The Supreme Court of Canada’s ‘Parasitic’ Aboriginal Activities

Steven Newcomb

A metaphor is a useful fiction; a pretense with a purpose. A metaphor “suggests an analogy or likeness between two different things by applying the term for one to the other,” says Roger Jones in his book Physics As Metaphor” (1982). A common example of metaphor is the phrase “electrifying news,” in which the emotional “charge” experienced upon receiving new information is likened to the physical shock one experiences from electricity. Every metaphor is a mental product of the human imagination.

I provide this background on metaphor to introduce a key point. Court decisions in the United States and Canada regarding Indians are full of metaphors which are accorded the honorific labels “law” and “legal.” I recently came across a graphic example of metaphor in the 1997 Supreme Court of Canada decision Delgamuukw v. British Columbia (formally titled, “Her Majesty The Queen in Right of the Province of British Columbia”).

                  The language of the court is instructional with regard to the judicial use of metaphors. At one point, the court said the following:

Aboriginal title is a right to the land itself. That land may be used, subject to the inherent limitations of aboriginal title, for a variety of activities, none of which need be individually protected as aboriginal rights under s. 35(1) [of the Constitution of Canada]. Those [aboriginal] activities are parasitic on the underlying title. [emphasis added]

Let’s read that again with the help of some bracketed information: “Those [aboriginal] activities are parasitic on the underlying title [of the Crown].” Parasitic means, “Having the nature of a parasite: fawning for food or favors: SPONGING, SYCOPHANTIC.” Fawning gives us, “servilely abject.” Because of its detailed definition, the word “abject” deserves its own paragraph so as to get a better sense of the some meanings being applied by the Supreme Court of Canada to Original Nations and Peoples:

sunk to or existing in a low state or condition; cast down in spirit : without spirit or pride : SERVILE; unrelieved by any sign of independence, courage, or originality : showing utter resignation : HOPELESS. obs. : to cast off or out REJECT.

The term “sponging” indicates that the Original Nations and Peoples of Great Turtle Island are “sponging” off the Crown’s “underlying” title in a parasitic manner. Sponge in this context is, “one who lives upon others: a persistently idle or lazy dependent : SPONGER.” A parasite is defined variously, but a main meaning is “an organism living in or on another living organism.” The Concise Oxford Thesaurus (1997) gives us “leech” and “bloodsucker” and “freeloader” as synonyms.

It is impossible to separate “aboriginal activities” from the peoples said to be engaged in those activities. For this reason, the scope of the Supreme Court’s Parasite Model (model = ‘a metaphor whose implications have been elaborated’) includes what I prefer to term the Original Peoples of Great Turtle Island.

“Aboriginal” is an adjective premised on the noun “aborigine,” which my oversized Webster’s Unabridged Dictionary defines as “an indigenous inhabitant of a country: one of the native people esp. as contrasted with an invading or colonizing people.” Thus, the judges of the Supreme Court of Canada, who are judicial descendents of invading or colonizing peoples, have officially and metaphorically called the original nations and peoples “parasites,” and their activities “parasitic” on “Crown title.”

When the court writes “parasitic on the underlying title” of the British Crown, how did the court say that the British Crown had supposedly obtained “underlying title?” The Court explains: “The Crown, however, did not gain this title until it asserted sovereignty and it makes no sense to speak of a burden on the underlying title before that title existed. Aboriginal title crystallized at the time sovereignty was asserted.” (emphasis added) In other words, the Crown is characterized as having “gained” an “underlying title” as soon as it “asserted sovereignty.”

What does it mean to “assert” something? It means, “to state or affirm positively, assuredly, plainly, or strongly.” And then it supposedly “materializes,” as if by magic. Metaphor is the art of as if. “A metaphor is a pretense that something is the case when it is not,” says Colin Turbayne in The Myth of Metaphor (1962).

A pretense is a kind of assertion. An archaic meaning for “assert,” which goes with the doctrine of Christian discovery and domination that the Crown used to claim possession or the lands of Original Nations, is “to lay claim to as a possession or attribute.” There is a notable accompanying comment under synonyms: “ASSERT puts stress on the fact of positive statement; it may imply noteworthy assuredness or force on the speaker’s part or lack of proof for the statement.” (emphasis added)

There is a classic book published in the United States in 1937 that illustrates the way in which the British Crown has used metaphorical fictions against the Original Nations and Peoples of Great Turtle Island. The book’s title is, Creation of Rights of Sovereignty Through Symbolic Acts 1400-1800. The author’s treat symbolism, another form of metaphoric thought and behaviour, and the symbolic and ritualized acts of colonizing adventurers as if those rituals had physically created “rights of sovereignty,” meaning, “rights of domination.”

The Supreme Court of Canada has written about “reconciling pre-existing aboriginal societies with the assertion of Crown sovereignty.” This is more accurately stated as “reconciling pre-existing aboriginal societies with the metaphorical assertion of sovereignty by the Crown.” (another metaphor for “the very highest, or ultimate.”) In light of the Supreme Court of Canada’s use of the term “parasitic” the word reconciliation in such a context is a way of Canada metaphorically characterizing “parasitic” Original Nations and Peoples as existing under “the highest” pretended dominion of “the Crown”, and under the pretended dominion of “Canada.”

Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He has been studying U.S. federal Indian law and international law since the early 1980s.

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