters to my work. The thesis will not substantively engage issues connected to

aboriginal oral histories and traditions as evidence. There already exists a robust and valuable

body of work in this area. Accordingly, my thesis does not treat judicial ambivalence, anxieties,

or misapprehension of unique forms of aboriginal evidence26—except as necessary to

distinguish and describe the evidential favour accorded to explorer and trader narratives. The

power of any archive is witnessed in the act of inclusion or, alternatively expressed, in the

authority to exclude or suppress non-conforming forms and ideas. Accordingly, I cannot entirely

disengage from aboriginal traditions and histories when discussing how and what is admitted in

the judicial record.

Moreover, although judicial management of historical evidence is my subject, my project does

not focus on the role of historians in rights or title litigation. Others (such as D.J Bourgeois,27 as

well as A.J. Ray28 and G.M. Dickson and R.D. Gidney, as pointed out by my committee

26 Nor do I attempt to rehabilitate this form of evidence, except indirectly, to the extent that de-monumentalizing the historical record (exposing its propensity for myth-making) may also prompt reconsideration of the oral tradition. 27 DJ Bourgeois, “The Role of the Historian in the Litigation Process” (1986) 67 Canada Historical Review 195. 28 AJ Ray, “Creating the Image of the Savage in Defence of the Crown: The Ethno-historian in Court” (1990) VI Native Studies Review 13.

member Mark Walters)29 have done extensive work in the area. In aboriginal rights and title

claims, it is common for historians, as well as ethno-historians and anthropologists, to be called

upon to appear as expert witnesses and interpret the historical and archival documents. Scholars

are asked to provide meaning and context, as well as to opine about threshold reliability, all of

which aids judicial interpretive efforts, while providing cover to a judiciary seeking to avoid the

impression of a simplified “cut and paste” version of history.30 Simply, history and historians

are needed to support, oppose, and adjudicate aboriginal title; they aid the law’s efforts to

uncover and reveal the past—to the extent that it such an undertaking is possible. Therefore,

allusion to the role of historiography and its practitioners in accrediting or dismantling the

explorer archive is not entirely absent from my work.31

* * *

I have organized this project into four chapters. Chapter one surveys the principal cases of

aboriginal rights and title. It describes the current state and content of the substantive law, as

well as providing some limited political context for how this law has developed.32 In this

chapter, I identify the problem—perhaps more a symptom—around which my thesis is

organized: the excessive evidential privilege assigned by courts to the journals and

correspondence of explorers, traders, and early travelers, an issue which also undermines the

Supreme Court’s imperative for reconciliation and evidential parity. I pay particular attention to

substantive criteria and evidential burdens borne by aboriginal claimants, compelling reliance on

explorer and trader narratives and simultaneously building an unbalanced model for evidential

necessity. Moreover, the chapter addresses the unique evidential discourse that has emerged in

rights and title cases, both at the Supreme Court and Trial Courts levels. Although mainly

descriptive, in this chapter I also argue that the jurisprudence and discourse reveal the judicial

fetish, which monumentalizes imperial and colonial history, its actors, and its texts, and which

also creates the condition of its indispensability to evidential proceedings.

29 GM Dickson & RD Gidney, “History and Advocacy: Some Reflections on the Historian’s Role in Litigation” (1987) 68 Canada Historical Review 576. 30 R v Marshall [1999] 3 SCR 456. 31 Alex Reilly & Anne Genovese, “Claiming the Past: Historical Understanding in Australian Native Title Jurisprudence” (2004) 3 Indigenous LJ 19 at 20. Reilly and Genovese have spoken to the Australian context, noting that debates over historical methods among historians have become more public in light of litigating land disputes and Australia’s colonial past. 32 This context is principally Canada’s participation in international legal conventions and instruments that deal with aboriginal rights.

Chapter two more narrowly focuses on law’s idea of fact-finding and the reality of evidence in

aboriginal rights and title cases. This chapter employs both theoretical and doctrinal approaches

to better comprehend how courts process facts and admit evidence into the record. First, it

examines the practice of fact-finding: the mechanics of modern evidential law, mainly the

systems of rules and principles, and their erosion in rights and title cases. I probe law’s

traditional account regarding verity in fact-finding, as well as the intellectual bases for factual

inquiry.33 Against this background, the chapter turns to literature and its models and modes of

criticism to reveal the similar inventive, and potentially unreliable quality of the explorer

narratives. It introduces the problem of the historical record. As literature, the explorer accounts

invite imaginative and emotional readings in court. I argue that the institutional strategies to

facilitate the admission of such a record has fashioned a privileged space for story telling and

has allowed the intrusion of questionable narratives (both the literal as well as figurative types).

In sum, the explorer archive may be overvalued as empirical evidence and may undermine the

trials’ determination of what really happened.

Chapter three turns to an extended examination of the concept of archive, both as a trope for a

“truth apparatus,” as well as an aesthetic device for understanding the fetish for historical

evidence.34 The archive helps reconcile the conflict between the evidential need for veridical

accounts, on the one hand, and the limited availability of reliable evidence, on the other. The

archive also satisfies the cultural desire for our foundational stories. I argue that the mere idea of

archive—and its associative capacity—impacts how litigants utilize and courts receive and

weigh explorer and trader stories. Chapter three considers the deeper institutional regard, or

aesthetization, for these stories, that is, the unconscious and sensory-driven response that

influences how we react to and appreciate evidence. This chapter draws on alternative

conceptualizations of the archive to suggest three archival modes that impact management of the

explorer archive: (1) the material, tangible archive; (2) the metaphorical or associative power

of the archive; and (3) mimetic desire to adopt and perform archival practices in non-archival

settings (legal proceedings, for example). Against this background, the chapter considers three

lines of argument. First, the idea of explorer and trader journals insinuates an appealing form

and physicality. Second, this archival aesthetic conjures the potency of the historical record as

33 The “process of legal proof is inherently an epistemic endeavour—to arrive at true and justified conclusions based on evidence.” See Michael S. Pardo, “Testimony” (2007) 82 Tulane Law Review 119, 123. 34 Discussion of the quest for a truth apparatus, through the archive, is contained in Craig Robertson, “The Archive, Disciplinarity, and Governing: Cultural Studies and the Writing of History” (2004) 4 Cultural Studies and Critical Methodologies 450.

an imagined space of authority and pure knowledge. Third, more dynamic, process-oriented

theories of the archive also implicate a more profound commitment by courts to undertake their

own process of archivization. The courts’ emulation of archival practice ultimately suggests that

the archive—and social memory contained within—is not passive, but is actively shaped by the

expectations and actions of litigation’s actors—judges, litigants, and experts.

Chapter four focuses on The Ahousaht v. Canada, a recent case from the Supreme Court of

British Columbia. This case contains extensive discussion of historical evidence and thus

affords a ripe opportunity to apply and develop arguments I have described in chapters two and

three. The chapter closely probes the court’s textual production: the record of proceedings,

including transcripts of evidential hearings, the mid-trial ruling on evidence, and the final

opinion of the trial court. The record confirms the perception of explorer and trader stories as

archival, as primary evidence. It further illustrates how the legal test for aboriginal rights

creates the imperative for European spatiality and for these eyewitness accounts, producing

belief of their inevitable indispensability to fact-finding. Moreover, the court’s evidential

approaches reveal the employment of unique fact-finding strategies and discursive techniques

that facilitate and indeed ensure the admission of historical records—despite judicial

reservations about its interpretive capacity and disciplinary limitations. The court finds itself in a

difficult situation since the proceedings require facts to be found and the substantive law drives

a preference for the historical record. Ahousaht illustrates the predicament faced by courts in

aboriginal rights and title litigation.

* * *

Underlying my thesis is the premise that in court faulty assumptions attach to the explorer

archive. Extensive scholarship exists that has sharply questioned the empirical value of explorer

and trader narratives. While legal tribunals comprehend the texts as generally unproblematic,

critical theorists, especially literary comparativists, have underscored their unreliability. They

have reinforced their non-objective nature, more amenable to characterization as a mostly

creative genre of writing.35 Elizabeth Vibert (writing about the HBC narratives from the

Columbian Plateau in BC) proclaims that “It is no longer acceptable simply to read trader and

35 Indeed Felix Driver maintains that the business of the scientific explorer, for example, was not always or easily distinguishable, for that of the literary flaneur. He also notes historians have come to appreciate the aesthetic and literary dimensions of exploration reports. Felix Driver, “Distance and Disturbance: Travel, Exploration, and Knowledge on the Nineteenth Century” (2004) 14 Transactions of the Royal Historical Society 73 at 75.

other “eyewitness” accounts for content, presuming them to be more or less accurate

representations of a moment of time.”36 Rather, they are “fictionalized ethnographies,

influenced by the writers’ own cultures and perceptional limitations, and subject to their

immediate purposes.”37 While Vibert’s assessment underscores reliability, Pratt’s principal

question in Imperial Eyes, Travel Writing and Transculturation is: “how has travel and

exploration writing produced the rest of the world for European readerships,” particularly in

light of its expansionist and economic trajectory?38 Simon Ryan notes that far from being a

fresh and innocent transcription of the new world, the discursive construction in the journals of

what is seen by the explorers is generated by already existing cultural formations.39

The central argument of these and others working with these texts is that exploration and travel

writing is far from objective and is in fact contingent, culturally determinate, and often factually

unreliable. The physical spaces observed and recorded are cognitively mapped; socially

produced; and afflicted by the explorer’s limited cognitive vision. Perceptions are also infected

by imperial, economic and geo-political agendas, as well as by patron/sponsor instructions for

visual reconnaissance. Hence, for example, how early Hudson’s Bay Company traders regard

and document the method and manner of indigenous occupation of land or trading activity is a

process already determined by the author’s particular background, socialization, biases, and

agenda. The representational techniques embodied in this literature are the remnants of an

imperial aesthetic that creates its own conditions of belief and acceptance. Simply, we have

perhaps not been sufficiently careful about scrutinizing the evidential value of the archive’s

contents.

36 Elizabeth Vibert, Traders Tales, Narratives of the Encounters in the Columbia Plateau 1807-1846 (Norman: U of Oklahoma Press, 1997) at 31. 37 Ibid at 15. Vibert uses the term fictionalized in a narrower sense taken from the Latin: that is, as something made or constructed. 38 Pratt, supra note 17 at 5, 34. As a literary scholar, Pratt is interested in various dimensions of the writings and related structures and strategies. She discusses the travels of naturalists, like Alexander von Humbolt, who represented themselves as objective observers and interpreters, but whose writings implicate them in colonial dispossession. See also Leonard Guelke & Jeanne Kay Guelke, “Imperial Eyes on South Africa: Re-Assessing Travel Narratives” (2004) 30 Journal of Historical Geography 11. 39 Simon Ryan, The Cartographic Eye, How Explorers Saw Australia (Cambridge: Cambridge UP, 1996) at 54. “As we have seen, one of the powerful myths of exploration is that knowledge-gathering takes place through the explorer’s seeing ‘new’ land for the first time. In this myth, the explorer accurately describes new land that he sees.”

Aside from the biases and limitations of the writers, there also exist technical problems

associated with the publication of their texts. Most explorer literature was generated in the field,

but ultimately edited and published in more readable form, which adds an additional layer of

complication to the interpretive process.40 Ultimately, we encounter several textual layers

between writer and consumer (of legal opinion). Eva-Marie Kroller explains that while some

discrepancies between manuscript and final publication may have been involuntary, others were

clearly intended. “Because its proximity to sensationalism makes it popular, revision for profit,

performed by an editor or the author himself, can be extensive, and the borderline between truth

and fiction becomes blurred.”41 Kroller, notes that travel writing was incremental, some of it

being published almost contemporaneously to the events recorded, while other travelogues were

published many years later. She gives the example of James Cook, a favorite source in cases

originating in coastal British Columbia: “Readers familiar with the tortured textual history that

arises out of the corporate authorship involved in producing Captain James Cook’s travels will

find similar complications in the narratives of the Franklin expeditions and in Samuel de

Champlain’s travelogues. Alexander Mackenzie’s journals differ greatly from the version

prepared by his editor William Combe who embellished the original with the lofty tone that was

his trademark.”42 Indeed, Kroller goes on to cite the textual and editorial deficiencies related to

the journals of Simon Fraser, David Thompson, and George Simpson—giants in Canadian

foundational history and prolific writers, whose work “belongs to the classics of Canadian

exploration and travel literature.”43 Notably, these men are also court favorites.

Thus far I have not commented on the ethics connected to judicial appropriation of these texts.

For example, the issue of the epistemic violence perpetrated by these texts against aboriginal

40 Some travel diaries were re-written by ghostwriters, as in the case of Cook’s diaries, which were much published and subjected to re-writing by various editors. Chapter two discusses this concern. For example, in considering Cook’s prose on Tahiti, Anderson notes that Hawkesworth added ‘sentiments and observations.’ The “naked narrative” received literary and philosophical embellishment.” Frits Anderson, “Eighteenth Century Travelogues as Models for ‘Rethinking Europe’” (2007) 15 European Review 115 at 116. 41 Eva-Maria Kroller, “Exploration and Travel,” in Eva-Maria Kroller, ed, The Cambridge Companion to Canadian Literature (Cambridge: Cambridge UP, 2004) at 76. Another outstanding study regarding the inconsistencies of the HBC journals is Barbara Belyea, ed, A Year Inland: The Journal of the Hudson’s Bay Company Winterer (Waterloo: Wilfrid Laurier UP, 2001) at 24. Belyea takes the journals of Anthony Henday (HBC servant who explored and wintered with native peoples in the western interior). By creating her own edited version of Hendays’ journal, she also criticizes the tradition of editing historical texts. She considers other edited versions and notes the ultimate inconclusiveness of the editorial endeavour. She underscores the problems of “heavy emendation, interpolation, and annotation.” The discrepancies serve to highlight that we can never know with any degree of certainty what actually transpired. 42 Kroller, ibid at 76. 43 Ibid at 78.

peoples is an entirely different, yet significant problem. David Spurr refers to a literature that

employs “rhetorical strategies of debasement,” a form of negation in the sense that it negates the

value of the other.44 Derrida maintains that writing produced by the cultural encounter always

involved a “violence of the letter.” It was a violence of “difference, of classification, and of the

system of appellations.”45 The process by which “one culture subordinates another begins in

description: the act of naming and leaving unnamed, of marking on an unknown territory the

lines of division and uniformity, of boundary and continuity.”46

That the law has collaborated in such inscriptive violence is well known. As topographical or

geographical descriptions, the exploration literature erased or re-fashioned native geography.

Daniel Clayton has pointed out that Canadian courts are wedded to the geography of fixity,

which takes no account of the “actual complexity of native social geographies.”47 Clayton’s

conclusion is particularly disconcerting for the trial context given the law’s historically

oppressive role in disciplining and disappearing the autonomy of aboriginal peoples.

Historically, disobeying the letter of the law would result in violence upon the aboriginal body.

Both discourses (law and exploration) have viewed the aboriginal identity as an object to be

socially minimized and eliminated. Writing has been their medium in this project.48 The

Canadian legal regime has been no friend to aboriginal peoples, especially if we consider the

codification of erasure: the residential school system is such an example. These concerns—for

the inscriptive violence of Western systems of representation and regulation—are important, and

not in an academic sense, as both exploration and legal writing contain a powerful performative

directive – an appeal and call to some action.49 Although my project is more modest, seeking to

44 David Spurr, The Rhetoric of Empire, Colonial Discourse in Journalism, Travel Writing, and Imperial Administration (Durham: Duke UP, 2004) at 4 [Spurr]. 45 Jacques Derrida, Of Grammatology (Trans Gayatri Chakravorty Spivak)(Baltimore: Johns Hopkins University Press, 1976) at 25. 46 Spurr, supra note 44 at 4. 47 Daniel Clayton, Islands of Truth: The Imperial Fashioning of Vancouver Island (Vancouver: UBC Press, 2000) at 159. 48 This is a theme that has interested scholars of Latin American literature. See Introduction to Anibal Gonzalez, Killer Books, Writing, Violence, and Ethics in Modern Spanish Literature (Austin: U of Texas Press, 2001). Gonzalez argues that writing and violence have been closely linked in Spanish America from Conquest to the present. The same could be said of British North America, at least in relation to aboriginal peoples. Anibal Gonzalez addresses the ethical issues in the history of Latin America narrative, and considers authorial awareness for the possible danger of the written word. For the connection and violence associated with both literature and legal writing in Spanish America, Roberto Gonzalez Echevarria provides an insightful and compelling account in Myth and Archive: A Theory of Latin American Narrative (Durham: Duke University Press, 1998). 49 For example, dispossession is the mandate for the HBC and its writings further this goal, while for the law, the objective at one time was assimilation of the indigenous person.

draw attention to the cultural and structural forces and misguided strategies that engender

unwarranted evidential hegemony—it should not be seen as being oblivious to the greater

ethical problem posed by the continued reliance on imperial stories, on the archive, to naturalize

how the law regards indigenous land and resources.

Chapter One

Aboriginal Rights and Title in Canada—The Substantive Problem of Proof

In order to truly hear the oral history and oral tradition evidence presented in these cases, courts must undergo their own process of decolonization.50

There is always a Eurocentric tendency to look for and rely on the written word. Try as one might, it is difficult to read these words and not see in them events as they really were. To

follow this path in a trial of this nature would relegate oral history and oral tradition evidence to some lesser level of importance, contrary to the directions of the Supreme Court of Canada.51

The legal precedent of the past twenty years suggests progress in the recognition of aboriginal

title and may even tantalize First Nations with the possible restoration of indigenous lands.

Aboriginal title is a communal right to the land itself, as opposed to the right to conduct

activities (practices, customs and traditions unique to First Nations—such as fishing and

hunting) upon the land.52 A small group of cases now forms the nucleus of Supreme Court

jurisprudence on aboriginal title, beginning with Calder,53 which acknowledged not only the

possibility of an aboriginal perspective, a novel thought at the time, but which also recognized

that “Indian” title arose from a prior occupation of the land (predating the Royal Proclamation

of 1763)54. The Supreme Court’s most recent jurisprudential treatment of aboriginal title is

50 Comments of Justice D.H. Vickers in Tsilhqot’in v. British Columbia 2007 BCSC 1700 [2008] at para. 132. 51 Tsilhqot’in, at para 203. 52 A more complete definition that incorporates the legal criteria for establishing aboriginal title is in found in this chapter 53 Calder v Attorney General of British Columbia, [1973] SCR 313, 34 DLR (3d) 145 [Calder]. The case involved an action by BC bands for a declaration of Indian title over ancestral lands in the Nass Valley, claiming their title had never been distinguished by the Crown—either by treaty or otherwise. The Court dismissed the matter on technical grounds. 54 The Court offered the possibility of aboriginal title based on the common law principle of occupation, eschewing the notion that it could only arise from some legislative or executive act. It also disagreed with prior Privy Council holding [in St. Catherine’s Milling] that aboriginal title was a Personal or usufructuary right. Although the Court found common law support for such Aboriginal title, which would continue barring extinguishment, the Calder court did not detail its characteristics or scope. A general assessment of the case may be found at Hamar Foster, Heather Raven, and Jeremy Webber, eds, Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver: UBC Press, 2007).

contained in R. v. Marshall; R. v. Bernard55 (2005), a case in which the Supreme Court

affirmed the significance of the aboriginal perspective, devising a method for its deployment,

and which also ruled on the merits of an aboriginal title claim for the first time.56 The case law

deserves favourable consideration;57 yet, any claim to unconditional success would be

hyperbolic. First Nations have gone before the Supreme Court of Canada some 40 times.58

However, to date, the Supreme Court has yet to issue a declaration of aboriginal title in favour

of aboriginal claimants. At least as to aboriginal title, the accommodating rhetoric has failed to

yield a successful outcome.59

Although several factors may account for the lack of success, the significance of the role of

proof cannot be minimized. Indeed it may be paramount. Among other things, aboriginal title

claims, for example, require courts to determine how land was occupied in claim areas, a

difficult proposition given that the events (or the absence of events) in question likely occurred

hundreds of years ago, including at moments in chronological time regarded by courts as “pre-

history.”60 As a fact-driven process,61 trial courts have the difficult task of selecting, collecting,

55 R v Marshall; R v Bernard, 2005 2 SCR 220, 255 DLR (4th) 1, [2005] SCC 43 [Marshall/Bernard]. 56 Delgamuukw v British Columbia, [1997] 3 SCR 1010 [Delgamuukw]. The Supreme Court of Canada rejected the claims for aboriginal title based on the insufficiency of the evidence. The aboriginal perspective is a way of speaking of evidence. Aboriginal forms of evidence, like oral histories and traditions “must not be undervalued because it does not conform precisely to existing or traditional evidentiary standards. … A court must take into account the perspective of the aboriginal people.” See Delgamuukw at paras 80, 81. Previously, the Court in Delgamuukw affirmed the legal recognition of Aboriginal title (indeed extensively delineating its parameters and sources), but declined to rule on the merits of the particular title claim, mainly because of technical deficiencies. See discussion infra beginning at p 21. See also infra at p. 49, Tsilhqot’in v British Columbia (trial court declining a holding of aboriginal title for defective territorial “all or nothing” pleadings, which should have been framed as particularized claims for individual tracts of land). 57 Judicial advancements for aboriginal parties are particularly noteworthy given the historic inaccessibility of courts to Aboriginal parties asserting legal claims. Specifically, Section 141 of the Indian Act, RSC 1927 c 98, stated: “Every person who, without consent of the Superintendent General expressed in writing, receives, obtains, solicits, or requests from any Indian any payment or contribution for the purpose of raising a fund or providing money for the prosecution of any claim which the tribe or band of Indian to which such Indian belongs, or of which he is a member, has or is represented to have for the recovery of an claim or money for the benefit of said tribe or band, shall be guilty of an offense liable upon summary conviction for each offence to a penalty… .” This provision was in force between 1927 and 1951. 58 Backgrounder: First Nations Perspective on Clearing the Path to Justice, First Nations Summit (January 28, 2009) at 3 [Backgrounder]. 59 Various scholars have provided accounts of the judicial treatment of aboriginal rights in Canada. For example, Grace Li Xiu Woo, Ghost Dancing with Colonialism: Decolonization and Indigenous Rights at the Supreme Court of Canada; P.G. McHugh, Aboriginal Societies and the Common Law: A History of Sovereignty, Status, and Self-Determination (Oxford: Oxford University Press, 2004); Kent McNeil, “Aboriginal Title and the Supreme Court: What’s Happening?” (2006) Sask L Rev 281 [McNeil]; Brian Slattery, “The Metamorphosis of Aboriginal Title” in Maria Morellato, ed, Aboriginal Law Since Delgamuukw (Aurora, Ont: Canada Law Book, 2009) 145. 60 Indeed, “it is the oral tradition evidence in Aboriginal rights and title cases which may be the only available evidence relating to an event or situation which occurred prior to sovereignty assertion or first contact.” Tsilhqot’in, supra note 10 at para 143. 61 Tsilhqot’in, supra note 10 at para 136.

collating, and assessing evidence introduced by the parties about territorial localities and the

people (as well as their practices) described in the evidence. Unsuccessful claims ultimately

signal a gap between the judicial enunciation of progressive and flexible doctrinal principles, on

the one hand, and their failed evidentiary fulfillment by claimants, on the other. This disconnect

also subverts the broader judicial promotion of reconciliation, a complex concept that

underscores societal and constitutional concerns for harmonizing aboriginal and non-aboriginal

interests. Justice D.H. Vickers of the British Columbia Supreme Court recently alluded to this

problem in the context of the evidence adduced by claimants, “for the goal of reconciliation can

only be achieved if [the claimants’] oral tradition evidence is placed on equal footing with

historical documents.62

The present chapter initiates the exploration of this conundrum—the equal placement of a

paperless, aboriginal archive—an anti-archive—along side a documentary, historical archive.

My intention here is to survey a small group of judicial cases, arguably, the most prominent of

recent holdings. My inquiry does not end there. Understanding the broader non-judicial

environment connected to the problem of indigenous legal claims is also important for this

thesis. Hence, attention is given here to Canada’s [lack of] receptiveness to international

instruments, as well as to non-judicial efforts at negotiated settlements in Canada.63 These

political matters are important because they (1) highlight the urgency of the evidentiary problem

and (2) provide context for understanding the continuous aboriginal struggle for recovery of

ancestral lands, and rights connected to these lands.

The courts have established criteria – or legal tests – for how an aboriginal claimant might make

a successful claim for aboriginal rights or title. Although much of this thesis is concerned with

historical evidence, it must examine the substantive law developed by the courts and, more

importantly, the relationship between substantive legal tests and the evidence required to satisfy

these. These cannot be unhinged from one another. The substantive law provides the framework

within which evidential strategies are deployed and indeed will shape how knowledge is

constituted in the courtroom. To this extent, the chapter seeks to understand how trial courts

engage the substantive law in relation to the Supreme Court’s evidential mandates. Ultimately

my objective is to begin to uncover the judiciary’s commitment to historical evidence, at the

62 Tsilhqot’in, supra note 10 at para 152. 63 Attention to these negotiations is critical, particularly in light of the Tsilhqot’in decision, which advocates for negotiation settlements rather than ongoing appellate proceedings to settle the question of aboriginal title.

expense of oral traditions and histories.

The case of Delgamuukw v. British Columbia (“Delgamuukw”) anchors the discussion in this

chapter, mainly because it provides the richest and most comprehensive treatment of the scope

and sources of aboriginal title, while also elaborating the appropriate legal framework for how

aboriginal stories and histories are to be assessed. The chapter also looks to another Supreme

Court holding on aboriginal title, issued subsequent to Delgamuukw, notably the above-

mentioned R. v. Marshall; R. v. Bernard (“Marshall/Bernard”), which represents the most

recent Supreme Court case on aboriginal title. Marshall/Bernard is notable because it narrows

the manner of proving title, seemingly contracting the meaning of occupation, while once again

appearing to marginalize the aboriginal conception of territoriality. Not only does it signal a

retreat from the broader, more conciliatory language found in Delgamuukw, but

Marshall/Bernard also widens the gap between the possibilities afforded by the law and their

attainment by aboriginal parties, particularly if their traditional knowledge registers are relied

upon for evidence. In keeping with discussion of Supreme Court cases, I also comment briefly

on the rights case of Van der Peet, with the intention of highlighting its substantive tests and

their impact on the production of evidence. Notably, reference to Van der Peet, appears

frequently throughout the chapter, as its evidential holdings form the basis for similar holdings

in title cases.

Finally, this first chapter also reviews the recent application of Supreme Court jurisprudence of

aboriginal title at the trial court level. Understanding such application of Supreme Court

jurisprudence is imperative because it sheds light on the practice and deployment of Supreme

Court law. Not surprisingly the case I analyze originates in British Columbia, a province in

which substantial territorial litigation takes place. The case is Tsilhqot’in Nation v. British

Columbia,64 and the discussion centres on the trial court proceedings and the interplay between

aspiration and practice. It underscores the uncertain and laboured efforts to operationalize the

Supreme Court’s desire for the equal treatment of evidence. I highlight Justice Vickers’

resignation about evidential shortcomings and the resulting strategic retreat to the concept of

reconciliation.

Here, the subject matter of the chapter requires additional clarification. This chapter (and the

64 Tsilhqot’in, supra note 10.

thesis as a whole) focuses its discussion to aboriginal title,65 yet it does not ignore aboriginal

rights. The conceptual framework for evidence is quite similar in rights and title cases. Both

look to the past to satisfy a present claim to a right. In title cases sovereignty reigns: indigenous

parties must prove occupation of the disputed territory prior to the time the Crown asserted its

sovereignty.66 In rights cases, contrarily, the critical date is contact. The right asserted must

have been integral to the aboriginal party’s culture before contact with Europeans. Despite this

difference, they share a mutual judicial discourse on evidence, and journal narratives are

understood as essential to the record in both. Accordingly, courts in one often draw on the

judicial opinions of the other when discussing the evidence. Indeed claimants often assert both

aboriginal rights and title in litigation, but may also assert a title claim alone, for example, as

when the disagreement relates to third party incursions (logging and mining interests, for

example) into lands traditionally occupied by First Nations.

Generally, aboriginal title is but one of a panoply of rights related to the use of land. While

aboriginal rights like hunting, fishing, and harvesting timber relate to specific activities

undertaken on land, aboriginal title more broadly reflects a right to occupy [and use] land—not

all activities of which “need be aspects of practices, customs, and traditions which are integral to

the distinctive cultures of aboriginal societies.”67 The Supreme Court has called title a “distinct

species of aboriginal rights,”68 which the Delgamuukw Court went to great length to detail:

The picture that emerges from Adams is that aboriginal rights, which are recognized and

affirmed by s. 35(1) (of the Constitution Act), fall along a spectrum with respect to their

degree of connection to with the land. At the one end, there are those aboriginal rights,

which are practices, customs, and traditions that are integral to the distinctive aboriginal

culture of the group claiming the right. However, the occupation and use of the land

(emphasis in original text) where the activity is taking place is not sufficient to support a

claim of title to the land (emphasis in original text). Nevertheless, those activities receive

constitutional protection. In the middle, there are activities, which, out of necessity, take

place on land and indeed, might be intimately related to a particular piece of land.

65 The term aboriginal title seems to have supplanted the former use of Native or even Indian title. 66 Or, if present occupation is relied on as proof of pre-sovereignty occupation, then there must be continuity of this occupation and, at the time of sovereignty, that occupation must have been exclusive. 67 Delgamuukw, supra note 56 at para 111. There are, however, inherent limitations such that it may not be subjected to the laying of waste. 68 Ibid at para 2.

Although an aboriginal group may not be able to demonstrate title to the land, it may

nevertheless have a site-specific right to engage in a particular activity. … At the other end

of the spectrum, there is aboriginal title itself. As Adams makes clear, aboriginal title

confers more than the right to engage in site-specific activities, which are aspects of the

practices, customs, and traditions of distinctive aboriginal cultures. Site-specific rights can

be made out even if title cannot. What aboriginal title confers is a right to the land itself.69

The reader will also detect a heavy emphasis on cases originating in British Columbia (“BC”).70

Although limiting discussion to BC litigation is not a strict parameter, aboriginal title claims, in

particular, proliferate in this province for historical-political reasons. Simply, unlike many other

Canadian provinces, the authorities in British Columbia generally rejected the idea that First

Nations could possess a superior claim to land and thus eschewed negotiating treaties with the

First Nations (except on Vancouver Island, where 14 treaties were signed). Without historical

legal “agreements” the status of land ownership in British Columbia not only continues

unsettled today, but also remains sharply contested, as reflected in the numerous legal causes of

action.71

To illustrate, the British Columbia position should be contrasted with the historical manner of

handling territorial pretensions in Ontario and the Prairie provinces. When the British settlers

flooded into what is now Canada, they found aboriginal peoples already there.72 In recognition

of their claim to “certain rights in the land,”73 the Crown was compelled to issue the Royal

Proclamation of 1763, which established a general procedure by which First Nations could cede

69 Ibid at para 138. 70 Marshall/Bernard, supra note 55 is a notable exception, having originated in the easterly Maritime Provinces. The combined matters asserted [defensive] claims for aboriginal title, as well as aboriginal rights. 71 Notably, the provincial authorities in 2009 returned to its New Relationship document in order to “re-calibrate” strained relationship with aboriginal peoples over land rights. Several Reconciliation Protocols (legally binding agreements) have been agreed upon between the parties (particularly with indigenous peoples of the west coast. Aimed at avoiding litigation, these agreements do not settle questions of Aboriginal title. They focus on resource use on disputed lands) and revenue sharing. See Blake Cassels and Graydon, Aboriginal Law Bulletin of January 2010. (On file with the author). 72 The jurisprudence has recognized the factual and legal existence of the Aboriginal occupation prior to the assertion of British sovereignty. In Calder, supra note 53, Judson J., wrote that “when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries” (328). In his dissent, Hall J. also determined that indigenous legal traditions pre-existed the Crown’s assertion of ownership that were “indigenous to their culture and capable of articulation under the common law.” (375); see discussion in Marshall/Bernard, supra note 55, at para 132: “At the time of the assertion of British sovereignty, North America was no treated by the Crown as res nullius.” 73 Marshall/ Bernard, supra note 55 at para 133. “The natural and inevitable consequence of rejecting enlarged terra nullius was not just the recognition of indigenous occupants, but also of the validity of their prior possession and title.” Ibid at para 134, citing Samantha Hepburn, “Feudal Tenure and Native Title: Revising an Enduring Fiction” (2005) 27:1 Sydney L Rev 49 at 79.

title to the Crown by treaty.74 The treaty thus became the main tool of dispossession in many

parts of Canada. Indeed, before Confederation in 1867, the British Crown negotiated numerous

treaties with First Nations across the eastern and central territories. By employing the treaty

method, the Crown extinguished prior title and thus “legally” acquired the desired territory,

enabling its exploitation and ultimate settlement. The treaties hardly reflected a fair exchange of

consideration: Aboriginal peoples often traded land for paltry monetary sums or other material

incentives, land reserves, and for the right to hunt and fish, for example. Coercion also played a

significant role in extracting treaties from First Nations.

As commerce and settlement spread west of the Rockies, the question of land evolved

differently. The idea that aboriginal peoples could hold title to their land was not a concept

recognized in the colony of British Columbia.75 Hence, rather than negotiate treaties, Crown

representatives there emphasized naked takings and the simultaneous creation of reserves for

native relocation. Indigenous peoples desiring to farm on their ancestral territories were required

to acquire land like other settlers. Such early policies were short-lived, however, eventually

yielding to more onerous rules prohibiting the acquisition of Crown land by indigenous peoples.

Before and after British Columbia joined Confederation (1871), First Nations in the province

continuously sought out treaties without success—particularly through the efforts of the Allied

Indian Tribes of British Columbia in the early twentieth century. Not until the early 1990s

[sparked by increasing judicial willingness to consider aboriginal title and by the “softening”

position of the Federal government, which by then was more amenable to negotiations] did the

province of British Columbia actively undertake treaty negotiations with First Nations.76 Today,

74 “And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of our Dominions and territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.” Continuing, the Proclamation refers to the Crown’s exclusive treaty-making authority: “And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests, and to the great Dissatisfaction of the said Indians; In order, therefore, to prevent such irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable cause of discontent, We . . . strictly enjoin and require that no private person do presume to make any purchase from the said Indians of any lands reserved to the said Indians . . . but that, if at an time any of the said Indians should be inclined to dispose of said Lands, the same shall be purchased only for Us, in Our name, at some pubic Meeting or Assembly of the said Indians.…” 75 The exception is Vancouver Island. Between 1850 and 1854, James Douglas (acting on behalf of the British Crown) executed a series of treaties on Vancouver Island in order to acquire “title” from the prior owners. 76 The promise of treaty negotiations has been less than exemplary. At the date of this writing, only three treaties have been concluded and fully ratified under the BC Treaty Commission. Notably, there are currently forty-four sets of negotiations in process. Aside from the three ratified treaties, there are currently six First Nations in [advanced] stage five of negotiations. Indeed, one additional treaty (Yale First Nation Agreement) is close to

although few final treaties have been worked out and the emergence of the Crown duty to

consult,77 most land claims remain unresolved. Hence, the land question in British Columbia,

more than any other province, remains immediate.

I. Outside the Law: Non-Judicial Context and Recent Treaty

Developments

A preliminary survey of the non-jurisprudential context (related to aboriginal rights) facilitates

an understanding of the environment within which judges develop and apply law and render

verdicts. Although brief, the review should not be treated as a deviation or mere parenthetical. It

highlights the need to rehabilitate or re-consider the adjudicatory process, to the extent that it

has failed aboriginal claimants. In Canada, as in many other settler societies, the law has been

either absent or complicit in furthering a political and social agenda highly prejudicial to

aboriginal peoples.78 On at least one occasion, political institutions have acknowledged this fact,

as in the June 11, 2008, apology of Prime Minister Harper for Canada’s role in the Indian

Residential School System, as well as in the recent apology for the relocation of Inuit families to

the high Arctic. Despites such public gestures, reliance on Canada’s governmental (and other

non-judicial) institutions to redress past injustices should be treated with some skepticism. The

government’s public commitment, often tepid, to aboriginal rights in non-judicial arenas is

undermined by the consistent unyielding adversarial stance generally adopted by provincial and

federal governments, and by their willingness to force litigation or assume extreme, recalcitrant

positions in order to “resolve” disputes or work out agreements.

The judiciary has encouraged non-judicial means for the resolution of aboriginal title disputes,

specifically, in the form of negotiated settlements. Indeed, in the 1990 Sparrow case, the

Canadian Supreme Court considered section 35 (1) of the Constitution Act as forming a “solid

implementation and only awaits implementation by federal legislation. Information regarding these treaties and the treaty process in general may be found at www.bctreaty.net. 77 In the Haida and Taku River decisions in 2004, and the Mikisew Cree decision in 2005, the Supreme Court of Canada held that the Crown has a duty to consult and, where appropriate, accommodate when the Crown contemplates conduct that might adversely impact potential or established Aboriginal or Treaty rights. See also Aboriginal Consultation and Accommodation, Updated Guidelines for Federal Officials, March 2011 (Publication of the Government of Canada). 78 The reader should again take note of the Indian Act (1876), which was amended by Parliament to criminalize Indian attempts to raise or spend money to advance legal claims.

constitutional base upon which future negotiations can take place,” as Section 35 “recognized

not only the ancient occupation of land by aboriginal peoples, but their contribution to the

building of Canada, and the special commitments made to them by successive governments.”79

The Supreme Court in Delgamuukw also asserted that negotiations through the Treaty

Commission as the preferred method to achieve reconciliation between the sovereignty of the

Crown and the pre-sovereign existence of aboriginal peoples.80 The recent trial court decision in

Tsilhqot’in alluded to the same, emphasizing the judiciary’s limitations: “In an ideal world, the

process of reconciliation would take place outside the adversarial milieu of a courtroom. This

case demonstrates how the Court, confined by the issues raised in the pleadings and the

jurisprudence on aboriginal rights and title, is poorly equipped to effect a reconciliation of

competing interests. That must be reserved for the treaty process.”81 Negotiations, however,

have not yielded very many tangible results for aboriginal parties in British Columbia.

Created in 1992, The British Columbia Treaty Commission proclaims on its website that it is the

“independent and neutral body responsible for facilitating treaty negotiations among the

governments of Canada, BC and First Nations in BC.” However, since 1993, when negotiations

began in earnest, only four agreements have been negotiated and ratified by First Nations

parties.82 The numbers are quite disappointing.83 Future negotiated successes may not hold

promise either, as First Nations increasingly grow frustrated over the inflexible and insufficient

treaty negotiation policies and mandates pursued by Canada and the province of British

Columbia within treaty negotiations and the feeling of a lack of good faith by these governments

in the negotiations.84 There is little confidence in the process. The current Head of the BC

Treaty Commission has stated that British Columbia should abandon its 140-year-old quest for

treaties with first nations if it cannot find the will to make and meet targets for treaty

79 R v Sparrow (1990), 70 DLR (4th) 385 (SCC) involved fishing rights rather than land title claims. Reference Re Secession of Quebec, [1998] 2 SCR 217, 262. 80 Delgamuukw, supra note 56 at paras 186, 207; Tsilhqot’in, supra note 10 at paras 1338-1382. 81 Tsilhqot’in, supra note 10 at para 1357. 82 For a complete list of negotiations and ratified treaties, please see www.bctreaty.net. 83 There are also several agreements in principle. For example, the K’omoks First Nation (consisting of 275 members) of Vancouver Island has secured an Agreement-in-Principle concerning 2,000 hectares, which is still subject to the ratification process. The land will be held in Fee Simple status and the band members will have the right to harvest wildlife and migratory birds for social and ceremonial purposes – and subject to certain limitations (conservation measures and public health/safety measures). From “BC First Nation One Step Closer to $17.5 Million Treaty,” Globe and Mail, March 24, 2012, online at http://www.theglobeandmail.com/news/british-columbia/bc-first-nation-one-step-closer-to-175-million-treaty/article2380502/ 84 Debora Steel “Twenty Years of Treaty Talks Frustrated by Unmoveable Government” Ha-Shilth-Sa, September 20, 2012, online at http://www.hashilthsa.com/news/2012-09-20/twenty-years-treaty-talks-frustrated-unmoveable-government

settlements.85 Financial consideration may also dissuade continued treaty negotiations.

Negotiations, like litigation, are costly and the Crown’s approach is to advance eighty (80)

percent of funding –to be drawn against final treaty settlements. As of 2007, First Nations in

British Columbia had borrowed $318 million to prepare for and negotiate treaties.86 As Grand

Chief Edward John noted, many find their debt burden unsustainable and “onerous” to continue

negotiations.87 These concerns with the treaty process certainly highlight the need for courts to

“get it right,” as the lack of meaningful successes through political negotiations will likely

continue to steer claimants into the courts.88

Developments in the international arena also serve as background to the domestic front. A

detailed and sustained discussion of Canadian [non] commitment to the instruments of

international law, particularly those that incorporate Indigenous rights, is obviously beyond the

scope of this work. Nonetheless, a brief survey of this area is compelling, as it generally

highlights the inadequacies of national legal systems (and thus the need for recourse to

international instruments) and specifically reveals an unsympathetic Canadian position. The

government’s policy positions vis-à-vis international instruments may suggest a disingenuous

posture in domestic negotiations. The Canadian government may rationalize recent Canadian

positions, but it may also unwittingly signal broader resistance to genuine recognition of a

strong aboriginal rights regime. In the last twenty years, international institutions have sought to

recognize the rights of indigenous peoples. Canada has not been supportive. For example, the

International Labour Organization (ILO) Indigenous and Tribal Peoples Convention No. 169

specifically addressed indigenous rights. Article 14 focuses on the land question:

(1) [T]he rights of ownership and possession of the peoples concerned over the lands

which they traditionally occupy shall be recognized. In addition, measures shall be taken

in appropriate cases to safeguard the rights of the peoples concerned to use lands not

exclusively occupied by them, but to which they have traditionally had access for their

85 See Comments concerning 2011 BC Treaty Commission Report, as cited by the Te’Mexw Treaty Association (comprised of five First Nations) at . 86 British Columbia Treaty Commission, Annual Report (2007) at 39. 87 Statements of Grand Chief Edward John, Political Executive First Nations Summit, Backgrounder Clearing the Path to Justice. Available online at http://www.fns.bc.ca/pdf/Backgrounder-280109.pdf. 88 The treaty negotiation process in BC has received scholarly attention. For example: Tony Penikett, Reconciliation: First Nations Treaty Making in British Columbia (Toronto: Douglas & McIntyre, 2006) and Christopher McKee, Treaty Talks in British Columbia, 3rd ed (Vancouver: UBC Press, 2009). See also Kent McNeil, “Negotiated Sovereignty: Indian Treaties and the Acquisition of American and Canadian Territorial Rights in the Pacific Northwest” in Alexandra Harmon, ed, The Power of Promises: Perspectives on Treaties with Native Peoples of the Pacific Northwest (Seattle: University of Washington Press, forthcoming).

subsistence and traditional living; (2) [G]overnments shall take steps as necessary to

identify the lands which the peoples concerned traditionally occupy, and to guarantee

effective protection of the rights of ownership and possession; (3) [A]dequate procedures

shall be established within the national legal system to resolve land claims by the peoples

concerned.