Though “European influence” is a vague concept with multiple interpretations by the judiciary,36 there appears to be a correlation between the “arising solely” approach to this influence, and arguments and conclusions where there is an implied questioning of the authenticity of the objectified practice, custom or tradition, or of the Aboriginal claimants or their ancestors. While a favoured strategy of Crown lawyers is to bring into question the testimony and credibility of Aboriginal witnesses, we find instances of the same line of reasoning by the Court. The “pizza test” appellation arose during the British Columbia Supreme Court (BCSC) proceedings in
35
Or, to adopt the language used in the preceding chapters, the “distance” between their ancestors and Europeans became too small.
Delgamuukw v. BC37 where the lawyers for the Crown argued that the fact that the Gitksan and Wet’suwet’en have members who have jobs in the wage economy, use “Western” technologies, go to public schools, or, among others, they eat “white food” “proves” that the claimants are assimilated, and therefore inauthentic, and not eligible for s. 35(1) protection.38 “Following this line of reasoning,” anthropologist Dara Culhane writes, “it has been commonplace for Aboriginal witnesses to be questioned about how many times they have eaten Kentucky Fried Chicken, Big Macs and pizza, for example.”39 McEachern C.J. appears to have found this form of argument persuasive, as he used the participation of most Gitksan and Wet’suwet’en in the wage economy as evidence that they “do not now live an aboriginal life” (if that, as McEachern seems to
conceive it, is at all possible in the contemporary).40
The dispositionism is blatant in this argument, but the same line of reasoning underlies Justice Bastarache’s holding that there is only an Aboriginal right to a traditional means of sustenance, not to sustenance.41 Thus, catching salmon “traditionally” can be an Aboriginal right, but there is no Aboriginal right that would allow Aboriginal peoples to eat at a restaurant
(particularly with moneys raised through fishing) like any other Canadian. So while Bastarache appears to alter the Van der Peet test so that practices undertaken for survival purposes could
37 [1991] 5 CNLR 1 (BCSC) [Delgamuukw (BCSC)].
38 See e.g. Dara Culhane, The Pleasure of the Crown: Anthropology, Law and First Nations (Vancouver:
Talonbooks, 1998) at 229. See too Barbara Williamson, “The Pizza Syndrome” (1989) 1:3 Project North BC Newsletter 1. Such arguments are not limited to British Columbia either: in their intervener factum for Sappier the Attorney General of Nova Scotia, citing both Van der Peet and Mitchell v MNR ([2001] 1 SCR 911 at para 12 [Mitchell]), argued that because the Mi’kmaq and Maliseet readily adopted European technologies—“that after contact the material culture… was transformed”—in the place of “traditional” (read: authentic) objects (including ATVs, motorboats and blankets), that this somehow opens up to questioning “native use of wood.” FoNS, supra note 26 at para 17 [emphasis added]. This passage from their factum also highlights the problem Lamer C.J. created: as after questioning whether metal hatchets permitted wider uses of wood, the Attorney General of Nova Scotia reminds the Court that Van der Peet “instructs that practices arising as a response to European influences are not aboriginal rights.” Ibid. So if the hatchets actually produced wider uses of wood, would this then mean that “uses of wood” were in response to European influence or only some uses?
39 Culhane, supra note 38 at 229. 40
Delgamuukw (BCSC), supra note 37 at 47. Note also how McEachern essentializes and dispositionalizes the participation of most—but not all—into a cultural “whole.”
possibly considered “integral” to a culture,42 little is changed. In fact, Bastarache further entrenched objectified practices, customs and traditions as the sole focus of Aboriginal rights. Dispositionism thereby flourishes as “survival purposes” is rendered inconsequential to determinations of integrality. Again Aboriginal rights become lifeless, perpetuating the “pizza test” calculus.
This general view of what I have been referring to as the “pizza test” calculus parallels acculturation theory in anthropology. This theory is based on the assumption that, for our concerns, post-European contact change “was driven primarily by great differences in
technological sophistication between the two and the motivation of aboriginal people to therefore acquire goods provided by Europeans.”43 The theory is also premised on the belief that
Aboriginal peoples will become, unquestionably, fully assimilated into the dominant polity, economy, and society, thereby (again) appropriating the agency and creativity of Aboriginal peoples that is part and parcel of life.44 Eating pizza, having “adequate” housing or business ventures become dispositionalized as assimilation and thereby no longer qualifying for special constitutional protection. Again we can see how determinations of Aboriginal rights are, at the same time, determinations of authenticity due to the definition of these rights through objectified practices, customs and traditions that facilitates the “pizza test” calculus.
Moreover, this calculus bolsters and legitimizes the power asymmetry of the belief that Euro-Canadians can change and adapt while Aboriginal peoples cannot. The use of eating pizza
42 Ibid at para 37.
43 Michael Asch, “Errors in Delgamuukw: An Anthropological Perspective” in Frank Cassidy, ed, Aboriginal Title in
British Columbia: Delgamuukw v. The Queen (Lantzville, BC: Oolichan Books & The Institute for Research on Public Policy, 1992) 221 at 232. Though, as I will discuss below, in the context of fishing the belief that European technologies were notably more “sophisticated” is questionable.
44 Ebert, Different Canoe, supra note 10 at 10. And because all Aboriginal peoples are always assumed to be
somewhere along the path towards full acculturation, the reasons for their current political, legal, and cultural conditions are marginalized due to a supposed state of “purity” before European contact. Ibid. Again, the invisible hand and situational influence of colonialism remains hidden.
for sustenance as a dispositionalized marker of assimilation, and therefore as a gauge of authenticity, is a particularly egregious and absurd illustration of the conceit of Eurocentric tunnel history. Pizza did originate in Naples and consisted of flattened bread dough, topped with olive oil, mozzarella cheese, and tomatoes,45 and arrived in America around the end of the nineteenth century with southern Italian immigrants.46 Yet if tomatoes are an integral ingredient to pizza—making it “what it is”—then pizza actually reflects Indigenous influence: as
Europeans, similar to with tobacco discussed in the last chapter, came into contact with the plant only when they arrived in Central America.47 In other words, tomatoes were introduced to Europeans by Indigenous peoples! But because Eurocentric culture and categorical thought are naturalized, Eurocentric tunnel history becomes paradoxically atemporal, reproducing the power asymmetry that views Europeans as “makers of history”—eternally advancing, progressing and modernizing—while non-Europeans remain “shackled” in tradition, stagnant and only
contributing to history as a result of European influence.48 Thus, the tomato contributed to “history” but did not “make” it,49 allowing the plant to be co-opted by a retrospective social attribution, erasing the contribution of Indigenous peoples, and, as a result, pizza becomes part of a calculus that contrasts the imagined pre-contact with the present, with differences being
ascribed as “arising solely” from European influence, reducing cultural dynamics to the self- anointed “makers of history.”
45 The New Encyclopædia Britannica, 15th ed, sub verbo “pizza” at 490.
46 Robert W Brower, “Pizza” in Andrew F Smith, ed, The Oxford Encyclopedia of Food and Drink in America, vol 2
(Oxford: Oxford University Press, 2004) 286 at 286.
47
Andrew F Smith, “Tomatoes” in Andrew F Smith, ed, The Oxford Encyclopedia of Food and Drink in America, vol 2 (Oxford: Oxford University Press, 2004) 545 at 545.
48 See e.g. JM Blaut, The Colonizer’s Model of the World: Geographical Diffusion and Eurocentric History (New
York & London: The Guilford Press, 1993) at 1, 4-5 [Blaut, Colonizer’s Model]. This is also an instance of “telescoping history.” See text accompanying note 187 below.
49
In the next chapter I will discuss how the Court approaches Aboriginal rights, in particular, as things that are similarly “made” as this too contributes to the lifelessness of their approach.