The nature of Delgamuukw

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I'm pretty sure anyone reading the Delgamuukw decision can see what the Canadian legal system has in mind for the future of Aboriginal peoples in Canada. But you can't underestimate the influence of cultural oppression - of immersion in an alien world dominated by capitalism and liberalism - which personal experience has shown clouds the ability to see what the oppressors have in mind. This seems, at least to me, to be why so many people seem to see 'salvation' in yet another carefully crafted attempt to eliminate First Nations from the Canadian landscape. Here, then, is what I see going on in Delgamuukw.

The underlying problem is simple. So many people today, Aboriginal, non-Aboriginal, mixed or whatever, live and breathe thinking that happiness is having the ability to make money and generally fit in. The Delgamuukw decision opens by declaring that Aboriginal peoples may have ownership over their traditional territories. This ownership, moreover, can be 'exclusive' in nature, at least so far as an Aboriginal people can show that they traditionally had systems in place to exert exclusive control over their lands (ie. something like trespass laws). Well isn't that wonderful. Canadian law finally recognizing the obvious, that Aboriginal lands belong to Aboriginal peoples.

But wait, it's not that simple. First there's the little problem of the 'inherent limit.' The Supreme Court figures that Aboriginal peoples will typically show they have a strong connection to some piece of land by demonstrating that this land had a particular significance to them, say as a traditional hunting ground.

It would only seem sensible, then, the fatherly court goes on, to ensure that future generations of Aboriginal peoples are able to continue to use this land as a hunting ground, which requires then that today's generation of Aboriginal people not destroy the ability to use this land as a hunting ground by, say, paving it over to put up a cine-plex or Home Depot.

Now on the one hand this makes some sense. Surely the people themselves wouldn't want to destroy their lands, lands that they have been originally instructed in the care and protection of. But then simply putting it this way shows the streak of paternalism shooting through this decision. The court couldn't have left this out, trusting that Aboriginal landowners would treat their own land respectfully?

Foreshadowing of what's to come can be seen in this 'inherent limit,' however, for the court goes on to say that it's easy to remove this impediment. Aboriginal title-holders simply have to surrender this land, and then they can enjoy all the benefits of being good Western capitalists.

The decision really gets down to the real nitty-gritty, however, toward the end (when the reader has perhaps already decided that it's a 'landmark' decision.)

Here we see a wonderful example of how to use a position of power - the court's power - to control the destinies of Aboriginal peoples, to slyly draw a noose around the necks of all Aboriginal peoples.

In discussing the ability of the Crown to 'legitimately' infringe Aboriginal title (the 'lawful' ability of the government of Canada to, for example, license a forestry company's operations over traditional territories), the court goes back to earlier decisions and brings in the language of 'fiduciary obligations.'

Now again right off the bat this is troubling, for the entire notion of a fiduciary relationship was brought in to account for the fact that the Canadian government has seized control of Aboriginal peoples and lands.

What's really troubling is that the court doesn't feel it has to consider the wrongful manner by which power was seized, both through openly deceitful practices, and by subverting the sacred agreements known as treaties. It simply accepts the contemporary power imbalance, and attempts to regulate it by means of this notion of a fiduciary relationship.

It's how the court twists and distorts the doctrine of fiduiary relationships in the Aboriginal context, however, that really shows what Delgamuukw is all about. As a legal device, this doctrine is intended to protect 'beneficiaries' - those who've had the power to make fundamental decisions affecting their own well-being taken over by the party that now has this power, the 'fiduciary.' When this device works (as in the 1985 Guerin case, when it was first employed in the Crown-Aboriginal context), it forces the fiduciary to own up to mis-management of the affairs of the beneficiaries (recall that in Guerin the Crown had to ante up millions from its botched handling of the leasing of Musqueam land for a golf course.)

But in Delgamuukw we see the true usefulness of this doctrine; its ability to push Aboriginal land-owners into thinking of their lands purely in economic terms. Now many people undoubtedly remember the Gladstone decision. There the Supreme Court found a commercial right to fish. But what was really vital about this decision, from the perspective of the court, was how it worked into the notion of Crown fiduciary obligations the idea that when an Aboriginal people have something like a right to make some money, it must be weighed against the right of everyone else around to do the same.

Since we are talking about both a right to fish and to sell the fish, there must be limits imposed on this right to sell the fish, since otherwise Aboriginal peoples might actually be able to make a good living!

In order to be a good fiduciary in this sort of situation, the Court decided, the only requirements on the Crown would be that it treat the Aboriginal rights-holders just like any other rights-holders. In other words the Canadian government is required to think of Aboriginal considerations equally, treating these interests as it would those of any other segment of the Canadian population.

"Give them access to fishing licenses, give them a share of the fishery, give them some money if their ability to fish has been unduy restricted," and so on.

Now this is the line of thought applied at the end of Delgamuukw. Everyone should be able to see where it's headed. If Aboriginal land-owners really have an exclusive right to their land, then that spells out into a right to make some money. But then it's got to be controlled, and by the same mechanism used in Gladstone, the Crown, as the fiduciary in this situation, has in its hands fundamental power over Aboriginal lands, and so has to act as a good fiduciary is instructed to act by the Supreme Court. But in Gladstone these instructions were laid out. The Crown simply has to think of Aboriginal peoples as peoples with legitimate economic interests in the land. They should have the same sort of access to the economic use of the land as any other party with a valid interest in the land. They should be compensated with money when their interest is unduly interfered with. And so on.

Are we all on the same wave-length now? Are we all thinking like good capitalists/consumers? Do we now all think as one, as enlightened liberals? I mean, really, isn't this decision just great?

Now we can all make some money off our 'interest' in the land. Isn't that what it's all about?

The Supreme Court has been so wonderful, as it gently pulls us into the vortex of the modern Western world. Clearly the court could sense that the time is ripe, what with the effects of residential schooling, lost generations, urban immigration and up-bringing, treaty-betrayals, ideological oppression, generations living under the Indian Act, etc., etc. Won't most Aboriginal peoples see the economic benefits of this decision? Isn't it finally time that they will stop thinking, believing, and living as Aboriginal people?

I don't know. Has the Court found the right time? One thing is clear. The Court has made up it's mind, and decided it is time to push the question, to see if Aboriginal peoples are ready to forsake their ancestors, and the future generations. All for some ecoomic benefits.