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Power, resistance and the law in a British Columbia land title trial

University of British Columbia

In Canada the law and the law courts have played and continue to play a prominent part in First Nations struggles for self-government and for their land. As such, the role of law demands assessment. Is the legalization of these struggles working to diffuse the efforts of the First Nations? Or do the law and the courts facilitate the process of decolonization in Canada? In this thesis, I investigate these questions with respect to a 1992 British Columbia Supreme Court trial, Delgamuukw v. Province of British Columbia and the Attorney-General of Canada. In this case, the Gitksan and Wet'suwet'en First Nations sued the province of British Columbia for ownership and jurisdiction of their territories. Analysing this trial, I suggest first, that the practices and procedures of the legal process reinforced colonialist power relations. The decision to the trial configures strategies of colonization with legal knowledge practices, and re-writes the Gitksan and Wet'suwet'en struggle for their land into legal question formulated on the basis of colonialist discourses. As a site of debate, the court-room encourages the configuration of legal and colonial modes of power because its form and structure promote the exclusion and devalorization of First Nations discourses and knowledges. But, secondly, the specific aspects of the trial indicate that First Nations use of and resistance in the court-room has the potential to enter into and substantively alter the law. Gitksan and Wet'suwet'en people and their lawyers use the court-room, its procedures and the knowledge practices associated with them, such as mapping and writing, to oppose the operations of colonialist strategies. The emergence of a group of lawyers who accept the validity of First Nations knowledge in court, in association with these resistances, suggests the possibility for substantive changes to the law. Inherent in the struggle of this group of lawyers for control over the means of legal interpretation is the potential for the widespread legitimation of First Nations knowledges and discourses in the legal sphere. In this way, my analysis indicates that during Delgamuukw the law and the courts operated in a dual fashion, on the one hand working with colonialist power, but on the other providing space for First Nations resistance to that power; it also underscores the efficacy of that resistance.

Thesis/Dissertation

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2008-12-19

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http://hdl.handle.net/2429/3219

Geography

University of British Columbia

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