Constructing Law, Space, and their Subjects:
European Conceptions of Aboriginal People,
their Governance and Law

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It is common, when one thinks of Indian land claims, to think of Indians living off the land in pristine wilderness. Such would not be an accurate representation of the present life-style of the great majority of the Gitksan and Wet'suwet'en people who, while possibly maintaining minimal contact with individual territories, have largely moved into the villages. Many of the few who still trap are usually able to drive to their traplines, and return home each night.

Similarly, it would not be accurate to assume that even pre-contact existence was in the least bit idyllic. The plaintiff's ancestors had no written language, no horses or wheeled vehicles, slavery and starvation was not uncommon, wars with neighbouring peoples were common, and there is no doubt, to quote Hobbs [sic], that aboriginal life was, at best, "nasty, brutish and short."

McEachern, CJ in Delgamuukw v. British Columbia [1991] B.C.J. No. 525 (QL) pp. 155-56

Early in this century, most anthropologists, including Diamond Jenness, who wrote the 1932 classic, The Indians of Canada, concluded that pre-contact population-growth rates must have been very low in most areas because Aboriginal groups lived a precarious migratory existence, with accidents, frequent famines, and conflicts within and between nations causing high mortality and low fertility rates. Jenness speculated that pre-contact infant mortality rates had always been high "partly through ignorance of some of the most elementary principles in child welfare." These assumptions were plainly wrong, having been made at a time when the surviving Native cultures led a marginalized existence, which was itself largely responsible for the living conditions Jenness described. Also, it was a time when cultural-evolution models were popular among anthropologists. These schemes placed the hunters and gatherers of the world on the low end of the cultural-evolutionary scale and postulated that the people existed on the edge of starvation.

We now know that fishers, hunters, and gatherers in general, and many Native Canadian societies in particular, obtained stable supplies of food with far less effort and much more ingenuity than was previously supposed. In fact, some anthropologists suggest that these were the original affluent societies because people spent remarkably little time working to meet basic requirements. This new perspective does not deny that starvation occurred but suggests famines were probably no more frequent among hunters, fishers, and gatherers than among farmers. There is no reason to infer that the economic orientation of Indigenous societies severely limited population growth or that warfare caused a chronic drain on population numbers.

Ray, Arthur J. in I Have Lived Here Since The World Began (Toronto: Lester Publishing, 1996) pp. 20-21.

When Europeans came into contact with indigenous people in Australia and Canada (and, indeed, elsewhere) not only did they have difficulty in understanding the indigenous conception of space and its use, but they were also often of the view that Aboriginal people lacked anything which could be described as a system of government and law. Their lives were seen as anarchic and pointless. Explanations varied from idealizations of these people existing in a utopian state of nature, to much harsher characterizations of them as uncivilized savages, ruled by their passions and the blood lust. Many of the European newcomers, whether from ignorance or design, were prepared to write off aboriginal cultures as primitive, crude and hopeless. This mindset led colonial governors and settlers to treat some of these peoples as non-entities, and the land they inhabited as terra nullius, the possession of no one, which was therefore ripe for settlement without any consideration of their rights in and use of the land, or recognition of their political and legal institutions.

European artists were fond of drawing and painting landscaps which showed the ordered development of space by settlers, with the Aboriginal inhabitants as a yet untamed sideshow.

European order
Click for image
This painting is an early Australian example of an image of European order (1794)

Rejection of Aboriginal title and institutions seems to have been the increasingly dominant view in Australia from 1788. As the Instructions to Governor Phillip show, from the very first British practice towards Australian Aboriginals was ambiguous. In British North America the situation was more complex, because there were economic and strategic considerations which meant that the newcomers were forced to recognize de facto or de jure the claims of aboriginal people to the territory they occupied and that they had institutions with which it was necessary, in some circumstances, to treat. The British interest in harvesting furs in North America, dating from grant of the Royal Charter of 1670 by Charles II, while it purported to give the Gentlemen Company of Adventurers (Hudson's Bay Company) proprietary rights over the vast terrain known as Rupert's Land, was only possible with the cooperation of the Indian peoples who secured the pelts themselves or acted as intermediaries with the hunters. Although prompted by the desire for profit on the part of the Europeans rather than by political considerations, the need to preserve alliances for trading purposes meant in practice the recognition of the existence of structures of authority and decision-making among native peoples, in effect their modes of government, laws and systems of justice.

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