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Judging History: Reflections on the Reasons for Judgment in Delgamuukw V

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Judging History: Reflections on the Reasons for Judgment in Delgamuukw V Judging History: Reflections on the Reasons for Judgment in Delgamuukw v. B.C. ROBINFISHER So far, most of the running against Chief Justice Allan McEachern's findings in Delgamuukw v. B.C. has been made by native people and anthropologists. Both groups have, quite rightly, objected to the denigra­ tion of native cultures, to the fact that oral testimony was first admitted then dismissed, and to the assertion that anthropologists were largely un­ reliable witnesses. Lawyers have also commented on the case in print, and will do so in more detail when the argument is rejoined in the British Columbia Court of Appeal.1 Without wishing to diminish the force of any of these criticisms, I want to look at the judgment from the point of view of an historian. McEachern's "Reasons for Judgment" is a "book" that also ought to be reviewed as a piece of historical writing in its historio- graphical context. It is fitting that the judgment be evaluated as history because McEachern invokes the historical perspective and, at first glance, treats historians and their work with much more respect than anthropology. At the beginning of his "chapter" entitled "An Historical Overview," he notes: "It is not possible to discuss this case except in an historical context."2 Later, as he evaluates the various forms of evidence presented to the court, he writes of historians that, "I accept just about everything they put before me .. ."3 By contrast, the evidence presented by Native people and anthropologists is treated with great skepticism. McEachern thought that Gitksan and Wet'suwet'en people who testified had "a romantic view" of the past and, therefore, "much of the plaintiffs' historical evidence is not literally true."4 The anthropologists were alleged to have engaged in a "type of study .. 1 Hainar Foster, "It Goes Without Saying: Precedent and the Doctrine of Extinguish­ ment by Implication in Delgamuukw et al v. The Queen," The Advocate 49 (May !99i ) : 34Ï-57; Leslie Hall Pinder, The Carriers of No: After the Land Claims Trial (Lazara Press: Vancouver, 1990). 2 Delgamuukw v. B.C., 17. 3 Ibid., 52. 4 Ibid., 48-49. 43 BG STUDIES, no. 95, Autumn 1992 44 BC STUDIES called participant observation" which brought them too close to their subjects (in this case the plaintiffs) and, in McEachern's view, was "fatal to the credibility and reliability of their conclusions."5 The judge's rejec­ tion of one approach to the past, and apparent acceptance of another, was fundamental to his "Reasons for Judgment" and therefore bears closer scrutiny. A more careful examination of the evidence provided in the judgment will show that McEachern, in fact, paid very little attention to historians. His rejection of their work is less blatant than his dismissal of anthropology and oral tradition, but it is no less thorough. The reasons for ruling out much of what the native people and anthropologists had to say are up front and clearly stated. Those groups can come to grips with the argu­ ment against them and much of the thinking that lies behind it. History and historians are treated more shabbily by not even being given that opportunity. McEachern may appeal to history and uphold the reliability of historians, but he appears to have no understanding of either the histori­ cal methodology or the conclusions of historians who have written about Native people in Canada. For this historian, then, both the method of and the reasons for McEachern's judgment are seriously flawed. In Delgamuukw v. B.C. the naivety of the conclusions about history follow logically from the means by which they were reached. The judge's professed reliance on historians arises from his belief that they are "largely collectors of archival, historical documents."6 But if writing history in­ volved ten steps, then the historian has only taken one with the acquisition of the documents. The real work of the historian begins with reading the documents and evaluating them for internal consistency as well as estab­ lishing the context in which they were written. Individual documents must be compared to the rest of the written record and, where appropriate, non-written sources. Then the historian develops an interpretation of the past that is logical and consistent with all of the available evidence. The final steps are to write an account of the past in clear, accessible prose, and to point out to the reader, through footnotes and bibliography, the sources that formed the basis for the conclusions. McEachern, by contrast, adopts a hopelessly outmoded procedure which he describes as a "'scissors and paste' format " No lesser authority than R. G. Collingwood wrote nearly fifty years ago that "scissors and paste history ... is not really history at all," and then went on to explain how 5 Ibid., 50. 6 Ibid., 52. Judging History 45 that approach to the past began to be superseded in the seventeenth century.7 McEachern does seem to have some reservations about scissors and paste, as he allows that "it is not usually good practice," but he goes ahead and follows it nonetheless.8 Actually the McEachern methodology would be better described as xerox, scissors, and paste. For the first step in this procedure is to pull the documents out of their original context by use of the xerox machine. Thus, for example, a letter from Governor James Douglas to the British Colonial Secretary on Indian land policy is isolated from his numerous letters on other issues of the day. It is as if Douglas did his thinking in watertight compartments rather than as a busy governor deal­ ing with a dozen overlapping questions at the same time. Individual docu­ ments are then cut to pieces so that excerpts can be quoted. The historical sections of the judgment consist of long successions of quotations from original sources strung together with commentary by the judge. The trouble # with scissors and paste is that scissors cut things out of context and, once removed from their setting, all the bits of the document are of equal weight. After the individual pieces have been trimmed to a suitable shape, with the application of paste, the past can be stuck back together according to a new, and more acceptable, pattern. Worse still, by failing to refer the reader to the original source of the document, McEachern makes it very difficult to follow his cutting and pasting. There are several instances where documents are quoted without any citation at all.9 When a reference is provided, the citations are not to archival collections, but are either to the compilations of documents brought together for this case or to previous cases where they were used. These citations obscure the historical reasoning behind the judgment. For, unless one has access to the exhibits placed before the court, or is very familiar with the documentary record, checking the accuracy of the quota­ tions and the extent to which lack of context distorts their meaning will be a complicated task. Because one cannot easily check McEachern's foot­ notes, the validity of his interpretation of history remains, at very least, an open question. Not all of these shortcomings are unique to the McEachern judgment. Though this may be a particulariy brazen example, other judgments are based on similar techniques. Combing the documents for suitable quotes, 7 R. G. Collingwood, The Idea of History (L,ondon: Oxford University Press, 1961), 257-60. This book was first published in 1946. 8 Delgamuukw v. B.C., 99* 9 See, for example, Delgamuukw v. B.C., no, 120-23, 158, and 181-82. 46 BC STUDIES pulling them out of context, and then citing them to court exhibits or other judgments is common practice in legal circles. It is almost as if an historical document does not acquire legitimacy until it has been intro­ duced in court. Thus the various enactments of the colonial legislature of British Columbia that are alleged by the province to have extinguished aboriginal title prior to 1871 are sometimes called "the Calder XIII" in legal circles because they are referred to in the Calder case.10 This short­ hand form of citation is undoubtedly more convenient than referring to a series of Acts, but having the legal system recreate the past in its own image is not good history. The drawbacks of this approach will be ex­ plained in any primer on the historical method.11 Also anachronistic is Chief Justice McEachern's belief that the docu­ ments are self-explanatory. He praises historians for providing "much useful information with minimal editorial comment." Their marvellous , collections," he adds, "largely spoke for themselves." If one accepts this premise, then it is logical "to allow the participants — those who were actually on the scene dealing with these problems — to be judged by their own words... ,"12 This notion is, at best, very innocent. For the meaning of documents is not self-evident: it can only be understood in context. A document cannot be properly evaluated until we know who wrote it, for whom it was written, and, most importantly, why it was written.13 As McEachern inadvertendy shows, it is not possible for judges, any more than historians, simply to allow figures from the past to speak for themselves. By giving, as he does, an individual like Joseph Trutch the benefit of every doubt, the chief justice makes a very real judgment about the past. Again, these points are elementary to the process of writing history. Less obvious, perhaps, are the consequences of McEachern's complete faith in the documentary record as the primary, if not the only, reliable source of insight into the past.
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