Aboriginal title: travelling from (or to?) an antique land?

• Author: McHugh, P.G.

I met a traveller from an antique land, Who said, "Two vast and trunkless legs of stone Stand in the desert. Near them, on the sand, Half sunk, a shattered visage lies, whosefrown, And wrinkled lip, and sneer of cold command, Tell that its sculptor well those passions read Which yet survive, stamped on these lifeless things, The hand that mocked them, and the heart that fed; And on the pedestal these words appear: 'My name is Ozymandias, King of Kings, Look on my works ye Mighty, and despair!' Nothing beside remains. Round the decay Of that Colossal Wreck, boundless and bare The lone and level sands stretch far away." [Percy Bysshe Shelley, "Ozymandias"] (1) 1. TESTING TIME

This brief comment is about time and its involvement with the Canadian jurisprudence of Aboriginal title. It starts from a simple proposition so basic it can be overlooked or factored out of thought processes even as that activity is displaying this essential everyday quality: A human community lives in time. All things human are subject to change, including the way in which we conceive objects, rules, relationships, traditions, and past events. Historicity--our communication of our sense of living in time and the acknowledgement of the inherent mutability of our world--is part of the human condition. Human life is infused with temporality. All the things that human beings create, materially or intellectually, even those carved like Ozymandias out of marble in seeming defiance of the passage of time, can only be artifacts of their time.

Time necessarily--unavoidably--attends the jurisprudence of First Nations relations with the Crown (federal and provincial). As it is a human construction, that jurisprudence is in a state of constant development. A living jurisprudence is inevitably on a timeline that goes into its future inherently unfinished and unfinishable. Its common-law basis means that change will occur within the protocols and methods of common-law thought as it has been received and practised on Canadian soil. Of course, the dynamics of legal change in a common-law system are shaped by the haphazard nature of litigation, its inductive fact-specific setting, and the set of possibilities that legal language is able to articulate--and thereby contest--at any moment in time. Legal change is achieved through a way of thought and a form of disputation that, like the rules this way of thinking articulates, is also prone to change. What we think and how we think change. Legal doctrines and legal methods change over time through processes, often irresolute, of contestation and litigation, as well as through more subtle processes of education, acculturation, intellectual rumination, conversation, and absorption of technological change. Law lives within a political community and the community lives in its law. It articulates that community's values, priorities, and its own set of possibilities--not those that the community (as a polity continuous in time and place) will be articulating a century later, when that law will (through later lenses) be seen to have forms of incompleteness and inadequacy that do not strike or afflict that community in the manner perceived 100 years on. Our present network of laws is not our message to the future, but an expression of how we are now. This much is obvious but needs statement.

Those who cannot accept as basic the statement that Crown officials negotiating a treaty in the late 19th century could have no idea what the Supreme Court would say about fiduciary duty in Guerin (2) are in a world of troublesome atemporality where the difference between now and a century ago means nothing. The same applies to those who suggest that lawyers in late-19th century Ontario should have advised clients (First Nations included) on the basis that the minority and dissenting Supreme Court judgments in St. Catharines Milling and Lumber (3) were an accurate description of the law as then understood in 1887. (4) While the Canadian jurisprudence has come to prefer those dissenting judgments, the suggestion that the dissenters were seen as correct in 1887 is plainly unsustainable. The present-day Canadian jurisprudence has applied its argumentative technique to render a revisionist position towards St. Catharines Milling that rehabilitates the dissenting judges. Our view of what should then have been seen as the correct position (a present-day legal observation), however, should not be mistaken for the interpretation given that case and the status of the dissenting judgments in the late 19th century (a historical observation).

In the same vein, 100 years from now courts and commentators will almost certainly have a different handle on Tsilhqot'in Nation (5) than the one expressed here. These future actors will have the advantage of hindsight and a different jurisprudential vantage point, though that legal positioning will still be carrying hallmarks (the likes of which we know not now) of our common-law thought as a continuous but dynamic human activity. Nor for that matter were lawyers a hundred years ago poised in bated breath and expectation of what Canadian courts would be saying a century later, any more than we are now in clutching excitement about the Supreme Courts utterances in 2114. It is one thing to say the law has changed; it is another to say that it has always taken a particular position, and in so doing, deny law's mutability as an inherently human enterprise. Those who say the common law has 'always' taken a particular position are erecting an Ozymandias, a statue of seeming permanence that is a memorial to the product of their thought and enterprise at a particular time.

Some years ago while south of the Medicine Line, Charles Wilkinson wrote an influential book called American Indians, Time and the Law. (6) Wilkinson looked at the 80 cases on federal Indian law since the United States Supreme Court rendered Williams v Lee, (7) a case he saw as marking the jurisprudential outset of the modern era. Wilkinson concluded that the corpus of modern case law showed that Indian tribes were part of American society with a legal status that rested upon the early treaties, agreements, and statutes that the United States had passed and acceded to during the course of its constitutional identity practices. This earlier body of legal instruments showed the tribes as "islands" of self-government with a degree of insulation from time and space, within which tribes were not simply societies caught in amber, but dynamic ones that retained both distinctive elements of traditional Indian life while adjusting to the outside world. Wilkinson's book caught the tension between First Nations as traditional communities and inhabitants of a modern world that has also pervaded the Canadian jurisprudence. He did not, however, write as a historian or even an historical geographer, but as a lawyer attempting to bring doctrinal coherence to a body of case law. A perceptive reviewer of the book analogized its approach with a horse carved from marble (an equine Ozymandias), indicating that Wilkinson had used the 80 cases to isolate enduring (and hence immutable) legal principles that the author was arguing had "always" underpinned federal Indian law. (8) This is a legal exercise in the organization of cases into coherent doctrine, but it is hardly a historical approach looking at the biography and sociology of the jurisprudence as a living dynamic thing, noting its trends, dispositions, wayward moods, and course of growth inside a political community (or a series of them, straddled by a federal legal system). We may laud Wilkinson's marble horse of law as an intellectual text produced in a time and place representative of the politics surrounding the deployment of federal Indian law in the mid-1980s, but it is not history or a sociological biography of the jurisprudence. Wilkinson's objet d'art has historicity in the same way as Shelley's Ozymandias weathering in the desert as a monument and artifact of a civilization at a particular juncture of its being. Wilkinson forges doctrine that purports to speak enduringly but which, a quarter of a century later, seems a timepiece of the era in which he wrote. Announcing itself as a representation of enduring principle, its style defies temporality while everywhere now showing its exposure to the forces of it.

Famously, Tsilhqot'in Nation represents the first occasion on which Canadian courts have positively recognized an instance of common-law Aboriginal title. In so doing and as such an important landmark, the case raises issues of time and its passage in two senses that will be considered in this commentary. These pick up on the themes I have set out above.

The first concerns the case's place in the short history of the modern jurisprudence of First Nations law. Tsilhqot'in Nation is certainly a landmark in the pathway of this court-based jurisprudence, an era that might be taken as having commenced with Calder v British Columbia in 1973. (9) We do not know where that history will lead but we can see Tsilhqot'in Nation in terms of the lie of the jurisprudence preceding it. Of course there may be debate over the mapping of this jurisprudence. We must be clear that an attempt to carve a monument out of the cases that comprise the corpus of this jurisprudence is an exercise in giving present-day coherence and rationality to its totality. This is a legal exercise to explicate doctrine, a version of what Blackstone, for example, attempted in writing his Commentaries, (10) where he tried to coherently organize the mass of common law in terms of Roman law principles for an audience of his time. (11) This "black letter" approach treats the case law as accretive, as the building case by case of an ever-enlarging corpus of precedent into which lawyers plunge to winnow, sift, and divine the relevant law. A historical account, however, looks at the pathway of this jurisprudence as a...