Calder V. Attorney General of British Columbia; Aboriginal Case Law in an Ethnobiased Court

Abstract / Resume In 1973 the Supreme Court of Canada rendered its judgment over Calder v. Attorney General of British Columbia, a case that ultimately was not decided in favor of the Nisga'a. This paper will examine the Calder case through anthropological concepts of cultural bias and cultural relativity, in an effort to explore how culture plays a role in judicial decision making. En 1973, la Cour supreme du Canada a rendu un jugement dans la cause Calder c. Procureur general de la Colombie-Britannique qui n'a finalement pas ete decidee en faveur des Nisga'a. Le present article examine la cause Calder en ayant recours aux concepts anthropologiques de prejuge culturel et de relativite culturelle dans un effort d'exploration du role de la culture dans la prise de decision judiciaire. A Perspective on Case and Ethnobias In 1973 the Supreme Court of Canada rendered its judgment over Calder v. Attorney General of British Columbia? Although the Nisga'a narrowly lost their request for a judicial declaration that Aboriginal or Indian title to certain lands had never been lawfully extinguished, the judgment, nonetheless, was viewed as a landmark decision for Aboriginal rights. I was perhaps one of the first to write on the Calder case when in 1991, I devoted a chapter of my doctoral dissertation to an analysis of the Calder and Paulette cases. That chapter, Legal Attitudes on Aboriginal Rights, was written to examine, at least in one particular example of the Calder case, how culture influenced an outcome in Canadian law regarding Aboriginal rights.2 In 1996, I submitted a more extensive version of the section of my dissertation that analyzed the Calder case to a Canadian journal for publication. Because the article involved analyses and interpretation of legal cases, individuals in the legal profession were selected to review the article. Rather than assess the logic and merit of the article, some reviewers seemed more concerned with matters of technical and structural substance. In the end, choosing to believe that members of the legal profession objectively stood above the influence of culture, and remaining fixed upon the idea that the Calder case had brought about change for First Nations Peoples, it was recommended that the article not be published. When informed of this decision by the journal's editor I explained how the nature of the reviewers' responses actually supported my article's position that Anglo-European law is bound by AngloEuropean culture and that problems regarding the Aboriginal rights of First Nations peoples will continue to exist as long as members of a dominant Eurocentric culture sit in judgment over members of Indigenous cultures they don't understand. In other words, for the Court to objectively judge or assess the Aboriginal rights of Indigenous peoples in Canada it must embrace standards of cultural relativity. What this means is for true objectivity, the Court must be able to understand the issues relative to the values, and codes of ethic, that derive from the cultural standards of First Nations peoples rather than those of a settler society that immigrated to Canada from Europe. It is generally the case that most would see judging First Nations people outside of the values of a dominant Canadian culture as problematic. What they fail to see, however, is that because all human behavior occurs in context to its own particular culture, when judgments are rendered by Canadian courts regarding First Nations peoples those judgments are based on the ideals of its own culture and, because this usually translates to an idea of their own culture's superiority over that of First Nations people, this is reason why judgments can rarely be objective in the absence of cultural relativity. After some minor revisions the article was sent out for a second review. Unfortunately the second response was possibly worse than the first. What caught the attention of the editor, however, was that some reviewers focused more on personal attacks rather than commenting on the merits of the article itself. …

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