His rhetoric reduced elders to tears.
The unveiling ceremony for a bronze of the late Chief Justice Allan McEachern, who died in 2008, will be held June 22 in the Great Hall of the Law Courts in downtown Vancouver.
He did not have the same towering physical presence, but McEachern shared his legendary predecessor Sir Matthew Begbie’s larger-than-life stature.
Grand Chief Stewart Phillip, of the Union of B.C. Indian Chiefs, expected the senior indigenous leadership to discuss the coming commemoration and said “there will probably be some description of a response.”
“I’m certainly not impressed with that decision,” he added. “I don’t support it for obvious reasons.”
Chief Justice of the B.C. Court of Appeal Robert Bauman said McEachern was “an outstanding lawyer and judge who served the public with the utmost distinction for decades.
“Members of B.C.’s legal community initiated the idea for the bust, which has been privately funded by contributions from many individuals,” he added in a statement.
“The two Chief Justices of the Superior Courts (he and Supreme Court Chief Christopher Hinkson) approved the placement of the bust in the Great Hall, in keeping with the Chief Justices’ authority over courthouse space and activities.”
But letting McEachern prominently greet people at the Law Courts would appear to undermine the law society’s intent in eliminating Begbie’s presence as a symbolic move towards reconciliation with First Nations.
In his infamous 1991 decision, Delgamuukw v B.C., McEachern described the life of First Nations before colonization as “nasty, brutish, and short” because they had “no written language, no horses or wheeled vehicles …”
His rhetoric reduced elders to tears.
He was cribbing from Thomas Hobbes, the 17th-century English philosopher who argued in his 1651 magnum opus Leviathan that the lack of a social contract and the rule of law kept men in “continual fear and danger of violent death, and the life of man, solitary, poor, nasty, brutish, and short.”
McEachern’s entire book-length decision reeked of the presumption of European superiority, the lynchpin of colonial cruelties that continues to have ill repercussions for First Nations.
He found First Nations’ “oral tradition, did not conform to juridical definitions of truth,” adding he was “unable to accept adaawk, kungax and oral traditions as reliable bases for detailed history …”
McEachern concluded the aboriginal rights of the Gitxsan and the Wet’suwet’en existed only at the “pleasure of the Crown.”
First Nations considered his paternalistic diction a slap in the face; some denounced it as racist; a United Nations report more politely criticized it as “Eurocentric.”
The Canadian Anthropology Society slammed the ruling for gratuitously dismissing scientific evidence and for being laced with bias.
The Supreme Court of Canada overturned the decision in 1997 saying that, contrary to what McEachern had written, oral histories could be considered legitimate evidence. It was unprecedented.
The sting remains and his bust will exacerbate it.
To soothe a similar First Nations’ wound, the Law Society is removing Begbie’s statue from the foyer of its Vancouver building, eliminating the little bronze Begbies that honour “the lifetime contribution of the truly exceptional in the legal profession” and changing the code word “Begbie” used to trigger safety procedures in its headquarters.
It is doing so even though historians, such as his biographer David Williams, say the Victorian-era jurist was progressive and ahead of his time, renowned for learning First Nations languages, supporting indigenous title and defending minority rights.
Still, in 1864 Begbie also hanged five First Nations leaders found guilty by a jury of murder but considered indigenous heroes who were waging a land-claims war.
The provincial government has issued two apologies for the pre-Confederation executions.
Nevertheless, last month the governing benchers said Begbie remained “offensive to (indigenous people) and affects their current experience with the law society.”
Grand Chief Phillip said he was pleased with the move because “all gestures and small measures are important and contribute to the overall movement towards reconciliation.”
He believed many of the province’s economic and political woes stem from its “inability to reconcile its past with its present so we can chart a path forward into the future that is absolutely inclusive of all interests.”
Neither institution — the legal regulator nor the judiciary — sought public input before their respective decisions.
Chief Phillip thought maybe a discussion about the past and who should be commemorated in public spaces was needed.
“It’s certainly more than timely … (given) our inability or our unwillingness to address the issues surrounding fully embracing the UN declaration on the rights of indigenous people, likewise the full implementation of the 94 recommendations out of the Truth and Reconciliation Commission report,” he said.
A law society spokesperson declined to comment on the installation of the McEachern bust or whether it had apprised the chief judges of the reasons behind the Begbie expulsion.
A spokesman for Grand Chief Ed John, of the First Nations Summit and a driving force behind Begbie’s ouster, did not return repeated requests over several days for comment.
You might think this is an example of the legal community’s hypocrisy, but with his establishment bona fides Chief John couldn’t possibly say that.
All of which goes to show it’s rather easy to toss a 150-year-old ghost under the bus than a dead man with living friends and a widow, Justice Mary Newbury, also his benchmate, who remains on the Court of Appeal.