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Questions of interests: Canada and the puzzle of Fiduciary Obligation

Canada is seeking to move towards a new kind of reconciliation with its First Nations. But what does it mean to speak of the “best interests” of the vulnerable?

Hugh Brody
8 February 2017
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Royal visit receiving a First Nations welcome during a Royal Tour of Canada, September 2016.In 1987 I was called as an expert witness in the case known as Delgamuukw versus The Queen. This case, which would turn out to be the longest and, in some crucial ways, the most complex case in Canadian legal history, sought to resolve fundamental questions about Aboriginal rights and title, focused on the extensive hunting, gathering and fishing territories of two First Nations, the Gitxan and the Wet’suwet’en, in northern British Columbia.  

Much of the evidence came to the court as oral testimony, given by First Nation Chiefs and elders; but some was led by both the litigants and the Crown in the form of historical and anthropological submissions.  In the course of these, social scientists at times had the job of interpreting events and documents from the nineteenth and early twentieth century; and, in doing so, had to speak to issues of prevailing ideology and various forms of prejudice. At times this issue of prejudice spilled over into observations on ways of seeing, describing and understanding Aboriginal life and vital interests up to the present day. 

This arose at a tense moment in my cross-examination. Rebutting an implication of mine to the effect that Native societies and cultures were again and again described through distorting lenses of ideology, the leading counsel for the Crown snapped at me: “I check my prejudices at the door to the court.” “I check my prejudices at the door to the court.”

Since that confrontational moment, ordinary enough in the context of tense and adversarial cross-examination, I have often reflected on the senior lawyer’s claim. Is there any way of explaining to him what the nature of prejudice is in so much discourse pertaining to indigenous peoples in general, or to the hunter-gatherer societies of Canada in particular? In recent cases before the Canadian courts, this question has been revived by the need to understand how government could, or could not, determine the best interests of peoples whose lands and ways of life had become matters of public administration.   

This governmental responsibility has come to be termed a Fiduciary Obligation. What follows here is a reflection on this puzzling concept  – and may be a belated attempt to answer the challenge of that lawyer in 1987: how can we check our prejudices? What does it mean to speak of the “best interests” of the vulnerable?

The scale of the encounter

Canada is a vast and young nation. With a land mass of almost ten million square kilometres, it is the second largest country in the world. Much of this immense terrain is set in extreme climates, is composed of harsh geography – the high Arctic is far beyond the reach of farmers; the subarctic and boreal forests include immense regions where the sub-surface ground is permafrost, and on which frozen base stand tens of thousands of lakes and summer swamps; while the peaks of the Rockies, extending for hundreds of miles, and then the Coastal Range, rise to over 12,000 feet.  

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The Skeena River. Wikicommons, Sam Beebe. Some rights reserved.The entire west coast is cut with steep fjords, and fed by immense river systems; the east coast extends into the Arctic, with a shoreline of cliffs and jutting rocks that caused those from Europe who first described it to refer to “the land of Cain” and “the land of flat stones.” Yet its southern areas, including immense prairies, are rich with agricultural potential; and its forests, rivers and minerals rich with valuable natural resources.  “They established outposts of European life in this new part of the New World.”

After their arrival in significant numbers, from the 1600s onwards, Europeans made homes in this immense land wherever they could find soil and climate that would sustain them. They had to fell trees, drain swamps and withstand long winters; but where it was possible for them to do so, they established outposts of European life in this new part of the New World. By 1867, when the nation of Canada was first declared to be a country in its own right, much of the midwest and the southern coasts were occupied by farms and towns – the basic infrastructures of this new colonial society.  And in Ottawa there was a new national government, with parliament and administration that had the job of creating and overseeing the legislative structures that would define, sustain and manage this new nation.

Yet in every region of what came to be called Canada, there were people who had lived there for thousands of years, since ‘Time Immemorial.’  When European settlers established themselves and their ways of being in the New World in the seventeenth and eighteenth centuries, the lands of Canada were occupied by a complex of societies and economies, each one having its specialized form and its adaptation to some part of the huge and varied land.

In the far north were Eskimoan peoples, all speaking dialects of Inuktitut but with a web of economic systems, each based on a particular Arctic terrain. Across the sub-Arctic and boreal forests, spreading the full two thousand miles from the edge of the Rockies in the west to the Labrador interior in the east, were many other peoples, with many groups speaking dialects of one of two language families – the Athabaskans and the Algonquians. These three languages of the north – Eskimoan, Athabaskan and Algonquians – are as different from one another as are English, Hungarian and Mandarin. These three languages of the north are as different from one another as are English, Hungarian and Mandarin.  

Along the Pacific coast there was another set of societies and languages, with a complex of peoples living in settled villages and relying on an abundance of sea and river resources. In the coastal landscapes of what came to be called British Columbia, there were at least 30 such languages. Across all of Canada, European settlers found themselves having to deal with a bewildering complex of peoples, languages and economies. This set of encounters is at the heart of the history of the new nation.

Furthermore, all of the indigenous peoples would in due course experience drastic and often threatening changes as a result of the creation, settlement and administration of Canada. Many would be decimated by new kinds of diseases to which they had no resistance; all would have to adjust to the energetic activities of Christian missionaries; and all would find some or even all of their traditional lands occupied by settlers who needed to set up farms and towns of their own.  

An underlying obligation

Historians and lawyers have had the job of explaining how the relationships between powerful government and vulnerable Native societies took their shape, and the principles by which they were informed. Land claims cases, and the modern resolve by Canada to define the rights of its First Nations and Inuit, have given rise to discussions of what Canada was obliged to do, what it had agreed to do, and what in fact it did do.  

Fear played its part in the decision making of successive governments and their key agents: at times, in some key sectors of the new frontiers, “the Indians” threatened the lives of settlers and challenged the possibility of safe or permanent colonial settlement. At other times, representatives of the settlers were determined to save or remake “the Indians” in the light of new ideas about human wellbeing and civilization: missionaries and traders did what they thought best to ensure a transition from what they saw as primitive to what they deemed to be appropriately modern.

Yet behind this web of colonial relationships and institutions, the Canadian government had undertaken an underlying obligation towards all those who were now the Natives within a new nation state. In the early days, before the 1984 decision in Guerin v The Queen, Native people were considered wards of the state. Not able to understand the colonial civilization that was the new reality of their country, and deprived of any underlying title to their lands and resources, the government had to help them and protect them.

The Natives were vulnerable; therefore fundamentals of their wellbeing were to be entrusted to the government. As if they, the children, must now rely on the wisdom and beneficence of the colonial parent. The monarch was the Great Mother or Great Father; beneath the monarch, representing her or him, was the Government. “The Crown” had taken charge, and must take care of its children – assigning them places to live (Reserves), ways of living (Civilisation) and social order (new kinds of Chiefs, and new rules and regulations). “The Crown” had taken charge, and must take care of its children.

It was the ultimate responsibility of Government to make sure that these “children” of the Crown were cared for and protected. Thousands of communities, hundreds of territories from the high Arctic to the salmon rivers of the Pacific coast, peoples speaking an array of mutually unintelligible languages – the government found itself legally responsible for them all.

Gradually, the legal concept arose that the Crown owed fiduciary duties to the First Nations. The obligation arises because of power and concomitant vulnerability. To take due and proper care of those who are vulnerable, the agency with the power has to assess the interests of those whom it has to care for and protect. Any action it takes must be in line with those interests; the test of this was that nothing should be done to or on behalf of the vulnerable that would damage or undermine their interests: nothing should be done to or for the beneficiary that the person in power would not do for themselves.

Thus it is that across the span of Canadian history the government, or its agents, has many times had to decide what might be in the best interest of a Native community.   Again and again arguments about land, resettlement, or conflicts between settlers and indigenous peoples, meant that government agents had to make decisions based on those vulnerable peoples’ interests. Yet ‘interest’, or an assessment of ‘best interests’, are not straightforward. Confusion about the meaning and application of these concepts continues to create difficulty for both social science and the Canadian Courts.

Deduction and induction

How can we begin to untangle some of this difficulty?  A first step would be to look at the difference between what can be termed deductive and inductive interests.

An interest can be deduced from an established principle or set of principles. Thus there are human rights that constitute part of a person’s interests. Someone whose rights are being denied has an obvious interest in their being restored. The rights to life, liberty and happiness reveal many interests on the part of those whose possibility to achieve happiness, live freely or be defended against avoidable death are all in a person’s interests. These are interests that can seem obvious, even self-evident. To argue against them is to fail to understand the nature of rights, or a failure to be reasonable. 

Yet interests that are in this way deduced from matters of principle are not always as self-evident as they can appear to be. Consider the example of Christian belief and practice, matters that have been of great importance at the Canadian colonial frontier. A missionary might say that it is in the interests of the men and women he works with to become Christians. Of course everyone could be said to have a right to believe and practice Christianity; but to urge the view that Christianity is in someone’s best interests is to take the argument a crucial step further. It is to move from asserting a freedom to advocating a change of belief system and ritual practice.   This assertion is not necessarily based on any knowledge of, or respect for, the beliefs and rituals that the change would be in relation to. The view that the change is in the interests of someone, or of a community or even a whole society, need not be based on any knowledge about those affected. It is deduced from religious and moral precepts. To urge the view that Christianity is in someone’s best interests is to take the argument a crucial step further.

Another example of deductive interests can be found in the case of an economic shift from hunter-gatherer to agro-pastoralist. Hunter-gatherers have often been seen as backward and primitive; farmers and herders of domesticated animals, the agro pastoralists, have been closely allied with modernity and civilization.  

Those who live by tilling the land, harvesting crops, and taking care of domestic animals (be it for milk, meat or draught animals) are at the heart of European material and social life. It is agro-pastoralists who need the extensive lands made available to them by colonial advance. And their way of life is enshrined and sanctified in the essential texts of Judaism, Christianity and Islam.  

Not surprisingly, therefore, those who do not live by herding domestic animals and farming their land can be deemed to have an interest in making a change in that direction. This is not based on a knowledge about those who are invited or urged to make that change, but is deduced from principles of life that are deeply embedded in the mind-set and belief systems of European and colonial societies and governments. Their way of life is enshrined and sanctified in the essential texts of Judaism, Christianity and Islam.  

Three separable historical and ideological contexts reveal the importance of deductive interests.

First, in the early stages of European conquest or occupation of the New World, many key agents and agencies held the view that the native peoples they encountered were ‘primitive’, and suffering from profound material and moral weaknesses. Therefore the transformation of these peoples by European powers constituted an unquestionable benefit – the primitives were being given the chance to escape their benighted and limited conditions, to become ‘civilised’. Thus it was in their interests to lose their old ways and adopt the new. An interest that is established a priori, deduced from the core beliefs of the settlers and colonial governments.

Second, the change from hunter-gatherer to farmer, from living by subsistence and very close to the land to living within an agricultural and market economy, has often been understood as inevitable progress. A commonplace of nineteenth and early twentieth century thinking about both anthropology and colonial settlement was that the Native peoples, especially those living by hunting and gathering, represented an earlier form of humanity; and this would yield as a matter of appropriate necessity to more sophisticated, more ‘evolved’ forms.

This view has been characterised as ‘social Darwinism’, and, in its various articulations, has meant that the interests of the supposedly less evolved always lay in changes that meant they would become more like the more evolved. This could apply to the minutiae of everyday life, from clothing to diet; or to the main aspects of culture, as in the case of language or religion; or in economic system, exemplified by the supposed simplicity and hardships of hunting and gathering. The interests of the supposedly less evolved always lay in changes that meant they would become more like the more evolved.

Third, the history of life at colonial frontiers has itself invited a deduction of the needs of the indigenous peoples. This is the history that records many kinds of hardship and vulnerability – loss of land, destruction of crucial resources, multiple deaths and recurrent sickness. The web of changes brought by settlement and colonial developments often left entire populations in extreme difficulty.  Epidemics of smallpox, along with many other infectious diseases to which the Native population had no established resistance, meant that frontier conditions included devastating hardships for Native people. 

Alert to these hardships, those concerned about or responsible for the victims of colonial change were inclined to take the view that the best interests of the Natives lay in giving up their way of life altogether. The strengthening of indigenous systems of belief and practice was not considered an option. Rather, the benefits of the new order were deemed to lie in its ability to protect people from the ills that it brought.  These are also interests that are being deduced, with much overlap of reasoning between a concern with saving the survivors and the parallel, and often underlying, conviction that this is a pattern of inevitable change and of progress. For all that awareness of difficulties is an engagement with historical facts, a response to local conditions, the response to these difficulties is also a priori.  Here too the best interests of people are being deduced from a framework of belief. The response to these difficulties is also a priori.

 

The alternative source of interests lies in a form of induction. Rather than determine best interests on the basis of a theory of human evolution or religious precept, it is possible to discover a people’s interests by getting to know the people.  This is an issue of social science, and can be seen with particular clarity by looking at the way research with Canada’s First Nations and Inuit itself evolved.   

Anthropologists, along with all who had spent time living alongside First Nation communities, understood that each society had a set of connections to the land around them thanks to which they met their core needs. Food, clothing, tools and shelter all came from use of the land – harvesting its resources and the materials found there. 

It followed from this that many of any people’s interests were rooted in their lands; and to protect those interests would mean ensuring that their lands, and their links to their land, were in turn protected. Lands of course included lakes and rivers or, in the case of the Inuit, the sea ice. Resources comprised everything that was taken for food or to be shaped into vital implements and clothing. 

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Bartolomé de las Casas, sixteenth century. Wikicommons/Álvaro Huerga. Some rights reserved.

In many of the earliest descriptions of Native Peoples of the New World, there is acknowledgment that their interests centre on the land around them. Bartholomé de Las Casas, one of the priests who travelled with Columbus on his third expedition, gives expression to this in his writings about the peoples of Central America in the sixteenth century. Writers of the French Enlightenment echoed the views of Las Casas. The earliest anthropologists, from Frazer to Malinowski, recognized that tribal peoples occupied a territory by which their particular way of life was made possible, and from which they derived both practical and spiritual meanings.  Thus the Native or Tribal interest in a specific territory, its land base, was implicit in the earliest of social science.

Yet the detailed examination of what this interest consisted in was first undertaken in Canada in the 1970s. Prime Minister Pierre Trudeau in 1971 took the view that the uncertainties surrounding unresolved claims to land and the vexed question of Aboriginal Title should be given the benefit of intensive scrutiny and negotiation.  This meant that much of the land mass of Canada was open to some form of land claim. To resolve these claims, Native peoples had to put together their evidence in support of their rights to particular territories and resources. Among the first people to take on this task in intensive detail were the Inuit.  Their research, detailed in the findings of a Land Use and Occupancy Project (1973-6), was built on map biographies. A large majority of all Inuit set out on paper their relationship to their territories, and, at the same time, their understanding of their ecological and cultural realities. It could be said that this was the first body of research, the first empirical data, on which an assessment of Inuit society could be based.  Here were the underlying conditions of life – pointing to what was needed and where vulnerabilities lay. The basis for inductive interests. It is the possibility of inductive interests that makes any assessment of interests plausible or reliable. 

In the absence of this kind of empirical knowledge, the source and form of a people’s interests can not be affirmed with much confidence. It is the possibility of inductive interests that makes any assessment of interests plausible or reliable.  In their absence, interests are likely to be affirmed in relationship to – being deduced from – interests that are not so much the core realities of the vulnerable as the prejudgments and, indeed, the interests of the powerful.  

This is to say that where interests are deductive and not inductive, there is a very real possibility that the interests being affirmed are those of the powerful; while the real interests remain unknown. For this reason, it could be that an appropriate modus operandi for anyone with responsiblity for protecting the best interests of Native People would be an abundance of caution.  In the absence of appropriate research, with the benefit of inductively established interests, any change, especially where it is a change that brings loss or transformation of ancestral lands, is fraught with risk.

Economies and knowledge

This risk of damage to First Nation or Inuit interests is made more evident by looking at the two different kinds of economy that have encountered one another all across the colonial frontiers.

Peoples who live by hunting and gathering rely on a very detailed knowledge of their territories. By understanding where and when resources appear and can be harvested, they ensure that their needs are met. This is a complex of knowledge that pertains to specific places. The territory is at the centre of detailed information, often accumulated over many generations; and dependent on the territory staying the same. 

Hence hunter-gatherers are profoundly conservative in their way of using their lands. Each time they return to an area in order to dig roots, gather berries, find a run of fish or track ungulates, the area must be as it has always been. Thus they can predict what they will find; and can rely on their world to provide for them. In many cases, especially in the Canadian boreal forests and Arctic tundra, the territory that meets a people’s needs is very large; but knowledge has to be coextensive with its spread. What is not known is unlikely to be productive. To find what they need, hunters and gatherers move around within their territory, effecting a pattern of seasonal movements between the range of resources available to them. To know about the territory is to be able to make crucial decisions about these movements. This has given rise to perhaps the most widespread misunderstanding about hunting peoples – namely, that they are nomads. A pattern of seasonal mobility has again and again been mistaken for an extreme of flexibility, as if hunter-gatherers roam around the world in a limitless form of economic and social freedom. 

In fact, the opposite is the case: these are people who have to stay on their territories; this is the only place in the world that they know in the ways that make their economy possible. To leave the territory is to be without the primary value and applicability of their knowledge.  Thus it is that virtually all hunting cultures have a set of origin stories that tie them to the lands where they live. How the mountains got their shapes, the transformation of mythic heroes into landmarks on their lands, the way a river came into existence, where the first humans had their villages  – these are the kinds of mythic narrative that typify hunter-gatherer cosmology and spirituality. The supernatural belongs in their territories, alongside them, and always potentially in communication with them. To leave the territory is be without the settings of crucial, life-defining narratives. To live as a hunter-gatherer is to reside in a land that is known in detail, and to have a set of underlying stories that explain and reveal their origins in that place. Nowhere else in the world is possible; and nowhere else can make real or the necessary sense. Nowhere else in the world is possible; and nowhere else can make real or the necessary sense.

The conservatism of hunter-gatherers should not be mistaken for some kind of ahistorical, changeless condition; nor does it mean a reluctance to take advantage of new technical or economic opportunities. The land must be a constant, and thus the harvest as predictable as possible. But hunting peoples have been very welcoming of newcomers, so long as they did not cause damage to the land; and have been enthusiastic about any new means for making use of their resources, be it by recognizing the immense potential value to them of guns, trade, manufactured fabrics or new kinds of food. Also, they have been responsive to new religions and, of course, to medicine and other remedies that can help them cope with and indeed survive the impact of colonial change. To be responsive to the new, however, does not mean that their underlying need to sustain their territories and resources in a knowable and predictable form is diminished. 

In the economic and cultural heritage of agro-pastoralists, there is a very different relationship to land and resources. Farmers and herders of domestic animals make best use of their lands by transforming them. To augment natural pastures, they will clear trees and sow seeds, making forests into meadows, wilderness into farmland.  To ensure that a land can grow a maximum of crops, they will drain swamps and terrace hillsides. Their knowledge centres on the ways to effect this kind of transformation, how to make seemingly unproductive land into pasture and fields.  This is a radical relationship to environment, and means that farmers can look for new lands in order to expand their resource base or accommodate increases in population.

The history of frontiers in North America turns on this radical relationship to land: generation after generation of settlers travel to the edges of their expanding nations in order to take advantage of land made available to them there. Land that they must transform – clearing forests, ploughing up and fertilizing the earth, securing produce from animals and plants that they bring with them. Moreover, they have a set of underlying mythic and religious narratives that come from a very distant terrain. They have a set of underlying mythic and religious narratives that come from a very distant terrain. The sacred texts and stories of the Judaeo-Christian and Islamic cultures are set in the Holy Land – a place far away from where colonial settlers live or, in most cases, will ever see. But these are narratives that travel with them. The sacred aspect of their lives does not tie them to any part of where they live or the places they depend on for their economic lives. By building a church, a house is created for the sacred; but this can be moved without any risk to the divine. Knowledge centres on techniques for managing and manipulating the land; and on scriptures that attach them to the supernatural, but not to any particular geographical terrain.

The colonial governments of Canada saw it as their job to ensure that lands were thus available for settlers to transform and make productive in their terms. This was the national form of economic success and growth. Moreover, the dominant ideology of the colonial administrators, the underlying view of human purpose and meaning, saw this form of settlement as the achievement of civilization. In the discourse of the frontier, its activities were a civilizing force – be it the making of orderly farms, the creation of landscape out of mere land, or, all across the Canadian frontiers, the establishment of churches and the spread of Christian belief.  Those who took their place there, making the farms, building the churches, worshiping as Christians – these were the agents of civilization.  

Therefore any of the indigenous peoples they encountered at the frontier who could be persuaded to play their part in these same activities – as farm workers or farmers within the settler economy, or as participants in Christian ritual in the new churches – were by definition achieving a new level of civilization.  This implied an underlying assumption about their interests – they would be advanced by changes from indigenous to frontier forms of life.

This model of civilization, with agriculture and Christianity as twin pillars of human progress, meant that consideration of ‘the Indian interest’ at the frontier had a very strong tendency to take the deductive form. This could be spelled out, as in the case of the discourse and activities of early missionaries; or it could be an implicit, barely conscious, assumption, as with the decision making of government agents. It could be revealed in the form of fatalistic resignation: the people had suffered from the impacts of colonial settlement on or around their lands, and this was a sad inevitability. It could be revealed in the form of fatalistic resignation.

Or it could take the form of conscious and even cynical manipulation: settlers keen to take over lands occupied by ‘Indians’ would claim that the Indians were not really there, or were not able to make proper use of the land, or were savages in need of civilization.  The underlying ideology, the deduced form of Indian interest, was expressed at many levels, in different kinds of voice. But the outcome was a shared view, something of a chorus, urging that the best interests of the Indians lay in the yielding up of their system of life, their ways of knowing and using their lands, their religious ideas, their stories, in favour of those being brought by the newcomers - farmers and Christians, supported by the Canadian national government.

The Nation's Obligations

The Canadian courts have had to address a set of legal and historical questions about the nation’s obligations in relation to First Nations and Inuit. A mix of constitutional, legislative and administrative steps meant that the vulnerabilities of those at risk from colonists' activities could look to the government for protection.   A key section, 91(24), of the British North American Act, Canada’s first constitutional document, vested the power for "Indians and Lands Reserved for Indians" in the national government. Its central duty was to ensure that Native communities and societies would not be dispossessed or demeaned by activities at the country’s economic and social frontiers.

But until the systematic social sciences of the 1970s, there was no established, scientific way of knowing what the best interests of those vulnerable peoples might be. There was neither disciplined empirical knowledge nor a habit of listening to what the people themselves were saying about their interests. In this absence of a detailed inductive basis for defining interest, there was an inevitable falling back on deductive assessments. A higher order of thinking, some form of principle, or prejudice, was invoked in order to meet the need for assessment and judgment that was not made possible by any other calculation. The dominant theory of civilization and its related concepts of progress and development filled in the missing intellectual or anthropological space.

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The Hudson's Bay Company Ships bartering with the Inuit off the Upper Savage Islands, Hudson Strait, Canada, 1819. Wikicommons/Robert Hood. Some rights reserved.Thus the early history of the Crown's obligations can be seen as a continuing unfolding of Canadian frontier ideals and purposes: to get more and more land into agricultural production, to establish more and more spaces for Euro-Canadian settlers to make their homes, and to offer their ways of life as a civilizing opportunity to the indigenous peoples they encountered. In the absence of the relevant knowledge, and without a realization that there was a need for another kind of knowledge, the administration of life for the indigenous peoples of the frontier was likely to be implemented as if their interests could not really be very different from those of the government. Peaceful settlement, and orderly transition into the standards of modern Canadian life – these were the interests of the nation.  In a blend of unconscious ideology and Eurocentric conviction, these same objectives again and again led to the definitions of the interests of the Native populations. Thus circumscribing the government’s duties became a covert deducing of native interests from national interest – and therefore all too often a failure to protect the vulnerable. Without an alternative model of both knowledge and civilization, the successful fulfillment of obligations was difficult to achieve. And this difficulty has played out in the history of all parts of Canada, raising challenges for administrators in the whole vast spectrum of Aboriginal societies, at the many different and, indeed, ever changing frontiers. Some of these men (they were all men) became informed and articulate spokesmen for the people they had come to know.

Yet some awareness of the interests of Native communities was not impossible.  There were individuals who had close links to First Nations, even in the early period of Canadian governmental responsibility. Many missionaries lived for long periods in remote societies, where they learned native languages and travelled onto the land with native hunters and gatherers. Some of these men (they were all men) became informed and articulate spokesmen for the people they had come to know. Petitions and other submissions on behalf Aboriginal peoples who felt at risk were at times penned by missionaries who supported them; and these were documents in which the native interest was spelled out on the basis of how the people lived and what their chiefs were saying they feared or needed. These could be said to be inductively based assessments of interest.

At a more general level, there were many who lived at the frontier, including fur traders and settlers who had extensive dealings with people whose produce they wanted to buy or whose land they were farming. Many of these entered into mutually supportive relations with native people, and were alive to their everyday needs. This experience of people, and parallel awareness of their difficulties, meant that within the frontier there often was a degree of appreciation of the essential links between the people and their resources. Fur traders wanted them to stay on their lands, though change the way they harvested them.Settlers may often have depended on the original occupants of the land making way for the incoming farmers. But not all of them were blind or indifferent to the interests of the Native people with whom they had dealings. As we look at the history of each frontier, therefore, there are ways in which the deduction of needs from colonial ideology could have been modified, or even opposed, by the induction of need from first hand experience. It is important to beware of creating a too generalized model of hunter-gatherer mobility and seasonal rounds.

It is important to beware of creating a too generalized model of hunter-gatherer mobility and seasonal rounds. Again it is important to appreciate the great geographical and cultural variety of the lands and societies of Canada. In regions where migratory fish or marine resources had come to be at the centre of their economies, First Nations often established more or less permanent village sites, with large, permanent housing; here a large population, managed by complex socio-legal institutions of their own, based themselves; and from here they would set out to hunting and gathering places in their territorial hinterlands. 

Thus the Nisga’a villages occupied sites in the Nass River valley, but travelled far into the forests and high into the mountains around them in search of land mammals – including deer, black bear, goats and the many smaller species that came to be of great value in the fur trade. When European traders and missionaries arrived, they located themselves at these villages. And in due course the surrounding lands were taken away by the Crown on behalf of settlement or new forms of colonial economic activity. By comparison with this kind of ancient and settled housing, many other hunter-gatherer economies had much smaller and more scattered villages.

Before the arrival of Europeans, the Inuit of Canada moved between a set of seasonal living sites, with a tendency to congregate in winter snow-house villages built on or very close to the sea-ice. Rather than radiating out from a central location, with a pattern of land use that could be said to resemble a web, they relied on an economic system that used a circularity of movements from one resource to another, without a primary settlement. 

When European traders and missionaries came to the Arctic, it is was they who created more permanent villages, with permanent timber-frame houses. The Inuit then gathered at these locations, causing them to become central villages from which they would continue to radiate out to their seasonal hunting places.

In some areas, Europeans were attracted to summer gathering places, where hunters and gatherers congregated for festivities and ceremonial life, and where, as a result, there were extensive meadows cleared in the forests. These were an important part of an ancient pattern of seasonal movement, and their development by settlers for their own purposes created collisions of interest that were intensely hard to resolve. This was the case, for example, in north-east British Columbia, where the Dunne-za were displaced from important lands by peoples who may not even have known that the Dunne-za made seasonal use of them.

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At critical points in the history of the conquest and settlement of the New World, powerful voices have spoken, at least by implication, to the overall interests of its Native populations. The Royal Proclamation of 1763 is the document in which George III set out the principles that should inform relations between the Crown and all the peoples of the lands that were being taken into British jurisdiction. In this statement of principles, which has the force of a legal statute, there is a generalized recognition of Native societies’ rights to their lands and governance. This could be said to constitute a respect for the best interests, at least at a general level, with the emphasis on the word ‘respect’. Much later in colonial history, in the course of the settlement of the frontiers of British Columbia, James Douglas, a nineteenth century Governor of that province, established extensive areas of land for a number of separate indigenous groups that he was determined should give them real and long-term security and protection. These so-called Douglas Reserves also can be said to show an informed and respectful regard. These so-called Douglas Reserves also can be said to show an informed and respectful regard for what he understood to the best interests of a number of  Native societies.  The Royal Proclamation, however, was informed by a need to forge alliances with Indians against rival colonial powers.  And James Douglas was married to a Native woman, thanks to whom he had rare, perhaps unique, awareness of what Native vulnerabilities and the Native interest really were. But these were reflections of understanding, acknowledgments of interest, that were obscured by the persistent demands of settlement and the related apparatus of colonial theory, religions conviction and prejudice. 

Thus the pattern of change at the frontier can be seen and understood through the lens of deductive assessment of needs. The government overall made way for settlement, and adjudicated dispute in the favour of needs they understood and believed in – the ones that corresponded to their own purposes.  And this has spawned a multitude of calls for re-investigation of the history and, in some cases, compensation or restitution where the government can be deemed to have failed to fulfill its obligations.  

Remedying this, case by case, is now the challenge before a much more informed judiciary and thoughtful administration. All over the vast array of territories that make up the anthropological map of Canada, and across the many different frontiers, each with its particular history, there are stories being told and episodes in the past being revisited. To know what happened a hundred years ago is to need to listen again to these stories, and to look again at many sources of historical data, and seek to know what was and was not known. 

This is no easy undertaking: clouds of preconception have to be seen for what they were, and somehow be cleared away. The importance of this task lies in a separate but distinct interest of all Aboriginal peoples –  the establishment of mutual respect, a justice that is itself a fulfilment of obligations. In this way Canada is seeking to move towards a new kind of reconciliation with its First Nations.

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