Overcoming the dispositionism of aboriginal rights in Canada: culture in the mind versus life in the world.

• Author: Ebert, Mark

From the evidence that was led I conclude that the Musqueam Band is located on a well-situated urban reserve on the outskirts of Vancouver and controls relatively valuable property. This property and other business interests of the band produce a substantial income available to the band for the benefit of the band and its members. As a result, the real estate and personal possessions of the band members, described by the witnesses and evidenced by photographs, are at least of a standard and quality representative of the community at large....

For all of those reasons, and for what I conclude is the most important reason, I decline to stay the effect of my decision. I have concluded that the pilot sales fishery is offensive as being analogous to racial discrimination. (1)

With this conclusion, Provincial Court Judge Kitchen erased not only the impetus for the pilot sales fishery program that arose in response to the R v Sparrow (2) ruling, but also the colonial history that produced it.

And while R v Kapp is a Charter (3) section 15 case involving a number of mainly non-Aboriginal commercial fishers challenging the ameliorative pilot sales fisheries program, it is symptomatic of the way the courts approach Aboriginal peoples and Aboriginal rights: through a paradigm of difference. Thus, Aboriginal rights (as well as the effects of colonialism) supposedly "end" when Aboriginal peoples are "like us"--that is, when they "are at least of a standard and quality representative of the community at large." (4) We find this line of reasoning in McEachern CJ's British Columbia Supreme Court (BCSC) ruling on Aboriginal title in Delgamuukw v British Columbia (5) where he took the participation of most Gitksan and Wet'suwet'en in the wage economy as evidence that all Gitksan and Wet'suwet'en--or at least the plaintiffs--"do not now live an aboriginal life." (6) However, neither subsesction 35(1) of the Constitution Act, 1982 nor the doctrine Aboriginal rights (7) suggests that the assimilation or reduction of difference somehow affects Aboriginal rights. The following will attempt to show that the courts' approach to Aboriginal peoples (and, as a result, to their rights) manifests what is known as dispositionism in social psychology, which produces the kind of reasoning in the examples above.

The goal of Harvard's Project on Law and Mind Sciences is to apply insights from social psychology to law and legal theorizing. The impetus behind this, Hanson and his colleagues (8) assert, is that the orthodox model for understanding human cognition and behaviour is wrong. (9) That erroneous model--referred to as "dispositionism" (10)--is the tendency to " [explain] outcomes and behavior with reference to people's dispositions (i.e., personalities, preferences, and the like)" (11) so that the variability in people's responses to a given situation is a reflection of "distinctive and enduring personal attributes" (12) that are believed to be internal and individual, and characterize the person despite the contexts and situations they may find themselves in. (13) In turn, these attributes, taken together, "define each person as an autonomous, freely choosing, special individual" which serve to distinguish one person from another and form that person's social identity. (14) One's actions and behaviours, then, are taken as outward manifestations of his or her thoughts; (15) thus, someone who steals--regardless of his or her "situation" (e.g., his or her poverty)--is dispositionally "bad". In other words, applied in the context of Aboriginal rights in Canada, dispositionism allows (a) actions and behaviours to be connected or linked to an individual's dispositions, personality, thoughts, and beliefs, and, in turn, (b) that those individual dispositions, etc. are manifestations of a "culture" or an underlying, shared cultural disposition.

To counteract or correct this dispositionism that permeates Eurocentric thought generally, (16) Hanson advances a situationist approach to law and policy making, contending that the situation--which includes "anything that influences our attitudes, memories, cognitions, emotions, behaviors, and the like in ways that we tend not fully to appreciate or control" (17)--has an often unseen or unappreciated deterministic effect on an individuals thoughts and actions. (18) For the most part, though at times it is generalized to "Western culture", (19) this situationist approach has been applied only to American law, policy, and theorizing, as well as its antecedents. Aboriginal rights in Canada, though, provide a unique case that not only illustrates Hanson's argument but also serve to further develop a situationist approach to law. (20)

The goal of the following article, then, is to show how the courts in Canada embody dispositionism in their approach to, and conception of, Aboriginal claimants, their ancestors, and their lives. The problem with this dispositionism on the part of the courts is that it serves to maintain the marginalization and disadvantage of Aboriginal peoples and perpetuates the colonial power asymmetry. It does so by treating actions and behaviours of Aboriginal peoples, and their ancestors' cultures, as isolated, distinct collections of elements and by ignoring situational influences on Aboriginal peoples. Discussions of "European influence" and the conception of Aboriginal fishing as a "food fishery" in Aboriginal rights litigation are two examples of the courts' dispositionism and are explored below. Both of these examples run contrary to other facets of the doctrine of Aboriginal rights: "European influence" is founded on a static view of pre-contact Aboriginal peoples--despite the courts' rejection of a "frozen rights" approach(21)--and denies them the ability to adapt to the changing and dynamic world around them; (22) the "food fishery" conception is not only based on outdated stereotypes of pre-contact Aboriginal life, but also ignores the fact that the "food fishery" category was created through a regulatory scheme, (23) contradicting not only the Sparrow ruling, but also the test Lamer CJC developed in Van der Peet. (24) Dispositionism, as I will discuss, allows the courts to reject or ignore the dissonances created in and through the doctrine of Aboriginal rights and the test it developed for them. And while Aboriginal peoples and Aboriginal rights are not exactly the same, given that those rights are based on evidence and testimony regarding the lives of Aboriginal peoples past and present, a dispositional account/approach to them affects their Aboriginal rights.

Because dispositionism is misguided and unrealistic, the second part of this article will focus on applying the insights of situationism to Aboriginal rights in Canada. This will involve focusing on the "situation" that should, based on the doctrine developed by the courts, inform deliberations of Aboriginal rights and how this would change the approach to and formulation of those rights. More specifically, by focusing on the "situation" of Aboriginal rights--the prior occupation of Aboriginal peoples(25)--the concept of culture is removed from deliberations. In so doing, the courts' assertion that negotiation--not litigation--is the preferable means for reconciliation is more easily attained. (26) Moreover, by shifting the focus away from a disembodied, bounded, and fragmented "culture" towards the lives and relationships of Aboriginal claimants and their ancestors, many of the dissonances, biases, and asymmetries inherent in the courts' current approach are avoided. The courts' current approach is a process of authentication that is still haunted by the Baker Lake (Hamlet) v Minister of Indian Affairs and Northern Development "organized society" standard (27) and an assumed lack of rights and/or legal systems that Aboriginal claimants must attempt to prove is not the case. The courts maintain this implicit, evolutionary view regardless of the fact that as early as 1889 anthropologists were acknowledging "the Indians lived [in what became North America] under organized forms of government". (28)

These positions and approaches the courts take to Aboriginal peoples and Aboriginal rights may reflect the situational influence of colonialism and the benefits larger Canadian society has reaped from the marginalization of Aboriginal peoples and the taking of their lands, but this is part of the machinations of dispositionism. As I alluded to above, and will draw out more in what follows, the dispositionism of the courts allows them to ignore various, less salient situational influences (29) that would cause dissonance (and contradictions) with the rhetoric of the doctrine of Aboriginal rights.

It is the situation of prior occupation and the (unfulfilled) related need to take into account the Aboriginal perspective (30) that make Aboriginal rights distinctive from the topics that Hanson and his colleagues have explored thus far. Moreover, given the role of the idea in Hanson's arguments, because "culture" is a Eurocentric concept and category, (31) the following discussion will develop Hansons situationism by attempting to dislodge it from this Eurocentric bias and influence.

1. DISPOSITIONALIZING ABORIGINAL PEOPLES IN CANADA

   Throughout the history of Canada we find countless examples of how Aboriginal peoples have been dispositionalized from the colonial period up until the present day. As mentioned, for the purposes of this article I will mainly focus on how this history appears in the context of Aboriginal rights litigation and the implications it has in legal contexts.

   To begin with, Hanson proposes situationism as a foil that "contests some of our most reassuring self-perceptions and offers a new way of thinking about our legal theories, our laws, our institutions, and, above all, ourselves." (32) He contends that orthodox thought is in error and cognitively biased, (33) as people are "generally oblivious to...