E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW
ISSN 1321-8247
Volume 4 Number 3 (September 1997)
Copyright E Law and/or authors
File: inne43.txt
ftp://www.murdoch.edu.au/pub/elaw/issues/v4n3/inne43.txt
http://www.murdoch.edu.au/elaw/issues/v4n3/inne43.html
________________________________________________________________________

Aboriginal Rights and Interpretative Responsibility

Larry Innes

     Introduction

  1. For the past 25 years, questions about the nature and extent of
     aboriginal rights have been central to the relationship between
     aboriginal people and the Canadian state. The contemporary discourse
     on aboriginal rights differs in certain key respects from that of
     earlier periods in Canadian history, perhaps most notably because
     Aboriginal participation is not being actively suppressed by the
     state.[1] Aboriginal people and organizations have become prominent
     features on the Canadian political landscape. At times, Aboriginal
     issues have enjoyed a high media profile and strong public support
     which have occasionally resulted in real victories for Aboriginal
     people, such as the indefinite postponement of the Great Whale
     hydroelectric project. More often, however, the result is frustration
     as Aboriginal energy and resources are diverted into negotiations and
     consultative processes which seem to accomplish little or nothing.
     Increasingly, this frustration is emerging in conflict as Aboriginal
     people engage in active resistance and even armed confrontation in
     order to protect their land and rights.

  2. Aboriginal issues achieved wide public prominence following the
     political defeat of the 1969 White Paper by national aboriginal
     organizations.[[2] Subsequent victories in the courts by the Nisga'a
     in Calder and by the Cree and Inuit in Kanatewat led to the
     development of federal government policies which admitted the
     existence of aboriginal rights, not the least of which was the federal
     comprehensive claims policy which re-opened the possibility of
     negotiating new treaties between Aboriginal people and Canada. The
     entrenchment of Aboriginal rights in s. 35 of the Constitution Act
     1982, which recognized and affirmed the "existing aboriginal and
     treaty rights of the aboriginal peoples of Canada", instead of
     resolving questions about what aboriginal rights are and what they
     mean, has for the most part made the issues more complex.

  3. As this paper is being written, the media is paying a great deal of
     attention to the recently concluded Agreement-in-Principle that the
     Nisga'a have reached with Canada and British Columbia under the
     federal comprehensive claims process. The focus of most reports is on
     the cash settlement and land which the Nisga'a may, pending
     ratification by all parties, receive under a final agreement. The
     agreement is being heralded as a landmark, and in many ways it is. It
     is the first settlement of a so-called "land claim" within a province
     since the James Bay and Northern Quebec Agreements were signed with
     the Cree, Inuit and Naskapi in the late 1970's[[3].

  4. But the proposed settlement has also sparked a new round of
     controversy over the issue of "land claims" in Canada.[[4] The current
     climate of public opinion in British Columbia appears, through the
     media's lens, to be largely hostile to the Nisga'a agreement, and
     provincial politicians of all stripes are moving as quickly to
     distance themselves from the agreement as they were to denounce the
     events at Gustafson Lake.[[5]

  5. The apparent gains made by Aboriginal people in recent policy
     statements[[6] and landmark court decisions such as Guerin and
     Sparrow[[7], which many interpreted as pointing towards the
     possibility of a new and respectful relationship between Aboriginal
     people and the Canadian state, are at risk of being eroded by what
     seems to be a slow but perceptible shift towards a much more narrow
     and restrictive reading of Aboriginal rights by governments and the
     courts. As the events of the past summer attest, this retrenchment is
     being met by increasing levels of frustration and militant resistance
     from Aboriginal people.

  6. This is a situation which desperately requires a resolution. However,
     it seems that none of the existing mechanisms for dealing with the
     rights of Aboriginal people in Canada, such as negotiations or
     recourse to the courts, is able to offer a meaningful solution:

          [i]f negotiation is to be an alternative to actions of
          violence and confrontation, such as those at Oka,...surely
          it is incumbent upon those who care to ensure that the
          alternative be one that works. History shows clearly that at
          this point it can only be said that the present processes
          and policy for dealing with Indian land claims have been an
          exercise falling far short of anything resembling
          success.[[8]

  7. In my analysis, the reason for this failure is quite clear. The
     dominant Euro-Canadian culture has the power to enforce its own
     framework of values, laws and institutions as the only "legitimate"
     framework in Canada. That it has done so in the past is not a question
     that can be seriously disputed, but that it continues to do so in the
     present is more than mildly discomforting to those who see this
     country as being committed to the rule of law and respect for human
     rights.

     Aboriginal Rights, the Law and the Canadian State

  8. Despite some recent events, it is tempting to see the prominence given
     to Aboriginal issues over the past few decades as evidence that
     governments are progressively recognizing their "lawful obligations"
     towards Aboriginal people. While this reading is consistent with the
     official position expressed in Canada's comprehensive claims policy,
     it tends to gloss over the disturbing conclusions of many observers
     that Aboriginal rights only seem to be recognized when it is in
     governments' interests to do so.[[9] As the following brief historical
     survey suggests, Aboriginal rights, even those explicitly stated in
     law, have had little effect on the complex relationship between
     Aboriginal people and the Canadian state.

  9. During the early colonial period, most Aboriginal peoples were well
     able to protect their land, rights and interests against European
     claims. The early treaties commonly took the form of oral agreements
     between European settlers and Aboriginal groups and dealt with issues
     related to trade, mutual defense, the use or cession of land and
     resources, etc. Generally speaking, treaties were only entered into by
     the Crown when it was expedient to do so. The commercial and military
     interests of the European powers at this crucial period led them to
     acknowledge the rights of their Aboriginal allies to their lands and
     ways of life while simultaneously asserting their sovereignty over
     these territories against the claims of other European states. The
     preamble of Part IV of the Royal Proclamation of 1763, issued by King
     George III after the fall of Quebec and the Treaty of Paris, is
     notable in this regard:

          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 and
          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.[[10]

 10. At the time it was issued, the Royal Proclamation was irrelevant to
     most Aboriginal peoples in what was becoming Canada. It was much more
     important to the military security of the fragile colonies to assure
     those groups already within the sphere of European influence that
     their lands and rights would be protected by the Crown, as incursions
     by settlers into Aboriginal lands had already resulted in tension and
     confrontation.[[11] Over several centuries, however, the strength of
     Aboriginal peoples within the expanding spheres of European influence
     declined in relation to the settlers, and successive Aboriginal groups
     were slowly forced to accept the authority of the Crown and enter into
     agreements which required them to cede their land.[[12] In some areas,
     formal treaties were signed, but this process was both erratic and
     incomplete, especially in those regions where the European presence
     was limited to trading posts and missionary efforts until well into
     the twentieth century. Usually, settlement was well underway before
     the Crown found it necessary to reach agreements with the Aboriginal
     people, and in many regions, no agreements have ever been signed.

 11. The patchwork process of colonization, and the relationship that has
     developed between the Crown and Aboriginal people from the earliest
     treaties to present government policies, has been accompanied by the
     evolution of a "doctrine of aboriginal rights" in the courts. This
     doctrine can be traced in law directly to the Royal Proclamation, and
     arguably, to the earliest treaties and the principles of British
     common law. Put briefly, recent interpretations of this doctrine by
     the Supreme Court in Guerin and Sparrow hold that the Crown, in its
     dealings with Aboriginal peoples, has accepted that they "would retain
     their lands, as well as their political and cultural institutions and
     customary laws, unless the terms of treaties ruled this out or
     legislation was enacted to the contrary"[[13]. Furthermore, the Crown
     has "assumed a general obligation to protect Aboriginal peoples and
     their lands and generally look out for their best interest s-in what
     the judges have described as a fiduciary or trust-like
     obligation".[[14]

 12. Many commentators have been rightfully critical of the failures of
     governments to live up to their lawful obligations towards Aboriginal
     people.[[15] Whether these lawful obligations are derived from prior
     occupancy, the treaties, the Royal Proclamation, or from the
     principles of common or international law, they are held to be
     standards against which government policy and practice can be
     measured. On this basis, it is easy to establish and document the
     contemporary and historical failures of Canada to recognize and affirm
     existing Aboriginal and treaty rights. I will not attempt to recount
     these issues here, as there are many accounts which do far more
     justice to these important matters than I can in this paper.

 13. My primary concern is that when "lawful obligations" are taken as the
     normative basis for the relationship between the Aboriginal people and
     the Canadian state, Aboriginal rights are ultimately defined, limited
     and constrained by the Euro-Canadian worldview. I must be clear that I
     am not suggesting that the lawful obligations which are present in the
     Royal Proclamation or the Constitution Act (1982) or those which been
     established by the courts in cases like Guerin and Sparrow are steps
     in the wrong direction-far from it. What I am saying is that when we
     rely on the courts or the legislatures to define Aboriginal rights, we
     run the risk of limiting, in fundamental and often irrevocable ways,
     the possibilities for radical and positive change in what has been a
     long and terrible history. Aboriginal rights have already being
     limited and circumscribed by a narrow but legal reading of the whole
     line of authorities from las Casas and de Vitoria to Dickson. As
     Kulchyski notes:

          There can be no answer to the question 'what are Aboriginal
          rights?' that is not in the terms of the dominant,
          non-Native society...any answer to the question 'what are
          Aboriginal rights?' is already an attempt to confine,
          constrain, demarcate and delimit those rights and
          consequently part of the process of confining, constraining,
          demarcating and delimiting Aboriginal peoples.[[16]

 14. Slattery, whose influential article Understanding Aboriginal Rights
     played a significant role in the Sparrow decision, also recognizes
     that "there is a danger that S. 35 can become a legal prison, locking
     native peoples into historically-based structures that can impede them
     from playing their proper role in modern Canadian society" and warns
     that "This danger can be averted only by interpreting the section in
     the light of the fundamental values that inform it."[[17] But as
     Patricia Montour-Angus observes, "what Canadians have written into
     their constitution does not necessarily reflect the values they will
     live by".[[18] This tension between the law and societal values will
     be developed in theoretical terms in the next section.

     Legal Closure and Injustice

 15. My intention in this section is to briefly sketch the broad outlines
     and major premises of what is arguably one of the dominant views of
     the law in Canada. I do so to provide a context for introducing a
     critique of the doctrine of legal closure, which I hope to develop
     with later reference to the work of Drucilla Cornell and Jacques
     Derrida, into an alternative account of interpretative responsibility
     with respect to Aboriginal rights. My concern, as I indicated earlier,
     is that when we talk about "lawful obligations" as the fundamental
     basis for the relationship between the Aboriginal people and the
     Canadian state, we privilege legal discourse and the judicial
     interpretation of a few notoriously ambiguous documents over and
     against the other possibilities for meaningful dialogue across all of
     our differences.

 16. While I recognize the need for some form of arbitration in society, I
     would like to suggest that the imposition of a Western system of law
     on Aboriginal people by the dominant society is itself an injustice.
     Most Canadians recognize the injustice of the institutional
     assimilation attempted by the residential school system. Imposing the
     Euro-Canadian legal system-stacked as it is with judges drawn nearly
     exclusively from the dominant society-on Aboriginal people is an
     action of the same order. Despite a few promising attempts to
     introduce more culturally appropriate ways of conducting the court and
     alternative forms of sentencing, for the most part the Canadian legal
     system remains a fundamentally alien institution to Aboriginal
     people.[[19]

 17. One of the major reasons for the failures of the courts to deal justly
     with Aboriginal people is that much of Western law and legal practice
     is premised on the assertion of legal closure, a principle which holds
     that the law is an autonomous institution with its own standards of
     interpretation and evidence that allow it to remain objective,
     removed, and aloof from the preoccupations of contemporary social and
     political life. The law, according to many orthodox legal scholars,
     provides a fundamentally rational and reasonable basis-a fixed point
     of reference-for resolving complex disputes within society. This
     school holds that the findings of the law in such matters may held to
     be consistent with a reasoned interpretation of what is good and just,
     based on a long judicial tradition; or alternatively, in a stronger
     formulation known as legal formalism, the facts of law can be
     objectively known through a rigourous and self-sufficient set of
     interpretative procedures.[[20]

 18. Furthermore, Western law and legal practice is intimately bound to
     liberal ideology; consequently, its primary focus is on individual
     rather than collective rights.[[21] In this regard, Mr. Justice
     O'Sullivan, in the Manitoba Reference case which adjudicated the
     question of minority language rights entrenched in s. 23(1) of the
     Canadian Charter of Rights and Freedoms, favourably quoted one of the
     principle architects of the Charter, P.E. Trudeau: "In my philosophy
     the community, an institution itself, has no rights. It has rights by
     delegation from the individuals. You give equality to the individuals
     and you give rights to the individuals. Then they will organize in
     societies to make sure that these rights are respected."[[22] This
     view of individual versus collective is particularly problematic for
     many Aboriginal peoples who inhabit a moral universe which is grounded
     in duties and accountability not only towards the group, but to
     animals and the land itself.[[23]

 19. I want to dwell for a moment on the doctrine of legal closure, as it
     provides an important starting place for developing an account of
     interpretative responsibility which I believe is central to
     understanding the thorny questions around Aboriginal rights in Canada.
     The doctrine of legal closure is justified by what, on the surface of
     things, is a quite reasonable assertion that in order to remain an
     independent and neutral arbitrator, the law must blind itself to the
     politicized struggles of society. The issues and passions of the
     moment enter the courts-and the law-only on the law's terms. Over the
     past few years, however, there has been increasing attention and
     energy directed towards a growing body of critical legal scholarship
     which recognizes that "the drawing of the conceptual boundary of law
     and the hoisting of the flag of legal theory over that terrain is not
     an innocent act".[[24] Critical legal studies are grounded in a number
     of perspective s and cover a wide range issues, some of which are
     quite unrelated to my concerns in this paper.[[25] What unifies this
     field is the position that the law and its practitioners are not
     autonomous and objective but deeply implicated in the cultural, social
     and political circumstances of the present historical moment.

 20. In critical legal theory, the primary discourse of law is the
     discourse of power. It contributes to the structure of our world by
     creating spaces for social action, by creating and maintaining
     distinctions between people, places and events. Legal closure serves
     to make these distinctions appear natural and accordingly,
     prepolitical, uncontroversial and non-negotiable. Accordingly, for
     those who see the law as having the potential for transformative and
     emancipatory change, the doctrine of legal closure is a barrier to the
     realization of this potential.

 21. This has particular relevance to the question of Aboriginal rights.
     One of the central problems that has dogged Western theories of social
     change since Plato wrote the Republic is conceiving other
     possibilities for social ordering and envisioning the Good. But when
     we begin to recognize that, possibly, these difficulties may be due to
     our own limited and contingent understandings, and that there are
     other cultures, other forms of social life which rely on different
     conceptions of the Good, we start to apprehend the possibilities
     inherent in an appreciation of the differences between Aboriginal
     people and the dominant Euro-Canadian society.

 22. One such possibility, to take a brief aside from my principle
     arguments, is that Euro-Canadian relationships with(in) the natural
     world could be informed and perhaps transformed by learning and
     incorporating some of the fundamental teachings of respect and duty
     which are, broadly speaking, central to the Aboriginal worldview.[[26]
     Kapasheshit and Klippenstein note in this regard that:

          It is not possible to borrow Aboriginal environmental ethics
          and graft these into non-Aboriginal cultures because
          Aboriginal cultures are embedded in a particular context
          where the impact and meaning of a tradition stems from
          life-long conditioning, preparation and participation.
          Aboriginal cultures are built into language, into the way
          day-to-day life is lived, and it is found within a specific
          physical social context. However, while non-Aboriginals
          cannot adopt an Aboriginal worldview, they can look to this
          worldview for inspiration, and for a reminder that positive
          relationships with the environment can and do exist.[[27]

 23. This approach is, in a limited way, being pursued through
     "co-management" agreements between governments and Aboriginal peoples
     and the recent incorporation of "traditional ecological knowledge" (or
     TEK, as it is often abbreviated) into environmental assessments and
     other formal processes. One of the key contributions of Aboriginal
     environmental understandings has been a rethinking of the "tragedy of
     the commons" scenario. Since Pinchot, most Western resource management
     has been premised on the belief that locally managed communal
     resources will be depleted by self-interest and strategies which seek
     to maximize individual profits.[[28] However, the "tragedy" scenario
     does not tend to occur in self-regulating Aboriginal harvesting
     systems because they are premised on ideas of duty and respect, rather
     than self-interest and short-term profits.[[29] The significance of
     this, in light of the foregoing discussion, is that once we begin to
     recognize and respect the differences between Aboriginal peoples and
     ourselves, it opens up new possibilities for changing the way we
     understand our world and organize our society.

 24. To return to my central concerns and the critique of "lawful
     obligations" as the normative basis for the relationship between the
     Aboriginal people and the Canadian state, it must be noted that the
     new possibilities implicit in the example of Aboriginal environmental
     ethics are constrained by the limits of our understanding and the
     prescriptive and normative power of existing institutions. In most
     cases where co-management arrangements are in place, the Aboriginal
     participants only have an advisory role, while the ultimate authority
     remains firmly in the hands of government. This relationship is
     clearly unsatisfactory to Aboriginal people who seek "some form of
     clear recognition that the co-management arrangements themselves
     derive from the systems of knowledge and social rights of the groups"
     and arrangements which "effectively recognize the autonomy of
     self-managers, and their participation with equal authority, legal
     standing, resources and respect."[[3 0]

 25. That government is not presently willing to consider such a
     relationship with Aboriginal peoples is, I think, so clearly evident
     that it requires no substantiation. What I want to make explicit is
     the fundamental injustice that is inherent in this unwillingness.
     Daniel Ashini, the chief negotiator for the Innu Nation, recently
     explained it this way:

          Imagine how you would feel if you were told Canada's fishing
          dispute with Spain would be settled by the Spanish courts or
          by negotiations with the terms of reference for negotiations
          unilaterally set by the government of Spain. Why not? Spain
          will assure you that the courts in Spain are very objective
          and they will make a decision based only on the evidence.
          Spain will assure you that negotiations will be fair even
          though extinguishment of Canadian rights outside the 200
          mile limit is a required term of reference for negotiations.
          You will be told that you should trust the process. I think
          that most Newfoundlanders and probably most people here
          today would say that this way of settling the fishing
          dispute would be fundamentally unjust. You would have a real
          sense of unease and mistrust about this unilateral way of
          proceeding. There would be many legitimate reasons for this.
          The Spanish system of justice is different than the Canadian
          system of justice. It is based o n different values; it
          emerged through a different historical development, its laws
          of evidence and the place of precedent are different than in
          Canada and so on. The problems that you would have with
          Spain settling the turbot wars are the same problems we have
          about Canada or Newfoundland unilaterally deciding about
          Innu rights. It is not that we have any distrust of judges
          as individuals. This is not the case. What we have problems
          with is that your justice system is foreign to our values
          and our way of life. Besides, we have our own system of
          justice which you deny we have the right to practise.[[31]

 26. Ashini's comments make it clear that the problem, from an Innu
     perspective, is fundamentally one of respect (or the lack of it) for
     the differences that exist between the Innu and Euro-Canadian
     worldviews. A legal system which attempts to maintain closure, which
     erases or ignores these differences, can never achieve justice for
     Aboriginal people. As Avital Ronell writes:

          Nothing today can be manifested. Except, possibly, the fact
          that humanity is not yet just. The indecency of a humanism
          that goes on as if nothing had happened...Henceforth,
          Justice can no longer permit itself to be merely backward
          looking or bound in servility to sclerotic models and their
          modifications (their "future"). A Justice of the future
          would have to show the will to rupture.[[32]

 27. As I will argue in the following section, it is possible for the
     courts and governments to demonstrate the "will to rupture" by heeding
     the ethical call inherent in Aboriginal rights. In fact, I will
     suggest that the law itself inevitably involves choices which means
     that the law is necessarily less fixed and rigid than those committed
     to legal closure would like to believe.

     Interpretative Responsibility

 28. There are two recent lines of cases which illustrate, in positive and
     negative ways, what I have been calling interpretative responsibility.
     The first, Sparrow, and the second, Delgamuukw are remarkable not only
     because the decisions differed substantially in their rulings on
     questions of Aboriginal rights, but because of the very different ways
     in which the judges conducted the proceedings in the court,
     interpreted the authorities, and dealt with the evidence, testimony
     and arguments presented by or on behalf of the Aboriginal people. My
     specific interest in these rich and complex cases centres not only on
     the important differences in the ways that the judges in these
     decisions interpreted Aboriginal rights-but in how they received the
     evidence presented to the court by Aboriginal people about what these
     rights mean to them.

 29. For example, in the Sparrow decision, Dickson CJ wrote that "the
     phrase 'existing aboriginal rights' must be interpreted flexibly so as
     to permit their evolution over time...the word 'existing' suggests
     that those rights are 'affirmed in contemporary form rather than in
     their primeval simplicity.'", and he emphasized that an approach "to
     the constitutional guarantee embodied in s. 35(1) which would
     incorporate 'frozen rights' must be rejected."[[33] However, in
     Delgamuukw, McEachern CJ concluded that "the aboriginal activities
     recognized and protected by law are those which were carried on by the
     plaintiff's ancestors at the time of contact or European influence and
     which were still being carried on at the date of sovereignty, although
     then by modern techniques."[[34] Yet, throughout the judgment,
     McEachern CJ makes frequent references to the 'fact' that the Gitksan
     and Wet'suwet'en "do not now live an Aborigin al life", as evidenced
     by the following remarks:[[35]

          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. 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
          minimum 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 in the territory was the least bit
          idyllic. The plaintiff's ancestors had no written language,
          no horses or wheeled vehicles, slavery and starvation were
          not uncommon, wars with neighbouring peoples were common,
          and there is no doubt, to quote Hobbs [sic], that aboriginal
          life in the territory was at best 'nasty, brutish and
          short'.[[36]

 30. Clearly, these are very different judgments. But where do we turn for
     an explanation or a justification of these decisions? How can
     McEachern CJ's ruling that Aboriginal rights are 'frozen' and that
     Aboriginality is what existed prior to contact be consistent with an
     earlier judgment in a higher court that Aboriginal rights must be
     "affirmed in contemporary form"? This is not just a disagreement about
     whether Aboriginal rights are in some sense 'frozen' in those things
     which are historically characteristic of Aboriginal people or whether
     Aboriginal rights continue to grow and change with the culture. There
     is a more fundamental issue at question here-one which points to the
     way in which Canadians seek to define their relationship to Aboriginal
     people.

 31. I should note that while many of McEachern's findings were overturned
     by the BC Court of Appeal in 1993, many of the issues at the heart of
     the trial have not been resolved. The case is now before the Supreme
     Court of Canada which is expected to hand down a decision later this
     fall. It is therefore timely to review the reasoning of the judges in
     this matter, both at trial and in appeal. If Sparrow held forth the
     promise that Aboriginal rights could be treated by the courts in an
     ethical and honourable way, the Delgamuukw line of cases continue to
     cast a shadow on contemporary Aboriginal-Canadian relations because
     the original judgement and many of the findings in appeal illustrate
     the ongoing failures of Canadian courts to be attentive to the
     critical ethical and legal obligations inherent in the concept of
     Aboriginal rights.

 32. Nevertheless, I would like to suggest that despite the tendency in
     Canadian law towards legal closure, there is always an element of
     possibility-the chance of a reversal-which means that the law is
     inherently more constructive, more critical, and more open to change
     than its many of its more conservative adherents may wish to believe.
     Here, I will rely extensively on Drucilla Cornell's redescription of
     Jacques Derrida's program of deconstruction as the "philosophy of the
     limit" .[[37] As a legal scholar, Cornell's approach to the
     "postmodern" problem posed by the rejection of a foundationalist
     grounding for the law relies on a deconstructive analysis which not
     only reveals the "philosophical fallacy of legal positivism" but the
     "moment of ethical alternity inherent in any purportedly self-enclosed
     system, legal or otherwise."[[38]

 33. The postmodern critique, in its various forms, is fundamentally a way
     of questioning and challenging the universal claims of various ways of
     knowing which have dominated Western thought and society since the
     Enlightenment. Postmodernism, as it has come to be called, has many
     roots and an increasing number of branches, many of which extend in
     very different directions. But it is not my intention to provide a
     survey of postmodernism here.[[39] Instead, I'd like to focus on what
     generally seems to be a basic tenet of most postmodern writing, which
     is that whatever may appear to be a cogent and fundamental assertion
     of 'truth' can invariably be reduced to a contestable agreement of a
     community of speakers.[[40]

 34. There are strong and weak variants of this tenet in postmodern writing
     including some which reach philosophically interesting but ultimately
     indefensible conclusions. While they are often interesting and
     challenging, for the most part I disavow theories of meaning which
     reject the possibility of adequate representation, and in so doing,
     reduce language to a meaningless game. My approach follows that of
     Ricoeur (1984), who argues against these excesses by noting "language
     does not constitute a world for-itself. It is not even a world.
     Because we are in the world and are affected by situations, we try to
     orient ourselves in them by means of understanding; we also have
     something to say, an experience to bring to language and to
     share."[[41] What I reject is not the possibility of communication,
     but the forcible imposition of certain ways of knowing, understanding
     and orienting ourselves in the world over all others. This is not only
     domination, but violence. As Derrida writes: "to address oneself to
     the other in the language of the othe r is, it seems, the condition of
     all possible justice."[[42]

 35. Derrida's observation provides an important bridge between
     postmodernism and legal scholarship. Postmodernism has many critics
     and deconstruction is often viewed with suspicion by writers who argue
     that without standards to establish legality or morality, we are only
     left with choices based on prejudices and preferences. They accuse
     postmodern thinkers of rejecting "public reason, the universal ideals
     of justice, and the rule of law, as well as the suspicion of all forms
     of social stabilization, even when couched in community ideals."[[43]
     Cornell, however, replies to these charges by suggesting that what
     liberal, orthodox legal scholars are missing in deconstruction is that
     it is fundamentally "an ethical insistence on the limit to 'positive'
     descriptions of the principles of modernity long-elaborated as the
     'last word' on 'truth', justice', 'rightness', etc."[[44] It is not an
     attack on the ideals of Truth, Jus tice or Rightness themselves, but
     on particular formations of these ideals which may appear to be
     oppressive and fundamentally unjust to those who do not share the same
     assumptions:

          A system that presents itself or attempts to present itself
          as benign and nurturing to those inside of it, as a liberal
          democracy based on principles of individual rights and
          equalities appears totalitarian to those, such as Aboriginal
          people, who experience its totalizing edges, who experience
          it as the process of totalization.[[45]

 36. The deconstruction of the doctrine of legal closure is therefore an
     ethical challenge which is crucial to those whose identity, culture,
     and lives may depend on legal transformation. But it is one thing to
     assert this, and another to justify it. How do we defend against the
     critics' charge that without standards, we are only left with choices
     based on prejudices and preferences? Cornell advances a sustained and
     complex defence that draws heavily on Adorno, Lacan, Levinas and of
     course, Derrida, to argue that deconstruction points beyond our
     present understandings of Truth, Justice and Right by reminding us of
     our ethical responsibilities to what is Other. I will summarize some
     of it in what follows but I refer the reader to her work for a much
     richer and through treatment.

 37. The philosophical framework of the modern legal project owes a great
     deal to Kant and Hegel and I would be remiss to embark on this
     discussion without some reference to their contributions. In the
     Foundations of the Metaphysics of Morals, Kant argued that particular
     circumstances and motives are no basis for moral guidance. He declared
     that the universal, rather than the particular and the contingent, was
     the only basis for ethical action. His famous categorical imperative
     asks that we act only in ways which we would have become universal
     laws. In his ethics every individual is at once a lawgiver and a moral
     subject. The fusion that he achieved between universality and
     individuality is still present in the Canadian legal tradition as
     previously discussed in the section on legal closure. But Kant's
     project came under heavy attack by Hegel who in the Philosophy of
     Right rejected the idea that the individual as a self-legislating
     subject could somehow rise above their particular circumstances to
     become truly moral. He argued that Kant's categorical imperative could
     only be meaningful when read with tacit acceptance of "do unto others
     as you would have them do unto you", that is to say that it only has
     content in the context of a shared ethical reality. For Hegel, there
     is no transcendental subject-the universal ideal of the Good can only
     be achieved in the legal sphere "as the realized ideal of the
     relations of reciprocal symmetry between persons".[[46] Thus, in the
     synthesis of Kant and Hegel we find philosophical support for appeals
     to universality (the Good and the Right) and the equality of
     individuals before the law.

 38. Cornell concurs that the ideal of the Good is necessary for legal
     interpretation. But the idea of "the Good" needs to be understood in
     two ways: first, in the strong sense of an ideal, and second, as the
     good embodied in the principles of a given legal system. There is a
     crucial distinction between the Good as an ideal and the good as
     embodied in particular legal principles. In Hegel's account, these
     distinctions are reconciled through the achievement of reciprocal
     symmetry between the individual and the community; however, for
     Levinas, this reconciliation can never be complete because there is
     always an Other, a Beyond to any system. And it is our encounter with
     the Other which calls us to the ethical relation: "The Law of Law or
     the Good, is precisely the echo of the Call of the Other as a
     prescriptive command that disrupts the Hegelian system and the
     pretense of any system to have adequately represented the totality of
     what 'is good'".[[47] Accord ingly, legal interpretation must appeal
     not only to the good embodied in legal principles but recognize the
     limits of these principles. The Good is not fully actual in the real.
     We must therefore remain open to the ethical call of the Other.

 39. In rejecting legal closure, Cornell also introduces what was referred
     to earlier as the "moment of ethical alternity", which I prefer to
     call interpretative responsibility. For Cornell, ethical alternity is
     the transformative possibility present in the act of legal
     interpretation: "Interpretation is transformation. Thus we need to
     remember that we are responsible, when we interpret, for the direction
     of that transformation. We cannot escape our responsibility implicit
     in every act of interpretation."[[48] To bring these abstract
     considerations to a practical level, as I will do in the following
     section, interpretative responsibility therefore requires judges who
     adjudicate in cases involving Aboriginal rights to recognize that they
     are not only ruling on what has been set down in precedent, but they
     are also ruling on what ought to be. They must directly confront
     Aboriginal people as Other. They cannot simply follow the logic of a
     system that h as for nearly 500 years allowed the rights of Aboriginal
     people to go unrecognized. This is what I understand Ronell to mean by
     "the will to rupture". The law as presently conceived is not yet
     Justice. But Justice exists not only as a possibility but as a call to
     responsibility inherent every act of legal interpretation.

     Delgamuukw as the Failure of Interpretative Responsibility

          Law is never just a mental or spiritual act. A legal world
          is built only to the extent that there are commitments that
          place bodies on the line. The torture of the martyr is an
          extreme and repulsive form of the organized violence of
          institutions. It reminds us that the interpretative
          commitments of individuals are realized, indeed, in the
          flesh.[[49]

 40. The organized violence that Canada has carried out against Aboriginal
     people continues today in many forms. I am not trying to be
     provocative. I am simply repeating what is being said loudly and
     insistently by Aboriginal leaders or less eloquently but no less
     powerfully by the people in the settlements who are watching a
     wholesale assault on their land and way of life. The facts, if one
     prefers, can also be read in the grim statistics of suicide,
     alcoholism, family violence and sexual abuse in Aboriginal
     communities. Or in the way in which Canada and the provinces continue
     to deal with Aboriginal peoples. Daniel Ashini, in his 1995 Northern
     Studies Lecture at Trent University, described it this way:

          A clear example of what I am talking about is the [then]
          present suspension of negotiations imposed by Canada and
          Newfoundland on the Innu Nation last September after the
          people of Utshimassit refused to allow the Provincial Court
          and the RCMP to return to their community and impose what
          Newfoundland Justice Minister Ed Roberts called the "rule of
          law". For the Innu, the "rule of law" that Mr. Roberts was
          attempting to impose through an armed RCMP assault on
          Utshimassit is synonymous with the destruction of our
          communities by the dominant society. We all bear the scars
          of the white-man's justice, which seeks to punish instead of
          heal. We have seen lives shattered and families destroyed by
          it...

          What Newfoundland and Canada are trying to do, first by
          force and now through sanction, is to force the Innu people
          to accept a definition of "justice" that is alien and
          offensive to us. The irony should be clear-Canada and
          Newfoundland are willing to commit injustice against us in
          order to impose "justice" on us. To these governments,
          justice evidently means "just us".[[50]

 41. Although these events occurred to an Innu community on the other side
     of the continent from the site of the Delgamuukw proceedings, among
     the many differences there are some powerful parallels that can be
     established in the retelling of these stories. In the case of the
     Innu, the people of Utshimassit had decided to reject the rule of
     Canadian law through the deliberate and symbolic gesture of evicting
     the circuit court judge and his retinue of lawyers, clerks and
     constables from the community in December 1993. In this way, they
     hoped to create a space for an Innu system of justice. But the 'rule
     of law' also implies a geography of power which began to take shape
     for the Innu in 1927 with the decision of the Privy Council in the
     adjudication of a long-running border dispute between Canada and
     Newfoundland.

 42. The Privy Council ruled in favour of Newfoundland, but the arguments
     that were presented in the case are interesting, in that neither
     Canada nor Newfoundland could present evidence of European occupancy
     beyond the coast and the lower reaches of the Churchill and Naskapi
     Rivers. Both governments therefore claimed that the Innu were "their
     Indians" and thus occupied the territory on their behalf. The 1927
     decision is significant because it constituted Labrador as a
     jurisdiction under the authority of Newfoundland. But in deciding
     between the two competing claims of Newfoundland and Canada, the Privy
     Council failed to recognize or even contemplate that the Innu might
     have presented another point of view. The Innu were displaced. Their
     use of the land and history as a people, such as it was known, was
     appropriated and used to advance competing European territorial
     interests. The same logic which claimed Innu land as Labrador was
     later applied to the Innu themselves-they beca me, in the eyes of the
     government, citizens of Canada and Newfoundland.

 43. Newfoundland's control over Utshimassit was eventually re-established
     by the threat of force and actual sanctions against the
     community.[[51] And in late 1994, I sat in a court room in Goose Bay
     and listened to Colin Flynn, the Chief Prosecutor for the Province of
     Newfoundland, deliver his summation in the trial of three Innu women,
     Chief Katie Rich, Nympha Byrne and Justine Noah, on charges related to
     their roles as leaders in the action which expelled the court and RCMP
     from the community. Flynn began his argument by establishing that
     Newfoundland was given clear jurisdiction over the territory of
     Labrador in 1927 by the British Crown. He then argued that under law,
     this jurisdiction extended to the Innu people of Utshimassit according
     to the "principle of territoriality" which meant that "control of the
     territory implies control of the persons in it". Flynn then produced
     "pieces of paper": copies of documents, including income tax
     statements and unemployment insurance applications, which purportedly
     demonstrated that the three women, despite their claims to the
     contrary, were incontestabl y Canadian citizens and therefore subject
     to Canadian law.

 44. The geography of power bears a strong resemblance to the geography
     that many of us learned in grade school when coloured maps showing the
     provincial boundaries were explained. It goes like this: "Labrador is
     a territory 'belonging' to Newfoundland, a province of Canada. It is
     inhabited by Labradorians, who are simultaneously residents of
     Newfoundland and Canadian citizens. It borders Quebec, which is
     another province of Canada...". In this discourse, the cultural
     differences between the Innu, the Inuit, Settlers and Newfoundlanders
     are collapsed into the abstraction of the "citizen" while the land and
     other living things become "resources". We learn that Canada is a
     state and that states are defined by their ability to pass laws that,
     among other things, govern the rights of the citizens, the ownership
     and control of resources, and the circulation of capital and
     commodities within their territory.

 45. The intent of the Gitksan and Wet'suwet'en hereditary chiefs, as the
     record clearly shows, was essentially the same as that which motivated
     the Innu to evict the court from their Utshimassit even if their
     methods were symbolically opposite. In Delgamuukw, the chiefs went
     before the court to seeking justice for their people through the
     judicial recognition of their rights, title and jurisdiction over
     their land. Instead, they received a judgment which found that their
     rights and title to their territory had been extinguished by the
     operation of law.

 46. McEachern CJ, in passing judgment on this case, clearly failed to
     exercise his interpretative responsibility. He relied instead on the
     force of the law and the self-conserving doctrine of legal closure to
     restrictively and narrowly interpret the authorities and legal
     precedents, conduct the proceedings, and define what would constitute
     acceptable evidence and testimony before the court. With all of the
     sensitivity to difference that McEachern CJ displayed, the trial could
     have been conducted by a machine:

          I have heard much at this trial about beliefs, feelings and
          justice. I must again say, as I have endeavoured to say
          during the trial, that Courts of law are frequently unable
          to respond to these subjective considerations. .....Courts
          of law labour under disciplines which do not always permit
          judges to do what they might subjectively think (or feel)
          what might be the right or just thing to do in a particular
          case.[[52]

 47. As I have argued in this paper, legal interpretation must appeal not
     only to the good embodied in legal principles but recognize the limits
     of legal principles and precedents in dealing with Aboriginal peoples.
     McEachern CJ, however, applied the logic of the legal system with
     vigour in order to consistently discount the evidence of land use and
     occupancy presented by the Gitksan and Wet'suwet'en people. The law
     defines what is relevant. There was one place in the judgment where
     McEachern CJ seemed to recognize what the limits of existing legal
     principles were with respect to the question of what constitutes an
     Aboriginal activity, and accordingly, an Aboriginal right. But rather
     than respond to this with sensitivity to the past, present and future
     reality of the Gitksan and Wet'suwet'en people, McEachern CJ proposed
     a legal hurdle over and above those described by Mahoney J in Baker
     Lake.[[53] He saw fit to determine that the only Aboriginal activities
     which are "recognized and protected under the law are those which were
     carried on by the plaintiff's ancestors at the time of contact or
     European influence and which were still being carried on at the date
     of sovereignty."[[54] The law defines what is required. On this basis,
     he concluded that the Gitksan and Wet'suwet'en people had established
     "as of the date of British sovereignty, the requirements for continued
     r esidence in their villages, and for non-exclusive aboriginal
     subsistence rights" on vacant Crown land.[[55]

 48. Earlier, I quoted Derrida's observation that "to address oneself to
     the other in the language of the other is, it seems, the condition of
     all possible justice." The inconsistencies in the way that McEachern
     CJ weighed the evidence presented during the trial are too numerous to
     enumerate in detail but they point to what can only be called a
     prejudice in favour of Western ways of knowing-or less charitably,
     towards the evidence presented by white men-even on points where the
     Gitksan and Wet'suwet'en should be considered to be experts.[[56] Just
     to take one example, at one point in the judgment, McEachern CJ notes:

          It is significant that trader Brown does not mention Indian
          Houses [the House structure around which Gitksan and
          Wet'suwet'en culture is organized] in his records. he seems
          to use the terms tribe, band, clan and family
          interchangeably, or perhaps imprecisely, but I am left in
          considerable doubt about the antiquity of the House system.

 49. The violence of the decision in Delgamuukw is partially exhibited
     through McEachern CJ's refusal to listen to what was really being said
     in the adaawk and kungax recounted to him by the Gitksan and
     Wet'suwet'en Elders. It was a refusal to acknowledge the reality of
     their Otherness and of his own responsibility to critically question
     the pretense of the scientists and historians who claimed to be able
     to know the histories of the people better than they did themselves.

 50. The argument that I have been advancing for interpretative
     responsibility requires judges who adjudicate in cases involving
     Aboriginal rights to recognize that they are not only ruling on what
     has been set down in precedent but they are also ruling on what ought
     to be. What McEachern CJ delivered in Delgamuukw was not a judgment in
     any ethical sense, but a self-conserving ruling which found its basis
     in the same logic which both justifies and describes several hundred
     years of colonialism and oppression. In his interpretation of
     precedent, including recent decisions of the Supreme Court of Canada,
     McEachern CJ undertook what can only be called a rear-guard action
     against anything but the most limited recognition of Aboriginal rights
     and title. His ruling on the application of the Royal Proclamation
     differs with that of the Supreme Court in Guerin, and as I have
     discussed, there is a dramatic difference between his view of
     Aboriginal rights and the in terpretation of s. 35 affirmed by the
     Supreme Court in Sparrow.

 51. Although many of McEachern's findings were overturned in appeal, the
     majority of judges on the British Columbia Court of Appeal also failed
     to exercise interpretative responsibility.[[57] Although Macfarlane JA
     stated in the majority decision that "the nature and content of an
     aboriginal right is determined by asking what the organized aboriginal
     society regarded as an integral part of their distinctive
     culture"[[58] , he paradoxically seemed to affirm the trial judge's
     view that Aboriginal people could not answer for themselves. To return
     to my earlier example from the original trial, I noted that in
     evaluating the evidence presented by the plaintiffs in relation to
     their land use and occupancy, McEachern CJ preferred to rely on the
     evidence of non-aboriginal witnesses. He further found that the
     evidence of land use and occupancy presented by Aboriginal witnesses
     was 'biased' by their very involvement in the trial and the land
     claims process that concerned their communities. Stunningly, the BC
     Court of Appeal upheld this view.

 52. As Andrea Bowker notes in her commentary on the case, "If a court is
     able to discount the worth of the evidence provided by the Aboriginal
     people concerned because it is 'biased', ... it is difficult to see
     how appropriate weight could ever be given to their perspective as
     suggested by Sparrow."[[59] What makes the point even more sharply is
     that the Court of Appeal affirmed the weight that McEachern CJ gave to
     the evidence of a certain Mr. Shelford (a former Cabinet minister and
     land owner in the area of the dispute), who claimed that he had never
     heard of Aboriginal claims of ownership or jurisdiction to the
     territory until very recently. The evidence of a former Cabinet
     minister was taken by both courts as factual and unbiased while that
     of the Gitksan-Wet'su-wet'en was dismissed.

 53. My point in providing this example is to emphasize that both courts,
     in attempting to deal with the general problem of defining Aboriginal
     culture for legal purposes, failed to meet the standard set by
     Sparrow. In the original trial and in appeal, the majority of judges
     failed to justify the "ought to be" implicit in their decisions. In
     exercising the court's power of definition, they conserved the closed,
     colonial approach to defining Aboriginal rights that continues to
     characterize Aboriginal-Canadian relations. As Derrida writes:

          for a decision to be just and responsible, it must, in its
          proper moment if there is one, be both regulated and without
          regulation: it must conserve the law and also destroy it or
          suspend it enough to have to reinvent it in each case,
          rejustify it, at least reinvent it in the reaffirmation and
          the new and free confirmation of its principle.[[60]

 54. If we hold interpretative responsibility to be an ethical standard on
     the basis of which we can judge the judges, Delgamuukw reflects a
     shameful history and a status quo posing as law and principle. The
     Supreme Court of Canada, in its deliberations on the case this fall
     has much to consider-and much work to do to return to the course set
     by Sparrow.

     Conclusions: The Possibilities of Difference

 55. To bring this essay to a close, I'd like to return to the aporia
     presented by Patricia Montour-Angus' observation that "what Canadians
     have written into their constitution does not necessarily reflect the
     values they will live by".[[61] Her statement can be read in at least
     two ways. Read in the first way, it is a projection of history: of
     broken promises and the continuing failures of a supposedly liberal
     democracy to recognize and affirm even narrowly defined Aboriginal
     rights. But we can also read a possibility for change. As I have
     argued, the recognition of Aboriginal rights in s. 35 is an
     opportunity for governments and the courts to demonstrate a
     "willingness to rupture" by redefining the relationship with
     Aboriginal people which has coloured so much of our history. When
     Aboriginal rights are understood in the terms of our ethical
     responsibility to the Other, "when the basis of rights is
     reinterpreted so as to be consistent with the ethical insistence on
     the divide between law and justice", we have preserved the
     "possibility of radical transformation within an existing legal
     system, including a new definition of rights."[[62]

 56. T hrough the exercise of interpretative responsibility, we may start
     to awaken the emancipatory possibilities inherent in an open
     appreciation for the differences between Aboriginal and Euro-Canadian
     cultures. Such a change would not only create a more just society for
     Aboriginal people but for ourselves.

Notes

[1] The efforts of the Department of Indian Affairs from the late 1800's
until relatively recently to actively assimilate Aboriginal people into the
dominant society while suppressing political organization and the pursuit
of Aboriginal rights in the courts are well documented. Under s. 141 of the
Indian Act, the solicitation or collection of funds from Indians to
actively pursue claims on their behalf were forbidden. This provision was
in effect from 1927 to 1951. Aboriginal people were not permitted to vote
in federal elections until 1960. See generally Leslie, J. and Maguire R.,
eds. (1987) The Historical Development of the Indian Act. 2nd ed. Ottawa:
DIAND and Titley, E.B (1986) A Narrow Vision: Duncan Campbell Scott and the
Administration of Indian Affairs in Canada. Vancouver: UBC Press

[2] Weaver, S. (1981) Making Canadian Indian Policy: The Hidden Agenda
1968-70. Toronto: University of Toronto Press

[3] The James Bay and Northern Quebec Agreement was signed in 1975; the
Northeastern Quebec Agreement was signed in 1978.

[4] The term "land claims" is offensive to many Aboriginal people as it
suggests that government owns something that Aboriginal people are claiming
instead of something that they have by right. "Land rights" is a term that
is preferred by many Aboriginal groups and will be used unless I am
referring to specific government policy. I will deal more specifically with
the issue of terminology later in the body of the paper.

[5] In the summer of 1996 at Gustafson Lake, British Columbia, heavily
armed police and military units employing armoured vehicles and even land
mines contained and arrested a small group of armed Aboriginal protesters
who were claiming the right to hold traditional Sundance ceremonies on
private ranchland.

[6] Such as the Ontario government's (under Rae's NDP) commitment to deal
with Aboriginal peoples on a "Nation-to-Nation" basis

[7] Guerin v. R (1984) 2 S.C.R. 335, 13 D.L.R (4th) 321 (S.S.C); R. vs
Sparrow (1990) 4 W.W.R 410 (S.C.C)

[8] Indian Commission of Ontario (1990) "Discussion Paper Regarding First
Nation Land Claims" p. 6

[9] The situation of the Lubicon is instructive in this regard.

[10] RSC 1970, App II, No. 1

[11] Stagg, J. (1981) Anglo-Indian Relations in North America to 1973 and
an Analysis of The Royal Proclamation of 7 October 1763. Ottawa: DIAND

[12] Slattery, B. (1987) "Understanding Aboriginal Rights" Canadian Bar
Review 66: 727 pg. 733-35

[13] ibid. p. 736

[14] ibid. p. 736

[15] See generally, Slattery supra.; Clark, Bruce (1990) Native Liberty,
Crown Sovereignty: The Existing Aboriginal Right of Self-Government in
Canada. Montreal: McGill-Queens University Press; J.R. Miller, ed. (1991),
Sweet Promises: A Reader on Indian-White Relations in Canada. Toronto:
University of Toronto Press.

[16] Kulchyski, P. (1994) Unjust Relations: Aboriginal Rights in Canadian
Courts. Toronto: Oxford University Press. p. 4

[17] Slattery, B. (1987), p. 783

[18] Montour-Angus, P. (1995) Thunder In My Soul: A Mohawk Woman Speaks.
Halifax: Fernwood. p. 156

[19] There is a large and growing literature on these issues. I am indebted
to Bart Jack, Director of Justice Issues for the Innu Nation, for my
understanding of these matters.

[20] A useful introduction to these issues is Dworkin, R. (1983) "Law as
interpretation" in Mitchell, WJT ed. The Politics of Interpretation..
Chicago: University of Chicago Press p. 249-270

[21] The exception to this being the corporation which is legally
constituted as having the rights of an individual.

[22] Reference Re: Public Schools Act (Man.) (1990), 64 Man. R (2d) 1 at 79

[23] See Boldt, M and Long, JA (1985) "Tribal Traditions and European
Western Political Ideologies: The Dilemma of Canada's Native Indians" in
Boldt, M and Long, JA, eds. (1985) p. 333

[24] Hunt, A. (1987) "The critique of law: What is critical about critical
legal theory?" J. Law and Society 14(1): 5-19, pg. 12

[25] For a useful survey of the field, see Hutchinson, AC, ed. (1988)
Dwelling on the Threshold: Critical Essays on Modern Legal Thought.
Toronto: Carswell

[26] Booth, A. and Jacobs, H. (1990) "Ties that Bind: Native American
Beliefs as a Foundation for Environmental Consciousness". Environmental
Ethics 12:27

[27] Kapashesit, R. and Klippenstein, M. (1991) "Aboriginal Group Rights
and Environmental Protection" McGill Law Review 36(3): 925-61. p. 931

[28] Hardin, G. (1986) "The Tragedy of the Commons" Science 162: 1243

[29] See, for example Feit, H (1973) "The Ethno-ecology of the Waswanipi
Cree" in Cox, B. ed Cultural Ecology. Toronto: McLelland and Stewart. pp.
115-125. In contrast, the failure of the so-called "rational allocation"
and "scientific management" strategies employed by the Western resource
bureaucracies should be readily apparent to most observers of the recent
collapse of the Northern Cod stocks in Newfoundland.

[30] Feit, H. quoted in Kapashesit, R. and Klippenstein, M. (1991), p. 936

[31] Excerpted from Ashini, D. (1995) Address to Law Day Luncheon. Canadian
Bar Association, St. John's, Newfoundland, 12 April 1995.

[32] Quoted in Kulchyski, P. (1994), p. 1

[33] R. vs Sparrow (1990) 4 W.W.R 410 (SCC). Quotations from the edited
version of the proceedings in Kulchyski (1985) p. 228

[34] Delgamuukw v. British Columbia Reasons for Judgment (1991) 79 DLR
(4th) 185 (BCSC) p. 227

[35] Delgamuukw, p. 56

[36] Delgamuukw, p. 13

[37] Cornell, D. (1992) The Philosophy of the Limit. New York: Routledge

[38] Cornell (1992), p. 93

[39] The term "postmodern" itself has come to mean many different things,
and I use it here with hesitation as it often tends to obscure rather than
enlighten a debate.

[40] See generally Harvey, D. (1990) The Conditions of Postmodernity.
Oxford: Blackwell; Rorty, R. (1979) Philosophy and the Mirror of Nature.
Princeton: Princeton University Press

[41] Ricoeur, P. (1984) Time and Narrative. University of Chicago Press. p.
78

[42] Derrida, J. (1990) "The Force of Law: 'The Mystical Foundation of
Authority'" Cardozo Law Review. 11 (5-6)

[43] Cornell (1992), p. 8

[44] Cornell (1992), p. 11 (emphasis added)

[45] Kulchyski (1994), p. 1

[46] Cornell (1992), p. 95

[47] Cornell (1992), p. 99

[48] Cornell (1992), p. 115

[49] Cover, Robert quoted in Cornell (1992), p. 113

[50] Ashini, D. (1995) Northern Studies Lecture. Trent University, March
1995

[51] More than 100 RCMP tactical officers were marshalled at the military
base in Goose Bay on the orders of the Newfoundland government. They were
to secure the community by force if necessary to permit the return of the
Provincial Court.

[52] Delgamuukw, p. 2

[53] Hamlet of Baker Lake v. Minister of Indian Affairs (1980) 1 FC 518
(FCTD) pp. 577-558. These tests can be summarized as: 1) the Aboriginal
group and their ancestors must be members of an organized society; 2) The
Aboriginal group must occupy the specific territory over which they assert
title; 3) Their occupation was to the exclusion of other organized
societies; 4) Their occupation was an established fact at the time
sovereignty was asserted by England;

[54] Delgamuukw, p. 227

[55] Delgamuukw, p. 231

[56] Prejudice in the literal sense of a predetermined judgment. This
prejudice also works against the Gitksan and Wet'suwet'en's
anthropologists, who were deemed to be "too close to the plaintiffs". Were
they somehow contaminated by this proximity?

[57] Delgamuukw v. Queen (1993) 5 W.W.R. 97 (B.C. C.A.)

[58] Delgamuukw v Queen (1993), p.151-53.

[59] Bowker, Andrea (1995) "Sparrow's Promise" University of Toronto Law
Review. 53: 1

[60] Derrida, J. (1990), p. 971

[61] Montour-Angus, P. (1995), p. 156

[62] Cornell, D. (1992), p. 167