Songs of Law? — Thinking about Indigenous and Settler Laws on the Use of Music

 

Sometimes I wonder if life in a law school doesn’t involve a “Midas Effect” — that is, everywhere you turn, everything you touch seems to involve (or become?) law.  I have been noticing this myself with respect to the law school’s ongoing obligations under TRC Call to Action #28.  I have been increasingly noticing how often questions of Indigenous Law seem to be in my field of vision.   Or perhaps I am only now beginning to see/acknowledge what was there all along?

Here is a specific.   I was on a phone call with my sister this morning, and the conversation (which was focused as it often is on activities with kids) moved from stories about the family dog, to piles of laundry and Orange Shirt Day and finally turning to the Louis Riel Opera with the Nisga’a song in it.  What, said I?  A Louis Riel Opera with a Nisga’a song in it?!  I had missed that discussion (a list of links to media discussions about the opera follow below)

Louis-riel-festival-opera-de-quebec-3
http://www.quebecspot.com/2017/07/une-remontee-unique-dans-le-temps-avec-lopera-louis-riel/

As is our way, my inner interrogator emerged, and so the conversation turned to questions about music, appropriation, and intellectual property law.  It was not the conversation I expected, but it has really had me thinking all day.  And it had me thinking about how a piece like the Louis Riel Opera could open space for a discussion of Indigenous Law in a very particularized way:  that is,  in the context of a Nisga’a song being drawn into a Settler/Canadian piece of music.  We have here an encounter involving two legal orders, each of which has rules about the creation and performance of music.

I asked my sister if she would write up a few paragraphs that I could share on this blog, paragraphs that would capture the essence of our conversation, with its questions about what the Opera might have to teach us about law and legality.  She, still sometimes pressed to fill the role of ‘relatively compliant younger sibling’, agreed!

“THINKING WITH AND ABOUT MUSIC” – Mary Johnson

I am a settler who grew up on Treaty 7 territories.  I graduated from the University of Calgary with a Bachelor of Art in Canadian Studies.  I love Canada.  I love being exposed to Canadian art, music, and literature.   I now live in Ottawa/Gatineau on unceded traditional territory of the Algonquin Nation.  Because I live in the Nation’s Capital Region, I am constantly surrounded by opportunities to participate in cultural activities celebrating Canada and its diverse talents.  These opportunities were intensified in 2017 with the Canada 150 celebrations.  I often felt conflicted during these celebrations as I don’t think Canada’s nation-building efforts are to be celebrated as such.  We need to not only acknowledge the harm Canada’s nation-building efforts have brought to Canada’s Indigenous peoples, but we also need to recognize these harms are not only historical, they are on-going.  Every Canadian needs to be engaged in doing the work of reconciliation.

2017-04-27---LouisRiel-MC-0035
https://www.schmopera.com/webhook-uploads/1493319094895/2017-04-27—LouisRiel-MC-0035.j

With this in mind, I tried to be thoughtful and deliberate about my participation.  When I realized I would have the chance to take my family to see the Louis Riel opera, I wanted to attend. I love opera, and there is a not a lot of Canadian opera.  But I was also very aware that this opera would be infused with appropriation.  Before the performance, I had read about some of the innovative ways this 50th anniversary production of the Opera attempted to acknowledge this appropriation, including a Land Assembly, a mostly silent group on the ground, dressed in red to represent Metis and First Nations peoples.  For me, watching the Land Assembly bear witness through the opera was very powerful.

What I had not read about in advance was not expecting, and what perhaps touched me the most, was a pre-show in the lobby by a group of Nisga’a Nation singers.  The group then moved onto the Opera stage to open the show.  A musical highlight of the opera is the third act’s opening aria, Song of Skateen. The Kuyas lullaby is sung by Riel’s wife, Marguerite. As noted in the program, the song is actually a Nisga’a lament from the West Coast, incorrectly used by Somers and Moore (the composers of the opera) in this context. Nisga’a protocol dictates such songs must only be sung at the appropriate times and only by those who hold the hereditary right to sing them. To shed light on this, a prelude to the opera featured a group of Nisga’a Nation singers, who acknowledged the fact the song was taken from them, and performed a victory song of their own.

I think this example of the Louis Riel opera taking and misusing a Nisga’a song provides an opportunity to initiate discussions around compensation for the use of cultural/intellectual property.  Western intellectual property laws often focus on monetary compensation for the use of cultural property, or address use through licensing.  But what are other possibilities where monetary compensation does not come close to addressing the issue?  What other ways could we approach this situation?  How do different indigenous legal systems work through such conflicts?

MEDIA SOURCES/LINKS TO SUPPLEMENT A DISCUSSION?

  1.  Here is a short piece from the Queen’s Gazette,  interviewing Prof. Dylan Robinson (Canada Research Chair in Indigenous Arts).  Queen’s Gazette, “A dialogue on Indigenous law, song and opera” Monday, April 24, 2017 http://www.queensu.ca/gazette/stories/dialogue-indigenous-law-song-and-opera
  2. Michael Cooper, “Canada Turns 150, but a Silent Chorus Isn’t Celebrating” (April 19, 2017) New York Times, https://www.nytimes.com/2017/04/19/arts/music/canada-turns-150-but-a-silent-chorus-isnt-celebrating.html

 

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Integrating property

Among McGill’s responses to the TRC recommendations will be a new property course that will integrate resources from common law, civil law, and indigenous traditions. This mandatory course will replace mandatory courses in Civil Law Property and Common Law Property. The change is part of a wider-scale program renewal – aiming to significantly enhance the student experience through changes to substance and modes of delivery – that we’ll start unrolling in September 2016. Since students won’t take the new course until their second year, we’ll first offer it in 2017-2018. Accordingly, we’re not able yet to give details, but I think our ambitious project is still worth sharing as sister faculties work through appropriate responses to the TRC’s call for action.

The property course will join other integrated or “transsystemic” courses, such as Contractual Obligations, Extra-contractual Obligations, and Family Law, that have formed pillars of the McGill Program since 1999. The new course represents a deepening of our commitment to legal education that crosses traditional boundaries. The course represents a deepening of our commitment in another sense, too, as we haven’t fully realized our ambitions for transsystemic legal education at McGill to reach beyond the traditions of the common law and civil law to embrace others, such as indigenous legal traditions. Property is especially crucial on this point, of course, as the effacement of indigenous conceptions of land use and belonging have played such a central role in colonialism.

Colleagues of mine will give shape to this course during the coming academic year. Already, though, our experience with integrating legal traditions in other courses allows me to offer several observations that I think will apply at McGill and that might be helpful as others reflect, debate, and dream.

First, it doesn’t work to wait until you’re fully ready for such an endeavour before deciding to do it. At a certain point, you have to commit and leap, trusting that you’ll get there and knowing that many of us work better under the healthy pressure that a deadline imposes. It’s a mistake to let perfectionism hobble the exercise.

Second, a course integrating two or more traditions, including indigenous legal traditions, shouldn’t and can’t be only or primarily a functional comparison leading to assessments of what is the ‘better solution’. Instead, it should and can aim to appreciate the traditions’ respective legal cultures, such as their forms of knowledge, evidence, and reasoning.

Third, be cautious about overarching narratives, which risk being simplistic – be they ones of radical difference or of fundamental sameness.

Fourth, it’s important to avoid translating one tradition into the technical vocabulary of the other. Relatedly, there will not be equivalents within one tradition for every legal idea encountered in another. Some students who wish to make comparative charts or tables will occasionally push you to tell them the equivalent so that they can fill in each cell. Sometimes the answer is that there isn’t one, or that we don’t think there is, or that we’re not sure.

Fifth, however you think about your tradition-specific courses, the ambition in an integrated course may well not be comprehensive ‘coverage’. The hope is that students will acquire an appreciation for each tradition and its resources such that they could begin researching and solving problems within it. But you likely will not ‘cover everything’ or even ‘cover everything important.’ Or, as a colleague said to me, maybe you can, but your definition of what is ‘important’ may change radically!

Transsystemic teaching requires humility and a willingness to take risks. It highlights and foregrounds what the study of law can and should be in general. It is a stimulating adventure, one that changes you as it changes your students. The experience at McGill – which we are keen to deepen as we act purposively in response to the TRC – has shown us that the payoff is worth the candle.