Genealogies of the Land: Aboriginality, Law, and Territory in Vancouver’s Stanley Park
| Author | Renisa Mawani |
| DOI | 10.1177/0964663905054907 |
| Published date | 01 September 2005 |
| Date | 01 September 2005 |
| Subject Matter | Articles |
GENEALOGIES OF THE LAND:
ABORIGINALITY, LAW, AND
TERRITORY IN VANCOUVER’S
STANLEY PARK
RENISA MAWANI
University of British Columbia, Canada
ABSTRACT
Between 1998 and 2003, Canadian courts were confronted with two cases that have
held significant legal and political consequences for Aboriginal peoples. The cases,
R v Gladue (1999) and R v Powley (2003) raised pressing questions about Aboriginal
identities and the rights and material resources that follow from legal recognition. In
one form or another, these cases have generated important legal, political, and theor-
etical questions that require some exploration: How has ‘Aboriginality’ been legally
constituted within Canadian jurisprudence? In what ways have these racial-legal defi-
nitions changed temporally and geographically? And finally, and most importantly,
who can legitimately make claims to Aboriginal identities and to the legal rights and
material resources that accompany the law’s recognition of difference? In this article,
I historically contextualize these contemporary debates around the juridical construc-
tion of Aboriginal identities in Canadian jurisprudence. My substantive focus is two
trials that took place between 1923 and 1925 and which centered on competing terri-
torial claims to Stanley Park, an urban park in Vancouver, British Columbia. The cases
involved eight mixed-race families of Aboriginal and European ancestry who had
lived on the land in question for three generations, and whose ancestors had been
there since time immemorial. A central question that emerged throughout the juridi-
cal and extra-juridical discourse is if these people were ‘Indians’ (or ‘squatters’) and
whether they could make territorial claims through Native title. Through these cases
I suggest that the current controversies over Aboriginality evident in Gladue and
Powley are deeply rooted in colonial legal processes and practices that require some
historical analysis. Ultimately, historically grounded questions about the law’s consti-
tution of Indigenous identities may provide us with important insights into the many
facets of colonialism and its residual legacies.
KEY WORDS
Aboriginal people; colonialism; land rights; racial identity
SOCIAL &LEGAL STUDIES Copyright © 2005 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 14(3), 315–339
DOI: 10.1177/0964663905054907
01 054907 Mawani (bc-s) 12/7/05 3:20 pm Page 315
INTRODUCTION
ABORIGINAL IDENTITIES have long been a focal point of social, politi-
cal, and legal debate in Canada. Over the past several years, Indigen-
ous alterities have received renewed attention as the courts have now
been forced to decide crucial questions about who constitutes an Aboriginal
person. Specifically, between 1998 and 2003, Canadian courts were confronted
with two cases, R v Gladue (1999) and R v Powley (2003), each of which
generated important political and legal questions about Aboriginal identities
and the rights and material resources that follow legal recognition. Although
distinct in terms of facts and legal issues – Gladue dealt with reparative
sentencing and Powley with hunting rights – what both cases clearly illustrate
is the complicated, fractured, and contested nature of Aboriginal identities in
Canada. In each instance, the judiciary, and ultimately the Supreme Court of
Canada, determined whether the accused could make claims to ‘Aboriginal-
ity’ and how this category was to be legally defined. In Gladue, the trial judge
contemplated racial belonging through the prism of culture: did Tanis Gladue
live on a reserve? Did she belong to and participate within a First Nations
community? In Powley, racial membership was contemplated through
familiar nineteenth-century colonial discourses of blood quantum: how much
blood was necessary for one to legally qualify as Metis? Taken together, these
cases raise pressing legal, political, and theoretical questions that require some
exploration: How has ‘Aboriginality’ been legally constituted within
Canadian jurisprudence? In what ways have these racial definitions changed
temporally and geographically? And finally, and most importantly, who can
legitimately make claims to Aboriginal identities and to the legal rights and
material resources that accompany the law’s recognition of difference?
The objectives of this article are to historically contextualize these contem-
porary debates surrounding the legal construction of Aboriginal identities in
Canada, a topic that has been unevenly explored within socio-legal studies
(Backhouse, 1999; Mawani, 2000; Povinelli, 2002; Lawrence, 2003; Miller,
2003). Focused on early twentieth-century British Columbia, I consider how
the Canadian government constituted and managed First Nations peoples,
and importantly, their rights to land and resources, by limiting their access
to juridically defined identities. I argue that the current controversies
surrounding legal constructions of Aboriginality – evident in Gladue and
Powley – are deeply rooted in colonial legal processes and practices that
require some historical analysis. To elaborate, these struggles over identity
are situated in the law’s search for an authenticity that is expected to predate
the colonial settler nation as well as an historical continuity that is expected
to persist into the present day (Clifford, 1988; Miller, 2003: 67). Yet, the legal
pursuit for an Aboriginal essence is (im)possible for a number of reasons. For
one, the law, backed by state power, has historically been central in deter-
mining who constitutes an Aboriginal person and a recognized community
and in doing so, has created an otherness that can never fully be (Povinelli,
2002). In turn, these colonial definitions and classifications have complicated
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