No Man's Land
- Sidney L. Harring (Author)
White Man's Law: Native People in Nineteenth Century Canadian Jurisprudence. University of Toronto Press (purchase at Amazon.ca)
Reviewed by Desirée Lundström
In his concluding remarks in White Man’s Law, Sidney Harring observes that "law is not just rules and institutions but also a powerful cultural force," a remark that both reminds readers of the origin and context of law, and re-establishes the alliance between legal case history and social his-tory-in-context that this text sets out to discuss. Harring also states that White Man’s Law is as much "about people as it is about law," a rejoinder that readers should bear in mind when navigating through the cases, stand-offs, conflicts and challenges that mark these accounts of nineteenth-century Canadian jurisprudence.
Harring’s analysis of the intersection of imperial law and Native law in nineteenth-century Canada gives an account of cultural assimilation in its most acute instance. The negotiation of dominion over land had, and continues to have, significance beyond the mere concept of possession. Ownership implies responsibility, authority, independence and control, all of which demand an understanding of the limits that are placed on the land by people and, consequently, on the people by the land. The land under dispute therefore comes to signify beyond its empirical identity. Land ownership rights stand in for an extended concept of independence and government, and rights in general. The establishment of control over land heralded conflict between the sovereignty of those who occupied it before the right of possession was written into law by the assignment of deed title and those who assumed authority to assign such ownership. The First Nations’ possession of land prior to colonial settlement in Canada was a matter of historical habitation, not of legislated deed-bound ownership as with English common law—a conflict in type but not in principle. The resolution of this conflict, however, cannot be as easily typified. The right of the First Nations to occupy land within Canada was fraught by an antagonism between discrepant legal and social systems. The struggle for the right of land ownership, then, becomes a struggle for power by one system over another.
The role of law in the establishment and maintenance of colonial Canada brought into conflict the fundamental apprehensions of social order between the new government and the First Nations. It is all too easy to gloss over a phrase like the "role of law" without questioning its imperative, that which asserts an authority of voice and the power to authorize and enforce. Law is invested authority, but whose law and whose authority? The application of "British Justice" in the colonies brought with it concomitantly conflicting and naïve principles of imperialism, believing itself to be the benefactor of the colony in all ways, to the ignorance of any conceivable preexisting social order. So, the rule of law is the rule of British law.
The move to governmentality that proceeded through colonialism raises, as Harring argues, an interesting set of questions regarding the perception of Native people’s rights and their dominion over the land that they occupied. Harring speculates on whether this was a case of the new Canadian government lacking the power to interfere with the established order on Native lands and in existing Native communities, or whether the de facto assignment of property rights to Native peoples was a means to ensure compliance with imperial rule, rather than to bring the systems into conflict with each other. But with an inadequate perception of the functioning of Native law and its relation to First Nations’ culture and to colonial law, conflict was inevitable.
The dispute over the Six Nations’ Grand River Lands in Ontario brought into conflict more than just existing Native law and colonial law in early Canada. The dispute was initiated by conflicting sovereignty claims where the Six Nations claimed the title to the land they settled and the right to govern and sell it. This claim was countered by the crown which sold some of the same land independently, claiming ownership and jurisdiction over the land and its title. In the fight for proof of ownership and right, the Six Nations argued for their status as "allies" of the crown, a special status that entitled groups or individuals to a particular standing in the consideration of property rights (a claim that dated back to the 1780s). The obstacle to the successful arguing of this status rested solely on the fact that the Six Nations were Native Indian. Here, the sale of deeds to their land by the Six Nations was, arguably, a nonexistent right, or at the very least, a matter of vehement contention. Much of the discrepancy occurred because of the unsure locus of land claim rights. In a similar, and landmark, case—The Attorney General of Ontario v. St. Catherine’s Milling—this discordance was also raised because, according to the British North America Act that created Canada, Indian lands fell under the jurisdiction of the crown, while other lands were under provincial jurisdiction. The many subsequent challenges brought against the property and sovereign rights of the Six Nations illustrated, as Harring argues, the embarrassing inadequacy of English common law in regulating the Canadian frontier.
These cases were the beginning of a host of challenges to property and implied status rights of First Nations within Canada in the eighteenth, nineteenth and twentieth centuries, and form invaluable counterpoints to contemporary considerations of First Nations’ legal standing. Countless instances of jurisdictional conflict are related in White Man’s Law in which tribal councils have sought to apply justice (not by force of imperial [aw) to cases brought before them, though their censure of offenders was not acknowledged or respected by colonial law. Harring relates, in these numerous accounts, an acute conflict between the sovereignty of existing law and social order and the indiscriminate implementation of law and order notwithstanding its extant counterparts.
White Man’s Law effectively localizes Canadian legal history. It addresses conflicts with a keen awareness of specific context. This text is provocative and impressive in that it does not attempt to homogenize or essentialize the place of First Nations in the various legal contests that it addresses. By this account, instances of First Nations’ legal conflicts with colonial law are not merely anecdotal to the corpus of cases that constitute the history of law in Canada. Often depicted as anomalies and as isolated instances of challenges to the laws of Canada (or to Canada itself), cases involving First Nations become an integral part of the discourse and writing of Canadian law and Canadian history.
The rootedness of the accounts in White Man’s Law of particular cases in their emergent social contexts, their histories and other non-judicial parameters, to an extent overwhelms the case material presented, so the narrative of First Nations’ legal history is a dialogue of historical and social contexts as much as it is an account of case history.
Perhaps the most interesting narrative that weaves its way through White Man’s Law is the narrative of the appointed judges in the cases it examines. The perspective of the crown is narrated in many ways, both through official decisions and in other pronouncements made by judges as mouthpieces of the crown. In particular, the inconsistency of many applications of crown law to First Nations people is remarked upon by Harring. The inconsistency of, for example, Justice John Beverley Robinson’s formative opinions on Native rights cast the Canadian legal system in a questionable light. The bench’s apparent awareness of the need for either integration of First Nations law into Canadian law or, at the very least, an acceptance and consideration of First Nations law in the implementing of a more inclusive Canadian legal system was constantly at odds with the reality of the operation of the "rule of law."
At a time when the rights of First Nations communities are, more than ever, the subject of investigation and legal contest, with precedent-setting judicial decisions shaping the future of aboriginal land claims in Canada, one might question why the project undertaken by Professor Harring concluded its textual foray without addressing some of the more contemporary cases. He certainly alludes to their relevance at the outset. However, such a broad undertaking would likely dilute the historical contexts. My keenness for a text that incorporates more contemporary cases is merely a reflection of enthusiasm for the project undertaken in White Man’s Law, rather than an observation of deficiency.
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MLA: Lundström, Desirée. No Man's Land. canlit.ca. Canadian Literature, 8 Dec. 2011. Web. 22 May 2013.
This review originally appeared in Canadian Literature #174 (Autumn 2002), Travel. (pg. 147 - 149)
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