| 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. |