Introduction to Indigenous Law and Legal Orders – Part 1: Introducing Indigenous Legal Orders and Indigenous – Western Legal System Interactions

In Part 1 of this two-part series, Aria Laskin speaks with Prof. Aimée Craft, Prof. Alan Hanna and Christina Gray about Indigenous laws and legal orders, and the interactions of those systems with Western legal traditions. The panelists introduce the concept of Indigenous laws and legal orders, and some of the key pillars of Anishinaabe law. They also discuss the distinction between Indigenous and Aboriginal law, and the historic treatment of Indigenous legal systems by the Canadian state.

Aimée Craft is an Indigenous (Anishinaabe-Métis) lawyer from Treaty 1 territory in Manitoba and an award-winning professor and researcher at the University of Ottawa. Since 2013, Professor Craft has led research on Anishinaabe water law. Her award-winning book, Breathing Life Into the Stone Fort Treaty, focuses on understanding and interpreting treaties from an Anishinaabe inaakonigewin (legal) perspective. Professor Craft is the former Director of Research at the National Inquiry into Missing and Murdered Indigenous Women and Girls and the founding Director of Research at the National Centre for Truth and Reconciliation. She is a current member of the Speaker's Bureau of the Treaty Relations Commission of Manitoba.

Professor Alan Hanna is an Assistant Professor at the University of Victoria, where he teaches in both the JD and the JID programs. He is of mixed Blackfoot, French and Scottish heritage, and is connected to the Secwepemc through marriage. Professor Hanna’s research focuses on Indigenous laws and jurisdiction, governance, rights and title, and environmental sustainability under Indigenous legal traditions, Aboriginal law and jurisprudence, and the intersections between all these systems. Professor Hanna also sits on the Legal Advisory Panel of RAVEN Trust and the Board of Directors of the Indigenous Bar Association in Canada.

Christina Gray is a lawyer with JFK Law LLP, with a focus on litigation and Indigenous governance. Christina is a Ts’msyen citizen from Lax Kw’alaams in northern British Columbia and Dene from Yellowknife in the Northwest Territories. As a scholar, Christina’s graduate research focuses on issues of gender representation within the Ts’msyen legal order and governance system. Christina is also a Yellowhead Institute Research Fellow, which is a First Nations-led think tank rooted in community networks and committed to Indigenous self-determination.

Aria Laskin practices Aboriginal, environmental and constitutional law in JFK Law LLP’s Vancouver office. She has appeared in front of all levels of court in British Columbia and Ontario, the Federal Court, the Supreme Court of Canada and a range of administrative and arbitral panels. 

Land Acknowledgement
The Advocates’ Society acknowledges that our offices, located in Toronto, are on the customary and traditional lands of the Mississaugas of the Credit, the Haudenosaunee, the Anishinabek, the Huron-Wendat and now home to many First Nations, Inuit, and Metis peoples.  We acknowledge current treaty holders, the Mississaugas of the Credit and honour their long history of welcoming many nations to this territory.
 
While The Advocates’ Society is based in Toronto, we are a national organization with Directors and members located across Canada in the treaty and traditional territories of many Indigenous Peoples. We encourage our members to reflect upon their relationships with the Indigenous Peoples in these territories, and the history of the land on which they live and work.
 
We acknowledge the devastating impacts of colonization, including the history of residential schools, for many Indigenous peoples, families, and communities and commit to fostering diversity, equity, and inclusiveness in an informed legal profession in Canada and within The Advocates’ Society.

Transcript

Speaker 1: 0:05

Welcome to Friends Who Argue a Podcast from The Advocate Society.

Speaker 2: 0:10

Each episode will bring you conversations with advocates across all areas of litigation who share their stories, insights, tips, and tricks from their journeys. As advocates,

Speaker 1: 0:21

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Speaker 3: 0:52

Hello and welcome to this very special series of episodes of Friends Who Argue the podcast of The Advocate Society. My name is Aria Laskin, and I'm a litigation lawyer with JFK Law Corporation in Vancouver. My practice focuses on Aboriginal constitutional and administrative law. Before diving into these episodes, I wanna start by recognizing that I'm recording this podcast from the unseated territory of the Cosalish peoples, including the territories of the Musqueam Squamish en Slava Tooth Nations, and that the guests on this podcast come to us from the territories of different indigenous peoples across Canada, including the Treaty one territory of the Anishnabe, Cree og cre Dene Dakota, m a t people, and the territories of the Laan and Simpson Peoples. Most of our listeners are trained exclusively in Western legal traditions that have their roots in the United Kingdom in France, rather than the lands on which we all work in practice. But there are other legal traditions and orders rooted in these lands that proceed colonization and that persists today the legal orders and practices of indigenous peoples. I was lucky to sit down earlier this year with three leaders in the field, folks with the background in both academics and legal practice. Professor Amy Craft at the University of Ottawa, professor Alan Hannah at the University of Victoria. And Christina Great, a colleague of mine at JFK Law Corporation. Our conversation has been split into episodes. The first episode, the episode you're about to listen to, provides listeners with an introduction to the concept of indigenous laws and legal orders, and an introduction to some specific indigenous legal traditions, including some of the foundational values that underpin Anishinabe Law. In the last episode, we talk about the journey forward, the impetus on all of us to keep learning, and what it means for Moos to be a party to a contract. This conversation provides only the briefest of introductions to an area of immense importance to advocates and jurists across the country, and I encourage you to continue with your own learning. But first, let's begin with this episode. I'm joined by Professor Emme Craft, an indigenous, uh, Anishinabe met lawyer from Treaty one Territory in Manitoba, and an award-winning professor and researcher at the University of Ottawa. Since 2013, professor Craft has led research on Anishinabe water law, her award-winning 2013 book, breathing Life into The Stone Fort Treaty focuses on understanding and interpreting interpreting treaties from an anishnabe legal perspective. Professor Kraft is the former director of research at the National Inquiry into missing and murdered indigenous women and girls, and the founding director of research at the National Center for Truth and Reconciliation. She's past chair of the Aboriginal law section of the Canadian Bar Association, and a current member of the Speakers Bureau of the Treaty Relations Committee of Manitoba. Professor Alan Hannah is an assistant professor at the University of Victoria, where he teaches in both the JD and the J I D programs. He is a mixed Blackfoot, French and Scottish heritage, and is connected to this equipment through marriage. Professor Hannah's research focuses on indigenous laws and jurisdiction, governance rights and title and environmental sustainability under indigenous legal traditions, aboriginal law and jurisprudence, and the intersections between all these systems. Professor Hannah sits on the legal advisory panel of Raven Trust and is on the board of directors at the Indigenous Bar Association in Canada. Christina Gray is a lawyer with JFK Law Corporation with a focus on litigation and indigenous governance. Christina is a Simpson citizen from La Colom in Northern British Columbia, and Dena from Yellow Knife in the Northwest Territories as a scholar, Christina's graduate research focuses on issues of gender representation within the Simpson Legal Order and Governance System. Christina is also a current Yellowhead Institute Research fellow, which is a First Nations led think tank, rooted in community networks and committed to indigenous self-determination. Welcome to all of you. We're delighted that you're here. Um, today we are gonna talk about indigenous law and legal orders and the decolonization of Canadian legal practices. Starting off, can you each talk a bit about your journey that led each of you to your work today and what decolonization of law in Canada means to you and Professor Kraft? Perhaps we could start with you.

Speaker 4: 5:13

What a, a big question. Um, I think that any indigenous person who has ever, uh, worked within the c the colonial legal system has had those moments of thought. Think, you know, that thinking of, am I on the right track here? Why does this not quite feel right? Um, am I misaligned with the things I was taught growing up? And I definitely had those moments as a, a young lawyer in practice, and I remember sitting with elders and preparing, uh, a major case and preparing them as witnesses and, and being told like, no, you're the one that has to speak about this. And, you know, saying, well, no, the formal rules of Canadian law say that I can't be a witness. I'm the lawyer. And, you know, all of the things that create these very odd tensions, uh, kind of come to light as you're grappling with your learning, uh, in, in the Canadian, uh, legal system. And that's definitely the experience that I had. And, and I had the for great fortune of practicing law in community for about 10 years, and then realized that I needed to go back and do some work to ground myself in my own indigenous legal tradition. And to, uh, look at that in particular through the lens of a better understanding of treaty from that indigenous legal perspective. And, uh, as they say, the rest is history, right? It becomes this amazing, um, moment of connection with all kinds of things and, and people that are working on revitalizing laws, um, indigenous laws and, and legal orders that has led to today being, uh, very fortunate to help bring forward some of that revitalization work in communities in northwestern Ontario, Manitoba, and through some of the work at the University of Ottawa and through, uh, the Decolonizing Water Project. So the journey, I think is, um, as many of our, um, community members would say started, you know, in youth when when people identify you and say, this is the kind of work that you should be doing, or they give you instructions in subtle and, and less subtle ways about the things that you need to accomplish and, um, fulfilling your, you know, your, your purpose in life is, is kind of directed by that. And definitely I keep trying walking, you know, trying to walk down that path in terms of, of this work.

Speaker 3: 7:40

Uh, thanks. How about Professor Hannah? We'll, we'll, we'll turn to you next.

Speaker 5: 7:46

Um, I, I agree. This is a, a really, uh, broad question, and my interest was always trying to understand the difference in disparity that our communities faced, uh, when compared with, you know, looking at neighbors in, in municipalities, uh, and, and wanting to understand the roots of that, uh, dis the, of the distinction and, you know, the, the sources of poverty and, and racism and, and the things that, um, you know, that, that we experienced and growing up don't understand. I grew up with my identity, but completely disconnected to, to community, and, and there was very little ever spoken of, of that other than, you know, racist taunts and things like that. Uh, so having worked for First Nations in a professional capacity initially, uh, and dealing with, working with First Nations governments and particularly administrations, I finally decided at, at some point to go to university, go back to university later on in, in life, and studied anthropology because I wanted to study the relationship between indigenous peoples and the crown and the history of that relationship that was absent in formative years of education, K to 12, that research into, uh, developed from an undergraduate research into a master's thesis. And at, at which point I pivoted into law because I realized a lot of that conversation was occurring in legal contexts. And many of the, the sources of dispossession, uh, oppression, racism was actually rooted in, in the manner in which Canada's legal system embraced or dictated the terms of the relationship through time. So that's what drove me into law, and it's a, a almost as though the path had always been presented, had, had always presented itself the Law Society of Ontario and the University of Victoria's faculty of law in accessing justice and reconciliation, where we had an opportunity to dig into indigenous legal orders across Canada. And there was a, a lot of awakening in that work and, and listening to how people were talking about law, especially in the context of how we understand law from the Canadian legal perspective. Uh, that's how I ended up here where I am today.

Speaker 3: 10:44

Thanks very much. And, uh, finally, Christina, perhaps you can answer the same question.

Speaker 6: 10:50

Yeah, thanks Aria, and thanks for having me on the panel. I, I was thinking and reflecting as I was listening to Alan and Ma and a lot of what they were saying. I was also reflecting on, yeah, I totally empathize with what, um, is being said. And I think when I talk about my own personal history, I think of it as a non circuitous way of coming back into the practice of law, uh, but also in wanting to do graduate research, looking at the Simian legal order. So on my mom's side, I am Simian from Lakos, as you said, and on my dad's side, I'm Dene from Yellowknife in the Northwest Territories. So I grew up in East Vancouver. Uh, my mom raised me, and we were really lucky because I grew up in, um, a co-op that she and, um, other indigenous people started. And so I, I'm so thankful for that beginning, and it's really humble to have those beginnings in East Vancouver really far away from my Simian and Benny territories. So part of my research in Simian Law and Governance is really trying to understand what, where do women play a part in Cian governance? Um, and so far in my research, I'm looking at the role of matriarch, but also what other roles do women play in leadership positions? And that's really a question, um, that I've been thinking a long time about. Uh, and I think a lot of the work that indigenous legal scholars and indigenous people do more widely is really brave and courageous work, because we have to ask these really difficult questions and examine our own legal systems. And part of that is thinking about the revitalization efforts, because like myself, I didn't grow up, uh, necessarily in my CI territory. So I had to understand and learn what that meant. What are my obligations as a cient citizen to other members of my house group of which is Liam Lak and[inaudible], and what are my obligations as a ci woman more widely within, um, cimzia's society? And so, because I was raised by my mom then, and we're matrilineal people, so I follow the female line, so I have these additional obligations as a woman. And so that's sort of what my research looks at. But I said, I came to this circuitously because in law school, um, I didn't really learn about CI and law governance. I started to learn about some of the theories that people like Dr. John Burrows looks at, um, and others. But it was something that I wanted to learn more about. And so I was practicing in Toronto, and I began to think about these questions. This is after the Truth and Reconciliation Commission report and calls to action were released. And I just had these deep seated sort of, um, questions that I couldn't answer in the practice of law. And that's why I went back to do that research. And I think it's, uh, ma was talking about, I, I think of it as a, a calling like you're, um, it wasn't my elders or aunties or uncles who said, this is the work you need to do, but I think of it as a calling to like a higher, a higher power or voice, um, and asking you to think about these questions a little bit deeper. And so that's my long-winded answer to your question. Uh, aria, um, I'll hand it off to you.

Speaker 3: 14:49

Thanks, Christina. And I know, know that, uh, we are all, we are all very fortunate that you've all decided to do the work that, that you do. Um, wanted to, wanted to open the discussion now to the, to introduce some of our listeners to the concept of indigenous laws and legal orders, appreciating that this, these may be new concepts for some of our listeners. Professor Hannah, could you explain what, what you mean, at least when, when you look in your work into, uh, indigenous laws and legal orders for those to whom, for whom this is, uh, conceptually new?

Speaker 5: 15:28

The first thing to understand when thinking about indigenous laws, we're using an English word with a lot of baggage to embody the practices and actions and legality of disparate nations and diverse nations. So we frame a definition of indigenous law already, uh, under that label of law. So accordingly, it ha it's helpful to think about indigenous law from the perspective of a particular group and the language they use to describe or define what we will loosely refer to as law. I tend to think more about legality, uh, in people, a, a as an internalized knowledge that informs people's actions, activities, respons responsibilities, uh, rules, processes, principles, and how they manage relationships with one another. How we manage relationships with the land, with everything connected to the land with our ancestors, the sacred, uh, the spirits, the creator, such that people can have some kind of expectation about how someone is going to act to provide a sense of security. Um, perhaps not a sense of security, but actual security and safety in, uh, living in relation with one another. And, and all of, all of those other relations. That's a very different thing than, uh, what is described formalistically and doctrinally as law, as Canadian law, Canadian legal system. This, this idea of an internalized knowledge that people, uh, live and express openly and, and are able to, to talk about, but quite often is not spoken about as law. It's spoken about as, as many other things. The, the concepts, the categories, the underpinning reasoning behind these laws are all interconnected. So it seems often artificial to parse out one particular behavior, one particular rule, uh, one particular leader that makes a decision that is accepted as being valid and, and saying, well, that is a, that is a category of law that is a, an area of law when often these aspects are interwoven, overlapping, and not easily, uh, parsed out and distinguishable. So to understand indigenous law, indigenous legal orders is to understand that foundation of how people understand themselves in the world, in relationship with others, and, and the even the definition of others is, is very expansive.

Speaker 3: 19:02

Thank you. And obviously that is, that is a big question. And I wanted to, to ask a follow up question actually, for all of you, based on one of the things you said, there are perhaps not, obviously there are, there are many, many, uh, indigenous communities across what is now known as Canada and, uh, legality or traditions, legal orders, laws whate, whatever, uh, however it's conceptualized or gonna be different in different communities. Um, it would be really helpful, I think, for each of you to, to just speak briefly about the particular indigenous legalities or traditions, uh, that ground your work. So Christina, I know you spoke a bit about your simian work. Uh, it would be great to hear from, I guess from from Professor Kraft and Professor Hannah. Then Christina, if there's anything else you wanna add. And this is both because I think would be really helpful for, for folks to hear about your work specifically, which is really interesting. And it's also a way to, for people to start to think about, oh, okay, well, what does it mean for there to be totally different, uh, ways of, of governance and living in relation, uh, from what well, most of our listeners, which will, will be steeped in which is the western common law, and then for some folks Quebec civil law, but, you know, grounded, I would say on pretty, in, in some ways similar values.

Speaker 6: 20:16

Yeah. So the Cimon governance system is actually very similar to other governance systems in the northwest coast. So I am based in Prince Uup, which is part of the Cimon territory. And, uh, our neighbors are the nsca. And, um, just a little bit inland, there's the, the git san. Um, so our governance systems are quite similar. And for the coastal simia we have, which I'm a part of, uh, there is, uh, a, a tribe, which is, there's many tribes that are like alliances. And in, within each tribe there are a number of houses and each house, um, for, like I said, I am part of the House of and Waba, which used to be neighboring houses that lived along Meena River, near the Zucks River, or ex Jamex. And with the houses, basically each house has, um, a lot of oral histories that go along with, um, that belong to the house. And with that, there's also, um, legalities. So we talked about relationships and obligations and, um, protocols, which are quite important in CI society. And all of this is, um, happens within the feasting system. And so, uh, in other legal orders on the coast, uh, they call it pot latches or could be big house. And so we call it feasting. And there's many different types of feasts that happen on, uh, within simian society, such as naming feasts are the predominant type of feasts that happen right now. And that's where names get passed down, um, that have been within the house system for hundreds, if not thousands of years. And each of these names has, um, oral histories that go along with it. Some of them are known and some of them aren't known. And so part of my work in my research is looking at those oral histories and also trying to understand, um, the history of where I fit within this legal system. And that's really, um, hard work, especially right now during, uh, it was really hard during the pandemic because a lot of this work is very relational and involves talking with people. And just, that's, that's where I learned best, is having these kinds of conversations like we're having today.

Speaker 3: 22:51

Thanks very much. Uh, professor Hannah, professor Kraft, either of you wanna, wanna chime in?

Speaker 4: 22:56

Sure. I'll, um, maybe explain how I see Anishinabe Law. Um, and you know, what's interesting as a, maybe a side note is thinking about how indigenous laws and legal orders from across Turtle Island have similar similarities, but that they're profoundly different from one another. And what makes them, in my view, um, unique, is actually that the land, the territory that they emanate from, it's not so much about people or nations setting up structures or systems of law, but about being responsive to the context from which they arise, which is very different, I think, from, you know, the ideas of civil and common law that kind of get carried in a backpack or, you know, floated ac across the ocean in a boat and land somewhere and kind of impose themselves on territory. But we see from indigenous laws and legal orders is that they are generated in context. Um, and in some ways a lot of them place humans as, uh, inconsequential, uh, last in an order, um, problematic in, uh, the, the general structure of the legal order, which is so interesting, um, because I think a lot of western legal systems place their anthropocentric, they'll, they'll place individuals, right, or, or people right at the center of, of the legal system and, and human decision makers as, as being primary. And I think the com, one of the common elements between indigenous laws and legal Aries is they kind of deconstruct that and, and as I said, come back to the basis, uh, of the land and, and the territory and the context, um, of all of the other beings that are part of creation, um, as being those, those founding elements. So I, you know, I think that's an important piece. And, and a lot of indigenous languages will also in their very descriptive ways, cuz many of them are descriptive and, and verb, verb based, speak about laws as, uh, sets of obligations and responsibilities in, in very detailed descriptive ways, but often that refer to the manifestation of obligations and responsibilities that other beings carry. And that's why we see, you know, um, these different do dams or these, these, um, family, uh, houses or crests or clans, that those are the animals that guide human behavior because they will have understood things by being an intimate connection with land, territory and water in ways that in a human lifetime one couldn't learn. And so I, you know, I, as I think about that, is the foundation of indigenous laws and governance, which I kind of compress into two, um, joining concepts because, um, and, and that's a, that's a whole long story in terms of, of why I think the two are so intimately connected and, and not separate, is that what we're doing is, uh, through indigenous laws, is governing relationships amongst beings and not between. And so we're not interfering in others' relationships, which I think is a huge feature of western systems that aim to interfere in others' relationships. Whereas indigenous laws and legal orders are about conducting one's self in ways that are appropriate and that recognize systems of responsibility, systems of relationship, um, and essentially are, um, allowing for an understanding of of how to live well right to, it's a way of life. And elder Fred Kelly talks about, um, Anishinabe law being based on voluntary compliance. And I think that that's extremely important when we try and understand Anishinabe law. It's not a set of rules that governs behavior or anyone else's behavior, it's a set of principles to which we voluntarily adhere for a purpose. And that purpose is, uh, to live, uh,[inaudible] or to live well. Um, and to enact that through our relationships with all beings that are part of creation and all beings being, you know, a very vast and expansive concept as, um, as Alan said, you know, we, we think about beings not only as humans or ase beings that are thought of in Western thought, but um, you know, a variety of different, um, beings that we interact with, including in the spiritual realm, um, and in, in our, our natural environment. And I think that those, um, you know, th those foundational ideas help us distinguish, uh, Anishinabe law from Western legal systems. And, um, I reflect on this a lot and, and it's been kind of one of my primary thoughts is, you know, why do I feel that Anishinabe law is so different from, um, Canadian law? Why, what distinguishes it? And there, I think there are two pillars to Anishinabe Law, um, living in relationship and looking to enact Menno mok or collective sense of wellbeing, uh, that come into start contrast with how western legal systems are structured around individualism. If we look at Canadian law, the individual is centered, um, and that most of Canadian law and Western legal systems are structured around the protection of private property. And so when we contrast relationship with individualism and collective wellbeing with the protection of private property, you can see that there's a huge disconnect in those concepts. They don't align. And yet those are the foundations of legal systems. So when we think about those even operating, you know, together or alongside each other, that those raise some, some major, major challenges. Um, funny story as, as you know, I've been trying to learn an anishinabek and I, I think it's a lifetime process and I'm very fortunate to have some amazing teachers. Um, part of that is understanding the language and, and understanding that law emanates also from that language that's so incredibly descriptive. And, um, you know, that bases itself on, on how we see the world unfolding in front of us. And that concept of mink doesn't have, uh, sort of a singular or individual, uh, way of expressing that concept. It is inherently collectivized. So you actually don't have to add a prefix that makes it collective, and you cannot add a prefix that makes it individual. And so those are two things in the anishinabe language that you can do. You can make something individual by adding mean for myself or keen to be collective. Um, and it doesn't apply to this concept. This concept is inherently, um, collective. So what that tells me in, in terms of understanding language and understanding law, is that I cannot have a wellbeing that is separate and distinct from the wellbeing of all of those beings that are in, uh, a web of relationship with me and with whom I interact. Um, whether or not it's directly or indirectly, they're all part of this complex web of relationships. So that collective sense of wellbeing is right at that core. Um, ensuring that, you know, or having knowledge that what I do is going to have this ripple effect with all of these multiple relationships and keeping in mind that collective wellbeing of all others. What that means is that I cannot be well if others are not well. And that's, again, coming back to the distinctions between, uh, Anishnabe law and Western legal orders that is not aligned with foundations of individualism and private property. It's really focusing back on relationships and that collective wellbeing or that Menno Molin.

Speaker 7: 31:27

Thank you to Aria Alaskan and her guest on the podcast Professor Amy Kraft, professor Alan Hannah and Christina Gray for their highly educational and insightful conversation. Thank you also to my co-editor, well Hale, our production leads Kristin Drew Hammerer and Natalie Rodriguez, and to advocate society team for their support. This is Ian Reman, coor of The Friends Who Argue Podcast Signing Off

Speaker 1: 31:51

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Speaker 2: 32:39

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Speaker 1: 32:43

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Speaker 2: 33:04

Until next time, we are friends who argue.