Vol. 18 No. 7 (July, 2008) pp.574-578
LET RIGHT BE DONE: ABORIGINAL TITLE, THE CALDER CASE, AND THE FUTURE OF INDIGENOUS RIGHTS, by Hamar Foster, Heather Raven and Jeremy Webber (eds). Vancouver: UBC Press, 2007. 352pp. Hardcover CDN$90.00/US$98.95. ISBN: 9780774814034. Paper CDN$32.95/US$32.95. ISBN 9780774814041.
Reviewed by Carmela Murdocca, Department of Sociology, York University, murdocca [at] yorku.ca.
LET RIGHT BE DONE is a rich and profound volume. The collection of essays emerged as a result of a conference held at the University of Victoria to commemorate the thirtieth anniversary of CALDER v. ATTORNEY GENERAL OF BRITISH COLUMBIA, a landmark Supreme Court of Canada decision in 1973 concerning Aboriginal title. The case is arguably the most important case amongst Aboriginal title cases, and it established that Aboriginal title was a right that can and should be protected by Canadian law. The case was launched on behalf of the Nisga’a who sought to secure the rights to their ancestral land. The legal issue questioned whether the Nisga’a’s foundation for Aboriginal or “Indian” title had ever “been lawfully extinguished.” Importantly, for the Nisga’a CALDER was not about a “land claim,” a framework which has ultimately come to define Aboriginal and Inuit relationships to the land in Canadian jurisprudence. Instead, the decision “was another step in the continued assertion of their right to the lands they had never ceased to occupy and defend” (p.1). Legally, the Nisga’a did not “win” their case; however, CALDER set in motion a series of negotiations with the government that ultimately established the Nisga’a treaty that became the first contemporary treaty of any kind in British Columbia. As the editors of the collection note: “it was a defeat that established the foundation for important victories” (p.6).
The collection is divided into five sections that include: reflections on CALDER, the historical context that animates the case, the legal implications of CALDER and the international impact of the case. The section on the historical context of Aboriginal title in the Americas provides the necessary filter through which to consider contemporary jurisprudence on Aboriginal title as well as the impact on CALDER, in particular. Finally, the volume concludes with a critical eye to the future of title claims in Canada and abroad.
The book begins with reflections from a number of key participants in the CALDER case, including Frank Calder, Thomas Berger (a former justice of the Supreme Court of British Columbia, then a lawyer for the Nisga’a) and the Honorable Gerard V. La Forest (then, also a lawyer for the Nisga’a). The conversation between Frank Calder and Thomas Berger is a treat to read. Frank Calder’s extensive resume includes being the first status Indian to be elected to the Canadian legislature where he served for twenty-six years. In addition [*575] to being active in the Native Brotherhood in the 1940s and working to extend the right to vote to status Indian and Asian immigrants, Calder is best known for his attempt to have Aboriginal title recognized and affirmed through Canadian courts. In conversation, Calder was prompted to respond to the question: “how did the most important case in Canadian law of Aboriginal title come to bear your name?” (p.39). In response, Frank Calder recounts a story, an event, which was told to him by his grandfather. In the 1880s when his grandfather was a young member of the Old Aiyansh, he witnessed the arrival of canoes containing five land surveyors at the opposite side of the river. The Nisga’a community decided to send a number of Nisga’a braves to inquire about their activities. The land surveyors responded that that they were determining boundary lines for the Nisga’a nation that the Queen would then “give” to the Nisga’a. The Nisga’a braves returned the next morning with muskets, confronted the surveyors and ordered them off their land. What this story highlights is the refusal of the Nisga’a peoples to be forced into a reservation on their land. Frank Calder indicated that it was this childhood story, this refusal to permit the white settlers to parcel the land and create a reserve that initiated the series of events that led to the CALDER case and to the establishment of the Nisga’a treaty.
Hamar Foster’s contribution to the collection exposes the little known history relating to what Foster describes as “the first legal campaign” that ended in 1928 and included a twenty-year campaign on the part of Aboriginal peoples in British Columbia to have the “land question” submitted for court scrutiny. This piece includes some chilling anecdotes that reveal not only that the Nisga’a peoples rejected the white settler land policies of the day, but also foresaw a future of Aboriginal subjugation under Canadian law. For example, Charles Russ, a Nisga’a leader, spoke at a Royal Commission in 1887 that was established to investigate disturbances that were caused as a result of land conflict. In speaking to the committee, Russ explains: “We took the Queen’s flag and laws to honour them . . . We never thought when we did that that she was taking the land away from us” (p.62). Not only does Russ expose the complicated relationship between sovereignty and territory (and as Foster notes, in so doing provides “a more accurate statement of the legal situation than anything that fell from the commissioners or the politicians who appointed them” [p.63]), but he also highlights a profound incompatibility between European and Indigenous ideas about land use and land ownership. In another anecdote, Foster reproduces the words of Peter Kelly who presented a submission to the joint parliamentary committee that investigated the claims of the Allied Indian Tribes of British Columbia. When asked by the committee what would occur if they refused to acknowledge Aboriginal title, Kelly provides a prediction that remains with us today. Kelly stated: “Then the position that we have to take is simply this: that we are dependent people. Then we would have to accept from you, just an act of grace, whatever you saw fit to give us” (p.84). That this statement was made in 1927 suggests that our understandings of Aboriginal encounters with the Canadian government have yet to change in profound ways and [*576] importantly, that we have not dignified this statement with a substantive understanding of social justice.
Steven Haycox draws parallels between the Nisga’a claim and the work of the Tlingit leader, William Lewis Paul, in Alaska who helped develop what would become the Tlingit-Haida land claim. While most of the contributions to the collection illuminate the material and legal conditions that rendered Aboriginal claims to land difficult, Michael Asch’s essay examines the symbolic conditions that created such obstacles. He outlines the ways in which Indigenous societies were represented in law: as primitive and uncivilized. As a consequence of such a portrayal, it was often argued that their societies “were not sufficiently organized to presume that they had any rights of a kind that required Crown recognition” (p.102). Briefly tracing these racialized ideas in CALDER and in post-CALDER jurisprudence, Asch points out that the case explicitly highlights that when white settlers came Aboriginal peoples were indeed occupying the land of their ancestors and living in sustaining societies. Asch argues that, if Courts relied on this alternative understanding of Aboriginal peoples and communities, “the legitimacy of the Canadian state” (p.109) would be challenged.
Brian Slattery offers “A Taxonomy of Aboriginal Rights,” investigating the distinction between specific rights and generic rights concerning the legal basis of Aboriginal, Inuit and Métis rights in Canada. Specific rights are those rights “whose existence, nature, and scope are determined by factors that are particular to each Aboriginal group” (p.112). A Generic right, on the other hand, can be understood as a “right of a standardized character that is basically identical in all Aboriginal groups where it occurs” and may include such rights as the right to customary law, the right to proper treatment by the Crown and the right to self-government (p.114). Importantly, Slattery shows that in two recent and pivotal cases on Aboriginal rights in Canada, VAN DER PEET and DELGAMUUKW, courts and defendants negotiated the relationship between specific and generic rights in strikingly different manners. For example, in VAN DER PEET there was a distinct recognition that “all Aboriginal rights were specific rights” (p.112). Whereas in DELGAMUUKW, decided one year later, there was a legal narrowing of the idea of specific rights owing, in part, to the fact that the “parties to the case advanced strikingly different conceptions of Aboriginal title” (p.112).
Kent McNeil’s contribution examines the legal and political issues concerning the right to self-government in the post-CALDER era and highlights both the United States and Canadian contexts. David V. Williams examines the relationship between CALDER and Aboriginal Title in Aotearoa New Zealand. In the 1840s, British Crown officials entered into treaty negotiations with Maori peoples of Aotearoa New Zealand. The treaty, known as the Waitangi Treaty, maintained that the “entire territory of New Zealand was proclaimed to be a British colony” (p.155). In the ensuing years, many legal and political questions arose concerning Maori customary rights. In the 1980s, CALDER was invoked by “Maori litigants and their lawyers” in order to advance particular legal [*577] arguments relating to the goal of recognizing Maori customary entitlements. This contribution to the collection points to the necessity to further our understanding of Aboriginal rights, title and customary law in both local and global terms. Understanding the relationships between Indigenous struggles for recognition in different white settler contexts is key to developing robust legal strategies at the local level. Garth Nettheim furthers this dialogue and examines the influence of Canadian and International law on Aboriginal Title claims in Australia.
John Borrows’ contribution to the collection, “Let Obligations Be Done,” emphasizes that CALDER is not only important because it worked to identify that Aboriginal and Inuit peoples have rights that should properly be examined by courts, but that CALDER identified that the Crown had an obligation towards Aboriginal and Inuit peoples in Canada, legally, politically and symbolically. We are now in a time where repair, reconciliation, compensation and apologies of various sorts frame governmental and political relations with Aboriginal communities both in Canada and abroad. Borrows offers what is an exhaustive list of the various forms of legal, political and social obligation that the Crown and the nation have developed in the years since CALDER (pp.206-207). Obligations exist, as Borrows aptly notes, through people and through law whereby “people exist within relationships of subjugation or degrees of freedom” (p.202). As Frank Calder unambiguously states:
To confine people inside that boundary, you have to be on top of them. You’re both in the gutter. Right? If someone is holding down that First Nation inside that reservation, somebody’s got to be on his back and that guy on his back is controlling the law books. So the three to three decision (in CALDER) meant that he had to get off my back and we’d turn around and face each other and talk (p.205).
In essence, the task is to develop legal and political responses that identify the reality of the historical injustices experienced by Aboriginal and Inuit communities in addition to frameworks that recognize the meaning of the injustice and its contemporary implications both for the perpetrators and the victims.
Appeals to Aboriginal title in modern nation states are mediated, negotiated and anchored in law. As a consequence, such forms of recognition have been specifically national processes, infusing appeals to race and culture against the backdrop of national histories of promise and failure. Forms of recognition are also and equally cultural processes requiring discourses of social justice, political actors and group differences. This is an incisive collection of essays both for the general reader and for scholars of law, history, and social justice wishing to reflect upon and investigate these issues. The strength of this collection lies in its silent call that occurs much after one finishes the text. It is this silent call that is the legacy of CALDER itself. Our historical and sociological inquiries into forms of liberal obligation and recognition rooted in the law in white settler societies must trace the specific articulations of national narratives of progress as they have evolved to justify the elimination of Aboriginal, Inuit and Métis peoples, modern racisms and intractable settler claims to the land. [*578]
CALDER ET AL. v. ATTORNEY GENERAL OF BRITISH COLUMBIA,  S.C.R. 313.
DELGAMUUKW v. BRITISH COLUMBIA,  3 S.C.R. 1010.
R v. VAN DER PEET,  2 S.C.R. 507.
© Copyright 2008 by the author, Carmela Murdocca.
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