102 Before Agriculture
The question about where a theory of hunter-gatherer society (albeit not always thus named)
arises in European intellectual history can perhaps be answered by examining the purposes such
a theory may have served. In his paper ‘On the origins of hunter-gatherers in seventeenth-
century Europe’, Mark Pluciennik of the University of Wales speculates about these purposes (see
note 20).
6 Ralph Standish is quoted in Neil Mostert’s Frontiers (p108). Mostert also quotes a Reverend Terry,
who wrote in 1616 of the Khoihoi that they were: ‘Beasts in the skins of men rather than men in
the skins of beasts’ (pp107–108). In fact, Khoihoi were pastoralists, relying on herds of fat-tailed
sheep; early settlers, however, did not make a significant distinction in their judgement of degrees
of human development between Khoihoi sheep herders and San (or Bushmen) hunter-gatherers.
Mostert writes very compellingly of the relationships between early settlers – black and white –
and the San, describing both the degree of dependence that settlers had on San knowledge and the
low level of humanity to which the San were nonetheless consigned. He quotes the South African
historian George MacCall Theal as representative of his time in observing that Bushmen habits
‘were not much more elevated than those of animals’, and that it was difficult to conceive of a
human being ‘in a more degraded condition’ (pp31–32).
7 The Trudeau government’s position on the place of Indians in Canadian society was first set out
in a 1969 white paper, issued on the authority of the then minister for Indian Affairs, now Canad-
ian prime minister, Jean Chrétien. The white paper argues that there should be a gradual ending
of treaty rights of Indians, and that the dissolution of their reserves and related special status
would be an appropriate and necessary form of development. This position caused outrage
throughout the country’s aboriginal communities, mobilizing a newly radical form of First Nation
politics. The Calder case entered the courts in the same year, reaching the Supreme Court (after
comprehensive defeats in the two lower courts) two years later. The shift in Trudeau’s policy may
be said to have resulted from the combined impacts of the new Indian politics and the Supreme
Court judgement.
In fact, the Calder case was not the first such consideration of aboriginal rights in Canada. Its
significance lay in the Supreme Court’s split decision – the sign of a changing legal atmosphere.
The sequence of events, and the uses of evidence, that determined this atmosphere are set out in
Dara Culhane’s The Pleasure of the Crown (see especially pp72–89). Culhane quotes the Canadian
historian Peter Kulchyski, who has observed that the legal forum is a strange and even incoherent
one for resolving issues of rights. Kulchyski comments that the history of the court cases is often
one of ‘losses and gains, of shifting terrain ... a history where the losers often win and the winners
often lose’ (Culhane, p73).
8 The modern case that most clearly defined the test for aboriginal title and right in Canadian
courts was Baker Lake v. the Crown. This case also led to a view that aboriginal people could only
claim rights to resources they actually use. This created uncertainty about the question of resources
people did not know about in their territories, for example, minerals, oil and gas. The judgment
in Baker Lake suggested that if people did not know about their assets and were therefore not
using them, they had no rights to them. The Delgamuukw case, which reached the courts in 1994
and was decided in 1997, has led to a redefinition of the tests, and recognizes much more of
indigenous peoples’ potentially inherent rights in all aspects of their territories, including the
potential for development without reference to particular use. One of the issues that Degamuukw
settled was the depth of time that evidence must show. It ruled that for title, the relevant date was
1846; for rights (i.e. use and resource, including fishing, hunting and gathering), the date should
be time of first contact with Europeans.
The St. Catherine’s Milling case of 1885 is an early judgment that has been brought to bear in
modern land-rights cases. It is important because it speaks to which agency has the right to extin-
guish aboriginal title, the federal or provincial Crown. It also speaks to the consequences of extin-
guishment. It is not a case, however, that establishes a precedent for any protection of aboriginal
rights or titles to either land or resources.