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Property as Ontology: On Aboriginal and English Understandings of Ownership

Published online by Cambridge University Press:  09 June 2015

Bradley Bryan
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Extract

A critical knowledge of the evolution of the idea of property would embody, in some respects, the most remarkable portion of mental history of mankind.

– L.H. Morgan

Now you try and say what is involved in seeing something as something. It is not easy.

– Ludwig Wittgenstein

In this paper I argue that a comparison of English and Aboriginal conceptions of property yields insight into the ontologically specific grounds that inform institutionalized socio-cultural practices like property. Where the foundations of English conceptions of property are highly rationalistic, Aboriginal conceptions eschew categorization and are indicative of a highly nuanced and different way of understanding the worldliness of a human being. As such, a comparison of such conceptions becomes not simply a comparison of ways of owning and possessing, but a cross-cultural comparison of ways of relating to the world at large for what are ostensibly economic purposes.

To argue this is to assume that there is much more going on within culture that is determinative of ways of being than to simply assume that all cultures share universal cultural traits. In this paper I therefore discuss some of the philosophical foundations that underlie Western conceptions of the human’s relation to the world as embodied in principles of property law, as well as looking at the philosophical significance of that view. I also look at the way various Aboriginal peoples in Canada understand their own relationship to the world-at-large as it is expressed in what they understand as the property regimes of their society.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 13 , Issue 1 , January 2000 , pp. 3 - 31
Copyright
Copyright © Cambridge University Press 2000

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References

1. In Ancient Society (1877), cited in V.G. Kiernan ‘Private Property in History’ in Jack Goody, Joan Thirsk, & E.P. Thompson, eds., Family and Inheritance: Rural Society in Western Europe, 1200–1800 (Cambridge: Cambridge University Press, 1976) at 361.

2. Wittgenstein, cited in Ray Monk, Ludwig Wittgenstein: The Duty of Genius (London: Vintage, 1991) at 514.

3. This view is evident in our jurisprudence as well: see the description of native life in Delgamuukw v. British Columbia, [1991] 3 W.W.R. 97 at 155–56 (B.C.S.C).

4. Currently we require evidence of Aboriginal occupation as a pre-condition to proving Aboriginal title. What if ‘occupation’ was not the key way that a First Nation related to their territory? See Delgamuukw v. R., [1997] 3 S.C.R. 1010.

5. Christopher Cook, from personal interview. March 20, 1998.

6. The word ‘Aboriginal’ is also a troublesome bundle of very different cultures and peoples. To speak of Aboriginal peoples is to speak of people who were here ‘originally,’ which is to suggest that these people are all of a category. It does not adequately describe what those people were like, and indeed mis-describes them by so suggesting.

7. For a description of how this process works, see Charles Taylor, ‘Theories of Meaning’ in Language and Human Nature: Philosophical Papers I. (Cambridge: Cambridge University Press, 1985) at 248.

8. The state of nature arguments, building on Hobbes’ construction, are undertaken by John Locke in ‘Of Property’ in Two Treatises of Government, ed. by P. Laslett (New York: New American Library, 1963).

9. See Richard Tuck, Natural Rights Theories (Cambridge: Cambridge University Press, 1979); James Tully, An Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 1993.

10. J.E. Penner, The Idea of Property in Law (Oxford: Clarendon Press, 1997) at 3.

11. Ibid, at 4–5.

12. Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958) at 61–69.

13. Ibid, at 60–69.

14. Ibid, at 60–69.

15. C.B. Macpherson, ‘Capitalism and the Changing Concept of Property’ in Eugene Kamenka & R.S. Neale, eds., Feudalism, Capitalism and Beyond (London: Edward Arnold, 1975) at 105–06. Compare Macpherson’s analysis with the historical analysis with the philosophical analysis of Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953). Reflecting on the idea of a ‘natural’ conception of property, we would be wise to remember Maitland’s suggestion that feudalism only existed because of Henry Spelman’s definition of it:

Now were an examiner to ask who introduced the feudal system into England? one very good answer, if properly explained, would be Henry Spelman.… If my examiner went on with his questions and asked, when did the feudal system attain its most perfect development? I should answer about the middle of the [eighteenth] century.

Cited in Milsom, ‘Introduction’ in Sir Frederic Pollock & F.W. Maitland, History of English Law before the Time of Edward I vol. I. (Cambridge: Cambridge University Press, 1969) at xxviii.

16. I have concluded this based on the detailed discussion of David Pugsley, The Roman Law of Property and Obligations (Cape Town: Juta & Company, 1972) at 1–28.

17. The distinction is emphasized in Arendt, supra note 12 at 69.

18. Weber makes the distinctions between formal and substantively rational and irrational law as law that has a procedural mechanism allowing for universal verification and being based on commonly understandable ethical norms. See Weber, Economy and Society, ed. by G. Roth & C. Wittich (Berkeley: University of California Press, 1968) at 654–58.

19. One fine example of this is Douglas Hay’s discussion of the role of criminal law in keeping public order in a country with no standing police force through the eighteenth century. See Albion’s Fatal Tree: Crime and Society in Eighteenth Century England (New York: Pantheon, 1975). For a great discussion of how the law is rationalized to the dictates of production, see also Roberto Unger’s Politics: The Central Texts ed. by Zhiyuan Cui (London: Verso, 1997) at 93–134; and Unger, Law in Modern Society (New York: Free Press, 1976) at 58–66.

20. V.G. Kiernan, ‘Private Property in History’, supra note 1 at 364–68ff.

21. Ibid, at 364.

22. Ibid, at 365. Indeed, it is not a mere canonical slip that the goodness of things is reckoned upon ‘men,’ as society often worked to suppress and disinherit women of property. Though never explicitly property themselves, their marriage and their personal belongings were proprietary in nature. See J.H. Baker, An Introduction to English Legal History (London: Butterworths, 1990) at 551–57.

23. Macpherson, ‘Changing Concept of Property’, supra note 15 at 116ff.

24. For a discussion of this see S.F.C. Milsom, The Legal Framework of English Feudalism (Cambridge: Cambridge University Press, 1976); Pollock & Maitland, History, supra note 15 at ch. 6; Baker, Introduction, supra note 22 at ch. 13; and John Hudson, Land, Law, and Lordship in Anglo-Norman England (Oxford: Clarendon Press, 1994).

25. The process by which this transformation occurred is detailed by Milsom in ibid. For a concise description of ‘what happened,’ see Baker, supra note 22 at ch. 13.

26. The moral bond was not taken lightly, especially since vassalage denoted military service of the lord. Thus, though we might see trial by battle as a complete freak of social practice, at the time there may have been a real interest in determining who was the more able man with respect to fighting and strength. All these factors calculate into the importance of the moral bond.

27. There area few interpretations as to why Henry H did this, but it is clear that it sounded a death knell for feudalism. Milsom, The Legal Framework of English Feudalism, supra note 24; Paul Brand, The Making of the Common Law (London: Hambledon Press, 1992); Pollock & Maitland, supra note 15.

28. M.T. Clanchy, From Memory to Written Record: England, 1066–1307 (London: Edward Arnold, 1979) at l-9and265ff.

29. For a discussion of the role of the Domesday, see V.H. Galbraith, The Domesday Book (Oxford: Clarendon Press, 1974).

30. Baker, Introduction, supra note 22 at 365–71, 389,441–42.

31. On this transformation, see Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983) at 438–59.

32. Penner, supra note 10 at 187. See also Locke, ‘Of Property’, supra note 8 at 43; and generally Tully, supra note 9; and James Tully, A Discourse on Property: John Locke and his Adversaries (Cambridge: Cambridge University Press, 1980); J.P. Day, ‘Locke on Property’ in Gordon J. Schochet, ed., Life, Liberty, and Property: Essays on Locke’s Political Ideas (Belmont, CA: Wadsworth, 1971); also in the same volume, C.B. Macpherson, ‘The Social Bearing of Locke’s Political Theory’; and Macpherson, The Political Theory of Possessive Individualism, Hobbes to Locke (Oxford: Oxford University Press, 1962).

33. See Tully, Locke in Contexts, supra note 9 at 96–100.

34. Ibid, at 100.

35. It has been argued that Locke’s ideas can be best understood as responding to the Natural law discourse of the time. See Tully, ibid, at 99–102.

36. Locke, ‘Of Property’, supra note 8 at paras. 27ff.

37. Ibid, at para. 25; Tully, Locke in Contexts, supra note 9 at 27, 82–84.

38. Penner, supra note 10 at 196.

39. Ibid, at 198.

40. Locke, supra note 9 at para. 32.

41. This is most apparent in cases of trespass where one party seeks to enjoin the behaviour of another party so as to be able to bargain from a stronger position. The court will often seek to create a ‘notional bargain’ whereby one party is expected to pay damages that are equal to what would have been a fair price for a licence of entry. Compare Goodson v. Richardson (1874), L.R. 9 Ch. App. 221; Bradford v. Pickles, [1895] A.C. 587 (H.L.) with Behrens v. Richards, [1905] 2 Ch. 614 and Douglas v. Bullen (1912), 22 O.W.R. 837. In this sense, the economic value of the land and the trespass are considered together.

42. Bruce Ziff, Principles of Property Law (Toronto, ON: Carswell, 1993) at 92–94. It is interesting to note that the modern law of property interests in sub-surface mineral rights derives from the ability of the user to ‘subject’ those wild elements below the surface to one’s ‘dominion.’

43. In Ziff, ibid, at 24–26, 92–94.

44. Locke, supra note 8 at para. 32ff.

45. We should not find this surprising considering that Bacon, as Lord Chancellor of England, presided over scores of witch trials. The language of his work reveals his Christian understanding of the separation of ‘man’ from nature, and specifically the position of the latter as being subject to man’s ‘dominion’: see Bacon, Advancement of Learning: Novum Organum (Chicago: Encyclopedia Brittanica, 1952).

46. See Neal Wood, John Locke and Agrarian Capitalism (Berkeley: University of California Press, 1984) at 56–64.

47. From ‘demesne’ or the ‘mesne,’ which denoted the intermediate status of the tenant who held as both lord of the tenant below and tenant of the lord above in a subinfeudated chain. See Baker, Introduction, supra note 22 at 258n; Wood, ibid, at 58.

48. Berman, Law and Revolution, supra note 31 at 237–45; S.M. Waddams, The Law of Damages (Toronto, ON: Canada Law Book, 1997) at ch. 1. Note that Waddams discusses the compensation for the loss of property as well as the compensation for the loss of use of property. Such values differ monetarily, but also differ with respect to the way that the lost property is understood. See also Penner, supra note 10 at ch. 10.

49. Consider, for instance the law with respect to cuius est solum eius est usque ad caelum et ad inferos, accretion, and accession, in Ziff, Principles of Property Law, supra note 42 at 64–68, 75–76. The theoretical idea is contained in Locke, supra note 8, para. 32ff; and F.H. Lawson, An Introduction to the Law of Property (Oxford: Clarendon Press, 1958) at 87–89. Indeed, see S.N. Katz, “Introduction,” on the rhetoric employed by Sir William Blackstone in the Commentaries on the Laws of England (Chicago: University of Chicago Press, 1979), and Bacon, supra note 45, with that of John Borrows, ‘Living Between Water and Rocks: First Nations, Environmental Planning and Democracy’ (1997) 47 U. Tor. L. J. 417.

50. See A.M. Honoré’s discussion of this in ‘Ownership’ in A.G. Guest, ed., Oxford Essays in Jurisprudence (Oxford: Clarendon Press, 1961) 107.

51. In the law of remedies, the notional bargain is the price put on a trespass where the plaintiff has been denied the opportunity to bargain for the right he has given up, i.e., the licence to enter on the plaintiff’s property. A classic statement of this idea is found in Wrotham Park Estate Co. v. Parkside Homes, [1974] 1 W.L.R. 798 (Ch. D.).

52. Penner, supra note 10 at 198.

53. Supra note 49, and also Tito v. Waddell (No. 2), [1977] Ch. 106.

54. On use value and exchange value of a ‘good’ and how a thing is classified as one, see Penner, note 10 at 190–1; Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press, 1988) at 218–20; Alan Ryan, Property (Milton Keynes: Open University Press, 1987) at ch. 9 generally; C.B. Macpherson, ‘The Meaning of Property’ in C.B. Macpherson, ed., Property: Mainstream and Critical Positions (Toronto, ON: University of Toronto Press, 1978) at 6–9; all of these obviously drawing on Marxian conceptions set out in Kapital. See also the way the common law defines property rights as limited by the extent to which it can be reasonably used in Bernstein of Leigh (Baron) v. Skyviews & General Ltd., [1978] QB 479; and the extent to which one cannot be deprived of use, reasonable or not, in Lewvest Ltd. v. Scotia Towers Ltd. (1981), 126D.L.R. (3d) 239 (Nfld. T.D.).

55. Arendt, supra note 12 at 69.

56. This becomes strikingly clear in personal injury compensation cases where courts struggle to give monetary value as a marker as what a body part or loss of enjoyment of life is worth. The Supreme Court has struggled to endorse a market exchange value for any kinds of aspects of loss that can be quantified in this way, and then reverts to a general estimating with respect to what the loss of enjoyment of life and/or limb is worth. It marks this loss as a distinction between pecuniary and non-pecuniary loss ‘a distinction that remains unproblematized with respect to property law. See the important trilogy of cases decided by the Supreme Court of Canada, starting with Andrews v. Grand & Toy Alberta Ltd., [1978] 2 SCR 229; Thornton v. Prince George School Board, [1978] 2 SCR 267; and Arnold v. Teno, [1978] 2 SCR 287.

57. Jennifer Nedelsky, ‘Reconceiving Rights as Relationship’ in Jonathan Hart & Richard Bauman, eds., Explorations in Difference: Law, Culture, and Politics (Toronto, ON: University of Toronto Press, 1996) 67; Belevsky, ‘Liberty as Property’, infra note 59.

58. On this many economic analyses have emphasized the rational basis for private property rights regimes that ensure mutual observation of proprietary entitlement for selfish reasons. The best explanation of the basis of such a system of rules to emerge from this understanding of property rights is in Calabresi and Melamed’s classic article, ‘Property Rules, Liability Rules, and Inalienability: One View of the Cathedral’ (1972) 85 Harv. L. Rev. 1089.

59. See Diana Belevsky’s analysis of the rhetoric of property as a metaphor for various kinds of descriptions in human society in ‘Liberty as Property’ (1995) 45 U. Tor. L. J. 209.

60. See Berman, Law and Revolution, supra note 31 at 288–94; Nietzsche, Daybreak. R.J. Hollingdale trans. (Cambridge: Cambridge University Press, 1982) at ‘Preface’.

61. Cf. Christopher Norris, ‘Enlightened Pursuits: Truth-Seeking Discourse and Postmodern Skepticism’ in Hart & Bauman, eds., Explorations, supra note 57 at 91–92.

62. That is, traditionally understood: Gianni Vattimo, Beyond Interpretation: The Meaning of Hermeneutics for Philosophy, trans. David Webb (Stanford, CA: Stanford University Press, 1997) at 75–96.

63. If we consider the historical process of philosophy toward the devaluation of values, this line of analysis points toward identifying the evolution of property rights in Western society as also bound up in a particular process of rationalization that works to devalue values and erode meaning from our primary institutions. The thesis sheds light on the particular dynamics that go to work within Aboriginal cultures when they appropriate Western conceptions of agency and metaphysics into their own with the disastrous outcome that authentic meaning is eroded at the hands of a universalizable conception of truth.

64. Nedelsky, ‘Reconceiving Rights’, supra note 57; and Belevsky, supra note 59.

65. Martin Heidegger, ‘The Question Concerning Technology’ in Basic Writings, David Farell Krell, ed., (San Francisco, CA: Harper & Row, 1977) at 301

66. Ibid, at 298.

67. Ibid, at 301, 306–09.

68. Ibid, at 305. ‘Enframing is the gathering together which belongs to that setting-upon which challenges man [sic] and puts him in position to reveal the real, in the mode of ordering, as standing reserve. As the one who is challenged forth in this way, man stands within the essential realm of enframing.’

69. David Farrell Krell, ‘Introduction’ to ‘The Question Concerning Technology’ in Basic Writings, supra note 65 at 285.

70. Heidegger, supra note 65 at 307–08.

71. For example, Pam Colorado & Don Collins, ‘Western Scientific Colonialism and the Re-emergence of Native Science’ (1987) (Winter) J. Pol., Econ., Psy., Sociology and Culture 51.

72. Olive Patricia Dickason’s Canada’s First Nations (Toronto, ON: McClelland & Stewart, 1992) at 48. Dickason’s history is particularly egregious in conflating many particular aspects of Aboriginal life as though it were the same reality. Indeed, her history of Aboriginal peoples since earliest times covers 10,000 years in sixty pages and then launches into the last 200 in the following 400. This kind of historiography badly appropriates the individual cultures of Aboriginal societies in such a way as to mar their ability to retain authenticity in face anything but their ‘Aboriginal’ identity.

73. See Bill Reid’s incredible The Raven and the First Men at the U.B.C. Museum of Anthropology. See also ‘The Haida Legend of the Raven as Retold by Bill Reid’ (1998) 82 Common Ground 6.

74. Umeek, from personal interview. Nanaimo: March 3, 1998.

75. Consider the way that westerners have continually created the vision of the Indian in an image they wanted to see in H.C. Porter, The Inconstant Savage: England and the North American Indian J500–1600 (London: Duckworth, 1979). Furthermore, Gerald Alfred noted that we need to get past an understanding of the Aboriginal as inhabiting a pastoral society that demonstrated continual harmony. He states: there was crime, there were rivalries, and there was war. Gerald Alfred, from personal interview. Victoria: March 12, 1998.

76. For the general framework with which we now have to live with respect to the practice of history and the creation of historical identities, see Edward Said, Orientalism (New York: Pantheon Books, 1978), and for the political reality that results, see James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995). To see the way that history creates the problem through white eyes, see Paul Tennant, Aboriginal Peoples and Politics: The Indian Land Question in British Columbia, 1849–1989 (Vancouver: University of British Columbia Press, 1990) at 4–16; Bruce G. Trigger, Natives and Newcomers: Canada’s ‘Heroic Age’ Reconsidered (Kingston, ON: McGill-Queen’s University Press, 1985) at ch. 1; and Robin Fisher, Contact and Conflict, 2nd ed., (Vancouver: University of British Columbia Press, 1992) at ch. 4.

77. For a good summary of some of these insights and teachings as they arise in their particular contexts, see Adolf Hungry Wolf, Teachings of Nature (Skookumchuck, BC: Good Medicine Books, 1989).

78. As is done in two relatively distinct ways in Hyemeyohsts Storm, Seven Arrows (New York: Ballantine, 1972); and Rupert Ross, Returning to the Teachings (Toronto, ON: Penguin, 1996).

79. Benedict Anderson has given us a particular understanding of the various means by which nationalist consciousness emerges and is continually created in European history, one of which is through the use of the map as means to understand a group’s spatial reality in a particular way. The way he describes the use of the map as a way to completely reconfigure the kind of self-understanding that a community has is very apt with respect to First Nations communities. Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, 1991) at 170–78. On this theme as well compare Jean Baudrillard ‘The Map Precedes the Territory’ in W.T. Anderson ed. The Truth About the Truth: De-confusing and Reconstructing the Postmodern World (New York: G.P. Putnam, 1995), and Hugh Brody, Maps and Dreams (Vancouver, BC: Douglas & Mclntyre, 1988).

80. Harry Robinson, Nature Power: In the Spirit of an Okanagan Storyteller in W. Wickwire, ed., (Vancouver, BC: Douglas & Mclntyre, 1992) at 16ff.

81. Ibid, at 21.

82. Wendy Wickwire, ‘Introduction’ to Harry Robinson, Write it on your Heart: The Epic World of an Okanagan Storyteller, W. Wickwire, ed., (Vancouver, BC: Talonbooks/Thetis, 1989) at 14.

83. Ibid, at 15.

84. See, for example, ‘Coyote Gets a Name and Power’ in Write it on your Heart, supra note 82 at 53, and ‘Throw me in the River’, supra note 80 at 85, though any story in this volume contemplates this relationship.

85. Chiefs of the Shuswap, Okanagan and Couteau Tribes, ‘Letter to Sir Wilfred Laurier’ Presented atKamloops, B.C., August 25, 1910.

86. See Robinson, ‘Rainbow at Night’, supra note 80 at 44–52 to see the way that the act of making material provision is itself constituted by a particular make-up of power or sumix.

87. See Helen Codere, Fighting with Property: A study of Kwakiutl Potlatching and Warfare 1792–1930 (Seattle: University of Washington Press, 1950); and Abraham Rosman & Paula G. Rubel, Feasting with Mine Enemy: Rank and Exchange among Northwest Coast Societies (New York: Columbia University Press, 1971).

88. Rosman & Rubel, ibid, at 128–29.

89. Rosman and Rubel term this as a transfer of property from a father to his son, whereas Marcel Mauss tries to problematize the gift relationship. See Rosman & Rubel, ibid, at 132–36; Marcel Mauss, The Gift: The Form and Reason for Exchange in Archaic Societies, trans. W.D. Halls (London: Routledge, 1990) at 39–46.

90. Rosman & Rubin, ibid, at 133–34.

91. Gleaned from Codere’s description of ceremonies in Fighting with Property, supra note 87 at 63–68,73–80, and 98–117.

92. Ibid, at 118–25.

93. See ibid, at 124–29.

94. On the Athapaskan, see Brody, supra note 79; William E. Simeone, Rifles, Blankets, and Beads: Identity, History, and the Northern Athapaskan Potlatch (Norman: University of Oklahoma Press, 1995).

95. Brody, supra note 79 at 36–37.

96. See Simeone, supra note 94 at ch. 7 and 162–65.

97. Ibid, at ch. 7, especially 15 Iff.

98. Richard Overstall, ‘Gitxsan Treaty Transition Strategy’ Unpublished Manuscript; Overstall, from personal interview. Victoria: March 18, 1998; Gisday Wa & Delgam Uukw, The Spirit of the Land (Gabriola, BC: Reflections, 1989); for a description of the Wet’suwet’en clan system, see Antonia Mills, Eagle Down is Our Law (Vancouver: University of British Columbia Press, 1994); and for how the Gitxsan claim was undertaken, Dara Culhane, The Pleasure of the Crown (Burnaby, BC: Talon Books, 1998).

99. Overstall, ibid. at 1.

100. Ibid.

101. Ibid.

102. Gisday Wa & Delgam Uukw, The Spirit in the Land, supra note 98 at 7–8.

103. Mills, Eagle Down, supra note 98.

104. Mas Gak, ‘Foreword’ in ibid, at xi.

105. Mills, Eagle Down, supra note 98 at 101.

106. See Cheri Burda, Russell Collier, & Bryan Evans, The Gitxsan Model: An Alternative to the destruction of forests, salmon and Gitxsan land (Victoria: Eco-Research Chair of Environmental Law and Policy, 1999); and Deborah Curran & R. Michael M’Gonigle, ‘First Nations Forests: Community Management as Opportunity and Imperative’ (2000) Osgoode Hal) L. J. (forthcoming).

107. Umeek, from personal interview. Nanaimo: March 3, 1998.

108. Ibid.

109. Ibid.

110. Ibid.

111. Ibid.

112. Ibid.

113. Ibid.

114. Gerald Alfred, Heeding the Voices of Our Ancestors (Toronto, ON: Oxford University Press, 1995) at ch. 4.

115. Gerald Alfred, from personal interview. March 12, 1998.

116. Ibid.

117. Ibid.

118. Alfred, Heeding the Voices, supra note 114 at 68–69.

119. See Sergei Kan’s sensitive and thoughtful study of the Tlingit potlatch in Symbolic Immortality: The Tlingit Potlatch of the Nineteenth Century (Washington: Smithsonian Institution Press, 1989) at 49–64, and 287–302.

120. John Cove, Shattered Images: Dialogues and Meditations on Tsimshian Narratives (Ottawa: Carleton University Press, 1987) at 93–110.

121. See Hugh Brody’s breath-takingly beautiful account of the peoples living in the Arctic Circle. He presents a picture of a difficult life that is immersed in an aesthetic understanding of the way in which Nature plays out their lives. Brody, Living Arctic: Hunters of the Canadian North (Vancouver, BC: Douglas & Mclntyre, 1987).

122. See the testimony of elders in David Neel, Our Chiefs and Elders: Words and Photographs of Native Leaders (Vancouver: University of British Columbia Press, 1992); and in T.C. McLuhan, ed., Touch the Earth: A Self-Portrait of Indian Existence (New York: Pocket Books, 1972).

123. Michel Foucault, The Order of Things (New York: Pantheon, 1977) at xv.

124. This is a common theme of much literature. See Claude Denis, ‘Rights and Spirit Dancing: Aboriginal Peoples versus the Canadian State’ in Hart & Bauman, eds., Explorations, supra note 57; in the same volume see Richard F. Devlin, ‘When Legal Cultures Collide’; and Edward J. Chamberlain, ‘Culture and Anarchy in Indian Country’ in M. Asch, ed., Aboriginal and Treaty Rights in Canada (Vancouver: University of British Columbia Press, 1997).

125. See Heidegger’s intricate discussion of why this is necessarily the case in Division I of Being and Time, trans. J. Stambaugh (New York: Harper Collins, 1997). Substantiating that argument for the purposes of this paper is beyond the scope of this paper.

126. Hugh Brody, supra note 79 at 29.

127. Gerald Alfred, from personal interview. Victoria: March 12,1998; and Heeding the Voices, supra note 114 at 77–82, and 88–90.

128. For example, see Pacific Fishermen’s Defence Alliance v. Canada (Min. of Indian Affairs & Northern Development), [1987] 3 FC 272 (TD) with respect to fishing, especially at 278. Notable exceptions are the reasons of Lambert J.A. in R. v. Alphonse, [1993] 5 W.W.R. 401 (B.C.C.A.), and in Delgamuukw v. the Queen, [1993] 5 W.W.R. 97 (B.C.C.A.).

129. Robinson, ‘You think it’s a stump, but that’s my Grandfather’ Nature Power, supra note 80 at 25; see Heidegger’s discussion of the way in which things are enframed and the danger that ensues from assuming it to be the only way, in ‘The Question Concerning Technology’, supra note 65.

130. Foucault, Order of Things, supra note 123 at xv.

131. This, too, is a result of our cultural tendency and not a result of any pre-existing orders that may exist within Aboriginal groups. The cultural tendency latent within the economist’s understanding of the world is set out with amazing clarity and breadth by Mary Poovey in A History of the Modern Fact: Problems of Knowledge in the Sciences of Wealth and Society (Chicago, IL: University of Chicago Press, 1998).

132. Heidegger, supra note 65.

133. Ibid.

134. The wording is deliberately taken from Kant, intending to suggest that one must contextualize what can fairly be demanded by reason since the way that we understand things will not be dependent upon natural categories.

135. For an excellent discussion of the tangible issues involved in such a transition see the important essay by Peter W. Hogg & Mary Ellen Turpel, ‘Implementing Aboriginal Self-Government: Constitutional and Jurisdictional Issues’ (1995) 74 Can. Bar Rev. 187.

136. See John Borrows, ‘Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government’ in Michael Asch ed. Aboriginal and Treaty Rights in Canada (Vancouver: University of British Columbia Press, 1997).

137. Even though Heidegger’s discussion deals explicitly with the history of western metaphysics and ours does not, there is no reason why the link could not be made, given that the practice of property as a particular form of social relations has much to do with understanding them as a kind of consumable standing-reserve.

138. Compare with Borrows, ‘Living Between Water and Rocks’, supra note 49.