Whose Law Is It Anyway?

by Eric Epp

I was thrilled and grateful to get a spot in this program but still laughed when I read “Saskatchewan:” after months of idly imagining international human rights work (Visas! Different Cultures! Homesickness? Spicy Food!) I was coming back to Saskatoon, where my dad grew up, my grandma lives, and my uncle and aunt have a house a few blocks in from the river with a nice backyard and dinner ready for me when I showed up. I grew up in Edmonton and spent two years living in Winnipeg, so now I can finally say I’ve lived in all three prairie provinces. Saskatoon is a beautiful city, sometimes (according to my mom) called the Paris of the Prairies for its multiple bridges stretching back and forth across the South Saskatchewan River. I’ve been trying to run and bike as often as I can along the Meewasin Trail, which extends beyond city limits on both sides of the river. More specific to me, my grandma’s old Camry offers a trusty and chic mode of transportation around the city.

I’m part of a team tasked with setting up a tribunal, whose jurisdiction stems from a self-government agreement signed between the Métis Nation-Saskatchewan and Canada. This work has been a reset for me, because it recentres the core questions that get lost in first-year law school’s relentless hustle and bustle. Who is the law for? Who gets to make, interpret, and apply laws? What do you do with laws that are ineffective or harmful? All these questions have easy law school answers, but in the context of Canadian law’s interaction with Indigenous peoples, they are not very convincing answers. I think of “remote” communities where an entire arm of Canadian law—prosecution, defence, judge, and everyone else—arrives together on one plane like aliens, delivers legal decisions like newspapers, and flies out before dusk. Yes, law school confirms that this is law, but just maybe we should think about all this a bit. Of course, many, many, many people, especially but not just Indigenous people, have been incessantly talking, thinking, and organizing—and the biggest gift for me this summer has been being included in these conversations.

I worked as a tour guide for two years at the Canadian Museum for Human Rights, and nearly every conversation turned to Indigenous peoples, often in relation to Canadian laws. I knew how little I knew, but was constantly reminded that people on my tours almost always knew less, and I tried to lead them towards starting to understand more, as gently and imperceptibly as I could manage. Now the shoe is on the other foot, and my moments of comprehension are graciously heard and supported—but these breakthroughs are more from careful teaching than my own efforts. It is an honour to be in a room and know the least. Still, even if the problems are not secret, authentic paths forward are difficult to find and harder to navigate: Canadian law is the air we breathe, and Canadian law insists that we breathe Canadian law.

The South Saskatchewan, still winding along through Batoche

I drove up to Batoche about a month after getting into Saskatoon. My grandpa took us there once before, but I don’t remember it at all because I was quite young and for some reason engrossed in an abridged version of Ben-Hur. This time, it was a gorgeous Saturday in June, the parking lot was empty, and the interpretive centre was closed. There was a chain over the start of the trail, but feeling very politically radical (it’s a National Historic Site) I hopped over and wandered around for a bit. The sun beat down, the South Saskatchewan flowed along and the hills cheerfully rolled along as well, peaceful and green in every direction. I wish I had some beautiful and profound thoughts for Batoche, but the truth for me right now is that the events at Batoche in 1885 encapsulate a great dull sadness. In its expansion westward, Canada never paused to listen or hear or consider; and Batoche was a violent culmination of the path this sleepwalking state body stumbled along.

The Cemetery at Batoche

People are always talking about Indigenous resilience, which is fine and true but slots Indigenous people and peoples into a position of against rather than for. The old Métis laws existed to guarantee freedom, but freedom was a holistic concept that included a dynamic web of individual and group freedoms intertwined with individual and group responsibilities. Specific laws were expected to respond to specific situations and threats, to be discarded when no longer required. This project is a break, however small, from non-Indigenous laws regulating Indigenous lives. I’m grateful to be a part of this work during law school.

Treaty Paradigms

Bryce LansdellBy Bryce Lansdell

As mentioned in my prior blog post, apart from working as a teaching assistant for the Indigenous Law Centre’s summer course, I also had the opportunity to work as a curriculum development research assistant. The Indigenous Law Centre is in the process of developing an accredited certificate program in Indigenous and Aboriginal law, which is intended to accept students for its inaugural year in the summer of 2022. Currently, the Indigenous Law Centre is in the process of developing course proposals and syllabi to be submitted to the school for approval and accreditation.

As part of my internship, I was invited to help assist in developing some of these courses by compiling literature reviews and developing proposals for possible class content and weekly learning objectives. Helping to conduct research and compile sources on various topics within Indigenous and Aboriginal law greatly expanded my research skills and increased my familiarity with different scholars and academic sources. Conducting research also opened my eyes to the breadth of resources—whether podcasts, videos, or interview transcripts—that are available online which allow one to listen and learn directly from Elders and their teachings.

The first and primary proposal that I worked on was a course about treaties. Having taken Indigenous Legal Traditions at McGill with Prof. Aaron Mills, I had received a brief introduction to understanding different foundations and paradigms regarding treaties between Indigenous and settler communities, with the topic having piqued my interest quite a bit. In turn, I welcomed the opportunity to learn more by conducting research.

Although I do not have space here nor the personal capacity to justly represent the Indigenous treaty paradigms that I researched, I found the foundations and starting points of Indigenous treaty making to be both radically different from what I was accustomed to, and very humbling and inviting. One article that has stuck with me described treaty as a process of two separate peoples “growing together from the earth”, by living in relationships of kinship, mutual respect, and gift giving.[1] These relationships were created and cultivated in part through ceremony and were renewed and altered according to the varying needs and gifts of the parties.

In reading primary sources from settlers about treaty making, I was fascinated how the practices of gift giving, peace pipe, and exchanging wampum had been often adopted by both parties in early treaty making. However, while I found some accounts of attempts at respectful interaction, the more the dominance of the Canadian state grew, the more a colonial understanding of treaty—as a contract entailing fixed and written obligations with disputes to be resolved in colonial courts—began to be imposed. Although this latter treaty paradigm is largely now the dominant narrative, Indigenous understandings of treaty never disappeared, even if they were forced underground.

As I conducted research, I felt grateful for the sheer amount of both academic and non-academic work that is being done to revitalize Indigenous treaty paradigms. A common theme of many of these sources is the importance of language in housing fundamental understandings of the world. In turn, I would like to end with some of the Cree words that I have learned from the Treaty Elders of Saskatchewan. Although all these words deserve far longer explanations than I will afford here and my understanding is only approximate, I hope that this can serve as a very condensed introduction to some of what I have been learning.

  1. iyiniw miyikowisowina” (“that which has been given to the peoples”) and “iyiniw sawêyihtâkosiwin” (“the peoples’ sacred gifts”).[2] These terms speak of the special relationship that Indigenous peoples have to the land as first peoples, and the gifts that they have received from the Creator due to this relationship. This special relationship to all of creation was nourished and sustained through ceremony by various peoples in Saskatchewan.
  2. Miyo-wîcêhtowin (“having or possessing good relations”). This entails living out a vision of life of peace, good relationship and sharing by Indigenous peoples towards others in response to requirements of the Creator. This good relationship which informed treaty making was “to consist of mutual ongoing caring and sharing arrangements between the treaty parties, which included a sharing of the duties and responsibilities for land, shared for livelihood purposes with the newcomers.”[3]
  3. Wîtaskêwin (“living together on the land”). From my understanding, this encompasses a perspective of how through ceremony and relationship, peoples who were formerly strangers could come to live in harmony and live out the responsibilities that being on the land entailed, while still remaining distinct peoples.[4]

[1] Gary Potts, “Growing Together from the Earth” in Diane Engelstad & John Bird, eds, Nation to Nation: Aboriginal Sovereignty and the Future of Canada (Don Mills, Ont: House of Anansi Press, 1992) 199.

[2] See Harold Cardinal and Walter Hildrebrandt, Treaty Elders of Saskatchewan (Calgary: University of Calgary Press, 2000), 10-12.

[3] Ibid at 13.

[4] Ibid at 39.

The Humans in the Housing Crisis

Gemma DingwallBy Gemma Dingwall

Since 1876, the Federal Government has been responsible for housing on Indian reserves. In 2016, 27.4% of people on reserves lived in over-crowded housing[1] and 24.2% of First Nations people lived in a dwelling that was in need of major repairs.[2]

There are several contributing factors to these numbers. Firstly, many reserves are in northern isolated regions, which makes for shorter building seasons and costlier materials. Additionally, Indigenous people are also the fastest growing population in Canada and the available housing has not kept up. Furthermore, housing management can be run by people who are not qualified or have too many competing interests to adequately address the house repairs that are needed. However, one major factor is the consistency in which the Federal Government provides inadequate funding for housing and has ignored this issue for generations.

As high as these numbers may seem, they do not fully capture what the housing crisis looks like for those living in it. What those numbers do not provide is a visual of children sleeping on mattresses in living rooms. It does not paint a picture of twelve people living in a three-bedroom house so that people have to take shifts to sleep. It does not show young families waiting years just to have a place of their own. Nor do the stats really show what the inside of a home in need of major repairs looks like, whether that be leaking pipes, mold, holes in the wall or broken appliances.

The housing crisis has detrimental effects in so many areas. Children facing overcrowding have nowhere to complete their homework. Domestic violence victims have no where safe to go. A lack of privacy can lead to mental illnesses like depression. It also acts as a barrier for those looking to recover from their addictions who have no choice but to live with those who are still consuming. Infectious diseases like COVID-19 which can be spread more easily through overcrowded housing, also pose a serious threat to communities

During my internship with the Department of Justice and Correctional Service (DOJCS) of the Cree Nation, I was exposed to some particular ways in which overcrowding affects the justice system. One current challenge for the Cree Nation is that formerly incarcerated people as well as people who have experienced homelessness and who want to come back and integrate into their community have nowhere to go.

If their families do not want them in the home or there is no room in the home, these individuals have no opportunity to rejoin their community. Moreover, because of overcrowding, there are no alternatives—they cannot simply find another place to live. This problem compounds other issues such as formerly incarcerated people are less likely to follow their probation plan when they are far away from their community and do not have appropriate cultural programming or proper support.

To address this issue, the DOJCS has introduced the Tiny Homes Community Project. To start, three of the nine Cree communities will provide ten Tiny Homes for formerly incarcerated people to stay in while they look for more long-term housing. As Tiny Home tenants, they will receive support from Elders and mental health professionals. Each tenant is also required to participate in programming that will help them become a healthy, contributing member of the community.

My role in this project was to work in a team to draft the rights, responsibilities and protocols for the clients of these Tiny Homes. Again, the housing shortage posed several challenges. The Tiny Homes are meant to serve as transitional housing so the residents can integrate into the community. However, many people in the Cree Nation have to wait several years to be given access to a home of their own. This must be balanced with the high demand for the program, so the Tiny Homes cannot be occupied by the same clients for years. Another issue to consider is the process of expelling someone from the program, which may be necessary when the safety of the staff or other tenants is at risk. The reality is the expelled individual will have very few options on where to go; in some cases, they will have nowhere to go.

Overall, there are so many barriers caused by the housing crisis. It affects health, education, child development, rehabilitation, individual safety, familial relationships and overall community building. I know the Tiny Homes is a great program and will help many people reconnect with their community. Unfortunately, I also know that the housing crisis will continue to limit the number of people it serves and impacts its true potential.

[1] “The housing conditions of Aboriginal people in Canada” (25 October 2017) online:  < https://www12.statcan.gc.ca/ > [https://www12.statcan.gc.ca/census-recensement/2016/as-sa/98-200-x/2016021/98-200-x2016021-eng.cfm]

[2] Ibid.

Revistionist History: St Paul des Métis

2013 AlexandraOlshefsky 100x150By Alexandra Olshefsky

My work with the Truth and Reconciliation Commission has thus far focused on archival research. One of the major themes that come out in this work is that of revisionist history: how stories are told and interpreted, and by whom. Forced assimilation was viewed as salvation for ‘les sauvages,’ one which settler communities felt should have been met with gratitude. This narrative has managed to survive over the past 150 years, with today’s racism being passed off as a political critique or social commentary.

When I tell people that I am working with the TRC, the most frequent response I encounter is along the lines of, “oh yes, it’s so tragic what happened, but they’ve been given so many opportunities since then.” This concept that indigenous communities should somehow be grateful for the ‘benevolence’ of settler peoples is still omnipresence in our national thinking. In the case of residential schools, it’s interesting to see how early attitudes surrounding the role of the institutions so clearly support our current rhetoric around indigenous issues.

I was recently asked to summarize a French text which outlined the history of St Paul des Métis colony in central Alberta by Historian and Oblate Eméric O. Drouin.

In 1895, Father Albert Lacombe was approached by the federal government to establish an agricultural colony for Métis in what is now east-central Alberta. The community would assure a Roman Catholic presence in a region that saw an increasing number of protestant settlers. Métis families were granted plots whose titles were retained by the government. At 69 years old, Lacombe assigned father Adéodat Thérien the task of organizing the colony. Yet with little training in farming, the community quickly shifted its focus to providing religious instruction to Métis children. In 1902, limited financial resources went towards the construction of a large residential school.1 One year later, a fire started by Métis students lead to its destruction, giving rise to the eventual termination of the colony in 1908.

The historian’s account of the fire required translation, not solely from a linguistic perspective.

The short account of the story is this: 16 year old Ducharme from lac Biche lead 14 students, all boys between the ages of 7 and 16, to burn down the school. Though successful in their plan, the fire’s sole casualty would be Ducharme’s sister, Marie.

In total, 4 were deemed too young to be prosecuted, and 10 were arrested. Of the 10, 4 more were acquitted by a Justice of the Peace in lac la Selle. The 6 others were brought to Fort Saskatchewan, Alberta to attend their trial. Justice McLeod acquitted the children. He relied heavily on the arguments of the defense, reasoning that the children had been provoked by poor treatment, furthering that no reform school for children existed west of Winnipeg.

You could characterize the story as one of struggle, as one of fight, determination and/or desperation by the Métis children against their abusers. This was the position of the defense. Or, you could adopt Drouin’s position, who argued that the accusations were “donc qu’excuses employees par les incendiaries pour attirer la sympathie, et pourtant, on les entretenait gratuiement à l’école depuis des années!”2 The historian furthers that an anonymous group pressured the judge to dismiss the case and that the verdict shocked the community. He quotes Thérien as stating: “Les enfants sont arrivés de la prison — le verdict du juge a supris tous le monde, même les parents. Évidemment ce judge McLeod est un butor.”3 Drouin contended that Cross was counseled by Lacombe not to pursue further action against the youth. He prayed that the case be dropped, as he had seen too many Métis sent to prison. In one final rhetoric flourish, he concludes the incident as follows: “Des simples enfants ont allumé la mèche qui a mis le feu au baril de poudre et fait sauter l’oeuvre qui devait être leur sault.”4

Drouin ostensibly asserts that these ungrateful children sabotaged their own salvation. And that narrative still so strongly inserts itself into our conversations around indigenous issues in Canada today.

***

For his part, Lacombe lamented the fire, which would ultimately bring about the devolution of the colony:

Nobody to-day can understand my trouble, my grief, my disappointment – I have only God for witness of my devoted desire to save this population. I will go down into the grave with this sorrow in my heart repeating ‘Bonum est quai humiliasti me.’ My poor Metis! […] I can only weep in secret.

Historian Heather Devine notes that there was “some debate over whether the colony was a “planned” failure or not. Some evidence suggests that the first priest and manager of the colony, Father Therien, was not only skeptical from the outset about the prospects for success, but was actually more committed to creating a community of French-Canadians in the St. Paul area.” After the fire, Therien “encouraged young Métis to take up homesteads outside of the colony, while quietly encouraging French-Canadian settlers to move in.” In 1908, managers of the colony informed the government that they wanted to terminate the land lease. In 1909, the lease, and subsequent colony was terminated, and “approximately two hundred and fifty French-Canadian claims were registered on the former Métis leases.”5

1 Heather Devine, The People Who Own Themselves: Aboriginal Ethnogenisis in a Canadian family, 1660-1900 (Calgary: University of Press, 2012) at 183-4.
2 Émeric O. Drouin, Joyau dans la plaine (Edmonton: Collège Saint-Jean, 1968) at 436.
3 Ibid at 241.
4 Ibid at 242.
5 Supra note 1.

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