Christian Approaches to Indigenous Rights and Reconciliation

CHRISTIAN APPROACHES TO

Indigenous Rights and Reconciliation —Dwight Newman*

Dwight Newman is Professor of Law & Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan.

He holds a BA from Regina, JD from Saskatchewan, and BCL, MPhil, and DPhil degrees from Oxford. He has also studied at the Hague Academy of International Law, and he completed this summer his studies for a Graduate Diploma in Christian Studies from Regent College.

Indigenous rights is an immensely complex field of law, and issues related to reconciliation interface with a broad range of government policy and actions beyond government as well. Both have a huge impact on Canada generally.

And both raise profound questions of justice and human relationship that exert a particular call on Christian lawyers and to which Christian lawyers may make a particular contribution. In this short article, I will try to set out a few key points on this challenging topic.1 There are many ways to try to come to grips with the tragedies that have affected Indigenous peoples in what has become Canada. There are many ways in which law and policy are now trying to

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respond. One might mention just some of the prominent recent cases as examples. In response to past dispossession of lands, the doctrine of Aboriginal title recognizes Indigenous land rights.

The Supreme Court of Canada’s historic 2014 Tsilhqot’in Nation decision saw it grant the first-ever judicial declaration of Aboriginal title to specific lands in Canada.2 In response to the potential for government decisions to gradually diminish Aboriginal and treaty rights, the Supreme Court of Canada developed the duty to consult doctrine, which requires proactive government consultation with communities whose Aboriginal or treaty rights are potentially affected by a government decision.3 The doctrine is triggered by hundreds of thousands of government decisions each year in Canada.4 In August 2018, the power of this obligation was seen when it led the Federal Court of Appeal to suspend a multi-billion-dollar pipeline project on account of inadequate execution of the duty to consult.5 In response to a range of issues, including residential schools, the Truth and Reconciliation Commission (TRC) reported in 2015 with a set of calls to action across a range of areas of policy both inside and outside government.6 Major efforts at statutory and policy reform are ongoing.

All of this takes place against a backdrop of complex, non-homogenous Indigenous communities. Differing Indigenous cultures, communities, or individuals have different perspectives on particular issues. And particular communities are situated very differently. While some communities have family incomes in excess of two hundred thousand dollars per year, many remain under twenty thousand dollars per year.

While some communities are moving forward strongly, others have substance abuse rates amongst the adult population in excess of eighty

percent. While some rent out urban lands, many others do not have safe drinking water. Christians concerned with justice cannot look away from the circumstances of our neighbours who are suffering.

Indeed, I will suggest here that there may be, first, particular responsibilities on Christians as well as, second, particular contributions that Christians can make to the context of Indigenous rights and reconciliation. Third, I will wrap up with some notes on the complexities of adaptation for the legal profession, drawing upon a brief example from the professional responsibility context.

Particular Responsibilities as Christians to be Responsive to Indigenous Rights and Reconciliation Indigenous rights and reconciliation present a deep-seated challenge partly because the church’s past involvement on Indigenous issues has fallen short of Christian ideals, notably in what sometimes appeared to be religious support for colonialism and in the involvement of churches in residential schools that removed children from their families.7 To say that much is not to deny the ultimate need for nuance in historical statements. But to insist on nuance before listening to those wronged and before facing up to what the church has done would be to refuse to listen and engage in a badly needed conversation and consider calls for change on systemic issues that should concern all people.

To listen to those harmed by the colonial encounter in Canada is to hear how there has been invoked over time a “doctrine of discovery” under which Indigenous lands were claimed by European powers, with this doctrine applied implicitly in Canada even as it was more explicitly in the United States.8 In the 1820s and 1830s, Chief Justice Marshall of the United States Supreme Court rendered a series of American Indian law cases that would ultimately serve as precedents in key Canadian cases, such as the 1973 Calder v. British Columbia decision that recognized the principles of Aboriginal title.9 Serious scholarly examination of these Marshall decisions has now increasingly shown them to have been located within a broader metaphorical frame within which Chief Justice Marshall actually made explicit religious references that invoked a Chosen People-Promised Land model derived from Scripture. Notably, Steven Newcomb’s important work shows the presence of biblical metaphors both in these Marshall opinions and in the common parlance of colonial expansion.10 All too often, in various ways and various countries, the Bible has been taken as providing a metanarrative for Western cultural domination, with Western cultural values carried alongside the gospel.11 There is ongoing, complex scholarly work being done on these topics, including in a fascinating book from earlier this year, Jennifer Graber’s The Gods of Indian Country: Religion and

the Struggle for the American West.12 Christians today are obviously not personally responsible for every wrong ever committed in the name of the Bible. But as a community, it is not unreasonable to respond in some way to these wrongs and to realize that it is necessary to make extra efforts to show the gospel’s transformative, justice-oriented potential dissociated from past wrongs. In doing so, we respond to Scripture’s call for justice; we also happen in this context often to be doing justice to others within the faith, for most Indigenous people in Canada are now Christian— even if in sometimes complex combinations of Christianity with traditional spiritual practices.

The Particular Potential of Christians to Contribute to Indigenous Rights and Reconciliation Scripture need not be read in culturally constrained ways. The gospel was an effort to communicate to all of humanity, after all, so it would make little sense that it have meaning only within Western European cultural tropes. New readings are possible.

The readings that emerge may be challenging, as we may see members of other cultures and circumstances contextualizing Scripture in ways we did not anticipate.13 In a New Zealand context, Alistair Reese describes how missionaries who shared the Scriptures with the Mâori were surprised to have some Mâori begin objecting to further land transfers by analogizing themselves to Naboth, recalling the 1 Kings 21 account of Ahab stealing Naboth’s vineyard—there was an indigenizing of the narrative and a claiming of some of its liberating potential.14 If we are true to Scripture, such an encounter may recall us to important dimensions of Scripture that do not receive the same attention within our own cultures—the missionaries to New Zealand had actually been important advocates for the Treaty of Waitangi,15 but they faced further calls for justice from indigenized readings of Scripture. More

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broadly, consider Naboth’s description of particular lands as “the inheritance of my ancestors”16—the description made profound sense to the Israelites and makes profound sense to Indigenous peoples across the world, but it is a remonstration to those of us who live in cultures where “sacred land becomes real estate”.17 Listening to other cultures we have wronged in the past is an important step today—let us be open to hearing from gospelreceiving cultures how we together “build the future differently than we have built the colonial past”.18 One of the particular concepts being used in trying to rebuild the future differently in this context is that of reconciliation. Interestingly, while used in governmental and policy contexts, the concept has deep religious roots, illustrating at once how Christians may have something in particular to offer. Much of Scripture is about the reconciliation of humanity with God. Some scholars writing on public theology have noted how reconciliation between people and peoples can be modelled in various ways on the reconciliation we have seen in Scripture.19 If they apply themselves, Christians already immersed in questions of reconciliation will have something to offer to the public discourse and practice of reconciliation.

Grounded in Scriptural ideals, Christians may also have perspectives to offer that allow for different injustices to be understood in ways that both affirm our common humanity and provide

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viable legal routes toward solutions. One of the injustices of residential schools that goes surprisingly underdiscussed is that of the removal of children from their families. In a forthcoming co-authored paper, my two co-authors and I try to draw attention to that dimension and how it provides legal arguments while being rooted in issues that everyone can understand and get behind.20 Indigenous policy is a complex area. It is important to be responsive to past injustices while also avoiding entrapping people in the past. It is important to be watchful for traps that can create new dependencies and to focus instead on empowering individuals, created in imago dei. So, Christians must respond to challenges in light of their full understanding of the human condition.

Public policy development is part of the practice of Christian justice and, as such, is simultaneously subject to all of the appropriate complexities that arise in real human communities.21 Christian lawyers and policy-makers will differ about specific conclusions and means in this legal and policy space. What is important is that they bring Christian approaches and Christian caring that can be ultimately transformative.

Practical Considerations in a Complex Field of Law There would be much more that could be said on many issues in this field of law and policy. I am

going to end, instead, on a practical and perhaps sobering note, again adverting to the complexity of this context. If you have the occasion to work on some issue in the Indigenous law and policy context, consider carefully which human interests you serve. On the one hand, you may be confronted with Indigenous clients subject to certain vulnerabilities. These contexts emphasize the need to act in accordance with all the deepest principles of fiduciary duties to the client. Fiduciary duties arguably have roots in the Biblical vision—consider the idea of stewardship in Genesis—as well as in old principles of canon law, but they of course ultimately require self-discipline in making sure one is always serving the client’s interests. That is simple enough in principle. But even the principles get more complicated in the context of other kinds of clients. If you work for a government while engaged with Indigenous issues, you may find yourself having to think about the idea that the Crown wears many hats22—there will be complex questions of how you face up to the Crown’s particular fiduciary relationship with Indigenous peoples while simultaneously considering appropriately the broader public interest.

Consider also the situations that may arise when you work for an Indigenous community seeking * This article is an adapted and expanded version of a presentation delivered at the 2018 Christian Legal Fellowship National Conference. I also delivered a presentation on related topics at the 2017 National Conference. I have learned much toward the article from some related coursework at Regent College, although there is still much to learn and discuss on these topics.

1 In respect of terminology, the term “Indigenous” has now become the most acceptable broad terminology in Canada, perhaps because of its connections to an international discourse. However, the Constitution Act, 1982 uses “Aboriginal peoples” as the broadest term, which includes First Nations (formerly called Indian), Inuit, and Métis peoples. Those are of course separate groups of Indigenous communities, and it is important not to mistakenly use “First Nations” as the general term if one means to include Inuit and/or Métis communities. In certain legal contexts, it may be necessary to use an older term that is less commonly accepted, such as “Indian” in the context of issues related to the Indian Act. It may be necessary to explain those references. Individuals or communities will self-identify in various ways that may not sit easily with the legal terminology and categories—or with generalities, since there will be some individuals who actively prefer to use older terms (for example, particular individuals who self-identify as “Indians”). Many individuals and communities will prefer to be known by their own cultural identity (e.g. “Haida” rather than a more generic “First Nations”). Starting with some point of knowledge and then respectfully asking about individual preferences will be the best route in dealing with issues of terminology. This article is mostly about general matters, and I will mostly use the term “Indigenous” unless a context calls for a more specific legal term.

2 Tsilhqot’in Nation v. British Columbia, 2014 SCC 44.

3 This originated in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73. For a widely-used book on various aspects of the duty to consult doctrine, see Dwight Newman, Revisiting the Duty to Consult Aboriginal Peoples (Saskatoon: Purich, 2014).

4 For this calculation, see Dwight Newman, “The Section 35 Duty to Consult”, in Peter Oliver, Patrick Macklem, and Nathalie Des Rosiers, eds., The Oxford Handbook of the

5 6 7

8 9 10 11 12 13 14 15 16 17

to pursue its rights. At least some Indigenous rights are held not just by the community as presently constituted but on behalf of a community persisting through time and may thus be subject to limits that maintain certain interests for future generations.23 You will potentially be dealing with a representative of the community, but if your client is the community itself that has important implications. Interestingly, The Federation Model Code of Professional Conduct, as amended to April 2017, has not as yet referenced any Indigenous issues24—surely something to be addressed in the years ahead—but some of its principles applying to when the client is an organization will have some bearing on such situations, at least with appropriate modifications and adaptations.

Conclusion There are many more issues to face, but I have tried here to introduce some perspectives on Christian approaches to Indigenous rights and reconciliation, the special responsibilities of Christians on these issues, the special potential of Christians to contribute, and the ongoing complexities of this space within law and policy. We are on a long journey together, and it is worth ongoing thought on the role of Christian lawyers on this journey.

Canadian Constitution (Oxford: Oxford University Press, 2017).

Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153.

Final Report of the Truth and Reconciliation Commission (Ottawa: Truth and Reconciliation Commission, 2015), Calls to Action.

On ways in which Calvinist narratives were invoked in support of colonialism, see generally Steven T. Newcomb, Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Golden Mountain, Colorado: Fulcrum Publishing, 2008); on religious involvement in residential schools, see generally Jim Miller, Shingwauk’s Vision: A History of Native Residential Schools (Toronto: University of Toronto Press, 1996).

See Robert J. Miller et al., Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford: Oxford University Press, 2012).

Calder v. British Columbia (Attorney General), [1973] S.C.R. 313 (first recognition in Canadian law of Aboriginal title land rights).

See especially chapters 5-8 of Newcomb, supra note 7.

Cf. e.g. Richard Twiss, Rescuing the Gospel from the Cowboys: A Native American Expression of the Jesus Way (Grand Rapids: InterVarsity Press, 2015) at 20-27.

Jennifer Graber, The Gods of Indian Country: Religion and the Struggle for the American West (Oxford: Oxford University Press, 2018).

On contextualization, see Clemens Sedmuk, Doing Local Theology: A Guide for Artisans of a New Humanity (Maryknoll: Orbis Books, 2002).

See Alistair Reese, Truth, Repentance, and Naboth’s Vineyard: Towards Reconciliation in Aotearoa New Zealand (MPhil thesis, Cambridge University, 2007) at 44-45, 49ff.

See generally Keith Newman, Bible & Treaty: Missionaries Among the Maori – A New Perspective (Melbourne: Penguin Australia, 2010) at 146-59.

1 Kings 21: 3.

The line is from Roxanne Dunbar-Ortiz, An Indigenous Peoples’ History of the United States (Boston: Beacon Press, 2014) at 55, following an account of how the cultural framework of European Calvinism applied covenant state

ideas to claim land but then transformed it into real estate: ibid. at 45-55.

18 George E. Tinker, American Indian Liberation: A Theology of Sovereignty (Maryknoll: Orbis Books, 2008) at 4.

19 Dominic O’Sullivan, “Reconciliation as Public Theology: Christian Thought in Comparative Indigenous Politics” (2014) 8 International Journal of Public Theology 5. On reconciliation, see also Dominic O’Sullivan, Faith, Politics, and Reconciliation: Catholicism and the Politics of Indigeneity (Adelaide: ATF Press, 2005); John de Gruchy, Reconciliation: Restoring Justice (Minneapolis: Fortress Press, 2002).

20 See Amy Anderson, Dallas Miller, and Dwight Newman, “Canada’s Residential Schools and the Right to Family Integrity” (2018) 41:2 Dalhousie Law Journal (forthcoming).

21 See generally Duncan B. Forrester, Christian Justice and Public Policy (Cambridge: Cambridge University Press, 1997).

22 See Wewaykum Indian Band v Canada, 2002 SCC 79 at para 96: “The Crown ... wears many hats” (per Binnie J.).

23 There are statements to this effect concerning Aboriginal title at several points in Tsilhqot’in, supra note 2.

24 There have been efforts at some specific documents related to Indigenous contexts. See e.g. The Advocates’ Society, The Indigenous Bar Association, and The Law Society of Ontario, Guide for Lawyers Working with Indigenous Peoples (8 May 2018). With respect, I unfortunately think there are a number of errors in this Guide on points of both history and law, but it is nonetheless an important effort.

25 Federation of Law Societies of Canada, Model Code of Professional Conduct (as amended to 14 March 2017), s.

3.2-3 “Although a lawyer may receive instructions from an officer, employee, agent or representative, when a lawyer is employed or retained by an organization, including a corporation, the lawyer must act for the organization in exercising his or her duties and in providing professional services” (and accompanying commentary), including the statement that “[w]hile the organization or corporation acts and gives instructions through its officers, directors, employees, members, agents or representatives, the lawyer should ensure that it is the interests of the organization that are served and protected”).

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