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JOURNAL OF PEACE, CONFLICT & JUSTICE


ILLUSTRATOR Angel Bella

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JOURNAL COMMITTEE EDITOR-IN-CHIEF Paris Molokwu DEPUTY EDITOR-IN-CHIEF Angel Bella ACADEMIC DIRECTOR Ryan Hamilton CREATIVE DIRECTOR Angela Liu ASSOCIATE EDITORS Omar Kassam Syeda Hasan Stephanie Cortinovis Shauna McLean Elisa Pugiliese

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TABLE OF CONTENTS ECOLOGY The Ordained Tree How Buddhist Personhood Conserves Thai Forests

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Sarina Wong

Rethinking Mastery Amidst the Climate Crisis

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Moyukh Syeed

Who Determines the Rights of Nature Understanding Indigenous Food Security and the History Behind the Haudenosaunee Right to Hunt in Short Hills Provincial Park

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Mollie Sheptenko

GOVERNANCE AND POLICY A Double Pandemic The Effects of Anti-Black Racism During COVID-19

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Alexander Lawson, Tourang Movahedi, and Amanda Wang

Health and Wellbeing: Mental Health Crisis Literature Review Striving for Health Equity through Medical, Public Health, and Legal Collaboration

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Joel Teitelbaum, Joanna Theiss, and Colleen Healy Boufides

Climate Change The Case for NATO’s New Raison d’Être

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Eric Jackson

EU Development in Sub-Saharan Africa and Japanese Development in Asia The Persistence of Top-Down Structures in Aid Programs

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Anders Bretsen

LEGAL COMMENTARY AND ANALYSES Over-representation of Indigenous Inmates in Canadian Correctional Facilities

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Lina Lashin

Forcible Circumcision and Male Sexual Violence in Kenya

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Jennifer Han

Becoming Indigenous to Place On Adopting Indigenous Notions of Private Property

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Ori Gilboa

POEMS

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The Eternal Target

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Sarai Rudder

To Whom it May Concern

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Ameera Essabar


LETTER FROM TH E EDITOR

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t is no exaggeration to say that the past year has been a trying time for our peers, our educators and broader University of Toronto community members. In fact, I would call such an observation an understatement. However, it would be an equal injustice to not be in awe of how much growth and perseverance we have demonstrated here at the Peace, Conflict and Justice Studies program.

The Rapoport is dedicated to celebrating the exemplary work of students whose scholarly interests are within related fields. This year, our selected papers are topical as they are timely, spanning from public health, law enforcement and policy to climate justice and discourses on race and ethnicity. This is particularly at a time when our generation of scholars has been charged with reflecting on how these topics, and their implications, are not simply moral in nature but, more alarmingly, have material consequences that disproportionately affect specific demographics. Perhaps the most devastating revelation is our community’s proximity to these topics, which we often forget due to privilege and the inevitable abstractions that come with existing in a scholarly bubble. More often than not, readers will find that each paper explores the intersections of the aforementioned topics, with each author poignantly looking towards the future with a proactive flare. Our team gave special priority to papers that thematically resonated with Transformative Justice, and with that, we hope that this issue inspires its readers to seek ways in which they can be a part of the change. It has been a deeply humbling experience to be this year’s editor-in-chief, and I am immensely proud of the talented masthead and authors who have been so generous with their work. With adoration, Paris Molokwu

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ECOLOGY

THE ORDAI NED TREE How Buddhist Personhood Conserves Thai Forests BY SARI NA WO N G

INTRODUCTION

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ominant, Western neoliberal definitions of personhood understand people as humans who are rational and live a consumption-based lifestyle. Such definitions of personhood are used as a criterion for respect and rights conferred by the state. Because it is neither thinking nor consumptive, nature is not afforded respect or rights. The lack of protection, alongside the neoliberal imperative of financial accumulation, justifies the destruction of nature leading to climate change. Many scholars suggest that another, more ecologically-grounded, definition of personhood is necessary to address the climate crisis. In Thailand, where 93% of the population is Buddhist, there is a growing environmental movement. This essay argues that this movement challenges Western conceptions of personhood. In northern Thailand, activist monks have invented the practice of tree ordination, which symbolically assigns personhood to a tree. The practice of ordaining a tree stems from an ecological interpretation of Buddhist beliefs on personhood. These beliefs propose that people are not separate from or dominant over nature. Rather, people arise with nature, are in relationships with nature, and must respect nature. Personhood is not a requirement for respect, nor is the state the only power that gives rights or protections. Local, everyday people have responsibilities to respect and protect nature. What makes a “person,”

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or as Buddhist thought would describe it, an “enlightened” being, is the ability to relieve the suffering of others and the earth. The manifestation of these beliefs in tree ordination practices has made marked progress in protecting areas of the Thai forest from environmental destruction. Such progress suggests that redefining personhood can and has helped address the climate crisis.

WESTERN AND NEOLIBERAL DEFINITIONS OF PERSONHOOD Though they source the beginnings of the divide differently, many scholars including Raj Patel, Jason Moore, Christophe Bonneuil, and Jean-Baptiste Fressoz, have documented the creation of the conception of the person as rational and separate from nature. For Patel and Moore, the separation of man from nature began with Descartes’ 1641 proclamation of “cogito ergo sum,” or “I think therefore I am.” Descartes’ statement distinguished man from nature because “man” thinks and nature does not. From that distinction, Descartes argued that man thus must become “the masters and possessors of nature.” In contrast, Bonneuil and Fressoz suggest that the division occurred in the 1800s where scientists discovered that the Earth predated human life. Regardless of the origin of this conception, these scholars agree that the current Western hegemonic understanding of personhood is characterized by its distinction from nature, where people control and dominate nature.

In conversation with this idea of personhood distinguished from nature is the scholar Korten’s argument of the current “imperative of sacred markets.” With the development of capitalism, the market has become “sacred.” The underlying philosophy of today is that “[M]oney is wealth. Material consumption is the path to happiness. Making money creates wealth, drives consumption to increase happiness and is the defining purpose of individuals, business and the economy.” Once wealth becomes the goal, “progress” is understood as the increase in capital accumulation, often measured in GDP – the wealth accumulated per capita in a nation. To have the most “progress” is to then accumulate the most capital possible. According to this ideology, humans can and should control nature to accrue maximal capital, and in turn, can and should abuse nature to earn money. The imperative of capital accumulation further permeates definitions of personhood in the asymmetrical way that personhood is attributed. The current global political order defines personhood as the possession of citizenship. Those who do not possess citizenship from a certain country are not given the respect and rights that personhood and citizenship affords. As the Canadian Council for Refugees says: “states have specific obligations towards their citizens and grant citizens significantly more rights than non-citizens. Since no State recognizes them, stateless persons are deprived of many basic rights and have no State to protect


them.” Citizenship, however, is awarded based on the fulfillment of a “consumption-based lifestyle” where one produces and consumes to promote said nation’s economic growth. People who do not live a consumption-based lifestyle or generate sufficient economic growth are not afforded citizenship by the state. This phenomena is what scholars like Trentmann call “citizenship as consumerism.” The asymmetric tribution of consumption-citizenship-as-personhood is evident even in Canada, a country that announces in its Charter that “every individual in Canada – regardless of race, religion, national or ethnic origin, colour, sex, age or physical or mental disability – is to be treated with the same respect, dignity and consideration.” In Canada, citizenship and immigration applicants from people who are highly educated and can “contribute” to Canada’s economy are significantly more likely to be accepted. This explains why while 23% of Canadians are “foreign born,” they constitute 49% of doctorate holders and why the Canadian government admits that at least “6 in 10 immigrants are selected for their positive economic impact.” These neoliberal ideas of personhood have significant consequences on philosophical approaches to and real-world treatment of nature. According to these ideas, nature is not a person because first, it is not a human, and second, because nature is not a consumer promoting economic growth. Given that it is not acknowledged as a person or citizen, nature is left without the legal protections of personhood. Neoliberalism emphasizes the need for maximal capital accumulation, which can only be achieved by exploiting nature. These philosophical assumptions paved the way for the destruction of the Earth.

TH E EFFECTS OF NEOLI BERAL PERSONHOOD IN NORTHERN THAI LAN D In the late 19th century, British neocolonialism spread neoliberal ideas of personhood and modernization to Thailand. The British-influenced bureaucratic reform in 1892 resulted in the establishment of a strong, centralized state under the imperative and rhetoric of modernization and development, which later became an organizing principle of government

policy. Increased state power enabled the Thai government and British foresters to create an “informal empire” over the forests of northern Thailand. In 1899, all forests were declared Thai government property and all logging without payment to the Royal Forest Department was prohibited. This state-controlled forest management was intended to create a “development boom” aimed at helping Thailand catch up to developed countries in the economic sector. Deforestation accelerated in the 1960s when the Thai government promoted agricultural expansion for export and the use of natural resources for industrialization. This intensified the competition for arable land, encouraging locals and businesses to clear forests. The government also encouraged local villagers in northern Thailand to adopt a “more modern lifestyle” and give up subsistence lifestyles in favour of cash cropping, which involved slashing trees to create land for cash crop farming. As more villagers cut the forest for money, it became harder to live a subsistence lifestyle, starting a spiral of deforestation. More locals were forced to switch to cash cropping. However,  because cash cropping requires significant upfront costs in buying materials such as seed, fertilizer, and pesticides, people cleared even more forest to pay off debts incurred in purchasing materials. This exploitation of timber and the search for agricultural land have nearly destroyed the region’s forests as the economy shifted from subsistence to a monetary base. The result is that the Thai forest has been cut down at one of the fastest rates in Asia, decreasing from 72 percent of the total land in 1938 to 53 percent in 1961, and 29 percent in 1985 to less than 15 percent today. In this way, Thailand’s forests are an example of how neoliberal ideas of personhood engender environmental destruction which suggests that another, more ecological philosophy, of personhood might help protect the Earth.

BUDDH IST VIEWS OF PERSONHOOD Buddhist conceptions of personhood are one such ecological philosophy. In fact, many of its teachings are ideologically opposed to neoliberal ideas of personhood. As interpreted by Joanna Macy, Leslie Sponsel and other monks

and scholars, Buddhism teaches that humans and nature are not separate; indeed, the “self ” does not exist because “the self is a metaphor.” According to Macy, humans can “decide to limit [the self ] to our skin, our person, our family, our organization, or our species.” However, there are “wider currents and loops of knowing that interconnect us [and so it is] just as plausible to conceive of mind as coexistent with these larger circuits,” circuits in which we are in relationships with nature. The interconnectedness between humans and nature is further explained by the Law of Dependent Co-origination. The Law proposes that everything is mutually constituted, for “a cause must, at the same time, be an effect, and every effect must also be the cause of something else.” All beings (humans, animals, the Earth) are interconnected and consequently deserve equal dignity, respect and protection. Buddhist ethics thus teaches that humans should decide how to act based on our effect on beings with whom we are connected. Without the concept of a self separate from nature, it is not possible for a “self,” as understood from Buddhist teachings, to conquer nature; it should respect nature instead. Unlike neoliberal thought, it is not the state that confers “rights” to others, but everyday people in their compassionate acts towards the world around them. While neoliberal thought argues that the goal of life is “modernization” as defined by capital accumulation, Buddhist teachings suggest that life should be oriented towards relieving suffering. In fact, capital accumulation as a goal makes many individuals more unhappy. Buddha supposed that humans crave not just the things they see but an “uninterrupted sense of ease or completeness when they have grasped and held tight to what they seek for satisfaction.” Thus, the acquisition of the material things individuals claim to want will not satisfy them because what people really want are to be selves that are completed and fulfilled by “unchanging things.” But there is “no such thing as unchanging things, and there is no self that is permanent that could be content with things.” To achieve the fulfillment and completeness of the self, Buddhist teachings suggest the path to moksha, a concept of liberation where one starts to disengage from

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craving and clinging to impermanent states or things. This is the root of the Four Noble Truths, the guiding principles of Buddhism, where people should aim to relieve suffering in themselves and the world around them. Some monks argue that Buddhist environmentalism is necessary because it serves two purposes related to relieving suffering. Specifically, environmentalism addresses the need to protect and preserve the natural environment to lessen the suffering that comes with environmental destruction and promotes the deeper meaning of religion aimed at realizing enlightenment or relief from suffering.

TREE ORDINATION: THE PRACTICE The practice of ordaining trees originated in northern Thailand in the late-1980s as a response to protect forests from widespread deforestation from logging and the expansion of farmland. The above interpretations of Buddhist beliefs underpin the tree ordinations by some Buddhist monks. Tree ordination has various forms, and can be as simple as one monk, alongside a group of villagers, wrapping old robes around large trees in a forest. Over time, however, tree ordination has been “systematized” to involve both spirit beliefs from illiterate villagers and scientific ecology from the educated workers of nongovernmental organizations (NGOs). The systemized version of ordination spans several days where a “folk” ceremony is combined with “modern” agricultural projects and environmental education. For example, the monk Phrakhru Pitak travelled around the villages where he was to perform a tree ordination to show a slide show of cartoons and data accompanied by his own speech “filled with humor, Buddhist culture, and information about the importance of the forest.” The ordained tree then often becomes part of a forest the community takes responsibility for.  Tree ordination ceremonies have several different purposes. Tree ordinations attempt to increase interest in and knowledge of environmental issues. Monks have used the ceremony as a way to educate and engage local villagers on environmentally friendly practices and the importance of environmentalism. Weeks before an ordination, the

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monk Pitak, specified above, worked with local NGOs to visit ten nearby villages and showed them slides that incorporated moral lessons on Buddhist ethics, like the importance of selflessness and generosity with the importance of the environment. Tree ordinations also aim to directly protect the trees from destruction by building a spiritual commitment among local people to conserve the forest. Tree ordinations often involve the posting of a sign that says, “to destroy the forest is to destroy life.” Ordained trees are also usually wrapped in colourful monk robes. The distinctive aesthetic of the sign and the robes is a visual reminder of the tree and our actions towards it as “part of a hierarchy of progressively larger ecological systems,” and people’s interconnectedness to the world. In this way, ordained trees challenge the neoliberal “stereotypical ‘Western’ view that [nature] should be subjugated to humanity,” and reminds people to respect nature in accordance with Buddhist teachings. These teachings are reinforced with the importance of Buddhism for the majority Buddhist Thai people. Phrakhru Manas, the first monk to perform an ordination, said that in naming the ceremony, he chose the word “ordination” to give the ceremony “more weight.” Armed with the desire for and knowledge of conservation, Thai villagers protect the forest from the Thai government and logging companies. This act of protection challenges the western belief that the state is the only power that gives rights or protections over people and nature. Leading up to each ceremony, ordaining communities would either create or revise the operation of village-level community forest committees and its rules. Such rules pertained to a wide variety of topics including hunting, gathering, and collecting firewood. Though community forests in Thailand have no legal standing, the existence of community forests tied to tree ordinations has persuaded government officials to allow some local management of forests. As such, tree ordinations “discourage anyone interested in cutting trees in the ordained area, including illegal logging interests and members of the ordaining communities themselves. This is the most explicit and instrumental use of the ritual for forest conservation.”

EFFECTIVEN ESS OF TREE ORDINATION While tree ordination is still a relatively new practice, it has been successful in first, subverting Western ideas of personhood with a growing acceptance of activist monks’ philosophies and work, and second, in helping to heal the environment. All of the ecology monks were initially criticized by the military and logging corporations, earning pejorative labels like “Russian monk” and “communist monk.” However, support for both monks in general and tree ordination practices have shifted drastically. Part of this shift can be credited to the work of the monk Pharkhu Pitak, who noticed that development monks, the precursor for ecology monks, received a lot of criticism for their activism, especially since the sangha (institution of monks) thought that monks should not be involved with the government or politics. Consequently,  Pitak made sure to involve other parties in his activism and maintain good relations with the parties. Pitak was one of, if not the first, monk who invited sangha, government, and military officials to participate in public rituals. His inclusion of these parties is credited for a “shift in social thinking about environmental monks.” For this reason, despite its initiation by a few lone monks, tree ordination became a widely accepted practice throughout Thailand. In fact, in 1997, the Thai king Bhumibol Adulyadej asked Thai citizens to ordain 50 million trees in celebration of the fiftieth anniversary of his accession. Phrakhru Pitak and national NGOs created the “Program for the Community Forest Ordination of 50 Million Trees in Honor of the King’s Golden Jubilee,” which involved hundreds of villages. The king’s proclamation served to legitimize tree ordination. However, there is no comprehensive data on the effectiveness of tree ordination on forest conservation. Nevertheless, the existence of tree-ordained community forests contradicts the Thai government’s desire to destroy forests to promote modernization and the government’s principle of centralized bureaucracy – a concept adopted from the British in the late 19th century. Community forests should thus be seen as a victory for the Buddhist environmental movement. Moreover, an example of the effectiveness of tree


ordination is seen in Dok Dang, a village in the province of Nan. In 1987, the village had severe water shortages. The monk Pitak practiced tree ordination and used the practice as an opportunity to teach villagers about the connection between deforestation and lack of water. Pitak then used the increasing public interest in environmentalism to work with villagers and local development NGOs to set up the Dok Dang Conservation Association to protect forests. Gradually, the lands that villagers worked to protect and nurture became more healthy and productive. By the early 90s, bamboo shoots, mushrooms and various vegetables grew in greater amounts than they had in years and water began to flow again. Dok Dang thus serves as one example of how tree ordination can teach an alternative and more eco-friendly vision of personhood that manifests into more sustainable living practices.

CONCLUSION Over time, the growing Thai Buddhist environmental movement and its practice of tree ordination has challenged Western conceptions of personhood. In contrast to neoliberal ideology, Buddhist beliefs suggest that people are not separate from or dominant over nature, but relationally tied and responsible for the relief of its suffering, as well as the people around them. These beliefs, alongside the ritual of tree ordination have, in parts of northern Thailand, successfully promoted sustainable living practices and restored parts of the Thai forest. The Thai Buddhist movement stands as an example of how redefining personhood can and has helped address the climate crisis.

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ENDNOTES i

Bonneuil, Christophe, and Jean-Baptiste Fressoz. The Shock of the Anthropocene: The Earth, History and Us. Translated by David Fernbach. Translation edition. London ; Brooklyn, NY: Verso, 2016. ii David

C. Korten, Change the Story, Change the Future: a Living Economy for a Living Earth: a Report to the Club of Rome. Oakland, CA: BerrettKoehler Publishers, Inc., 2015.

iii Ibid. iv

Dylan Clarke, “Questions of Society: Empowered Citizens in Asia,” Questions of Society: Empowered Citizens in Asia (March 27, 2020).

xviii Joanna xix Ibid. xx Ibid. xxi

Nhat Hanh Thich, 1999. The Heart of the Buddha’s Teaching. New York: Broadway Book

xxii John E. Carroll et al., The Greening of Faith: God, the Environment, and the

Good Life (Durham, NH: University of New Hampshire Press, 2016), 65.

xxiii Ibid. xxiv Ibid.

v Ibid.

xxv

vi Ashley Dawson, Extreme Cities: the Peril and Promise of Urban Life in the Age of Climate Change (London: Verso, 2019).

xvi Ibid.

vii

“Statelessness in Canada: An Introduction,” Statelessness in Canada, accessed December 1, 2020, https://ccrweb.ca/sites/ccrweb.ca/files/ static-files/stateless.htm. viii Ibid ix

Turner, “Contested Citizenship in East Asia,” 2012, https://doi. org/10.4324/9780203841747. x

Canadian Heritage, “Government of Canada,” Canada.ca (/ Gouvernement du Canada, June 8, 2020), https://www.canada.ca/en/ canadian-heritage/services/how-rights-protected/guide-canadiancharter-rights-freedoms.html.

xi

Government of Canada, Statistics Canada, “Labour Force Characteristics of Immigrants by Educational Attainment, Annual,” Labour force characteristics of immigrants by educational attainment, annual (Government of Canada, Statistics Canada, January 10, 2020), https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=1410008701.; Refugees and Citizenship Canada Immigration, “Government of Canada,” Canada.ca (/ Gouvernement du Canada, June 24, 2019), https://www.canada.ca/en/immigration-refugees-citizenship/news/ infographics/immigration-economic-growth.html xii

Bialek, Marieta Rose. “Thai Buddhist Ecology Monks: Competing Views of the Forest,” 2014. xiii Lotte Isager, and Søren Ivarsson. “Contesting Landscapes in Thailand:

Tree Ordination as Counter-Territorialization.” Critical Asian Studies 34, no. 3 (September 2002): 395–417.

xiv Ibid. xv Ibid.

Joanna Macy, Greening of the Self. New York: Parallax Press, 2013, 62.

xvii

Susan M. Darlington, The Ordination of a Tree: the Thai Buddhist Environmental Movement (Albany, N.Y: SUNY Press, 2012), 30.

xxviii

Note that activist monks are a small number of practicing Thai Buddhist monks, and are not representative of Thai Buddhism as a whole.

xxix

Joanna Macy, Greening of the Self. New York: Parallax Press, 2013, 5.

xxx Damien Keown, Buddhist Ethics: A Very Short Introduction (2nd Edn). Buddhist Ethics: A Very Short Introduction. Oxford University Press. xxxi Susan M. Darlington, The Ordination of a Tree: the Thai Buddhist Environmental Movement (Albany, N.Y: SUNY Press, 2012), 30. xxxii Sponsel, Leslie E., and Poranee Natadecha-Sponsel. “Buddhist Views

of Nature and the Environment.” Science Across Cultures: The History of Non-Western Science Nature Across Cultures, 2003, 351–71. https://doi. org/10.1007/978-94-017-0149-5_18. xxxiii “Buddhists.” Pew

Research Center’s Religion & Public Life Project, December 31, 2019. https://www.pewforum.org/2012/12/18/globalreligious-landscape-buddhist/.

xxxiv

Avery Morrow, “Tree Ordination as Invented Tradition.” ASIANetwork Exchange: A Journal for Asian Studies in the Liberal Arts 19, no. 1 ( January 19, 2012): 55.

xxxv Henry D. Delcore, “Symbolic Politics or Generification ? The Ambivalent Implications of Tree Ordinations in the Thai Environmental Movement.” Journal of Political Ecology 11, no. 1 (December 1, 2004): 21. xxxvi

Avery Morrow, “Tree Ordination as Invented Tradition.” ASIANetwork Exchange: A Journal for Asian Studies in the Liberal Arts 19, no. 1 ( January 19, 2012): 58.

xvi

Susan M. Darlington, The Ordination of a Tree: the Thai Buddhist Environmental Movement (Albany, N.Y: SUNY Press, 2012), 15.

xxxvii

xvii

xxxviii

Note that there are many different interpretations of Buddhism, and this is but one of them. There are, indeed, scholars like Christopher Ives who argue that Buddhism is not inherently ecological. However, the way Buddhism is practiced in Thailand approaches Buddhism as a “lived religion” that can be adapted to present circumstances as long as it stays true to the goal of relieving suffering and is indeed practiced in an ecological way; ibid.

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Macy, Greening of the Self. New York: Parallax Press, 2013, 5.

Susan M. Darlington, The Ordination of a Tree: the Thai Buddhist Environmental Movement (Albany, N.Y: SUNY Press, 2012), 54.

Avery Morrow, “Tree Ordination as Invented Tradition.” ASIANetwork Exchange: A Journal for Asian Studies in the Liberal Arts 19, no. 1 ( January 19, 2012): 55. xxxix Avery Morrow, “Tree Ordination as Invented Tradition.” ASIANetwork Exchange: A Journal for Asian Studies in the Liberal Arts 19, no. 1 ( January 19, 2012): 56.


BI BLIOGRAPHY Bialek, Marieta Rose. “Thai Buddhist Ecology Monks: Competing Views of the Forest,” 2014. Bonneuil, Christophe, and Jean-Baptiste Fressoz. The Shock of the Anthropocene: The Earth, History and Us. Translated by David Fernbach. Translation edition. London ; Brooklyn, NY: Verso, 2016. “Buddhists.” Pew Research Center’s Religion & Public Life Project, December 31, 2019. https://www.pewforum.org/2012/12/18/ global-religious-landscape-buddhist/. Callicott, J. Baird, and James McRae, eds. Environmental Philosophy in Asian Traditions of Thought. State University of New York Press, 2015. Carroll, John E., Paul T. Brockelman, Mary Westfall, and Bill McKibben. The Greening of Faith: God, the Environment, and the Good Life. Durham, NH: University of New Hampshire Press, 2016. Clippard, Seth Devere. “The Lorax Wears Saffron: Toward a Buddhist Environmentalism.” Accessed November 1, 2020. https://go-gale-com. myaccess.librar y.utoronto.ca/ps/i.do?p=CIC&u=utoronto_ main&id=GALE|A322480417&v=2.1&it=r&sid=summon. Clarke, Dylan. “CAS202 .” Questions of Society: Empowered Citizens in Asia. Lecture presented at the Questions of society: empowered citizens in Asia, March 27, 2020. Dalby, Simon. “Climate Geopolitics: Securing the Global Economy.” International Politics; Basingstoke 52, no. 4 ( July 2015): 426–44. http://dx.doi.org.myaccess.library.utoronto.ca/10.1057/ip.2015.3. Darlington, Susan M. The Ordination of a Tree: The Thai Buddhist Environmental Movement. Illustrated edition. Albany: State Univ of New York Pr, 2012. Dawson, Ashley. Extreme Cities: the Peril and Promise of Urban Life in the Age of Climate Change. London: Verso, 2019. Delcore, Henry D. “Symbolic Politics or Generification ? The Ambivalent Implications of Tree Ordinations in the Thai Environmental Movement.” Journal of Political Ecology 11, no. 1 (December 1, 2004): 1–30. https://doi.org/10.2458/v11i1.21656.

Korten, David C. Change the Story, Change the Future: a Living Economy for a Living Earth: a Report to the Club of Rome. Oakland, CA: Berrett-Koehler Publishers, Inc., 2015. Lim, Hui Ling. “Environmental Revolution in Contemporary Buddhism: The Interbeing of Individual and Collective Consciousness in Ecology.” Religions 10, no. 2 (February 1, 2019): 120. https://doi. org/10.3390/rel10020120. Macy, Joanna. Greening of the Self. New York: Parallax Press, 2013. Morrow, Avery. “Tree Ordination as Invented Tradition.” ASIANetwork Exchange: A Journal for Asian Studies in the Liberal Arts 19, no. 1 ( January 19, 2012): 53–60. https://doi.org/10.16995/ane.11. Patel, Raj, and Jason W. Moore. A History of the World in Seven Cheap Things: A Guide to Capitalism, Nature, and the Future of the Planet. Accessed November 1, 2020. https://www.amazon.com/HistoryWorld-Seven-Cheap-Things/dp/0520293134. Sponsel, Leslie E., and Poranee Natadecha-Sponsel. “Buddhist Views of Nature and the Environment.” Science Across Cultures: The History of Non-Western Science Nature Across Cultures, 2003, 351–71. https:// doi.org/10.1007/978-94-017-0149-5_18. “Statelessness in Canada: An Introduction.” Statelessness in Canada. Accessed December 1, 2020. https://ccrweb.ca/sites/ccrweb.ca/files/ static-files/stateless.htm. “The Heart of the Buddha’s Teaching (1999 Edition) | Open Library.” Accessed November 1, 2020. https://openlibrary.org/works/ OL115690W/The_heart_of_the_Buddha’s_teaching. Thich, Nhat Hanh. 1999. The Heart of the Buddha’s Teaching. New York: Broadway Book. Turner. “Contested Citizenship in East Asia,” 2012. https://doi. org/10.4324/9780203841747. Winright, Tobias. The Greening of Faith: Insights from Judaism, Islam, and Buddhism: Winright, Tobias: 9781599829302: Amazon.Com: Books. Accessed November 1, 2020. https://www.amazon.com/GreeningFaith-Insights-Judaism-Buddhism/dp/1599829304.

Heritage, Canadian. “Government of Canada.” Canada.ca. / Gouvernement du Canada, June 8, 2020. https://www.canada.ca/en/ canadian-heritage/services/how-rights-protected/guide-canadiancharter-rights-freedoms.html. Immigration, Refugees and Citizenship Canada. “Government of Canada.” Canada.ca. / Gouvernement du Canada, June 24, 2019. https://www.canada.ca/en/immigration-refugees-citizenship/news/ infographics/immigration-economic-growth.html. Isager, Lotte, and Søren Ivarsson. “Contesting Landscapes in Thailand: Tree Ordination as Counter-Territorialization.” Critical Asian Studies 34, no. 3 (September 2002): 395–417. https://doi.org/10.1080/1467 271022000008947. Keown, Damien. Buddhist Ethics: A Very Short Introduction (2nd Edn). Buddhist Ethics: A Very Short Introduction. Oxford University Press. Accessed November 1, 2020. https:// www-veryshortintroductions-com.myaccess.library.utoronto. ca/view/10.1093/actrade/9780198850052.001.0001/actrade9780198850052-chapter-3.

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ECOLOGY

RETHINKING MASTERY AMIDST THE CLIMATE CHRISIS BY MOYU KH SYEED

I NTRO DUCT ION “Sustainable growth demands affordable growth and inclusive growth - that is the bottom line.” - S. Narain

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nvironmental justice and social justice are inextricably linked. Hence, discourse on the climate crisis necessitates a re-examination of human relationships, both with nature and amongst each other. Mastery, a relational concept derived from notions of post-colonial theory, characterizes a phenomenon that dominates current social structures. Scholar and writer Julietta Singh purports that this phenomenon reproduces colonial logic - the drive towards mastery over self and others - within existing economic and political relations, and in doing so, establishes fundamentally unjust social structures. In this paper, I delineate the notion of mastery, in the context of the climate crisis, to highlight the environmental and social injustices that result from its prevalence. Firstly, I will define Singh’s concept of mastery. Then I will illustrate, through the writings of Sunita Narain and Anil Agarwal, an application of mastery within contemporary economic and political structures. Finally, I will conclude by bringing the aforementioned authors into conversation with Joanna Zylinska’s concept of Relationality as an alternative to mastery. This alternative conceptualization of human relations represents more just and sustainable dynamics of human relations amongst themselves and in relation to the environment.

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JULI ETTA SINGH ’S CONCEPT OF MASTERY In her book Unthinking Mastery, Julietta Singh explores the intersections of postcolonial theory and feminist, queer, and environmental humanities. She illustrates the concept of mastery and its manifestations within postcolonial and anti-colonial thought. Singh asserts that postcolonial thought, which seeks to deconstruct hierarchical colonial power structures in society, ironically reconstructs the same human mastery it tries to challenge. She thus explores the concept of mastery and its manifestations within both postcolonial and anti-colonial thought. However, Singh refuses to provide a concrete definition for mastery because in doing so, she would be reaffirming a type of mastery over language. Instead, she deconstructs the word in order to trace some of mastery’s qualities, particularly in postcolonial manifestations. The term mastery can be dissected to reveal two qualities: First) “to best” someone and, in doing so, gain authority or “become master” over them, Second) to reach a level of competence in a skill in that one becomes rightfully pedagogical; a teacher of that skill”. To illustrate these qualities through a crude example of colonization:   “a colonial master understands his superiority over others by virtue of his ability to have conquered them materially and by his insistence on the supremacy of his practices and worldviews over theirs, which renders “legitimate” the forceful imposition of his worldviews.” Therefore, she deduces that mastery has three essential qualities: “mastery involves mutilation, mastery involves subordination, and mastery requires this hierarchized relation to be extended in time.” In her book, Singh dissects the presence of mastery in Gandhian thinking to illustrate how mastery lived within emerging postcolonial thought and processes:  “Within Gandhian...narrative accounts of decolonization, there is a continuous way in which particular figures—colonized women, indigenous peoples, the “un- civilized” groups of the emergent nation-state, the animal, the cripple, and nature itself—must be subjected


by the emergent master who is himself the embodiment of the new nation-state and who maneuvers away from colonial domination toward freedom.” Singh explains that while Mahatma Gandhi’s aim was to unshackle Indians from the colonizer’s mastery, Gandhian narrative accounts of decolonization reveal a subordination of certain figures, despite his postcolonial revolution being one that could lead to the liberation of ‘the whole’ of India. Through this example, Singh describes how anticolonial solidarities, such as with Gandhi, “are forged by way of mastery even while particular forms of colonial mastery are rebuked.” The purpose of this postcolonial account is to illustrate and be attentive to the point that “those of us positioned on the intellectual left are also (and often despite ourselves) creating outsides to our own desiring inclusivities.” I include such an example in this paper to highlight the importance of being cognizant of the intricate existences of mastery and to encourage the development of more inclusive postcolonial existences. As with Singh’s book, I too do not aim to reveal a solution to completely overcoming mastery, but instead imagine alternative ways of being that deem more just, and in the context of the climate crisis, sustainable. The concept of mastery becomes geologically significant and inherently linked to the climate crisis when describing human relationships to the environment, each other, and to non-human living beings. The emergence of the Anthropocene, wherein humans have become ‘geological forces’ that have effectively changed the planet’s basic functions, evidences human mastery over the environment. Consequently, this masterful human positionality is unjustly impacting the Earth and its environment. I will discuss how the human pursuit of mastery manifests in globalized economic and political structures and consequently produces social injustices as well as environmental injustices.

ECONOM IC MASTERY Mastery exists within neoliberal practices that have extended from industrialized Western Nations and have now influenced socio-economic practices in peripheral states. Western capitalist economies are established upon the

pursuit of self-interest, maximizing profits, and economic growth. This competitive capital and material-intensive economy is predicated on the exploitation of resources and people in the pursuit of economic and social ‘progress,’ which “takes precedence over protecting the welfare of those people whose interests conflict” with that goal. Economist Shalom Schwartz states that “this competitive type of economy is congruent with a culture high in mastery and low in harmony.” In the 21st century, this economy stretches into a global network and is diffused across various states, institutions, and actors. Globalizing the Western economic structure then reproduces mastery by subordinating other cultures, people, economic systems, and environments worldwide. To expose mastery within this structure, I will explain the similarities between the concept of mastery in postcolonial Gandhian thought and mastery in economic globalization. Singh explains that Gandhi perpetuated gendered oppression through his narrative of a self-mastered India: “a new masterful governing Indian required a rearticulating of masculine gender; however, women — mothers and wives — emerged as static [unchanging] keepers of practices without agency.” Applying this concept to modern economic globalization, Western states have established an exclusionary narrative of economic progress where marginalized groups of periphery states become static —unchanging, fixed—keepers of the West’s globalized economic practices, but without agency. This is to say that certain communities of periphery states are mutated for Western neoliberal practices—such as bearing the consequences of deregulation— yet they do not have agency to critique these practices, nor its consequences on their ways of living, or their environments.  Sunita Narain’s book Why I Should be Tolerant (2016) illustrates the relationship between the Western dominated neoliberal economy and rural communities in India, revealing how structural economic mastery leads to both environmental and social injustices. As a notable Indian environmentalist, Narain works closely with rural, marginalized populations in India and advocates for their environmental, and socio-economic rights through her leadership positions. Narain explains that India’s current economic

model—influenced by Western industrialization, and similarly capital, material and energy intensive—disregards the perspectives of those they exploit of natural resources for economic gains. The exploited are largely those living in rural, economically disadvantaged communities. Narain provides evidence through the story of Mandal’s women—locals of a poor, remote village called Alaknanda valley in India. The Mandal women prevented loggers from cutting down local forests, not as a conservation movement, but to demand rights to the local resources necessary for their survival. The manufacturing for which the logs were cut did not benefit the villagers. Yet it was assumed that they would surrender their resources to benefit the very same economic structure that exploits rural Indian resources without compensating locals. Narain explains that poverty within these communities is not from a lack of cash, but a lack of resources. The exploitation of rural lands takes resources away from local communities, contributing to their poverty and the destruction of their environment and homes. The power and capital—both financial and social—gained through the dispossession of resources creates mastery—where those benefiting from these practices assert dominance upon those who are unwilling subjects to their rule. By doing so, economic mastery inherited through neoliberal globalization produces both social and environmental injustices.

POLITICAL M ASTERY Mastery is evident in recent pursuits of climate action at the state level, because states have tended to forego considerations of social justice in their problematic pursuit of environmental justice. In the book Global Warming in an Unequal World, authors Sunita Narain and Anil Agarwal critique Western countries’ environmental policy pursuits in which these states assert their hegemonic precedence within climate action negotiations. The authors critique the ‘one-worldism’ promoted by the West. One worldism is the idea that nations are to behave in a way that accepts that consequences of their actions impact all nations of the world - that all nations are responsible for a shared, “common future”, especially regarding the environment. Narain and Anil criticize the West’s ‘one worldism’ claims by stating that it is “in fact highly partisan, and whitewashes the

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role and responsibility of the West” They assert that Western polluters are more concerned about the potential negative impacts of emissions associated with development and industrialization in the Global South in the future, rather than acting upon their own present infrastructure and systems of production that have caused most of the current greenhouse gas emissions in the atmosphere. Narain and Agarwal describe the West’s climate actions as “the worst form of preaching the world has ever seen — literally amounting to blaming the victim. If anything, the available figures show that the West must immediately put its own house in order.” The West assumes a masterful role by policing other nations into mitigation measures without adequately considering its own disproportionate contribution to global emissions. Their concerns tend to focus on maintaining a hegemonic position amongst states within climate negotiations, rather than considering their disproportionate role in escalating the crisis. Studies conducted by California based International Project for Sustainable Energy Paths (IPSEP), reveal interesting quantitative figures regarding the disproportionality between the West and South carbon emissions. Their studies reveal that if considering the patterns of historical inequality in developed vs. developing country carbon dioxide emissions, and the permissible global carbon emissions budget of 428 billion tonnes (bt) of carbon from 1958 till 2000— distributed in proportion to population between industrialized and developing countries—,industrialized countries had already exhausted their entire net quota by 1986. However, a necessary critique of such measurements is that net quotas of emissions are no longer an effective measurement tool for calculating and implementing equitable strategies to deal with the climate crisis. Not only do states themselves overshoot such quotes, as dictated by international agreements like the Kyoto Protocol, climate change does not give heed to individual state quotas. Therefore, despite the fact that the South must bear the consequences of the West’s inequitable actions, they need to “reinvent the development trajectory”, which does not rely on the same environmentally destructive systems of production as their Western coun-

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terparts. However, as illustrated in the forthcoming section, the Global South has already been influenced by the ideals of ‘progress’ and ‘development’ contrived by the West.

MASTERY WITHIN THE NARRATIVE OF ‘ PROGRESS’ India and other non-Western states have been influenced by a narrative of progress characterized by Western neoliberal economies and its values. As ‘masters,’ Western industrialized nations have influenced economies around the world with the idea that “the Western way of wealth accumulation is progress,” and their “way of life is non-negotiable.” Yet, Western economies have produced the most significant forms of injustice by pillaging people and environments, like through processes of extracting natural resources for industrial production. Given that the Global South is already reflecting Western practices of development—such as rapid industrialization, urbanization and higher energy consumptions—patterns of such development signal an evermore increase in emissions. To secure a sustainable future, Narain explains that the Global South need to rethink the norms of development and progress that have been defined by Western practices; ‘Developing’ nations need the confidence to break away from historical “whitewash” and “the arrogance of old, established, and ultimately borrowed ideas”— this would include establishing funds, policies, and more credible public institutions that allow them to escape western paternalism and develop systems that cater to all their citizens’ needs. However, it must be noted that few of the world’s poorest countries have the luxury of choice because organizations, like the IMF, that receive the majority of their funding from western countries, dictate policies that limit the scope of developing countries’ actions. Thus, the Western status-quo prevails. In extension, the western ideals of progress and development influences climate mitigation measures suggested by the west and the neoliberal societies of the Global South. Once again,

these climate mitigation processes disregard certain forms of living, particularly of the same communities whose resources are being exploited for neoliberal ‘progress.’ I illustrate such problematic climate mitigation strategies by referring back to the case of rural India. The environmental movement of India’s relatively rich and affluent focus on adopting energy efficiency measures and funding new technologies. However, as Narain points out, their initiatives assume that “managing climate change will not hurt lifestyles or economic growth; a ‘win-win’ situation where [all of India] will benefit from green technologies and new business.” But in actuality, these climate mitigation measures still disregard the needs of the disenfranchised who are “made destitute by the poli-

cies of the rich”—which is to say that they are still increasingly marginalized by these apparently ‘sustainable’ development initiatives. Moreover, policies that level the playing field for the upper and middle classes and the very poor need to be cognizant about potentially inequitable ramifications. Those who do not share the same ways of living and economic structures as the upper and middle class societies cannot be judged as equally responsible for climate with the same guidelines for climate mitigation as the wealthier population. Narain points out that “there are no quick-fix technological solutions that can be suggested to people who are battling for survival,” referring to India’s rural poor. For example, the Alaknanda valley people do not benefit from India’s capitalist growth and must depend on their local resources (such as using their local trees, animals, and land) for survival. Narain explains that equitable and


sustainable development “needs to be understood as a deeper function of democracy” so that marginalized communities can demand changes that include them. Also, privileged communities (in other countries and domestically), “will have to become the voice of the voiceless, so that they can demand changes to the rules of globalization for the interest of all.” Narain pushes for action, stating that “an environmentalism of this kind will demand new arrangements for sharing benefits with local communities so that they are persuaded to part with their resources for common development.” Otherwise, denying them the right to their natural resources remains not only inequitable, but a threat to their survival.  Currently, industrialized states and communities still look for small answers to

big problems. The Anthropocene urges an evaluation of mastery within hierarchical systems that have led to unequal wealth, exploitation, and environmental damage. To pursue sustainable changes, it is imperative to involve local communities in the remodelling of environmental management; Inclusive development is a “prerequisite for sustainable development.”

DECONSTRUCTING MASTERY, RECONSTRUCTING RELATIONALITY Singh, Narain, and Agarwal illustrate the problematic manifestations of mastery that has characterized human relations within our current political and economic structures. All authors reach the consensus that there is an urgent need to rethink the ‘status quo’ in the pursuit of social and environmental justice. Joanna Zylinksa reiterates their concerns and

describes a human subjectivity that comes as an alternative to mastery. In her book, The End of Man: A Feminist Counterapocalypse, she discusses the concept of relationality. This human subjectivity calls for a rethinking of our relationship with the planet precisely as relations. To further elaborate, this sciencebased concept “acknowledges the prior existence of relations between clusters of matter and energy that temporarily stabilize to turn humans into entities—on a molecular, cellular, and social level. This concept highlights the reality of our existence; that we exist relationally, and continuously in movement to all that is around us and within us. Zylinska illustrates that relationality comes in contrast to characterizing humans as the “de facto masculinist subject that disinterestedly looks at the world as his possession and playground.” Relationality calls for taking to account the asymmetries of our current relations and establishing better, i.e., fairer and more just relations. Relationality is also directly linked to an acceptance of precarity. Precarity constitutes a “life without the promise of stability.” Precarity is already an integral part of life for those “placed outside the privileged, or at least, stable socio-economic circumstances structuring life within post-industrial capitalist economies.” For example, precarity already exists within the community of Alaknanda valley who are not guaranteed security within India’s capitalist economy. Zylinska urges all communities to invite precarity as a component of life if they intend to embrace a new form of living that does not subject people to neoliberal illusions of ‘security’; Security that, in the Anthropocene, is proving unable to protect humans from the environmental destruction associated with the climate crisis. Thus, the climate crisis entails precarity. Nature’s unfolding reveals a relational truth: humans cannot be free from nor dominate nature. In extension, humans cannot dominate others without causing unsustainable levels of social and environmental injustice. Thus, inequality is not sustainable.

Zylinska’s explanation of relationality is in agreement with Singh’s proposed alternative to mastery, ‘dehumanism.’ Both relationality and dehumanism are decolonial concepts “driven by the promise of [embracing] vulnerability with the aim of forming other less masterful subjectivities.” Dehumanism and relationality require an openness to understanding other forms of living and definitions of progress. Therefore, those who have unfairly gained from current social and political structures are to acknowledge different ways of life and practices that may not coincide with their own. All communities must have agency to discuss and execute new visions for an equitable society for all humans and the environment. This concept reflects Narain’s proposed practical steps to tackle environmental and social justice in a developing world. She pushes for a deepening of democracy that involves marginalized groups. Such a democracy is not just developed by a constitution, but by active nurturing by the media, the executive, and all organs of governance—that practice an “environmentalism of the poor”, which prioritizes “principles of equity and human need.” Singh specifically considers the role of leftist libertarians in society, explaining that they must consider that their actions can alienate certain communities who do not conform to their politics. As with the example of Gandhi, despite leftist pursuits to unshackle people from masterful social relationships, leftists can, consciously and subconsciously, “create outsides to their own desired inclusivities.” As comparatively privileged individuals, Western leftist intellectuals must overcome any sort of masterful positionality with their practiced politics, and instead nurture collective ways of being and thinking. To survive mastery, we must “begin to deconstruct our own movements (intellectual, activist, corporeal) that remain entangled with the violent erasures of other lives, and of things we declare insensate.” An alternative to mastery, which is revealing to be both unjust and unsustainable, requires a reconceptualization of current hierarchical or teacher-subject relations with others and with nature. Such a revolution also involves embracing precarity and disengaging with the ‘security’ that was falsely promised by colonial structures and established systems. 

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Zylinska introduces several other authors to explain that staying alive requires livable collaborations. Collaboration means working across differences, which inevitably leads to “contamination”– which is connoted as a positive consequence of collaboration in which others influence and affect our own ways of living. Narain’s writing reflects the concept of collaboration in her proposed inclusive environmentalism that premises on the needs of marginalised groups—equity and human need–to influence and disrupt current socio-economic structures. Sustainable development and combating climate change requires learning from environmental movements of those already experiencing instability from climate change—like the people of Alaknanda valley; to learn and adopt the “environmentalism of the poor”, to understand the need to share resources so that we can all “tread lightly on Earth.”

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CONCLUSION The concept of relationality is an invitation for all societies, especially current dominant societies, to discover various ways of life and accept precarity. These steps are necessary to deconstruct the hierarchical system that values some and concurrently devalues others. Mastery over people is directly connected to exploiting others’ lands and extracting resources away from their homes. Thus, deconstructing mastery is necessary for both environmental and social justice. If there is to be any social and environmental justice for disenfranchised communities and non-human entities in nature, the dominating, hierarchical system must be changed through a reorganization of the interests of government structures, public policy, and international organization. To deconstruct mastery and implement relationality means to reimagine societies, values, and relations. As Singh makes clear, to deconstruct the mastery that is devastating our environment is to call into question “the very notion of the human that has been produced and enforced across modernity.”


ENDNOTES i

Julietta Singh, Unthinking Mastery: dehumanism and decolonial entanglements. (Durham, Duke University Press, 2018), 2. ii Singh, 2.

xxx Ibid, 9. xxxi Ibid. xxxii Ibid.

iii Ibid, 9.

xxxiii Ibid, 10.

iv Ibid. v Ibid, 12-14. vi Ibid, 31.

xxxiv Ibid. xxxv Ibid, 9. xxxvi Ibid, 10.

vii Ibid, 30.

xxxvii Ibid, 9.

viii Ibid, 31.

xxxviii Ibid.

ix Ibid, 30.

xxxix Ibid, 11.

x Ibid, 19. xi Shalom H. Schwartz, “National Culture as Value Orientations: Consequences of Value Differences and Cultural Distance” Handbook of the Economics of Art and Culture Vol.2 (2014), 549. xii Shalom, 549. xiii Ibid. xiv Singh, 11. xv Ibid, 24. xvi “Sunita Narain,” Centre for Science and Environment (CSE), accessed

April 14, 2021, https://www.cseindia.org/sunita-narain-221. xvii

Sunita Narain, Why I Should be Tolerant: On Environment and Environmentalism in the 21st Century (New Delhi: Centre for Science and Environment, 2016), 10. xviii Narain, 8. xix Ibid, 11.

xl Joanna Zylinska, The End of Man: A Feminist Counterapocalypse. (Minneapolis, Minnesota: University of Minnesota Press, 2018), 38. xli Ibid. xlii Ibid. xliii Ibid, 39. xliv Ibid. xlv Ibid, 40. xlvi Ibid. xlvii Singh, 6. xlviii Narain, 11. xlix Ibid. l Ibid. li Singh, 63.

xx Ibid.

lii Singh, 174.

xxi Ibid. xxii Anil Agarwal, and Sunita Narain, Global warming in an unequal world:

a case of environmental colonialism. (New Delhi, India: Centre for Science and Environment, 2003), 2.

xxiii Agarwal

xxix Ibid, 11.

and Narain, 2-5.

liii Zylinska, 43. liv Narain

11.

lv Singh, 19.

xxiv Ibid, 16. xxv

Kellow, Aynsley. “The Political Economy of the Kyoto Protocol.” Agenda: A Journal of Policy Analysis and Reform 5, no. 3 (1998), 289.

xxvi Narain, 10. xxvii Ibid, 10. xxviii Ibid.

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BIBLIOGRAPHY Agarwal, Anil, and Sunita Narain. Global warming in an unequal world: a case of environmental colonialism. New Delhi: Centre for Science and Environment, 2003. Kellow, Aynsley. “The Political Economy of the Kyoto Protocol.” Agenda: A Journal of Policy Analysis and Reform 5, no. 3 (1998): 289-98. http:// www.jstor.org/stable/43198974. Narain, Sunita. Why I Should be Tolerant: On Environment and Environmentalism in the 21st Century. New Delhi: Centre for Science and Environment, 2016. Schwartz, Shalom H. “National Culture as Value Orientations: Consequences of Value Differences and Cultural Distance” Handbook of the Economics of Art and Culture Vol.2 (2014), pg. 547-586. Singh, Julietta. Unthinking Mastery: dehumanism and decolonial entanglements. Durham: Duke University Press, 2018. “Sunita Narain.” Centre for Science and Environment. CSE. Accessed April 10, 2021. https://www.cseindia.org/sunita-narain-221. Zylinska, Joanna. The End of Man: A Feminist Counterapocalypse. Minneapolis, Minnesota: University of Minnesota Press, 2018.

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ECOLOGY

WHO DETERMINES THE RIGHTS OF NATURE Understanding Indigenous Food Security and the History Behind the Haudenosaunee Right to Hunt in Short Hills Provincial Park BY MOLLI E S H EPTEN KO

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grew up in Welland, Ontario, a small city of about 50,000, located in the Niagara Region. Both as a youth and as an adult, one of my favourite things about my region was the abundance of natural parks and hiking trails. To this day I feel lucky to have had the opportunity to escape into nature and experience the beauty of the forests, creeks, and waterfalls. One park I often frequented was Short Hills Provincial Park (“Short Hills”), a vast tract of land about 15 minutes from my house. Visiting Short Hills as a non-Indigenous settler, I was able to enjoy the park freely. I never experienced any discrimination while visiting and I was never blocked from entering nor was I villainized and barraged with hateful and prejudiced comments. This is unlike Haudenosaunee people’s experience in Short Hills.  Since 2013, the Haudenosaunee people living in what is known as Niagara have engaged in the annual white-tail deer harvest, an expression of their natural (and treaty) right to hunt on this land. However, engaging their right to hunt traditional game and acquire sustenance for themselves and their community has been an experience fraught with difficulty and pain. In the past year, the Haudenosaunee have been able to harvest without impediment, but this was not the case in prior years. In this photo essay, I will present the hardships of and assaults on  Haudenosaunee people between 2013 and 2019, arguing that settler-colonialism and biocentric attitudes have exacerbated issues of food insecurity within Indigenous communities. I will also lay out the history of the Haudenosaunee right to hunt in Short Hills and other nature sites in the Niagara Region, citing treaties and modern agreements between Indigenous authorities and the government. 

UNDERSTANDING RELEVANT TREATIES The area now known as the Niagara Region rests on land governed by Treaty No. 3, 1792, or the Between the Lakes Treaty. Treaty No. 3 was a treaty negotiated between Chiefs of the Mississauga First Nations and British Crown representatives. Various Crown representatives negotiated with the Mississaugas and purchased from them 3,000,000 acres of land between Lake Erie and Lake Ontario, 550,000 of which was given to the Six Nations, the rest being used for the settlement of United Empire Loyalists who had fled the United States after the Revolutionary War. This treaty simply lays out the boundaries of the land. However, the treaties more relevant to the protection of Indigenous hunting rights in Niagara are the Two Row Wampum Belt, the Nanfan Treaty/ Albany Deed of 1701, and the Niagara Treaty of 1764. The Two-Row Wampum Belt was developed upon the first encounter between the Haudenosaunee people and Europeans as a “diplomatic convention that recognized interaction and separation of settler and First Nation societies”. It was intended to codify the existence of two nations, existing individually, neither trying to influence or steer the other.  Left: Short Hills Provincial Park, Pelham, Ontario. Photo: Mollie Sheptenko.

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In 1701, the Nanfan Treaty was struck up between the Haudenosaunee and the British, not only implicating the Niagara region, but the entire Haudenosaunee Nation. The Nanfan Treaty implicated the British as protectors of the Haudenosaunee land and their right to hunt on such lands. At the time the Nanfan Treaty was signed, the Haudenosaunee consisted of Five Nations: the Mohawk, Oneida, Onondaga, Cayuga, and Seneca; the Tuscarora joined the Confederacy in 1722. The treaty transferred Haudenosaunee lands to the Crown; in exchange, the Haudenosaunee were able to secure their hunting rights on these lands in addition to a promise from the British that their lands would be protected. The British were anticipating a war with France and held that the only way they would be able to protect Haudenosaunee lands and beaver hunting grounds from French encroachment was if the Haudenosaunee allowed them to build a fort on their lands. However, after the Confederation, the responsibility of protecting the land and hunting rights of the Haudenosaunee people was eventually passed from the Crown onto the governments of what are now known as Ontario and Canada. Finally, the Niagara Treaty was created to reavow the Two-Row Wampum and affirm the nationhood of both the British and the Haudenosaunee people. It was at this treaty council “where a promise of peace was given by Aboriginal [sic] representation and a state of mutual non-interference established,” an event which should have solidified the Haudenosaunee right to hunt freely on their lands.

Reverse of the “Conveyance” of the Nanfan Treaty of 1701, showing the signatures of witnesses and the date the document was received in England. Photo: The Public Record Office, Kew, England.

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Reproduction of the 1764 Covenant Chain Wampum Belt (Niagara Treaty of 1764) . Photo: Canadian Museum of History.

CO LO N I A L V I O LEN CE: WH O DETERM I N ES TH E R I G HTS O F N AT U R E Haudenosaunee people, as the original caretakers of the land which we now call Niagara, have an inherent right to live with the land and to take from it what they need to survive. In addition, their rights to live and harvest on the land are entrenched in treaties developed in conjunction with colonial authorities. Why, then, have the Haudenosaunee faced so many challenges in the pursuit of their rights and food security? Anti-Indigenous sentiment has suffused the colonial agenda since the first arrival of Europeans in North America. The Doctrine of Discovery, an ideology employed by Christian explorers during the “Age of Discovery’’ as a “legal and moral justification for colonial dispossession of Sovereign Indigenous lands,” empowered colonial authorities, allowing them to believe they were entitled to this land they “discovered”. Settler-colonial, classist, and white supremacist ideologies such as the aforementioned doctrine have articulated the abuse and genocide of Indigenous people as permissible. Such ideologies foster damaging stereotypes of Indigenous people, classifying them as “uncivilized” or “savage”, enabling both classism and the devaluation of Indigenous epistemologies and ways of being with the land. Furthermore, these ideologies continue to perpetuate a culture of entitlement in non-Indigenous communities, as evidenced by the outcry of settler people when “their’’ deer were to be hunted in Short Hills.

Settler Peoples and the Niagara Regional Police forming an anti-hunt barricade, blocking the entry of Haudenosaunee people into Short Hills Park. Photo: Cody R. Law.


The Haudenosaunee right to hunt was officially recognized by the colonial Government of Ontario in 1982, after the passing of the Constitution Act 1982 - a piece of colonial legislation that recognizes and affirms the treaty rights of Indigenous people residing within Canada via s. 35 of the Act. In 2013, the White-Tailed Deer harvest at Short Hills became an annual hunting event for the Haudenosaunee people. From 2013 until 2019, protestors, including animal rights activists and Niagara locals, assembled to create an anti-hunt barricade at the entrance to Short Hills. They would hurl racist insults at the Haudenosaunee hunters, calling them “murderers” and “criminals”. These protesters would proclaim “these are our deer” and insist that the hunters “stop the slaughter.” Chester Gibson, a member of the Haudenosaunee Wildlife and Habitat Authority had someone yell at him: “why don’t you go to Zehrs and buy the meat”. The insults and demands expressed by the protestors were wrought with racism and blatant ignorance, and exude biocentric imperialist sentiments. Biocentrism, the theory that all living beings have inherent rights and values is not in itself detrimental; however, biocentric imperialism is. Biocentric imperialism positions Indigenous rights (i.e., the right to hunt) as obstacles to the preservation of nature and the continuity of species. Biocentric imperialists afford greater value to the existence of non-human life than to the inherent rights of Indigenous people, who have maintained a respectful and sustainable coexistence with the land and its creatures since time immemorial. The notion of biocentric imperialism has thus prompted scholar Tamari Kitossa to pose the question: who determines the rights to claim nature? In this instance, it seems as if the protestors are the ones who have subsumed such a right; however, this is fundamentally unjust. The proprietorship over nature that some white settlers have assumed is extremely problematic because, by discouraging traditional and environmentally benign Indigenous hunting practices, it contributes to food insecurity and the dissolution of traditional lifeways within Indigenous communities. They assume that the Haudenosaunee engaging their right to

hunt in Short Hills are simply doing so to kill. This is completely incorrect. The White-Tailed Deer harvest allows Haudenosaunee people to come together, to engage in traditional lifeways, and to acquire healthful sustenance (lean venison) – all of which are critical for the mitigation of food insecurity-related issues within Indigenous communities. The Haudenosaunee take only what resources they need from nature and leave some for others to do the same, in accordance with the Dish with One Spoon Covenant. Moreover, the deer harvest in Short Hills and other locations around southern Ontario, including Navy Island, Dundas Valley, and the Royal Botanical Gardens, helps to reduce deer overpopulation, which is harmful for the ecosystem. The Haudenosaunee people manage the needs of the land, expressing that they are working to mitigate the environmental harm caused by invasive species and are engaging in conversations with allied environmentalist groups on how to address climate change. They have and continue to engage in holistic and conscientious stewardship, in a manner far removed from that of the Deer Hunt protestors.

Image of an action wheel presenting steps that can be taken to increase access to traditional foods, developed as part of a case study in Vancouver. Photo:: Provincial Health Services Authority (of British Columbia).

FOOD I NSECURITY IN INDIGENOUS COMMUNITIES: A HOLISTIC PERSPECTIVE According to Malek Batal, a principal investigator on the First Nations Food, Nutrition, and Environment Study (“FNFNES”), 29% of on-reserve Indigenous households and 28% of off-reserve Indigenous households experience food insecurity, compared to the 8% of total Ontario households that experience food insecurity. Preventing Indigenous people from gathering food in traditional ways reduces their access to nutritious food and increases the funds that Indigenous people must allot for purchasing processed consumer goods. Batal also delves deeper into the problem of food insecurity within the on-reserve Indigenous population, highlighting associated health problems. Research has shown that 24% of Indigenous people on-reserve in Ontario have diabetes, whereas, according to 2019 data, 10% of all Ontarians are diagnosed with type one or two diabetes. At first glance, it may seem that non-Indigenous consumer diets result in a decreased incidence of diabetes; however, disproportionate rates of chronic illness experienced by Indigenous and other marginalized populations is not a uni-dimensional issue and demands inquiry. In “First Nations Food Environment: Exploring the Role of Place, Income, and Social Connection”, Richmond et al. explain that

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Short Hills Provincial Park. Photo: Toronto Times.

populations facing the effects of urbanization (i.e. decreased dietary diversity, declining access to traditional foods, increased tendency towards ‘industrial [processed] diets’) and poor access to social determinants of health (i.e., kinship ties, traditional knowledge of food collection and preparatory methods) experience food insecurity and poor health - often materialized in high rates of chronic diseases. As I noted before, preventing or hindering Indigenous people from hunting or harvesting on their traditional lands results in a move away from traditional, kincentric food collection activities and an increased reliance on capitalist institutions, which offer food less nutritious compared to what is consumed in a traditional Indigenous diet (e.g. venison, sustainably grown beans, squash, and corn).

24

PRESENT- DAY Though reconciliation between the colonial governments of Canada and Ontario and the various Indigenous nations across Turtle Island is still an on-going process, there are some positive steps being taken that are in line with the values of the Covenant Chain of Friendship. It was announced by the Haudenosaunee Wildlife and Habitat Committee that Haudenosaunee hunters engaging in the 2020 deer harvest were reassured by the Niagara Regional Police that they would not face any anti-hunt barricades and that a human rights organization would be present to document that only Haudenosaunee hunters were being allowed on the park grounds. Nonetheless, more must be done to educate non-indigenous, settler people on the rights and dignity of the original caretakers of this land, and the land itself, in order to reduce food insecurities and to allow for the revival of traditional lifeways.


ENDNOTES i Donna

Duric, "Between the Lakes Treaty No. 3 (1792)," Mississaugas of the Credit First Nation, last modified May 28, 2017, http://mncfn. ca/treaty3/.

ii

Celeste Smith and Jodielynn Harrison, "About," The Supporters of Haudenosaunee Right to Hunt, last modified 2019, https://sixnationsrighttohunt.com/about/.

xx Diabetes Canada, comp., Diabetes in Ontario (2019), 2, https:// www.diabetes.ca/DiabetesCanadaWebsite/media/About-Diabetes/ Diabetes%20Charter/2019-Backgrounder-Ontario.pdf. xxi Chantelle Richmond et al., "First Nations Food Environments: Exploring

the Role of Place, Income, and Social Connection," in Current Developments in Nutrition (2020), 2, https://doi.org/10.1093/cdn/nzaa108.

xxii Smith and Harrison, "About," The Supporters of Haudenosaunee Right to Hunt.

iii

John Borrows, Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government (Vancouver: UBC Press, 1997), 170.

iv Borrows, Wampum at Niagara, 170. v J. A. Brandao and William A. Starna, "The Treaties of 1701: A Triumph

of Iroquois Diplomacy," Ethnohistory 43, no. 2 (1996): https://doi. org/10.2307/483396.

BIBLIOGRAPHY Aritcheta, A. (2018, April 9). Why protestors are against an Indigenous Confederacy’s deer harvest. This. https://this.org/2018/04/09/ why-protesters-are-against-an-indigenous-confederacys-deer-har.

vi

Assembly of First Nations. ( January 2018). Dismantling the Doctrine of Discovery. Ottawa, ON.

vii Brandao

and Starna, "The Treaties,".

Bolichowski, J. (2013, November 15). Traditional Haudenosaunee hunt meets opposition. The Expositor. https://www.brantfordexpositor. ca/2013/11/15/traditional-haudenosaunee-hunt-meets-opposition.

viii Brandao

and Starna, "The Treaties,".

Anthony F. C. Wallace, "The Tuscaroras: Sixth Nation of the Iroquois Confederacy," Proceedings of the American Philosophical Society 93, no. 2 (1949): http://www.jstor.org/stable/3143435.

ix Brandao

and Starna, "The Treaties,".

x Borrows, Wampum at Niagara, 170. xi Assembly of First Nations, Dismantling the Doctrine of Discovery (n.p., 2018), 2, https://www.afn.ca/wp-content/uploads/2018/02/18-01-22Dismantling-the-Doctrine-of-Discovery-EN.pdf.

Borrows, J. (2002). Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government. In Michael Ach (Ed.), Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference (pp. 155-172). University of British Columbia Press. Brandao, J.A. & Starna W.A. (1996). The Treaties of 1701 : A Triumph of Iroquois Diplomacy. Ethnohistory, 43(2), 209-244.

xii

Diabetes Canada. (2019). Diabetes in Ontario. Diabetes Canada. https:// www.diabetes.ca/DiabetesCanadaWebsite/media/About-Diabetes/ Diabetes%20Charter/2019-Backgrounder-Ontario.pdf.

xiii Allyson

Duric, Donna. (2017, May 28). Between the Lakes Treaty No. 3 (1792). Mississaugas of the Credit First Nation. http://mncfn.ca/treaty3/.

Smith and Harrison, "About," The Supporters of Haudenosaunee Right to Hunt. Aritcheta, Why protesters are against an Indigenous confederacy's deer harvest (blog), entry posted April 2018, https://this.org/2018/04/09/ why-protesters-are-against-an-indigenous-confederacys-deer-har.

xiv

Aritcheta, Why protesters are against an Indigenous confederacy's deer harvest (blog).

xv Jeff Bolichowski, "Traditional Haudenosaunee hunt meets opposition,"

The Expositor, November 15, 2013, https://www.brantfordexpositor. ca/2013/11/15/traditional-haudenosaunee-hunt-meets-opposition.

xvi Tamari Kitossa, "Same difference: biocentric imperialism and the assault on indigenous culture and hunting.," Environments 28, no. 3 (2000). xvii

Haudenosaunee Wildlife and Habitat Committee, "Haudenosaunee and HCA Set Dates for 2016-2017 Deer Harvest," Haudenosaunee Confederacy,last modified 2016,https://www.haudenosauneeconfederacy. com/departments/haudenosaunee-wildlife-and-habitat-committee/.

xviii Haudenosaunee Wildlife and Habitat Committee, "Haudenosaunee and HCA Set Dates," Haudenosaunee Confederacy. xix

First Nations Food, Nutrition, and Environment Study, comp., Final Report for Eight Assembly of First Nations Regions (University of Ottawa, 2019), http://www.fnfnes.ca/docs/FNFNES_draft_technical_report_ Nov_2__2019.pdf.

First Nations Food, Nutrition, and Environment Study. (2019, November). Final Report for Eight Assembly of First Nations Regions. University of Ottawa. http://www.fnfnes.ca/docs/FNFNES_draft_ technical_report_Nov_2__2019.pdf. Haudenosaunee Wildlife and Habitat Committee. (2016). Haudenosaunee and HCA Set Dates for 2016-2017 Deer Harvest. https://www. haudenosauneeconfederacy.com/departments/haudenosauneewildlife-and-habitat-committee/. Kitossa, T. (2000). Same difference: biocentric imperialism and the assault on indigenous culture and hunting. Environments. Richmond, C., Steckley, M., Neufeld, H., Kerr, R.B., Wilson, K., & Dokis, B. (2020). First Nations Food Environments: Exploring the Role of Place, Income, and Social Connection. Current Developments in Nutrition, 1-8. Smith, C. & Harrison, J. (2019). About. The Supporters of Haudenosaunee Right to Hunt. https://sixnationsrighttohunt.com/about/. Wallace, A.F.C. (1949). The Tuscaroras: Sixth Nation of the Iroquois Confederacy. Proceedings of the American Philosophical Society, 93(2), 159-165.

25


26


27


GOVERNANCE AND POLICY

A DOUBLE PANDEMIC The Effects of Anti-Black Racism During COVID-19 BY ALEXAN DER LAWSON, TOURANG MOVAH EDI, AND AMAN DA WAN G

I

n February 2021, Canada reached a new COVID-19 milestone with over 800,000 cases and 20,000 deaths. These cases have not been distributed evenly. From the outset of the pandemic, Canadian racialized minorities have struggled with higher caseloads and hospitalization rates. This is not an isolated incident but a historical trend. Black Canadians were also disproportionately affected by the H1N1 pandemic. This begs the question: how does structural racism affect the COVID-19 disease burden? Although viruses do not discriminate, societies do, often with fatal consequences. This paper argues that antiBlack structural racism in the Ontario labour market and healthcare system makes Black communities disproportionately vulnerable to the COVID-19 pandemic. First, we discuss the workplace risks faced by low-income Black Canadians during the pandemic. Then, we will explore the compounding issues of location and healthcare inequities. The province of Ontario, which contains half of Canada’s Black population, and the city of Toronto have collected significant data on the racial distribution of COVID-19. We will use this data alongside scholarly research to bolster our argument. Structural racism and systemic inequalities are defined by the Ontario Human Rights Commission as “consist[ing] of patterns of behaviour, policies or practices that are part of the social or administrative structures of an organization, and which create or perpetuate a position of relative disadvantage for racialized persons”. In the context of our analysis, we investigate structures of discrimination which existed before the COVID-19 pandemic to explain the racially disproportionate distribution of infections.

28

U.S. studies have shown that the legacy of racial segregation in North America has concentrated Black populations in neighbourhoods with poor economic conditions. These neighbourhoods are lower income, and employment opportunities are often unstable and inflexible. Data from Ontario shows a strong correlation between socioeconomic status and COVID-19 vulnerability. Torontonians with an annual income under $30,000 have a share of cases nearly twice as large as their share of the population. This connection between race, income, and health can be explained by the nature of low-income, frontline work. Ontario data indicates that low-income workers have significantly limited access to paid leave. Black Canadians, who make up a large portion of Toronto’s low-income earners, will also often find themselves in jobs that cannot be done remotely. Due to these financial and occupational restraints, it is not viable for many Black workers to stay at home when sick, even during a pandemic. Not only do Black individuals have limited access to paid leave, but they are more likely to work in ‘critical industries’ with greater occupational health hazards. These hazards are one of the main factors behind disproportionate COVID-19 rates amongst Black populations. Black Canadians also represent a large portion of the frontline workforce in long-term care, which accounts for 15% of all continuing outbreaks in Ontario. Ontario’s personal support worker data shows that despite only making up around 6.6% of the population, Black people account for 17.5% of personal support workers. With increased workplace health hazards and limited oppor-

tunities for paid leave or remote work, Black Canadians endure many systemic vulnerabilities to COVID-19. Economic obstacles interact with healthcare inequities to present practical barriers to health for Black communities. Racialized, low-income individuals generally have a greater dependency on public transportation, which accounts for higher COVID-19 exposure compared to those who have consistent access to a personal vehicle. The distribution of testing centres and hospitals in Toronto fails to accommodate this dependency on public transportation; it does not adequately cover Black communities despite the higher case counts in these areas (Appendix A, B). The impact of this inadequate distribution is severe; Public Health Ontario data reveals that hospitalization and ICU rates are 4 times higher in racialized neighbourhoods, while health and testing infrastructure remains sparse and inaccessible in these communities in these communities. The lack of nearby testing centres coupled with an overreliance on public transportation limits access to COVID-19 testing and results in higher infection rates for Black Torontonians. Economic and mobility factors have a significant impact on COVID-19 vulnerability, but they do not tell the complete story. Throughout the pandemic Black Torontonians have always had a higher than usual infection risk, which peaked at 9.5 times that of a White Torontonian in August. While this number has receded since, it remains greater than that correlated with income, indicating that several non-economic racial factors also have significant impacts.


The higher rates of chronic diseases among Black populations have been used to explain disproportionate COVID-19 rates, with medical practitioners going so far as to suggest racial genetic components. However, while chronic diseases do increase vulnerability to COVID-19, several more comprehensive studies have shown that these higher chronic disease rates are the direct result of healthcare discrimination, and as such only highlight race-based inequities in the current healthcare system. Social determinants are the cause—not genetics. One such determinant is the underrepresentation of Black people in healthcare professions and the medical field. As of 2015, Black people made up 2.3% of practising physicians in Ontario, despite being 4.5% of the population. The low proportion of Black healthcare professionals is in part due to anti-Black racism experienced in schooling and at work. The lack of Black physicians and healthcare administrators translates into health services and modes of delivery that pay little attention to the unique health inequities experienced by Black individuals. For example, Black communities were excluded from the Ontario government’s COVID-19 Action Plan for Vulnerable People. Consequently, the government’s Action Plan fails to address the unique vulnerabilities that Black people face. Systemic racism in healthcare compromises culturally sensitive

health services that are necessary to alleviate the significant challenges experienced by Black communities during the pandemic. Furthermore, the underrepresentation of Black people in medical work and leadership has contributed to feelings of distrust towards physicians and a lack of culturally sensitive care. This lack of cultural competency presents difficulties for Black Canadians trying to navigate the healthcare system in the form of stereotyping, misunderstandings, and provider bias. For example, medical trainees in a 2016 study demonstrated a strong tendency to under-evaluate physical pain experienced by Black people in comparison to White people, and offered insufficient treatment as a result. Out of fear of mistreatment and financial discrimination, many Black people rely on walk-in clinics instead of family doctors, which inhibits their ability to build trust with the medical community. This distrust is the product of a healthcare system that has repeatedly failed to serve Black communities. Subsequently, Black individuals have been discouraged from seeking medical assistance during the pandemic. In Toronto, 30% of surveyed Torontonians who claimed they were hesitant about the COVID-19 vaccines were Black, despite representing 9% of Toronto’s population. All these systemic issues in our healthcare system discourage

Black Canadians from receiving the vaccine, reinforcing the vulnerability of Black Canadians moving forward. It is evident that Black communities in Ontario have been disproportionately affected by COVID-19 as a result of institutionalized racism in the labour market and healthcare system. None of these systemic issues are novel, and evidence of their impact can be traced back to the H1N1 outbreak and beyond. While COVID-19 has highlighted systemic health inequities, these problems will persist post-pandemic. Therefore, any effective solution must address both the stark inequalities of the current crisis, as well as the deeply entrenched inequalities that will continue to make Black Canadians disproportionately vulnerable to health crises in the future. 

29


APPEN DIX A

APPENDIX B

“Toronto Launches Initiative to Support Black Community Disproportionately Impacted by COVID-19.” CTV News, February 4, 2021. https://toronto.ctvnews.ca/toronto-launches-initiative-to-support-black-community-disproportionately-impacted-by-covid-19-1.5294064. Yaya, Sanni, Helena Yeboah, Carlo Handy Charles, Akaninyene Otu, and Ronald Labonte. “Ethnic and Racial Disparities in COVID-19-Related Deaths: Counting the Trees, Hiding the Forest.” BMJ Global Health 5, no. 6 (2020). https://doi.org/10.1136/bmjgh-2020-002913.

30


xvii Etowa

ENDNOTES i

Public Health Agency of Canada, "Epidemiological Summary of COVID-19 Cases in Canada," Canada.ca, accessed January 11, 2021, https://health-infobase.canada.ca/covid-19/epidemiological-summarycovid-19-cases.html.

ii "COVID-19 in Ontario – A Focus on Diversity.," Public Health Ontario, last modified May 14, 2020, http://www.publichealthontario.ca/-/media/ documents/ncov/epi/2020/06/covid-19-epi-diversity.pdf ?la=en. iii

Clare Bambra et al., "The COVID-19 Pandemic and Health Inequalities," Journal of Epidemiology and Community Health, June 13, 2020, 964, https://doi.org/10.1136/jech-2020-214401

iv

City of Toronto, "COVID-19: Status of Cases in Toronto," Toronto Public Health, accessed December 31, 2020, http://www.toronto.ca/ home/covid-19/covid-19-latest-city-of-toronto-news/covid-19-statusof-cases-in-toronto/.

v

Policy and Guidelines on Racism and Racial Discrimination (Toronto: Ontario Human Rights Commission, 2005).

vi

David R. Williams et al., "Race, Socioeconomic Status, and Health: Complexities, Ongoing Challenges, and Research Opportunities," Annals of the New York Academy of Sciences 1186, no. 1 (February 2010): 74, https://doi.org/10.1111/j.1749-6632.2009.05339.x. vii Michael

D Ornstein, "Ethno-Racial Groups in Toronto, 1971-2001: a Demographic and Socio-Economic Profile," Toronto: Institute for Social Research, 83. viii

David Macdonald, "COVID-19 and the Canadian Workforce: Reforming EI to Protect More Workers," Canadian Centre for Policy Alternatives, last modified March 16, 2020, http://www.policyalternatives. ca/publications/reports/covid-19-and-canadian-workforce.

ix City

of Toronto, "COVID-19: Status," Toronto Public Health.

x

Josephine Etowa et al., "'Leaving No One Behind': COVID-19 Response in Black Canadian Communities," Witness: The Canadian Journal of Critical Nursing Discourse 2, no. 2 (December 30, 2020): 125, https://doi.org/10.25071/2291-5796.84.

xi

Macdonald, "COVID-19 and the Canadian," Canadian Centre for Policy Alternatives, 8.

xii Max Jordan Nguemeni Tiako, Howard P. Forman, and Marcella Nunez-Smith, "Racial Health Disparities, COVID-19, and a Way Forward for US Health Systems," Journal of Hospital Medicine 16, no. 1 (December 23, 2020): 49-50, https://doi.org/10.12788/jhm.3545. xiii Nguemeni Tiako, Forman, and xiv Etowa

Nunez-Smith, "Racial Health," 50.

et al., "'Leaving No One Behind,'" 126, Marotta.

xv Janet Lum et al., "Ontario Personal Support Workers in Home and Community Care: CRNCC/PSNO Survey Results," Canadian Research Network for Care in the Community, December 2010, 4, https://www. ryerson.ca/content/dam/crncc/knowledge/infocus/factsheets/InFocusOntario%20PSWs%20in%20Home%20and%20Community%20Care. pdf. xvi Sanni Yaya et al., "Ethnic and Racial Disparities in COVID-19-related Deaths: Counting the Trees, Hiding the Forest," BMJ Global Health 5, no. 6 ( June 2020): 2, https://doi.org/10.1136/bmjgh-2020-002913.

xviii City xix City

et al., "'Leaving No One Behind,'" 125; Appendix A.

of Toronto, "COVID-19: Status," Toronto Public Health

of Toronto, "COVID-19: Status," Toronto Public Health

xx Daisuke Miyazawa, "Why Obesity, Hypertension, Diabetes, and Ethnicities Are Common Risk Factors for COVID‐19 and H1N1 Influenza Infections," Journal of Medical Virology 93, no. 1 ( June 29, 2020): 127-128, https://doi.org/10.1002/jmv.26220. xxi

Don Bambino Geno Tai et al., "The Disproportionate Impact of COVID-19 on Racial and Ethnic Minorities in the United States," Clinical Infectious Diseases 72, no. 4 ( June 20, 2020): 135-141, https://doi. org/10.1093/cid/ciaa815.

xxii City

of Toronto, "COVID-19: Status," Toronto Public Health

xxiii

Sana Halwani, "Racial Inequality in Access to Health Care Services," Ontario Human Rights Commission, last modified December 2004, http://www.ohrc.on.ca/en/race-policy-dialogue-papers/racialinequality-access-health-care-services. xxiv

Boris Kralj, "Unrecognized Physician Pay Inequities in Canadian Medicine," drbobbell (blog), entry posted September 7, 2019, https:// drbobbell.com/unrecognized-physician-pay-inequities-in-canadianmedicine/.

xxv Judy Trinh, "Canadian doctors of colour offer a frank look at racism in

medicine," CBC News, last modified June 23, 2020, https://www.cbc.ca/ news/health/racism-canadian-medicine-doctors-1.5615554.

xxvi Halwani, "Racial

Inequality," Ontario Human Rights Commission.

xxvii

Government of Ontario, "'COVID-19 Action Plan: Protecting Vulnerable Ontarians.,'" ontario.ca, last modified April 23, 2020, https://www.ontario.ca/page/covid-19-action-plan-protectingvulnerable-ontarians.

xxviii The Canadian Press, "National research project to probe racism in health care amid COVID-19 pandemic," CBC News, last modified August 25, 2020, https://www.cbc.ca/news/canada/toronto/racismhealthcare-covid-pandemic-canada-1.5699710. xxix

Ingrid Waldron, "The impact of inequality on health in Canada: a multi-dimensional framework," Diversity in Health and Care, https:// diversityhealthcare.imedpub.com/the-impact-of-inequality-on-healthin-canada-a-multidimensional-framework.pdf.

xxx Arjumand

Siddiqi et al., "Associations between Race, Discrimination and Risk for Chronic Disease in a Population-based Sample from Canada," Social Science and Medicine 194 (December 2017): https://doi. org/10.1016/j.socscimed.2017.10.009.

xxxi "Understanding

African Americans' Views of the Trustworthiness of Physicians," Journal of General Internal Medicine 21, no. 6 ( June 2006): https://doi.org/10.1111/j.1525-1497.2006.00485_1.x.

xxxii

Kerrisa Wilson, "Toronto launches initiative to support Black community disproportionately impacted by COVID-19," CTV News, last modified February 3, 2021, https://toronto.ctvnews.ca/torontolaunches-initiative-to-support-black-community-disproportionatelyimpacted-by-covid-19-1.5294064.

xxxiii Wilson, "Toronto

launches," CTV News.

31


BIBLIOGRAPHY Blain, Beverly, OmniSoore Dryden, and Rinaldo Walcott. “COVID-19 Discriminates against Black Lives via Surveillance, Policing and Lack of Data: U of T Experts.” University of Toronto News. University of Toronto, April 21, 2020. http://www.utoronto.ca/news/covid-19discriminates-against-black-lives-surveillance-policing-and-lackdata-u-t-experts. Bambra, Clare, Ryan Riordan, John Ford, and Fiona Matthews. “The COVID-19 Pandemic and Health Inequalities.” Journal of Epidemiology and Community Health 74, no. 11 (2020): 964-68. https://doi.org/10.1136/jech-2020-214401. Cain, Olivia Bowden and Patrick. “Black Neighbourhoods in Toronto Are Hit Hardest by COVID-19 - and It's 'Anchored in Racism': Experts.” Global News. Global News, January 29, 2021. https:// globalnews.ca/news/7015522/black-neighbourhoods-torontocoronavirus-racism/. “COVID-19 Action Plan: Protecting Vulnerable Ontarians.” ontario. ca. Government of Ontario, April 23, 2020. https://www.ontario.ca/ page/covid-19-action-plan-protecting-vulnerable-ontarians. “COVID-19 in Ontario – A Focus on Diversity.” Public Health Ontario, May 14 2020. www.publichealthontario.ca/-/media/documents/ ncov/epi/2020/06/covid-19-epi-diversity.pdf ?la=en. Etowa, Josephine, Bagnini Kohoun, Egbe B. Etowa, Getachew Kiros, Ikenna Mbagwu, Mwali Muray, Charles Dabone, Lovelyn Ubangha, and Hilary Nare. “‘Leaving No One behind’: COVID-19 Response in Black Canadian Communities.” Witness: The Canadian Journal of Critical Nursing Discourse 2, no. 2 (2020): 124–30. https://doi. org/10.25071/2291-5796.84. “Epidemiological Summary of COVID-19 Cases in Canada.” Canada. ca. Public Health Agency of Canada, January 11, 2021. https:// health-infobase.canada.ca/covid-19/epidemiological-summarycovid-19-cases.html. Halwani, Sana. “Racial Inequality in Access to Health Care Services.” Ontario Human Rights Commission. Government of Ontario, December 2004. http://www.ohrc.on.ca/en/race-policy-dialoguepapers/racial-inequality-access-health-care-services. Jacobs, Elizabeth A, Italia Rolle, Carol Estwing Ferrans, Eric E Whitaker, and Richard B Warnecke. “Understanding African Americans' Views of the Trustworthiness of Physicians.” Journal of General Internal Medicine 21, no. 6 (2006). https://doi.org/10.1111/j.15251497.2006.00485_1.x. Kralj, Boris. “Unrecognized Physician Pay Inequities in Canadian Medicine - Dr. Bob Bell.” Dr. Bob Bell | drbobbell.com, September 7, 2019. https://drbobbell.com/unrecognized-physician-payinequities-in-canadian-medicine/. Lum, Janet, Jennifer Sladek, Alvin Ying, and Lori Holloway Payne. “Ontario Personal Support Workers in Home and Community Care: CRNCC/ PSNO Survey Results.” Canadian Research Network for Care in the Community, December 2010, 1–33. https://www.ryerson.ca/content/ dam/crncc/knowledge/infocus/factsheets/InFocus-Ontario%20 PSWs%20in%20Home%20and%20Community%20Care.pdf. Macdonald, David. “COVID-19 and the Canadian Workforce: Reforming EI to Protect More Workers.” Canadian Centre for Policy Alternatives, March 16, 2020, www.policyalternatives.ca/publications/reports/ covid-19-and-canadian-workforce.

32

Marotta, Stefanie. “Ontario, Quebec See COVID-19 Outbreaks at Workplaces Climb.” The Globe and Mail, December 4, 2020. https:// www.theglobeandmail.com/canada/article-ontario-quebec-seecovid-19-outbreaks-at-workplaces-climb/. Miyazawa, Daisuke. “Why Obesity, Hypertension, Diabetes, and Ethnicities Are Common Risk Factors for COVID-19 and H1N1 Influenza Infections.” Journal of Medical Virology 93, no. 1 ( June 24, 2020): 127–28. https://doi.org/10.1002/jmv.26220. Nestel, Sheryl. “Colour Coded Health Care.” Wellesley Institute, January 2012, https://www.wellesleyinstitute.com/health/colour-codedhealth-care-the-impact-of-race-and-racism-on-canadians-health/. Ornstein, Michael D. Essay. In Ethno-Racial Groups in Toronto, 19712001: a Demographic and Socio-Economic Profile, 83–163. Toronto: Institute for Social Research, York University, 2006. “Policy and Guidelines on Racism and Racial Discrimination.” Ontario Human Rights Commission. Government of Ontario, n.d. http:// www.ohrc.on.ca/en/policy-and-guidelines-racism-and-racialdiscrimination. Siddiqi, Arjumand, Faraz Vahid Shahidi, Chantel Ramraj, and David R. Williams. “Associations between Race, Discrimination and Risk for Chronic Disease in a Population-Based Sample from Canada.” Social Science & Medicine 194 (December 2017): 135–41. https://doi. org/10.1016/j.socscimed.2017.10.009. Statistics Canada. 2017. Ontario [Province] and Canada [Country] (table). Census Profile. 2016 Census. Statistics Canada Catalogue no. 98-316-X2016001. Ottawa. Released November 29, 2017. https:// www12.statcan.gc.ca/census-recensement/2016/dp-pd/prof/index. cfm?Lang=E. Tai, Don Bambino, Aditya Shah, Chyke A Doubeni, Irene G Sia, and Mark L Wieland. “The Disproportionate Impact of COVID-19 on Racial and Ethnic Minorities in the United States.” Clinical Infectious Diseases 72, no. 4 ( June 20, 2020). https://doi.org/10.1093/cid/ciaa815. The Canadian Press. “National research project to probe racism in health care amid COVID-19 pandemic.” CBC News, August 25, 2020, https://www.cbc.ca/news/canada/toronto/racism-healthcare-covidpandemic-canada-1.5699710. Nguemeni Tiako, Max Jordan, Howard P Forman, and Marcella NunezSmith. “Racial Health Disparities, COVID-19, and a Way Forward for US Health Systems.” Journal of Hospital Medicine 16, no. 1 (2020): 50–52. https://doi.org/10.12788/jhm.3545. Toronto Public Health. “COVID-19: Status of Cases in Toronto.” City of Toronto, December 31, 2020. www.toronto.ca/home/covid-19/covid19-latest-city-of-toronto-news/covid-19-status-of-cases-in-toronto/. Trinh, Judy. “Canadian doctors of colour offer a frank look at racism in medicine.” CBC News, June 23, 2020. https://www.cbc.ca/news/ health/racism-canadian-medicine-doctors-1.5615554. Waldron, Ingrid. “The impact of inequality on health in Canada: a multidimensional framework.” Diversity in Health and Care 7, no. 4 (2010): 261-270. https://diversityhealthcare.imedpub.com/the-impact-ofinequality-on-health-in-canada-a-multidimensional-framework.pdf Williams, David, Selina Mohammed, Jacinta Leavell, and Chiquita Collins. “Race, Socioeconomic Status, and Health: Complexities, Ongoing Challenges, and Research Opportunities.” Annals of the New York Academy of Sciences 1186 (2010): 69–101. https://doi.org/1 0.1111/j.1749-6632.2009.05339.


GOVERNANCE AND POLICY

HEALTH AND WELLBEING: MENTAL HEALTH CRISIS LITERATURE REVIEW Striving for Health Equity through Medical, Public Health, and Legal Collaboration JOEL TEITELBAU M, JOAN NA TH EISS, AN D COLLEEN H EALY BOUFI DES

T

his article argues that law plays a crucial role in the health and wellbeing of society. Numerous federal laws and programs are centred on establishing a healthy nation. However, inequities in housing, education, transportation, and criminal justice laws and policies, among others, profoundly generate barriers to good health. For instance, substandard housing, food insecurity, and employment discrimination, among other factors, contribute to poor health. An individual’s health status and access to health care services depend on their age, gender, race, socioeconomic status, and more. Specifically, the disadvantages racialized groups face undermine the degree of their wellbeing. While the law may serve the purpose of improving the health of the population, inequities persist due to the insufficient application of said law, which necessitates solutions to this crisis. Their discussion of medical-legal partnerships (MLPs) is specific to the United States experience, though it draws on the way this partnership between the medical and legal professions is embedded into the health care system works to better the population’s health. This collaboration is not a new phenomenon; it has historically been used during the Civil Rights Movement and the HIV/AIDS crisis. Beyond improving an individual’s health,

MLPs integrally serve a broader purpose of health equity within a community as they can design, implement, and improve legal interventions. They provide a comprehensive approach since their experience in the health care setting allows them to better understand the social determinants of health in relation to the law, thus enabling them to take both immediate and preventive solutions. Overall, MLPs are a beneficial approach as they effectively integrate legal practices into the health care system to ensure laws are applied equally for achieving good health for the general populous.

M ENTAL H EALTH AN D TH E CRI MI NAL JUSTICE SYSTEM: ‘ WHAT WE HEARD ’ EVIDENCE SUMMARY REPORT This report focuses on the interrelations of mental health and the criminal justice system in Canada. It addresses the disproportionate and adverse impact on employment, housing, and health services for individuals who experience mental health problems. Incarceration can result in the development of mental health issues because the punitive criminal justice system places little emphasis on recovery or healing from one’s offence. This report through

the methodology of scoping review, interviews, and a national survey provides insight into the framework required to enhance mental health services in the Canadian criminal justice system. For instance, as mental health services vary across the nation, a lack of coordination between health services and correction systems results in individuals facing disruptions in their recovery process. Moreover, there are issues with the accessibility and quality of mental health services in corrections, often inadequate due to the stigma, a lack of privacy, and a shortage of mental health care professionals. In responding to the mental health crisis, the MHCC identifies the action it needs to take as a part of its role. For instance, advocating for enhanced federal policies to improve the mental health support available to individuals in the criminal justice system, facilitating collaboration amongst stakeholders, reducing stigma, sharing practices, and more. Moreover, it identifies the needs of certain groups to be unique, such as First Nations, Inuit, Métis, women, LGBTQ2+, immigrants, and others. These populations’ distinct circumstances require particular responses tailored to their communities. For instance, for First Nations, Inuit, Métis, it is necessary for solutions to incorporate the idea of cultural safety given their historical relationship to Canada, which

33


entailed experiencing trauma and colonialism. Clearly, the MHCC identifies the disparities in the criminal justice system in relation to mental health and it recognizes the need for further action to make improvements. Law directly impacts the health and wellbeing of citizens, whether positively or negatively. While the law strives towards health equity, certain social determinants of health put individuals at a disadvantage and undermine their wellbeing.  The health issues vulnerable social groups face can be attributed to the cultural, socio-economic, and environmental conditions they experience. In this paper, I argue that in Canada, the law profoundly influences equitable treatment in relation to the mental health crisis and its impact on vulnerable groups. This is portrayed through the role and application of laws, social determinants of health, COVID-19 pandemic, current governmental response, and potential solutions. 

ROLE AN D APPLICATION OF LAW To begin, the law plays a significant role in determining the well-being of the population, whether these be laws associated directly with healthcare or those indirectly related, such as on housing, poverty, and the criminal justice system. For instance, the Canada Health Act is a law which funds universal healthcare in Canada, which has the objective “to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers”. Such laws establish rules and standards that aim at improving the wellbeing of Canadians, yet they

34

fail to do so when it comes to marginalized social groups. The law itself does not undermine individuals’ access to equitable treatment; rather, social conditions create various attitudes and stigmas towards certain social groups. The Mental Health Commission of Canada’s report brings forward the inadequacies of the mental health services in the criminal justice system, and in examining the underlying factors it becomes clear that stigma arises from mental health issues. In other instances, stereotypes become associated with individuals due to their low socioeconomic status, race, age, gender, etc. This demonstrates that though the aim of Canadian law is for the betterment of wellbeing, this is not borne out when it comes to certain institutions or practices. In spite of the law’s goal of equitable treatment, its application results in inequities exhibited by the marginalization of vulnerable social groups.

SOCIAL DETERMINANTS OF HEALTH Certain groups in the population experience inequalities as a result of the role that their social and economic circumstances play in determining their wellbeing, which can be referred to as social determinants of health. These include Indigenous status, gender, disability, housing, race, employment, and education. For instance, many individuals who suffer homelessness or poverty suffer from mental health problems. This shows how homelessness is interconnected to poor mental and physical health. The interconnected nature of these social determinants demonstrates that problems in one sector of society have implications for other sectors as well As such, the blame cannot be attributed solely to the healthcare sector for failing to sufficiently assist individuals; other factors need to be considered as well. As issues begin to be solved in one sector, such as housing, this will automatically generate relief in other sectors. For instance, greater job creation and affordable housing would mean that affected individuals will gradually see improvements in their health. Accordingly, action is required to address the social determinants of health, which are likely to be long term goals, to better respond to the mental health crisis in Canada.

COVID-19 PANDEMIC The COVID-19 pandemic has resulted in laws mandating social distancing, quarantining, limiting social gatherings, and more. Although these restrictions serve to limit the spread of COVID-19 amongst individuals, they nevertheless have profound implications for their wellbeing as they can result in isolation, stress, and anxiety. The mental health crisis has been amplified in the pandemic not only due to self-isolation, but also because of financial circumstances such as unemployment. Additionally, increased alcohol consumption is a growing health issue alongside mental health concerns. The CAMH study identifies that certain groups are more vulnerable to the impacts of the pandemic, largely aligning with the vulnerable groups identified by the MHCC report. Racialized people, Indigenous people, people with disabilities, immigrants, low wage-earning workers, and others are prone to experiencing greater effects from the pandemic. This is even more detrimental for those who were experiencing illness prior to the pandemic, since physical distancing measures limit their access to supports’, and virtual assistance may be insufficient. Evidently, COVID-19 has made apparent the gaps in mental health care in Canada and necessitates a greater variety of resources and supports to improve and expand virtual services, emphasize workplace mental health, and more. Thus, this exhibits the inequities that law creates are due to its application, rather than its intended purpose.  

GOVERNMENT RESPONSE A comprehensive approach to equitable treatment for all depends on laws that govern Canadian society holistically. Individuals’ health cannot be divorced from job availability or homelessness, because these social issues often work in a cycle. For example, an unemployed individual unable to afford housing or facing food insecurity may have poor physical health, which over time leads to mental health problems. Inevitability, this scenario is worse for vulnerable populations. COVID-19 sheds light on this interconnectedness of the issues Canadian society faces and emphasises the reality of vulnerable social groups. Given the ability of laws to dictate behaviour, public policy needs to emphasize the social determinants of health


in constructing plans for responding to the mental health crisis alongside COVID-19. In order to effectively respond to the mental health problems, the root of action must be centred on issues that contribute to these problems, such as housing and employment. The government is aware of the gaps in the system and is pursuing action to improve conditions of specific social groups. For instance, in the National Housing Strategy, the Government of Canada has committed to supporting vulnerable populations through its GenderBased Analysis Plus approach which ensures that individuals will not be impacted negatively by assessing the potential impacts of policies on a diverse range of individuals. In response to the COVID-19 pandemic, the government response reflects this with assistance programs such as CERB, CESB, and EI, which provided financial support to individuals. For instance, in the press conference describing the plan of priority access when it comes to distributing the COVID-19 vaccine in the near future, the federal government made it clear that they recognize Indigenous peoples as a vulnerable group, necessitating prioritizing their health. Evidently, a central objective of public health needs to be responding to the needs of vulnerable groups in the population as a result of the disproportionate impact they face. Clearly, the pandemic has brought forward the need for action when it comes to mental health services and affordable housing, which can prompt the government to take an immediate response complementing its long-term objectives.

PROPOSED SOLUTIONS Even though Canada vastly differs from the United States, the issue of the mental health crisis is similar to a certain extent, so it is useful to consider the application of medical-legal partnerships (MLPs) in Canada. These could be a useful approach in dealing with the mental health issues arising amidst the COVID-19 pandemic, as well as in improving the mental health services in the criminal justice system. In relation to the COVID-19 pandemic, given the historical success of MLPs in unprecedented times in the United States such as the HIV/AIDS crisis, such an approach could improve the situation through resources and supports that become embedded into the

health care system. Additionally, this approach could be beneficial in response to the barriers that exist for mental health services in corrections; for instance, MLPs could combat stigma associated with mental health issues by taking a frontline approach to an effective response. Given the role of the MHCC to share best practices, this should be one of the practices they should look into in application to Canadian communities. Clearly, in order for the law to provide equitable treatment in its application, efforts may be required by health care and legal professionals through such partnerships to better overcome these interconnected issues. Accordingly, MLPs are a potential solution that may be suitable in responding to the mental health crisis concerning both the COVID-19 pandemic and the criminal justice system in Canada.  To conclude, laws can be intended to impact the health and wellbeing of Canadians positively, however, their application can result in vulnerable social groups experiencing inequities. The mental health crisis is interconnected with the social determinants of health. Moreover, the COVID-19 pandemic has exacerbated existing mental health problems. Overall, for the application of the law to be as equitable as it intends to, the government should continue moving forward with its current solutions and consider other possibilities such as MLPs.

35


xxx Mental

ENDNOTES i

Joel B. Teitelbaum, Joanna Theiss, and Colleen Healy Boufides, "Striving for Health Equity through Medical, Public Health, and Legal Collaboration," Journal of Law, Medicine and Ethics 47, no. S2 (2019): 104, https://doi.org/10.1177/1073110519857330.n

Health Commission of Canada, Mental Health, 6.

xxxi Teitelbaum, Theiss, and

Boufides, "Striving for Health," 106.

xxxii Teitelbaum, Theiss, and

Boufides, "Striving for Health," 106.

xxxiii Teitelbaum, Theiss, and

Boufides, "Striving for Health," 106.

ii Teitelbaum, Theiss, and

Boufides, "Striving for Health," 104.

xxxiv Mental

Health Commission of Canada, Mental Health, 1.

iii Teitelbaum, Theiss, and

Boufides, "Striving for Health," 104.

xxxv Mental

Health Commission of Canada, Mental Health, 4.

iv Teitelbaum, Theiss, and

Boufides, "Striving for Health," 105.

xxxvi Mental

Health Commission of Canada, Mental Health, 7.

v Teitelbaum, Theiss, and

Boufides, "Striving for Health," 106.

vi Teitelbaum, Theiss, and

Boufides, "Striving for Health," 105.

vii Teitelbaum, Theiss, and

Boufides, "Striving for Health," 105.

xxxvii Centre for Addiction and Mental Health, Mental Health in Canada: Covid-19 and Beyond CAMH Policy Advice (2020), 1, http://www.camh. ca/-/media/files/pdfs---public-policy-submissions/covid-and-mhpolicy-paper-pdf.pdf.

viii Teitelbaum, Theiss, and

Boufides, "Striving for Health," 105.

ix Teitelbaum, Theiss, and

Boufides, "Striving for Health," 105.

x Teitelbaum, Theiss, and

Boufides, "Striving for Health," 106.

xi Teitelbaum, Theiss, and

Boufides, "Striving for Health," 106.

xii Teitelbaum, Theiss, and

Boufides, "Striving for Health," 106.

xxxviii Centre xxxix Centre xl Centre

for Addiction and Mental Health, Mental Health, 1.

for Addiction and Mental Health, Mental Health, 1.

for Addiction and Mental Health, Mental Health, 11.

xli Mental

Health Commission of Canada, Mental Health, 8.

xlii Centre

for Addiction and Mental Health, Mental Health, 2.

xliii Centre

for Addiction and Mental Health, Mental Health, 4.

Justice System: What we heard (n.p., 2020), 1.

xliv Centre

for Addiction and Mental Health, Mental Health, 5-11.

xiv Mental

Health Commission of Canada, Mental Health, 1.

xlv Mental

Health Commission of Canada, Mental Health, 1.

xv Mental

Health Commission of Canada, Mental Health, 1.

xlvi Teitelbaum, Theiss, and

xvi Mental

Health Commission of Canada, Mental Health, 3.

xlvii Mental

xvii Mental

Health Commission of Canada, Mental Health, 5.

xlviii Government

xviii Mental

Health Commission of Canada, Mental Health, 6.

xiii Mental Health Commission of Canada, Mental Health in the Criminal

xix Mental

Health Commission of Canada, Mental Health, 9.

xx Mental

Health Commission of Canada, Mental Health, 8.

xxi Mental

Health Commission of Canada, Mental Health, 7.

xxii Mental

Health Commission of Canada, Mental Health, 8.

xxiii Mental

Health Commission of Canada, Mental Health, 10.

xxiv Teitelbaum, Theiss, and

Boufides, "Striving for Health," 104.

xxv Teitelbaum, Theiss, and

Boufides, "Striving for Health," 104.

xxvi Teitelbaum, Theiss, and

Boufides, "Striving for Health," 104.

xxvii

Government of Canada, Canada Health Act (2020), https://www. canada.ca/en/health-canada/services/health-care-system/canada-healthcare-system-medicare/canada-health-act.html.

xxviii Teitelbaum, Theiss, and xxix Mental

36

Boufides, "Striving for Health," 104.

Health Commission of Canada, Mental Health, 6.

Boufides, "Striving for Health," 105.

Health Commission of Canada, Mental Health, 8.

of Canada, Canada's National Housing Strategy (2018), 24-25, https://assets.cmhc-schl.gc.ca/sf/project/placetocallhome/pdfs/ canada-national-housing-strategy.pdf ?rev=97491935-2a97-405f-bd38decf72266ee9.

xlix Centre

for Addiction and Mental Health, Mental Health, 10.

l Tonda MacCharles, Vast majority of Canadians could have access to a COVID-19 vaccine by late 2021, says public health deputy chief (thestar. com, 2017) https://www.thestar.com/politics/federal/2020/11/17/vastmajority-of-canadians-could-have-access-to-a-covid-19-vaccine-bylate-2021-says-public-health-deputy-chief.html. li Mental

Health Commission of Canada, Mental Health, 8.

lii Teitelbaum, Theiss, and

Boufides, "Striving for Health," 105.

liii Teitelbaum, Theiss, and

Boufides, "Striving for Health," 105.

liv Mental

Health Commission of Canada, Mental Health, 6.

lv Teitelbaum, Theiss, and lvi Mental

Boufides, "Striving for Health," 106.

Health Commission of Canada, Mental Health, 8.


BIBLIOGRAPHY Centre for Addiction and Mental Health. “Mental Health in Canada: Covid-19 and Beyond CAMH Policy Advice.” July 2020. http:// www.camh.ca/-/media/files/pdfs---public-policy-submissions/ covid-and-mh-policy-paper-pdf.pdf. Government of Canada. “Canada’s National Housing Strategy.” 2018. https://assets.cmhc-schl.gc.ca/sf/project/placetocallhome/pdfs/ canada-national-housing-strategy.pdf ?rev=97491935-2a97-405fbd38-decf72266ee9. Government of Canada. “Canada Health Act.” 2020. https://www. canada.ca/en/health-canada/services/health-care-system/canadahealth-care-system-medicare/canada-health-act.html. MacCharles, Tonda. “Vast majority of Canadians could have access to a COVID-19 vaccine by late 2021, says public health deputy chief.” thestar.com. November 17, 2020. https://www.thestar.com/politics/ federal/2020/11/17/vast-majority-of-canadians-could-haveaccess-to-a-covid-19-vaccine-by-late-2021-says-public-healthdeputy-chief.html. Mental Health Commission of Canada. “Mental Health in the Criminal Justice System: What we heard.” 2020. https://www. mentalhealthcommission.ca/sites/default/files/2020-08/mental_ health_and_the_law_evidence_summary_report_eng.pdf. Teitelbaum, Joel B., Joanna Theiss, and Colleen Healy Boufides. "Striving for Health Equity through Medical, Public Health, and Legal Collaboration." The Journal of Law, Medicine & Ethics, 47 no.2 (2019): 104-107.

37


GOVERNANCE AND POLICY

CLIMATE CHANGE The Case for NATO’s New Raison d’être BY ERIC JACKSON

T

he scientific consensus is that climate change, precipitated by human activity, represents an existential threat to the world. According to Climate Central, an organization that promotes climate science, annual floods will threaten up to 10 percent of the global population by 2100. Additionally, by the same time, major coastal cities worldwide, such as Shanghai, Mumbai, Venice, London, and New York, are projected to be sitting below the high tide mark. These are startling projections. The United Nations (UN) Security Council first debated the linkage between climate change and insecurity in 2007. Not surprisingly, in 2019, the UN finally recognized climate change as a “threat multiplier” and committed to acting urgently to address the climate crisis. However, failed UN climate treaties represent an unwillingness for international cooperation. The world is too large, with too many competing political agendas. Instead, as a meaningful starting point, real action supporting the fight against climate change must be spearheaded by an international entity smaller than the UN but comprising powerful world actors. The North Atlantic Treaty Organization (NATO) is one of the few organizations ideally structured to take on this mandate.

THE EVOLUT ION OF NATO NATO was founded in the shadow of the Second World War as a defensive pact. Its primary purpose was to confront the greatest existential threat to the Western World at the time: the clearly-defined nation-state of the Soviet Union. However, the revolutions of 1989 in the Eastern Bloc and the collapse of the Warsaw Pact in 1991 prompted a re-evaluation of NATO’s purpose. It no longer had its de facto adversary.

38

NATO’s purpose evolved further in September 2001 with the declaration of the war on terror. The framework of its mission was forced to adjust. NATO no longer had a single clear adversary; instead, it was fighting an amorphous ideology spread across independent nation-states. Climate change is not isolated to any one nation-state. It is caused by, and can be fought in, almost every country in the world, especially more affluent nations. Following NATO’s evolution from countering the Soviet Union to fighting the war on terror, NATO’s natural next step is to fight a threat that is not clearly defined by political or ideological borders, yet is the greatest existential threat to the world. This desired shift in NATO’s focus is common amongst younger generations; the NATO 2030 Young Leaders Group produced a 2021 report outlining this very goal. In Part IV of their report, the group suggests a shift towards a more sustainable future by having climate change at the forefront of any strategic decision going forward.

CLIMATE CHANGE IS A SECURITY THREAT To understand how the threat of climate change presently fits into NATO’s mandate of providing security, one must understand why the UN declared climate change a security issue. Collectively, Shanghai, Mumbai, Venice, London, and New York have a population of approximately 60 million people. Should sea levels rise as projected, millions of people will have to be resettled in different areas of the world. Historically, the migration of people to populated regions searching for economic prosperity or fleeing persecu-

tion has given rise to conflict. The westward expansion within the United States and the subsequent conflict with the Indigenous communities that resulted in a near genocide during the various American Indian Wars is one such example. Climate change will also produce an economic burden. According to a 2018 report, rising sea levels could cost the world at least 14 trillion USD annually by 2100. Economic insecurity creates global insecurity. To place this in perspective, the Treaty of Versailles mandated that Germany pay 33 billion USD (roughly 402 billion USD today) in reparations following the First World War. This caused economic instability in Germany, and in turn gave rise to Nazi Germany and the Second World War. The loss of $14 trillion could lead to increased nationalism and isolationism worldwide, sowing seeds for future conflict. Lastly, rising temperatures attributable to climate change are causing shortages in fresh water. Ominously, former UN Secretaries-General Boutros Boutros-Ghali, Kofi Annan, and Ban Ki Moon have cautioned that fierce competition over fresh water will become a source of conflict and wars in the future. Quite simply, water is needed to sustain life. In increasingly arid regions, water is sparingly used for what little agriculture is possible and for the hydration of those who live there. Population migration, economic disruption, and the need to secure fresh water clearly illustrate the threat that climate change poses to global security and the need for immediate action. Climate change must be taken seriously as an international security threat, rather than framed as a social or political debate.


A NEW MAN DATE Previously important figures within NATO, such as former U.S. President Donald Trump, denied the existence of climate change. Instead of attempting to change the minds of climate change deniers, all NATO member states should increase military spending to 2 percent of their GDP, as President Trump had advocated. This increase in military spending need not go toward traditional military expenditures, such as wartime operations. Instead, the funds should be devoted to the development of a specific action group within NATO dedicated to addressing climate change. With this additional funding, member states will be able to more readily deploy personnel and equipment to regions directly impacted by climate change, as well as increase shared funding of military research to find climate solutions. The allocation of large portions of a NATO member’s military budget to research and civil projects is not unprecedented. The United States military apportioned $71.8 billion of its requested $582.7 billion budget to research and development in 2017. Military research has resulted in many essential, non-military products that people use on a daily basis, such as radar, the internet, and duct tape. The practicality of this proposal is threefold. First, leveraging a military’s logistical and technical apparatus is common amongst governments dealing with existential threats. Second, the legislation required for this proposal will ideally garner support from across the political spectrum, as all sides gain something from this mandate. Finally, a shared funding program for climate change action will strengthen the bonds between NATO members. Governments have relied on their militaries to rapidly respond to disaster situations, such as hurricanes, and leveraged their ability to handle growing crises like COVID-19. For example, the U.S. government deployed

thousands of military personnel to regions devastated by Hurricane Katrina. These personnel were instrumental in the provision of evacuation assistance, search and rescue, commodity and fuel distribution, medical care, law enforcement support, etc. Hurricane Katrina was thus an example of using the military as a response mechanism to a significant environmental threat. More recently, actions taken by the British and Canadian governments highlight the usage of military capabilities as a supportive and preventative mechanism in dealing with a crisis. When the National Health Service in England became overwhelmed with COVID-19 testing, the government relied on military personnel to roll out a new mass testing program in conjunction with it. Similarly, in Canada, Prime Minister Justin Trudeau appointed Major-General Dany Fortin to lead the country’s COVID-19 vaccine distribution program. These operations are examples of leveraging the military’s logistical and technical expertise to fight an adversary that is not defined by any political or ideological border—similar to that of climate change. In theory, legislation required to frame climate change as a national security threat will be supported by parties across the political spectrum. This framework will appease the political left because real, substantial action will finally be prioritized to fight climate change. Conversely, the political right will have an incentive to support this legislation because it works to address a national security threat, while also bolstering their country’s military capabilities. Importantly, the European Union has already worked to identify and acknowledge the link between climate change and national security—creating a roadmap to address climate-security issues. Considering the political diversity of Europe, this roadmap proves that the political support for such a framing of climate change is present. Finally, funding climate action through NATO’s budget will ultimately strengthen the bonds amongst member states. Recently, NATO Secretary-General Jens Stoltenberg proposed that NATO cover all costs associated with troop deployments, rather than members covering their costs individually. Stoltenberg believes this funding proposal will ensure an equitable contribution to NATO missions, while strengthening trust and cooperation within the alliance. This same logic will hold in the shared funding of an action group against climate change. It is clear that current international efforts to curb the threat of climate change have failed. Treaties like the Kyoto Accords and the Paris Agreement treat climate change as a social and political issue rather than a global security threat. The truth is, it is a security threat—and the most powerful military alliance in the world must spearhead the fight to find real solutions.

39


ENDNOTES i

Climate Central. 2019. Global vulnerability to sea level rise worse than previously understood. Report, Princeton: Climate Central.

ii Climate

Central, Global Vulnerability.

iii

United Nations. 2019. Climate change recognized as ‘threat multiplier’, UN Security Council debates its impact on peace. January 25. Accessed February 13, 2021. https://news.un.org/ en/stor y/2019/01/1031322#:~:text=%E2%80%9CClimate%20 change%20has%20a%20multitude,and%20 migration%2C%E2%80%9D%20he%20said.

iv

North Atlantic Treaty Organization. 2020. "North Atlantic Treaty Organization." NATO's Purpose. September 24. Accessed April 3, 2021. https://www.nato.int/cps/en/natohq/topics_68144. htm#:~:text=NATO's%20essential%20and%20endur ing%20 purpose,and%20cohesion%20among%20its%20members. v

NATO 2030 Young Leaders Group. 2021. NATO 2030: Embrace the change, guard the values. Report, Brussels: NATO.

vi

Department of Economic and Social Affairs. 2020. 2019 Demographic Yearbook. Agency Report, New York: The United Nations.

vii

Jevrejeva, S, L P Jackson, A Grinsted, D Lincke, and B Marzeion. 2018. "Flood damage costs under the sea level rise with warming of 1.5 ◦C and 2 ◦C." Environmental Research Letters 13 (7): 1-11. viii The London Times. 1922. "Schedule of Payments Prescribing the Time and Manner for Securing and Discharging the Entire Obligation of Germany for Reparation Under Articles 231, 232, and 233 of the Treaty of Versailles." The American Journal of International Law (Cambridge University Press) 16 (4): 215-219. ix

United Nations University. 2011. Former National Leaders: Water a Global Security Issue. March 20. Accessed February 13, 2021. https://unu. edu/media-relations/releases/water-called-a-global-security-issue.html.

x Davis, Julie Hirschfeld. 2018. "Trump Warns NATO Allies to Spend More on Defense, or Else ." The New York Times. July 2. Accessed April 2, 2021. https://www.nytimes.com/2018/07/02/world/europe/ trump-nato.html. xi United

States Department of Defense. 2016. United States Department of Defense Fiscal Year 2017 Budget Request. Budget Summary, Washington D.C.: Office of the Secretary of Defense.

xii Davis, Lynn E., Jill Rough, Gary Cecchine, Agnes Gereben Schaefer, and Laurinda L. Zeman. 2007. "The Military Response to Hurricane Katrina." In Hurricane Katrina, by Lynn E. Davis, Jill Rough, Gary Cecchine, Agnes Gereben Schaefer and Laurinda L. Zeman, 19-46. Santa Monica: RAND Corporation. xiii Smith-Spark, Laura. 2020. "Military forces drafted in as Europe risks being overwhelmed by Covid cases." CNN. November 7. Accessed February 15, 2021. https://www.cnn.com/2020/11/07/europe/europecoronavirus-military-role-intl-gbr/index.html. xiv Tasker, Johan Paul. 2020. "Trudeau turns to the military to help with COVID-19 vaccine distribution." CBC. November 27. Accessed February 15, 2021. https://www.cbc.ca/news/politics/trudeau-vaccinedistribution-military-1.5819248.

40

xv Council of the European Union. 2020. Climate Change and Defence Roadmap. Security and Defence Policy Directorate, Brussels: European External Action Service. xvi

Berthiaume, Lee. 2021. "Canada set to benefit as NATO considers compensation for military deployments." CTV News. February 15. Accessed February 18, 2021. https://www.ctvnews.ca/mobile/politics/ canada-set-to-benefit-as-nato-considers-compensation-for-militarydeployments-1.5309662.

BIBLIOGRAPHY Berthiaume, Lee. 2021. “Canada set to benefit as NATO considers compensation for military deployments.” CTV News. February 15. Accessed February 18, 2021. https://www.ctvnews.ca/mobile/ politics/canada-set-to-benefit-as-nato-considers-compensationfor-military-deployments-1.5309662. Climate Central. 2019. Global vulnerability to sea level rise worse than previously understood. Report, Princeton: Climate Central. Council of the European Union. 2020. Climate Change and Defence Roadmap. Security and Defence Policy Directorate, Brussels: European External Action Service. Davis, Julie Hirschfeld. 2018. “Trump Warns NATO Allies to Spend More on Defense, or Else .” The New York Times. July 2. Accessed April 2, 2021. https://www.nytimes.com/2018/07/02/world/europe/ trump-nato.html. Davis, Lynn E., Jill Rough, Gary Cecchine, Agnes Gereben Schaefer, and Laurinda L. Zeman. 2007. “The Military Response to Hurricane Katrina.” In Hurricane Katrina, by Lynn E. Davis, Jill Rough, Gary Cecchine, Agnes Gereben Schaefer and Laurinda L. Zeman, 19-46. Santa Monica: RAND Corporation. Department of Economic and Social Affairs. 2020. 2019 Demographic Yearbook. Agency Report, New York: The United Nations. Jevrejeva, S, L P Jackson, A Grinsted, D Lincke, and B Marzeion. 2018. “Flood damage costs under the sea level rise with warming of 1.5 ◦C and 2◦C.” Environmental Research Letters 13 (7): 1-11. NATO 2030 Young Leaders Group. 2021. NATO 2030: Embrace the change, guard the values. Report, Brussels: NATO. North Atlantic Treaty Organization. 2020. “North Atlantic Treaty Organization.” NATO’s Purpose. September 24. Accessed April 3, 2021. https://www.nato.int/cps/en/natohq/topics_68144. htm#:~:text=NATO’s%20essential%20and%20enduring%20 purpose,and%20cohesion%20among%20its%20members. Smith-Spark, Laura. 2020. “Military forces drafted in as Europe risks being overwhelmed by Covid cases.” CNN. November 7. Accessed February 15, 2021. https://www.cnn.com/2020/11/07/europe/ europe-coronavirus-military-role-intl-gbr/index.html. Tasker, Johan Paul. 2020. “Trudeau turns to the military to help with COVID-19 vaccine distribution.” CBC. November 27. Accessed February 15, 2021. https://www.cbc.ca/news/politics/trudeauvaccine-distribution-military-1.5819248.


The London Times. 1922. “Schedule of Payments Prescribing the Time and Manner for Securing and Discharging the Entire Obligation of Germany for Reparation Under Articles 231, 232, and 233 of the Treaty of Versailles.” The American Journal of International Law (Cambridge University Press) 16 (4): 215-219. United Nations. 2019. Climate change recognized as ‘threat multiplier’, UN Security Council debates its impact on peace. January 25. Accessed February 13, 2021. https://news.un.org/en/ stor y/2019/01/1031322#:~:text=%E2%80%9CClimate%20 change%20has%20a%20multitude,and%20 migration%2C%E2%80%9D%20he%20said. United Nations University. 2011. Former National Leaders: Water a Global Security Issue. March 20. Accessed February 13, 2021. https://unu.edu/media-relations/releases/water-called-a-globalsecurity-issue.html. United States Department of Defense. 2016. United States Department of Defense Fiscal Year 2017 Budget Request. Budget Summary, Washington D.C.: Office of the Secretary of Defense.

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GOVERNANCE AND POLICY

EU DEVELOPMENT I N SUB-SAHARAN AFR ICA AND JAPANESE DEVELO PM ENT I N ASIA The Persistence of Top-Down Structures in Aid Programs BY ANDERS BRETSEN

INTRODUCTION

F

oreign aid has long been a hotly-contested topic. Some interpret industrialized countries as having a moral imperative to assist states with less extensive economic networks, infrastructure, and social capital. Others, however, view aid – and development more broadly – as a self-serving imperial project. Japan’s involvement in Asia and the EU’s in Sub-Saharan Africa are both unsatisfactory, as they are overwhelmingly top-down in nature. The EU, despite occasional evidence of progress, as seen in Botswana, has broadly failed to implement a consultative approach to aid that delivers locally-oriented outcomes. The normative framing around gender, in particular, illustrates this disparity. While Japan’s internal aid architecture makes its underlying aid agenda more challenging to discern, its geopolitical status as an “in-between” state – pursuing regional leadership while nonetheless contending with the superstructures of Western power – highlights a unique form of neo-colonial self-interest.

THE EUROPEAN UNION The European Union, which currently provides 55 per cent of official total development aid worldwide (through the European Commission plus the 27 member states), has provided aid to African states since the 1957 Treaty of Rome. This relationship was initially centred around Francophone Africa and gradually expanded following EU enlargement in the 1970s. The Lomé Convention, a 1975 agreement between the EU and 46 states, appeared to establish a durable partnership predicated on joint action, tariff-free access to EU markets, stabilized export earnings for commodities and minerals, and an ambitious European Development Fund (EDF) committing resources over five-year increments. Nevertheless, the Lomé Convention’s record

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is disappointing: only a “limited number of African countries managed to improve their level of development, while the majority underwent a process of steady deterioration”. With the expiration of the Lomé framework in 2000, the Cotonou Partnership Agreement (CPA) emerged in June following lengthy negotiations, and instantiated a number of radical departures from the previous model. In particular, it terminated the “aid entitlement” principle, and sought to base allocation on ongoing recipient performance. The aid instruments themselves were consolidated, with a diminishment of well-received export stabilization programs, the addition of a political dimension to development cooperation, and, in November 2000, a policy statement adopted by both the European Commission and Council focusing on reducing poverty through concentration on “a reduced number of sectors where, on the basis of the principle of comparative advantage, it can provide an added value to the activities of the Member States”.  In other words, it was strongly rooted in economic liberalization and deregulation.  The subsequent creation of an EU-Africa Strategy was centred on the expansion of regional markets and a new Europe-Africa Infrastructure Partnership, while a revised CPA took effect in 2005 - it pledged to prioritize grassroots agency. However, a conspicuous discrepancy emerged between commitment and reality. In the post-9/11 landscape EU priorities began shifting; the European Security Strategy (ESS) foregrounded “security as a precondition [for] development,” an element broadly criticized by recipient states as self-serving. Moreover, adjustments to the EDF were met with disapproval from African states, as funds were diverted from economic and social development “to security-oriented programs”, which underscores the detachment of EU aid disbursement from recipient interests. The EU has been a prominent donor in Malawi, centring its efforts on enhancing trade-relevant transport and improving food security through the diversification of agriculture. While the financial component of EU commitments was delivered effectively and with increasing speed, there remained doubts concerning the degree of domestic


ownership of policies, with a prevailing perception of “externally-driven” change. While transport costs were ultimately reduced, little attention was directed to rural regions and coordination with local governments was nonexistent. In contrast to Malawi, the case of Botswana offers a glimpse at more participatory avenues and illustrates what the EU should be striving to elaborate. Beginning in 2002, the EU created space for “community-based initiatives to enhance rural livelihoods” and, through the European Investment Bank (EIB), financed water and power infrastructure overhauls, assisting Botswana in the “provision of basic services” – a far more meaningful route than the perennial focus on ‘security’. A second aid channel, geared toward unforeseen needs, allowed for greater flexibility in implementation and was “cautiously welcomed by local policymakers.” Despite these positive strides – and a 2007 code of conduct emphasizing local ownership and inclusion – the EU is beset by the nature of its thorny internal politics. Maurizio Carbone, having conducted extensive fieldwork in Sub-Saharan Africa, highlights divergences in the preferences of EU member states, such as the Nordic countries: they actively sought to collaborate with “like-minded” partners outside the EU, citing a disdain for the development norms and practices espoused by member states in Southern and Central Europe. Measured skepticism also surrounds the EU’s promotion of democracy. The imposition of principles of good governance can bring about the consequent effect of decentralization and diminished power of recipient states; this approach focuses on developing principles “consistent with trade liberalization and neoliberalism,” rather than promoting popular participation in politics. Moreover, an empirical study of Sub-Saharan Africa by Bountagkidis et. al. reveals a positive correlation between aid allocation and trade exports; ironically, this shows that there is a negative relationship between aid and political stability, indicating that the EU does not, in fact, assign aid based on good governance – despite its claims to the contrary. While the authors concede that normative motivations and strategic interests

are not mutually exclusive by definition, their regression analysis (based on World Bank data from 2000 to 2010) indicates that the disbursal of aid to Sub-Saharan Africa is more political than moral. Another critical lens through which to analyze the orientation of European aid is that of gender. The foundational Lisbon Treaty, ratified in 2007, considers gender equality to be among the EU’s “core values and objectives” and is to be “integrated into all operations and policies.” Despite this, the role of gender in guiding EU development policies is predominantly “instrumentalist.” Meanwhile, “more transformative issues” put forth by Sub-Saharan civil society organizations do not fit within the EU’s narrow development paradigm, which appears largely unwilling to “challenge gender relations or power structures.” The third iteration of the Lomé Convention in 1984, appeared merely to underline a secondary role for women, focussing on “what development could get from women,” rather than how development could be steered to elevate more aspirational social justice aims. The ‘Women in Development’ approach  was criticized by feminist scholars in the Global South because of its “focus on economic efficiency gains” by conceiving of women’s employment as an underutilized tool for development, and neglecting to recognize the underlying causes of social inequalities. The 2000 Cotonou Agreement marked a departure from this status quo, instigating a range of policy documents underlining the centrality of gender mainstreaming in all projects, and at all levels.  However, encouraging initial strides grew less convincing in practice. Gender mainstreaming that seeks to initiate fundamental transformation is distinct from an “integrationist” model, which confines gender to existing frameworks. The EU’s emphasis on the MDGs as the driver of policy sits in stark contrast with women’s organizations, who have criticized the Goals’ lack of focus on systemic power issues, and its non-usage of a “human rights framework” which characterizes individuals as rights-holders capable of organizing to realize their rights, “rather than as passive recipients”. The cofounder of the African’s Women Development Fund,

Hilda Tadria, extends this critique of the MDGs as a platform for action: “achieving gender equality has more to do with socially accepted cultural beliefs and ideologies that uphold male privilege than with educational or economic goals.” Once more, the European model seems inclined to embed, rather than dismantle hegemonic frameworks. The gulf between the normative interpretations of equality espoused by the EU and African civil society actors underlines the scale of Europe’s detachment. Moreover, where gender is prominent in development planning, it is frequently in service of another ambition, like economic growth, and is therefore untethered to civil society demands. In Ethiopia, for instance, the EU has premised that “women’s contribution to household income and production is crucial for fighting poverty;” this frames gender equality as an instrument in the eradication of poverty, rather than a worthwhile aim in and of itself, and likewise serves to embed “traditional gender roles” rather than dismantle them. In Mauritius, an EU program aiming to provide jobs to unemployed women casts its objectives as centred on increasing skills available to employers and reducing labour and skill mismatches: nowhere is gender equality mentioned. In Namibia, “gender parity in literacy” is a metric applied to a “human resources development” program seeking to meet labour market demands, once again rendering gender equality subordinate to and an instrument of market outcomes. The gap that exists between how civil society frames feminist goals and the way the EU operationalizes them indicates that the international aid often priviledges old, hegemonic structures over grassroots, women-led ownership of agendas.

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JAPAN Japan’s role in distributing aid within Asia is multifaceted, but displays an overarching character of self-interest. However, Japan’s aid in Asia is not entirely comparable to that of the European Union; due to the its unique geopolitical position, perceived as neither ‘developed’ nor ‘underdeveloped’ (these two terms are presented in single quotations as their relevance to the discourse does not necessarily make them accurate descriptors). In recent decades, Japan has been among the top two donors in terms of Official Development Aid (ODA) spending; in 1995, the country expended over $14 million to development, twice as much as the United States (the second-largest donor at that point), and contributed one-fifth of global ODA from 1999-2009. Japanese foreign aid in Asia has historically been “explicitly tied” to the promotion of its exports, especially with the onset of war reparation payments in 1954, whereupon it sought to augment the purchasing power of states in Asia to expand markets for Japanese producers. It is not terribly surprising that, as a result, Japan had a $40 billion trade surplus with East Asian states, many of whom, were significant recipients of Japanese ODA. This structure furnished a “horizontal division of labour” among Asian countries in order to procure raw materials, not unlike the mercantilist dynamics of 19th century British imperialism. Another layer of causality, however,

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adds additional explanatory power without negating the self-interest component. Japan’s expansion of its ODA from the 1970s onward could have been dictated by Western pressure; given that the US was saddled with heavy budget and trade deficits during the 1980s, it encouraged Japan to shoulder some of the financial burden for global collective security, and thereby increase its ODA allocation. This dovetailed with former Prime Minister Nakasone’s “neo-conservative” impulses - that is, expansionist and powerbased - which viewed ODA as an instrument of foreign policy and a vehicle for greater international influence. While the EU’s internal complications arise from  the diverging interests of 27 sovereign constituent states, Japan is nevertheless far from a unitary actor. In fact, decision-making power in the Japanese government with respect to foreign aid resides within the bureaucratic, not the political sphere. Even prominent Diet committees, like the Special Committee for External Economic Assistance, have been deemed to possess less knowledge and expertise surrounding ODA policymaking than their bureaucratic counterparts. This is, in part, because the allocation of foreign aid is beyond the interests of domestic constituents, who are more focused on “public works, economic policy, and social security.” Given the centrality of these preferences, politicians, preoccupied with re-election, are

disincentivized from trying to take on more prominent roles in ODA planning. Even where prime ministers have made bold statements on the diversification and delivery of aid, these have gone largely unfulfilled as a result of powerful ministries and technocrats outmuscling the executive. Moreover, unlike many Western countries, which have a designated aid organ within the bureaucracy, Japan has a shared structure comprising four distinct bodies: foreign affairs, trade, finance, and economic planning ministries.  This gives rise to “sectional” friction over objectives, methods, terms, and long-term relationships. Whereas the European Commission is a relatively harmonized political body, Japan’s aid stakeholders are fragmented in such a way that discerning a coherent thread across time proves difficult. Nonetheless, accusations of neo-colonialism run rampant, as Japan is often perceived as extending a “senior-junior structure” predicated on a “vertical relationship” with Asian states, despite its overtures about equal partnership. Such a hierarchy, as evidenced by the European cases, reduces the space for consultative and participatory aid practices, invariably diminishing its quality and local utility. This is not incompatible with a moralizing tendency – and such motivations may serve to reinforce a sense of superiority. This is evidenced by the fact that public support increases for  ODA that targets poverty reduction. Similarly, while


Japan was a leading polluter in the 1960s, it ramped up environmental ODA and has adopted a central role in “agenda setting, policy formation and policy appraisal” in collective environmental management.” Like in the case of the EU, these strides are offset by the state’s inability to cultivate a domestic NGO community capable of keeping the state accountable to its climate commitments. Non-state actors are neglected in favour of environmental aid that doubles “as a strategic tool for the acquisition of resources and energy.” Parsing the underpinnings of Japanese aid requires an examination of engineering firm Nippon Kōei’s 1950s Baluchaung hydropower project, in then-Burma. Former colonial engineers, such as Kubota, “yearned to develop virgin frontiers as they once did in Korea and Manchukuo after Japan returned to its precolonial borders.” Enticing Asian governments with the promise of swift industrialization, Kubota allied with lobbyists to facilitate projects under the banner of reparations. This ultimately served to “resurrect the colonial discourse of Japanese leadership,” driving Asian growth through a “multilateral regionalism” that engendered the country’s regional hegemony. At the hydropower project sites, development consultants and engineers essentially operated as “colonial managers,” while the Japanese government funded projects that “strengthened state and military power” to the detriment of local considerations. This

functioned as an extension of colonial operations, fostering “new networks of power… that brought together American Cold War designs” through the integration of peripheral Asian economies with an industrialized, Japanese nucleus. Far from a neutral actor, Japan proclaimed itself to be a more sensitive partner to Asian states than the West would otherwise be, given its own path to rehabilitation and industrialization within the postwar American-dominated international system and global economy. Japanese engineers sought to characterize their Asian undertakings as more “grounded” than the West’s approach and, in this sense, Japan succeeded in wrestling back regional hegemony in Asia, instituting a “postcolonial developmental power regime” bound by its own economic supremacy “within a broader discourse of Asian regionalism and cooperation.” This is undoubtedly an assertion of self-interest, but it is worth noting the overlapping hierarchies that make it something slightly more than imperial revivalism. It would not be unreasonable to posit, for instance, that, if top-down developmentalism is to occur in Asia, Japanese networks may be better-equipped than the West to direct this process. Additionally, Japan’s status as a “semi-developed country” was central to its strategic postwar reconfiguration, providing it with an “intermediary function” located between the “developed” West and “underdeveloped” Asia. This allowed the country to

take on a dualistic character as a subject of Western encroachment while operating as a de facto regional hegemon.

CONCLUSION Ultimately, both the European Union and Japan provide less-than-stellar models for development, and in both instances it appears plausible that development has been utilized primarily as a tool for economic self-advancement. Even when this was not the case, execution was still far too paternalistic and non-consultative to provide any value for communities. However, Japan’s intermediary position as a ‘semi-developed’ state existing in a world where ‘development’ is implicitly within the purview of Western actors, makes the state more capable of advocating for some degree of regional leadership. This is nonetheless very tenuous. Furthermore, this paper presupposes ‘development’ as the prevailing model of international aid and assistance; additional scholarship should seek to more intricately examine the nature of development, as well as its internal biases toward industrial modernity. Is the lack of participatory mechanisms and the general top-down configuration of development inherent as we currently conceptualize it? If so, how can we eschew it in favour of something more emancipatory and community-oriented?

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xxxiii Ibid, 42

ENDNOTES i Homei, “Between

the West and Asia”, 452

ii Debusscher, “Confirming

Hierarchies”, 31; Carbone, “Better Aid”

iii Ibid

xlii Ibid

ix Ibid, 222

xliii Ibid, 26

x Ibid

xliv Ibid

xi Ibid

xlv Ibid

xii Ibid, 223

xlvi Ibid

xiii Ibid

xlvii Ibid, 27

xiv Ibid, 225

xlviii Ibid

xv Ibid

and Actorness”, 2013

xvii Ibid, 348

et al, “Development Aid”, 92

xix Ibid, 106

xxi Debusscher, “Gender xxii Debusscher, 31

xxvii Ibid, 37 xxviii Ibid, 38 xix Ibid xxx Ibid, 38; xxxi Ibid xxxii Ibid

46

xlix Radha, “Japan’s

Aid”, 20

l Kim, “Bureaucratic

Politics”

li Moni, “Environmental

Problems”, 26

lii Moni, 26 liii Ibid

xx Ibid, 106

xxvi Ibid

Politics”

xli Ibid

viii Ibid

xxv Ibid

xxxvi Kim, “Bureaucratic

xl Ibid

vii Ibid, 221

xxiv Ibid, 33

Politics”, 19; Moni, “Environmental Problems”, 29

xxxix Ibid

vi Ibid, 220

xxiii Ibid

xxxv Kim, “Bureaucratic

xxxviii Ibid, 22

v Ibid

xviii Bountagkidis

the West and Asia”

xxxvii Ibid

iv Ibid, 220

xvi Carbone, “Aid

xxxiv Homei, “Between

Equality”, 31

liv Moore, “Japanese

Development”

lv Ibid, 318 lvi Ibid, 319 lvii Ibid lviii Ibid lvix Ibid lx Ibid, 320 lxi Homei, “Between

the West and Asia”, 460


BIBLIOGRAPHY Bountagkidis, Georgios K.; Fragkos, Konstantinos C.; Frangos, Christos C. 2015. “EU Development Aid towards Sub-Saharan Africa: Exploring the Normative Principle.” Soc. Sci. 4, no. 1: 85-116. Carbone, Maurizio. “Better Aid, Less Ownership: Multi‐annual Programming and the EUʼs Development Strategies in Africa.” Journal of International Development 20, no. 2 (March 0, 2008): 218–29. doi:10.1002/jid.1452. Carbone, Maurizio. “Between EU Actorness and Aid Effectiveness: The Logics of EU Aid to Sub-Saharan Africa.” International Relations 27, no. 3 (September 2013): 341–55. https://doi. org/10.1177/0047117813497300. Debusscher, Petra. “Gender Equality in European Union Development Policy: Incorporating Women’s Voices or Confirming Hierarchies?” Afrika Focus 26, no. 2 (2013). doi:10.21825/af.v26i2.4909. Homei, Aya. “Between the West and Asia: “Humanistic” Japanese Family Planning in the Cold War.” East Asian Science, Technology and Society: an International Journal 10, no. 4 (2016): 445-467. muse.jhu.edu/ article/635012. Kim, Yoon-Ho. “A Bureaucratic Politics Approach to Japan’s Official Development Aid Policy: Ministerial Motives and Their Reflections on the Foreign Aid Expenditures, 1960s-2000.” Journal of International and Area Studies 18, no. 1 (2011): 19-48. Accessed December 19, 2020. http://www.jstor.org/stable/43111489. Moni, Monir Hossain. “Why Japan’s Development Aid Matters Most for Dealing with Global Environmental Problems.” Asia-Pacific Review 16, no. 1 (May 2009): 8-36. doi:10.1080/13439000902957590. Moore, Aaron Stephen. “Japanese Development Consultancies and Postcolonial Power in Southeast Asia: The Case of Burma’s Balu Chaung Hydropower Project.” East Asian Science, Technology and Society: an International Journal 8, no. 3 (2014): 297-322. muse.jhu. edu/article/553198. Sinha, Radha P. “Japan’s ‘Aid’ to Developing Countries.” World Development 2, no. 8 (1974): 15-20. doi:10.1016/0305-750x(74)90002-3.

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48


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LEGAL COM MENTARY AN D ANALYS ES

OVER-REPRESENTATION OF INDIGENOUS INMATES IN CANADIAN CORRECTIONAL FACILITIES BY LINA LASH IN

Shut down Canada rallies on Yonge and Dundas Square, October 2020. Photo: Joshua Best via @JOSHUABEST on Instagram.

T

he confrontation of factors in society harming vulnerable populations is largely a struggle concerned with institutions and legislation. Canada’s legal system is founded on Eurocentric principles that diametrically oppose indigenous values, illuminating the challenges in fostering equality and indigenous citizenship in settler states. Living standards for Indigenous populations in Canada continue to therefore stagnate disproportionately.

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Despite Indigenous people accounting for less than 5% of Canada’s population, Indigenous inmates have reached a historic high of 30% of Canada’s federal custody this year. Indigenous women account for 42% of inmates in women’s prisons. Correctional facilities are theoretically established to “correct” the likelihood of a crime to occur again. Orthodox approaches include rehabilitating the inmate or removing them from participating and deterring similar crimes.

However, as devastating numbers of Indigenous inmates increase each year, the sanction methods employed by Canada’s Correctional Facilities are falling painfully short of fulfilling their purpose. If Canada hopes to stop this over-representation, the prison system and conviction procedures must under-go significant reform. We must account for, and aim to resolve, the criminogenic factors in Indigenous communities that not only play a major role in creating crime, but also sabotage the integration process and increase reoffending.


IN DIGENOUS I NMATES In a 2012 report, the Department of Public Safety examined the over-representation of Aboriginal women in federal penitentiaries. Findings showed that most inmates shared a depressing pattern of displacement, violence, poverty, victimization, and discrimination in their communities. Bev Ager, former inmate and member of the Native Sisterhood political group expresses that, “There are REASONS why we ended up in prison, and a lot of it goes back to our UPBRINGING, our abusive backgrounds, lack of traditional teachings because our communities are so deep into alcoholism... they have a LOST TRADITIONAL way of life and their values…” Intersectionality remains a significant lens for analyzing the experiences of Indigenous women. It alludes to how interlocking systems of power, such as racist and sexist justice systems, disproportionately impact Canada’s most marginalized populations. In the Corbiere v Canada case, the court proposed that a new ground for analysis should take into consideration, stating that “Aboriginal women, who can be said to be doubly disadvantaged on the basis of both sex and race, are among those particularly affected by legislation relating to off-reserve band members, because of their history and circumstances in Canadian and Aboriginal society.” However, this principle is not a part of our law and remains viable only if judges choose to apply it from precedent cases. The ramifications of this dual discrimination are particularly evident in Canada’s prison system. Indigenous women are disproportionately classified and placed in maximum security institutions. In 2006, Canadian Human Rights Commission reported that an Aboriginal woman spent over 1500 days in isolation, and in 2003 another Aboriginal woman was held for 567 days.

Shut down Canada rallies on Yonge and Dundas Square, October 2020. Photo: Joshua Best via @JOSHUABEST on Instagram.

As inmates are released into society directly from high-security facilities, they are confronted with a two-fold intersection. On the one hand, lies the morbid difficulty of integrating after extended isolation. On the other end of continuum, await the criminogenic conditions that persist in their communities. This intersection increases the likelihood of reoffending. According to a recidivism study by the Office of Correctional Investigations, “Indigenous people reoffend at much higher levels, as high as 70% for Indigenous men in the Prairie region.”

COM MUNITY AN D CRIME Indigenous crime rates are a result of what sociologists and criminologists from the Chicago School describe as Social Disorganization Theory. This theory holds that deviance or criminal behavior is a result of criminogenic ecological conditions. Conditions such as poor quality of housing and education, inconsistent access to food and water, lack of employment, fragmented social values, marginalized identity, and presence of law-violating groups in a community are Criminogenic Factors. The theory makes inferences that inform issues on social and political inequalities, such as that, the impact of multiple systems of oppression reinforce each other. Indigenous women suffer at the hands of oppressive institutions, as they belong to an additional marginalized identity. For many Aboriginal women, the circumstances formed through criminal involvement are a complex set of social and personal life circumstances marked with violence and poverty. Indigenous communities suffer from the aforementioned conditions, resulting in what sociologists describe as a “subculture” with sub-cultural values that resemble a state of anomie. As noted by Fredrick Thrasher in his classic work The Gang, subcultures tend to neglect conventional moral teachings, which are often reflected in our legal codes.

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Dundas Street West at Beverley Street, December 2020. Photo by Joshua Best via @JOSHUABEST on Instagram.

Their values are instead oriented around survival, even through the normalization of crime. These values are culturally transmitted from one generation to another. Sociologist Walter Miller believes that fatalism is one of six values of subcultures. Fatalism is the belief that you have almost no control over the forces that shape your life and future, and in turn disregard consequences for the action you engage in. Most Indigenous communities suffer from poor education, inconsistent access to clean water, obstacles when fishing and hunting, discrimination of religious practice, and chronic threat of displacement, all in addition to wide-spread discrimination and profiling in our judicial system. Indigenous livelihoods are entirely at the hand of our government who, contrary to the philanthropic efforts it claims, continues to harm and endanger Indigenous people. Moreover, Aboriginal livelihood is often inextricably linked to the land and being forced from their traditional lands into meager reserve lands created an intergenerational disconnection from identity.

The First Nations community of Pikangikum in northwestern Ontario, CBC, Coleen Rajotte (2016)

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Aboriginal Title and Rights Rally, Victoria, BC, 2004. Photo: Northern Shuswap Tribal Council.


RESTORATIVE JUSTICE Canada upholds a purported belief in reconciliation, but Indigenous communities continue to suffer from a system that has unremittingly and disproportionately hindered their growth. Canada’s legal system is built upon Eurocentric values that exemplify vacillating Indigenous citizenship, by inherently contradicting Indigenous values and amplifying inequality in settler states. In line with Merton’s anomie theory, “the less society is characterized by social inequality, the fewer people will become anomic. The goal must be a genuine social and welfare state in which it is possible for everyone to achieve cultural goals by legit-

imate means.” What this means for Indigenous people is an effort to fund education systems, housing, agriculture, and health, as well as uphold land rights and cultural laws. A comprehensive account of reform measures is outlined by Mandy Welsey in the Federal Corrections APC 33 CA report. The report emphasizes Integrated Core Programming, Native counselling services, Education and Employment Programs, advancement of the Mother-Child Program, Pathways Units for Aboriginal Women, and the Healing Lodge Action Plan. Conviction procedures must also take into account the nature of Indigenous communities Specifically, the increasing presence of addiction

and mental health issues (often without diagnosis), domestic abuse, and crippling poverty. Much of the obstacles Indigenous people face socially, economically, and culturally, are products of policy, legislation and social structures. Hence, their capacity to live a life with integrity is invariably contingent upon the capacity Canada’s legal system offers. Canada’s legal system must be more sensitive to Indigenous offenders and prioritize rehabilitation efforts over panel sanctions. Without a drastic and committed investment in Indigenous communities, generations of youth will continue to suffer from Criminogenic factors, turning to crime, alcoholism, resentment, and loss of identity.

Shut down Canada rallies on Yonge and Dundas Square, October 2020. Photo: Joshua Best via @JOSHUABEST on Instagram.

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EN DNOTES i

For more on this point, I urge readers to see Broadhurst, Roderic. “Crime, Justice and Indigenous Peoples: The ‘New Justice’ and Settler States.” Australian & New Zealand Journal of Criminology 32, no. 2 (1999): 105-07. doi:10.1177/000486589903200201. and “ExploreNorth.” ExploreNorth.com - Your Gateway to the North. http://www.explorenorth. com/library/weekly/aa111999.htm. ii Bellrichard, Chantelle. “Over-Representation of Indigenous People in Federal Prisons Reaches ‘Disturbing’ Historic High | CBC News.” (21 Jan. 2020). iii Public Safety Canada. Corrections and Conditional Release Statistical Overview. Minister of Public Works and Government Services Canada, Ottawa, 2012, [OCI 2012].

Broadhurst,Roderic.“Crime,JusticeandIndigenousPeoples:The‘NewJustice’ and Settler States.” Australian & New Zealand Journal of Criminology 32, no. 2 (1999): 105-07. doi:10.1177/000486589903200201. Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203. “ExploreNorth.” ExploreNorth.com - Your Gateway to the North. http:// www.explorenorth.com/library/weekly/aa111999.htm. Government of Canada, Office Of the Correctional Investigator. “Indigenous People in Federal Custody Surpasses 30% - Correctional Investigator Issues Statement and Challenge - Office of the Correctional Investigator.” Indigenous People in Federal Custody Surpasses 30% - Correctional Investigator Issues Statement and Challenge - Office of the Correctional Investigator. ( January 21, 2020). https://www. oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx.

iv

RCAP, Bridging the Cultural Divide, Bev Auger, Prison for Women, March 31, 1993, pp. 141.

“Indigenous Women and Settler Colonial Crime Control.” Indigenous Criminology: 89-110. doi:10.2307/j.ctt1t893kz.10.

v

Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203. [Para. 72].

Lutters, Wayne G., and Mark S. Ackerman. “An Introduction to the Chicago School of Sociology” (1996).

vi “OWJN.” OWJN. February 26, 2017. https://owjn.org/2014/06/overrepresented-and-over-classified-crisis-of-aboriginal-women-in-prison/.

Miller, Walter. “Lower Class Culture as a Generating Milieu of Gang Delinquency.” Journal of Social Issues. 14 (3). (1958): 5–20. doi:10.1111/j.1540-4560.1958.tb01413.x.

vii

Government of Canada, Office Of the Correctional Investigator. January 21, 2020. viii

Lutters, Wayne G., and Mark S. Ackerman. “An Introduction to the Chicago School of Sociology” (1996).

ix Sutherland, Edwin

Hardin. Principles of Criminology. (1939): 64.

x Welsey, Mandy. “Marginalized: The

Aboriginal Women’s experience in Federal Corrections APC 33 CA” Government of Canada. (2012): 7-9. xi Thrasher, Frederick. The Gang.

(1927): 46-47.

xii Miller, Walter. “Lower Class Culture as a Generating Milieu of Gang Delinquency” (1958): 15–20. xiii Solomon, Robert

C. “On Fate and Fatalism.” (October 2003).

xiv Office of the Correctional Investigator. Annual Report of the office of the Correctional Investigator. 2009-2010. Ottawa: Minister of Public Works and Government Services Canada 2010 at 49 [OCI 2009-2010]. xv

Broadhurst, Roderic. “Crime, Justice and Indigenous Peoples 105-07. And “ExploreNorth.” ExploreNorth.com - Your Gateway to the North. http:// www.explorenorth.com/library/weekly/aa111999.htm.

xvi

Wickert, Christian. “Anomie Theory (Merton).” SozTheo. March 28, 2019.

xvii Welsey, Mandy. “Marginalized: The Aboriginal Women’s experience in

Federal Corrections APC 33 CA” Government of Canada. (2012): 19-22.

BIBLIOGRAP HY Bellrichard, Chantelle. “Over-Representation of Indigenous People in Federal Prisons Reaches ‘Disturbing’ Historic High | CBC News.” CBCnews, CBC/Radio Canada. (21 Jan. 2020). www.cbc. ca/news/indigenous/indigenous-overrepresentation-prison-ocistatement-1.5434712#:~:text=Indigenous women now account for,of women in federal custody.

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Office of the Correctional Investigator. Annual Report of the office of the Correctional Investigator. 2009-2010. Ottawa: Minister of Public Works and Government Services Canada 2010 at 49 [OCI 20092010]. “OWJN.” OWJN. (February 26, 2017). https://owjn.org/2014/06/overrepresented-and-over-classified-crisis-of-aboriginal-women-inprison/. Public Safety Canada. Corrections and Conditional Release Statistical Overview. Minister of Public Works and Government Services Canada, Ottawa, 2012, [OCI 2012]. Available at: https://www. publicsafety.gc.ca/cnt/rsrcs/pblctns/mrgnlzd/index-en.aspx. RCAP, Bridging the Cultural Divide, Bev Auger, Prison for Women, March 31. (1993): 141. Solomon, Robert C. “On Fate and Fatalism.” Philosophy East and West. University of Hawaii Press. 53 (4). (October 2003): 435–454. Sutherland, Edwin Hardin. Principles of Criminology. Fourth Edition. Chicago. (1939). Thrasher, Frederick. The Gang: A Study of 1,313 Gangs in Chicago. 1st Phoenix Edition. Chicago: University of Chicago Press. (1927). Welsey, Mandy. “Marginalized: The Aboriginal Women’s experience in Federal Corrections APC 33 CA” Government of Canada. (2012). https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/mrgnlzd/ mrgnlzd-eng.pdf. Wickert, Christian. “Anomie Theory (Merton).” SozTheo. (March 28, 2019). https://soztheo.de/theories-of-crime/anomie-strain-theories/ anomie-theory-merton/?lang=en#:~:text=Merton’s anomie theory is that,innovation, and/or conformity.


LEGAL COM MENTARY AN D ANALYS ES

FORCI BLE CI RCUMCISION AND MALE SEXUAL VIOLENCE IN KENYA BY J ENNIFER HAN

INTRODUCTION

D

espite the evidence of forced male circumcisions in the case of Prosecutor v. Kenyatta (the Kenyatta case), research on sexual violence against men in contemporary Africa, and within the realm of international relations more specifically, remains scarce. In times of conflict, men face various acts of sexual assault regardless of age, sexual orientation, or socioeconomic status, but they are ignored and rejected in the International Criminal Court (ICC or the Court). The Rome Statute of the International Criminal Court recognizes orms of sexual violence of serious gravity other than forced male circumcision in Article 7(1)(g), but it does not define what those other forms are, what establishes violence as sexual in nature, and how the gravity of these crimes is to be measured. This paper will show that in the Kenyatta case, acts of forcible circumcision were charged as acts of torture instead of sexual violence because the Court found the motivations behind the acts were ethnically driven, seeking to assert cultural superiority. However, drawing from historical context, particularly colonial interventions in gendered circumcision practices in Kenya, this paper will argue that acts of forcible circumcision should be included as a form of sexual assault. Although scholars disagree on the relative importance of research on male victims given the disproportionate degree to which women are made victims of sexual violence, attending to male victims advances our understanding of the complexity of gender dimensions in different types of sexual violence committed by male and female perpetrators. While the ICC has been well established as an inadequate venue for trying female sexual assault cases, there are far more rigorous studies on sexual violence against women and greater collective efforts to bring justice to female victims at the ICC. Regardless of the number of such cases brought and tried by the transitional courts, male sexual violence must be addressed adequately to ensure accountability for perpetrators and justice for male victims. An exploration of the historical context and controvery of female circumcision will illuminate how female circumcision was seen as harming women’s sexual function and reproduction, not to mention bodily integrity, while male circumcision, being of Judeo-Christian heritage, was not seen as problematic in these circumstances. In essence, the discussion of

forcible circumcision will strengthen the knowledge of violencein both male and female cases by breaking down the male-perpetrator female-victim paradigm, as well as providing an inclusive understanding of the gender-dimension of sexual violence. This research paper will explore the underlying motive behind male sexual violence through the examination of masculinity, emasculation/feminization, and homophobia surrounding male victims. Forcible circumcision should be included with other forms of sexual assault because the intent behind male sexual violence is to target the sexuality of the male victims. Moreover, the failure of the ICC to recognize acts of forcible circumcision should be understood within the broader historical context of cultural imperialism in Kenya, brought on by the disagreement over female initiation between the Church of Scotland Mission (CSM) and the Kikuyu Central Association (KCA). This section will stress the absence of research interest on male initiation by the missionaries and explore how Jomo Kenyatta was able to use the CSM-KCA disagreement to advance his political compass. The longer history of inter-ethnic conflict between Kikuyu, Luo, and Kalenjin relating to the 2007 post-election conflict will be investigated to highlight that the violence present in the Kenyatta case was not a spontaneous incident. The Kenyatta case will then elucidate the ICC’s failure in deciding to not recognize male forcible circumcision as sexual violence — a failure which portrays women as the only victims of sexual violence, reinforcing patriarchal power relations. Drawing on the history and the case study, this paper will conclude by calling upon scholars, international organizations, and NGOs to obtain more data on the prevalence of male sexual violence, shift norms on homosexual stigma to encourage male victims to come forward, and pressure the Court to recognize other forms of sexual violence.

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MASCULINITY, EMASCULATION/ FEMINIZATION, AN D HOMOPHOBIA In order to discuss the transfer of power and masculinity in the context of male victims, a patriarchal understanding of gender hierarchy needs to be set aside and the internal structure of power within masculinity and femininity must be explored. Male sexual violence is about power and dominance, and unlike patriarchal hierarchy, it is rooted in internal hierarchy of age, race, ethnicity, or sexual orientation. During an armed conflict, the balance of power is unstable, which leads to an increase in the occurrences of male sexual violence to stabilize and restore masculinity, but only at the expense of the emasculation of the male victim. Emasculation is then the possession and dispossession of masculinity to destroy one’s sense of manhood, occurring because of socially constructed gender expectations about men. That is to say, men are strictly described as the penetrator and not the penetrated, while only women are recognized as sexual victims. This assumes that to be a victim of sexual violence and to be penetrated are compounded and thus, by social norms, relegate women to the role of victim. Therefore, when men are sexually assaulted, their virility is deemed “degenerate” and their manhood becomes stigmatized. Furthermore, masculinity is defined by rationality and the ability to conceal emotions and sensitivity. As soon as their trauma is revealed, victims can be ridiculed for not behaving “like a man” and become marginalized. Victims will try to use this gendered norm to their benefit, however, and reclaim their hegemonic masculinity by hiding their true feelings. Often, male victims are subjected to the question of “why did you not fight back?” In failing to defend themselves, the social status of male victims is reduced to a “lower” status— of a woman. These victims are looked down upon in the community as “feminine men” and even their identity as valid community members is called into question. Studies put forth that the majority of the perpetrators and victims of male sexual violence are heterosexual, but as soon as the victims are violated, their sexuality is disputed and censured. This is partly due to pervasive homophobia in society and the prevailing myth that only homo-

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sexuals rape and are raped. Marc Epprecht, a researcher of homosexuality in Africa, notes that in the precolonial era, there was plurality of sexuality in traditional African societies where stigma surrounding homophobia was non-existent because tthe concept of homosexuality did not exist. Sexual stigma was not conceptualized in these societies until Europeans introduced and emphasized heteronormative norms. Fragile heteronormativity in pre-colonial Africa sparked the missionaries’ motivation to rescue Africans from traditional “barbaric” customs such as female initiation rituals, whilst male initiation rituals, being of Judeo-Christian heritage, were not seen as problematic in these ways.

H ISTORICAL CONTEXT The discussion around male initiation has always been considered contentious, criticized, and challenged; yet in colonial Kenya, male initiation rituals were not of great concern to Christians colonizers who were able to “christianize”, that is to say appropriate, male circumcisions. In contrast, Christian missionaries could not come to terms with female initiation, which was perceived to harm female bodily integrity. Therefore, the notion of trusteeship heightened a sense of moral responsibility for the missionaries to halt the dangerous practices of female initiation. In early 1930s, the Church of Scotland Mission attempted to eradicate female circumcision with a determination to civilize the Kenyans from barbarism. The presence and the moral rhetoric of the Christians established the operation of cultural imperialism that reified “dichotomies of action-reaction between foreign and local agents.” However, the CSM’s attempt to eradicate female circumcision failed due to their paternalistic approach, which obstructed Kikuyus’ direct involvement in colonial politics. Kenyans were not passive

bystanders to colonial cultural imperialism, and the female circumcision controversy was part of a larger colonial movement to establish a new and emerging political order. The defense of the practice became the central platform of the Kikuyu Central Association, which they used the disagreement over female circumcision to discredit the missionaries’ position as representatives of African interests. Jomo Kenyatta, the leader of the KCA, mobilized female circumcision within the broader movement of Kikuyu cultural nationalism at independence. Kikuyu nationalists were pitted against the missionaries and the colonial government. The immediate results were massive secession from the mission, a boycott of missionary schools and churches, and the establishment of independent institutions that fuelled the anti-colonial movement. While this controversy sharpened tensions between the colonial government and the cultural-nationalist Kikuyu, it also redefined ethnicity and womanhood among Kenyans that persisted throughout the colonial period.

TENSIONS BETWEEN KIKUYU, LUO, AND KALENJIN AND THE 2007 POST-ELECTION VIOLENCE During the colonial period, the British administration introduced boundaries between “native reserves” and “white highlands” to expropriate land for European settlement. To monitor the native reserves, colonial authorities relied on local administrators, strengthening senses of ethnic identity and “ethnic territoriality” in different tribes. Over time, “the consciousness of ethnic territoriality” became deeply embedded in culture and traditions. For instance, there was a famous dispute involving S.M. Otieno, a Luo man who expressed his wish to be buried in ancestral Luoland. However, his Kikuyu widow insisted on burying his remains in Kikuyuland after his death. Even though Otieno had lived in Nairobi for a long time, he felt like he belonged in Luoland, illustrating the importance of land to Kenyans. After the Mau Mau rebellion in the 1940s, the colonial government decided to open the expropriated lands to “re-Africanisation” through land purchase and settlement programs, marking its transition to uhuru politics. However, the process of “re-Africanisation” had major implications for who received


ownership of the territories, fuelling and solidifying the ethnic divide between Kikuyu, Luo, and Kalenjin. From 1991 to 2007, there was violence persisted in Kenya following election cycle. Notably, in 2007, tensions ruptured when the Kikuyu politician Mwai Kibaki, from the Party of National Unity (PNU), won the presidential election. The conflict was underlain by the notion of citizenship in ancestral lands. If one was a Kalenjin living in Kikuyuland, for example, then they were not allowed to vote for the Orange Democratic Movement (ODM), a party of Luo and Kalenjin majority. If a Kalenjin was to disregard this, then there would be an argument to evict the “occupier” who did not belong there. This was the case for all minorities living in a certain ethnic homeland. However, on the day of the election, a group of Luo people in Nakuru—a Kikuyuland supporting the PNU— cheered every time the ODM had won in a district, while members of Kikuyu were enraged by the results. After the victory of the PNU was announced, mass violence erupted between Kikuyu, Luo, and Kalenjin to evict “unwelcome occupiers” out of their communities. There were four types of violence that occurred throughout the nation during these post-election periods: violence that demanded truth about the electoral votes, institutional violence by the police and security services targeting the protesters, coordinated violence against the Kikuyu, and revenge violence by the Kikuyu against other communities. The organized crime group Mungiki was responsible for numerous counts of torture, rape, and political assassination, funded by Kikuyu politicians. These highly violent retaliatory attacks on Luo and Kalenjin were allegedly organized by Uhuru Kenyatta, the current President of Kenya, with the members of the Mungiki sect. The attacks included acts of forcible circumcision on Luo men by the Kikuyu members in Nakuru. President Kenyatta and other members of Mungiki were accused of “crimes against humanity, including murder, deportation of forcible transfer of population, rape, persecution and other inhumane acts, in the context of the 2007-2008 post-election violence in Kenya.” The historical connection between circumcision and ethnic tensions is important to consider before the examination of the case study, in large part because crimes that are politically or ideologically driven have complex motivations. Without delineation, these motivations are difficult to detect, which is why historical

context is necessary in the prosecution of crimes within transitional justice systems, as it supports greater understanding of the nature of the crime.

FORCIBLE CI RCUMCISION IN PROSECUTOR V. KENYATTA For the first time in international criminal law, the Rome Statute of the ICC enumerated a wide range of sexual violence under Article 7(1)(g), including “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.” Widely celebrated by feminist scholars, this progress on gender-based violence was groundbreaking since sexual violence was not internationally criminalized prior to this provision. However, the Rome Statute fails to provide more details under Article 7(1)(g). It does not define “sexual violence” or what constitutes violence as “sexual” in nature. Furthermore, it does not provide guidance as to what “any other form of sexual violence” would be or how the “gravity” of sexual violence can be determined. Thus, its interpretation and application are widely disputed. Sandesh Sivakumaran, a researcher on male sexual violence, suggests that “any other form of sexual violence” should include genital violence, enforced nudity, and enforced masturbation. Of these forms of sexual violence, this paper will focus on genital violence, specifically on the enforced circumcisions prevalent in the Kenyatta case. In December 2010, Prosecutor Luis Ocampo found Luo men to be victims of forcible circumcision ordered by Kenyatta and Mungiki attackers in Nakuru during the 20072008 post-election. A witness shared, The Kikuyus then started checking everybody and circumcising Luos right there. I saw two of these. They grabbed one man, about 30 years old, and told him to remove his pants. He just kept saying, ‘What? What?’ Then they forcibly removed his pants. One person was holding his penis, and another one was cutting his foreskin with a piece of a broken Fanta bottle. Several victims were subjected to such horrific means of violence. However, the Pre-Trial Chamber felt that forcible circumcision was not an act of sexual nature but rather an inhumane act of torture under Article 7(1)(k). The Prosecutor submitted that “these weren’t just attacks on men’s

sexual organs as such but were intended as attacks on men’s identities as men within their society and were designed to destroy their masculinity.” The Chamber rejected the claim by responding that “not every act of violence which targets parts of the body commonly associated with sexuality should be considered an act of sexual violence.” When Prosecutor Fatou Bensouda took over, she argued that forcible circumcision is not only a physical assault but on assault on victim’s sexuality. Yet, the Pre-Trial Chamber concluded that forcible circumcision will be classified as torture and focused its attention on the rape of women. Furthermore, the use of the term “sexual violence” was prohibited altogether for the duration of the Kenyatta case. Given the confirmation of charges, the ICC’s decision begs the question of what makes violence “sexual,” and how the “gravity” threshold of sexual violence ought to be applied. By dismissing forcible circumcision as torture, the ICC missed an opportunity to explore the intersectionality of sexual violence. An intersectional approach illuminates how sexual violence can be understood by complex motivations such as ethnic, gender, socio-economic politics, and other factors. However, the ICC failed to explore this when it stated, “The Chamber finds that the evidence placed before it does not establish the sexual nature of the acts of forcible circumcision and penile amputation visited upon Luo men. Instead, it appears from the evidence that the acts were motivated by ethnic prejudice and intended to demonstrate cultural superiority of one tribe over the other.” With this explanation, the Chamber concluded that forcible circumcision was an act of ethnic violence “instead” of sexual violence, overlooking that ethnic violence can provide “an ‘intersectional’ understanding of sexual violence.” Moreover, this suggests that even though the male sexual organ has been targeted and manhood has been emasculated, forcible circumcision does not constitute sexual assault until intercourse has been performed. This explanation reinforces the misconceived notion that rape is the only type of male sexual assault and without sexual intercourse, forcible circumcision is just a mutilation of a body part that happens to deprive masculinity. Once again, this interpretation portrays women as the only victims of sexual violence, reproducing the patriarchal paradigm of male perpetrators and female victims.

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Moreover, Article 7(1)(g) specifies that “any other forms of sexual violence” must be of comparable gravity to the listed crimes under the Article, but how this gravity is to be measured is not outlined. Rosemary Grey, a researcher of ICC prosecutions of genderbased crimes, suggests that one possibility of approaching the seriousness of forcible circumcision is through testimonies of the victim or the community and assessments of the short and long-term traumas of the affected individuals. However, the policy of the ICC to preserve impartiality and efficiency is to limit engagement with affected local actors and communities. Even if the investigators did conduct an investigation in the affected communities, that does not guarantee that the investigators would look for victims of male sexual violence—in this case, forcible circumcision —or ensure their safety from retaliation. Furthermore, when victims and witnesses testify in international courtrooms, their stories must be rendered in chronological order to adhere to legal standards and remain detached from emotionality. As a result of this process, the victims and witnesses can be traumatized again by having to describe their experiences in detail through a degrading line of questioning. Under these circumstances, the determination of the seriousness of forcible circumcision cannot be appropriately measured by the views of the victims and affected community members due to the ICC’s efficiency-driven prosecution process. Therefore, the ICC needs to explore intersectionality of male sexual violence and create clear guidelines on their prosecution processes.

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CONCLUSION The ICC missed a critical opportunity to explore the intersectionality of male sexual violence when it dismissed the acts of forcible circumcision as torture in Prosecutor v. Kenyatta by solely focusing on ethnic domination. The acts of forcible circumcision targeted the sexuality of the male victims and emasculated them, and so can only be described as a form of sexual violence. The historical context also provides crucial insights into how the controversy over female circumcision was mobilized by Jomo Kenyatta, and explains how the tensions from the colonial period persisted until 2007, when Uhuru Kenyatta forcibly circumcised Luo men in the midst of political violence. The examination of the conflict’s historical background is extremely important, which is why the ICC and other transitional courts should integrate a multidisciplinary approach into their prosecutions. As historians, lawyers, and investigators create a network of knowledge, crucial evidence and documents involved in the case can be identified quickly, which in turn can strengthen ICC’s investigative structure and criminal prosecutions. Furthermore, drawing on the discussion about homophobia and stigma related to male sexual victims, what this means for scholars, international organizations, and NGOs is that they need to pay close attention to rape, forcible circumcision, and other forms of sexual violence against men. The necessary first step is in obtaining data and conducting research on the extent of the prevalence while ensuring the safety of victims. Local and international actors need to shape norms and discredit inaccurate myths surrounding male victims in order for survivors to share their stories. Until their silenced voices are heard and recognized at the ICC, efforts to subvert the patriarchal victim-perpetrator paradigm and strengthen a broader gender-dimension of sexual violence must persist.


xv

ENDNOTES i

See: Sandesh Sivakumaran, “Male/Male Rape and the “Taint” of Homosexuality,” Human Rights Quarterly 27, no.4 (2005): 1274-1306; Sandesh Sivakumaran, “Sexual Violence Against Men in Armed Conflict,” The European Journal of International Law 16, no.2 (2007): 253-276; Elizabeth A. Stanko and Kathy Hobdell, “Assault on Men: Masculinity and Male Victimization,” The British Journal of Criminology 33, no.3 (1993): 400-415; Dustin A. Lewis, “Unrecognized Victims: Sexual Violence Against Men in Conflict Settings Under International Law,” Wisconsin International Law Journal 27, no.1 (2009): 1-50; Ellen A.P. Gorris, “Invisible Victims? Where are Male Victims of ConflictRelated Sexual Violence in International Law and Policy?” European Journal of Women’s Studies 22, no.4 (2015): 412-427.

ii

Sexual violence can happen in four different gender combinations: male-perpetrator and female-victim, female-perpetrator and malevictim, male-perpetrator and male-victim, and female-perpetrator and female-victim.

iii

See: Nicola Henry, “Witness to Rape: The Limits and Potential of International War Crimes Trials for Victims of Wartime Sexual Violence,” The International Journal of Transitional Justice 3, no.1 (2009): 114-134; Andrea Durbach and Louise Chappell, “Leaving Behind the Age of Impunity: Victims of Gender Violence and the Promise of Reparations,” International Feminist Journal of Politics 16, no. 4 (2014): 543-562.

iv Gözde Turan, “Manhood Deprived and (Re)constructed During Conflicts and International Prosecutions: The Curious Case of the Prosecutor v. Uhuru Muigai Kenyatta et al.,” Feminist Legal Studies 24, no.1 (2016): 31. v Sivakumaran, “Sexual Violence,” 267. The patriarchal gender hierarchy would be the unequal balance of men at the top of the hierarchy, characterized by power, while women are submissive subjects of those power. This would explain why men would sexually assault women who are at the bottom of the hierarchy. However, in the case of male sexual violence, a different explanation is needed. See Heather R. Hlavka, “Speaking of Stigma and the Silence of Shame: Young Men and Sexual Victimization,” Men and Masculinities 20, no.4 (2017): 485. vi Sivakumaran, “Male/Male,” 1282. vii Sivakumaran, “Sexual

Violence,” 267.

viii Sivakumaran, “Sexual

Violence,” 268.

ix Sivakumaran, “Sexual Violence,” 270. By targeting individuals of a particular ethnic group, the perpetrators can emasculate the entire community. See Sivakumaran, “Sexual Violence,” 274-275. x Hlavka, “Speaking

of,” 484.

xi Sivakumaran, “Sexual

Violence,” 268.

xii Aliraza Javaid, “Male Rape, Masculinities, and Sexualities,” International Journal of Law, Crime and Justice 52 (2018): 201. xiii Javaid, “Male

Rape,” 201.

xiv Javaid, 201. Similarly, there is an underlying notion that men are sexually active and available at all times. Hence, by engaging in sexual activities with many women, male victims will try to restore their masculinity. See Javaid, 201-202.

Sivakumaran, “Sexual Violence,” 271. Their male status, related with “dominance, aggression, and desire” is taken away and replaced with a “lower” female status related with “passivity, vulnerability, and submissiveness.” See Hlavka, 485.

xvi

Javaid 202. Shame and stigma are reflective emotions that influence the perception of self-concept of male victims. These emotions are combined with the “meanings held by others” and the “meanings held by one’s self.” Therefore, when victims’ self-identities are in question, they are challenged not only by their communities, but also by themselves, making them doubt their sexual orientation. See Hlavka, 485.

xvii See: Gillian Mezey and Michael King, “Male Victims of Sexual Assault,” Medicine, Science and the Law 27, no.2 (1987): 122-124; A.N. Growth and A.W. Burgess, “Male Rape: Offenders and Victims,” American Journal of Psychiatry 137, no.7 (1980): 806-810. xviii Hlavka, 491. xix Veronica Sigamoney and Marc Epprecht, “Meanings of Homosexuality, Same-Sex Sexuality, and Africanness in Two South African Townships: An Evidence-Based Approach for Rethinking Same-Sex Prejudice,” African Studies Review 56, no.2 (2013): 85. xx Marc Epprecht, “Tracing the Roots of Common Sense about Sexuality in Africa,” in A Companion to African History, ed. William H. Worger, Charles Ambler, and Nwando Achebe (Hoboken, NJ: Wiley Blackwell, 2018): 19-20. Polygynous families, circumcision rituals, and homosexuality were claimed as “unnatural damnation” by Europeans while they were esteemed by the Africans. xxi Epprecht, “Tracing the Roots,” 21. The term “barbarian” is often tied with the conception of race, tribe, or civilisation. The binary of “civilisationbarbarism” was utilized by Europeans to create the notion that they need to save the barbaric Africans to create lawful Africa. This was extended to international law where the transitional courts perpetuated the binaries of “criminal-victim, insider-outsider and civilisation-barbarism.” See Ann Sagan, “African Criminals/African Victims: The Institutionalised Production of Cultural Narratives in International Criminal Law,” Millennium: Journal of International Studies 39, no.1 (2010): 3-21. xxii

Natasha Erlank, “’Brought into Manhood’: Christianity and Male Initiation in South Africa in the Early 20th Century,” Journal of Southern African Studies 43, no.2 (2017): 253.

xxiii Jocelyn Murray, “The Church Missionary Society and the “Female Circumcision” Issue in Kenya 1929-1932,” Journal of Religion in Africa 8, no.2 (1976): 92. While the initiation ceremonies for boys were also seen as degrading, this operation was not contested by the missionaries even though to many tribes, both female and male operations were equivalent in nature. The female malango rites were greatly opposed while the missionaries were able to tolerate the male Jando initation ceremony, despite their many similarities. Initiations of both sexes have very similar administrative and social functions—they establish the transition between childhood to adulthood, confirming which sexual relations are appropriate between the age groups. Both ceremonies are referred to as irua by the Kikuyu, and these ceremonies were celebrated widely across Kenya by Maasai, Samburu, Nandi and Kipsigis, Kuira and Gusii, Kikuyu, Embu and Meru. Kamba, Taita and coast peoples celebrated in a slightly different form. Notably, the Luo did not practice circumcision, which portrayed them as illegitimate. See Murray, “The Church Missionary,” 92-93. xxiv Charles

H. Ambler, “The Renovation of Custom in Colonial Kenya: The 1932 Generation of Succession Ceremonies in Embu,” The Journal of African History 30, no.1 (1989): 149.

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xxv Bryony Lau, “The Limits of the Civilizing Mission: A Comparative Analysis of British Protestant Missionary Campaigns to End Footbinding and Female Circumcision,” Social Sciences and Missions 21, no.2 (2008): 219. To find out more about trusteeship, Mamdani explores this in the context of South Africa. See Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, NJ: Princeton University Press, 1996). xxvi

Lau, “The Limits,” 193-194. Thus, the CSM influenced the Local Native Council of Embu to create regulations of female genital cutting to protect women’s rights. The operation was limited to one operation per one girl, only involving the removal of the clitoris, which was considered to be a minor procedure. Also, the operators were to be certified, receiving regular training on the operations. If they were caught performing illicitly, then they were fined and even suspended. See Ambler, “The Renovation,” 146.

xxvii Lau, 205. xxviii Lau, 224. xxix

Lau, 226. As British settlers, the missionaries wielded greater authority than the local population. With the sense of trusteeship, they held a paternalistic attitude towards the local population, thereby playing an important role in colonial politics as self-appointed representatives of the Kenyan interest. See Lau, 198.

xxx

Bodil Folke Frederiksen, “Jomo Kenyatta, Marie Bonaparte and Bronislaw Malinowski on Clitoridectomy and Female Sexuality,” History Workshop Journal 65, no.1 (2008): 31.

xxxi

Theodore Natsoulas, “The Politicization of the Ban on Female Circumcision and the Rise of the Independent School Movement in Kenya: The KCA, the Missions and the Government, 1929-1932,” Journal of Asian and African Studies 33, no.2 (1998): 138. Between 1930 to 1931, the enrolment of Christian missionary schools dropped from 1,551 to only 289. See Ambler, 148-149.

xxxii Frederiksen, “Jomo

Kenyatta,” 36.

xxxiii

Karuti Kanyinga, “The Legacy of the White Highlands: Land Rights, Ethnicity and the Post-2007 Election Violence in Kenya,” Journal of Contemporary African Studies 27, no.3 (2009): 328.

xxxiv Sarah Jenkins, “Ethnicity, Violence, and the Immigrant-Guest Metaphor in Kenya,” African Affairs 111, no.445 (2012): 579-580. Being conscious of ethnic territoriality, different tribes had “owned” different regions of Kenya and grew attached to them. These ethnized spaces played a critical role in the discourse of citizenship— – the notion that in Kikuyuland, Luo and Kalenjin are “unwelcome occupiers.” See Jenkins, “Ethnicity,” 580. xxxv Jenkins, 581. After the dispute in 1987, Otieno was buried in Nyanza,

the center of Luoland as his wish. To read more about this case, see David William Cohen and E.S. Atieno Odhiambo, Burying SM: The Politics of Knowledge and the Sociology of Power in Africa (London: Currey, 1992).

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xxxvi Kanyinga, “The Legacy,” 328. Uhuru means independence. Therefore, in the context of political transition, Kenya was slowly transitioning into becoming an independent state. This transition was accelerated by the Mau Mau rebellion. The uprising created fear among the white settlers, causing the colonial government to concede to Kenyans’ terms. During the rebellion, the 1.5 million Kikuyu people were detained, tortured, and murdered by the British forces while only 32 Europeans died. However, President Jomo Kenyatta did not want the truth to come out due to the fear of losing power, so the real story of the Mau Mau remains hidden. See Caroline Elkins and David Anderson et al, “Mau Mau,” Radiolab, July 3, 2015, https://www.wnycstudios.org/podcasts/radiolab/articles/ mau-mau, accessed on March 27, 2020. xxxvii Kanyinga, 326. xxxviii

Rosemary Grey, “Conflicting Interpretations of ‘Sexual Violence’ in the International Criminal Court: Recent Cases,” Australian Feminist Studies: Sex and Violence 29, no.81 (2014): 279.

xxxix Jenkins, 584. xl Jenkins, 588. xli Jenkins, 589. xlii Jenkins, 590. xliii

Serena K. Sharma, The Responsibility to Protect and the International Criminal Court: Protection and Prosecution in Kenya (New York, NY: Routledge, 2016), 23. The 2007 election was controversial because it was confirmed to have been rigged. On December 30, 2017, ODM leader Raila Odinga announced his victory as president, but within hours, a correction had been made declaring PDU leader Kibaki the new president due to a tallying error. However, the International Crisis Group identified rigging at the constituency level and the tallying center for Kibaki’s victory. See “Kenya’s Dubious Election,” BBC News, January 8, 2008, http://news. bbc.co.uk/2/hi/africa/7175694.stm, accessed on March 26, 2020.

xliv

Sharma, The Responsibility, 31. The Mungiki started out as promoters of traditional Kikuyu values and culture in 1991. However, inspired by the Mau Mau uprising, they later carried out targeted attacks on non-Kikuyu individuals.

xlv Grey, 279. xlvi Prosecutor v. Uhuru Muigai Kenyatta, Case Information Sheet, ICC-PIDS-CIS-KEN-02-014/15_ENG (13 March 2015), 1, accessed on March 28, 2020, https://www.icc-cpi.int/CaseInformationSheets/ kenyattaEng.pdf. xlvii

Ruth Bettina Birn, “How Often Must We Re-Invent the Wheel? Reflections on the Most Efficient Structure of Prosecution Offices in International Courts and Why It is Not Generally Used,” Leiden Journal of International Law 30, no.4 (2017): 987. xlviii UN General Assembly, Rome Statute of the International Criminal Court (17 July 1998), Article 7(1)(g), accessed on March 28, 2020, https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf.


xlix See: Barbara Bedont and Katherine Hall-Martinez, “Ending Impunity

for Gender Crimes under the International Criminal Court,” The Brown Journal of World Affairs 6, no.1 (1999): 65-85; Louise Chappell, “Women, Gender and International Institutions: Exploring New Opportunities at the International Criminal Court,” Policy and Society 22, no.1 (2003): 3-25; Rhonda Copelon, “Gendered War Crimes: Reconceptualizing Rape in Times of War,” in Women’s Rights, Human Rights: International Feminist Perspectives, ed. Julie Peters and Andrea Wolpher (New York, NY: Routledge, 1995): 197-214.

l Grey, 274.

lii Rome Statute,

Article 7(1)(g).

liii Sivakumaran, “Sexual

Violence,” 266.

liv Situation in the Republic of

Kenya: In the Case of the Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red_ENG (23 January 2012), para. 260, accessed on March 28, 2020, https://www. icc-cpi.int/CourtRecords/CR2012_01006.PDF [hereinafter Decision (23 January 2012)]. The Prosecutor claimed that four cases of enforced circumcision were reported, but many other cases went unreported due to trauma and stigma. Decision (23 January 2012), para. 255. lv Prosecutor

v. Uhuru Muigai Kenyatta, Transcript, ICC-01/09-02/11-T5-Red-ENG (22 September 2011), 88-89, lines 25-5, accessed on March 28, 2020, https://www.icc-cpi.int/Transcripts/CR2011_17009.PDF [hereinafter Transcript (22 September 2011)]. (23 January 2012), para. 270.

lvii Transcript lviii Decision

(22 September 2011), 88, lines 9-15.

(23 January 2012), para. 265.

lix Grey, 281.

lxvii Turan, 32. lxviii Grey, 276. lxix Grey, 278. lxx Christian M. De Vos, “Investigating from Afar: The ICC’s Evidence Problem,” Leiden Journal of International Law 26, no.4 (2013): 1012.

lxi Grey, 273. lxii Grey, 283. In the case of Kashmir, Indian armed forces used rape as a counteroffensive strategy in dealing with the revolt of Kashmir, which captures how political and sexual dimensions can be used to understand occurrences of sexual violence in armed conflict. Also, the stigma around rape was used as a means of sexual humiliation to disempower the ethnicKashmiri. See Seema Kazi, “Sexual Crimes and the Struggle for Justice in Kashmir,” in Resisting Occupation in Kashmir, ed. Haley Duschinski et al (Philadelphia, Pennsylvania: University of Pennsylvania Press, 2018), 161. lxiii Grey, 283. lxiv Decision

Koomen, “Without These Women, the Tribunal Cannot Do Anything”: The Politics of Witness Testimony on Sexual Violence at the International Criminal Tribunal for Rwanda,” Signs 38, no.2 (2013): 158. When the UN investigators were obtaining data and testimonies for ICTR, they overlooked these elements.

lxxii Koomen, “Without These,” 260, 264. lxxiii Koomen, 266. At the ICTR, a woman that had been raped by a man named Shalom Ntahobali was asked highly inappropriate questions during cross-examination, where the trial judges burst into laughter after the Prosecutor made the comment that “she could not have been raped because she smelled [terrible].” See Koomen, 266. lxxiv Birn, “How

Often,” 994-996.

lxxv Sivakumaran, “Male/Male,” 1279.

BIBLIOGRAPHY Acquaro, Kimberlee and Stacy Sherman. God Sleeps in Rwanda. 2004; New York, NY: Women Make Movies. Documentary. Ambler, Charles H. “The Renovation of Custom in Colonial Kenya: The 1932 Generation of Succession Ceremonies in Embu.” The Journal of African History 30, no.1 (1989): 139-156. Bedont, Barbara and Katherine Hall-Martinez. “Ending Impunity for Gender Crimes under the International Criminal Court.” The Brown Journal of World Affairs 6, no.1 (1999): 65-85.

lx Grey, 282.

lxv

Deprived,” 32.

lxxi Jonneke

li Grey, 275.

lvi Decision

lxvi Turan, “Manhood

(23 January 2012), para. 266.

Grey, 283. When the Court overlooked the intersectional understanding of sexual violence, it missed how ethnic and sexual violence are not an either-or situation, but rather an interconnected phenomenon. For example, during the Rwandan genocide, rape was utilized as a key strategy for the genocide, to target the Tutsi ethnic group. Therefore, in the International Criminal Tribunal for Rwanda (ICTR), Pauline Nyiramasuhuko was tried for instigating the use of rape as a war crime. See Kimberlee Acquaro and Stacy Sherman, God Sleeps in Rwanda (2004; New York, NY: Women Make Movies), documentary.

Birn, Ruth Bettina. “How Often Must We Re-Invent the Wheel? Reflections on the Most Efficient Structure of Prosecution Offices in International Courts and Why It is Not Generally Used.” Leiden Journal of International Law 30, no.4 (2017): 987-1002. Chappell, Louise. “Women, Gender and International Institutions: Exploring New Opportunities at the International Criminal Court.” Policy and Society 22, no.1 (2003): 3-25. Cohen, David William and E.S. Atieno Odhiambo. Burying SM: The Politics of Knowledge and the Sociology of Power in Africa. London: Currey, 1992. Copelon, Rhonda. “Gendered War Crimes: Reconceptualizing Rape in Times of War.” In Women’s Rights, Human Rights: International Feminist Perspectives, edited by Julie Peters and Andrea Wolpher, 197-214. New York, NY: Routledge, 1995. De Vos, Christian M. “Investigating from Afar: The ICC’s Evidence Problem.” Leiden Journal of International Law 26, no.4 (2013): 1009-1024. Durbach, Andrea and Louise Chappell. “Leaving Behind the Age of Impunity: Victims of Gender Violence and the Promise of Reparations.” International Feminist Journal of Politics 16, no. 4 (2014): 543-562.

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Elkins, Caroline and David Anderson et al. “Mau Mau.” Radiolab, July 3, 2015. Accessed on March 27, 2020. https://www.wnycstudios.org/ podcasts/radiolab/articles/mau-mau. Epprecht, Marc. “Tracing the Roots of Common Sense about Sexuality in Africa.” In A Companion to African History, edited by William H. Worger, Charles Ambler, and Nwando Achebe, 15-33. Hoboken, NJ: Wiley Blackwell, 2018. Erlank, Natasha. “’Brought into Manhood’: Christianity and Male Initiation in South Africa in the Early 20th Century.” Journal of Southern African Studies 43, no.2 (2017): 251-265. Frederiksen, Bodil Folke. “Jomo Kenyatta, Marie Bonaparte and Bronislaw Malinowski on Clitoridectomy and Female Sexuality.” History Workshop Journal 65, no.1 (2008): 23-48. Gorris, Ellen A.P. “Invisible Victims? Where are Male Victims of Conflict-Related Sexual Violence in International Law and Policy?” European Journal of Women’s Studies 22, no.4 (2015): 412-427. Grey, Rosemary. “Conflicting Interpretations of ‘Sexual Violence’ in the International Criminal Court: Recent Cases.” Australian Feminist Studies: Sex and Violence 29, no.81 (2014): 273-288. Growth, A.N. and A.W. Burgess. “Male Rape: Offenders and Victims.” American Journal of Psychiatry 137, no.7 (1980): 806-810. Henry, Nicola. “Witness to Rape: The Limits and Potential of International War Crimes Trials for Victims of Wartime Sexual Violence.” The International Journal of Transitional Justice 3, no.1 (2009): 114-134. Hlavka, Heather R. “Speaking of Stigma and the Silence of Shame: Young Men and Sexual Victimization.” Men and Masculinities 20, no.4 (2017): 482-505. Javaid, Aliraza. “Male Rape, Masculinities, and Sexualities.” International Journal of Law, Crime and Justice 52 (2018): 199-210. Jenkins, Sarah. “Ethnicity, Violence, and the Immigrant-Guest Metaphor in Kenya.” African Affairs 111, no.445 (2012): 576-596. Kanyinga, Karuti. “The Legacy of the White Highlands: Land Rights, Ethnicity and the Post-2007 Election Violence in Kenya.” Journal of Contemporary African Studies 27, no.3 (2009): 325-344. Kazi, Seema. “Sexual Crimes and the Struggle for Justice in Kashmir.” In Resisting Occupation in Kashmir, edited by Haley Duschinski, Mona Bhan, Ather Zia, and Cynthia Mahmood, 153-183. Philadelphia, Pennsylvania: University of Pennsylvania Press, 2018. “Kenya’s Dubious Election.” BBC News, January 8, 2008. Accessed on March 26, 2020. http://news.bbc.co.uk/2/hi/africa/7175694.stm. Koomen, Jonneke. “Without These Women, the Tribunal Cannot Do Anything”: The Politics of Witness Testimony on Sexual Violence at the International Criminal Tribunal for Rwanda.” Signs 38, no.2 (2013): 253-277. Lau, Bryony. “The Limits of the Civilizing Mission: A Comparative Analysis of British Protestant Missionary Campaigns to End Footbinding and Female Circumcision.” Social Sciences and Missions 21, no.2 (2008): 193-227. Lewis, Dustin A. “Unrecognized Victims: Sexual Violence Against Men in Conflict Settings Under International Law.” Wisconsin International Law Journal 27, no.1 (2009): 1-50.

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Mamdani, Mahmood. Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. Princeton, NJ: Princeton University Press, 1996. Mezey, Gillian and Michael King. “Male Victims of Sexual Assault.” Medicine, Science and the Law 27, no.2 (1987): 122-124. Murray, Jocelyn. “The Church Missionary Society and the “Female Circumcision” Issue in Kenya 1929-1932.” Journal of Religion in Africa 8, no.2 (1976): 92-104. Natsoulas, Theodore. “The Politicization of the Ban on Female Circumcision and the Rise of the Independent School Movement in Kenya: The KCA, the Missions and the Government, 1929-1932.” Journal of Asian and African Studies 33, no.2 (1998): 137-158. Sagan, Ann. “African Criminals/African Victims: The Institutionalised Production of Cultural Narratives in International Criminal Law.” Millennium: Journal of International Studies 39, no.1 (2010): 3-21. Sharma, Serena K. The Responsibility to Protect and the International Criminal Court: Protection and Prosecution in Kenya. New York, NY: Routledge, 2016. Sigamoney, Veronica and Marc Epprecht. “Meanings of Homosexuality, Same-Sex Sexuality, and Africanness in Two South African Townships: An Evidence-Based Approach for Rethinking Same-Sex Prejudice.” African Studies Review 56, no.2 (2013): 83-107. Sivakumaran, Sandesh. “Male/Male Rape and the “Taint” of Homosexuality.” Human Rights Quarterly 27, no.4 (2005): 1274-1306. Sivakumaran, Sandesh. “Sexual Violence Against Men in Armed Conflict.” The European Journal of International Law 16, no.2 (2007): 253-276. Stanko, Elizabeth A. and Kathy Hobdell. “Assault on Men: Masculinity and Male Victimization.” The British Journal of Criminology 33, no.3 (1993): 400-415. Turan, Gözde. “Manhood Deprived and (Re)constructed During Conflicts and International Prosecutions: The Curious Case of the Prosecutor v. Uhuru Muigai Kenyatta et al.” Feminist Legal Studies 24, no.1 (2016): 29-47. UN General Assembly. Rome Statute of the International Criminal Court (17 July 1998). Accessed on March 28, 2020. https://www. icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE79CDC7CF02886/283503/RomeStatutEng1.pdf.

LEGAL CASES Prosecutor v. Uhuru Muigai Kenyatta. Case Information Sheet, ICC-PIDSCIS-KEN-02-014/15_ENG (13 March 2015). Accessed on March 28, 2020. https://www.icc-cpi.int/CaseInformationSheets/kenyattaEng.pdf. Prosecutor v. Uhuru Muigai Kenyatta. Transcript, ICC-01/09-02/11-T5-Red-ENG (22 September 2011). Accessed on March 28, 2020. https://www.icc-cpi.int/Transcripts/CR2011_17009.PDF. Situation in the Republic of Kenya: In the Case of the Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali. Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11382-Red_ENG (23 January 2012). Accessed on March 28, 2020. https://www.icc-cpi.int/CourtRecords/CR2012_01006.PDF.


LEGAL COM MENTARY AN D ANALYS ES

BECOMING INDIGENOUS TO PLACE On Adopting Indigenous Notions of Private Property BY ORI G I LBOA

I

n Recovering Canada, John Borrows begins by describing the geographical layout of what is now the Philosopher’s Walk at the University of Toronto. The land on which the university now sits was once a ravine used by the Anishinaabe peoples as a gathering place and a fishing locale. Due to it being a particularly fast river, it was seen as having contained “particularly powerful spirits,” and was approached with reverence and respect. The ravine is now hidden, buried under the university’s law school.

This is an apt proxy for how Indigenous law in Canada is “submerged by a system that privileges Western narratives;” though Indigenous law predates that of Europeans, it has very limited legal recognition in Canada. In this essay, I hope to show how this pattern emerged in regard to property law, and how Western conceptions of the rights and responsibilities that emerge from owning a piece of land overtook Indigenous conceptions. Moreover, I aim to show that European conceptions of property are funda-

mentally unjust and environmentally untenable because they uphold values that degrade and exploit the land, while the Indigenous conception entails a sustainable and reciprocal relation with the environment. That Western conception is one of the reasons for our current environmental crisis. Using an Indigenous environmental justice framework to critically evaluate the two legal systems, this paper will assert that, in order to mitigate climate degradation, we must radically reconceive what owning land means.

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WHAT DOES ENVIRONMENTAL JUSTICE LOOK LIKE IN AN INDIGENOUS CONTEXT? The framework of Indigenous environmental justice (IEJ) is central to understanding the purpose of reorienting our conceptions of private property. If we are to ask ourselves what a ‘superior,’ or perhaps simply preferable, conception of private property would be, we must first understand what it aims to accomplish. I posit that IEJ is the best tool for understanding why Indigenous peoples across North America have had their institutions and epistemologies undermined to the degree that they have, as well as for revealing the broad, integrative, and pluralistic conception of justice that should inform property management. First, though, two caveats: Indigenous systems of knowledge and values, which I will be consistently referring to in the paper, are tribally and geographically specific, each holding its own set of characteristics and viewpoints that are unique and at times contradictory. Grouping these knowledges together is by no means done with the intent to erase these differences. Rather, it is done with recognition for the epistemological foundations and legal marginalization different Indigenous groups have in common. I will be mainly relying on Anishinabek legal concepts, as they are the most widely available, but the underlying under-

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standing is relevant to other communities. Second, it is important to recognize the effect that colonialism has had on the preservation of these systems of knowledge. Due to the fact that most Indigenous traditions are preserved as oral histories, rather than in writing, much of what has been documented on their knowledge has been written by colonizers. Consequently, referenced material may be inaccurate, misleading, or even trivialize these forms of thought. Nevertheless, Indigenous peoples are still here, and still struggle with contemporary injustices imposed on their systems of knowledge by the same mechanism that initially oppressed them. While environmental justice discourse is traditionally centred around righting the asymmetric distribution of environmental burdens and benefits, which usually negatively impacts the poor, women, and people of colour, I will draw upon a distinct, new framework articulated by Deborah McGregor that takes a stance based on Indigenous worldviews. As Wenona Victor (qtd in McGregor) asserts, adopting Western notions of justice in which “justice is equated with punishment” causes dependency on colonial institutions to persist; as such, Indigenous peoples must return to their own ontologies for a just framework. McGregor’s conception of IEJ draws directly from her acknowledgement that much of Indigenous jurisprudence is connected to the belief that the earth is a sacred, living being. While particular laws vary, there is a

consistent recognition of a reciprocal relationship with the environment which entails legal rights and responsibilities pertaining to one’s relation with the Earth. This stands in contrast to most Western conceptions of law and justice; whereas common law traditions view law as constructed solely by and for people, Indigenous legal systems see it as originating from the land. Justice, then, is something that is not under the singular jurisdiction of humans: it necessarily includes all of one’s relatives, “whether past, present or future as well as our natural environment.” McGregor specifically employs the Anishinabek concept of mino-mnaamodzawin, which can be translated into “living well with the world,” as a method of achieving IEJ. IEJ, she posits, is a theoretical conception that fosters mino-mnaamodzawin because it entails living in reciprocal terms with both humans and non-humans. Indigenous legal systems are often construed so as to allow for mino-mnaamodzawin, as they are built for harmonious and sustainable relations both spatially and temporally.  As such, incorporating the Indigenous frameworks within which a person, community, or country operates must be done through assigning them rights and responsibilities that will support mino-mnaamodzawin. As Borrows notes, any attempt at resolving the injustices done to Indigenous peoples through mino-mnaamodzawin must also include “our collective reconciliation with the earth.”


How does IEJ relate to property rights? In what follows, I will argue that to achieve mino-mnaamodzawin, Canada must radically reconceptualize its legal definition and use of land. The common law notion of property as land tenure, in which an individual who owns land has exclusive jurisdiction over its use, is the antithesis of IEJ. Holding onto this conception is untenable if we are to seriously confront the climate crisis and the stark human crises that emerge from it. We are in need of a paradigm shift from systems of jurisprudence that are “designed to secure and consolidate the power of a ruling oligarchy and a ruling species” and instead towards, (re)imagining property as ‘bundles’ of usage rights that are designed to serve all of our relatives.

IN THE FOOTSTEPS OF NANABOZHO: INDIGENOUS CONCEPTIONS OF PROPERTY In Anishinaabe oral history, Nanabozho, the first man, is the teacher of how to be human. He provides the first blueprint for Indigenous law. His first task was to walk across the Earth, so as to better know its nature. He walked in each direction, and during his journey he learned to enter into “the deep reciprocity that renews the world.” As Kimmerer describes it, Nanabozho’s main teaching was that “to be Indigenous is to protect life on Earth.” This idea is helpful for understanding Indigenous concepts of property, which hinge on reciprocity rather than exclusive domination. In Indigenous traditions, environmental law is defined quite literally in reference to our interrelations with our environment. There is a required balance between species; a violation of that balance by excessive material use or degradation is considered illegal. The criteria for use of materials must follow three principles. First, there is the legal principle of designing for scale: environmental law dictates that those that require resources only take as much as they need, so as to ensure that settlements are sustainable. Second, replenishment of the environment must follow from its use. Third, users must create reliable systems to monitor the state of the environment, so that they can adjust their behaviour to ensure sustainable relationships. 

How does this law apply to property? A narrow conception of property is often concerned with the relation between a person and a thing: person or entity ‘A’ lays claim to object ‘B,’ and therefore owns B. However, the relationship is actually more complex than that. The fact of ownership is not dichotomous but is instead defined against all other individuals, who collectively decide what particular ownership is legitimate; defining property is therefore an articulation of relations between an individual, things, and society. Concisely, it can be understood as a “relational sets of rights distributed among individuals and groups in ways that make existing property regimes and claims specific, limited, and, frequently, shared.” There are, then, two areas of property law worth exploring in the context of IEJ. The first is individual ownership which is defined as the property that each individual in a community has vis-à-vis other community members. The second is collective sovereignty, or how one group of people understands their territorial claims against other such groups. Within the polity of Indigenous tribes, the specific legal principles and enforcement behind these two areas are mostly fluid in nature compared to the strict rigidity of country-based systems because they were built through personal relations rather than political institutions. Nevertheless, the property law principle that ties both together is based on “reciprocal relations of sharing and respect” and abides by the above three principles. The indigenous definition of individual goods is seemingly similar to Western conceptions: personal goods are owned by those who create said goods through their own labor, or which were voluntarily transferred by another. However, there is “no sense of accumulation or of exclusive use”: goods are owned only as far as they are useful and, if it is found that another community member has more use for said object, it is easily given away. In other words, there is no sense of permanent individual ownership. Individual property rights are very much confined to what a person may need to sustain themselves. The same concepts are mirrored in territorial jurisdictions between tribes. There were no singular efforts to maintain permanent

boundaries between different tribes. Instead, the sovereignty of a village was over the use of the land, rather than the land itself. A given tribe possessed sovereignty only as far as particular uses for the land went; they could have exclusive jurisdiction over practicing agriculture in a particular field, but did not prevent others from trespassing over said land or using it for non-agricultural purposes. There were often mutual and overlapping rights of different villages to use a particular site, even if it lay in the territory of a specific tribe. A tribe’s sovereign property lies in what it extracts from its territory, rather than a singular possession of it. As one Indigenous elder explains: “[our ancestors] didn’t say, ‘we owned this place.’ So you can see why these people now think we own that territory. But it was relationships, everyone was related.” Property for Indigneous peoples is not exclusive, but is constructed based on a reciprocal and sustainable relation with humans and nonhumans alike.

A ROOTLESS PAST: WESTERN CONCEPTIONS OF PROPERTY In Braiding Sweetgrass, Robin Wall Kimmerer quotes Indigenous elders who puzzle over why colonists took such a toll on the land. “They don’t have both feet on the shore” they observe, “one is still in the boat.” This, I think, is a particularly astute insight into the largest difference between Indigenous and Western conceptions of property and land. Whereas Indigenous property law is directly derived from our interrelation with the environment, Western conceptions are better understood as a unilateral relation: land is only defined legally based on its direct utility to human beings. Consideration for use of land is specifically connected to how much it will enrich us, rather than maintaining a natural balance. The philosopher who most directly conveys this relation is John Locke. In Two Treatises of Government, he articulates the basis for capitalist conception of private property. There, he explicitly compares Europe to America, with the former being the more developed version of the latter. Locke argues that land in its own right does not belong to any one person: it is a collection of raw mate-

65


rial that all have equal claim to. However, this changes whenever one cultivates that land. As he wrote, when one works the land “he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own [his labour], and thereby makes it his property.” In other words, developing territory makes it your sole possession. Any territory that is not developed is fair play for others to seize through their labour. Aside from turning nature into a productive force, that productivity should be turned into wealth. A marketable product must be extracted in order to be turned into money. This is because by nature Locke thinks that we are impoverished, and so any departure from it would be a positive thing. Whereas only attaching value to products that we directly made would limit our production, as goods are perishable, money allows us to abstract from objects, giving us an infinite incentive to continue to develop nature. There is always more money to be had, and so people should continually seek to produce at their maximum capacity.  What this meant in practice is threefold: first, land that is not being exploited for production through the mixing of labour is not owned by anyone and is therefore open to annexation for anyone willing to develop it. Second, people should seek maximum profits from their own parcels of land. In our effort to distance ourselves from natural poverty, it is legitimate and desirable to maximally extract profits from your property. Third, land becomes “abstract parcels whose legal definition bore no inherent relation to their use.” In other words, a person owns all activities and uses he could hypothetically perform on the land, and therefore has exclusive access to it, rather than having a right to perform a certain, limited set of activities on it. 

WHERE IT WENT WRONG: THE EMERGENCE OF A UNILATERAL WESTERN CONCEPTION OF PROPERTY When Europeans first arrived in North America, it was not simply a matter of two groups of people meeting one another. It was two political ontologies, and therefore two

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varying conceptions of land use, that met: that of property law as a bundle of usage rights and limited laws that ensure the maintenance of a delicate natural balance, and the exclusive possession of land as a means of maximalist production. This clash was not a peaceful one: the “rights of domination” derived from the European conception of nature meant that there was a ‘natural’ hierarchy established between the two conceptions. A “perceived incompatibility with, or supposed inferiority within, the legal hierarchy” of Indigenous conceptions of property by the Europeans meant continues acts of suppression and disintegration of Indigenous knowledges. There was, of course, the continual forcible domination of Indigenous tribes: violent conflict that caused the imposition of European private property following a decimation of Indigenous communities. However, one of the more visible ways this conflict was developed, and the domination of the European definition of property was solidified, is through treaty fulfillment. When Indigenous peoples signed treaties with Europeans, they ‘sold’ land only insofar as they gave specific permissions for land use. In one 1636 treaty, they specified that Europeans have ownership of the land in that they can “take Fish and Deer, ground nuts, walnuts akornes and sasachiminesh.” However, the Europeans did not abide by these terms, instead taking the treaty as a carte blanche to fully expropriate the land. In that way, Indigenous lands and treaties were regarded as being entirely under European jurisdiction: there was room only for an ontology of “one world, one real, and only one appropriate form of the possible.” This trend continues into modern times. The building of Canadian settlements hinges on the denial of the connectedness between people and their environment, and

the appropriation of resources from the surrounding ecosystems. Indigenous conceptions of private property now exist “beyond the borders of North American legal imagination.” In Canada, specifically, Indigenous

peoples are notably sidelined in the legal landscape. The federal system in Canada is attuned to provincial and national interests, inviting little Indigenous input into legislative matters. In fact, though Indigenous peoples have some say over affairs in reserves, the paternalistic 1867 Indian Act stipulates that the federal government has exclusive legislative jurisdiction over “Indians and


Lands reserved to Indians.” The law itself has either ignored or outright undermined many of Indigenous peoples’ ontologies and institutions, forcing their assimilation into the Western conception of private property.

RETURNING TO INDIGENOUS ENVIRONMENTAL CONCEPTIONS Where does the adoption of Lockean conception of property leave Canada, with regards to our standing with the environment? Much like the rest of the world, an ever-growing pressure enacted by both corporations and the governments has led to mass overexploitation and

unsustainable development of natural territory. By abstracting society from its environment through the market, we have created a pattern of resource use that is leading to what is one of the greatest crises humanity has faced. Our environment is changing on a macro scale—through the overall warming of the planet—but also on a micro scale, whereby entire local ecosystems are being decimated. This environmental injustice is mirrored in injustice in our communities: most stand to lose greatly because of the crisis, for the temporary benefit of a small, oligarchical class. The benefits of reorienting our system of property will mostly play out on the micro scale. Our environmental problems will not entirely vanish by adopting a different idea of property. This is simply a matter of scale. Canada alone cannot confront the climate crisis, nor will the climate crisis be entirely mitigated just by changing the legal rights that come with owning a piece of land. However, adopting a new philosophy will slow, stop, or perhaps reverse localized environmental degradation. A different system of management will not stop injustices but it will be a tool of mitigating them. Here is the question that this essay culminates in: is there any circumstance in which Western conception of land can achieve mino-mnaamodzawin? In other words, is it possible to maintain our current method of abstracting wealth from the environment while living well with the Earth? We know that the current system is emphatically not working, but plenty maintain that it is a way to reconcile environmental sustainability with Western land conceptions. Looking at liberal solutions for environmental degradation, many argue that the implementation of a Green Keynesian framework would be an acceptable solution, in which the market and property function as they currently do, while the government “produces individual incentives that align

with sustainability.” Sovereign power would ensure that we reach sustainable environmental growth through mass initiatives such as the Green New Deal while maintaining incentives for production and unilateral land ownership. However, even if we do somehow maintain our notions of property in a sustainable fashion, is that enough for us to live well with nature? In a green-growth future, our settlements are still detached from the ecosphere, with the latter only serving to supply the former and ensure its continued existence. We would seemingly only care about the environment to the extent that it can (sustainably) serve our needs. But this misses a critical component of mino-mnaamodzawin, which is the acknowledgement of the camaraderie and interconnectedness of the human and nonhuman. Try as we might, we are not detached from our surrounding environment, and to deny that—even in a non-destructive fashion—would be an injustice. As such, it seems to me that only Indigenous conceptions of property can achieve mino-mnaamodzawin. Returning to or adopting an Indigenous conception of private property as bundles of rights granted to a group regarding a particular land parcel can help guarantee that all our relatives are considered in our land use. By designing our bundles for scale, replenishing the environment, and monitoring environmental trends we would ensure that land use is sustainable. More than that, we would recognize ourselves as an inherent part of the world around us, rather than the dominators of a particular territory. We would own territory as much as a plant or animal does: both extracting resources for our own needs, neither taking more than what is required, and with a constant recognition of humanity’s imbued existence within our surrounding ecosystem. To conclude, if we are to achieve IEJ, which entails living well with the land, we cannot hang onto a Lockean conception of private property. Its abstraction of environmental resources through the marketplace is antithetical to mino-mnaamodzawin. Instead, we must seek to define private property not by exclusive jurisdiction over a parcel of land, but by a limited collection of rights to perform specific extractive practices. This will allow us to use land in a sustainable and mindful way that is consistent with IEJ.

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ENDNOTES

xxviii Cronon, “Changes

i

xxix Ibid

Borrows, John. Recovering Canada: The Resurgence of Indigenous Law. Toronto ; Buffalo: University of Toronto Press, 2002: 14-18 ii Ibid. p. 16

xxx Ibid: 59 xxxi Cameron

iii Ibid. p. 17 iv

Kowalski, Joseph. “Environmentalism Isn’t New: Lessons from Indigenous Law.” Buffalo Environmental Law Journal 26 (2018-2019): 20

v

Ibid.; McGregor, Deborah. “Mino-Mnaamodzawin: Achieving Indigenous Environmental Justice in Canada.” Environment and Society 9, no. 1 (September 1, 2018): 9

vi Kowalski. “Environmentalism

Isn’t New,”: 22

in the Land”: 58

et al. Creating Indigenous Property. Chapter 3 para. 6

xxxii Cronon “Changes

in the Land”: 61-62

xxxiii Ibid: 62-65 xxxiv Ibid: 62 xxxv Cameron

et al. Creating Indigenous Property. Chapter 3 para. 19

xxxvi Kimmerer, “Braiding

Sweetgrass”: 207

vii McGregor. “Mino-Mnaamodzawin”: 7

xxxvii Kowalski. “Environmentalism

viii Ibid: 11

of Government. Edited by Peter Laslett. Student ed. Cambridge Texts in the History of Political Thought. Cambridge [England] ; New York: Cambridge University Press, 1988: sec. 36

ix Kimmerer, “Braiding

Sweetgrass”: 205-209

x Cameron, Angela, Sari

Graben, and Val Napoleon. Creating Indigenous Property: Power, Rights, and Relationships, 2020. Chapter 3: The Principle of Sharing and the Shadow of Canadian Law, para. 3, 5, 6

xi McGregor. “Mino-Mnaamodzawin”: 12 xii Ibid: 10

et al. Creating Indigenous Property. Chapter 3 para. 5

xv

Asch, Michael, John Borrows, and James Tully, eds. Resurgence and Reconciliation: Indigenous-Settler Relations and Earth Teachings. University of Toronto Press, (2018): 49

xvi Kowalski. “Environmentalism xvii Kimmerer, “Braiding

Isn’t New,”: 51

Sweetgrass”: 207

xviii Ibid: 213

xxxix Ibid: sec. 26 xl Ibid: sec. 27 xli Ibid: sec. 45-50

xx Kowalski. “Environmentalism xxi Borrows, “Recovering

Isn’t New”: 24-29

Canada”: 82

xxii Ibid: 88

46-48

xliv Kowalski. “Environmentalism xlv Cronon “Changes

xxiv Borrows, “Recovering

Canada”: 89

xxv

Cronon, William. Changes in the Land: Indians, Colonists, and the Ecology of New England. 1st rev. ed., 20th-anniversary ed. New York: Hill and Wang, (2003): 58 xxvi Ibid

et al. Creating Indigenous Property. Chapter 3 para. 5

Isn’t New,”: 35

in the Land”: 74

xlvi Patel, Raj, and Jason W. Moore. A History of the World in Seven Cheap Things: Guide to Capitalism, Nature, and the Future of the Planet. University of California Press: Oakland, California, 2017: 51 xlvii Borrows, “Recovering

Canada”: 27

in the Land”: 69-70

xlix Ibid: 67 l Ibid: 68 li Escobar, Arturo. Pluriversal Politics: The Real and the Possible. Latin America in Translation. Durham: Duke University Press, 2020: 18 lii Borrows, “Recovering

xxiii Ibid: 89

xxvii Cameron

xliii Ibid: sec

xlviii Cronon “Changes

xix Ibid: 209

68

xxxviii Locke, John. Two Treatises

xlii Ibid: sec. 37

xiii Ibid xiv Cameron

Isn’t New,”: 35

Canada”: 59

liii Ibid: 57 liv Ibid: 58 lv Canada

- Indian Act, R.S.C. 1985, c. I-5

lvi Borrows, “Recovering lvii Patel

Canada”: 59

and Moore “Cheap Nature”: 46


lviii Wainwright, Joel, and Geoff Mann. Climate Leviathan: A Political Theory of Our Planetary Future. London ; New York: Verso, 2018: 102 lix Ibid: 102

BI BLIOG RAP HY Asch, Michael, John Borrows, and James Tully, eds. Resurgence and Reconciliation: Indigenous-Settler Relations and Earth Teachings. University of Toronto Press, 2018. Borrows, John. Recovering Canada: The Resurgence of Indigenous Law. Toronto ; Buffalo: University of Toronto Press, 2002. Cameron, Angela, Sari Graben, and Val Napoleon. Creating Indigenous Property: Power, Rights, and Relationships, 2020. Canada - Indian Act, R.S.C. 1985, c. I-5. Cronon, William. Changes in the Land: Indians, Colonists, and the Ecology of New England. 1st rev. ed., 20th-anniversary ed. New York: Hill and Wang, 2003. Escobar, Arturo. Pluriversal Politics: The Real and the Possible. Latin America in Translation. Durham: Duke University Press, 2020. Kimmerer, Robin Wall. Braiding Sweetgrass: Indigenous Wisdom, Scientific Knowledge and the Teachings of Plants. 1. edition. Minneapolis, Minn: Milkweed Editions, 2013. Kowalski, Joseph. “Environmentalism Isn’t New: Lessons from Indigenous Law.” Buffalo Environmental Law Journal 26 (2019 2018): 15–54. Locke, John. Two Treatises of Government. Edited by Peter Laslett. Student ed. Cambridge Texts in the History of Political Thought. Cambridge [England] ; New York: Cambridge University Press, 1988. McGregor, Deborah. “Mino-Mnaamodzawin: Achieving Indigenous Environmental Justice in Canada.” Environment and Society 9, no. 1 (September 1, 2018): 7–24. Patel, Raj, and Jason W. Moore. A History of the World in Seven Cheap Things: Guide to Capitalism, Nature, and the Future of the Planet. University of California Press: Oakland, California, 2017. Wainwright, Joel, and Geoff Mann. Climate Leviathan: A Political Theory of Our Planetary Future. London ; New York: Verso, 2018.

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POE 70


EMS 71


POEMS

THE ETERNAL TARGET BY SARAI RUDDER

Black envelops me My red center beats While I’m pierced by your words And shot with your weapons My puncture is your power Do this until you’re satisfied Until my life has been denied While your existence is canonized I’ll be dreaded, paralyzed My puncture is your power Play this game once then play it again I march with my heart held safe in my hand Count your points Our statistics My puncture is your power Genuflect upon me Heaven hears you shout victory Within this strong skin I exhale knowing My puncture is our power

72


POEMS

TO WHOM IT MAY CONCERN BY AMEERA ESSABAR To whom it may concern, I’ve been trying to discern What gives police the right, To kill people and not expect us to put up a fight? To whom it may concern, It’s time for you to learn That what you’re doing is nothing but cruel, Looking down on us, murdering people, taking them for fools. To whom it may concern, Silence is worse than ignorance, But ignorance kills as well, Ignorance keeps people locked behind the bars of Hell. To whom it may concern, WHEN WILL YOU STOP? WHEN WILL YOU STOP KILLING? When will you let people of colour LIVE the lives they were given? Your sins will NEVER be forgiven. To whom it may concern, You can stop this all. You can be better than the rest, get off your pedestal, take us by the hand, and fight for justice. No you versus me, no black versus white, no Jew versus Muslim, no queer versus straight, no right versus wrong, because we ARE NOT wrong. You can choose to stand with us, united as one. Because we are telling you now, this is it, we are done. Sincerely, All of Humanity

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Profile for pcjrapoportjournal

Rapoport Journal 2020-2021  

The 2021 edition of the University of Toronto's student journal for Peace, Conflict and Justice program.

Rapoport Journal 2020-2021  

The 2021 edition of the University of Toronto's student journal for Peace, Conflict and Justice program.

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