Constructing Law, Space, and their Subjects:
Landscape, Topography and Culture

I visited many parts of the territory which is the principal subject of this case during a 3-day helicopter and highway "view" in June 1988 which is described in Schedule 1 to this judgement. I also took many automobile trips into the territory during many of the evenings of the nearly 50 days I sat in Smithers. These explorations were for the purpose of familiarizing myself, as best I could, with this beautiful, vast and almost empty part of the province.

MacEachern CJ in Delgamuukw v. British Columbia [1991] B.C.J.No.525 (QL), p.35

The imperial endeavour encourages construction of space as a universal, measurable and divisible entity, for this is a self-legitimizing view of the world. If it were admitted that different cultures produced different spaces, then negotiating these would be difficult, if not impossible. Constructing a monolithic space, on the other hand, allows imperialism to hierarchize the use of space to its own advantage. In imperial ideology the Aborigines do not have a different space to that of the explorers; rather they underutilize the space imperialism understands as absolute. The construction of a universal space also allows a homogeneous mapping practice to be applied to all parts of the world: maps become an imperial technology to facilitate and celebrate the further advances of explorers, and display worldwide imperial possessions.

Simon Ryan, The Cartographic Eye: How Explorers Saw Australia (Cambridge: Cambridge University Press, 1996), pp. 4-5

What we see by way of landscape and how we use and manage land/territory will effect the claims we make to it and will depend on whether we are an Australian Aboriginal, a Cree or Haida Indian, a fur trader, a New South Wales pastoralist, a dispossessed Scottish Highlander, a colonial governor sent out with instructions to plant the flag and found a colony, a government land surveyor, a rancher or stock breeder, a wheat farmer, a Chinese immigrant consigned to Chinatown, a city surveyor, or a settler from a religious commune.

The relationship between how we see land and water and the cultural significance of topography on the one hand, and how we translate that process of visioning into systems of managing land and its use through law, custom and regulation is one which has generated engaging and provocative scholarship on the construction of space both in geographic and legal terms. Consider the following statements from Nicholas Blomley's Law, Space and the Geographies of Power (New York: The Guilford Press, 1994):

...within legal thought and practice are a number of representations - or "geographies" - of the spaces of political, social, and economic life. In much the same way that law relies in various ways on claims concerning history, so it both defines and draws upon a complex range of geographies and spatial understandings. While struggling to make sense of the ambiguity and complexity of social life legal agents - whether judges, legal theorists, administrative officers, or ordinary people - represent and evaluate space in different ways. (Preface, xi)

The legal representation of space must be seen as constituted by - and, in turn, constitutive of - complex, normatively charged and often competing visions of social and political life under law. (Preface, xi)

Space, like law, is not an empty or objective category, but has a direct bearing on the way that power is deployed, and social life structured. I will argue that geographies of law are not passive backdrops in the legal process, or of random import, but, in combination with their implied claims concerning social life, can be powerful, even oppressive. (Preface, xii)

Legal geography seems to share a common ground with critical legal scholarship: law is socially constructed and politically charged. Critical geographers view space as being fundamentally social, they have a relational view of space: "Drawing on those such as Lefebvre (1991), some theorists regard space as both socially produced and socially constitutive, and as deeply implicated in power relations (Massey, 1992)." (p. 42)

There is a revealing excerpt from Lefebvre in Law, Space and the Geographies of Power, ending with: "...Space has been shaped and moulded from historical and natural elements, but this has been a political process. Space is political and ideological. It is a product literally filled with ideologies." (p. 43)