The language of the superior adopted

Page 5

Dear Editor:

When I was growing up, people would trap animals, and also hunt and kill them. The skins or furs would be sold and the meat of trapped and hunted animals would be eaten. My father sold the furs of the muskrats he trapped, and we ate the meat. As a child, I assumed that everyone lived this way: our life was ordinary, and we were just folks.

Many years later I found out, by reading books and journals, that others did not think the way we did. For example, Marcel Giraud, the French anthropologist, wrote that the people where I lived along Lake Manitoba were backward, primitive, almost without culture, and simple minded. Not quite up to par with the 'whites' these ones, he concluded.

Having studied law for a long time now, I have discovered the importance of the idea that Indigenous peoples are not quite as human as the others who came from Europe to the Americas.

The idea has been used to explain important actions. The idea has been used by very highly placed people in governments, in universities and in the courts of law.

The best known example takes the form of the idea that farmers are better than hunters. According to this version of the notion that Indigenous peoples are primitive and lesser humans, God has given a mandate to those who till the soil. The mandate is to take the land from the hunters, who only 'roam' over it to hunt animals. Farmers are morally better than hunters, and therefore farmers have a right to take the lands of the hunters.

The legal version of the idea declares that the lands of hunters can be taken because they are empty: terra nullius. Terra nullius is Latin for 'land belonging to no one.' It is there for the taking.

Translated into ordinary language, this means that the land was empty of people who mattered in law. They did not matter because they were hunters, and not farmers.

This is a very powerful idea, and it has influenced many aspects of thinking in Canada. For example, people who do not matter have no history that matters. Accordingly, the universities have taught the history of the intruders but overlooked the history of the hunters, except to the extent it is incidental to the history of those who matter-the intruding farmers.

We also see the idea at work as it influences the views of our own people. It is the morally superior farmers who decide what is right and what is wrong; what is good and what is bad. The farmers, represented today by their politicians and judges, are the moral standard bearers.

Accordingly, some Metis people think it is important to ask the Ottawa politicians what they think about Louis Riel: tell us he did no wrong, so we can be sure.

There are occasional glimmers of light in this story, such as the more recent statements by the Supreme Court of Canada to the effect that Aboriginal people have rights protected by the law of the Constitution. That court rejected the notions of farmer-superiority that were accepted in the 1990s by the trial judge in the famous Delgamuukw case. In several important cases, legal rights that belong to hunters have been found. In the Powley case, two men hunted and killed a moose, and the court said they had a right to do that.

What I am wondering at today is the way that our people, too, are adopting the language of farmer-superiority, even as they assert the rights of hunters. No one hunts and kills animals for food anymore, at least not in the language that is being adopted everywhere. Aboriginal hunters today harvest moose. They do not hunt and kill them to eat them. Metis organizations, anxious to secure government recognition of hunters' rights, issue what they call 'harvester cards' to members that they would like to see recognized as having hunting rights.

At the rhetorical level, at least, the farmers' ideas still rule: Aboriginal hunters can acquire legal rights in the world now ruled by the farmers. However, it is only by metaphorically transforming themselve into farmers that hunters can have rights. Hunters are still morally inferior to farmers.

Such is the power and magic of the law. Such is the power and magic of the idea, and of its servant, language.

Paul L.A.H. Chartrand, I.P.C.

Professor of Law