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

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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!

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

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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.

 

 

 

Teaching the 94 Calls to Action in the Classroom

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Elder Butch Dick, offering words of welcome (photo credit: Carol Liao)

 

This year, as part of the Legal Process course at UVic, we took two days in January, (cancelled all other first year law classes) and brought the students back into their Legal Process groups to spend some concentrated time on the Truth & Reconciliation Commission’s “94 Calls to Action.”

What follows is first a description of what we did over the two days, and then some comments on how these materials could be adapted for use more generally.

THE TWO DAY PROGRAM – DESCRIBED

  • On the first morning (a 3 hour block), we had a panel of 6 speakers. The goal was, in an embodied way, to introduce our students to the history and context for the establishment of the TRC, including the history and legacy of Residential Schools.  Here is the agenda for the day Agenda for Jan 20 – Day 1 panel  (sorry…it will come up on its side, so you may have to rotate it to read it).  In brief, we had:
    • a Welcome to the territories by Songhees Elder Butch Dick, Artist and Educator
    • Tla-o-qui-aht Elder Barney Williams Jr, member of the TRC Indian Residential School Survivor Committee
    • Karla Point, Hesquiaht First Nation and UVic Cultural Support Coordinator
    • UVic (law) Prof Rebecca Johnson, giving an overview of the legal history leading to the TRC and the 94 Calls to Action [See below for more on this]
    • Ry Moran, Director of the National Centre for Truth and Reconciliation
    • Aimee Craft, Director of Research, National Centre for Truth and Reconciliation
    • UVic (visual anthropology) Prof Andrea Walsh, speaking about the process of repatriating children’s art from a provincial residential school
    • UVic Chancellor Shelagh Rogers, Honorary Witness to the Truth and Reconciliation Commission.
  • On the second morning (another 3 hour block), following a short debrief of the day before, the students worked in small groups on a set of exercises aimed at introducing them working collaboratively and individually with the 94 Calls, with the goal being, in part, developing fluency with the content (that is, just knowing what is IN the document).  Here is a copy of the exercise handout.TRC 2016 assignment handout.  Here is a copy of the instructor notes that were distributed to the teachers facilitating the small group work.  Instructor notes for TRC session-jan19

COMMENTS ON SETTING UP A MANDATORY TWO DAY PROGRAM:

Because these two days were part of a mandatory course, attendance was expected for the two days (for students who were unable to make one session or there other, there was an alternative exercise).  While this was mandatory, we did not want to create more work for either faculty or students:  we wanted a space to do some work, but not in a way that would be overwhelming.  Indeed, the focus was in large measure not on the entire history of residential schools, but on the 94 Calls to Action.

  • We did NOT ask them to read anything in advance, nor did we give them any additional readings about the TRC or its history. We presume that there will be much to do on this front over the course of the students’ education.  At THIS point, we wanted to work exclusively with the 12 page document that is the TRC Calls to Action.
  • To set the context, there was some coordination with first year profs early in the year/term, so that all the students had already had a few lectures relating to issues emerging in the TRC Calls to Action [including a lecture in Criminal law on the Kikkik case, and Inuit relocations; a lecture in Constitutional law on the history of Govt/Indigenous relations leading up to the establishment of residential schools]
  • The first day panel was an intense experience, in a good way.  We had struggled in advance over the question of whether or not to ask someone to come speak with us about their residential school experience. On the one hand was the worry that Indigenous folks are all too often asked to share in contexts that are very exacting (that is, I was not wanting to do more damage).  On the other hand, people pointed out the real importance of having space made for those voices, and of letting others make the decisions.  Certainly, Barney and Karla’s participation was a crucial part of the experience.  As many students noted afterwards, it is one thing to have read about things.  It is a very different experience to be physically present with someone who speaks to their experience.  This was a super helpful piece of situating WHY the TRC Calls to Action matter so profoundly.
  • Part of the goal for the second day small group work was to enable them to meet up again with the groups with whom they had spent the first two weeks of law school.  It was also designed to be more practical and hands on — to look concretely at the text of the 94 calls, and to have a chance to work with them collaboratively with others.
  • In addition to ‘attendance’/participation in the group work, the “assignment” was two small pieces of reflective (non-graded) writing:  at the end of each of the two days, students were to submit a post to a blog (set up so that no one but the teacher would see their comments).  They could put down anything they wanted in terms of responses/comments/thoughts/questions.  The piece would show up as complete/incomplete based on simply the submission of text, and there were no marks for brilliance, nor content. The point was to create a space for reflective thinking, focus on the process of thinking, not on the substance of the thought.

COMMENTS ON ADAPTING THE EXERCISES TO A SMALLER CLASS CONTEXT

These materials were later adapted for use in the context of an upper year Criminal Law seminar course, using two class sessions.

  1. The first class session was in the nature of a lecture/powerpoint, setting up the legal context that resulted in the TRC Calls to Action.  Attached is the powerpoint, which people should feel free to use/modify/adapt, etc. [TRC powerpoint-for sharing]  I have a longer draft narrative text which walks a person through the powerpoint.  I also have an audio file from the talk for Legal Process.  If you want a copy of either, email me at rjohnson@uvic.ca.  I am happy to pass them along.  The point is to introduce students to the largest class-action in Canadian history (the Indian Residential School Settlement Agreement – IRSSA), and to have them see the structure of the settlement agreement.  This helps to make visible who is and who is not covered by the IRSSA.
  2. For ‘homework’ after the first session, hand out copies of the TRC 94 Calls to Action (the document is only 12 pages long), and ask them to read it through, and highlight “The federal government” every time they see it mentioned.  While the feds are not the only actors, they ARE a party to the Settlement Agreement (IRSSA).  Thus, the highlighting helps to make visible the sections that speak to their particular obligations.  Highlighting the document also helps the students see more clearly how many other parties are present in the document.  The other reason to have them highlight is to help with the reading (having a task helps ground the reading, so that eyes don’t just slide over the text and out of focus).
  3. The second class session involves working with the same assignment we used for Legal Process.  Here it is. TRC 2016 assignment handout.  And here are the instructor notes  Instructor notes for TRC session-jan19.  But, in brief:
    • The first exercise focuses on Recommendations 1-42.  The goal in each case is not to have students ‘debate’ the recommendations, or consider IF they should be adopted (that would be OK too, but would be a different exercise than the one we used here), but is rather to spend the time trying to ask [in a very descriptive way] what a working group might do, if they were working for a government who was committed to acting on the Calls to Action.  The goal is to imagine a space that is actively affirmative and committed to reconciliation.
    • It  helps to divide students into 5 different groups (Justice, Education, Health, Language and Culture, Child Welfare), so each group is only focusing on a handful of recommendations.  It also helps for them to have flip chart paper to work on [part of the goal is to also provide a chance for collaborative work and discussion], with plenty of coloured pens.  Remind them as they map out strategies to also be including the section numbers.  The goal is less for them to SOLVE problems, than to be able to describe the sections, and identify the kinds of verbs and parties involved.  For the exercise, we asked them to imagine themselves as the federal government.  But many recommendations are aimed at other parties, or are collaborative.  So the goal was also for them to think about the mechanisms they would need to put in place to build relations with the other parties they are to be collaborating with.  It was helpful (when touching base with the groups as they work) to keep reminding them to think about questions like “division of powers”, and “cooperative federalism”, and also about resources OTHER than money.  If they work on flip charts, you can hang them up, so that they can move around to see what the other groups have come up with, which can help in identifying themes.
    • The second exercise (10 different possible questions to work on) was designed to focus on Recommendations 43-94.  These questions again presume people in the community, and don’t require the student to imagine themselves as a lawyer.  They can be providing information more generally based on their knowledge.  The goal is to help an interested person locate sections that may be of interest, and to think about creative solutions.  Here, try to focus them in on finding recommendations that might be drawn up even where they don’t require action (that is, consider that there are recommendations that might serve as inspiration for people wanting to take steps, rather than seeing them only as obligations to  be met or avoided).  This approach makes it easier for them to read the sections with a sense of who is invited in, and the kinds of actions of reconciliation that might be imagined.

The above was one way of introducing the 94 Calls to Action into an upper year crim law class.  Given the breadth of the calls, it is hopefully clear that one might just as easily do this in the context of many other law school classes.  Indeed, it is also possible to do this with high school or general community groups, adapting the materials both to the time available, and the particular interests of the group.