Lecture 3: Governance - Agreements - YouTube
YouTube
Primary Language: English
Description:
My Recent Work
You did not do any work on this video
Subtitles in: English
Start End Subtitles
00:00:01 00:00:08 >> Let's begin. A couple of announcements,
00:00:08 00:00:10 one I'm hoping that those who were interested were able
00:00:10 00:00:13 to sign up for App Camp again this year,
00:00:13 00:00:15 that's going to be a great experience.
00:00:15 00:00:17 Second announcement is,
00:00:17 00:00:20 this Friday from 4:00 till 6:00,
00:00:20 00:00:21 and then all day Saturday,
00:00:21 00:00:23 you're welcome to attend any sessions on
00:00:23 00:00:27 a reconciliation conference that I'm hosting
00:00:27 00:00:29 here with Jim Tally from
00:00:29 00:00:31 the Political Science department and
00:00:31 00:00:33 Michael Ash from the Anthropology department.
00:00:33 00:00:35 On Friday evening,
00:00:35 00:00:37 from 4:00 till 06:00 PM,
00:00:37 00:00:40 myself, Michael Ash and Jim Tally,
00:00:40 00:00:44 we'll be talking about reconciliation following a set of
00:00:44 00:00:46 talks that we gave at Dalhousie University
00:00:46 00:00:48 over the past couple of years.
00:00:48 00:00:51 Then on Saturday, this is all
00:00:51 00:00:55 in the first people's house over in the center of campus.
00:00:55 00:00:58 People will be commenting and giving their own thoughts about
00:00:58 00:01:04 this concept of reconciliation that you're also welcome to attend.
00:01:04 00:01:06 You can just drop in for a panel if
00:01:06 00:01:09 you don't have time for the entire day,
00:01:09 00:01:11 even for just a portion of the panel.
00:01:11 00:01:14 In the big house, you'll see it's easy to circulate through
00:01:14 00:01:16 and so you don't interrupt people as you come and go.
00:01:16 00:01:18 If you're interested, you're certainly
00:01:18 00:01:21 welcome to be able to attend that. Yes.
00:01:21 00:01:24 >> Can we have a schedule somewhere on what now is happening when?
00:01:24 00:01:25 >> On my door, there is
00:01:25 00:01:28 a schedule about when the panels are happening
00:01:28 00:01:32 in terms of who's speaking at what particular hour.
00:01:32 00:01:35 My office is room 233 at the Law school,
00:01:35 00:01:38 so you can check out the schedule there. Yes.
00:01:38 00:01:41 >> Can you [inaudible].
00:01:41 00:01:43 >> There's one on Facebook as well.
00:01:43 00:01:48 Great. Couple of venues to be able to get information about that.
00:01:48 00:01:49 There'll be other conferences this
00:01:49 00:01:53 semester that are on this field that you can take advantage of.
00:01:53 00:01:57 Other questions or comments?
00:01:57 00:02:02 We're continuing our discussion of indigenous governance.
00:02:02 00:02:05 This will be a theme that goes throughout the entire course,
00:02:05 00:02:07 but today is going to be our last formal day
00:02:07 00:02:09 focusing on this particularly.
00:02:09 00:02:12 You'll remember one of the things that we've been developing is
00:02:12 00:02:16 the framework of indigenous governance,
00:02:16 00:02:18 which has attention in it.
00:02:18 00:02:21 One of those ways of looking at governance is that
00:02:21 00:02:25 you take the pre-existing traditions of Aboriginal peoples,
00:02:25 00:02:29 you mingle them with the assertion of sovereignty by their crown,
00:02:29 00:02:33 and in their interest societal connections,
00:02:33 00:02:36 you find opportunities for First Nations,
00:02:36 00:02:38 Metis, and Inuit people to be able to
00:02:38 00:02:40 exercise their governance today.
00:02:40 00:02:43 The other story is,
00:02:43 00:02:45 again intention with this,
00:02:45 00:02:48 which is Aboriginal peoples don't have anything,
00:02:48 00:02:50 land, governance,
00:02:50 00:02:52 until such time as the crown gives
00:02:52 00:02:55 them something through a delegated power.
00:02:55 00:02:59 You saw in the Indian Acts that we talked about last class,
00:02:59 00:03:02 what has been given to Indian peoples,
00:03:02 00:03:05 under that model is very limited.
00:03:05 00:03:11 This theme of interest societal law or terra nullius,
00:03:11 00:03:13 doctrine of discovery,
00:03:13 00:03:17 is very much a part of our entire course.
00:03:17 00:03:22 Now, I wanted to talk today about these frameworks
00:03:22 00:03:25 and take them into a little bit of discussion
00:03:25 00:03:28 of the red paper, the white paper.
00:03:28 00:03:35 This is attempts to get rid of the Indian Act in the early 1970s.
00:03:35 00:03:38 Then from that transitions into
00:03:38 00:03:41 contemporary self government agreements,
00:03:41 00:03:45 including cases dealing with these agreements.
00:03:45 00:03:48 As part of this interest societal framework though,
00:03:48 00:03:51 I think we need to go back to
00:03:51 00:03:55 understanding indigenous peoples own lots.
00:03:55 00:03:58 I have on the board here, a turtle.
00:03:58 00:04:03 I want to tell you a case that comes from the Anishinaabe,
00:04:03 00:04:09 that deals with this being a turtle has 13 different scales,
00:04:09 00:04:12 plates on the back there.
00:04:12 00:04:15 Those plates represent the different moons that
00:04:15 00:04:18 Anishinaabe people measure time by.
00:04:18 00:04:23 When we will look at our turtle we think of great time depth,
00:04:23 00:04:26 different moons so this month for instance says Minoomini Giizis,
00:04:26 00:04:28 which is the rising moon.
00:04:28 00:04:32 Next month, is Wabaabagaa Giizis,
00:04:32 00:04:35 the changing leaves moon.
00:04:35 00:04:37 Then we come to Binaakwe Giizis,
00:04:37 00:04:42 which is the coming off of the leaves moon.
00:04:42 00:04:45 Baashkaakodin Giizis, the freezing over moon.
00:04:45 00:04:49 Minado Giisoonhs, which is the Great Spirit moon,
00:04:49 00:04:52 Minado Giizis is the next Moon,
00:04:52 00:04:56 which is the little spirit moon.
00:04:56 00:04:58 Then in west January around February,
00:04:58 00:05:01 Nimebine Giizis, the sacrifish moon.
00:05:01 00:05:03 That's the month when the sacrificial
00:05:03 00:05:05 run into the territory when there's
00:05:05 00:05:09 so little food on the land and we're able to sustain ourselves,
00:05:09 00:05:11 through the arrival that fish.
00:05:11 00:05:13 Following that is, Onaabidin Giizis,
00:05:13 00:05:17 which is the hard crust on the snow moon,
00:05:17 00:05:18 which is January around March,
00:05:18 00:05:20 and as you walk on snowshoes,
00:05:20 00:05:22 there's a hard crust you often breakthrough,
00:05:22 00:05:25 and it can actually break your snowshoes during that moon.
00:05:25 00:05:29 The next moon would be, Iskigamizige Giizis,
00:05:29 00:05:34 which is the moon for the maple syrup that starts to flow.
00:05:34 00:05:36 We took a sap out of the trees,
00:05:36 00:05:41 boiled it down, and created that foodstuff.
00:05:41 00:05:43 Then it's, Zaagibagaa Giizis,
00:05:43 00:05:45 which is the buddying moon.
00:05:45 00:05:48 Then the Odemiini Giizis,
00:05:48 00:05:50 the strawberry moon,
00:05:50 00:05:54 and then Miin Giizis, the blueberry moon.
00:05:54 00:05:56 You can see our world,
00:05:56 00:05:59 our time measurements are calibrated by what's happening
00:05:59 00:06:04 ecologically around the territory and the turtle is the calendar.
00:06:04 00:06:06 It's the way of thinking about time as it
00:06:06 00:06:08 continues to swirl through
00:06:08 00:06:12 the seasonal rounds that we would have as we were
00:06:12 00:06:13 occupying different parts of
00:06:13 00:06:15 the territory to go to the strawberries,
00:06:15 00:06:16 or the suckerfish,
00:06:16 00:06:18 or the maple sugar bush is,
00:06:18 00:06:22 or where the rising beds were, etc.
00:06:22 00:06:25 There's another way that the turtle measures time for us,
00:06:25 00:06:28 which is in our origin story.
00:06:28 00:06:29 The origin story,
00:06:29 00:06:32 I told one about the Cree people in first class,
00:06:32 00:06:34 to be able to help you consider some of
00:06:34 00:06:38 the key principles of governance that are part of their society.
00:06:38 00:06:41 Well, the Anishinaabe also have
00:06:41 00:06:43 an origin story that
00:06:43 00:06:46 calibrates to important principles of governance.
00:06:46 00:06:48 The story goes as follows.
00:06:48 00:06:50 It's a case.
00:06:50 00:06:57 There was a great sky world with many beings in that sky world.
00:06:57 00:07:04 One day there was a curiousness about what existed below the sky.
00:07:04 00:07:06 Some people say it was Sky Woman peek
00:07:06 00:07:09 through a hole in the clouds,
00:07:09 00:07:10 some people would say it was
00:07:10 00:07:13 a trickster that peek through the hole in the clouds,
00:07:13 00:07:17 and with the curiosity tapped over too far,
00:07:17 00:07:21 fell through that hole in the sky and started
00:07:21 00:07:25 falling out of the greater upper rounds.
00:07:25 00:07:28 As the Sky Woman or Nanabozho,
00:07:28 00:07:31 depending on the version of the story, was falling,
00:07:31 00:07:34 a lot of time was going by and was worried
00:07:34 00:07:39 about what was going to happen as that journey continued.
00:07:39 00:07:41 There was a calling out for help,
00:07:41 00:07:43 "Mshkodewashk, help me."
00:07:43 00:07:47 Came this voice that echoed through the heavens,
00:07:47 00:07:49 "Mshkodewashk, help me."
00:07:49 00:07:52 The voice again echoed through the skies
00:07:52 00:07:56 and with that, eventually was headed.
00:07:56 00:08:00 The call came and was headed by a goose.
00:08:00 00:08:05 A goose flew along and underneath this beam it was falling,
00:08:05 00:08:09 it fell onto the back of this goose saw Downey landing,
00:08:09 00:08:13 and together the bird and this being,
00:08:13 00:08:16 were able to start flying in the upper realms.
00:08:16 00:08:20 As they flew from place to place,
00:08:20 00:08:23 they looked for area that they might be
00:08:23 00:08:27 able to start to get some solidity,
00:08:27 00:08:31 find some food, find a place of rest or respite.
00:08:31 00:08:33 As time went by,
00:08:33 00:08:36 it was becoming increasingly obvious that
00:08:36 00:08:39 there didn't seem to be any place to be able to rest.
00:08:39 00:08:41 What they did as they flew,
00:08:41 00:08:45 is they recognized that they were flying over a great water world.
00:08:45 00:08:47 As they were over this water world,
00:08:47 00:08:55 there was eventually a resting in the water by the bird,
00:08:55 00:08:59 and there they were just paddling on the vast ocean.
00:08:59 00:09:02 Eventually this became quite monotonous again,
00:09:02 00:09:04 no place of rest,
00:09:04 00:09:05 no place for food,
00:09:05 00:09:07 and so the call went out again,
00:09:07 00:09:10 "Mshkodewashk, help me."
00:09:10 00:09:13 Mshkodewashk, help me.
00:09:13 00:09:16 And a response to that call of either Sky Woman or Nanabozho,
00:09:16 00:09:18 depending on your version of the story.
00:09:18 00:09:19 Nanabozho is a trickster figure.
00:09:19 00:09:24 Eventually all of these water beings swam up
00:09:24 00:09:31 to the goose and Nanabozho.
00:09:31 00:09:33 And there was a council together.
00:09:33 00:09:35 In this council together,
00:09:35 00:09:37 there was a discussion about whether or
00:09:37 00:09:39 not they saw any solid place.
00:09:39 00:09:41 Whether or not they found any place to be able
00:09:41 00:09:45 to eat in what was surrounding them.
00:09:45 00:09:47 The word came back from
00:09:47 00:09:49 all the different directions that
00:09:49 00:09:53 these animals traveled and that there seemed to be nothing there.
00:09:54 00:09:57 >> There was a further discussion about what they might
00:09:57 00:10:01 do to be able to bring up something solid in this world,
00:10:01 00:10:04 and it was decided that maybe they should try below.
00:10:04 00:10:08 There might be something that they would find if they do,
00:10:08 00:10:11 and so there were some of the great swimmers amongst them
00:10:11 00:10:14 and one of them was beaver Nick.
00:10:14 00:10:16 I will do, I will dive.
00:10:16 00:10:18 I will find some Earth,
00:10:18 00:10:22 and so that beaver go down and wins.
00:10:22 00:10:24 It was gone for quite some time.
00:10:24 00:10:28 Animals all excited about what might be able to be brought up.
00:10:28 00:10:31 Beaver comes out of the water,
00:10:31 00:10:36 exhausted, puffing almost out of air, nothing.
00:10:36 00:10:40 It wasn't able to find anything below the water.
00:10:40 00:10:44 Well next the loon a great diver.
00:10:44 00:10:45 While I can succeed,
00:10:45 00:10:48 I have that ability to be able to dive
00:10:48 00:10:50 deep and sew down the loon went,
00:10:50 00:10:53 and the loon was gone for quite some time.
00:10:53 00:10:56 Eventually the loon came up and everyone was excited,
00:10:56 00:10:58 and it was the same result.
00:10:58 00:11:02 Nothing was able to be pulled up from those depths.
00:11:02 00:11:06 Well, at that point the otter swam forward.
00:11:06 00:11:10 That's my clan, my daughter, and a gig,
00:11:10 00:11:13 otter and gig, said I can do it,
00:11:13 00:11:14 I'm a strong swimmer,
00:11:14 00:11:16 and so down otter went.
00:11:16 00:11:18 It was gone longer than the beaver,
00:11:18 00:11:20 longer than the loon,
00:11:20 00:11:24 eventually it came up and it was the same result.
00:11:24 00:11:27 Nothing. By that point,
00:11:27 00:11:28 the council was getting quite
00:11:28 00:11:32 discouraged about what they might do to be able to
00:11:32 00:11:35 live in this place and find ways to be able
00:11:35 00:11:40 to help one another and helped Nanabush, Sky Woman.
00:11:40 00:11:44 In that discouragement, eventually they heard this small voice.
00:11:44 00:11:47 It was the little muskrat that swam over,
00:11:47 00:11:50 and said I can do it. Let me try.
00:11:50 00:11:52 All the other animals and
00:11:52 00:11:55 the council tried to discourage muskrat, you're so small.
00:11:55 00:12:00 How do you think that you can succeed when these great ones
00:12:00 00:12:05 amongst us were not able to bring up anything from the depths.
00:12:05 00:12:08 They were about to dissuade the muskrat from
00:12:08 00:12:11 even trying when Sky Woman or Nanabush,
00:12:11 00:12:14 depending on the version of the story, spoke and said, no,
00:12:14 00:12:16 we need to listen to this little one as well.
00:12:16 00:12:20 Sometimes the little ones also have something to teach us,
00:12:20 00:12:22 they have skill too,
00:12:22 00:12:24 and so the counsel deferred.
00:12:24 00:12:27 They allowed the little wonder wasush,
00:12:27 00:12:30 the muskrat to be able to dive and down it went
00:12:30 00:12:34 and it was gone as long as the beaver and then longer,
00:12:34 00:12:37 as long as the loon and then longer,
00:12:37 00:12:40 as long as the otter and then longer.
00:12:40 00:12:44 In fact, it was gone so long that the council began to forget that
00:12:44 00:12:48 the muskrat was even trying to be able to bring
00:12:48 00:12:52 up that material from the bottom.
00:12:52 00:12:54 They went into council again,
00:12:54 00:12:57 and as they were talking eventually they noticed way
00:12:57 00:12:59 off in the distance a little brown ball
00:12:59 00:13:02 of fur pop up in the waves and start bobbing in
00:13:02 00:13:05 the water and bobbing through the currents.
00:13:05 00:13:07 All the animals remembering what was
00:13:07 00:13:09 going on swam over to the muskrat
00:13:09 00:13:11 excited to see whether or
00:13:11 00:13:14 not there was something that was pulled up from the depths,
00:13:14 00:13:16 but when they got closer they
00:13:16 00:13:19 recognized there was no life in the muskrat.
00:13:19 00:13:22 It was completely still.
00:13:22 00:13:26 In fact, the muskrat had given its life in trying to succeed.
00:13:26 00:13:28 They felt sad and they wished they would have listened to
00:13:28 00:13:31 their first impulse which was to not
00:13:31 00:13:34 allow that luwen to be able to take that risk.
00:13:34 00:13:38 They wanted to honor the muskrat in what it did,
00:13:38 00:13:41 and so they called out for help again in that
00:13:41 00:13:45 honoring and they said, [inaudible] help me.
00:13:45 00:13:48 At that point a great turtle
00:13:48 00:13:51 arose out of the depths of the water,
00:13:51 00:13:54 and they took the body of the muskarat
00:13:54 00:13:57 onto the back of a turtle and they started to prepare
00:13:57 00:14:00 it ceremonially to send it on its journey leading to
00:14:00 00:14:04 the path of souls that goes to the lands of the dead.
00:14:04 00:14:09 [inaudible] they think the Milky Way is the path of soils,
00:14:09 00:14:11 we call it [FOREIGN],
00:14:11 00:14:13 the ghost road and so they're
00:14:13 00:14:16 preparing this little muskrat to walk along that road.
00:14:16 00:14:18 Rigor mortis is starting to set
00:14:18 00:14:21 in and they want it to be able to look more natural,
00:14:21 00:14:23 and so they pull out the arms,
00:14:23 00:14:25 the little legs,
00:14:25 00:14:30 they opened the paws and they find little grains of sand.
00:14:30 00:14:33 Muskrat had succeeded where all the others had
00:14:33 00:14:37 failed even though it gave its life for doing so.
00:14:37 00:14:43 They were excited that there's something below that there's
00:14:43 00:14:45 a possibility of another world that
00:14:45 00:14:50 could be brought into being through council,
00:14:50 00:14:54 through relying on the strength
00:14:54 00:14:56 of even the little ones amongst us,
00:14:56 00:15:00 a lesson of Anishinabek governance.
00:15:00 00:15:02 They took the little bits of
00:15:02 00:15:06 sand that were in the claws of the muskrat,
00:15:06 00:15:10 and they started to work it into the back of
00:15:10 00:15:13 the turtle and place little grains of sand and
00:15:13 00:15:14 all the parts of
00:15:14 00:15:18 the organic matter that's between these plates here,
00:15:18 00:15:22 and they started to dance around the back of the turtle.
00:15:22 00:15:26 As they dance they would ground in
00:15:26 00:15:30 that sand into the organic matter
00:15:30 00:15:32 that had formed on the back of a turtle,
00:15:32 00:15:34 and they eventually noticed something strange starting to
00:15:34 00:15:38 happen through is a generation of life.
00:15:38 00:15:40 There were things that started to grow out of
00:15:40 00:15:43 the soil interacting with what was in
00:15:43 00:15:46 the matter on the back of a turtle and they would
00:15:46 00:15:49 stand back after their dance and watch this growth,
00:15:49 00:15:51 and then it would decay.
00:15:51 00:15:54 Then they would dance some more and they would see the growth,
00:15:54 00:15:56 and then they would see the decay.
00:15:56 00:16:00 As this started to occur with that decay there started to be
00:16:00 00:16:03 deposits of greater soils
00:16:03 00:16:07 that was a part of that interaction until such time as
00:16:07 00:16:11 there was a solidity on the back of that turtle.
00:16:11 00:16:15 That back of the turtle began to grow beyond
00:16:15 00:16:21 the former limits of that turtle when it came up out of the water.
00:16:21 00:16:27 In gratitude for the muskrat in this dancing process,
00:16:27 00:16:31 a Sky Woman or Nanabush breathed
00:16:31 00:16:37 life into the muskrat and it became vivified again.
00:16:37 00:16:40 This growth in Earth occurred and the animal's kept spreading
00:16:40 00:16:44 out across the back of the turtle,
00:16:44 00:16:50 and eventually the story is when the first beaver died,
00:16:50 00:16:51 when the first otter died,
00:16:51 00:16:53 when the first muskrat die,
00:16:53 00:16:55 and eventually other animals were there
00:16:55 00:16:59 they became the first Nishnawbe,
00:16:59 00:17:04 the first Indigenous peoples of this part of North America.
00:17:04 00:17:11 If I'm otter clan it is as if there's this connection to
00:17:11 00:17:18 otter in that story that the otter is our relative.
00:17:18 00:17:21 Likewise, if you're from loon clan,
00:17:21 00:17:23 or a muskrat clan,
00:17:23 00:17:25 or whatnot, that would be your relative.
00:17:25 00:17:27 There's this sense that the animals
00:17:27 00:17:30 are part of our community of governance.
00:17:30 00:17:36 There's not this same putting humans necessarily always at
00:17:36 00:17:38 the peak as you saw in
00:17:38 00:17:42 the other story that was told about the Cree people,
00:17:42 00:17:44 the animals are the teachers.
00:17:44 00:17:47 They are the law professors,
00:17:47 00:17:50 they are the Parliamentarians,
00:17:50 00:17:53 they are the ones that help us to understand how
00:17:53 00:17:57 it is we should govern in this place.
00:17:57 00:18:00 Anishinabek people say the center of
00:18:00 00:18:04 this place where the turtle rose out of the waters is where
00:18:04 00:18:08 Lake Michigan seems to be very close to Lake Huron and those
00:18:08 00:18:09 straights there and where
00:18:09 00:18:12 Lake Superior eventually comes down as well.
00:18:12 00:18:15 That confluence of those areas,
00:18:15 00:18:17 there's a place you might have heard
00:18:17 00:18:20 of before called Michilimackinac,
00:18:20 00:18:22 and that's where that flows together.
00:18:22 00:18:25 Our word for turtle is mackinac,
00:18:25 00:18:29 our word for great is Michili.
00:18:30 00:18:35 Michilimackinac, that is the great turtle's back.
00:18:35 00:18:36 That's the center of
00:18:36 00:18:40 the [inaudible] homelands which I've told you is Ontario,
00:18:40 00:18:46 Michigan, Wisconsin, Minnesota over into the prairie lands.
00:18:46 00:18:53 When that water was dove through in that sand was brought up,
00:18:53 00:18:56 the Michilimackinac people, when they start any section
00:18:56 00:19:00 of gathering together they'll put out tobacco.
00:19:00 00:19:02 They'll take a little bit of tobacco in
00:19:02 00:19:06 their left hand in remembrance of what
00:19:06 00:19:11 the muskrat brought up from the bottom of the ocean,
00:19:11 00:19:13 and they see that as a reciprocity
00:19:13 00:19:16 that left hand is closest to the heart.
00:19:16 00:19:24 With that, there's again another governance principle discovered.
00:19:24 00:19:30 >> When you look at indigenous law from this perspective.
00:19:30 00:19:33 When you look at indigenous governance from this perspective,
00:19:33 00:19:36 what you could do that and start to correlate stories together.
00:19:36 00:19:39 Through the triangulation of stories,
00:19:39 00:19:41 start to see uninterpreted universe
00:19:41 00:19:44 about how you might behave as human beings.
00:19:44 00:19:47 We've already talked about the counseling process,
00:19:47 00:19:49 that's an element of this.
00:19:49 00:19:52 We've talked about the aspect of asking for
00:19:52 00:19:56 help and engaging yourself in government.
00:19:56 00:19:58 We talked about the reciprocity.
00:19:58 00:20:01 We talked about the relationality that's in there and is again,
00:20:01 00:20:05 that story would be correlated with other stories.
00:20:05 00:20:11 You would see this turtle as a way of reading.
00:20:11 00:20:14 The turtle is a taxed.
00:20:14 00:20:19 The turtle is actually a case that could swim by you,
00:20:19 00:20:23 and if someone told you this story,
00:20:23 00:20:26 you could then have discussions about what that means.
00:20:26 00:20:28 Because we didn't generally write as you're doing
00:20:28 00:20:31 here today or as we have in the case book,
00:20:31 00:20:35 we had memory devices for an oral tradition.
00:20:35 00:20:43 Gnomic devices that brought things to people's attention.
00:20:43 00:20:50 This story is told to keep reinforcing for us that there are
00:20:50 00:20:53 principles of law and governance that don't
00:20:53 00:20:57 necessarily come from parliaments permission,
00:20:57 00:20:59 provincial legislatures permission,
00:20:59 00:21:04 the Canadian government regulations under those laws,
00:21:04 00:21:06 even from the course.
00:21:06 00:21:10 But as this story also indicates,
00:21:10 00:21:13 no being exists alone.
00:21:13 00:21:19 [FOREIGN] people do not exist without the animals and plants,
00:21:19 00:21:21 and water and rocks and winds.
00:21:21 00:21:24 But neither do we exist without people
00:21:24 00:21:27 who've subsequently come to live amongst us.
00:21:27 00:21:31 That includes the Haudenosaunee that we talked about last class.
00:21:31 00:21:33 Who are our neighbors or the Anishinaabe,
00:21:33 00:21:35 who our neighbors of the Creeds,
00:21:35 00:21:37 who are our neighbors.
00:21:37 00:21:39 It also includes the French
00:21:39 00:21:43 who arrived and became our neighbors and the English.
00:21:43 00:21:45 Now people from all corners of the world
00:21:45 00:21:48 who come to live amongst the Anishinaabe,
00:21:48 00:21:53 the idea is that governance is formed through council and form
00:21:53 00:21:59 through working with different orders of being.
00:21:59 00:22:04 This is something that you don't see in the courts now,
00:22:04 00:22:07 you're not going to read much legislation about this.
00:22:07 00:22:12 But if you walk into any indigenous community,
00:22:12 00:22:17 there's going to be something that sounds like this,
00:22:17 00:22:21 that constitutes the people.
00:22:21 00:22:23 It is a verb.
00:22:23 00:22:28 It's how they constitute their relationships as an action word.
00:22:28 00:22:31 If you were in Haida Gwaii,
00:22:31 00:22:35 it might be calibrated to those beautiful images you
00:22:35 00:22:39 see when you come through the Vancouver airport.
00:22:39 00:22:42 It might be that canoe that's filled
00:22:42 00:22:45 with all different animals in the natchief there.
00:22:45 00:22:51 Or it might be that clam that is pulled out by a Raven on the top.
00:22:51 00:22:58 All these little humans are bursting out of the clam.
00:22:58 00:23:02 We might think that's unusual to set
00:23:02 00:23:08 constitutional principles from those stories.
00:23:08 00:23:11 But nevertheless, that's what you will encounter.
00:23:11 00:23:15 What sometimes happens is you get a nice confluence,
00:23:15 00:23:19 at least in communities where they're trying to reconcile,
00:23:19 00:23:22 integrate, have conversation between
00:23:22 00:23:25 how these traditions live together.
00:23:25 00:23:29 Sometimes you get the Indian Act just totally repressing
00:23:29 00:23:34 and taking over those other IDEs.
00:23:34 00:23:36 Even though they'll be there,
00:23:36 00:23:40 they find difficulty growing.
00:23:40 00:23:43 It's hard to dive down and
00:23:43 00:23:47 pull up the pre-existing resources that are there.
00:23:47 00:23:50 A lot of work is necessary to
00:23:50 00:23:53 do that because the Indian Act just functions
00:23:53 00:23:58 like this vast wasteland of water where there's no nourishment,
00:23:58 00:24:01 there's no possibility of rest.
00:24:01 00:24:05 There's no way really to sustain yourself in that place.
00:24:05 00:24:10 But it is practical to understand this.
00:24:10 00:24:13 It's a part of what you would do as a lawyer of
00:24:13 00:24:17 working in this field is trying to calibrate.
00:24:17 00:24:20 Then think of the different ways or not.
00:24:20 00:24:23 Those relationships can be put together.
00:24:23 00:24:27 Any questions or comments as you hear that story and think about
00:24:27 00:24:34 its implications for legal reasoning and practice.
00:24:37 00:24:42 We continue to move then through our framework.
00:24:42 00:24:46 Last class, I talked a lot about
00:24:46 00:24:50 the discontinuities between view
00:24:50 00:24:52 of Aboriginal rights that continues to
00:24:52 00:24:55 draw strength from an interest societal framework.
00:24:55 00:25:02 Probably the height of these discontinuities occurred in 1969.
00:25:02 00:25:06 Trudeau was elected on a platform,
00:25:06 00:25:11 Prime Minister Trudeau, creating a just society.
00:25:12 00:25:16 The Aboriginal context that just society
00:25:16 00:25:21 would see the elimination of Indian status.
00:25:21 00:25:24 No more distinctions being made
00:25:24 00:25:27 in law between Indians and non-Indians.
00:25:27 00:25:29 Hopefully you remember the last lecture and
00:25:29 00:25:32 see this as a combination of
00:25:32 00:25:34 residential schools and outline
00:25:34 00:25:38 religious freedoms and economic pursue send,
00:25:38 00:25:42 giving little place for Aboriginal Law to form.
00:25:42 00:25:47 This was viewed as a very positive thing you would eliminate for
00:25:47 00:25:49 all time the fact that
00:25:49 00:25:53 Indians might have a different status in the society.
00:25:53 00:25:54 You would also dissolve
00:25:54 00:26:00 the Department of Indian Affairs within five years.
00:26:00 00:26:02 Or if you have no more Indians with status,
00:26:02 00:26:04 you therefore no longer needed
00:26:04 00:26:09 apartment that would administer this group of people.
00:26:09 00:26:14 Part of that would also require abolishing the Indian Act.
00:26:14 00:26:20 That Act from 1876 would know the normal more.
00:26:20 00:26:26 Furthermore, you would convert reserved land to private property.
00:26:26 00:26:31 You would then give that land to the ban or
00:26:31 00:26:34 its members to be able to take
00:26:34 00:26:39 the capital and go out and purchase something else in society.
00:26:39 00:26:45 That would disestablish those reserve communities.
00:26:45 00:26:48 The transfer for Indian Affairs then of course,
00:26:48 00:26:52 would be away from the federal government under
00:26:52 00:26:56 Section 9124 of the Constitution Act 1867.
00:26:56 00:26:59 The Province would be the ones that would
00:26:59 00:27:03 deal with Indians for evermore.
00:27:03 00:27:05 You would then integrate the services
00:27:05 00:27:07 that they receive as individuals,
00:27:07 00:27:10 citizens like others, into those
00:27:10 00:27:15 provided to other Canadian citizens.
00:27:15 00:27:20 You would provide some funding or economic development recognizing
00:27:20 00:27:26 the inequality that since society between Indians and non-Indians.
00:27:26 00:27:31 Then also appoints a commissioner to address
00:27:31 00:27:36 outstanding land claims and gradually terminate existing treaties.
00:27:36 00:27:39 Not only would you terminate the Indian Act Department,
00:27:39 00:27:44 Indian status, you are also terminate the treaty relationship.
00:27:44 00:27:46 Trudeau said, "How can one part of
00:27:46 00:27:50 society have a treaty with another part of society?
00:27:50 00:27:52 We should the weird all equal.
00:27:52 00:27:56 We should all participate as equal citizens without
00:27:56 00:28:01 distinction based on the status factors."
00:28:01 00:28:07 This resonated very strongly within many government circles.
00:28:07 00:28:12 Because after all, this was the policy from 1876 forward.
00:28:12 00:28:17 In fact, you might even recognize this policy as being
00:28:17 00:28:21 part of what the current way
00:28:21 00:28:25 of proceeding in relationship to Indians is.
00:28:25 00:28:33 It seems for many indigenous peoples that this never went away.
00:28:33 00:28:35 But what happened in the same time,
00:28:35 00:28:39 this is the era of civil rights in United States.
00:28:39 00:28:41 You knew what's happening in
00:28:41 00:28:44 the American South and desegregation,
00:28:44 00:28:46 we had our own civil rights issue.
00:28:46 00:28:49 We had Codec.
00:28:49 00:28:54 Coming out of the quiet revolution
00:28:54 00:28:56 and in Aboriginal Canada
00:28:56 00:28:58 we have what indigenous peoples who do remember,
00:28:58 00:29:00 I talked about some of the positive functions
00:29:00 00:29:02 of residential school.
00:29:02 00:29:06 Indian started talking with one another about what they saw
00:29:06 00:29:10 with the White Paper and they didn't like it.
00:29:10 00:29:13 They drew on the political networks that were laid
00:29:13 00:29:16 down in that earlier assimilatory experience,
00:29:16 00:29:19 and they proclaimed a Red Paper.
00:29:19 00:29:21 What you get as a result of
00:29:21 00:29:26 the White Paper is the rise of Indian nationalism.
00:29:26 00:29:30 With that policy that was meant to get rid of
00:29:30 00:29:35 Indians actually spurred a counter reaction
00:29:35 00:29:39 to further embolden and
00:29:39 00:29:45 invigorates Aboriginal peoples to recognize this SCOTUS stock.
00:29:45 00:29:50 With the Red Paper and the proclamation,
00:29:50 00:29:53 was that there was to be a maintenance of
00:29:53 00:29:55 legislative and the constitutional basis
00:29:55 00:29:57 of Indian status and rights.
00:29:57 00:30:02 Until Indians were prepared and willing to be able to renegotiate.
00:30:02 00:30:05 They didn't like the Indian Act for one minute.
00:30:05 00:30:09 But they recognize that the Indian Act was totally thrown out,
00:30:09 00:30:11 you might throw it other aspects
00:30:11 00:30:13 of what binds the communities together.
00:30:13 00:30:15 The ability to live on reserves,
00:30:15 00:30:19 to participate with one another in governance.
00:30:19 00:30:22 To able to take advantage of some of
00:30:22 00:30:26 the treaty obligations and rights that were part of it.
00:30:26 00:30:28 He said these things should continue
00:30:28 00:30:32 until such time as we say we want that regime.
00:30:32 00:30:34 In other words, they didn't want a government mandate
00:30:34 00:30:37 through a White Paper to accomplish that.
00:30:37 00:30:38 They said, we are citizens
00:30:38 00:30:43 plus we have all the rights of other Canadians,
00:30:43 00:30:46 plus we have our constitutional rights as first peoples of
00:30:46 00:30:51 this territory that flow from our Aboriginal and treaty rights.
00:30:51 00:30:52 Therefore, we should have access to
00:30:52 00:30:56 the same services as other Canadians.
00:30:56 00:30:59 Plus the things that we've received.
00:30:59 00:31:02 Through that long period of negotiation,
00:31:02 00:31:05 up those preexisting rights like the column name,
00:31:05 00:31:07 little rich type of story or the Chippewa,
00:31:07 00:31:09 the Saarinen story and Sivie story that
00:31:09 00:31:14 continue to be a part confederation.
00:31:14 00:31:17 >> We also made the point that only Indians and
00:31:17 00:31:20 Indian organizations should govern themselves,
00:31:20 00:31:24 they're sick of Ottawa's oversight.
00:31:24 00:31:27 At this point, most Indian committees had what's called an
00:31:27 00:31:31 Indian agent in the community, I think I talked about that.
00:31:31 00:31:33 Under the Indian Act, you'd have a chief and
00:31:33 00:31:34 a council that would make
00:31:34 00:31:39 decisions in a Victorian way,
00:31:39 00:31:43 but there would be a person appointed
00:31:43 00:31:48 by whoever the government was in power to be an agent.
00:31:48 00:31:50 If you made a decision as a chief and council,
00:31:50 00:31:54 you had to pass that to the agent and the agent would decide
00:31:54 00:31:56 whether or not you would send it along to
00:31:56 00:31:58 Ottawa to be able to ratify.
00:31:58 00:32:03 Your governance power was filtered through this agent who
00:32:03 00:32:08 often was very unsympathetic to Indian concerns and they said,
00:32:08 00:32:10 "We want that agent gone,
00:32:10 00:32:13 we want our own agency back."
00:32:13 00:32:16 They also said that Crown really
00:32:16 00:32:20 holds Indian lands and does not own them.
00:32:20 00:32:23 Under Section 20 of the Indian Act,
00:32:23 00:32:28 it says that the lands that Indians hold are actually crown lands.
00:32:28 00:32:30 All Indian reserve land,
00:32:30 00:32:32 according to the government's point of view,
00:32:32 00:32:34 is actually crown land.
00:32:34 00:32:37 It's held in trust for the Indians,
00:32:37 00:32:40 but the Indians can't actually
00:32:40 00:32:44 hold their own land on reserve and they wanted that to stop.
00:32:44 00:32:46 The Crown only hold them,
00:32:46 00:32:48 we actually owned that,
00:32:48 00:32:51 they wanted to reverse the polarity on that.
00:32:51 00:32:55 They also said the Indian Act should be reviewed but not repealed.
00:32:55 00:32:58 Again, only revised with treaty,
00:32:58 00:33:00 rights issues are settled and consensus
00:33:00 00:33:02 exists to reinforce that first point.
00:33:02 00:33:04 They wanted the Department of Indian
00:33:04 00:33:06 and Northern Affairs dissolved,
00:33:06 00:33:13 and they wanted an agency more attuned to the MDMs.
00:33:13 00:33:16 Then finally they rejected our government
00:33:16 00:33:18 appointed commission to be able to look
00:33:18 00:33:23 at outstanding issues dealing with treaty rights. They said.
00:33:23 00:33:25 "You need to have us involved.
00:33:25 00:33:28 We need an independent, unbiased,
00:33:28 00:33:31 unprejudiced commission with the power to compel
00:33:31 00:33:33 witnesses and documents and
00:33:33 00:33:36 make judgments that are legally binding.
00:33:37 00:33:40 Think about this in the context of our course,
00:33:40 00:33:43 we're going to talk about a lot of cases that get litigated in
00:33:43 00:33:48 The Supreme Court of Canada that go to a Canadian legal system.
00:33:48 00:33:53 The concern of many indigenous peoples is
00:33:53 00:33:56 the bias that might be a part of the judiciary having been
00:33:56 00:34:00 raised in a legal education system that doesn't often focused on
00:34:00 00:34:04 the turtle stories and focuses
00:34:04 00:34:07 more on the story like I told last class,
00:34:07 00:34:10 of just all this legal exclusion and things only
00:34:10 00:34:14 flowing from the Parliament or the Crown.
00:34:14 00:34:17 Because it's not only the case that Indians
00:34:17 00:34:20 have their own origin story,
00:34:20 00:34:23 the crown has an origin story.
00:34:24 00:34:30 We have a genesis myth in Canada,
00:34:30 00:34:35 which is everything flows from that superior being,
00:34:35 00:34:39 it's not the creator, it's the crown,
00:34:39 00:34:43 the crown occupies the role of the creator in many
00:34:43 00:34:49 of the origin stories that are told Canada.
00:34:51 00:34:55 This point is a point about where should
00:34:55 00:35:00 these disputes be taken so on order to get a fair hearing,
00:35:00 00:35:03 and they were worried that a commissioner when do it or even
00:35:03 00:35:07 worried that a court might not do that.
00:35:07 00:35:11 They want to see something that is more truly consultative,
00:35:11 00:35:13 that's more interests side of war,
00:35:13 00:35:17 allows for a healthier blending that has
00:35:17 00:35:20 their own terms written on it because often
00:35:20 00:35:24 the indigenous peoples are the mass grams or they are
00:35:24 00:35:28 that little more that we talked about in the Creed origins story.
00:35:28 00:35:31 People are saying, don't listen to them,
00:35:31 00:35:33 don't give them place in
00:35:33 00:35:36 this wider council and when we put ourselves together and there's
00:35:36 00:35:39 a difficulty then in being able to bring
00:35:39 00:35:45 a new energy life matter into place.
00:35:45 00:35:49 This is a big deal in 1969 and 70,
00:35:49 00:35:52 the rejection of the white paper
00:35:52 00:35:56 and a couple of years later in 1973,
00:35:56 00:35:57 we'll talk about this in a few weeks,
00:35:57 00:35:59 the color case was decided from
00:35:59 00:36:03 the Nisga'a territory where the court said,
00:36:03 00:36:08 aboriginal tittle is a justiciable interest.
00:36:08 00:36:10 It's an interest in law.
00:36:10 00:36:13 Yet there was disagreement
00:36:13 00:36:15 about whether or not it had been extinguished,
00:36:15 00:36:17 but it was a legal interests.
00:36:17 00:36:21 Trudeau, upon hearing all this from
00:36:21 00:36:27 the Red Paper and losing in the Calder Case,
00:36:27 00:36:33 said, "I was wrong not to recognize [inaudible],
00:36:33 00:36:38 I was wrong to create a policy of assimilation."
00:36:38 00:36:41 But these past two slides there,
00:36:41 00:36:43 the conflict we have today.
00:36:43 00:36:45 Each case that comes before
00:36:45 00:36:49 the court has some aspect of the White Paper in it,
00:36:49 00:36:53 some aspect of the Red Paper in it.
00:36:53 00:36:56 When we talk about the [inaudible] decision in a couple of classes
00:36:56 00:37:00 and what the government is doing right now in British Columbia.
00:37:00 00:37:04 You see tension within the Attorney General's office.
00:37:04 00:37:09 Some lawyers want to take cognizance of the Red Paper,
00:37:09 00:37:11 some lawyers still see the White Paper
00:37:11 00:37:15 as the way to be able to proceed.
00:37:15 00:37:20 That's working through this transition from what we talked about
00:37:20 00:37:25 last class and you see and further rise of Indian agency here.
00:37:25 00:37:27 Further transition, you can
00:37:27 00:37:29 watch this on your own if you're interested.
00:37:29 00:37:33 There's a seven-minute clip that talks about that history
00:37:33 00:37:36 that I've just outlined for you in touch with the Red Paper.
00:37:36 00:37:39 the White Paper talks about Indian control of Indian education,
00:37:39 00:37:42 they were talking about that back in 1970,
00:37:42 00:37:44 still don't have that yet and then it
00:37:44 00:37:47 also target with the Calder Case in that clip.
00:37:47 00:37:49 There's also something called the comprehensive
00:37:49 00:37:50 claims policy that follows
00:37:50 00:37:55 the Calder Case where there's a now attempt to deal through this,
00:37:55 00:38:00 not with a unilateral assertion like you get in the White Paper,
00:38:00 00:38:03 but through a process that would
00:38:03 00:38:06 premise the relationship on negotiation.
00:38:06 00:38:10 Now, there was lots of problems with that process,
00:38:10 00:38:12 lots of critiques with that process,
00:38:12 00:38:16 but certainly a 100 miles better than
00:38:16 00:38:20 just a unilateral ignoring of dispossessing of people.
00:38:20 00:38:23 This is Harold Cardinal here,
00:38:23 00:38:26 he was the main figure that
00:38:26 00:38:30 ignited and became the voice of the Red Paper,
00:38:30 00:38:32 he wrote a book called
00:38:32 00:38:35 The Unjust Society in response to
00:38:35 00:38:37 Trudeau's idea of the just society.
00:38:37 00:38:43 We chronicled all the challenges that Indians have pathways to
00:38:43 00:38:50 recruit to reform great man.
00:38:50 00:38:52 After all this was said and done,
00:38:52 00:38:54 he went to the University to sketch
00:38:54 00:38:56 one law school and got his law degree,
00:38:56 00:39:00 then he went to Harvard Law School and wrote on LLM
00:39:00 00:39:02 on treating aids and the rights to
00:39:02 00:39:04 their livelihood in treating AIDS.
00:39:04 00:39:07 Then when I was a young law professor in 1992 to '94,
00:39:07 00:39:09 he came to the University of British Columbia
00:39:09 00:39:12 and he was my doctoral students.
00:39:12 00:39:16 It was so hard to believe that I felt I was learning three
00:39:16 00:39:20 times as much from him then that he was learning from me.
00:39:20 00:39:22 Then he passed away just as
00:39:22 00:39:27 his writing of his doctoral thesis was ending
00:39:27 00:39:29 and we were able to award him
00:39:29 00:39:34 a doctorate in abstentia because of his passing.
00:39:34 00:39:37 But I regard that as a bit of a transition in
00:39:37 00:39:40 looking at a pattern that
00:39:40 00:39:43 went from the recognition of
00:39:43 00:39:47 aboriginal rights early on for 250 years,
00:39:47 00:39:50 then another 150 years of assimilation.
00:39:50 00:39:52 Now in the last 30 or 40 years,
00:39:52 00:39:56 we're trying to create this new framework and
00:39:56 00:39:59 he was a big part of that transition and of
00:39:59 00:40:02 course part of the transition of my life to
00:40:02 00:40:05 having someone help me
00:40:05 00:40:08 understand that and channel broader history.
00:40:08 00:40:11 Any questions or comments about that Red Paper,
00:40:11 00:40:17 White Paper history? Yes.
00:40:17 00:40:18 >> [inaudible].
00:40:18 00:40:20 >> This is Harold Cardinal,
00:40:20 00:40:23 he's from the Sucker Lake,
00:40:23 00:40:27 I think, Cree Nation in Northern Alberta.
00:40:27 00:40:29 His daughter Taenia [inaudible],
00:40:29 00:40:30 I think that's her name,
00:40:30 00:40:34 was one of the four founders of the Idle No More Movement.
00:40:34 00:40:38 In 2013, we get a real explosion and have similar things that
00:40:38 00:40:42 happened in the Red Power Movement in 1970.
00:40:42 00:40:44 His legacy continues,
00:40:44 00:40:45 I taught his son too,
00:40:45 00:40:47 we went to the University of British Columbia Law School,
00:40:47 00:40:51 Taenia went to law school as well.
00:40:51 00:40:54 >> I find it really interesting when I
00:40:54 00:40:57 look at the Red Paper and the White Paper,
00:40:57 00:41:00 that when you live on reserve,
00:41:00 00:41:03 you see these actual things happening skill,
00:41:03 00:41:10 and how it affects people who aren't aware of what's happening.
00:41:10 00:41:14 >> Yeah, this is a current contemporary reality,
00:41:14 00:41:16 the red paper and the white paper continue to
00:41:16 00:41:19 influence people in their lives.
00:41:19 00:41:21 You're not always aware of
00:41:21 00:41:26 this setting the framework for the struggles that they're having,
00:41:26 00:41:29 but it's certainly on the ground.
00:41:29 00:41:31 People live this.
00:41:31 00:41:34 People still live under the Indian Act.
00:41:34 00:41:40 At 1876, piece of legislation that's designed to assimilate. Yes.
00:41:40 00:41:45 >> I'm 72 and legally award of the government,
00:41:45 00:41:49 which means in everyday language,
00:41:49 00:41:58 I can't readily go out and get a mortgage for my home,
00:41:58 00:42:00 even though I own it [inaudible].
00:42:00 00:42:02 >> Yeah. There's something of that
00:42:02 00:42:06 Crown owning the land and holding it for Indians.
00:42:06 00:42:10 At the Crown is the trustee for
00:42:10 00:42:15 the Indians or to use the language that we've just heard,
00:42:15 00:42:19 Indians are the ward of the federal government.
00:42:19 00:42:23 It's as if we're like children in a relationship with
00:42:23 00:42:31 a so-called superior power with greater somehow insight.
00:42:31 00:42:33 Of course that's not true,
00:42:33 00:42:37 but that's the way the system is laid out right now
00:42:37 00:42:40 and that is still the transition where in,
00:42:40 00:42:43 just trying to work beyond that dispute. Yes.
00:42:43 00:42:43 >> [inaudible].
00:42:43 00:42:45 >> Yes.
00:42:45 00:43:05 >> [inaudible].
00:43:05 00:43:09 >> Yes. The question is what happened after
00:43:09 00:43:12 1973 intruder recognized he was wrong?
00:43:12 00:43:14 The question is were there more formal steps that were
00:43:14 00:43:19 taken to be able to recognize more Indian rights?
00:43:19 00:43:20 This is one of those steps,
00:43:20 00:43:22 the comprehensive Claims Commission.
00:43:22 00:43:26 But between 1976 and 1982,
00:43:26 00:43:30 there was the constitutional negotiations that started to happen,
00:43:30 00:43:32 and questions about whether or not
00:43:32 00:43:33 Aboriginal treaty rights should be
00:43:33 00:43:35 repatriated in Canada's Constitution.
00:43:35 00:43:37 The next big thing that happened
00:43:37 00:43:40 after this comprehensive claims policy was
00:43:40 00:43:43 the constitutionalization of Aboriginal rights in
00:43:43 00:43:46 1982 and that's going to be the subject of the next lecture.
00:43:46 00:43:48 Before we talk about Sparrow,
00:43:48 00:43:51 we're going to talk about what is the history of
00:43:51 00:43:56 that movement to entrench Aboriginal and treaty rights. Yes?
00:43:56 00:43:59 >> I was just wondering,
00:43:59 00:44:04 who authored the White Paper and how universal would support it?
00:44:04 00:44:08 Because I coming from a more liberal background,
00:44:08 00:44:14 it seems like the White Paper would remove that word of the state.
00:44:14 00:44:17 >> Yes, that's right.
00:44:17 00:44:22 The question is, who authored that White Paper,
00:44:22 00:44:27 and there seems to be a liberalism that's under that,
00:44:27 00:44:30 that's a very positive and in fact does have
00:44:30 00:44:33 many positive effects in different parts of the world.
00:44:33 00:44:38 There was something in 1966 called the Hawthorn Commission.
00:44:38 00:44:42 They had done about four or five years of study as to how
00:44:42 00:44:46 to change the federal government's relationship with the Indians.
00:44:46 00:44:48 They devised that framework
00:44:48 00:44:50 and they talked with Indians, actually.
00:44:50 00:44:56 They talked with Indians and the device that word Citizens Plus.
00:44:56 00:44:57 They said that's the way that we should
00:44:57 00:45:01 proceed in Canada through a Citizens Plus framework.
00:45:01 00:45:03 Well, Trudeau receive that report,
00:45:03 00:45:05 and as Minister of Indian Affairs,
00:45:05 00:45:09 who was Jean Chretien.
00:45:09 00:45:11 Jean Chretien as the Minister of
00:45:11 00:45:14 Indian Affairs rejected the Hawthorn report,
00:45:14 00:45:17 rejected the view of Citizens Plus,
00:45:17 00:45:24 and was the author in his department of a White Paper.
00:45:25 00:45:29 Two Prime Ministers now have
00:45:29 00:45:33 their fingerprints on that policy and though there's been,
00:45:33 00:45:38 as I mentioned, a formal repudiation of the White Paper policy,
00:45:38 00:45:41 it doesn't look like practically on the ground.
00:45:41 00:45:44 There's been any kind of repudiation on that.
00:45:44 00:45:48 You continue to get this intermingling of liberalism
00:45:48 00:45:54 alongside this Citizens Plus scenario. Yes?
00:45:54 00:45:56 >> What about the Red Paper was that
00:45:56 00:46:00 inclusive of the majority of Canadian perturbation?
00:46:00 00:46:04 >> There was only one or two groups that accepted the White Paper.
00:46:04 00:46:07 One of those groups was the [inaudible].
00:46:07 00:46:09 You're going to read about in a second.
00:46:09 00:46:13 The [inaudible] wanted the premises
00:46:13 00:46:15 of the White Paper to be accepted
00:46:15 00:46:19 because they wanted to govern themselves in their own territories
00:46:19 00:46:23 similar to eventually what they've got here in this treaty.
00:46:23 00:46:28 But the most Aboriginal Canadians identified with the Red Paper,
00:46:28 00:46:33 and then in terms of non-Aboriginal population, it was mixed.
00:46:33 00:46:35 It's against the civil rights era.
00:46:35 00:46:37 So there were the allies
00:46:37 00:46:41 of those who wanted to see this citizen plasticity,
00:46:41 00:46:42 but there was also those who
00:46:42 00:46:45 continue to think that is wrongheaded.
00:46:45 00:46:51 That this is a race-based way of running our country.
00:46:51 00:46:54 It can be a race-based way of running the country
00:46:54 00:46:57 to have recognition of Indian rights.
00:46:57 00:46:59 This one of the complications I want to explore when
00:46:59 00:47:02 we're here together over this entire semester,
00:47:02 00:47:05 which is if you define Indians as a race,
00:47:05 00:47:12 I think what we're doing here I would disagree with having
00:47:12 00:47:15 separate status for Indians and
00:47:15 00:47:20 treaty recognition and constitutional rights.
00:47:20 00:47:23 Because I think that it's very problematic
00:47:23 00:47:26 if you create distinctions on the basis of
00:47:26 00:47:30 race and then start to administer something that
00:47:30 00:47:36 pushes people into categories based on all sorts of color of skin,
00:47:36 00:47:39 hair, eye, etc.
00:47:39 00:47:42 How can I stand here and teach this course?
00:47:42 00:47:46 Because I don't think they should be race-based distinctions.
00:47:46 00:47:49 I think they should be political distinctions.
00:47:49 00:47:52 That is, you have Indians as
00:47:52 00:47:54 a political group with a set of legal traditions,
00:47:54 00:47:57 and language, and laws,
00:47:57 00:47:58 and then you have the Canadian government with
00:47:58 00:48:01 its own traditions language and laws.
00:48:01 00:48:04 You should allow so-called
00:48:04 00:48:09 non-Indians to be a part of the polity of Indian nations.
00:48:09 00:48:12 If that's done in accordance with
00:48:12 00:48:17 Indian tradition and adoption, intermarriage,
00:48:17 00:48:20 naturalized citizenship laws,
00:48:20 00:48:26 opportunities to be able to have their voices heard.
00:48:26 00:48:32 I don't think you need to do this as a race-based distinction.
00:48:32 00:48:35 But some Indian to see themselves as a race,
00:48:35 00:48:37 and those that are critical
00:48:37 00:48:43 of the Red Power idea continue to view Indians as a race.
00:48:43 00:48:45 As long as they view Indians as a race,
00:48:45 00:48:47 Indians view themselves as a race.
00:48:47 00:48:49 I don't think we go down a productive pathway.
00:48:49 00:48:53 But if we can recalibrate that debate and
00:48:53 00:48:56 do it in accordance with worldviews,
00:48:56 00:48:57 theories of law,
00:48:57 00:49:00 justice, policy, political community.
00:49:00 00:49:02 There's a possibility. There is a case
00:49:02 00:49:05 of United States if you're ever interested in following,
00:49:05 00:49:07 and it's called Morten v Mancari.
00:49:07 00:49:09 For the Supreme Court of the United States
00:49:09 00:49:10 to set Indians aren't the race,
00:49:10 00:49:14 they're a political group. Question?
00:49:14 00:49:15 >> Could you define some clarity as to
00:49:15 00:49:17 the terminology that you're using?
00:49:17 00:49:20 >> So the question is about the terminology that I'm
00:49:20 00:49:23 using to talk about the subject matter of this course.
00:49:23 00:49:26 Indigenous is the word that's generally used
00:49:26 00:49:29 for people that we're
00:49:29 00:49:32 dealing with and it has an international currency.
00:49:32 00:49:35 If you go to Australia or New Zealand or
00:49:35 00:49:37 South Africa or South America
00:49:37 00:49:39 and you talk about indigenous peoples,
00:49:39 00:49:41 you're talking about those peoples that were
00:49:41 00:49:44 there prior to colonization,
00:49:44 00:49:47 prior to other populations surrounding them.
00:49:47 00:49:49 There's something called the Declaration on
00:49:49 00:49:51 the Rights of Indigenous Peoples that doesn't define
00:49:51 00:49:54 indigenous peoples but people
00:49:54 00:49:58 from around the world views that as the temporary nomenclature.
00:49:58 00:49:59 In Canadian law,
00:49:59 00:50:02 we use the word Aboriginal because
00:50:02 00:50:06 Section 35 1 of the Constitution is a term of art which is
00:50:06 00:50:09 the existing Aboriginal and treaty rights of
00:50:09 00:50:10 the Aboriginal peoples of
00:50:10 00:50:13 Canada are hereby recognized and affirmed.
00:50:13 00:50:15 There's a section of the Constitution that
00:50:15 00:50:17 tells you who the Aboriginal peoples are.
00:50:17 00:50:19 It says they're Indian,
00:50:19 00:50:21 Metis, and Inuit.
00:50:21 00:50:25 The Inuit people are those of the Circumpolar North.
00:50:25 00:50:28 The Metis people are those that are the product of societies
00:50:28 00:50:32 intermingling in places like Red River, Sault Ste.
00:50:32 00:50:37 Marie, and then there's a dispute about other Metis communities.
00:50:37 00:50:39 There's a whole test, we'll go through that later on.
00:50:39 00:50:41 So Inuit, Metis, and then Indian.
00:50:41 00:50:44 Indian are people that have registered
00:50:44 00:50:47 status under this regime that we're talking about.
00:50:47 00:50:49 Indians are maybe six,
00:50:49 00:50:52 700,000 people in Canada,
00:50:52 00:50:54 I don't have the exact number anymore,
00:50:54 00:50:55 but somewhere around there.
00:50:55 00:50:59 Metis are about a similar number.
00:50:59 00:51:03 Then Inuit people are in the hundreds of thousands.
00:51:03 00:51:05 But then went to the category of Indian,
00:51:05 00:51:11 you have something called Status Indians and Non-Status Indians.
00:51:11 00:51:14 >> Sometimes you can't maintain the lineage of
00:51:14 00:51:18 status if you don't accord with the rules of the Indian Act,
00:51:18 00:51:21 and sometimes you aren't able to fall in
00:51:21 00:51:23 a status definition because maybe you were
00:51:23 00:51:26 cut off from the community as we talked about last class.
00:51:26 00:51:28 You might have been enfranchised.
00:51:28 00:51:31 Or you might not have ever been registered because the time that
00:51:31 00:51:34 the treaty officials or whoever came through
00:51:34 00:51:38 your territory in chronical too was an Indian there,
00:51:38 00:51:40 you might have an authentic in the bush.
00:51:40 00:51:42 A whole families were never
00:51:42 00:51:45 registered and therefore couldn't claim status under that.
00:51:45 00:51:47 We've got Indigenous international,
00:51:47 00:51:49 Aboriginal, Canadian term of art.
00:51:49 00:51:51 Indian is a legal word.
00:51:51 00:51:55 Status and non-status. Inuit is a legal word.
00:51:56 00:52:00 We generally in Canada talk about Indian.
00:52:00 00:52:02 Now not in that language,
00:52:02 00:52:04 but in the language of First Nations.
00:52:04 00:52:07 Most Indian people would refer
00:52:07 00:52:10 to a generically themselves as being First Nation.
00:52:10 00:52:14 If you want to have
00:52:14 00:52:16 as greater facility as possible when
00:52:16 00:52:18 you're working in the First Nations world,
00:52:18 00:52:21 it would be really helpful eventually to
00:52:21 00:52:24 understand what particular group you're interacting with.
00:52:24 00:52:25 If you're in my area,
00:52:25 00:52:27 you would know about the Haudenosaunee
00:52:27 00:52:30 and the Michinabe and the Creek.
00:52:30 00:52:32 If you're here, you know about
00:52:32 00:52:35 the La Quanta and the Hawk Camino or the Coast Salish or
00:52:35 00:52:41 the straight Salish speaking people would be
00:52:41 00:52:44 called the Salish Indians and
00:52:44 00:52:48 the other Salish people would say the.
00:52:49 00:52:53 Yeah, that's just the way generally that works.
00:52:53 00:52:58 Of course, Indian as a word because Columbus got lost.
00:52:58 00:53:00 He was looking for a place and
00:53:00 00:53:02 attached a label to people that he thought was from
00:53:02 00:53:05 another land and my grandfather used to
00:53:05 00:53:07 make the worst joke about this, which is a good thing.
00:53:07 00:53:09 He was not looking for Turkey
00:53:09 00:53:13 because we would not like that name. Thank you very much.
00:53:13 00:53:15 That's some of the nomenclature
00:53:15 00:53:17 there in working through indigenous,
00:53:17 00:53:20 Aboriginal, Indian, Metis, and Inuit.
00:53:20 00:53:21 Thank you for that question.
00:53:21 00:53:24 Other questions or comments? Yes.
00:53:24 00:53:31 >> I saw in your comment in
00:53:31 00:53:33 [inaudible] some people say it takes away from
00:53:33 00:53:37 traditional law having to operate in the [inaudible]
00:53:37 00:53:41 >> That's right. The question is about what is the interaction of
00:53:41 00:53:46 traditional legal values alongside the Indian Act?
00:53:46 00:53:50 The Indian act is there to assimilate but there's
00:53:50 00:53:55 some interesting things that happen in terms of governance.
00:53:55 00:53:59 It is the case that there's a council process we have achieved,
00:53:59 00:54:02 have a counselor for every 100 Indians.
00:54:02 00:54:03 They have to be elected,
00:54:03 00:54:07 but through a ballot box that's administered by
00:54:07 00:54:09 the Department of Indian Affairs
00:54:09 00:54:11 that you have to call the election.
00:54:11 00:54:16 Have a period of voter engagement,
00:54:16 00:54:18 and then you have the vote itself that's
00:54:18 00:54:21 then counted in a ballot box, etc.
00:54:21 00:54:25 That system exists alongside another provision in the Indian Act,
00:54:25 00:54:29 which says that you can have custom counsels.
00:54:29 00:54:32 You don't have to go through their selection process.
00:54:32 00:54:35 Some of the bands,
00:54:35 00:54:37 as they're called under the Indian Act,
00:54:37 00:54:42 have a customary way of proceeding which is not codified.
00:54:42 00:54:45 They just go in accordance with what was for
00:54:45 00:54:48 a long time their way of choosing leaders.
00:54:48 00:54:50 Others codify their custom
00:54:50 00:54:53 and that's what the Indian Affairs wants you to do.
00:54:53 00:54:56 They want you to codify your custom so that
00:54:56 00:55:00 there's some certainty in relationship to that.
00:55:00 00:55:03 That exists on the governance dimension.
00:55:03 00:55:06 It also happens to be the case with land.
00:55:06 00:55:08 It says that you can only hold
00:55:08 00:55:09 land on-reserve if you're an Indian.
00:55:09 00:55:11 If you're not Indian, you can't hold land.
00:55:11 00:55:17 You hold that land through a certificate of possession or a lease.
00:55:17 00:55:21 You can lease lands to non-Indians.
00:55:21 00:55:22 There are sections of the Indian Act that
00:55:22 00:55:24 allow for that to be able to occur.
00:55:24 00:55:25 That's where some of the economic
00:55:25 00:55:27 development opportunities come from
00:55:27 00:55:32 or first nations communities is leasing lands.
00:55:32 00:55:35 The other way is a certificate of possession.
00:55:35 00:55:37 It's like a piece of paper.
00:55:37 00:55:40 It's like a fee simple document that says you have
00:55:40 00:55:44 the right to this meets and bounds part of the reserve.
00:55:44 00:55:46 It looks as though all your land
00:55:46 00:55:49 has to be held under those categories.
00:55:49 00:55:52 That's what again, Indian affairs encouraged.
00:55:52 00:55:55 But in fact, only about 50 percent of land on
00:55:55 00:55:59 reserves in Canada has helped through certificates of possession.
00:55:59 00:56:01 Some of those certificates of possession are
00:56:01 00:56:04 registered in a land registry that you
00:56:04 00:56:06 can check and search the Department of Indian Affairs
00:56:06 00:56:10 but you cannot rely upon it because there's
00:56:10 00:56:12 all these customary land holdings
00:56:12 00:56:14 that continue and you don't know how
00:56:14 00:56:19 that custom interacts with the code of the Indian Act,
00:56:19 00:56:22 without actually being on the ground.
00:56:22 00:56:26 On the ground, what I'm talking about here in terms of souvenirs,
00:56:26 00:56:29 inter societal lies is what actually happens.
00:56:29 00:56:34 Indigenous legal traditions interact with the crowns in position.
00:56:34 00:56:37 In the view officially of Indian Affairs,
00:56:37 00:56:39 there's no such thing as
00:56:39 00:56:42 customary councils really of voters recognize.
00:56:42 00:56:45 There's no such thing by and large as
00:56:45 00:56:49 traditional land-holding but there is.
00:56:49 00:56:55 This is legal pluralism and action,
00:56:55 00:57:00 but poorly executed, very poorly administered.
00:57:00 00:57:04 There are better ways of administering legal pluralism.
00:57:04 00:57:06 We see that how the civil law and
00:57:06 00:57:08 common law interact together in this country.
00:57:08 00:57:11 We know legal pluralism can work.
00:57:11 00:57:12 We have three representatives on
00:57:12 00:57:16 the Supreme Courts who are civilian law trained.
00:57:16 00:57:19 We had a big reference case about that with
00:57:19 00:57:25 Justice Nadon just the past 18 months or so.
00:57:25 00:57:28 We have legislation that parliament passes to
00:57:28 00:57:33 harmonize civil law and the common law.
00:57:33 00:57:36 We need that as indigenous people.
00:57:36 00:57:42 We need maybe someone on the Supreme Court that can bring
00:57:42 00:57:44 an understanding of indigenous legal tradition to
00:57:44 00:57:47 disputes just as is the case with a civil law,
00:57:47 00:57:49 we need a Harmonization Act.
00:57:49 00:57:52 That is not the Indian Act or the White Paper route,
00:57:52 00:57:57 but something that reconciles their traditions in
00:57:57 00:58:02 a much more productive way. Yes.
00:58:03 00:58:07 >> To me, it seems that when the Trudeau recognize you're wrong
00:58:07 00:58:11 but is pretty significant and very lying to me.
00:58:11 00:58:14 Do you think it's only the only Prime Minister has actually
00:58:14 00:58:18 acknowledged that maybe the policy they were taking was wrong.
00:58:18 00:58:20 >> Yes. The question is,
00:58:20 00:58:24 Trudeau acknowledged he was wrong and trying to put forward
00:58:24 00:58:26 this assimilatory agenda under
00:58:26 00:58:29 the White Paper and have other Prime Ministers recognize that.
00:58:29 00:58:33 Yes, they have. Prime Minister Cretan
00:58:33 00:58:37 was in office when the Royal Commission was released.
00:58:37 00:58:38 The Royal Commission on Aboriginal Peoples,
00:58:38 00:58:41 which was a five-year study,
00:58:41 00:58:43 produced six volumes of
00:58:43 00:58:47 recommendations and he produced the inherent rights policy,
00:58:47 00:58:51 which says that Aboriginal peoples have under Section 35 1,
00:58:51 00:58:52 rights to be able to govern themselves,
00:58:52 00:58:54 rights to be able to hold land in
00:58:54 00:58:57 accordance with their traditions, etc.
00:58:57 00:59:00 He did that, Paul Martin,
00:59:00 00:59:02 also had a similar type of response.
00:59:02 00:59:08 Brian Mulroney learned his lesson after the Meech Lake Accord,
00:59:08 00:59:12 which didn't recognize Aboriginal peoples
00:59:12 00:59:14 as a part of the distinct societies of
00:59:14 00:59:16 Canada and therefore Elijah Harper in
00:59:16 00:59:17 a Manitoba Legislature didn't
00:59:17 00:59:20 allow that constitutional amendment to go forward.
00:59:20 00:59:24 Ryan Merlin learn that you can't just ignore Indians
00:59:24 00:59:27 in constitutional reform and so in the Charlottetown Accord,
00:59:27 00:59:29 which came in 1992,
00:59:29 00:59:33 had all provisions for recognizing
00:59:33 00:59:38 this more inter societal way of proceeding.
00:59:38 00:59:43 It's not clear about Prime Minister Harper.
00:59:43 00:59:45 He did issue an apology
00:59:45 00:59:48 in parliament concerning residential schools.
00:59:48 00:59:50 We'll talk about that later,
00:59:50 00:59:53 but he did make a speech on the Indian Act at
00:59:53 00:59:56 the time of Idle No More and he said,
00:59:56 00:59:58 "You know, we can't just get rid of the Indian Act."
00:59:58 01:00:00 Took the page from
01:00:00 01:00:04 the red paper because there's so much that would be ripped out by
01:00:04 01:00:07 doing that but then
01:00:07 01:00:09 the omnibus bills that have been passed
01:00:09 01:00:11 through the last few years,
01:00:11 01:00:16 what's happened with clean water legislation and other pieces
01:00:16 01:00:18 of legislation don't always seem
01:00:18 01:00:21 to come up to the standard of what Trudeau,
01:00:21 01:00:23 Cretan, Mulroney,
01:00:23 01:00:25 Martin and others were doing
01:00:25 01:00:32 in trying to reject that White Paper Policy.
01:00:32 01:00:35 >> Great discussion. Thank you.
01:00:35 01:00:39 This transition with the comprehensive claims policy
01:00:39 01:00:42 there then has led to attempt to try to
01:00:42 01:00:45 negotiate aspects of the relationship
01:00:45 01:00:49 between indigenous peoples and the Crown.
01:00:49 01:00:52 What we have over the last,
01:00:52 01:00:54 since about 1975,
01:00:54 01:01:03 35-40 years, is some agreement that cover,
01:01:03 01:01:07 I think it's over one-fifth of Canada's landmass.
01:01:07 01:01:09 I'm 52 now.
01:01:09 01:01:12 In that 52 years,
01:01:12 01:01:16 we've had treaties that have dealt with big swaths of
01:01:16 01:01:21 territory that often have as
01:01:21 01:01:24 their common denominator an aspect of recognizing
01:01:24 01:01:31 land rights that Indians might have exclusively,
01:01:31 01:01:35 and then portions of those land rights that would be
01:01:35 01:01:37 a joint management regimes
01:01:37 01:01:40 outside of the exclusive Indian holding.
01:01:40 01:01:44 Then beyond the joint management,
01:01:44 01:01:51 the Aboriginal rights to use easements across more private lands.
01:01:51 01:01:53 These are usually land-based agreements,
01:01:53 01:01:58 but many of them also have self-government provisions.
01:01:58 01:02:01 On this side,
01:02:01 01:02:02 with the Yukon here,
01:02:02 01:02:05 these final agreements all deal with land.
01:02:05 01:02:09 They're constitutionalized under Section 35.1 of the Constitution.
01:02:09 01:02:12 Then there's side self-government agreements
01:02:12 01:02:14 that aren't constitutionalized,
01:02:14 01:02:16 but in these agreements,
01:02:16 01:02:18 in these treaties, they
01:02:18 01:02:21 promised to enter into self-government agreements,
01:02:21 01:02:24 and so you can find self-government agreements in the Yukon.
01:02:24 01:02:29 In British Columbia, self-government is part of the treaties,
01:02:29 01:02:34 and so you had reference to the Nisga'a agreement here.
01:02:34 01:02:39 You saw all the many heads of power that they were able to occupy.
01:02:39 01:02:42 In Nunavut, this is a public government.
01:02:42 01:02:45 Self-government is not in the treaty,
01:02:45 01:02:48 but because the Indian people are 85 percent of the population,
01:02:48 01:02:52 when that territory is administered,
01:02:52 01:02:54 it's done so in accordance with
01:02:54 01:02:58 Inuit legal tradition and modified parliamentary traditions.
01:02:58 01:03:02 The Northwest Territories also
01:03:02 01:03:06 largely have governance outside of the agreement.
01:03:06 01:03:09 Quebec has government inside the agreement.
01:03:09 01:03:11 Self-government is constitutionally protected
01:03:11 01:03:14 under Section 35.1 in Quebec.
01:03:14 01:03:17 In Newfoundland and Labrador,
01:03:17 01:03:19 again, it's outside the agreements here.
01:03:19 01:03:26 But these things take decades to be able to secure,
01:03:26 01:03:29 and there's a modern land claims coalition.
01:03:29 01:03:32 What these people are finding is what
01:03:32 01:03:34 their brothers and sisters found
01:03:34 01:03:37 a hundred years ago with the Numbered Treaties on
01:03:37 01:03:40 the prairies or the Peace and Friendship Treaties in
01:03:40 01:03:43 the maritime provinces that they negotiate something that looks
01:03:43 01:03:44 pretty and then there's
01:03:44 01:03:48 no resources or administrative structure
01:03:48 01:03:49 to be able to implement them.
01:03:49 01:03:55 There's litigation now ongoing in many of these places to try to
01:03:55 01:04:02 get these put into action.
01:04:02 01:04:04 Those treaties, we'll talk about later.
01:04:04 01:04:06 We have all four classes
01:04:06 01:04:09 dealing with treaties more generally, but at this time,
01:04:09 01:04:10 when we're talking about governance,
01:04:10 01:04:14 it's important that you notice what is involved.
01:04:14 01:04:17 We have the example again, in the materials,
01:04:17 01:04:20 of the Nisga'a and their final agreement.
01:04:20 01:04:22 Here's a little map, which is darker
01:04:22 01:04:26 on the northwest part of the province,
01:04:26 01:04:29 Prince Rupert, on the coast here.
01:04:29 01:04:32 Then up in Nass Valley is
01:04:32 01:04:35 the area that was dealt with the new treaty.
01:04:35 01:04:38 The Nisga'a people have now five percent of
01:04:38 01:04:40 their traditional territory that they
01:04:40 01:04:43 administer as a part of their agreement.
01:04:43 01:04:47 That's unacceptable to most Aboriginal communities in
01:04:47 01:04:52 British Columbia to only have that five percent relationship,
01:04:52 01:04:54 but in that, you saw that they have
01:04:54 01:04:57 villages with their own governing powers,
01:04:57 01:04:59 then you have a central government.
01:04:59 01:05:02 They have federalism. They have a central government,
01:05:02 01:05:05 and then they have local governments.
01:05:05 01:05:08 Then you can learn about what that heads of power are
01:05:08 01:05:13 that they administer within their agreements,
01:05:13 01:05:16 which is forestry, fisheries,
01:05:16 01:05:18 culture, language, health,
01:05:18 01:05:22 children, intellectual property,
01:05:22 01:05:25 land, obviously, government.
01:05:25 01:05:27 It goes on and on and on, the agreement.
01:05:27 01:05:32 There's hundreds and hundreds of pages to be able to work through.
01:05:32 01:05:36 In that agreement, their traditions interact with their treaties.
01:05:36 01:05:40 It was talked about in these materials here,
01:05:40 01:05:44 the four clans: the Killer Whale,
01:05:44 01:05:46 Wolf, Raven, and Eagle.
01:05:46 01:05:49 Those clans weren't extinguished by the treaty.
01:05:49 01:05:51 It talks about their Wilps,
01:05:51 01:05:54 which are their houses, their matriarch, local.
01:05:55 01:06:01 They're still there, though modified by the treaty.
01:06:01 01:06:03 They still have their Adaawak,
01:06:03 01:06:07 which is their history of how they came into that territory.
01:06:07 01:06:10 Their Adaawaks interact with what's called their Ayuukhl,
01:06:10 01:06:14 which is their legal codes that indicate
01:06:14 01:06:19 how they should live in that place.
01:06:19 01:06:23 These traditions continue and intermingled with the treaty.
01:06:23 01:06:30 They passed a constitution in order to give effect to their laws.
01:06:30 01:06:37 Their constitution deals with things like founding provisions,
01:06:37 01:06:39 Chapter 1; Chapter 2,
01:06:39 01:06:41 Rights; Chapter 3, land resources.
01:06:41 01:06:45 I'm just going to go on. Government, legislative authority,
01:06:45 01:06:48 executive authority, village government,
01:06:48 01:06:50 other institutions, dispute resolution.
01:06:50 01:06:54 They have a right to set up a court under their agreement.
01:06:54 01:06:58 Financial administration, public administration,
01:06:58 01:07:02 general provisions, oath of office, transition rules.
01:07:02 01:07:05 We the Nisga’a people of
01:07:05 01:07:09 the K’aliaksim Lisims from time immemorial,
01:07:09 01:07:11 we have lived in the lands that
01:07:11 01:07:15 K’amligiihahlhat gave to our ancestors.
01:07:15 01:07:17 We observe Ayuukhl Nisga’a.
01:07:17 01:07:22 We have heard our Adaawak relating to all our Ango’oskw,
01:07:22 01:07:28 from the Simgigat and Sigidimhaanak’ of each of our Wilps.
01:07:28 01:07:31 We honor and respect the principle of the common bowl.
01:07:31 01:07:33 They regard this territory as
01:07:33 01:07:37 a common bowl that they all eat out of together.
01:07:37 01:07:39 We are Nisga'a.
01:07:39 01:07:41 Since the beginning of time,
01:07:41 01:07:44 our leaders have upheld the honor of our nation and many have
01:07:44 01:07:47 grown old and passed on seeking justice for our people.
01:07:47 01:07:49 We have heard their stories,
01:07:49 01:07:51 we celebrate their loyalty,
01:07:51 01:07:54 and we are inspired by their courage.
01:07:54 01:07:56 Their struggle was not in vain.
01:07:56 01:07:57 Their work is now finished.
01:07:57 01:07:59 Their vision is realized in our time.
01:07:59 01:08:01 Our canoe has been launched.
01:08:01 01:08:02 Our journey continues.
01:08:02 01:08:05 Then they make a declaration to all the world.
01:08:05 01:08:07 We are a unique Aboriginal nation of Canada,
01:08:07 01:08:09 proud of our history,
01:08:09 01:08:10 and assured of our future.
01:08:10 01:08:13 Then they talk about why they adopt this Constitution.
01:08:13 01:08:15 Then they talk about the traditional role.
01:08:15 01:08:20 Their Simgigat and others and their elders.
01:08:20 01:08:24 Putting together mingling tradition.
01:08:24 01:08:27 They've basically just agreed to host
01:08:27 01:08:30 an LNG processing facility
01:08:30 01:08:34 here at the Nass with a Malaysian company.
01:08:34 01:08:36 They've spent a lot of time going through
01:08:36 01:08:41 a Nisga'a environmental assessment to come to that conclusion,
01:08:41 01:08:44 where the houses and
01:08:44 01:08:48 the clans and the government is now constituted,
01:08:48 01:08:50 used their own stories,
01:08:50 01:08:53 laws, traditions to come to that conclusion.
01:08:53 01:08:57 Not everyone's happy in Nisga'a nation with them having done that.
01:08:57 01:09:00 There are dissenters within the nation,
01:09:00 01:09:01 just like there are dissenters in
01:09:01 01:09:04 Parliament and in the legislature.
01:09:04 01:09:08 Just as there was even before the agreement came into place,
01:09:08 01:09:09 where the checks and balances,
01:09:09 01:09:14 the clans and houses help to mediate that dissent.
01:09:14 01:09:16 They've got many laws you can read in the materials.
01:09:16 01:09:18 They have child welfare laws and
01:09:18 01:09:22 education laws and financial administration laws.
01:09:22 01:09:25 They have laws to deal with non-native people
01:09:25 01:09:28 owning property in their nation.
01:09:28 01:09:33 They don't regard this necessarily as a race-based understanding.
01:09:33 01:09:35 Then the material says this Campbell case.
01:09:35 01:09:38 Now the Campbell case is named after
01:09:38 01:09:42 our former Premier of this province.
01:09:42 01:09:43 When he was an opposition,
01:09:43 01:09:49 he felt the ratification
01:09:49 01:09:55 of this treaty was contrary to Canada's constitution.
01:09:55 01:09:59 The Parliament of Canada ultra vires the province to be able to
01:09:59 01:10:04 recognize what he called a third order of aboriginal government.
01:10:04 01:10:11 He challenged that agreement as the ultra vires.
01:10:11 01:10:15 The main legal theory that was put forward is
01:10:15 01:10:18 that self-government of Indian peoples
01:10:18 01:10:21 was extinguished, that confederation.
01:10:21 01:10:25 >> Whenever there's a recognition of a governance power that
01:10:25 01:10:29 doesn't flow from parliament or flow from the province,
01:10:29 01:10:36 that's beyond the boundaries of the parliament,
01:10:36 01:10:40 particular to be able to pass.
01:10:40 01:10:44 The question that the case really dealt with is,
01:10:44 01:10:49 well, did confederation extinguish this government?
01:10:49 01:10:54 Did confederation extinguish Aboriginal Governance more generally?
01:10:54 01:10:58 The court, in British Columbia Supreme Court decision,
01:10:58 01:11:00 that the court came to the conclusion,
01:11:00 01:11:07 confederation did not extinguish Aboriginal Governance.
01:11:07 01:11:09 Aboriginal Governance continues, survives
01:11:09 01:11:13 confederation and could be recognized as
01:11:13 01:11:18 an Aboriginal right or it could be modified and put into
01:11:18 01:11:21 a negotiated agreement and
01:11:21 01:11:25 recognized under that form as a tree. Yes.
01:11:25 01:11:28 >> Also seem to have had a really
01:11:28 01:11:31 interesting is that it wasn't extinguish taking variation,
01:11:31 01:11:35 I think could have extinguish until 1982.
01:11:35 01:11:36 >> That's right.
01:11:36 01:11:37 >> I've found interesting that the roots and acts
01:11:37 01:11:40 like if you were going to extinguish it,
01:11:40 01:11:42 this was your window of opportunity.
01:11:42 01:11:43 >> Exactly.
01:11:43 01:11:46 >> I found that really interesting.
01:11:46 01:11:48 >> It's fascinating. Then it's really important to take
01:11:48 01:11:51 note of that and that's going to be reinforced with us,
01:11:51 01:11:53 over the next four classes when we do with Aboriginal rights,
01:11:53 01:11:57 which has rights that survived confederation,
01:11:57 01:12:00 could have been extinguished until 1982.
01:12:00 01:12:03 Because parliament was sovereign at that time
01:12:03 01:12:09 and at least in the words of court with sovereign
01:12:09 01:12:10 at that time and there was
01:12:10 01:12:18 no Aboriginal treaty rights that were given extra force.
01:12:18 01:12:20 As of 1982,
01:12:20 01:12:23 the government can no longer extinguish rights,
01:12:23 01:12:25 and can infringe them,
01:12:25 01:12:28 we're going to talk about that through justificatory process,
01:12:28 01:12:29 but they are there.
01:12:29 01:12:33 We have the conclusion drawn by
01:12:33 01:12:35 this judge that the Indian Act
01:12:35 01:12:39 didn't extinguish Aboriginal Governance.
01:12:39 01:12:43 Even though it greatly impacted those governments,
01:12:43 01:12:45 it regulated them in great detail.
01:12:45 01:12:50 Regulation does not equal extinguishment and what was being
01:12:50 01:12:52 regulated all along with something that was underlying
01:12:52 01:12:55 that which flowed from an inherent power.
01:12:55 01:12:57 Of course, if you think about it,
01:12:57 01:12:59 if the government and the Indian Act
01:12:59 01:13:02 itself says you can have customary counsels,
01:13:02 01:13:06 a presumes that government is also not an extinguished.
01:13:06 01:13:08 As this case develops,
01:13:08 01:13:11 he gives reasons for
01:13:11 01:13:12 committee's conclusion that governance was not
01:13:12 01:13:14 extinguished by looking at
01:13:14 01:13:18 the preamble of the British North America Act,
01:13:18 01:13:21 of the Constitution Act 1867,
01:13:21 01:13:25 which says, this is similar principle to that of Great Britain.
01:13:25 01:13:32 The Constitution Act 1867 is built on an unwritten constitution.
01:13:32 01:13:35 Part of Canada's unwritten constitution
01:13:35 01:13:39 recognizes Aboriginal rights and he goes on to talk about
01:13:39 01:13:42 how these organizing principles
01:13:42 01:13:44 that come out of the expressions in
01:13:44 01:13:48 the Quebec succession reference can be used to see that
01:13:48 01:13:53 British imperial policy recognized Aboriginal self-government.
01:13:53 01:13:58 This imperial policy that recognize self-government in
01:13:58 01:14:02 conjunction with Aboriginal people's own continuing powers
01:14:02 01:14:04 like in common well rich,
01:14:04 01:14:06 remember confederation did not extinguish
01:14:06 01:14:10 the ability of pre-law to be recognized by the Canadian courts.
01:14:10 01:14:14 Likewise, the constitution here didn't
01:14:14 01:14:16 extinguish these rights because
01:14:16 01:14:21 imperial policy said there and we saw that already.
01:14:21 01:14:25 The CV case came to that conclusion [inaudible] Canada,
01:14:25 01:14:27 the Chippewa, the Sarnia case,
01:14:27 01:14:30 Ontario Court of Appeal came to that.
01:14:30 01:14:33 Now we're left with a little bit of a conundrum.
01:14:33 01:14:36 When you read the [inaudible] case,
01:14:36 01:14:38 aside the Campbell case, obviously,
01:14:38 01:14:42 Campbell case is not has high authority.
01:14:42 01:14:46 But you've got a pretty persuasive opinion here that
01:14:46 01:14:47 correlates with other Supreme Court
01:14:47 01:14:49 of Canada opinions and the framework.
01:14:49 01:14:52 Actually correlates with the framework of Section
01:14:52 01:14:56 35.1 that would seem to indicate
01:14:56 01:14:58 that the doctrine of the continuity of
01:14:58 01:15:01 Aboriginal rights continues until
01:15:01 01:15:03 such time as there's an explicit extinguishment.
01:15:03 01:15:06 There was no explicit extinguishment here therefore,
01:15:06 01:15:08 the right to government survives.
01:15:08 01:15:12 That's aside what Ramanujan said,
01:15:12 01:15:13 which is we can't presume you have
01:15:13 01:15:14 abroad right to self-government.
01:15:14 01:15:16 You might have rights to govern yourself in
01:15:16 01:15:19 particular areas at their integrity,
01:15:19 01:15:20 distinctive culture prior to the arrival
01:15:20 01:15:23 of Europeans. That's confusing.
01:15:23 01:15:26 This is an area of law that hopefully we worked
01:15:26 01:15:29 out and if you practice in the field.
01:15:29 01:15:33 This is not going to continue to go on with this tension.
01:15:33 01:15:36 It's either going to be resolved in the Moduan Bain,
01:15:36 01:15:39 or it's going to take more of
01:15:39 01:15:41 what the Campbell case we're discussing.
01:15:41 01:15:45 The preamble recognizes self-government.
01:15:45 01:15:48 Another argument here is from a case,
01:15:48 01:15:51 and I'm quoting from Page 82 of the materials,
01:15:51 01:15:56 which is Paragraph 71 of the Campbell case,
01:15:56 01:16:02 which quotes from a pretty council decision of 1912.
01:16:02 01:16:04 AG Ontario, AG Canada,
01:16:04 01:16:06 here's what the Privy Council said;
01:16:06 01:16:10 there can be no doubt that under this organic instrument,
01:16:10 01:16:12 meaning the British North America Act,
01:16:12 01:16:16 the power is distributed between the Dominion on the one hand,
01:16:16 01:16:18 and the provinces on the other hand,
01:16:18 01:16:19 cover the whole area of
01:16:19 01:16:22 self-government within the whole area of Canada.
01:16:22 01:16:26 This was read by Campbell and his lawyers is saying there can't be
01:16:26 01:16:31 any Aboriginal self-government because the Privy Council said,
01:16:31 01:16:33 the British North America Act distributed
01:16:33 01:16:38 all sovereignty between the provincial and the federal government.
01:16:38 01:16:43 The court says, you didn't read the case far enough along.
01:16:43 01:16:45 You didn't read it in the depth that's required,
01:16:45 01:16:47 because just a few pages later,
01:16:47 01:16:52 now I'm the top Page 83 on Paragraph 73 of the Campbell case,
01:16:52 01:16:53 for whatever belongs to
01:16:53 01:16:56 self-governing Canada belongs either to Dominion or
01:16:56 01:17:01 the provinces within the limits of the British North America Act.
01:17:01 01:17:03 The court said there were powers of
01:17:03 01:17:06 governance that continue to exist in Canada,
01:17:06 01:17:11 that existed outside of those limits that were
01:17:11 01:17:16 dividing sovereignty to both the provincial and federal power
01:17:16 01:17:19 and a given example of the royal prerogative is
01:17:19 01:17:22 an aspect of government that exists out of sight
01:17:22 01:17:25 of '91 and '92 and then they
01:17:25 01:17:28 also talked about Aboriginal rights through
01:17:28 01:17:31 that imperial policy that recognized
01:17:31 01:17:37 beyond federal proclamation the right of government.
01:17:37 01:17:42 Now when we look at the survival of
01:17:42 01:17:47 Indian government alongside '91 and '92 powers,
01:17:47 01:17:49 we see that the Aboriginal perspective
01:17:49 01:17:52 on the meaning of the right has to be taken
01:17:52 01:17:57 into account in recognizing these governance powers.
01:17:57 01:18:01 The court says this was recognized after confederation as well.
01:18:01 01:18:07 >> Strand of lodging [inaudible] the logic
01:18:07 01:18:08 in the last
01:18:08 01:18:23 [inaudible].
01:18:23 01:18:26 >> That's right. There is a logic within
01:18:26 01:18:29 the Campbell case here that seems to cut against its own argument
01:18:29 01:18:31 about extinguishment because if
01:18:31 01:18:34 these things have survived and we are not even able
01:18:34 01:18:36 to be dealt with by
01:18:36 01:18:38 the provinces or the federal government
01:18:38 01:18:40 because it was outside of their limits.
01:18:40 01:18:44 If you have an Indian government power that's outside
01:18:44 01:18:47 the federal and provincial limits that were
01:18:47 01:18:51 distributed to them a time of confederation,
01:18:51 01:18:53 how can they extinguish that?
01:18:53 01:18:55 How can they go beyond their limits?
01:18:55 01:18:57 That would be ultra-violence.
01:18:57 01:18:59 It's interesting to put your comment together about
01:18:59 01:19:02 extinguishment and then seeing this argument
01:19:02 01:19:04 that there's even a logic here that
01:19:04 01:19:09 would make the case
01:19:09 01:19:12 that you couldn't even get the extinguishment before 1982.
01:19:12 01:19:18 This court says Section 35.1 is a framework for reconciling
01:19:18 01:19:22 the existence of Aboriginal peoples
01:19:22 01:19:25 with the sovereignty of the crown.
01:19:25 01:19:28 That's going to be our next class.
01:19:28 01:19:30 Explore classes is looking at
01:19:30 01:19:34 that framework for reconciliation between governance powers,
01:19:34 01:19:36 between crown happening to people.
01:19:36 01:19:38 There's other agreements is trying to do that
01:19:38 01:19:42 was and internationally people do the same thing.
01:19:42 01:19:44 But that's it for our day.
01:19:44 01:19:46 We're out of time and I
01:19:46 01:19:48 look forward to seeing you on Monday again.
Embed
Copy and paste the embed code above
Share
Copy and paste the embed code above