1 Decolonization and Law
Noor Shawush
Title: Decolonizing the Land: Revitalizing Indigenous Legal Traditions
Abstract
Indigenous languages are heavily influenced by the surrounding environment giving rise to various linguistic identities throughout North America. Indigenous legal traditions are based on linguistic notions unique to each group. During the process of colonization, settler laws were enforced at the expense of Indigenous legal traditions through the seizure of land. By understanding the relationship between the natural environment and Indigenous legal traditions, we can begin to understand how to approach decolonizing law.
Keywords: Environment, decolonization, legal traditions, Indigenous, law
Introduction
Indigenous people have occupied Turtle Island, or modern-day North America since time immemorial (Monchalin, 2016). Recognized as the earliest legal practitioners in North America (Borrow, 2005), Indigenous groups across Canada have developed social, political, economic, and cultural systems to guide their behavior with one another (Parrott, 2020). Encompassing a large group of nations, Indigenous people have diverse yet related cultural traditions (Monchalin, 2016). Dozens of languages are spoken among Indigenous people, each reflecting a unique linguistic and cultural identity (Monchalin, 2016). As Borrows (2005) explains, “These nations’ linguistic, genealogical, political and legal descent can be traced back through millennia to different regions or territories in northern North America. This explains the wide variety of laws among indigenous groups” (p. 176). Manley-Casimir (2012) echoes similar sentiments, articulating that “Indigenous peoples have constructed their vision of law within their unique normative worlds” (p. 138). Evidence suggests that Indigenous laws are directly influenced by the natural world through land and language. This paper will examine the influence of the natural world on the development of Indigenous legal traditions and explore decolonization by illustrating the impact of colonization on Indigenous laws. This paper will argue that Canadian law can only be decolonized if Indigenous peoples regain control over their physical environment. State conflicts related to British Columbia’s Wet’suwet’en people and legal personality in New Zealand will be introduced to reinforce concepts articulated in decolonial literature. The recent granting of legal personality to the Magpie River in Quebec will also be discussed. In exploring these case studies, this paper seeks to reinforce the notion that Indigenous legal traditions rely on connections with the land as well as access and control over relevant natural resources.
Law in the Colonial Context
European settlers imposed legal, political, and social structures based on the misconceived notion that Indigenous people “did not have law because they were ‘savage’ and ‘living without subjection’” (Borrows, 2005, p. 177). Some have argued that Indigenous peoples were ‘pre-legal’, suggesting that “societies only have laws if proclaimed by some recognized power that is capable of enforcing such proclamation” (Borrows, 2005, p. 176). This perspective aligns with those of Thomas Hobbes and John Locke, who argued that humans need to create a government and positive laws to maintain State power and a civil society (Monchalin, 2016). As Indigenous legal traditions did not resemble European laws, Indigenous people were said to have “no government at all, and live at this day in that brutish manner” (Hobbes, 1651). Absorbed in their perceived superiority, “the British looked to their own laws as the most rational, effective, and impeccable” and imposed them on Indigenous nations (Monchalin, 2016, p. 66). As Indigenous legal traditions demonstrate, law does not have to be centralized to exist. Robert Covers’ (1982) theory of law proposes such an approach, arguing that “We inhabit a nomos -a normative universe. We constantly create and maintain a world of right and wrong, of lawful and unlawful of valid and void… no set of legal institutions or prescriptions exist apart from the narratives that locate it and give it meaning” (p. 4). Positivist legal traditions are not necessary to social order. In reality, by embodying a particular nomos, “communities create their own normative legal systems based on their cultural values” (Manley-Casimir, 2012, p. 142).
Indigenous Legal Traditions
With respect to his analysis of civil law systems in Europe, Latin America and East Asia, Merryman (2000) describes the concept of ‘legal tradition’ as “A set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected and taught.” (p. 1). Indigenous legal customs were not written down, they exist in the “oral tradition, enunciated in songs, stories and ceremonies, often developed through consensus” (Law Commission of Canada, 2006, p.4). To ensure the preservation of such legal systems over time, symbolic memory strategies including wampum belts, culturally modified trees, land forms, crests and other objects in nature were used (Borrows, 2005). These traditions generally acknowledge a deep human connection to the land, spirit world, and waters (West Coast Environmental Law, n.d.). For example, the Mi’kmaq of the Far East maintained internal peace among the families within the society by dividing the territory into seven districts, each with a Chief and family rights to certain hunting grounds and fishing waters (Royal Commission on Aboriginal Peoples, 1996). The Haudenosaunee of the Eastern Great Lakes “maintained a sophisticated treaty tradition about how to live in peace that involved all relations: the plants, fish, animals, members of their nations and members of other nations” (Borrows, 2005, p. 178). Noticeably, these two examples demonstrate that in creating laws, Indigenous groups involved their specific environment and the natural world to reinforce relationships and societal roles.
Although European legal systems were imposed on Indigenous people, Indigenous rights and legal traditions have not completely disappeared (Law Commission of Canada, 2006). Many Aboriginal and treaty rights established prior to the arrival of Europeans have been recognized under Section 35 of the Constitution Act, 1982 (Reynolds, 2018). These are rights that have survived extinguishment, surrender and infringement by the Crown (Reynolds, 2018). Section 35 of the Constitution Act, 1982 “protects the existing culture, practices and traditions of Aboriginal people throughout the land” (Borrows, 2005, p.173). This section has been identified by the courts as having a “noble purpose,” in ending Indigenous injustice brought about by colonization (Borrows, 1999). While such rights have been granted, they are considered to be exercised within a colonial State, as Aboriginal laws are undermined when they are in conflict with the State’s legal orders (Law Commission of Canada, 2006). The Crown has the capacity to exercise fee simple title, which is absolute and uncontroverted ownership, thereby holding the power to extinguish Aboriginal rights (Borrows, 1999).
Impact of Colonization on Indigenous Legal Traditions
The Canadian State used law to oppress, discriminate and “eliminate Indigenous people as peoples” (McGuire & Palys, 2020, p. 61). The role of law was to support colonization through the dispossession and disruption of Indigenous legal systems by imposing limitations on their power to govern themselves (Reynolds, 2018). Through the Indian Act, a violent process of assimilation was set in motion to limit the exercise of Indigenous law (Law Commission of Canada, 2006). According to Monchalin (2016), “assimilation and control were the main purposes and philosophical underpinnings of the Indian Act” (p. 109). The Indian Act of 1876 imposed systems of governance that served colonialism by institutionalizing legal infrastructure that presumed Canadian sovereignty and ignored Indigenous sovereignty, thereby replacing traditional forms of governance (Monchalin, 2016; McGuire & Palys, 2020). The elements that formed Indigenous legal traditions such as stories, ceremonies, language and environment were criminalized as “superstitious nonsense” (Napoleon & Friedland, 2015, p.6).
Between 1884 and 1951, the Indian Act began to outlaw traditional sacred practices including the Potlach and the Sundance (Monchalin, 2016). These ceremonies consisted of formalized rituals through which individuals were able to directly participate in Indigenous legal traditions (Borrows, 2005). These practices were central to the identity of many Indigenous groups and validated the distinct heritage, value systems and social organization of each (Monchalin, 2016). Potlach and Sundance ceremonies are practiced in different geographical locations (Monchalin, 2016; Borrows, 2005), but each Indigenous group has it its own distinct ceremonies “to renew, celebrate, transfer or abandon legal relationships” (Borrows, 2005, p. 191). By intentionally disrupting the practice of legal traditions and bonds with spiritual forces, the colonial State had attempted to fill the void with Christianity (Indigenous Corporate Training, 2016; Truth and Reconciliation Commission, 2015b). After criminalizing these important political and legal processes, Indigenous people continued to practice these processes “underground” (Napoleon & Friedman, 2014). At the time, participating in these practices was a crime liable to up to six months imprisonment (Indigenous Corporate Training, 2012). On more than one occasion, Elders were arrested and imprisoned for having participated (Monchalin, 2016). This was particularly disruptive to communities, as Elders were relied upon to identify, transmit and communicate the law (Borrows, 2005).
As knowledge keepers, elders were responsible for orally passing down legal traditions and ensuring cultural continuity (Hele, 2021). According to Borrows (2005), oral history “is conveyed through layers of culture that entwine to sustain national memories over the lifetime of many generations” (p. 191). The process of transmitting legal traditions was bound by language however, with the operation of Residential Schools, the ability to pass down laws and other cultural knowledge systems was severely threatened. As the Truth and Reconciliation Commission (2015b) notes, Residential Schools represented a “systematic, government-sponsored attempt to destroy Aboriginal cultures and languages and to assimilate Aboriginal peoples so that they no longer existed as distinct peoples” (p. 6). By 1920, all Indigenous children between the ages seven and fifteen were required to attend school, whether that be Day School or Residential School (Monchalin, 2016). Parents who resisted the federal mandate were threatened with fines or imprisonment (Monchalin, 2016). At the schools, English and French were the only languages allowed to be spoken (Truth and Reconciliation Commission, 2015a). Students underwent severe punishments for speaking their native tongue, including public whippings, lashes, beatings or forced confinement (Monchalin, 2016; Truth and Reconciliation Commission, 2015a). A particularly horrific punishment practiced was the placement of needles through children’s tongues to be left in place for extended periods of time (Monchalin, 2016). Anker (2016) indicates that “residential schools had the effect of crippling Indigenous languages and, through them, the broader way of life of the first peoples of Canada” (p. 18). Like other legacies of the system, this had an intergenerational impact. Having been forbidden to speak their language, “former students found themselves unable or unwilling to teach their own children Aboriginal language and cultural ways” (Truth and Reconciliation, 2015a, p. 6).
As Wolfe (2006) states “Whatever settlers may say—and they generally have a lot to say—the primary motive for elimination is not race (or religion, ethnicity, grade of civilization, etc.) but access to territory” (p. 388). Similar sentiments echo in Palmater (2017), who identified theft of lands and natural resources as well as control of new trading routes as the “colonial pursuit of unearned power and wealth” (p. 74). During the process of colonialism, Indigenous people were “faced with a loss of territory and essential resources, catastrophic disease, forced dislocation, externally imposed disruption and compulsory replacement of governance structures and practices” (Napoleon & Friedman, 2015, p. 6). As Borrows (2005) illustrates, “relationships of family law, the law of obligations and property law hinged upon these connections to the land and resources” (p. 197). By displacing Indigenous peoples from their traditional lands and limiting their access to resources, settler colonialism eroded the practice of many legal traditions and placed Indigenous groups in new lands, forcing them to leave the environment on which their legal traditions, knowledge and language were sourced.
Decolonization
Decolonizing the dominant Eurocentric legal system in Canada requires an active resurgence against the structures, ideologies and discourses that have been used to govern Indigenous peoples (Monchalin, 2016). As Napoleon and Friedman (2015) attest, however, “forced social disintegration, dislocation, and assimilation, a lack of state recognition, or even state and outsider reprobation, did not and could not completely repress Indigenous legal tradition” (p. 9). While Indigenous legal traditions have resisted colonial tactics of control, the ability to practice such traditions are still subject to colonial forces that maintain State-imposed systems of governance over Indigenous nations. Many definitions of decolonization applied to the field of law exist and each incorporate a unique element. Two central themes dominate decolonial discourse: (1) re-establishing a connection with the land and (2) confronting dominant systems of governance. In revitalizing legal traditions, Manley-Casimir (2012) emphasizes that the “revival of old legal traditions and the development of new legal traditions in the face of the colonial experience are equally valid forms of legal interpretation” (p. 145). The next section of this paper will identify two approaches to revitalizing Indigenous legal traditions in the post-colonial context and offer re-establishing Indigenous control of the land as an approach to decolonizing law.
Legal pluralism refers to the “co-existence of multiple legal systems within a given community or social political space” (Sage & Woodcock, 2012, p. 1). This requires a shift away from commonly held assumptions “that law must be uniform, comprehensive, and monopolized by the state; that the rule of law consists of a single model or form to which all constituent legal systems must conform; and that political and economic development depend on conforming to this model” (Sage & Woodcock, 2012, p. 2). While Canada is a juridically pluralistic state, drawing on common law, civil law and Indigenous legal traditions to sustain order, Indigenous legal traditions are not given the recognition they merit (Borrows, 2005). Borrows (2005) proposes legal pluralism as an approach to decolonization, suggesting that applying legal traditions more explicitly in decision making “could create a stronger tradition of positivistic indigenous law to rest beside more customary legal traditions” (p. 198). Borrows (2005) also suggests developing Indigenous constitutions or applying other culturally appropriate legal traditions in the post-colonial context. During these processes, Indigenous groups may take the opportunity to “compare, contrast, accept and reject governmental and legal standards from many sources including their own” (Borrows, 2005, p. 200). Borrows’ proposal is complimentary to the Canadian legal system as it seeks to promote cultural diversity while recognizing that there may be other practices and approaches to law that would complement traditional legal practices.
Borrows approach to recognizing Indigenous legal traditions has amassed criticism. Moulton (2016) indicates that the Canadian legal system is unable to fully recognize Indigenous law through legal pluralism. Moulton (2016) argues that “Canada’s colonial past and its adherence to a hegemonic and monolithic conception of law are co-constitutive of a process whereby the recognition of Indigenous law will always demand conformity with dominant political and legal discourses” (p. 365). Exercising Indigenous legal traditions through legal pluralism, may be seen as conforming to colonial legal systems, and, as McGuire and Palys (2020) argue, “when we accept the colonial governments’ systems of law, justice and governance – foundational cultural institutions – we remain colonized” (p. 61). Rather than “conceiving of law as a static set of rules from which objective principles can be derived” (Manley-Casimir, 2012), decolonization starts by moving away from the idea that Indigenous legal traditions need to model the Canadian legal system (McGuire & Palys, 2020). By modeling the Canadian legal system, Indigenous people’s systems of governance and laws are viewed as inferior to those of the dominant State. The constitutional right to self-government pursuant to Section 35 of the Constitution Act follows that First Nations “have the authority to design a diversity of forms for their governing institutions so that these institutions will reflect their diverse traditions, needs and preferences” (Dacks, 2004, p. 671). The right to self-determination rests on the original status of Indigenous peoples as independent and sovereign nations within the territories they traditionally occupied (Dacks, 2004); therefore, the powers that be must relinquish control for Indigenous groups to freely express and practice legal traditions. As McGuire and Palys (2020) articulate, true decolonization starts by recognizing Indigenous people’s rights to local self-governance, not “imposed systems of ‘self-governance” (p. 61).
Dominguez and Luoma (2020) define decolonization as a means of reversing “colonialism including its political, economic, social, cultural and environmental impacts” (p. 2). As it stands, environmental practices are colonial in nature as they reflect the notion that systems growth through the consumption of resources is without limits (Howitt, 2020). This narrative, however, is particularly threatening to Indigenous people and their rights and relationship to the land, since “Indigenous people’s stories, ceremonies, teachings, customs and norms often flow from very specific ecological relationships” (Borrows, 2005, p. 196), decolonization must address the value of land, animals, plants and the natural world in its entirety. As McGuire and Palys (2020) observe, “the power of the land, of our ancestors and our cultures is essential to rebuilding our communities’ resilience and capacity” (p. 77). In addition to revitalizing Indigenous legal traditions, decolonization entails addressing the larger injustices of colonization including the dispossession and the destruction of ecosystems and the “possessive acquisition that the state and state laws have with the land and its resources” (Anker, 2016). As Alfred (2017) explains, “the way to fight colonization is by re-culturing yourself and re-centering yourself in your homeland” (p. 12). As a result of colonialism, Indigenous peoples have lost control over their land and resources. Based on the connection between Indigenous legal traditions and the environment, this paper recognizes active resistance against extraction projects, pipelines, pollution, or any other environmentally harmful activities as a valid form of decolonization. Resistance in the post-colonial context requires Indigenous peoples to reassert their relationship with the land and in doing so, address, confront and challenge colonialism as well as people, institutions and governments.
Promising Decolonizing Practices
This section will highlight decolonial practices in Canada and New Zealand. The first case study will introduce Wet’suwet’en First Nation in British Columbia and recent conflicts with the State. This case study seeks to highlight the impact of colonialism on Wet’suwet’en law and will outline a number of practices that align with decolonization values and principles. The second case study relates to New Zealand’s recent developments in law by which legal personality has been granted to three environmental landmarks. Granting personhood to environmental landmarks reflects a systemic decolonial practice that reflects Māori values and legal traditions. Taken together, these decolonial practices recognize and seek to establish the fact that the environment (i.e., the natural surroundings/landscape) serves as a foundation for Indigenous legal traditions. Further, this section will reinforce Cover’s theory of law by comparing Indigenous and settler colonial nomos and the interpretation of laws based on relationships with land.
Wet’suwet’en First Nation, the Feast System of Governance, and State Conflict
The Wet’suwet’en are an Athabaskan-speaking Indigenous group with territory in British Columbia. Their worldview incorporates holistic values, such as people are part of the living environment, respect for living things (particularly fish and animal species), and reciprocity with the natural world (Gottesfeld, 1994). Wet’suwet’en’s legal traditions are fundamentally connected to the feast system, which is their central governance institution (Office of the Wet’suwet’en, 2013). The feast system of governance is deeply rooted in the spiritual qualities of the land, the animals inhabiting it and the title holder (Office of the Wet’suwet’en, n.d.). Through the feast system, resources from different territories are brought into the feast hall to be distributed by the host clan to validate ownership of the territories (Office of the Wet’suwet’en, 2013). Through the feast hall, people are given titles and authority over territories (Office of the Wet’suwet’en, n.d.). The authority granted through the feast hall is used to “settle disputes and breaches of Wet’suwet’en law within the forum of the feast as well as outside the feast hall” (Office of the Wet’suwet’en, n.d.). The feast hall also serves to validate Indigenous authority and provide a format for the exercise of that authority in accordance with Wet’suwet’en law (Office of the Wet’suwet’en, n.d.). Anker (2016) describes the feast hall as “kin-based gift economies in which giving creates patterns of mutual indebtedness that calibrate social hierarchy and power, but in which what is valued is generosity, altruism, and kindness” (p. 39). According to the Law Commission of Canada (2006) “the feast system remains central to Wet’suwet’en government, law, social structure and world view” (p. 23).
Similar to many other First Nations in British Columbia, Wet’suwet’en never formally ceded their land to Canada (Bliss & Temper, 2018). Despite this, the Supreme Court ruled in Delgamuukw v. British Columbia that “Aboriginal title is a burden on the Crown’s underlying title”, and that British Columbia became subject to Canada’s legislative authority by entering confederation (Borrows, 1999, p. 4). The ruling in Delgamuukw v. British Columbia sustains legal framework that allows the Crown to extinguish Aboriginal title, despite claims of the existence of sovereignty prior to European occupation. The assertion of Crown sovereignty negatively influences Indigenous peoples by undermining “pre-existing Aboriginal land-use regimes through the sub structural placement of Crown title” (Borrows, 1999, p. 9). This remains a source of contention, as pipelines and other invasive projects are planned on Wet’suwet’en territory. Due to their reliance on the feast system, the Wet’suwet’en are particularly burdened by environmental disruptions as it also threatens their legal traditions.
Costal Gas Link, a corporation under TransCanada received court approval to construct an energy transport corridor through Wet’suwet’en territory (Bellrichard & Barrera, 2020). Five of the six band councils within the Wet’suwet’en Nation signed agreements in support of the project, however these councils have derived their authority from the Indian Act, which is not a traditional form of government (Bellrichard & Barrera, 2020). Wet’suwet’en’s hereditary chiefs are the leaders of the nation’s governance system and have inherited their role through their matrilineal line through the Potlatch system (Sterritt, 2019). They had said “no” to all oil and gas pipelines crossing the Wet’suwet’en lands and declared that no pipelines can be built without their consent (Sterritt, 2019). Despite government approval, Wet’suwet’en prevented workers from entering Wet’suwet’en territory and employed multiple other forms of resistance. For example, Wet’suwet’en hereditary chiefs issued eviction notices to Coastal GasLink citing Wet’suwet’en trespassing laws, trees were found blocking the service roads, and camps were established along the only service road that leads to the territory (Bellrichard & Barrera, 2020). In doing so, Wet’suwet’en expressed active resistance against colonial forces and continued to reassert their traditional laws, title, and rights over the territory.
In 2019, the Supreme Court ruled against Wet’suwet’en, permanently restricting Wet’suwet’en from blocking access to pipeline work sites (Dhillon & Parrish, 2019). Tait and Spice (2018), explain that the injunction “shows blatant disregard for Anuk Nu’at’en (Wet’suwet’en law) which pre-dates Canadian and provincial law, for the feast system of governance that upholds Anuk Nu’at’en, and for Aboriginal Title” (p. 1). Claims that the project was not approached with free, prior and informed consent led Wet’suwet’en and its supporters to continue engaging in active resistance through barricades and protests (Bellrichard & Barrera, 2020). The situation quickly escalated, as the Royal Canadian Mounted Police were sent in to enforce the injunction order and were prepared to shoot Indigenous land defenders under Bill C-51 (Dhillon & Parrish, 2019). Under the Anti-Terrorism Act, Bill C-51 “sanctions the criminalization of Indigenous environmentalists by enhancing surveillance and legal powers against any potential interference with Canada’s ‘critical infrastructure’ or ‘territorial integrity’” (Dhillon & Parrish, 2019). This Bill in particular demonstrates that the law continues to support colonialism at the expense of Indigenous people.
A brief overview of Wet’suwet’en’s legal traditions and recent conflict with the colonial State serves to illustrate the effects of colonialism on self-determination and sovereignty. By engaging in this conflict, the State expressed blatant disregard for Wet’suwet’en legal traditions, laws, and community authority. This demonstrates that the colonial State continues making preferential interpretations of laws, and in so doing supporting colonialism. By engaging in active resistance against the colonialist state and reasserting control over their traditional lands, the Wet’suwet’en and its supporters have successfully embodied the principles of decolonization.
Legal Personality in New Zealand
The Indigenous people of Aotearoa (modern day New Zealand) are collectively known as the Māori. Māori legal traditions are based on tikanga, which refers to a “system comprising practice, principles, process and procedures and traditional knowledge. It encompasses Māori law but also includes ritual, custom, and spiritual and socio-political dimensions that go well beyond the legal domain” (Jones, 2016, p. 23). Underlying these practices and principles are values that reflect respect for all living things and their interconnectedness (Jones, 2016). The philosophy behind Māori law is bound by cosmology and connections to the gods and spiritual worlds of the Māori knowledge systems (Jones, 2016). Māori legal traditions incorporate cosmologies that promote protective views of the environment and an obligation to nurture and protect the natural world without engaging any elements of ownership (Williams, 2019). Kaitiakitanga is a foundational concept within Māori legal traditions and refers to the ethic of stewardship and guardianship of the natural environment (Jones, 2016), as well as a spiritual element that represents an obligation for humans to nurture and provide care for the land that sustains life (Williams, 2019).
Like Canada, New Zealand is governed by settler-colonial law. As the population of British migrants increased in Aotearoa, plans for settlement on behalf of the British government were created (New Zealand History, n.d.). The British government sent individuals to establish law and order over the settler population and encouraged the Māori people to adopt the institutions of British governments (Jones, 2016). The Treaty of Waitangi was signed in 1840 between representatives of the British Crown and a group of Māori chiefs (New Zealand History, n.d.). The Treaty of Waitangi is known as New Zealand’s founding document and provided a framework for the relationship between the Māori and the settler government. This Treaty granted the Crown authority to establish a government in Aotearoa while protecting the property and authority of the Māori (Jones, 2016). According to Jones (2016), “self-determination and reconciliation underpin the treaty” (p. 7). The concept of rangatiratanga was expressed in the Treaty of Waitangi as the spiritual element within the Māori worldview, which broadly translates in English as the right to self-determination and sovereignty (Williams, 2019). Williams (2019) points out that although rangatiratanga is expressed in the Treaty of Waitangi, it has always been “a point of contention for Maori-Crown relations” (p. 165). While the English believed they were guaranteed ‘undisturbed possession’ of property, the Māori believed they were “giving up government over their lands but still retaining the right to manage their own affairs” (New Zealand History, n.d.). Due to differences in worldview, the Treaty of Waitangi is interpreted differently by the Māori and English which has led to disagreements with respect to governance.
Settlers established common law systems centered around ownership of land and the individual (Williams, 2019). Settler-colonialists imposed British-influenced legal systems and an anthropocentric approach to property (Williams, 2019). Anthropocentrism refers to the notion that humans are supreme over nature (Williams, 2019). Unlike the settlers, the Māori “had no concept of absolute ownership of land, and the idea of exclusion and boundaries are very rare” (p. 159). Anthropocentrism is foreign to Māori legal traditions, as “indigenous gods and spirits represent and inhabit the natural world, from mountains, rivers, and other landscape features to the animal and plant world today” (Magallanes, 2015, p. 280). As such, “humans are not seen as having any rights or even ability to completely dominate nature and are instead seen as its guardians” (Magallanes, 2015, p. 281). Under the Treaty of Waitangi, the Māori text failed to refer to the Crown’s exclusive right to buy land from the Maori, whether the Māori were willing to sell or not (Magallanes, 2015). William (2019) indicates that “Māori ‘sellers’ believed that the settler-colonial ‘buyers’ were simply making a gift to them in order to live and share the land with them” (p. 159). Due to discrepancies in worldview, the settler government and Māori went to war over land use and sale violations (Magallanes, 2015). Upon winning the war, the settler government confiscated large amounts of Māori land and continued to impose authority over the Māori, breaching guarantees of possession of land, estates, forests and fisheries as well as restricting their autonomy and use of natural resources (Magallanes, 2015).
Māori cosmology has been integrated in New Zealand law as a part of the settlement of Māori grievances from the “colonization of New Zealand and the subsequent loss of Māori control over their lands, waters and their treasured natural resources” (Magallanes, 2020). Recently, New Zealand has developed a legal framework granting legal personality to land and natural objects. According to Magallanes (2020), “the legal recognition of Maori tribal cosmology – including the personality of nature as their ancestors – was thus one way of acknowledging and returning traditional control over these aspects to Maori” (para. 4). Personhood has been granted to a number of natural objects in New Zealand, including Te Urewera, Te Awa Tupua, Mount Taranaki, and The Whanganui River. This means that these natural objects are conceived as a person, with rights, powers, duties and liabilities of a legal person (Williams, 2019). In granting legal personality, the geographic objects are protected from injury and have legal standing in a court of law (Williams, 2019). The constitutional protection of environmental landmarks “represents a movement towards decolonization of land and marks an assertion of rights and decision-making” over ancestral Indigenous lands (Williams, 2019, p. 170). These objects no longer exist in the settler-colonial context, in that neither the Māori or New Zealand government owns nor claims property rights over them (Williams, 2019). Operationally, these geographic objects are managed by relatively similar governing bodies and boards comprised of human guardians (Māori and Crown) that seek to act on the behalf of the natural object all the while providing an avenue for Māori groups to practice rangatiratanga and kaitiakitanga (Williams, 2019). In governing these natural objects, an emphasis is placed on environmental protection and the prevention of injury in the form of pollution rather than property rights and ownership (Williams, 2019).
Williams (2019) argues that “Aotearoa New Zealand has illustrated and codified a national commitment to incorporating Māori cosmologies into its legal system where practical” (p. 167). Multiple scholars have indicated that legal personality has been offered as response to contests of authority over land (Sanders, 2018; Williams, 2019; Jones, 2016). Rather than transferring title back to the Māori group traditionally owning the land, legal personality has been offered as way for the government to give up title without returning it to the Māori (Sanders, 2018). While legal personality in and of itself is a Western legal concept, it does express fundamental ideas embedded in Māori legal traditions such as kaitiakitanga and non-ownership (Jones, 2016).
Granting legal personality is an approach to environmentalism that reinforces Indigenous legal traditions. Recognizing Māori cosmologies within the context of settler common law demonstrates a decolonial approach to ownership not possible under most settler governments. Granting legal personality to landmarks and sacred sites on Crown land guarantees environmental protections and provides Indigenous groups with the opportunity to govern geographical locations that were forcibly taken from them by colonial powers. This would also serve as a blanket to protect elements of the environment that are fundamental to exercising Indigenous legal traditions. As the environment continues to serve as a foundation for Indigenous legal traditions, granting legal personality would serve to protect them.
Legal Personality in Canada
Following New Zealand’s advancements in conservation and environmental law, many began to advocate for similar legal rights to be granted to natural objects and ecosystems. In granting such rights, these entities are given intrinsic value, which demonstrates a shift away from colonist ideologies based on ownership and exploitation. In February 2021, legal personhood was granted for the first time in Canada to the Magpie River, a wild river renowned for whitewater activities. The Magpie River is located on Nitassinan, the traditional ancestral territory of two Innu communities in Quebec’s Cote-Nord region, Ekuanitshit and Uashat mak Mani-utenam. Referred to as Muteshekau-Shipu in Innu, the river has been a source of traditional Innu activities and land-based practices (Canadian Parks and Wilderness Society, n.d.). The river has been threatened by proposed hydroelectric activities, causing distress to those who rely on the river for traditional activities (Canadian Parks and Wilderness Society, n.d.). The proposed activities would have negative impacts on the environment such as mercury and methane pollution and would disrupt aquatic ecosystems (Canadian Energy Research Institute, 2004).
Through the work of the the Muteshekau-shipu Alliance, which includes First Nations, municipalities, environmental groups and citizens, the Muteshekau-Shipu river was granted nine legal rights: the right to flow; the right to respect for its cycles; the right for its natural evolution to be protected and preserved; the right to maintain its natural biodiversity; the right to fulfil its essential functions within its ecosystem; the right to maintain its integrity; the right to be safe from pollution; the right to regenerate and be restored; the right to sue (Stuart-Ulin, 2021). Included in the resolution, is that the river is to be represented by the Innu and guardians appointed by the municipality (Lowrie, 2021). Chief Pietacho of the Innu Council of Ekuasitshit, expresses Indigenous values associated with recognizing such rights, “The Creator put us on this piece of territory called Nitassinan, which encompasses all these rivers, all these mountains, all these trees… The Innu people always believed that you had to protect the earth. It’s water – it’s life” (Kestler-D’Amours, 2021).
The nine rights granted to the river were put forward by the municipality of Minganie and the Innu Council of Ekuanitshit, both part of the The Muteshekau-shipu Alliance. While the resolution may have strength in a court of law, the province of Quebec has yet to grant the river official protected status. Many speculate that this is deliberate due to the river’s potential for hydroelectric power (Lowrie, 2021), which raises questions as to whether these rights will be respected when they conflict with Hydro-Quebec, a provincial provincially owned corporation, or other government motives. While this new piece of legislation is a celebration for Indigenous people and environmental conservationists, it is too soon to tell whether these rights will be valued and respected when they infringe on provincial or even federal projects.
Conclusion
Active resistance against the colonial state on behalf of the Wet’suwet’en and the recognition of Māori legal traditions in New Zealand law has reinforced the notion that Indigenous laws rely upon a connection to the land and natural resources. Legal personality has been formally recognized in Canada for the first time and while the resolution is not constitutionally recognized as is in New Zealand, it nonetheless formally acknowledges Indigenous values in a Western system of governance. As Monchalin (2016) explains, “people are the land, the language comes from the land, and thus teachings reflect place, connection and way of life with the land” (p. 24). The relationship that Indigenous people have with the land reflects a particular nomos that is in conflict with colonial law. As it stands, the law is interpreted as a function of the social norms and values of the mainstream settler ideology that created them. This paper has demonstrated that colonization severely restricted Indigenous people’s ability to practice their long-established legal traditions. Language, ceremony, and Elders are at the foundation of Indigenous legal traditions and were systemically targeted by assimilative polices. Since Indigenous legal traditions are heavily entrenched in land-based linguistic identities, there is a clear connection between Indigenous legal traditions and the environment. Analyzing the exercise of Indigenous laws and the right to self-determination in the post-colonial context demonstrates that colonialism continues to restrict the exercise of Indigenous legal traditions. Decolonization has been offered as an approach to revitalizing Indigenous laws and confronting colonial systems of governance. This paper has explored legal pluralism and the disruption of current governance structures as two methods of decolonization and has offered regaining control of the land through legal personality as a method to decolonize law. It is important to recognize that Indigenous groups will have different approaches to decolonization depending on their unique circumstances and environments; however, no matter which approach is taken, revitalizing Indigenous legal traditions begins with regaining authority over the land.
Limitations
The case made for the dependency on the environment for the revitalization of Indigenous legal traditions in Canada must be interpreted with caution and a few limitations borne in mind. First, thorough investigations into this issue have been constrained by deadlines. These time constraints may potentially have negative impacts on the depth and analysis of the research. Secondly, the conclusions were derived based on an analysis of research and literature that has been conducted by other scholars in the field of decolonization, colonization, and environmentalism. Very few sources speak to the specific connection between Indigenous legal traditions and the natural environment and even fewer address this connection in a decolonial context. There is a literature gap as regards environmental approaches to decolonizing law in the Canadian context; this topic requires further study.
Discussion Questions
- Do you think environmentalism and conservation are essential to the practice of Indigenous legal traditions? If so, should environmental protections be included in Aboriginal law?
- Consider legal personality. How would you apply it in Canada? Consider the perspective of various Indigenous groups and/or approaches taken by other countries (e.g., New Zealand, Ecuador, India, etc.).
Recommended Activities
- Watch the documentary “INVASION.”
- Consider the impact of pipelines on Indigenous legal traditions.
- https://www.youtube.com/watch?v=D3R5Uy5O_Ds
Recommended Readings
- Borrows, J. (2005). Indigenous legal traditions in Canada. Washington University Journal of law and policy, 19, 167-223. https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1380&context=law_journal_law_policy
- Manley-Casimir, K. (2012). Incommensurable legal cultures: Indigenous legal traditions and the colonial narrative. Windsor Yearbook of Access to Justice, 30(2), 137-161. https://doi.org/10.22329/wyaj.v30i2.4373
- Monchalin, L. (2016). The colonial problem: An indigenous perspective on crime and injustice in Canada. Ontario: University of Toronto Press.
References
Alfred, T. (2017). It’s all about the land. In P. McFarlane & N. Schabus (Eds.). Whose land is it anyway? (pp. 10-13). Federation of Post-Secondary Educators of BC.
Anker, K. (2016). Reconciliation in translation: Indigenous legal traditions and Canada’s truth and reconciliation commission. Windsor Yearbook of Access to Justice, 33(2), 15-43. https://ojs.uwindsor.ca/index.php/WYAJ/article/view/4842
Bellrichard, C. & Barrera, J. (2020, February 5). What you need to know about the Coastal GasLink pipeline conflict. CBC News. https://www.cbc.ca/news/indigenous/wet-suwet-en-coastal-gaslink-pipeline-1.5448363
Bliss, S. & Temper, L. (2018). The indigenous climate justice of Unist’ot’en resistance. In J.S. Gaarsmand (Ed.), Climate Justice and the Economy. Routledge.
Borrows, J. (1999). Sovereignty’s alchemy: An analysis of Delgamuukq v. British Columbia. Osgoode Hall Law Journal, 37(3), 537-596.
Borrows, J. (2005). Indigenous legal traditions in Canada. Washington University Journal of law and policy, 19, 167-223. https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1380&context=law_journal_law_policy
Canadian Energy Research Institute (2004). Environmental Impacts of Hydro Power. Environment Canada. http://www.energybc.ca/cache/runofriver/www.ec.gc.ca/energie-energy/defaultc410.html
Canadian Parks and Wilderness Society (n.d.). For the first time, a river is granted official rights and legal personhood in Canada. https://cpaws.org/for-the-first-time-a-river-is-granted-official-rights-and-legal-personhood-in-canada/
Cover, R. (1982). The Supreme Court 1982 term: Forward: Nomos and narrative. Yale Law School.https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3690&context=fss_papers
Dacks, G. (2004). Implementing First Nations self-government in Yukon: Lessons for Canada. Canadian Journal of Political Science, 37(3), 671–694. https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0008423904030367
Dhillon, J. & Parrish, W. (2019, December 20). Exclusive: Canada police prepared to shoot Indigenous activists, documents show. The Guardian. https://www.theguardian.com/world/2019/dec/20/canada-indigenous-land-defenders-police-documents
Dominguez, L. & Luoma, C. (2020). Decolonising conservation policy: How colonial land and conservation ideologies persist and perpetuate Indigenous injustices at the expense of the environment. Land, 9(3), 1-22. https://doi.org/10.3390/land9030065
Gottesfeld, L. (1994). Conservation, territory, and traditional beliefs: An analysis of Gitksan and Wet’suwet’en subsistence, Northwest British Columbia, Canada. Human Ecology, 22(4), 443-465. https://www.jstor.org/stable/4603144
Hele, K. (2021). Indigenous elders in Canada. The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/indigenous-elders-in-canada
Hobbes, T. (1651). The Leviathan. University of Washington. http://courses.washington.edu/hsteu302/Hobbes%20selections%20(edited).htm
Howitt R. (2020). Decolonizing people, place and country: Nurturing resilience across time and space. Sustainability, 12(15), 1-16. doi:10.3390/su12155882
Indigenous Corporate Training. (2012). Potlach ban: Abolishment of First Nations ceremonies. https://www.ictinc.ca/the-potlatch-ban-abolishment-of-first-nations-ceremonies
Jones, C. (2016). New treaty, new tradition: Reconciling New Zealand and Māori law. UBC Press.
Kestler-D’Amours, J. (2021, April 3). This river in Canada is now a ‘legal person’, Aljazeera. https://www.aljazeera.com/news/2021/4/3/this-river-in-canada-now-legal-person
Law Commission of Canada. (2006). Justice within: Indigenous legal traditions. Government of Canada. http://publications.gc.ca/site/eng/9.667883/publication.html?wbdisable=true
Lowrie, M. (2021, February 28). Quebec river granted legal rights as part of global ‘personhood’ movement. CBC. https://www.cbc.ca/news/canada/montreal/magpie-river-quebec-canada-personhood-1.5931067
Magallanes, C. (2015). Maori cultural rights in Aotearoa New Zealand: Protecting the cosmology that protects the environment. Widener Law Review, 21(2), 273-327. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2677396
Magallanes, C. (2020). Nature as an ancestor: Two examples of legal personality for nature in New Zealand. Victoria University of Wellington Legal Research Paper, 10(16), 1-19. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3532319
Manley-Casimir, K. (2012). Incommensurable legal cultures: Indigenous legal traditions and the colonial narrative. Windsor Yearbook of Access to Justice, 30(2), 137-161. https://doi.org/10.22329/wyaj.v30i2.4373
McGuire, M. & Palys, T. (2020). Toward sovereign indigenous justice: On removing the colonial straight jacket. Decolonization of criminology and justice, 2(1), 59-82.
Merryman, J.H. (2000). The civil law tradition: Europe, Latin America and East Asia (2nd ed.). Stanford University Press.
Monchalin, L. (2016). The colonial problem: An indigenous perspective on crime and injustice in Canada. University of Toronto Press.
Moulton, M. (2016). Framing aboriginal title as the (mis)recognition of Indigenous law. University of New Brunswick Law Journal, 67, 336-368. https://heinonline.org/HOL/LandingPage?handle=hein.journals/unblj67&div=17&id=&page=
Napoleon, V. & Friedland, H. (2015). Indigenous legal traditions: Roots to renaissance. In M. D. Dubber & T. Hörnle (Eds.). The Oxford Handbook of Criminal Law (pp. 1-20). Oxford University Press.
New Zealand History. (n.d.). The Treaty in brief. https://nzhistory.govt.nz/politics/treaty/the-treaty-in-brief
Office of the Wet’suwet’en. (2013). Wet’suwet’en Title and Rights regarding Canada Department of Fisheries & Oceans and Pacific Trails pipeline. Office of the Wet’suwet’en. http://www.wetsuweten.com/files/PTP_FHCP_Response_to_DFO-25Nov13-Final.pdf
Office of the Wet’suwet’en. (n.d.). Governance. http://www.wetsuweten.com/culture/governance/
Palmater, P. (2017). Decolonization is taking our power back. In P. McFarlane & N. Schabus (Eds.). Whose land is it anyway? (pp. 74-78). Federation of Post-Secondary Educators of BC.
Parrott, Z. (2020). Indigenous peoples in Canada. The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/aboriginal-people
Reynolds, J. (2018). Aboriginal peoples and the law: A critical introduction. University of British Columbia Press.
Royal Commission on Aboriginal Peoples. (1996). Looking forward, looking back. Canada Communication Group Publishing.
Sage, C. & Woolcock, M. (2012). Introduction: Legal pluralism and development policy. In B.Z. Tamanaha, C. Sage & M. Woolcock (Eds.), Legal pluralism and development: Scholars and practitioners in dialogue (pp. 1-17). Cambridge University Press.
Sanders, K. (2018). Beyond human ownership? Property, power and legal personality for nature in Aotearoa New Zealand. Journal of Environmental Law, 30(2), 207-234. https://doi.org/10.1093/jel/eqx029
Sterritt, A. (2019). When pipelines companies want to build on Indigenous land, with whom do they consult. CBC Radio. https://www.cbc.ca/news/canada/british-columbia/when-a-pipeline-wants-to-build-whose-in-charge-1.4971597
Stuart-Ulin, C. R. (2021, March 4). QC Magpie River becomes first in Canada to be granted legal personhood. Atlantic Salmon Federation. https://www.asf.ca/news-and-magazine/salmon-news/qc-magpie-river-becomes-first-in-canada-to-be-granted-legal-personhood
Tait, K. & Spice, A. (2018, December 12). An Injunction Against the Unist’ot’en Camp: An Embodiment of Healing Faces Eviction. Yellowhead Institute. https://yellowheadinstitute.org/2018/12/12/an-injunction-against-the-unistoten-camp/
Truth and Reconciliation Commission. (2015a). Canada’s residential schools: The history, part 1 origins to 1939. https://ehprnh2mwo3.exactdn.com/wp-content/uploads/2021/01/Volume_1_History_Part_1_English_Web.pdf
Truth and Reconciliation Commission. (2015b). Canada’s residential schools: The legacy. https://nctr.ca/assets/reports/Final%20Reports/Volume_5_Legacy_English_Web.pdf
West Coast Environmental Law. (n.d.). Indigenous Law. https://www.wcel.org/program/indigenous-law
Williams, B. (2019). Reconceptualizing Entrenched Notions of Common Law Property Regimes: Maori Self-determination and Environmental Protection through Legal Personality for Natural Objects. Buffalo Environmental Law Journal, 26(1), 157-181. https://digitalcommons.law.buffalo.edu/belj/vol26/iss1/5
Wolfe, P. (2006). Settler colonialism and the elimination of the native. Journal of Genocide Research, 8(4), 387-409. https://doi.org/10.1080/14623520601056240.