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Singing to tin ears: how do legal cultures sound in Canada?

Gitxsan Drummers at K'san Historical Village

Photo Credit: Shannon Hurst

Tansi Nîtôtemtik, good morning everyone,

Imagine if someone asked you, what is the culture of law?

(Ok, yes, I am asking you right now: what is your idea of law?) Sip that coffee/tea, close your eyes for a moment. What do you think of?

Maybe you think of white wigs and those little hammers or Judge Judy and lawyers yelling in TV shows. Or perhaps you think of a police officer or lawyer you interacted with and how they treated you.

In discussions with groups of Indigenous people in Canada, answers are often filled with images of police cars, flashing lights, jail bars, intimidating courtrooms, prejudiced officials, and words like "unfair," "punish," "strict," and so on. [WLGL] Not a pretty picture, but too often true to life. [1]

What if someone asked you, what are the cultures of Indigenous law?

(Yes, it's me here asking you again.) Maybe you're not sure. Maybe you think of Elders you know, or eagle feathers and smudge, or longhouses, or the first lawyer your Nation hired once that became legal in Canada. (Yes, hiring lawyers was illegal under the Indian Act) [2]. Maybe you are wondering why I said "cultures" with an s, which seems a bit fancy. (It's because there are many, many Indigenous cultures, not just one.) [3]

Every legal system needs tools to deal harshly with people. [4] However, whether harsh dealings are breakfast, lunch, and dinner or whether they are truly a measure of last resort makes all the difference. [5]

The decisions people make everyday - breakfast, lunch, and dinner - are a matter of culture. Rules just don't cover it all.

So how does dominant state law culture in Canada see cultures of Indigenous law? Sometimes, they do not see or hear enough. Here is a story about how it happens:

The story of a tin ear

Imagine you in a court, one kind of like this [6]:

In a room like this, in a court case about Delgamuukw [7], Elder Mary Johnson had teachings and wisdom to share about the Indigenous land, law, and culture involved in this court case. (State lawyers might say she had evidence to bring forward.) Now, her experience and explanation involved a song. It involved a song about laws carried in traditions that might look less like this courtroom and more like this [8]:

or this [9]:

And one day in the 1990s, in one moment in court, the difference between dominant state law and Indigenous law came down to the song Mary Johnson was willing to share.

The British Columbia Supreme Court judge asks if singing is necessary. After some exchange, the lawyer suggests that 'It is necessary for you to appreciate -' but the judge interjects. He says to Mr. Grant, the lawyer:

'I have a tin ear, Mr Grant. It's not going to do any good to sing to me.'

After some more back-and-forth, Mary Johnson sings her song.

The judge again asks why it was necessary.

The lawyer says that 'the Gitksan-Wet'suwet'en expressed their ownership of their territory through their regalia, their adaawk, and their songs.'

The judge says: 'I don't find that a persuasive argument at all. It is not necessary in a matter of this kind for that song to have been sung, and I think that I must say now that I ought not to have been exposed to it. I don't think it should happen again. I think I'm being imposed upon and I don't think that should happen in a trial like this.' [10]

Singing to tin ears

This is the story of an interaction between two legal cultures and between individual people. The judge was invited to look, listen, and appreciate something unfamiliar to him. I wasn't there, but in this moment, it seems that he did not hear, and did not see. Or perhaps he chose not to? This attitude, this story happening over, and over in different ways, has caused a lot of damage. [11]

How would you feel if you were the judge involved? The lawyer? The Elder, who had travelled many miles, across the sea, to share her law in this room?

These cultural matters are small, and yet, they are so significant. When one legal culture is wilfully deaf and blind to another - whether that is not hearing a song, or depicting a populated land as empty, profound damage is done. [12]

Fortunately, moving forward, everyone has choices to make. When the Supreme Court of Canada heard this case, the judges involved made their own choices. [13]

Opening ears, opening hearts

Tomorrow, what will each judge and lawyer decide to serve for breakfast, lunch and dinner? What legal cultures can each of us help create, in Court, in Indigenous communities, and beyond? Will Canadian colonial legal culture become harsher, or kinder to Indigenous legal cultures?

That culture is in the making today. Recently I was inspired by hearing Blake Desjarlais, John Borrows, Kim Murray, Myrna McCallum and others share their work on this at the ILSA Speaker Series this year. [14] Who do you know that is changing colonial legal culture to do less damage? What stories of Indigenous legal cultures inspire you?

When you ask a child or friend in ten years, what their idea of law is, what do you hope they will say? I would be glad to hear your hopes and I will leave you with one of mine: I hope they will describe a kinder, more appreciative culture of law.

Kinanâskomitin, thank you for reading and take care,

Hero and the ReconciliACTION team

[1] Truth and Reconciliation Commission of Canada, Truth and Reconciliation Commission of Canada: Calls to Action (2015), online: National Centre for Truth and Reconciliation, University of Manitoba <https://ehprnh2mwo3.exactdn.com/wp-content/uploads/2021/01/Calls_to_Action_English2.pdf>. See also Jonathan Rudin, Aboriginal Peoples and the Criminal Justice System (Emond, 2018). With thanks to Hadley Friedland for introducing me to this exercise of imagining what is law.

[2] Zach Parrott, "Indian Act" (January 21, 2022) online: The Canadian Encyclopedia <https://www.thecanadianencyclopedia.ca/en/article/indian-act#:~:text=In%201927%2C%20the%20Act%20made,government%20without%20the%20government%27s%20consent.>. See also Robert P C Joseph, 21 things you may not know about the Indian Act : helping Canadians make reconciliation with Indigenous Peoples a reality (​​Port Coquitlam, BC: Indigenous Relations Press, 2018).

[3] See for e.g. online: Home Page Map, Native Land Digital (2021) Native Land Digital <https://native-land.ca/>.

[4] Jutta Brunnée and Stephen J. Toope, Legitimacy and Legality in International Law (Cambridge: Cambridge University Press, 2010). See also Accessing Justice and Reconciliation - Cree Legal Traditions Report (May 2014), especially at 10-11.

[5] Accessing Justice and Reconciliation - Cree Legal Traditions Report (May 2014) at 10-11.

[6] Bernise Carolino, "B.C. Court of Appeal discusses equitable remedies of rescission and rectification in trusts case" (July 30, 2020) online: Canadian Lawyer <https://www.canadianlawyermag.com/practice-areas/trusts-and-estates/bc-court-of-appeal-discusses-equitable-remedies-of-rescission-and-rectification-in-trusts-case/331984>.

[7] Delgamuukw v. British Columbia, 1993 CanLII 4516 (BC CA).

[8] Photo: Shannon Hurst, in Katie Hyslop, "Clinging to Hope in Hazelton" (March 4, 2011) online: The Tyee <https://thetyee.ca/News/2011/03/04/HopeInHazelton/>.

[9] "Bc Governments Fails To Collaborate With Gitxsan Huwilp Government On Critically Important Issue: Chiefs Appeal Province’s Water Act Order At Ross Lake Provincial Park In Hazelton Bc" (July 29, 2021) online: Gitxan Huwilp Government <https://gitxsan.ca/bc-governments-fails-to-collaborate-with-gitxsan-huwilp-government-on-critically-important-issue-chiefs-appeal-provinces-water-act-order-at-ross-lake-provincial-park-in-hazelton-bc/>.

[10] Leslie Hall Pinder, "The carriers of no" (December 6, 2012) online: Sage Publications <https://journals.sagepub.com/doi/pdf/10.1080/03064229908536622> [Pinder].

[11] Ibid. See also Hadley Friedland and Val Napoleon, “Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions.” (2015) 1(1) Lakehead Law Journal 33.

[12] Pinder, supra note 10. See also Joshua Nichols, Sui Generis Sovereignties: The Relationship between Treaty Interpretation and Canadian Sovereignty (Waterloo, ON, CA: Centre for International Governance Innovation, 2018).

[13] Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC). With my gratitude to Leslie Hall Pinder, whose telling of the proceedings I have relied on, shortening and adapting slightly for the purposes of this article. (See Pinder, supra note 10).

[14] Speaker Series 2022 (2022), online: Indigenous Law Students' Association <https://ilsa2020.wixsite.com/ilsa/speaker-series-2022>.

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