Week Three – Critiquing Delgamuukw

When this session ran the first time in Winter 2019, we spent a lot of time talking about the limits of the following guideline for decolonization:

We acknowledge that Canada is a settler-colonial state, and that settler colonialism has two principal goals: to occupy land and to establish settler systems of government. To achieve this, settler societies attempt to eliminate Indigenous obstacles to territorial acquisition and settler governance.

Some reflected that this formulation failed to include the way that settler imaginaries buttress settler colonialism: how mainstream culture itself served the acquisitive nature of settler colonialism; others reflected on the way this definition evaded the profit-seeking nature of colonialism. We talked about the word obstacles and whether or not a loaded word like that, which reflects the view of some settlers vis-a-vis Indigenous peoples, was appropriate. Perhaps a more neutral word would solve the problem, some thought. As the facilitators mentioned, these guidelines serve to start a conversation, not finish it. Allow the notion of decolonization to be a starting point/guiding star as you read through the article this week.

The article is written by Dr. John Borrows, a Canada Research Chair in Indigenous Law at the University of Victoria Law School. In his book Recovering Canada: The Resurgence of Indigenous Law, Borrows tells the stories of Indigenous legal systems the pre-existed the colonial state and argues that there is a way that they can be part of a pluralistic legal landscape in Canada. The chapter we are reading, Nanabush Goes West, addresses the impact (and disappointments) of Delgamuukw in the context of Nisga’a, Wet’suwet’en, and Gitxsan law. Here we see law—i.e., English law—as one of the settler systems of governance perpetuating settler colonialism. This is true, despite the way that Delgamuukw–a court ruling enacted from within that very system–seemed to promise a new way of embracing Indigenous evidence.

Here are the territories that are mentioned most often in Borrow’s article. Delgamuukw addressed specifically the claims of the Gitxsan and the Wet’suwet’en.

Here is a broader map of Indigenous territories in “British Columbia.”

Questions to consider as you read:

• How does this article challenge/deepen your understanding of private property law?
• Why does Borrows read Delgamuukw as a flawed/ compromised ruling, as opposed to a landmark case for reconciliation?
• Why did some settlers see it as a landmark case?

In terms of some of the basic questions at the heart of this session especially, consider how this reading deepens your answer to questions like:

• What is a right?
• What is title?
• What is jurisdiction?
• What is sovereignty (to the Crown, to the province, to the Wet’suwet’en and the Gitxsan)? How do these types of sovereignty relate to the broader thinking around sovereignty we read in the first week?
• What is common law?
• What is evidence?