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By Jeremy Webber *
* Professor Jeremy Webber is the Canada Research Chair in Law and Society at the University of Victoria Faculty of Law and 2009 Trudeau Fellow.
COWICHAN CONFERENCE ON INDIGENOUS LAW
Aboriginal title — and Aboriginal rights generally — are now recognized by the courts as part of Canadian law. In recognizing Aboriginal rights, the courts also recognize sources and principles of Indigenous law. But even though judges, lawyers and scholars accept the existence of this law, they often have little idea what it means for any particular people. What is the content of Anishinabek law, Gitksan law, or law in the Coast Salish tradition? What are their institutions? Who speaks for their content and processes?
That challenge even affects specialists in Indigenous rights, many of whom only speak of Indigenous legal orders in the abstract, recognizing their existence but generally knowing little about how they operate. These questions are acutely relevant to practice. When institutions seek to work with Indigenous communities (in the co-management of natural resources, child protection, regional economic development, responses to crime, the treaty process, environmental protection and a host of other domains), they have to know how the community’s law works. They have to know its procedures, principles and modes of reasoning. Only then can they develop a robust understanding of how different legal orders should relate to one another.
In recent years, a number of legal academics have begun to focus on Indigenous legal orders in their own terms. Often these scholars are themselves Indigenous, including John Borrows, James Hopkins, Maxine Matilpi and Heather Raven at the University of Victoria, Gordon Christie and Darlene Johnston at the University of British Columbia, Val Napoleon at the University of Alberta, Larry Chartrand and Tracey Lindberg at the University of Ottawa, and Sákéj Henderson and Patricia Monture at the University of Saskatchewan. A strong group of graduate students is working along similar lines, including UVic Ph.D. student Sarah Morales (Su-taxwiye), who is a member of the Cowichan Tribes and was a principal presenter at a remarkable conference held October 14-16, 2010.
Many of these scholars gathered at this conference to discuss Indigenous rights, Indigenous governance, and how relations between Indigenous and non-Indigenous peoples might evolve if Indigenous legal orders were taken seriously. The meeting was hosted by the Cowichan Tribes on Cowichan territory. It focused first on Coast Salish legal traditions, so that participants could gain some idea of one particular tradition. It then broadened to include insights from other Indigenous traditions and to reflect on the role of law schools.
The conference didn’t just talk Indigenous law. It was held according to the norms and protocols of the Cowichan Tribes. It was convoked by Chief Lydia Hwitsum (Xtli'liye) and the Cowichan Council, organized with the assistance of Larry George (Smaalthun; Cowichan Land and Governance Manager) and presided over by two deeply knowledgeable Speakers: Willie Seymour (Qwulthutstun) and Arvid Charlie (Luschiim). Leaders of families and others were called to serve as witnesses. There was a feast, ceremonies of welcome and blanketing of the Speakers, songs upon departure, and a concluding giveaway. It sought broad participation from the Coast Salish world, with participants coming from many communities.
The conference also involved participants from beyond the Coast Salish world. Scholars and graduate students came from across the country, several of whom are associated with the Research Group on Indigenous Peoples and Governance, one of the sponsors of the conference. The Pierre Elliott Trudeau Foundation was another sponsor. Trudeau Fellows James Tully, John Borrows and Jeremy Webber from UVic attended, together with Trudeau Scholars and current or former UVic Law graduate students Andrée Boisselle and Dawnis Kennedy. The UVic Faculty of Law and the Consortium on Democratic Constitutionalism (DEMCON) — based at UVic – were also sponsors. DEMCON has built a strong network of scholars and practitioners who seek to bring insights from Indigenous relations into the heart of legal and political theory.
The conference was rich, complex, and many-layered. It is impossible to summarize everything that took place, but here are a few observations.
The conference itself emulated the decision-making processes of traditional Coast Salish legal orders. Those orders tend to be decentralized. Stories, genealogies and even principles of good conduct are often held by kinship groups (families, clans). There is often strong resistance to any one position being imposed on the others. There are, therefore, few if any binding mechanisms for adjudicating differences. Instead, differences are discussed in a Big House by representatives of the families. Stories and counter-stories are told and additions and corrections offered. Through this process, a measure of coalescence occurs or, at the very least, one has an opportunity to hear and understand the positions of others. The procedure allows for broad participation, a diversity of voices and, ideally, the distillation of a position that integrates the views expressed. In today’s communities, meetings such as this one frequently shape the formal decisions of the bands.
That is what happened at the conference. Corrections were offered (sometimes tough ones) and they were generally offered obliquely without directly challenging the original speaker (although to attentive listeners the purpose was clear). Thus, participants discussed the acutely felt problem of overlapping claims among Coast Salish communities in the B.C. Treaty Process, which stems in part from the creation of consolidated reserves when familial connections cross what are now considered separate nations, and when people had rights to harvest resources at considerable distance from what are now their communities. The discussion was pointed but respectful. Representatives of all parties were present.
On another occasion, one community member expressed his anguish at the way he had been treated by the courts in a matter involving allegations of abuse. A woman who served as a court worker then took the floor and spoke about services available to victims. Her intervention did two things. It shifted attention to concern for the victim, but then reached back toward those accused of abuse, noting that they too were often troubled and required support.
None of the difficult issues discussed at the conference was solved that weekend. But considerations were clarified, mistakes corrected and new discussions begun. One got a clear sense of the substance of Coast Salish norms and procedures, and the way in which they shape responses to the challenges of maintaining social order.
In Coast Salish meetings of this kind, the role of witnesses is especially significant. They are generally holders of hereditary names, representatives of families and representatives of participating communities. At the Cowichan conference, non-Indigenous participants were also called, including Pierre Noreau (Director, Research Group on Indigenous Peoples and Governance) Donna Greschner (Dean, UVic Law), S. Ronald Stevenson (Senior General Counsel, Aboriginal Law, for the Department of Justice) and Bettina Cenerelli (Program Director, Trudeau Foundation). Their responsibility was to attend to what was said, remember, provide their own reflections at the end of the meeting, and take what they had heard back to their communities. So the conference ended with a series of acute observations from a range of Coast Salish and other perspectives, reflecting on the events of the conference.
One such witness was Judge John Joe of the B.C. Provincial Court and the Penelakut First Nation. Joe spoke to the importance of the conference and also issued a challenge. He noted that there had been previous discussions of Indigenous legal traditions, but the problem was how to institutionalize those discussions so that promising foundations could be built upon and extended. It is an important challenge that everyone at the conference took seriously. It is one that, in collaboration with colleagues across the country, the University of Victoria Faculty of Law is seeking to answer.
Photos by Holly Pattison.
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