Litigation + Negotiation = Progress
April 10th, 2017
Two months after Aboriginal Rights Claims and the Making and Remaking of History (McGill-Queen’s 2016) was chosen as this year’s winner of the Basil Stuart-Stubbs Prize for best academic book pertaining to B.C., Arthur J. Ray has learned he’s also garnered the 2017 Canada Prize in the Humanities and Social Sciences for the same book.
His unprecedented, comparative overview looks at how indigenous people’s rights have been handled in Canada, the U.S., New Zealand, Australia and South Africa.
Ray concludes that there’s no single, direct path to Aboriginal rights. “You have to have both litigation and negotiation,” he says. “One depends on the other. If you set up a commission or tribunal, in some ways it’s the ongoing litigation that keeps pushing the settlement process forward.”
Co-supported by UBC Library and Pacific BookWorld News Society, the Basil Stuart-Stubbs Prize for Outstanding Book on British Columbia was established in memory of Basil Stuart-Stubbs, a bibliophile, scholar and librarian who passed away in 2012. His many accomplishments included serving as the University Librarian at UBC Library and as the Director of UBC’s School of Library, Archival and Information Studies.
“We are thrilled that this year’s Basil Stuart-Stubbs prize has been awarded to a book written by a UBC faculty member,” says Melody Burton, UBC’s Interim University Librarian. The Stuart-Stubbs Prize will be awarded at UBC’s Irving K. Barber Learning Centre on June 9th.
The two other shortlisted titles for the award this year are: At Sea with the Marine Birds of the Raincoast by Caroline Fox (Rocky Mountain Books) and Yakuglas’ Legacy: The Art and Times of Charlie James by Ronald W. Hawker (University of Toronto Press).
Ray says one of the big issues for either the courts or tribunals is perspective. Each group involved needs to be aware that others don’t necessarily see things the same way they do. Whereas indigenous perspective is based on oral history and traditions, academic perspectives (and European legal traditions) are based on documentary records. To accommodate indigenous perspectives, the courts have sometimes had to bend the rule that says hearsay evidence is inadmissible.
There is no one perfect forum for accommodating varying perspectives. Whether it’s the courts, a tribunal or a commission, each has advantages and shortcomings. Aboriginal rights claims, Ray says, “challenge what are standard understandings of colonial history, because we have to consider from the Native perspective what the newcomers did.
“The good thing about Canada is that while at the beginning of the claims process the native perspective was dismissed out of hand, that’s not the case anymore. That is a legacy of the claims process. The Canadian courts have moved the ball forward quite a lot.”
Arthur J. Ray, B.A., M.S., Ph.D. (University of Wisconsin), is a UBC history professor emeritus specializing in the historical geography of First Nations people of Canada.
In 1973, the Supreme Court’s historic Calder decision on the Nisga’a community’s title suit in British Columbia launched the First Nations rights litigation era in Canada. Arthur J. Ray’s extensive knowledge in the history of the fur trade and Native economic history brought him into the courts as an expert witness in the mid-1980s.
“In Vancouver, in Courtroom 53 of the Supreme Court of British Columbia, where most of the Delgamuukw trial took place,” he recalls, “distrust prevailed… Certainly searching for nuanced interpretations of the past is not a primary goal of litigation. My sense of frustration and irritation in the witness box in Delgamuukw led me to attend most of the subsequent court proceedings in that case. I also helped the members of the Gitxsan-Wet’suet’en’s legal team to develop their cross-examinations of many of the government’s key historical experts.”
Ever since he has been a part of landmark litigation concerning treaty rights, Aboriginal title, and Métis rights.
“Beginning with my participation in Delgamuukw v. The Attorney General of British Columbia (1997),” says Ray, “l became interested in the ways extant case law and scholarship influenced claims research and, in turn, how the latter research advanced aboriginal rights law and scholarship about aboriginal people.”
Legal claims have raised questions with significant historical implications, such as, “What treaty rights have survived in various parts of Canada? What is the scope of Aboriginal title? Who are the Métis, where do they live, and what is the nature of their culture and their rights?”
In Telling It to the Judge, Ray recalls lengthy courtroom battles over lines of evidence, historical interpretation, and philosophies of history, reflecting on the problems inherent in teaching history in the adversarial courtroom setting. Ray’s narrative describes courtroom strategies in the efforts to obtain constitutional recognition of Aboriginal and treaty rights.
Ray’s illustrated history entitled I Have Lived Here Since The World Began chronicles 12,000 years to set out the historical and cultural arguments for First Nations’ land claims and other grievances. A revised edition contains new information on Donald Marshall and Mi’kmaq fishing rights in Nova Scotia. He contributed the section on Native history to the Illustrated History of Canada.
The recipient of the UBC Killam Research Prize, Arthur J. Ray works as a consultant on First Nations’ claims across the country. He served as the co-editor of the Canadian Historical Review from 2003 to 2006.
Review of the author’s work by BC Studies:
I Have Lived Here Since the World Began: An Illustrated History of Canda’s Native People
Old Trials and New Directions: Papers of the Third North American Fur Trade Conference
Telling it to the Judge: Taking Native History
Ray, Arthur J. Indians in the Fur Trade: Their Roles as Trappers, Hunters, and Middlemen in the Lands Southwest of Hudson Bay, 1660-1870 (University of Toronto Press, 1974, 1998).
Ray, Arthur J. The Canadian Fur Trade in the Industrial Age (University of Toronto Press, 1990).
Ray, Arthur J. I Have Lived Here Since The World Began (Key Porter, 1996, 2005).
Ray, Arthur J. Telling It to the Judge: Taking Native History to Court (McGill-Queen’s Native and Northern Series #65 Cloth (0773539522) 9780773539525 Release date: 2011-11-01 CA $34.95 | US $34.95
Aboriginal Rights Claims and the Making and Remaking of History (McGill-Queen’s 2016) $29.95 978-0-7735-4743-8
[Michelle Blackwell photo of Ray]