Construing Delgamuukw: Legal Arguments, Historical Argumentation, and the Philosophy of History

JOEL R. FORTUNE

ABSTRACT

History figures prominently in the rhetoric of aboriginal rights. In this comment, the author argues that a closer examination of the concept of history is needed in order to understand its significance to the debate. The use of history in the recent decision of the British Columbia Supreme Court, Delgamuukw v. British Columbia, is evaluated with reference to specific historical problems identified by philosophers of history. The case represents a fundamental challenge to the traditional, Western notion of history and, by implication, to the established use of history in law. It is argued that a deeper understanding of what is meant by "history" will require a sympathetic response from the law to the Gitskan and Wet'suwet'en challenge. The author contends that, although many philosophical issues were openly discussed in Delgamuukw, the presiding judge ultimately failed to account for the problematic nature of history. In the end, the dominant culture merely asserted its historical vision over that proposed by the Gitskan and Wet'suwet'en.

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Citation: (1993) 51(1) U.T. Fac. L. Rev. 80.
Copyright © 1993. University of Toronto Faculty of Law Review.
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