Creating Legal Space for Animal-Indigenous Relationships

Full TextThe first law enacted in Canada to protect existing Aboriginal rights was section 35 of the Constitution Act, 1982.2 The first law in Canada to recognize the rights of non-human animals as anything other than property has yet to be enacted. The first Supreme Court of Canada (hereafter referred to as the Court) case to interpret section 35 was R. v. Sparrow.3 The 1990 case confirmed an Aboriginal right of the Musqueam peoples of British Columbia to fish for food, social and ceremonial purposes. Since this precedent-setting case, many similar claims have been brought before the courts by way of the fluctuating legal space created by s.35. Many of these cases have been about establishing rights to fish4, hunt5, and trap non-human animals (hereafter referred to as animals). The Court has developed, and continues to develop tests to determine the existence and scope of Aboriginal rights. These tests primarily embody cultural, political and, to a surprisingly lesser degree, legal forces. One of the principal problems with these tests is that they privilege, through the western philosophical lens, the interests of humans. Animals are, at best, the resources over which ownership is being contested. The Euro-centric legal conceptualization of animals as 'resources' over which ownership can be exerted is problematic for at least two reasons. First, the relegation of animals solely to a utilitarian role is antithetical to Indigenous-animal relationships and therefore demonstrates one of the fundamental ways the Canadian legal system is ill equipped to give adequate consideration to Indigenous law. Second, failure to consider animals' inherent value and agency in this context reproduces the human-animal and culture-nature binaries that are at the root of many of western Euro-centric society's inequities. This paper argues that Aboriginal peoples' relationships with animals are a necessary, integral and distinctive part of their cultures6 and, therefore, these relationships and the actors within them are entitled to the aegis of s.35. Through the legal protection of these relationships, animals will gain significant protection as a corollary benefit. If the Court were to protect the cultural relationships between animals and Aboriginal groups, a precondition would be acceptance of Indigenous legal systems. Thus, this paper gives a brief answer to the question, what are Indigenous legal systems and why are animals integral to them? The Anishinabe (also known Ojibwe or Chippewa) are Indigenous peoples who have historically lived in the Great Lakes region. The Bruce Peninsula on Lake Huron is home to the Cape Croker Indian Reserve, where the Chippewas of Nawash First Nation live. The people of this First Nation identify as Anishinabe. The Anishinabek case of Nanabush v. Deer is a law among these people and is used throughout the paper as an example of Indigenous-animal relationships. Making the significant assumption that s.35 has the capacity to recognize Indigenous law, the subsequent section of the paper asks why we should protect these relationships and how that protection should be achieved. Finally, the paper concludes that both the ability of s.35 to recognize Indigenous-animal relationships, and the judicial and political will to grant such recognition, are unlikely. Indigenous-animal relationships are integral to the distinctive culture of the Anishinabek, however the courts would be hesitant to allow such an uncertain and potentially far-reaching right. This is not surprising given that such a claim by both Indigenous and animal groups would challenge the foundations upon which the Canadian legal system is based. There are many sensitive issues inherent in this topic. It should be noted the author is not of Indigenous ancestry, but is making every effort to learn about and respect the Indigenous legal systems discussed. While this paper focuses on a number of Anishinabek laws; it is neither a complete analysis of these practices, nor one that can be transferred, without adaptation, to other peoples. Finally, Indigenous peoples and animal rights and Indigenous law scholars, such as Tom Regan and Mary Ellen Turpel-Lafond, respectively, may insist on an abolitionist approach to animal 'use' or reject the legitimacy of s.35 itself.7 These perspectives are worthy and necessary. This paper positions itself amongst these and other sources in order to reflect upon the timely and important issue of the legal status of Indigenous-animal relationships. I:WHAT ARE INDIGENOUS LEGAL SYSTEMS? The Law Commission of Canada defines a legal tradition as “a set of deeply rooted, historically conditioned attitudes about the nature of law, the role of law in the society and the polity, the proper organization and operation of a legal system, and the way law is or should be made, applied, studied, perfected and taught.”8 Indigenous legal traditions fit this description. They are living systems of beliefs and practices, and have been recognized as such by the courts.9 Indigenous practices developed into systems of law that have guided communities in their governance, and in their relationships amongst their own and other cultures and with the Earth.10 These laws have developed through stories, historical events that may be viewed as ‘cases,’ and other lived experiences. Indigenous laws are generally non-prescriptive, non-adversarial and non-punitive and aim to promote respect and consensus, as well as close connection with the land, the Creator, and the community. Indigenous laws are a means through which vital knowledge of social order within the community is transmitted, revived and retained. After European ‘settlement’ the influence of Indigenous laws waned. This was due in part to the state’s policies of assimilation, relocation and enfranchisement. 11 Despite these assaults, Indigenous legal systems have persevered; they continue to provide guidance to many communities, and are being revived and re-learned in others. For example, the Nisga’a’s legal code, Ayuuk, guides their communities and strongly informs legislation enacted under the Nisga’a Final Agreement, the first modern treaty in British Columbia.12 The land and jurisdiction claims of the Wet’suwet’en and Gitxsan Nations ultimately resulted in the Court’s decision in Delgamuukw,13 a landmark case that established the existence of Aboriginal title. The (overturned) BC Supreme Court’s statement in Delgamuukw14 reveals two of the many challenges in demonstrating the validity of Indigenous laws: “what the Gitxsan and Wet’suwet’en witnesses[es] describe as law is really a most uncertain and highly flexible set of customs which are frequently not followed by the Indians [sic] themselves.” The first challenge is that many laws are not in full practice, and therefore not as visible as they could be and once were. What the courts fail to acknowledge, however, is that the ongoing colonial project has served to stifle, extinguish and alter these laws. The second challenge is that the kind of law held and practiced by Indigenous peoples is quite foreign to most non-Indigenous people. Many Indigenous laws have animals as central figures. In Anishinabek traditional law, often the animals are the lawmakers15: they develop the legal principles and have agency as law givers. For instance, the Anishinabek case Nanabush v. Deer, Wolf , as outlined by Burrows, is imbued with legal principles, lessons on conduct and community governance, as well as ‘offenses’ and penalties. It is not a case that was adjudicated by an appointed judge in a courtroom, but rather one that has developed over time as a result of peoples’ relationships with the Earth and its inhabitants. An abbreviated summary of the case hints at these legal lessons: Nanabush plays a trick on a deer and deliberately puts the deer in a vulnerable position. In that moment of vulnerability, Nanabush kills the deer and then roasts its body for dinner. While he is sleeping and waiting for the deer to be cooked, the Wolf people come by and take the deer. Nanabush wakes up hungry, and out of desperation transforms into a snake and eats the brains out of the deer head. Once full, he is stuck inside the head and transforms back into his original shape, but with the deer head still stuck on. He is then chased and nearly killed by hunters who mistake him for a real deer. This case is set within the legal context of the Anishinabek’s treaty with deer. In signing the treaty, the people were reminded to respect beings in life and death and that gifts come when beings respect each other in interrelationships.16 Nanabush violated the rights of the deer and his peoples’ treaty with the deer. He violated the laws by taking things through trickery, and by causing harm to those he owed respect. Because his actions were not in accordance with Anishinabek legal principles, he was punished: Nanabush lost the thing he was so desperately searching for, and he ended up nearly being killed. This case establishes two lessons. The first is that, like statutory and common law, with which Canadians are familiar, Indigenous law does not exist in isolation. Principles are devised based on multiple teachings, pre- vious rules and the application of these rules to facts. That there are myriad sources of Indigenous law suggests that the learning of Indigenous law would require substantial effort on the part of Canadian law-makers.17 The second is that animals hold an important place in Indigenous law, and those relationships with animals – and the whole ‘natural’ world – strongly inform the way they relate to the Earth. II: CAN CANADIAN LAW ACCEPT INDIGENOUS LEGAL SYSTEMS? If there were a right recognized under s.35 concerning the Indigenous-animal relationship, what would it look like? Courts develop legal tests to which the facts of each case are applied, theoretically creating a degree of predictability as to how a matter will be judged. Introduced in

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