The supersession of Indigenous understandings of justice and morals

ABSTRACT

Arguments about the supersession of historic injustice often use the dispossession of Indigenous lands as an example of the sort of injustice in the past that can be superseded in certain circumstances. This article aims not to directly challenge the content of such arguments but to place them into a different context, wherein they are seen playing a role in ongoing efforts to remove Indigenous understandings of law, justice, and morals from discussions about state-Indigenous histories and interactions. The normative narrowness of these arguments is explored alongside developments within Canadian law that purport to respond to the historic denial of substantive Indigenous interests in lands by colonial and Canadian authorities. While the analysis predominantly takes a bird’s-eye view of the interaction of varied normative systems, the conclusion advances a normatively charged argument, as I speculate about why courts – and academics writing about the passage of time – seem intent on developing arguments that displace Indigenous understandings.

KEYWORDS:

• Supersession
• historic injustice
• socio-cultural grounding of normativity
• Indigenous normativity
• naturalist analysis
• justice/injustice

Acknowledgments

The author is grateful to the organizers of a conference (“The Temporal Orientation of Justice”) at the University of Graz in June 2018 at which a draft of this paper was presented, in particular Timothy Waligore, who shepherded this work along.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. An anonymous reviewer felt the arguments in this section contained an implicit appeal to a normative position, namely that there should be some form of dialogue between the normative worlds of the settler and of varied Indigenous communities. I do not here argue on a normative level. My point in indicating that SHI-proponents do not bring into their ruminations Indigenous normative understandings is not to indicate a normative failing, but to indicate something about the nature of their bounded discourse.

2. Searle (2010) set out a model for the mechanics of how worlds of social meaning might be constructed, arguing they arise from the repeated use of two key socio-linguistic instruments: declarations and status functions. The general sketch set out here does not rest on this model. There is no need in this context, with its focus on how jurists in one colonial state might function in light of appreciation of arguments concerning SHI. Searle focuses on the creation of social institutions and on explaining how deontic powers parties come to enjoy make possible ways of thinking and acting in social settings. I am focused on the creation of sets of meanings behind structuring elements of society, such as concepts of justice.

3. There were dozens of peace-and-friendship and ad hoc agreements reached between the British Crown and Indigenous peoples in the eastern third of Canada in the 1700s and first half of the 1800s, and then large ‘land surrender’ treaties from 1850 to 1921, which cover much of central Canada. ‘Land surrender’ in scare-quotes signifies disagreement by many Indigenous people (and many academics) that there was a common understanding that these treaties were meant to be full surrenders of land interests.

4. The first full articulation of this position appeared in the Privy Council decision in St. Catherine’s Milling and Lumber Co. v. The Queen (1888).

5. Note the Court developed a test for Aboriginal title in Delgamuukw, but did not apply it to the evidence presented by the plaintiffs, finding instead that procedural defects meant it should be sent back to trial (which never happened).

6. Guerin v. The Queen (1984).

7. This point varies across Canada, with 1846 being generally accepted as the magic moment in British Columbia history as the border between the British colonies and the United States was then settled in the Oregon Treaty.

8. This is the result of (mostly) successful litigation in Tsilhqot’in Nation v. British Columbia (2014), a case that cost the Tsilhqot’in Nation millions of dollars. Most likely all reserve lands are actually Aboriginal title lands, but (a) that is not entirely settled, and (b) the land of all 2200+ reserves adds up to about 1/5 of 1% of Canada’s land mass (Indigenous and Northern Affairs Canada, 2010).

9. In Delgamuukw (1997, para. 165), the Supreme Court held that ‘the settlement of foreign populations’ on Aboriginal title lands is a sufficiently compelling and substantial objective a legislature can have in mind in justifiably infringing upon existing Aboriginal title.

10. Waldron (2013) argues this.

Additional information

Notes on contributors

Gordon Christie

Gordon Christie is a Professor at the Peter A. Allard School of Law at the University of British Columbia. He recently published Canadian law and Indigenous self-determination: A naturalist analysis (University of Toronto Press). He is Inuvialuit.