Aboriginal Title and Alternative Cartographies

17 Pages Posted: 8 May 2018

See all articles by Kirsten Anker

Kirsten Anker

McGill University - Faculty of Law

Date Written: April 2018

Abstract

Indigenous claims have challenged a number of orthodoxies within state legal systems, one of them being the kinds of proof that can be admissible. In Canada, the focus has been on the admissibility and weight of oral traditions and histories. However, these novel forms are usually taken as alternative means of proving a set of facts that are not in themselves “cultural”, for example, the occupation by a group of people of an area of land that constitutes Aboriginal title. On this view, maps are a neutral technology for representing culturally different interests within those areas. Through Indigenous land use studies, claimants have been able to deploy the powerful symbolic capital of cartography to challenge dominant assumptions about “empty” land and the kinds of uses to which it can be put. There is a risk, though, that Indigenous understandings of land are captured or misrepresented by this technology, and that what appears neutral is in fact deeply implicated in the colonial project and occidental ideas of property. This paper will explore the possibilities for an alternative cartography suggested by digital technologies, by Indigenous artists, and by maps beyond the visual order. The social history of maps, unlike that of literature, art, or music, appears to have few genuinely popular, alternative, or subversive modes of expression. Maps are preeminently a language of power, not of protest. – Brian Harley The train has left the station; if we’re not part of the mapping process, we’re in trouble. A better map is one that I am part of, not as an object, but as a subject of my own future. – Alais Ole-Morindat Indigenous claims have challenged a number of orthodoxies within state legal systems, one of them being the kinds of proof admissible in establishing facts on which claims are based. In Canada, contention has focussed on the admissibility and weight of oral traditions and histories, which include songs and music, dance, regalia and wampum. However, these novel forms are usually taken as alternative means of proving a set of facts that are not in themselves ‘cultural’, for example the occupation by a group of people of an area of land that would establish Aboriginal title. On this view, culturally specific interests within those areas might exist, but they are simply manifestations of familiar and basic categories – occupation, area – that can be represented in a relatively unproblematic fashion by neutral technologies such as maps. Nevertheless, the existence of underlying or universal ‘natural’ entities has come into question with the so-called ontological turn in anthropology and elsewhere, while a generation of critical geographers has proceeded to demythologise the representational neutrality of maps. Maps have been a crucial tool in the recognition and administration of modern Indigenous claims to land. Through cartographic studies of their land use, or maps of toponyms, for example, claimants have been able to deploy the powerful symbolic capital of cartography to challenge – in a form of “counter-mapping” – dominant assumptions about ‘empty’ land, the uses to which it can be put and the values attached to it. There is a risk, though, that Indigenous understandings of land are reductively captured or misrepresented by this technology and that what appears as a neutral record of interests in land is in fact deeply implicated in the colonial project, occidental ideas of property and a disenchanted, instrumentalist attitude to the non-human world. Can maps, as one of the master’s tools, ever dismantle the house of colonialism? The answer is a nuanced ‘yes and no’, but the use of maps by Indigenous peoples in legal claims or procedures shows us that instrument, purpose and user are engaged in a subtle dance and that law both shapes, and is shaped by, that movement. This article will first address, in Section 1, the role of maps in the history of colonialism in North America, as well as, in Section 2, the ways in which Indigenous peoples have used conventional cartography in land claims to challenge the veracity of the standard map, and in order to purvey their own truths. It will then, in Section 3, explore the possibility for alternative cartographies suggested by the deployment of advances in information technology, by Indigenous artists and by maps beyond the visual order. While counter-mapping has the potential to shift certain legal habits of mind, the overall context of land claims overdetermines the assimilative and colonial effect of cartographic practices.

Keywords: Aboriginal title, colonialism, cartography, property, proof, counter-mapping, aesthetics

Suggested Citation

Anker, Kirsten, Aboriginal Title and Alternative Cartographies (April 2018). Erasmus Law Review, Vol. 11, No. 01, 2018, Available at SSRN: https://ssrn.com/abstract=3174649

Kirsten Anker (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

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