David Asper Centre for Constitutional Rights Law Symposium for Canada’s Sesquicentennial
Articles,  Blog

David Asper Centre for Constitutional Rights Law Symposium for Canada’s Sesquicentennial


Welcome back, everybody. As I mentioned this morning,
this workshop series began in January of this year. It started with a lecture by
the Ontario Chief Justice, George Strathy, focusing on
judicial courage and restraint in constitutional litigation
throughout Canada’s history. And while his paper did not
touch on indigenous rights in Canada, it was a remark
he made during the question and answer portion of his
presentation that did, the remark that judges
should demonstrate humility and humanity when dealing with matters involving indigenous peoples in order to work toward reconciliation. To quote him, he said that
we ought to have the humility to recognize what we have done wrong, how to confront the issue and
to understand the experiences of the individuals who
have been harmed in order to engage in a respectful dialogue to address the injustice of the past. Today, I am pleased that we
are able to conclude our series with a lecture by Professor
John Borrows on the topic of Section 35(1) of the constitution, the U.N. Declaration on the Rights of Indigenous Peoples and
indigenous legal traditions. Professor Borrows’ biography
is included in the program. There’s still copies down here. I’m sure that everbody’s picked one up. And I’m well aware that he
has many long-time friends in the faculty who are all here, and so I don’t propose to give a lengthy biographical introduction. My own recent acquaintance
with Professor Borrows came through the indigenous law retreat that he has organized for
a number of law schools now at his home territory at Cape Croker. I think I can speak for all
the students and faculty who attended in saying that
we were incredibly grateful for what John, his family, and
his community shared with us in regards to Anishinaabe
law and traditions and as well as the overall generosity of the community that we were amidst. I highly recommend to faculty and students who have not yet participated
to do so next year should he still be offering
the course of course. So by way of a brief introduction, I will say that Professor Borrows is a distinguished scholar
and beloved teacher. He is a recipient of a number of awards that recognize his numerous achievements, and just this week was
giving the Priestley lectures here at the University of Toronto. So I hope and expect
he still has something to say to us today and
I ask you to join me in welcoming him to close out our sesquicentennial series. (applause) (speaks in a foreign language) I am grateful to be
able to stand here today on Taddle Creek and remember
the beauty of this place and the memories that I have
as having been a student here and a faculty member
here and for the friends that I’ve made through coming
to the Anishinaabe law camp or those that I’ve worked
with in various capacities. I’m also grateful to be
able to speak in the context of this subject in terms of
Canada’s sesquicentennial, and I wanna talk about, as was mentioned, this notion of United Nations Declaration on the Rights of Indigenous
Peoples in the context of section 35(1) of the constitution. As you may know, over 20 years ago now, the Supreme Court of
Canada created a fiction, a fiction that said aboriginal rights could only be recognized
and therefore grow if they arose prior to European contact. This was the Van der Peet case, and it prevented aboriginal peoples, it prevented indigenous peoples from claiming constitutional
rights related to practices, customs, and traditions that developed after European arrival. This idea has stunted Canada’s
constitutional evolution and aboriginal peoples have not been able to persuade the courts or
legislatures by and large that they have constitutionally
protected rights to governance, education,
healthcare, justice and so on. And as a result, we have been cut off from taking appropriate
responsibility for our affairs as indigenous peoples because
we’ve had difficulty proving that these activities,
justice, education, healthcare, governance, were integral
to our distinctive culture prior to the arrival of Europeans. We cannot shield crown action
in relationship to these areas and so you read that
64% of the kids in care in British Columbia right
now are indigenous children, 90% percent of the people
in prison right now in Saskatchewan are indigenous people. The statistics just go on and on. Now, we do have the United
Nations Declaration on the Rights of Indigenous Peoples, which
could cause us to recalibrate and reconsider what we’re
doing in this field, and in fact, reject
constitutional distinctions based on pre or post contact
assertions of sovereignty. I’m going to argue that
UNDRIP’s application to indigenous peoples does not rest on pre-proof contact or pre-non-native or pre-sovereign assertions
of non-native people. Rights, this documents
suggests, are vested in peoples. In fact, that’s the
wording of section 35(1), peoples are the subject, the
existing aboriginal entreaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. Therefore, our constitutional
document combined with UNDRIP should draw from
the international meaning of peoples and regard us as existing within this political categorization. The exercise of these
rights under UNDRIP and, I would argue too under section 35(1), should not be contingent
on a non-indigenous event such as European contact or the assertion of their sovereignty. So article one of UNDRIP exemplifies this broad-based approach. It says indigenous peoples have the right to the full enjoyment as
collectives or as individuals of all human rights and
fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law. So the incorporation of
universal human rights standards in the recognition of
indigenous law and governance is an important step in rejecting pre and post-contact distinctions found in the Van der Peet case. There’s also his companion case
which Richard talked about, the Pamajewon Case, it held
that aboriginal peoples do not have the broad right to manage
and use their reserve lands because any asserted right to
self-government must be looked at in the light of the specific
circumstances of each case and in particular in light
of the specific history and culture of the aboriginal
group claiming the right Since in the Pamajewon Case,
the high stakes gambling at issue was not regarded
as being integral to our distinctive culture
prior to European arrival, the Supreme Court of
Canada applied Van der Peet to find that we could not claim governance over the right to economic
development in that fashion in our lands in the present day. So restricting aboriginal
rights to historic analogies prevents aboriginal peoples from governing in a contemporary context. Since many governance fields
will not rest on practices that were central to them
when Europeans arrived, this is a form as I’ve
argued in other places, of constitutional
originalism, which is contrary to Canada’s living tree jurisprudence. Freezing the development
of aboriginal rights at the magic moment of
European contact is also, as I’m saying, contrary to UNDRIP. Now fortunately, Canada
has made statements about adopting UNDRIP. In 2010, Canada passed a
statement of support for UNDRIP, which stated that by endorsing UNDRIP, Canada was reaffirming its
commitment to build on a positive and production relationship
with first nations, Inuit and Metis people, to improve the wellbeing of aboriginal Canadians
based on our shared history, respect and desire to move forward. Then in 2016, Minister of
Indigenous and Northern Affairs, Carolyn Bennett, further announced that the United Nations declaration would, and this is the quote, through section 35 of its constitution, apply
to Canada with this robust framework for the protection
of indigenous rights. She said, we intend
nothing less than to adopt and implement the
declaration in accordance with the Canadian constitution. By adopting and implementing
the declaration, we are excited that we are
breathing life into section 35 and recognizing it as a full box of rights for indigenous peoples
in Canada, end quote. This full box approach
should also cause courts and governments to reject pre
and post contact distinctions in implementing aboriginal rights. So, where’s the law? Well, the minister’s promise
to adopt and implement UNDRIP in a constitutional context,
that’s what she said, right? It’s gonna come into section 35(1), puts the crown’s honor
squarely on the line. As the Supreme Court of Canada
wrote in the Badger case, the honor of the crown is always at stake in its dealings with Indian people. Minister Bennett’s pledge
to implement UNDRIP in order to breathe
life into section 35(1) must lead the crown to work diligently towards the fulfillment of her promises. Right, in the Manitoba Metis
Federation Case, the fact that the government didn’t work diligently to fill the promises to the Metis people, lead to their dispossession of those lands and their diaspora, and the
Supreme Court of Canada said that that was contrary to
the honor of the crown, not to act diligently
when promises were made. As the Supreme Court wrote
in the Haida Case, quote, in all its dealings
with aboriginal peoples, from the assertion of
sovereignty to the resolution of claims and implementation of treaties, the crown must act honorably. Failure to advance in this way, UNDRIP, governance under section 35, would be a serious setback for
indigenous/crown relations. Now the role of international
law in Canada’s constitution should also just play a
general interpretive effect. Although international
norms are not binding without legislative
implementation, such norms should be relevant for
interpreting rights domestically. There’s the Sharpe case talks about that, other cases talk about republic
service, talks about that. And while UNDRIP therefore
doesn’t have this binding effect because of its status as a declaration, it should nevertheless inform
the crown’s interpretation and implementation of the constitution. For instance, the crown
could use its powers to make arguments before the courts to directly insert UNDRIP
into submissions related to aboriginal entreaty
rights and rejecting pre and post contact
distinctions in the process. The crown could do the
same thing when developing and enacting statutes and
policies to ensure that UNDRIP is the standard which animates
its actions in the House of Commons, Senate,
Cabinet and Ministries. You might be aware of ten
principles that the Ministry of Justice recently
promulgated that encourage and require members of
the Department of Justice to adhere to UNDRIP and
associated principles. When the crown fully
embraces UNDRIP’s provisions, these pre and post contact assertions can be more readily rejected. So there is such an important
part here that we need to think about constitutionalism
that goes beyond what the courts will do
in acting in this context. Let’s think of some other provisions of UNDRIP’s articles four and five. Article four states indigenous peoples in exercising their right
to self determination have the right to autonomy
or self-government in matters relating to their internal and local affairs as
well as ways and means for financing their autonomous functions. Article five says indigenous
peoples have the right to maintain and strengthen
their distinct political, legal, economic, social
and cultural institutions while retaining their
right to participate fully if they so choose in the
political, economic, social and cultural life of the state. This is something the Hawthorn Report said way back in the 60s,
that indigenous peoples can be considered citizens plus. There’s a huge contrast
here in what Pamajewon says and what Van der Peet would say as you look at articles four and five. Article 27 supports this conclusion. It reads states shall
establish and implement, in conjunction with
indigenous peoples concerned, a fair, independent, impartial, open and transparent process,
and here’s the point I like, giving due recognition to
indigenous peoples’ laws, traditions, customs, land tenure systems to recognize and adjudicate the
rights of indigenous peoples pertaining to their lands,
territories, resources, including those which
were traditionally owned or otherwise occupied or used. And it concludes indigenous peoples shall have the right to
participate in this process. So this standard article 27 recognizes indigenous peoples’ laws in
their adjudicative processes, internally and externally
in their relationship with the broader Canadian state. Now Canada has arguably
in the Tsilhqot’in Case, can point to some places
where that recognition of indigenous law and
governance may be implicit. In the Tsilhqot’in case,
dealing with aboriginal title in British Columbia, elders
testified about the continuity of their life ways and they
did this in their own language using their own legal traditions. Indigenous law, therefore, was key in establishing a
sufficiency of occupation, that is a sufficiency of
indigenous social organization, and it went to prove title. Tsilhqot’in rules of conduct
were central to proving that the Tsilhqot’in people
historically and presently occupy land in the contested region. They affirmed, therefore, that
indigenous legal traditions can give rise to enforceable obligations within Canadian law. In one way, you could
say social organization could be treated as a
synonym for self governance. When a nation organizes itself socially on a territorial basis,
and through its own laws, and controls lands, and
makes decisions about its use and exercise, and excludes
others, we could conclude that such a nation governs itself. So that’s the ways that there could be a questioning of the pre and post contact distinctions
as a result of UNDRIP. But there’s also another
direction that UNDRIP can point, which is back home to our
reserves, our communities, our hamlets, the places we
live as indigenous peoples. Article 18 says in UNDRIP,
indigenous peoples have the right to participate in
decision making in matters which would effect their rights through representatives
chosen by themselves in accordance with their own procedures, as well as to maintain and
develop their own indigenous decision making institutions, end quote. So the adoption of UNDRIP clears the path for a more explicit
recognition and application of indigenous law within
Canada in this internal way. As part of this development,
indigenous peoples could also implement
UNDRIP in their own nations to ensure that our own
people are also empowered by and protected from our own governments. In this respect, UNDRIP
would be further entrenched as a part of Canada’s
indigenous constitution. UNDRIP is, by and large,
an indigenous instrument. It was created broadly by
indigenous peoples as it was negotiated for more than
30 years at the United Nations. Internal adoption of UNDRIP’s
principles would positively and radically challenge the calibration of indigenous governance,
particularly governance that recognizes this
problematic categorization of pre and post contact. So rights that are found in
UNDRIP which could be available to self-governing indigenous
nations are as follows, let’s see, the rights to the full
enjoyment as a collective or as individuals of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law. Like we should be able
to claim these things in relationship to our
own governments too. Under this view, it would
not be contrary to the spirit of UNDRIP to recognize
that indigenous governments have obligations in
relations to individuals and collectives that fall
within their jurisdiction. The adoption of this instrument in this way would reinforce that view. I think it would be tragically
ironic if nation states began recognizing and
protecting the rights of indigenous individuals
while indigenous governance did not take the same action. Now in adopting this
instrument, it’s very important that it be picked up in
accordance with the languages, the traditions, the customs
of the particular nations of which it would be a part. I have a colleague, David Milward, who teaches at the University
of Manitoba Law School, whose looked at sections
eight to 14 of the charter, and he’s argued that if
indigenous peoples were to apply those provisions, what
goes on in that application, might look different in some respects to the way the Canadian
courts apply these concepts. Just as Canada or the
United States or Australia or New Zealand would pick up
differently its obligations as its implementing those instruments, in recognition of the
particular cultural differences, legal differences that
we have amongst ourselves as nation states, so it would be the case that indigenous peoples
would frame their adoption in ways that make sense
that would be persuasive in the places that they’re meant to apply. What are some of the
expectations that individuals within indigenous nations might be able to expect from their governments? Well rights to religion,
spiritual beliefs and practices, speech and expression,
association, life, liberty and security, property,
family togetherness, a right not to be discriminated against by their governments, the
privileges and immunities of citizenship, language,
education, labor fairness, administrative law provisions
like notice, fairness, hearing, healthcare, gender equality. These apply in accordance
with the limitations imposed by law within indigenous
communities and also in accordance with international law, there would be some
kind of proportionality that could be thought
about and a feast house on the west coast would work one way and the Mi’gmaq settlements, communities in the Atlantic provinces
work another way. It’s important to recognize
that while these laws were enumerated so as to
apply against nation states, I don’t see a lot of good
reasons for restricting their reach and not
having them apply within. Now again, I just really
do need to repeat this. Widespread support
amongst indigenous peoples in the drafting and
ratification of this document, along with the now near
unanimous acceptance of the United Nations,
signals expectations that human rights not only
of communities but also of indigenous individuals
must be respected. It is arguable that this is
the case no matter the source of government authority that
impacts upon these individuals. If we wanna play in that field of nation to nation relationships, we need to get serious about
how these considerations should be a part of the
way we organize ourselves. I wanna conclude with a short story. As was mentioned, I was able to host three Anishinaabe law
courses at Cape Coker the reserve that I’m from about three hours north
of here during September. Some McGill law students
came for four days and then the subsequent week, University of Toronto students and
faculty members came and then we had Osgoode
Hall come and join us and judges and benchers and law professors were a part of that gathering. I had an interesting experience though. One morning, my daughters,
one of my co-teachers and we were running on the reserve and it’s a beautiful place,
amazing limestone escarpments frame the backdrop everywhere you look, the water is ever-present
as it sort of winds in and out in those bays,
there’s broad stone beaches that are filled with fossils
and the sort of grasses and tress are just verdant and bright. We were running along our prairie road, an area where there’s some grasslands, and as I was running along the road, I saw some activity up ahead,
and I wondered what that was, and as I got closer, I saw oh, there’s a couple of police officers there, maybe something’s not right,
and I got closer again, and I see they’re holding
their rifles in their hands, and so now I’m upon them
and I see that they’re there with those rifles because
this story unfolded in another dimension a
couple of hours earlier. Nick, one of our fishers, a
member of the band council, went out about six o’clock in the morning and he was preparing
to go pull in his nets and so he was putting
all his boxes in the boat and loading it up with
gas, and he was hearing all of this splashing that
was occurring in the water and he thought oh, he could
sort of see there’s maybe a dog out about 15 feet beyond the shore, so he didn’t give it a lot
of thought, because dogs are everywhere on the
reserve and so he just pushes out his boat and he draws
close to the commotion and he thinks that it’s a dog for a second and then he notices that’s
not a dog, that’s a bear. And there’s a bear in the water, and the bear’s actually floundering. It’s got its head in a plastic bucket and it’s squeezed around its
neck and it’s gonna drown and it just doesn’t know which way to go, so Nick applies Anishinaabe
law, rescues the bear. He puts his hands over the side of the gunnels of the boat
and with some great effort, he hauls the bear into the boat. (audience laughs) So there you are 15 feet offshore with a bear in your boat. Now it’s a smaller bear, maybe
it’s 120 pounds or something, but it’s still got the claws,
it still can do some damage, so he pulls back to the
shore, pulls the bear out of the boat to try to think about what he can try to do to help it, and what do you know but
the bear goes right back into the water, and there
it is swimming around, again 15 feet out, so he has to go through this same thing again, launch out, put the bear into the boat, come back. This time, he thinks what
can I do to help this bear, and so he’s got one of
those nylon yellow ropes, and he ties it around one
of the arms of the bear and around the chest of the
bear, great solution, right? Pulls the bear out of the
boat, bear starts to take Nick for a walk, and so they’re
going up and down the shore and this bear is just full of
trauma and it’s very strong, and before you know it, he’s crashing through the woods, and these woods are not sort of high canopy,
easy to walk through. He’s getting scratched and torn and the bear’s getting further
wearied as this is going on, and wouldn’t you know it
but the mother shows up. You don’t want to be between
a mother bear and her cub, but for some reason, she
held her distance as Nick and the bear were walking
one another in the morning. So this is at the point where
I happen onto the scene. The police are standing
there with these rifles, Nick is standing there with
this bear on the edge of a rope, and we’ve called the Ministry
of Natural Resources, but they’re an hour and a
half away down in Markdale. So what are we gonna do? This bear is, it’s really really wearied and you can tell that the
trauma is just significant. I kind of understand why they
sometimes talk about bears in the circus, because it
was rolling around in ways that you wouldn’t think
was possible for an animal. Every once in a while, it
would just take a rest, and in those moments of rest,
there was some implements to try to cut the bear out of the bin. And so they worked on that and eventually they got the right implements,
and they were successful, they were able to cut
the bear out of the bin. Great news, problem solved, except now you’ve got a bear with
teeth on the end of a rope. (audience laughs) And how do you release the rope? You can’t just go up and say excuse me for a second while I untie, right. And so this bear is at
the end of the rope from about here to those chairs
and the only reason Nick is safe is because the bear doesn’t really want to have
anything to do with Nick. It’s just staying its
distance as much as possible and of course Nick
wants it to be that way. There was one occasion though the bear did come and latched onto Nick. He had these fishing
boots up to his knees, thick thick rubber, went
through those boots, went through his leg,
just like it was paper. And so this is a very
serious situation now, and fortunately the bear
climbs up a tree at one point and as the bear’s resting in the tree, finally, the Ministry of
Natural Resources comes along and they then take about 15 minutes, because they have to judge
the size of the bear, prepare a potion that would
put that bear to sleep, so they get one of those long silver rods with a needle at the end with the potion, and they put the bear,
they stick in the bear, and then eventually it goes to sleep. All the while, the mother’s just standing off in the distance, watching this happen, and they tag the bear, the
bear about half an hour later, wakes up, obviously taken the rope off and the bear is reunited with
its mother, so happy ending. For Anishinaabe people, when
we engage in legal reasoning, we try to look at what is
happening in the natural world around us, and then analogize from that to what our responsibilities,
opportunities, situations are that we might find in
our contemporary setting or distinguish what we see
from what we observe around us. The methodology of indigenous
law is to read the Earth, to regard the text, the
resources for reasoning around the law, being the kinds of things that I experienced walking,
sort of running that morning between Anishinaabe law camps. I was able to talk to the students from First Peoples House
here just a day or two ago and they got involved in the
interpretation of this story. And it was amazing to
see how a legal tradition can just reignite when you
put people together debating, giving their opinions,
their understandings about what that story might mean and how that can address
the kinds of issues that we might want to identify. In my view, that bear’s story is the story of what we’re involved in
right now in our struggle to live together better with one another indigenous peoples and others
in this place, and I’m happy to hear interpretations
you might have of this. I’m also happy to hear
questions you might have about this dual thesis
which is Van der Peet should be rejected because
the United Nations Declaration on the Rights of Indigenous Peoples. Don’t calibrate indigenous
rights by what was original prior to the arrival of Europeans
but also UNDRIP can be an aide for indigenous peoples in
the revitalization of our law to ensure that in that
recognition process, we don’t just exchange one oppressor for another oppressor but in
fact we see a revitalization of both indigenous law and Canadian law. It’s not just indigenous
law that needs revitalizing. (speaks in a foreign language) Thank you. (applause) So I think I can take questions
for 10 or so minutes here. And I guess it’s being recorded because there’s a camera at the back. MALE ATTENDEE: Couple of questions about applying the United
Nations declaration. The first one is, it provides
for the rights of peoples and there’s room for dispute
about how we individuate and constitute peoples, so I’m interested in your thought about that. Second, if we’re, if indigenous people are applying UNDRIP
internally to ensure against, let’s call it oppression,
from their own governments, is the adjudication of that
application to be left entirely to indigenous procedures,
or is there a role for Canadian courts in
policing that from a distance, and if there is, what is the
role of the Canadian courts in policing it from a distance? Yes, so the first question
is who are peoples in UNDRIP that can claim the
rights to the application of this document, and I
think we have to start in the messy now that
we’re in, which is there are 600 and some odd bands,
there’s multiple Metis configurations across
the country, Inuit people have organized themselves
in different ways, and there needs to be some incentivization of people working from where they are to think about gathering
in places that would allow for more connoues of scale,
broader linguistic, cultural, legal traditions where you can draw upon just a wider geographic
scope, and so those kinds of incentives could be put together in enabling legislation that
certain kinds of resources could be available to communities to get out of the Indian Act if there was kind of action in certain fronts. That is in some ways
what the Penner committee recommended in the 1980s. It’s the course that the Royal Commission on Aboriginal Peoples also counseled. It’s in the land itself as I
talk about Anishinaabe a lot. I can go from Cape Croker
on the Bruce Peninsula down to Walpole Island around
Windsor, across the top of Lake Superior and Lake
Huron, out into the prairies and still encounter Anishinaabe people. The language has its dialects
but it’s got a commonality. The stories have a similarity
across that distance. The cultural dimensions are
very familiar across that range. At the same time, you
need to be accounting for the local conditions,
the local loyalties, the local elements. There’s something of
confederacy or federalism that Anishinaabe people could enjoy that would enable us to
have that kind of a setting. There are eleven language families that indigenous peoples have in Canada. Maybe there’s things that
can be done on that basis. There are regional groupings
that people work within like the southwestern Anishinaabe if you can’t sort of pull
it all together like that. In other words, there’s
ways to work up the scale. Adjudication, if there is
a challenge to a government within indigenous communities
and UNDRIP is in operation, then that needs to be
adjudicated in accordance with the dispute resolution
system that is found within the indigenous community. Otherwise, the patrolling
of the broader courts would just push us to interpretations that would perhaps mirror
what is generally the case across Canada and that would
defeat the purpose eventually of people being able to exercise their decision making structures and responsibilities after that fashion. In the US context, there are tribal courts that operate all over the place. When I was teaching at the
University of Minnesota for five years, I had a casebook of 1200 pages of tribal courts operating around these very kinds of issues, not only from interpreting
their constitutions. Incidentally the Anishinaabe constitutions have the Seven Grandmother
principles in them, which I was talking about
in the Priestley lectures this week, principles like love and truth and humility, bravery, kindness. These are legal principles
for Anishinaabe people, just like life, liberty and
security, the vagueness of them is both their strength
and their invitation for continuing discussion about how we would implement them in those contexts. And then there’s checks and balances, because there’s courts of
appeal on an inter-tribal basis that are possible and so I think
a dispute resolution system could be devised that again
wasn’t just a court structure. You could have a feast structure, you could have a peacemaking structure, you could have a kin-based understanding that included the checks
and balances that kin, real good kin governance has a part of it. FEMALE ATTENDEE: So two questions, and thank you very much
for your talk today. My second ties in a bit with Kerry’s
Yes. FEMALE ATTENDEE: second
question, but my first question is what does section 35(1) look like if it’s consistent with UNDRIP? Is it the dissent from
the dynamic right approach from Van der Peet, is
it something different? What does that acceptable
legal framework look like? And then assuming or I guess
conceding as many of us do that under any defensible
interpretation of section 35 encompasses a right to self government, does the charter apply and can
it in any justified way apply to exercises in indigenous
right of self government? Okay so I’m going to take
that second question first because it actually is a mirror argument to what I was saying about UNDRIP. Indigenous peoples tomorrow,
if they wanted could say the Charter of Rights and Freedoms applies to our communities if that was their determination and if that occurred again, what our freedom of
religion or association or mobility would look
like would be articulated within the principles
of that community’s law. And of course they’re
going to be distinctive, but of course they’re going to draw wisdom from other legal traditions
in that exercise. And so I don’t think that it
has to be an either/or world, but again the charter’s
gonna look quite different when it’s taken in. And then the first question. FEMALE ATTENDEE: What does
an acceptable section 35 Yes.
FEMALE ATTENDEE: Look like? What does an acceptable
section 35 look like? It doesn’t have the
justification test in it. And so we have to design
intergovernmental mechanisms when we’re worried about what the scope of the federal authority
is, what the scope of the provincial authority
is, in relationship to the First Nations power. We could do treaties around
that, we could create a fora where people got together and discussed, we could create agreements,
we could do a cooperative, we could have an ethos of
cooperative federalism. There’s things that are
possible under section 35 when you take UNDRIP as the
standard that have us question what colonialism is in Canada, and colonialism is the federal
and provincial governments always getting the last word
without the participation of indigenous peoples,
and so to the extent that section 35(1) can go
down that path of preventing that unilateralism and think
about us as being a federation that respects the distinctive parts of it, I think there’s
a lot we can do there. MAN: In political science,
maybe more than law, the idea of at least a theoretical exit from society is deemed important, that if you really want
to, you can emigrate. If UNDRIP is fully implemented, it gives indigenous
communities first the right to determine who is member,
and then it also gives them a right to determine the
responsibilities of membership. Is there something or will
there have to be something where someone can say I
don’t want to be a member of this community even
if I was born into it? Yes, so one that section,
that article I quoted in the United Nations
declaration where it says people have the right to participate
within and outside, means that they can certainly find places of participation beyond the
borders of the community. It’s also the case that
there would be structures to dispute and contest and change what the borders or boundaries of the political possibilities
are in that instance. And there would be the opportunities through the charter type of jurisprudence that would then be taken
within the community to test the limits of that,
but I think I’m dodging your question because it
would have to be the case that indigenous peoples at
some point can determine what the bright lines of who’s in and out of their community, they’ll
make those determinations, and there’s gonna people
that are not gonna be happy with that, and there’s gonna
be some that will not like that they can’t get out and there’s some that aren’t gonna like
that they can’t get in. And this, what I’m talking
about is living with that too, but living with it in a
way that has the maximum of due process, that’s persuasive within the context in
which it’s implemented. Again, just always recognizing
that there’s certain things that, conflict is perpetual,
you’re not gonna wipe out conflict just by going down this path. But hopefully you’re gonna
make conflict processes such that people are much healthier in the way that conflict proceeds rather than self-inflicting wounds
of exiting through suicide. When we were home for these camps, four people took their life. I only have 3,000 people
in my community, alright. There’s a whole lot of reasons
for why that might occur, but I don’t want that
to be the mode of exit. There’s gotta be better ways of putting together those kind of tough decisions. WOMAN: Hi, I just wanted to
respond to the bear story. Thank you. WOMAN: And just sort
of pick up on something that was speaking to me there in it, which was a sort of peace around urgency, but sort of differentially
experienced urgency, so to Nick, being on the
other end of the rope, to the bear, he’s
obviously experiencing this in a very urgent way in the
hour and a half that it took for the wildlife police to get there must have felt like an eternity to him. And it sort of ties in a little
bit to what you were talking about in terms of honor of the crown, because here in a conference, talking about constitutional law in
this context, I just sorta think of this classic Brammers
and Burbage case of dull deliverance speed type of
thing, like it’s very easy, probably not there yet, but even if you get the court declarations that say okay, this how we ought to
proceed, the speed just seems really problematic and
I wondered if that element of urgency was something
that came out when you guys were talking about the
bear, so I’m actually just kind of curious to know what people’s different interpretations were and if that was one of the ones that was coming. Certainly urgency was a part
of what people talked about, in addition to the patience
of the mother bear, like what was going
with that when normally there would be a charge
that would take place? So people were also talking about is the bear the First
Nations and that we need our children returned to
us and let’s get us out of this place where everything
is dark and there’s kind of a patient watchfulness
as someone like Nick is doing the work of
untangling, unraveling and the Wildlife powers are there? Or is the bear actually
the Canadian state? Are we as Canadians the ones
with our head in this bucket and there’s things that are going on that are just leading us to
kind of a disaster ecologically and socially that’s not
very present to us sitting in comfortable surroundings
like this in a moment, but is likewise very challenging? Others said that in that
bear story, they saw there was those that helped and
those that caused the problem. So whoever left that
trash lying around, right, there’s definitely things
happening in our communities and more broadly speaking
that are hurting us, but then there are people
that can take direct action to get us out of that as well. Some people talked about
the bears being medicine, because you use bear grease when you’re in different medicinal
and ceremonial places, so how do we ensure that
our medicine, the healing that was a part of that
release but that’s a part of the bear’s life is a part
of our broader community? It was interesting to
see people put themselves in the different positions of the story, which is again the resources for reasoning around Anishinaabe law. LADY: Time for one more question. Thank you. GENTLEMAN: Okay, thank you. I come from a civil law
country, and I’m going to ask you something that
it’s not making sense to me. Today you have mentioned, today you have mentioned
two very important and significant cases
resolved by the Supreme Court of Justices Canada, and something
that was not making sense to me is why should we
consider that court litigation is illegitimate court
litigation, is a legitimate way to resolve this feuds
between the Canadian state and First Nations who we
think is sovereign, thank you. Yes, so in some ways my
critique is perhaps too implicit around this front to say
that that’s illegitimate. Van der Peet, Pamajewon,
that is not in accordance with our own legal traditions. It’s not in accordance with where we hope to be with international law,
and even in a reformulated place of indigenous law, we can reimagine what final resolution would look like. In one way, I direct us to
the Maori experience recently, the Waitangi tribunal and
the settlement that allowed the recognition of the river, Whanganui River as being a living being, having its own agency,
that doesn’t necessarily then doesn’t have to go to
the court as a final place. Your critique it’s well-taken, what you’re saying, thank you. Thank you. (applause) I wanna thank Professor Borrows
for ending off our series with such an interesting talk,
and I can certainly speak for myself and I think that
story was a good example of some things that we
talked about at Cape Croker and part of that lesson
and it certainly had me as an individual sort of
thinking about my interaction with nature over the
years and putting that into an interesting context,
so it’s a really eye-opening way to look at law and as
we move forward and part of what we’re talking about is 150 years is that what’s the next 150 years? Many people have said that reconciliation is our biggest task and
challenge going forward and I think that talking about
indigenous laws is one way of us really being able
to start to conceptualize the nation to nation
dialogue that needs to go on, so I want to ask everyone
to join me in thanking John. We have a token to thank you. Thank you. (applause) Thank you. And so I just want to also
thank all of our speakers today and our moderators,
Bris, Loreen, and Carol. It was, today came together in a way that I couldn’t have imagined. I was very pleased with how all of our panels had such interesting papers. But I also want to thank all the people who asked really probing and interesting questions
to enrich the discussion, so thank you very much,
and I wanna also thank, we have around the room
a number of students who have busily taking notes and I know that they’re drafting blog
posts for our Web site and summaries of today, so I
want to thank them as well. And so enjoy the rest of Friday afternoon. It looks like it’s
gorgeous out and thank you for spending such a
beautiful day inside with us. (applause)

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