LAWS AND SOCIETIES IN THE CANADIAN PRAIRIE WEST, 1670-1940

Vol. 16 No. 7 (July, 2006) pp.539-541

LAWS AND SOCIETIES IN THE CANADIAN PRAIRIE WEST, 1670-1940, by Louis A. Knafla and Jonathan Swainger, (eds). Vancouver: UBC Press, 2005. 360pp. Hardcover. $85.00. ISBN: 0-7748-1166-8. Paper. $29.95. ISBN: 0-7748-1167-6.

Reviewed by Michael Boudreau, Department of Criminology & Criminal Justice, St. Thomas University. Email: mboudreau [at] stu.ca.

One of the strengths of legal history is its inter-disciplinary nature. By drawing together multiple theoretical and interpretative perspectives, legal history has revealed the social meaning of the rule of law and the impact that the law has had upon society. The contributors to LAWS AND SOCIETIES IN THE CANADIAN PRAIRIE WEST – historians, legal scholars, practicing lawyers, and sociologists – reflect the inter-disciplinary scope of legal history. Moreover, this volume is part of the Law and Society Series at UBC Press. This series, edited by W. Wesley Pue, is a prime example of the excellent scholarly work that is currently being conducted on the critical issues surrounding the interaction between law and society in Canada. The eleven essays in LAWS AND SOCIETIES IN THE CANADIAN PRAIRIE WEST, which originated from a 1997 conference at the University of Calgary, underscore the complexities of implementing the rule of law and administering “justice” in the sparsely settled and geographically vast area of Canada’s Prairie region. As Louis Knafla notes in the introductory chapter, the Prairies represent the “least developed” region in Canadian legal history (p.2). This volume makes a notable contribution to correcting this imbalance. As well as being a valuable source for Canadian legal and social historians, LAWS AND SOCIETIES IN THE CANADIAN PRAIRIE WEST will prove to be beneficial to scholars outside of Canada who wish to gain a better understanding of some of this country’s key legal foundations.

The articles are divided into two parts: “First Nations and First Peoples” and “Adaptations to Modernity.” Some of the major themes include the role of discretion in dealing with Aboriginal peoples and immigrants, a commitment to English common law in litigating legal actions, fur-trade post commanders, magistrates, and judges who often acted as autonomous legal authorities, and the influence of local social, cultural, and economic factors upon the law. The need to secure stable and profitable relations with First Nations peoples often dictated the nature of legal actions and decisions in the Prairies. One important overarching theme in this book is legal culture, and although implicitly stated, this theme links all of the essays together. As much as the region itself was shaped by both internal and external political, social, and economic conditions, so too were the laws and legal precedents that evolved over the course of the 1670 to 1940 period in Canada’s western Prairies. And it is this focus on legal culture that makes LAWS AND SOCIETIES IN THE CANADIAN PRAIRIE WEST such an important book in explaining the origins of Canada’s current legal milieu. [*540]

The essays in Part One deal exclusively with legal and social relations between the Hudson’s Bay Company (HBC) and the Canadian state and the culturally diverse Aboriginal peoples of the Prairies. This relationship was marked by co-operation, tension, and at times hostility. The rule of law was meant to subdue and assimilate First Nations peoples. But local realities, notably the lack of resources to enforce the law and a desire on the part of most Natives to have the HBC and the state recognize and respect their laws and legal traditions, usually meant that established legal theories and practices were compromised and revised by HBC and Canadian authorities. In this sense, these essays superbly underscore the crucial difference between the law as it exists in theory and the law as it must exist in order to meet the challenges of everyday experiences. Indeed, as the law on the Prairies adapted to contemporary exigencies, a legal culture emerged – a culture that usually translated into racism towards Canada’s first peoples.

The articles by Hamar Foster, Sidney L. Harring, Russell C. Smandych, and Paul C. Nigol breathe new intellectual life into the issue of the extent to which Britain, and later the Canadian government, respected Aboriginal law and imposed Euro-Canadian law upon First Nations peoples. As Harring astutely notes, the treaty process into which the federal government entered with Aboriginal peoples was not intended to be a means of assimilation, but rather the best method to secure Natives’ lands as cheaply as possible. The Indian Act was, however, an example of “benevolent despotism” (p.115), a deliberate attempt to overcome Aboriginal resistance to European settlement and transform, if not destroy, their culture. Similarly, in order to implement the provisions of the Indian Act, the state employed the Royal North West Mounted Police and Indian Agents, both of whom formed a central part of the state’s “machinery of repression” (p.119) towards Aboriginal peoples. These provisions, as the authors suggest, leave little doubt concerning the desire by the British and Canadian governments to impose their law and legal customs upon the indigenous peoples of the Prairies.

Even when colonial officials did include First Nations peoples in legal discussions and proceedings, they did not receive equality before the law. As Smandych recounts, through a case study of the trial and execution of a Saulteaux for the murder of a Sioux, the real goal of the criminal justice system was not necessarily to dispense justice, but to prevent Aboriginal peoples from settling their disputes in the way that they had done prior to contact with Euro-Canadians. In other words, “British justice” had to be the dominant form of justice on the Prairies. One key weakness in these articles is the absence of an Aboriginal voice and resistance. While not as voluminous within the historical record as other voices, First Nations peoples did, through words and actions, make their views known to legal authorities. By not integrating more of these views and actions into their analyses, these articles are incomplete. Nevertheless, Foster, Harring, Smandych, and Nigol do underline the on-going negotiations that occurred [*541] between the Aboriginal and Euro-Canadian nations and legal systems and the social, cultural, and legal changes that resulted.

Part Two of LAWS AND SOCIETIES IN THE CANADIAN PRAIRIE WEST attempts to gauge how the law adapted to the profound changes that modernity brought to the Prairie region. But the essays in this section, and the general introduction to the volume, do not adequately define or explain modernity and how it unfolded across the Prairies. As a result of this important oversight, the contributions by Greg Marquis, Roderick G. Martin, Zhiqiu Lin/Augustine Brannigan, Tristan M. Goodman, Janice Erion, and John McLaren, lack an important theoretical framework and critical context. However, all of these authors demonstrate how politics, whether provincial or federal, molded the contours of law and society. For instance, Marquis and Lin/Brannigan discuss the political pressures, and interference faced by the North West Mounted Police and the provincial police forces in Alberta and Saskatchewan, respectively, when trying to enforce the law throughout the Prairie frontier. In addition, Goodman and Erion chronicle the rise of state regulation of water and power services in the first half of the twentieth century. And McLaren offers an incisive overview of the different approaches by the governments of British Columbia and Saskatchewan to integrate Sons of Freedom Doukhobors into their communities. It is this attention to the political machinations behind the law that makes these readings quite fascinating.

What LAWS AND SOCIETIES IN THE CANADIAN PRAIRIE WEST is missing is a more comprehensive comparative analysis. Granted, many of the articles provide intra-regional and international links between legal theory and local practices. But a broader comparison between the Prairies and the rest of Canada, especially British Columbia, would have further illuminated the key role that the Prairie West played in forging Canada’s legal traditions and culture. As well, legal history, and this volume in particular, is well positioned to shed light upon some of the current controversies and debates surrounding the place and importance of the rule of law in North American society. In this vein, the subsequent volumes that should flow from the provocative ideas and topics contained in LAWS AND SOCIETIES IN THE CANADIAN PRAIRIE WEST, must draw more direct links from Canada’s legal past to the country’s present, and ever-changing, legal regime.

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