Page 1 |
2
Constitutional rights and responsibilities arise
out of the First People who established Nature’s Laws and
lived it during their sojourn on earth.
Indigenous People often are frustrated by the apparent
inability of non-Indigenous Canadians to comprehend that
First Nations' culture has continued to exist for at least
thousands upon thousands of years in one form or another on
Turtle Island. Breaking through the assumption that there
can only be one way of understanding legal development, i.e.
through European ideas, seems so difficult. Yet, for
Indigenous people, it is so obvious, even on European
grounds…
There are few people in Europe who will claim connection
to ancestors of 10,000 years ago, so why is the European
view so convinced of its absoluteness? No greater evidence
of the gap in understanding relates to "origins."
Constitutional issues are grounded by both European and
Indigenous people on a reading of "history," but which
history is most legitimate to direct understanding in North
America?
For Indigenous People the answer is self-evident: Whose
identity has survived the longest? Consequently, it is the
stories of the People's history that should define their
constitutional world, not one imported from abroad. Some
evidence of this is found in the following quotation from
Elder William Dreaver:
"I think the Whiteman should try to understand the natural
law that our grandfather has raised (us on). It is the
natural law that we do not really want to talk about. I was
once asked in the white world what that meant and I said
that the little I understand of it, that everything that is
here was given to the Old Man and Old Woman…the first ones
who were born here, is what I am saying. …Everything on this
earth we have to survive on, is here…and I still think this
way. There is a lot here for us. This is what I think …it is
important for the Whiteman to try to understand , of all
that they have claimed on our land. …This land is whole and
good….We are all under the same laws; we all have the same
rights. I am not preaching to you (when I say) I can take
these logs to build a house to where I will settle…that's
what our grandfather had said. You can take logs to build a
house to live in – that's what our grandfather said."
(Cree
Elder William Dreaver, May 4, 2002)
Similarly, some scholars are now coming to see the
validity of this perspective, as the following selection
from Turner demonstrates:
"The oral tradition contrasts with Western European
tradition of giving primacy of meaning to the written text.
The Spirit in the Land was written as an attempt to show
that Gitksan Wet'suwet'en knowledge passed down through
their traditions of storytelling ought to count as
legitimate sources of legal evidence in the courts of la
TRANSCRIPTION PROBLEM "Never before has a Canadian court
been given the opportunity to hear TRANSCRIPTION PROBLEM In
witnesses describe "within their own structure" the
history and nature of their societies" (Gisday Wa and Delgam
Uukw 1992).
If this is correct, then the problems inherent in
interpreting the meaning of the treaties cannot be resolved
by the unilateral imposition of one interpretation. Canadian
governments have insisted upon imposing their interpretation
of the treaties on Aboriginal peoples at least since the
time of Confederation. A just discussion about the meaning
of treaties demands that Aboriginal interpretations find
their way into the discourse alongside other
interpretations.
In addition to treaties, there are numerous acts of
legislation by British Canadian governments that can be
interpreted to mean that Aboriginal sovereignty has not been
extinguished. The Royal Commission on Aboriginal Peoples'
interim report on Aboriginal self-government, Partners in
Confederation, argues that there is already within the
Constitution recognition of the in the right of Aboriginal
self-government. Section 35(1) of the Constitution Act I982
guarantees the existing Aboriginal and treaty rights of the
Aboriginal people of Canada. The Supreme Court of Canada has
said that rights continue to exist even if they have been
suppressed by legislation.
Indigenous peoples argue that their original sovereignty
has been preserved throughout the legislative history of
Canada. To make this argument, Indigenous peoples are forced
to capture in words, or worse, in a theory, the spiritual
significance of their sovereignty This is usually followed
by the governments denying that the source of Indigenous
sovereignty lies in such mysterious spiritual connections
with the land. The governments then impose their
interpretations of how Indigenous peoples came to fall under
the authority of the Canadian state.
There are alternate views, however, The Royal Commission
states at the beginning of its publication, Partners,
"Other possible sources for the right exist, such as
international law, natural law, treaties, and the laws,
constitutions, and spiritual beliefs of Aboriginal peoples;
and other methods of articulating the rights are available"
(Royal Commission on Aboriginal Peoples 1993).
[Next >>]
|