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.