Indigenous Law and Procedure in Action: Vancouver Island Esquimalt/Ditidaht Hunting Case

Roosevelt Elk

The TRC Calls to Action speak to the importance (for law students, lawyers, doctors, nurses, journalists, bureaucrats, citizens) of learning about:

• Treaties
• 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

Map of BC First 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 [1] (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:

1. Attends to questions of human safety (drawing on indigenous laws and protocols governing ways, times, and places in which hunting can happen),
2. Attends to questions of conservation (drawing on Indigenous laws related to stewardship of land and animals),
3. 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.

[1] 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/.

ADDITIONAL RESOURCES:

• 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.

 

 

 

Reflections on the Anishinabe Law Camp (Bkejwanong Territory)

By: Valarie Waboose and Gemma Smyth

We write from the Faculty of Law at the University of Windsor, located on unceded Anishinabe Territory, the territory of the Three Fires Confederacy, Windsor, Ontario. We write, here, about experiences we had in organising and delivering an Anishinabe Law Camp for the Faculty of Law at the University of Windsor, on Bkejwanong Territory (Walpole Island First Nation) with Professor John Borrows (UVic), Professor Heidi Kiiwetinepinesiik Stark (UVic) and Hannah Askew (West Coast Environmental Law). The camp was held over a four day period between April 14 – 17, 2016. We have divided this blog into two voices: one from Professor Valarie Waboose and the other from Professor Gemma Smyth. We hope these two contrasting voices will shed light not only on our experiences in the Camp, but also on the roles and experiences of Anishinabe and settler peoples engaging in reconciliation-related teaching and learning experiences.

First, reflections from Professor Valarie Waboose.

I am an Anishinabe-Kwe from Walpole Island First Nation, the second oldest child of two residential school survivors, a mother of two, grandmother of 7 and great-grandmother of 1. I am a 1^st degree member of the Three Fires Midewiwin Lodge. My life and worldview centres around the Anishinabe teachings of the Midewiwin Lodge. I have resided on Walpole Island First Nation most of my life and have worked within this community for at least 20 years. During my lifetime I have completed a bachelor’s degree, a law degree, masters of law degree and a Ph. D. From 1996 – 2002 I worked as In-house Counsel to the Walpole Island First Nation and served for two terms on Walpole Island Council. My familiarity with the community was key to organising the Camp and ensuring it proceeded in a good way.

I offered to host an Anishinabe Law Camp in the spirit of reconciliation and a movement towards understanding and sharing an Anishinabe way of life. Windsor Law faculty and staff, as well as Elder and residential school survivor Susie Jones had been working together over 2015-2016 on a Truth and Reconciliation Steering Committee. This Camp was key as a first step in introducing faculty members more deeply to Anishinabe law and legal traditions.

Bkejwanong Territory (Walpole Island First Nation) is located in a secluded area adjacent to waterways leading to Lake St. Clair and surrounded by miles of untouched marshlands and natural habitat. The land was an important teacher throughout our time together.

The agenda for the camp was developed using a template by Professor John Borrows of University of Victoria and included stories, songs and circle discussion. Approximately 10 faculty members and their families attended to learn about Anishinabe epistemology from a number of invited guest speakers, each knowledgeable in a different area of Anishinabe life. The agenda included as many aspects of Anishinabe life as possible including history of Walpole Island First Nation, the legacy of residential schools on Walpole Island, a medicine walk, cultural teachings, storytelling and ceremony, circle sharing, boat tours, songs and dance.

In our reflections on the camp, it was clear that it was well received by all in attendance. The personal transformations in each participant was profound. An important aspect of the camp was the spirituality present during this four-day event. Within Anishinabe lifeways, spirituality is a major component of every aspect of personal and community life; as such, this aspect was important to understand the teachings shared during this event. Having members of the Midewiwin Society present and sharing their Indigenous knowledge during the camp enriched the participants’ understanding and incorporation of Anishinabe spirituality.

In my view, the spiritual realm within the four quadrants of the medicine wheel is one quadrant that is rarely touched within the practice of law. For some, entering this space may feel frightening but for others can be insight into their ways of being and understanding Indigenous law. As an Anishinabe Kwe teaching in a colonial institution I feel that young and aspiring lawyers need to learn how to get in touch with all quadrants of the self as reflected within the medicine wheel: mental, emotional, physical and spiritual. Taking this step and learning about oneself and how self fits into the natural order of the universe is a very humbling experience and can make a difference in their future practice of law.

Another highlight of the camp was having John Borrows, Heidi Stark and Hannah Askew share methodologies of incorporating learning from the land into the classroom setting. Their use of song, Anishinabemowin (Ojibway language) and storytelling was an incredible experience even for me as an Anishinabe Kwe. The work that they are currently doing in relation to Indigenous Legal Traditions is cultivating a new path towards understanding and teaching law to future lawyers. Perhaps, this new path is so far removed from the current norm and many will not be comfortable using these new methodologies. However, if one wants to fully understand and appreciate Indigenous Legal Traditions the person must embark upon this transformative journey. Reading about Indigenous Legal Traditions is only part of the equation; to actually be in a natural setting, experiencing the spiritual aspects of Anishinabe lifeways and learning about Indigenous legal traditions from Indigenous teachers is central to a deeper understanding of Anishinabe Law.

Second, reflections from Professor Gemma Smyth.

I am a settler whose family originally landed in Treaty 6 territory having been “granted” land in Saskatchewan. I grew up in Anishinabe territory not far from Bkejwanong First Nation (Walpole Island). My late father taught high school at the town nearest Walpole Island and I attended high school with kids from Walpole Island. It is with a mixture of regret and excitement that I am only recently discovering more about the teachings, histories, and peoples of this incredible place. It has been an honour to work with Professor Waboose on the Truth and Reconciliation Commission Steering Committee as well as the Anishinabe Law Camp. Before engaging with what I learned during the Camp, I must first confess to a deep degree of cultural incompetence, much of which I learned about through experience. My ignorance was treated with kindness and gentle correction, rather than rejection. I am indebted to all the teachers and community members for their patience in helping the camp go in a good way.

There is a significant volume of literature on transformative learning experiences and, writing as someone who has crafted them for students and in a professional context, this experience has given me a much deeper understanding of what “transformation” can really mean. The learning environment at the Camp unfolded in an entirely non-threatening, non-judgmental and emotionally open way such that even the most cognitive-focused among us were affected. For me, this emotional openness was key to unlocking my own colonial ways of feeling, thinking and acting. For example, we had a working agenda with times assigned for particular activities. However, the Camp proceeded as it felt right rather than by the prescribed agenda. If members of our group were struggling, everyone supported the experience of that member and adjusted as needed. Nothing was more important that the wellbeing of the people and the environment around us.

Most of us are familiar with the cognitive-behavioural-affective triangle of learning, and many of us have critiqued lack of attention to the affective in legal education. As Professor Waboose writes, above, the Camp challenged me to take seriously a fourth dimension – the spiritual. As someone who works primarily in clinical and experiential legal education and employs feminist pedagogies, the Camp taught me about how to better connect with students (and myself) through reflective space. Critical reflection, reflection-on- and in- action are commonplace concepts in feminist and clinical and experiential education. I often wonder, however, how deeply I allow myself and my students to engage as emotionally, and particularly spiritually, engaged people. The process of learning with and from community deeply challenged the individualistic, neoliberal tendencies in education that have sneakily entered my understanding of law and my work as a teacher and activist. The Camp reminded me of how uncomfortable Western educators are with engaging with whole person in the classroom. The Camp also helped to reconfirm the value of some of the teaching methodologies I use but worry are too “alternative” for students to take seriously.

There were also a number of activists in attendance (myself included). Because of the “white saviour” tendencies common to some activist communities, I had to deeply deconstruct my own instincts to jump into a problem without fully understanding it, and without honouring the community’s own ability to support themselves. As we were reminded, Indigenous communities need allies, not saviours. I am indebted to the community for teaching me how to be politically engaged in a more thoughtful way.

So where to go next? What began as a response to the Truth and Reconciliation Commission has refocused on the relationships we have with surrounding Indigenous communities, and also with our missions as educators, and with ourselves. I don’t want to be naïve about the challenges ahead. As one Elder rightly noted, colonizers have a deep history of learning in the moment and forgetting once back in their ‘natural habitat’. The tug between a more expansive and flexible vision and enactment of time, a more intimate connection to the visceral experiences of land and animals, the connectedness of all beings from the very young to the very old, is virtually absent from my work life. I would be disingenuous to pretend that this will immediately change, but I now find myself consciously working to challenge these ways-of-being.

In future, members of the Windsor Law faculty, staff and students hope to work with the community to expand this opportunity to staff and students. We also hope to maintain relationships built during the Camp and introduce more creative placements. It became clear through this Camp that relationships must guide our work.