For the past few months, our “Looking Out For Each Other” research team has been conducting community consultations with a view to establishing a helpline for families and friends of Indigenous folk who go missing in Eastern Canada. In the course of these consultations, something has come up a number of times that seemed worth sharing among educators, viz. a concern by Indigenous businesses and not-for-profits that academics are getting in on the work of cultural competency training. Of course it is good that many faculties and departments are working towards developing cultural competencies in their students. And it’s great that some faculty are mobilizing that knowledge beyond campus. Apparently though, these efforts have sometimes resulted in academics using their privileged position as salaried workers to undercut the bids of Indigenous consultants who have been doing this work, in many cases for decades. So if your institution, faculty or department is developing curriculum and you are thinking of offering workshops to organizations, institutions or government departments, you may want to make sure that you are not replicating and/or competing with services that an Indigenous business or not-for-profit is offering in your area. One easy way to do this is to reach out to the band office of your local First Nation community, your Native Council and Friendship Centre for information about existing service offerings.
[Ed. note] The following post is a report by educator Tasha Henry, discussing a recent partnership between the Art Gallery of Victoria, and students in three schools. The work here, which was done with Grade 3 and 4 students, is a very interesting model of the kind of work one might consider when thinking about Art as intervention in the TRC Calls to Action (and indeed, art as intervention within a law school context). We thought folks would find it thought-provoking (and a bit inspiring!) Here, then, is the post by Tasha [and she has permission from the students and families to use the photos appearing in this post]
Taking a place at the table:
Art as Intervention in a Time of Reconciliation
By Tasha Henry
In collaboration with several artists of a recent exhibit at the Greater Victoria Art Gallery, entitled “It’s in the Making”, Selkirk Montessori students, were initiated into the world of art installation with contemporary artists who challenge the notion of art as product. The students met with Nicholas Galanin, Tlingit/Aleut artist and Cedric, Nate and Jim Bomford while they constructed their installations in the gallery. The grade 3-4 students interviewed the artists with questions such as:
- “Why is art installation important?
- When do you know when your art is finished?
- How is art an intervention?”
The students then attempted their own installation work in the gallery mansion as a response to their ongoing work with Canada’s Truth and Reconciliation Commission, “Calls to Action”.
Art installation as social intervention felt like the appropriate vehicle to explore the children’s emerging awareness and questions around the devastating history of Residential Schooling in Canada. As teachers, we are in the unique position to respond to the TRC’s Calls to Action in ways that model sensitive and historically respectful approaches to Canada’s shameful investment in Residential Schooling. Rather than approach this work as a prescriptive curriculum, we approached the concept of reconciliation as a process of responding to the ongoing impacts of colonialism on Indigenous communities. It was important to us that the children’s work around redress be responsive, multi-voiced and open ended.
To prepare for the day of the installation, for months, the children studied and learned from the Lkwungen First Peoples’ history and the traditional territories on which our school stands, known today as the Esquimalt and Songees Nations. The children were honoured to receive teachings by such highly esteemed and beloved artists and elders such as Richard Hunt (Kwakwaka’wakw), Butch Dick (Songhees), Monique Gray Smith (Lakota/Cree), and Ron George, Heredity Chief Tsaskiy (Wet’suwet’en).
They studied the cultural traditions of the Coast Salish First Peoples by attempting artistic forms such as beading, sewing button “blankets” on felt, and by constructing their own cardboard “cedar bentwood boxes”. They expanded their learning to conceptual art by analyzing the work of two contemporary Tlingit artists, Nicholas Galanin and Blake Lepine. The students were also introduced to the history of Residential Schooling through Nicola Campbell and Kim La Fave’s acclaimed children’s books, Shi-Shi-etko and Shin-chi’s Canoe.
The students were then given a white ceramic plate (bought from The Salvation Army) where they created their own free hand drawings using only red and black Sharpie markers. On the day of the installation, the students brought their ceramic white plates with their drawings carefully illustrated through a mix of personal designs and traditionally influenced images.
With the guidance of elder and artist, Butch Dick, the children were taught the importance of ceremony and the symbolism of laying a table in the Songhees tradition. They were asked to place their plates in the dining room area in a spot that meant something to them in relation to their understanding of the history of Residential Schooling in Canada.
With reverent gestures and words, the students spoke to their installation choices. They had been particularly struck by the descriptions of malnourishment from the testimonies of Residential School Survivors. Many of the children hid their plates under the large oak table, or under the chairs to represent the starvation of Indigenous children while at school. As the installation took its living form, the children chose to turn the chairs on their side, and to cluster their plates in the corners of the room to represent the upheaval of home and culture due to mandated schooling for Indigenous children.
Shion: “We put our plate above the fireplace so that people could remember the children that didn’t get to have these plates in Residential School. The fireplace is a symbol of First Nations hope”
James: “I put my plate away from everyone else’s because people were trying to destroy their culture and keep it away from them. Our plate represents the culture that was taken away from the kids.”
Maciah: “We put our plate on a shelf on a smaller table because maybe not all kids got to sit at the table and maybe had to sit on the floor. It was meaningful because we are bringing back the memory of First Nations kids who were forced to go to Residential Schools.”
By inserting their voices through the act of installation the students experienced a powerful social intervention. They were called to speak to their intentions to disturb the establishment of the Greater Victoria Art Gallery, on their own terms, in their own words. As Layla, a grade 3 student said, “When I made the drawing I felt I was learning about the culture and also doing something kind for the children by drawing their designs”. The children realized quickly that their art work was not for them; it was not a product to take home or display on the wall. As Adison said, “I like that some people learned that not everything is for yourself you have to make things for others, as well and learn about other cultures”.
In the collective experience of installing their art work as a social intervention, witnessed by their teachers and Butch Dick, who himself is a Survivor of Residential Schooling, the children experienced the importance of standing up for those who have been silenced. Jamie, a new student from Japan, reflected on the experience with poignant simplicity, “the kids couldn’t see their parents for a long time. So, we honour them.”.
After the children installed their work and spoke to their choices, we circled the installation and read this quote out loud:
“We are thankful for these and all the good things of life. We recognize that they are part of our common heritage and come to us through the efforts of our brothers and sisters the world over. What we desire for ourselves, we wish for all. To this end, may we take our place in the world’s work and the world’s struggle.” (J.S. Woodsworth)
When teaching a response to the Calls to Action, we can only hope that we are able to model what social justice learning looks like within the various institutions that frame social thought. This is not work that can rely on detached lessons within the confines of a classroom. The work of reconciliation must be work with the First Peoples of the land from which we learn, through meaningful, conscious and open ended forms that refrain from a settler agenda, or desired outcome. By precisely not desiring an outcome or a finished product, the children’s temporary installation became a visual testament to the missing and unaccounted for children due to Residential Schooling. On that day, it wasn’t our words that filled the space, it was the sound of children moving with intention, fuelled by a quiet collective heat burning within each of them, to seek retribution for children they had never met. Their innate desire for reparation permeated the space, and moved them to set a place at the table for the Indigenous children who were not permitted their rightful place in Canadian society.
Photo credits: Tasha Henry
[Ed. Note:] A truncated version of this discussion can be found on the Victoria Art Gallery’s website (http://emagazine.aggv.ca/partner-school-inquiry/)
Tasha Henry (who wrote the post on “Art as Intervention“) sent an additional note pointing to a toolkit resource they had found especially helpful for teachers and professionals trying to organize reconciliation events. She noted the following tips:
- Ensure that the location is culturally safe and accessible to everyone invited.
- Ensure proper acknowledgement of the territory at the start of the event.
- Where possible, invite an Elder to open the event with a blessing and invite them to give you direction and advice to ensure proper protocol is being followed. Be sure to find out how best to honour their time and contribution.
- Where possible, explore ways to incorporate Indigenous cultural practices into the event in a respectful manner, such as singing and drumming by Indigenous community members. Make sure to honour this contribution.
- Approach guests/speakers as early as possible, and ensure that all aspects of the event including honorariums are clearly communicated in writing.
- Arrange for food and drinks. Sharing food is an essential part of the event.
- Where possible, invite participants across sectors and cultures (e.g. multicultural organizations, Indigenous organizations, faith based organizations, the justice system, restorative justice groups, Ministry of Children and Family Development, First Nations Court workers, social service workers, counsellors, health care professional, women’s organizations, child and family services etc.)
- This discussion may be triggering to some participants, so make sure that supports and opportunities for debriefing are available on-site.
- Consider funding costs to cover transportation for guest speakers if required.
(Reference: Eguchi, L., Riley, J., Nelson, N., Adonri, Q., & Trotter, S. (2016). Towards a New Relationship: Tool Kit for Reconciliation/Decolonization of Social Work Practice at the Individual, Workplace, and Community Level. Vancouver, BC: British Columbia Association of Social Workers. Retrieved from: http://www.bcasw.org/wp-content/uploads/2011/06/Reconciliation-Toolkit-Final_May-11.pdf
In the middle of the last gasps of marking law school final exams, I find myself mentally (and, frankly, emotionally) caught up in discussions about the upcoming Fontaine case at the Supreme Court of Canada. So… I thought I might as well get my stresses and anxieties articulated.
As I best understand it, the Fontaine case concerns what to do with the 38,000 (highly personal and confidential) records (plus another million supporting documents) that were collected or created during the Independent Assessment Processs set up as part of the Indian Residential Schools Settlement Act (IRSSA). (The Settlement gave us both the IAP and the Truth and Reconciliation Commission).
At the time survivors gave their testimony in the IAP, it was not made clear to survivors what would happen to the records. Now there is significant contestation: should the records be kept by Archives Canada? By the NCTR (National Centre for Truth and Reconciliation)? Should they be destroyed? Should individual former students have a say in the matter?
The resolution was to give individual former students a 15 year window to come forward if they wanted their documents archived with the NCTR. At the end of that period, all remaining documents are to be destroyed. The SCC will hear the case on May 25, 2017.
The Coalition to Preserve Truth has been granted Intervenor status in the case (artist Carey Newman, and lawyer Nicole Bresser have been driving forces behind the coalition). The Coalition is described thus:
We are the Coalition for the Preservation of Truth whose members are representatives of both residential school survivors and intergenerational residential school survivors. The coalition is formed to advocate for the preservation of the Indian Residential School Settlement Agreement – Individual Assessment Program’s documents.
The Coalition recognizes the ongoing impacts of intergenerational trauma and as such, we acknowledge that future generations have a right to know the content of these documents. The Coalition wishes to preserve these documents while honouring individuals’ rights to privacy.
I personally support the Coalition for Truth.
What has been tricky for me is trying to describe what this support means. So, I thought it would be useful to try to articulate (at least for myself) what it means for a non-Indigenous Canadian law professor to #StandForTruth in case like this. This is particularly so when I know that Indigenous colleagues and friends are significantly torn over the case, and may be lining up on both sides (for retention and for destruction. (You can see the Affidavit of Carey Newman here Affidavit #1 of Carey Newman, or view the Coalition’s funding campaign on the gofundme here).
In this case, at the heart of things, my support of the intervention of the Coalition to Preserve Truth is linked to their attempt to change the story that is being told about this case. Canadian law sees this as a story of privacy and confidentiality. It that the story that best describes the situation here? A story about the need to honour individual choice? A story about the protection of individual interests in privacy and confidentiality?
Those are, of course, important values, ones that have often been denied to Indigenous people in Canada (and certainly denied in the context of residential schools). And yet….The Coalition to Preserve Truth raises important questions about people in relation, and relationships to both the past and the future, particularly in the context of times of trauma and injury. Should the records related to residential school survivors be kept or destroyed? What are the relationships of the individual to the collective? To the past? To the future? The Coalition’s intervention, with its focus on intergenerational connections, invites us to understand that the case should not be decided in the absence of Indigenous Laws.
To put it bluntly, Canada has a long history of making decisions about Indigenous, Metis and Inuit peoples rather than with Indigenous, Metis and Inuit peoples. Will this case be similar?
That is, what matters here is not only the ‘outcome’ [destroy or keep the records], but also the ‘process’. It matters that there is space for Indigenous Laws to be enacted here. Or maybe flipped, it is very problematic that there has NOT been space for Indigenous Laws (and by that, I am including substance, process, protocol, ceremony and more) to be applied here.
I think that is why the intergenerational point the Coalition is making is so important. It is a question of Law. During the Independent Assessment Process, former residential school survivors shared stories of the ways that they had suffered harm that was both individual and collective. We already know that those stories we gathered and collected in ‘non-optimal’ ways. That is, they were not gathered in ways that would have better followed the laws (both substantive and procedural) governing the people whose stories were shared (be that Salish, Cree, Migmaw, Inuit, Metis, etc). They also were not gathered in ways that followed Canadian law (ie. by having explicit consent forms providing choice to witnesses).
And so we are now in a position where the Canadian legal system is positioned to decide how to best deal with yet another harm experienced by both the people who shared their stories, and by the families and legal orders to which those people belong. And it will decide it in the legal lingua franca of ‘jurisdiction, privacy, and access to information’.
As the case is set out, the solution is one which is flawed in so many ways. I get why people feel sick at the notion that, in the context of this history of genocide, the records that were created (the testimony that was witnessed) would be destroyed. I also get why other people feel sick at the notion that their words and memories will be permanently kept by the very government that made possible the very harms they suffered. The choice — Keep or Destroy — is a false and cruel one. (i.e., would you prefer I cut off your right arm or your left arm?) Framed in this way, the choice is one that (like the residential schools themselves) splits generations from each other, as people are required to consider which two untenable options will do less harm in the future.
And I acknowledge the (settler) desire I feel to keep quiet, rather than risk choosing ‘the wrong side’ in this struggle, or interfere in something that is not ‘my business’. But the history of residential schools IS my business. It is all our our business. And I can’t help but think that it is not OK for settlers to stand on the side in silence, as if we can best support and respect indigenous peoples by letting them fight it out (in the corner Canadian law and history has forced them into).
There is no easy solution here. But it is problematic to proceed as if Indigenous Laws are irrelevant, as if Indigenous Legal Orders do not have resources, as if Indigenous Communities are not deeply invested in how the memories of their peoples are held and kept and treated. It is also problematic to proceed as if survivor voices don’t matter (in either direction… destroying the voices of those no longer able to give consent, or denying the express wishes of some for destruction of their testimony, or denying that the entire process as created conditions of unsafety and new trauma for people)
It matters not just WHAT the Court does here. It matters also HOW the Court does it.
Indigenous peoples, in different communities, have resources for such moments, resources that are rich, and textured, and full of space to hold differences of opinion.
How do ‘we’ (people in the legal community) take up our TRC reconciliation obligations under Calls to Action #27, #28, and #50 to teach Indigenous Laws? How might we think about our obligations to Indigenous Peoples, and that includes obligations to take into account their own laws and own ways of resolving conflicts like these?
How does Canada enact its own obligations to deal respectfully, its own obligations to acknowledge the harm it has done, its own obligations to learn more about how it too needs to act in ways that respect its connections to the past and the future. Can the Supreme Court, at this moment, see the obligations that govern it? Obligations that may involve principles not only of Canadian law, but also of Indigenous Laws?
What I find powerful about the The Coalition for the Preservation of Truth, with its reminders about intergenerational connections, is its invitation for us to take law seriously. It invites us to understand that we (indigenous and settler people) are both a part of this story. It invites us to take seriously how we think about shared memory, and a shared past. It invites us to ask what it might mean to ACTUALLY honour the testimony of those who spoke their truth at the IAP hearings. Preserving Truth invites us to change the story we are telling about this case.
It invites us to imagine that it may be possible to simply stop for a moment. What ever happens in the Court room, is it possible for the rest of us to make space for the questions to be reframed? It is possible to acknowledge that Indigenous law must be part of the decision-making? What might the case look like were the courtroom to be populated with Indigenous peoples bringing principles of Indigenous law to bear in order to find solutions that truly honour the spirit of reconciliation? What might the case look like if our law schools were populated with Indigenous colleagues doing the work of Indigenous (and non-indigenous) law? (see Zoe Todd’s latest blog)
Of course, it is hard to talk about this without getting personal (or being personal?) Easy to blame the system. I am left wondering really about what it might mean for me (in my own classroom, in my own home, in my own interactions with others, in this blogpost?!) to begin to to talk about the ways that I too, living in unceded Coast Salish territories, might have legal obligations to learn the laws of this place, and to make good on my own legal obligations to the past and the future (and indeed to the present). What might it mean, anyways, for me to “Stand For Truth”, or “Stand In Truth” or “Stand With Truth”?
OK. Rant over for now. My hands up to my many Indigenous, Metis, and Inuit friends who bear the heavy weight of this case, which is re-traumatizing to people on so many levels.
Back to marking….
The Supreme Court is going to hear the Fontaine case in May 2017. It deals with the destruction of records and testimony gathered during the Independent Assessment Process of the TRC.
The Coalition for the Preservation of Truth [organized by artist Carey Newman] was just granted Intervener Status in the case.
ILRU (the Indigenous Law Research Unit) is one of the supporters of the Coalition. We have been thinking, in particular, about the resources in multiple Indigenous Legal Orders across Canada to respond to questions raised by the case about privacy, truth, harm, and the significance of records such as these.
If you have ideas or thoughts, you can get in touch with the organizers through their facebook page. There is little in the way of turn around time, as the case is to be argued in Ottawa on May 25. But, for those of us teaching in law, its significance will continue past that date. The case is going to be very helpful as a teaching resource.
Attached is a copy of the Notice of Motion to a Judge or the Registrar and Affidavit #1 of Carey Newman in support of the application. Here is the Exhibit A to Carey Newman Affidavit in support of the Affidavit if you want to see the documents supporting the arguments about intergenerational effects.
I am also attaching a link to the gofundme site. I am always reluctant to share such links in case it makes people feel there is a pressure on them to contribute. So… please do not feel that pressure (or rather, feel free to pass the link along to others who might be happy to feel such pressure! hahaha).
That being said, for pedagogical reasons, it is worth LOOKING at the video that Carey Newman made for the site. It is short: 1:45. Still, in it you can see how Carey [whom you may know as the artist of The Witness Blanket], with his artist eye, sets up the centre of the intervention in visual/auditory form.
That is, look at the video thinking about the mixture of image, text, voice, music, and movement as its own form of legal argument
Inspired by the work of this blog, Dr. Anna Lund and I gathered together a group of corporate and commercial law professors from five different law schools at the CALT annual conference in Calgary last May, to talk about how we include – or how we plan to include – Indigenous content in our courses. The Roundtable was a chance to speak publicly about what we were doing in response to the TRC and to get helpful feedback from the large and engaged CALT audience. After the Roundtable, we sat down to record our ideas and concerns and to summarize the discussion in Calgary, in order to share it with the broader legal academic community. The result was published recently in the Lakehead Law Journal. The classes discussed include Business Associations, Corporate Governance, Secured Transactions, Personal Property Security Law, Judgment Enforcement, Debtor and Creditor Relations and Pension Law and Policy. We hope our fellow corporate and commercial colleagues find it helpful, and we welcome your further ideas, responses and critiques.
The TRC Calls to Action speak to the importance (for law students, lawyers, doctors, nurses, journalists, bureaucrats, citizens) of learning about:
- Aboriginal rights
- Indigenous law
- Aboriginal-Crown Relations
If you are looking for examples of the application of Indigenous Law and procedure in a contemporary context, then here is a great case for you, “In the matter of R v. Joseph Thomas and R v. Christopher Brown and Esquimalt and Ditidaht Nations”
The case started in BC Provincial Court, involving two men who were charged with hunting/poaching in violation of the BC Wildlife Act. I first heard about the case in a newspaper report, and was completely taken with it!
- Here is a link to Justine Hunter’s article, “Traditional Justice”, published in The Globe and Mail, January 8, 2016.
- Here is a copy of the Case Comment/Case Report, summarizing the case, and signed by the Chiefs of the Esquimalt and Ditidaht First Nations. i-5-sentencing-dec-11-15-signed-chiefs-case-comment (with many thanks to lawyers Steven Kelliher and Declan Redman)
This case has been positively hope-inducing in me (a less than common feeling for one who spends much of her time teaching Canadian Criminal Law). Below is a copy of the ILRU Case Note, followed by a few thoughts on ways this case might be used in a variety of law school contexts/courses.
ILRU Case Note: In the matter of R v. Joseph Thomas and R v. Christopher Brown and Esquimalt and Ditidaht Nations
Context: Two Coast Salish men from the urban Esquimalt nation (in Victoria) were charged by conservation officers with two counts of poaching under the BC Wildlife Act. The two men initially asserted what they believed was a treaty right to hunt on unoccupied Crown land. However, the Ditidaht  (in whose historic territory the Esquimalt men had been hunting), were concerned about over-hunting of Roosevelt Elk. They were in favour of conservation, and the conviction of poachers.
As things unfolded, it also became clear that the two Esquimalt hunters had not sought permission from the Ditidaht to hunt in their territory, nor had they complied with Indigenous conventions in the manner of their hunt, breaching both Ditidaht and Esquimalt legal principles, and bringing shame on the communities.
Application: The case was heard in First Nations Court by Justice Marion Buller (now Chief Commissioner for the MMIWG Inquiry). With the consent of the Crown, the accused and the two concerned Nations, the Court made space for the Esquimalt and Ditidaht communities to work together, using their respective laws and procedures, to resolve the case.
The intial hearing, drawing on Coast Salish procedures for dispute resolution, involved a larger number of interested parties, including Elders, Chiefs, Counsellors and other members of the Esquimalt, Cowichan and Ditidaht nations. The communities spoke to not only current treaty and provincial law, but also to older laws between the two nations respecting hunting. They agreed that seeking permission from the other community was a fundamental law that continued to have force. The hunters accepted responsibility for their conduct, and agreed to accept the resolution that would be determined by the nations.
A number of procedural steps were necessary, as the violation of law here imposed responsibilities on not only the two hunters, but the Esquimalt community as a whole. As a result, the hunters were required to visit each household in Esquimalt to tell them what they had done, and to invite them to a meeting, which would be held in the Esquimalt Long House and involving people from both nations. At this meeting (180 people in attendance), representatives of the Ditidaht were wrapped in blankets and presented with gifts as a way of acknowledging the harm that was done, and committing to the re-establishment of good relations. The hunters are to refrain from hunting for a year, and are required to do work for the community, doing maintenance and service at the longhouse at least twice a week for the year. This was to function not as punishment, but as an opportunity to be a model for youth, and to demonstrate the continuing obligations and operation of Coast Salish and Ditidaht law.
Significance: This case is a powerful and hopeful example of the application of Indigenous law in ways that provide a meaningful resolution to a very real problem. A second important dimension of this case is that it is an example of intersocietal law. That is, this is not only a conflict over hunting, but a conflict between communities from two distinct legal orders. It shows the power of Indigenous law and procedure to create the conditions for people from different legal traditions to come together to work through a shared problem in ways which link in appropriate decision-makers, who are positioned to better identify the challenges, and construct meaningful solutions. Note that the procedures also supported an increase in legal literacy (increased familiarity in each community with the legal terrain of the other), and the building of community connections.
Even more powerfully, in the process of resolving this specific hunting/poaching claim, the two communities were able to identify a bigger systemic challenge: given the pattern of land development in this territory, the Esquimalt do not have access to many areas in which to exercise hunting rights. There is thus a pressure to hunt in the other territory with potential to impact on wildlife.
The result of the case has thus also been that the two First Nations have begun discussions aimed at developing protocols to govern hunting in Ditidaht territory by Esquimalt members, to support the ability of people in urban settings to have access to hunting.
In short, what could have otherwise been a conventional hunting sentencing case instead has produced an outcome which:
- Attends to questions of human safety (drawing on indigenous laws and protocols governing ways, times, and places in which hunting can happen),
- Attends to questions of conservation (drawing on Indigenous laws related to stewardship of land and animals),
- Attends to questions of inter-community conflict, drawing on the point of contact as an occasion to work together to collectively address a shared problem.
 The Ditidaht and the Pacheenaht people speak closely-related dialects of a language called Nitinaht or “Ditidaht.” Ditidaht, is one of three closely-related languages (Nitinaht, Makah, and Westcoast or Nuu-chah-nulh) forming the South Wakashan sub-group of the Wakashan Language Family. The Nitinaht and Makah languages are much more closely related to each other than they are to Nuu-chah-nulh. From http://www.ditidaht.ca/.
- one could supplement this case through reference to two ILRU reports: Coast Salish Legal Traditions Report; ILRU, Coast Salish Civil Procedure Report
- There are some helpful video talks available on line on Coast Salish Legal Traditions & the Canadian State by Professor Sarah Morales.
THOUGHTS ON USING THIS CASE IN THE LAW SCHOOL CONTEXT
- This case is great for teaching “Sentencing”. It was really wonderful to be able to give students some examples of sentencing cases that did not induce despair. It was also useful for helping them see that some cases may involve MORE work for offenders, rather than less. Certainly, the students would agree that it would not be ‘easy’ to have to go door to door in the community to let people know about a wrong you had done. The case also made visible the ways that many people in a community could be brought together in order to produce a meaningfully better outcome.
- This case is great for troubling the divide between Criminal/Provincial offences, particularly in the context of Indigenous Laws. To call a hunting case ‘provincial’ is in many ways to fundamentally misconstrue the depth of relationships between indigenous peoples and animals. In many contexts, it is perhaps most appropriate to understand the relations between many Indigenous peoples and animals through the language of treaty (this is visible in Westcoast Nation stories about the Salmon People, or in Plains stories like The Buffalo Child). This is visible in this hunting case, where Esquimalt and Ditidaht parties agreed that, in the past, a second violation of laws around hunting could have resulted in the punishment of death. This indicates the importance of Indigenous laws pertaining to human/animal relations. Michael Ashe’s 1989 article on asche-wildlife-cpp-1989 might be a useful resource for supplementing such a discussion.
- This case is great for exploring Conflict Resolution in the context of International Law. On the one hand, this case could be treated as simply as instance of alternative measures within Criminal Law. However, there are powerful reasons to see this as rather an example of conflict at the intersection of THREE legal orders (BC/Canadian; Esquimalt; Ditidaht). What we see in some ways is the visionary willingness of the BC Court System to step to the side, to make space for the other two first nations to draw on their own legal procedures and institutions to solve a challenge that touched deeply on legal obligations and responsibilities in those nations. The eventual solution is one that accords with the needs of all three legal orders. From my perspective as a reader, it seemed that the Esquimalt and Ditidaht legal orders contained powerful problem solving resources, ones that provided a very successful resolution, one that is hard to imagine within the more conventional boundaries of the BC Wildlife Act. The case provides a great model for dispute resolution between conflicting legal orders.