1 | Page 2

[<< Previous]

The language of the Constitution, although certainly influenced by Indigenous interests, remains articulated in the language of the dominant culture. So the Commission's approach in Partners, while fruitful and necessary as it is to discuss Indigenous sovereignty, is not one that most Aboriginal peoples would advocate.

The theory that Indigenous peoples are "national minorities", implying they have been incorporated into the Canadian state, is also not how Indigenous people characterize themselves.

This illustrates the problem of the Indigenous voice being heard: in order to participate in the dialogue with political liberals about the significance of Indigenous rights must filter out the spiritual dimension which lies at the heart of Indigenous views on sovereignty and translate them into the language of rights.

This is what Indigenous peoples have been trying to do since the time of contact, but the translation process itself is the problem. Indigenous voices are not recognized as legitimate when they stand on their own; Indigenous philosophies must be expressed in the language of policy in order to be deemed useful (Turner 64-65).

In Oman's analysis of the Gitxsan and Wet'suwet'en ownership and jurisdiction case, we find another argument reflecting the Indigenous viewpoint:

To sum up, the tactics used to demonstrate the validity of Gitxsan and Wet'suwet'en claims within the dominant legal order were to show how the common law of Canada, and the Royal Proclamation each affirms the existence of Aboriginal rights. The plaintiffs did not argue that the common law or the imperial legal instrument served as the source of Gitxsan and Wet'suwet'en ownership and jurisdiction.

In order to accomplish the second task of demonstrating that the claim was justified in terms of their own First Nations law as well, the Gitxsan and Wet'suwet'en strategists decided to provide the court with the interpretive tools it needed to recognize the validity of that assertion, and in fact, to understand the nature of the Gitxsan and Wet'suwet'en conception of recognition itself. These tools consisted in the building blocks of the Gitxsan and Wet'suwet'en conceptual framework, their traditional ways of knowing and experiencing.

In order to induct the trial judge into an appreciation of the legitimacy of their claim in their own eyes, the plaintiffs tried to help him to see the world from their point of view. They did this primarily by showing the court the interrelationships among different aspects of their conceptual framework - by illustrating and explaining the connections among their oral systems of recording and witnessing their history, their connection with the land, and the role played by reciprocity in their "economy of affection." In each case, the explanation led back to the multi-faceted institution of the feast, which serves in Gitxsan and Wet'suwet'en societies in slightly different ways as the central site of spiritual, economic, political, social, educational, and legal interaction (Gisday Wa and Delgam Uukw 1989, Mills 1994).

By disclosing the nature of the feast systems of the Gitxsan and the Wet'suwet'en, the plaintiffs tried to demonstrate that the mainstream Eurocentric conceptual framework that divides up realms of human experience into separate and unrelated categories such as law, religion, and history does not "fit" with the way that most Gitxsan and Wet'suwet'en people understand their lives.

By insisting upon being true to their own conceptual framework throughout the court case, the Gitxsan and Wet'suwet'en participants tried to show the judge how the imposition of mainstream conceptual categories of their beliefs could only conceal and distort the true meaning of their claim. In so doing they invited the court to bring to the judicial process a cross-cultural understanding, which gave equal validity to the Aboriginal worldview and did not rely upon eurocentric experience and thinking as the universal reference point. Put another way, the court was being asked to participate in the decolonization of the legal mind as it articulated a principled basis for the adjudication of the constitutional rights of Aboriginal peoples [emphasis mine] (Jackson 1994).

Aboriginal and treaty rights gained protection in the Canadian Constitution of 1982 with the provision that "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed". A series of Supreme court decisions has given some definition of how these rights are to be interpreted under Canadian law, but there has never been a negotiated agreement between Aboriginal nations and Canada on the nature of these rights. Each court decision addresses a portion of the larger issue, raising a host of new questions. The Marshall decision of 1999 affirming Mi’kmaq rights under a 1760 treaty to earn a moderate living from the Atlantic fishery did not put an end to disputes about how resources are to be shared. (Oman 245).

A similar kind of argument is being made by George Erasmus:

Gaining recognition of Aboriginal rights in the courts and entrenchment in the Constitution have been critical to restoring Aboriginal peoples as active agents in directing our collective lives. Where land claims settlements have proceeded, they have opened possibilities for social, cultural, political and economic renewal. But there have been some unfortunate side effects of the rights agenda. An American Indian law professor has written that "Like other minority groups in our society, tribal Indians must demonstrate a convergence of their interests with dominant group interests in promoting their rights." This is difficult because "the rights they claim seem so alien and opposed to the dominant society’s legal, political, and cultural traditions". (George Erasmus, Vancouver, 2002).