Kinship II

Rooted Volume 3: Issue 2

Kinship

A Publication on Indigenous Law at McGill

Editorial Board 2023-24

Chloe Walker Julia Dyke

Co-Executive Editors Clara Chang

Eric Epp Kasia Johnson

Associate Editors Jordan Derochie

Neala Hayratiyan Alessia Mottet

Chanelle Lajoie Kimberley Baronet

Advisory Council Kirsten Anker Hadley Friedland Larissa Parker

To be cited as: (2025) 3:2 Rooted Cover art by Isabelle Zwicker © Rooted McGill Faculty of Law, Tiohtià:ke Indigenous Law Association at McGill

Emily Beatty Nathan Penman Toby Moore

Volume 3 - Rooted - Issue 2 Winter 2025

Table of Contents Anishinaabe Legal Traditions Can Guide Canada Post-Class Action Settlement Ashley Bach

2

Indigenous Internationalism and Kinship Diplomacy: The Relational Dimensions of Indigenous International Law Andrew Ambers and Jeff Corntassel

10

The Rights of Nature Movement and the Bayano region in Panama: The Inclusion of Inalienable Rights and Indigenous Guardianship Gabriel Yahya Haage

21

Kinship Relationality and Custodial Ethics: First Nation Knowledge Systems in Australia Pat Dudgeon and Abigail Bray

28

The Other Story in the Room Amélie Ward

33

The Direct Correlation Between Colonial Violence Against Indigenous Land and Indigenous Women: Revitalizing Indigenous Feminist Governance Sophia Sidarous

39

Defining Kinship Laws through Storytelling: The Stories of the Métis people of Willowfield, Saskatchewan Lawren Trotchie

46

Letter From The Editors This volume of Rooted is the companion of our previous issue and continues the conversation around repairing, maintaining, and nurturing the web of relationships binding individuals and peoples with the rest of creation.

Kinship is at the core of Indigenous legal and social frameworks and was deliberately targeted by colonial practices, including residential schools, cynical child welfare systems, and environmental destruction. In the current colonial context, reaffirming kinship principles tends to hold an element of resistance.

Kinship continues to represent a path forward towards more meaningful reconciliation, understandings of Indigenous self-determination, and environmental action. Ashley Bach considers the aftermath of class action settlements related to violent child welfare policies, and envisions what restoring a healthier relationship with Canada could look like from Anishinaabe legal perspectives. Andrew Ambers and Jeff Corntassel challenge the assumptions of Western international law by explaining that kinship, rather than sovereignty, is the foundational principle of Indigenous internationalism. Although kinship is often in tension with rights-based frameworks, Gabriel Yahya Haage argues that the Rights of Nature movement can, in practice, animate kinship principles and repel environmental harms.

Pat Dudgeon and Abigail Bray explain that Indigenous Knowledge Systems, rooted in kinship, can guide ecological restoration and a return to balanced, dynamic relationships. Amélie Ward reflects this idea in an urban context, exploring how kinship (and Country) is vital for cultural and ecological sustainability. Sophia Sidarous, meanwhile, outlines the colonial impact on Indigenous women’s kinship bonds, emphasizing the connection between violence against women and the exploitation of land. Lawren Trotchie illuminates kinship through storytelling. She explains that kinship is indivisible from both individual and community.

We are sincerely grateful for our contributors’ generosity, insight, patience, care and wisdom. Thank you to our Advisory Council (Kirsten Anker, Hadley Friedland, and Larissa Parker) for their guidance and support.

This issue owes much to the work of our Associate Editors. We are deeply grateful to Isabelle Zwicker for her beautiful cover art. Finally, we are thankful for the financial support of the Students’ Society of McGill University’s Equity Fund, which makes it possible for us to offer honorariums to our contributors.

Thank you, Eric, Kasia, Julia, Clara, and Chloe

1

Anishinaabe Legal Traditions Can Guide Canada Post-Class Action Settlement

By Ashley Bach Ashley Bach (she/they) is a member of the Mishkeegogamang First Nation but was placed in care at birth and then adopted out in British Columbia. They currently live in Thunder Bay where they are a 2L at Lakehead University’s Bora Laskin Faculty of Law. Ashley is actively involved in BLFL’s Indigenous community as President of the Indigenous Law Students’ Association and as a Pro Bono Students Canada volunteer for the Mino-Waabandan Inaakonigewinan Indigenous Law and Justice Institute. They are also completing a Specialization in Aboriginal and Indigenous Law. Ashley is deeply committed to advancing the wellbeing of Indigenous peoples and nations. Her professional experience includes working as a policy analyst with the Assembly of First Nations (AFN) and serving as co-chair of the Nishnawbe Aski Nation’s Oshkaatisak (Youth) Council. She also had the privilege of working at Edwards Bell Jewitt LLP, a law firm that primarily serves Indigenous and Northern Ontario clients, as their 2024 summer student.

Ashley spends much of her time outside of school and work advocating with and for her fellow youth in and from child welfare systems across Canada, including on the National Council of Youth in Care Advocates. She is also one of the representative plaintiffs for the AFN’s class action on the discriminatory underfunding of the First Nations Child and Family Services program and the delay and denial of Jordan’s Principle.

2

T

he sun is just starting to rise on a refreshing spring morning, painting the still lakes, sandy shores, and vast muskeg swamps of Anishinaabe aki with soft pink and orange light. A cow mooz slowly browses from leaves while keeping a watchful eye on her young calf who is wandering among the sweet-smelling grasses that grow along the lakeshore nearby.

Ajidamoo works hard in a clearing amid the forest that borders the lakeshore. She has been squirreling away nuts, piling up pinecones, and moving leaves and other cozy detritus from the clearing into her nest in preparation for winter. She drops a pinecone from high up in the trees into a pile on the ground.

The land Ajidamoo lives on has changed a lot over the years. Many Anishinaabeg, small and large, have visited the clearing and the lakes nearby, leaving offerings as they go to hunt and fish. Occasionally, the Anishinaabeg would even build a lodge in the clearing where they would gather to share teachings and conduct ceremony. Ajidamoo would listen to their stories and watch them go about their days.

Sometimes, the small Anishinaabeg would spot her as she gathered food and would greet her or leave her gifts of nuts and seeds they found as they played. In return, she would leave them piles of pinecones to play with, and sometimes even let them playfully chase her as she jumped from tree to tree. Plus, she would make sure to call out to them if she sensed danger nearby.

But as the years went on, fewer Anishinaabeg came to the clearing. Some years, none would come at all. The small Anishinaabeg were especially rare visitors nowadays, which made Ajidamoo so sad that the land itself felt less alive.

Ajidamoo would ask her friend Gwiingwiishi, who travelled long ways with his wings, how the small Anishinaabeg were doing, every time she saw him. And every time, Gwiingwiishi would reply that he had seen more small Anishinaabeg leave their community with other, often strange-looking two-legged beings.

Ajidamoo had heard about similar things happening many winters ago. In those times, it was two-legged beings with odd clothing, like black robes or pants with stripes, taking the small Anishinaabeg away. But the two-legged beings Gwiingwiishi described to her nowadays were dressed differently, usually with strangely collared shirts and ties, and some even appeared to be Anishinaabe themselves. They often brought shiny black bags that the small Anishinaabeg would fill and carry with them as they left.

Ajidamoo spotted Gwiingwiishi flying in the distance and wondered if he knew why those small Anishinaabeg would be taken away from their homelands, or if they would ever visit again.

•••

3

Over 116,000 First Nations children and youth have been removed from their families and placed in the care of First Nations Child and Family Services (FNCFS) agencies since the “millennium scoop” began in 1991.1 In the 1991–92 fiscal year, the former Department of Indian and Northern Affairs Canada (INAC) adjusted the funding formulas for FNCFS agencies’ operations and maintenance with Policy Directive 20-1, leading to the removal of thousands of First Nation children from their families.2 The Assembly of First Nations (AFN) and the Caring Society filed a complaint to the Canadian Human Rights Tribunal (CHRT) in 2007, alleging the funding formula adjustments caused discriminatory underfunding of the FNCFS program on the basis of race and national ethnic origin.3 By that time, data from INAC showed that there were already “three times as many Aboriginal children in state care today than there was at the height of the residential school operations in the late 1940’s.”4 After over twelve years of deliberation at the

G

CHRT, the AFN, the Moushoom team, and their representative plaintiffs filed a class action pursuing compensation for decades of discriminatory underfunding of the FNCFS Program, the delay and denial of essential services, and violations of Jordan’s Principle.5 A revised final settlement agreement for $23.34B was reached between the parties and supported by the CHRT, before going to the Federal Court for a settlement approval hearing.

The settlement approval hearing began with ceremony, prayers from elders, space for the representative plaintiffs to be heard, and a recognition of the importance of the children, families, and kinship relations at the heart of the class action. Federal Court Justice Mandy Aylen attended parts of the ceremony and presided over the settlement hearing afterwards. She approved the settlement in an oral judgement on October 24, 2023 and released her written reasons for approval on November 20, 2023, impacting thousands of First Nations children, youth, and families across the country.6

•••

wiingwiishi often visited a pair of elderly Anishinaabeg who would sit on their porch in the nearby Anishinaabe settlement, enjoying their cups of aniibiishaaboo and pieces of bakwezhigan with berries baked into it for breakfast. He would sometimes leave a pretty feather or a nice pebble on the porch for them, then retreat to a nearby tree to listen to their stories. Occasionally they’d toss him a piece of their bakwezhigan to enjoy too.

Today, Gwiingwiishi left a beak-full of mashkiigobagwaboo leaves instead of a pebble because the elderly Anishinaabe with long hair sounded sick. A small Anishinaabe used to visit the elderly Anishinaabeg and bring mashkiigobagwaboo leaves or giizhik for them, but that small Anishinaabe had left the community with one of the strange-looking twolegged beings too. Gwiingwiishi hadn’t seen her in a long time.

4

The elderly Anishinaabe with long hair was watching the sun begin to rise after sprinkling a pinch of tobacco off the edge of the porch when she noticed a pile of labrador tea leaves on her chair. She smiled, wondering aloud who had left the leaves there like her grandchild used to, and brought them inside. A while later, she returned to the porch with two mugs of aniibiishaaboo and her short-haired companion. Gwiingwiishi was glad, since if the elderly Anishinaabe had their aniibiishaaboo, they would stay outside sharing stories for longer.

But today, instead of sharing stories, the two elders sat quietly, listening intently to a crackly voice from a black box with a shiny twig sticking up from it. The crackly voice said that this morning in the House of Commons, Canada would apologize for the “millennium scoop” during which it stole Anishinaabeg children from their families, communities, homelands, and cultures. The apology would be “live-streamed” (whatever that means), but the real work would start after the morning’s events finished. The crackly voice droned on as the sun got brighter, but he could see that the elderly Anishinaabe with the long hair was getting emotional.

The elderly Anishinaabe with short hair went inside and Gwiingwiishi thought he might be going to get the bakwezhigan like usual. But instead, he returned with a small pan and lit a smudge in it, fanning the flame and smoke with a pretty feather. Gwiingwiishi watched as the elderly Anishinaabe with short hair wiped tears from the elderly Anishinaabe with long hair’s eyes, and decided to let them have their privacy. He thought he heard the sound of a drum beating coming from the crackly black box as he flew away.

•••

A key provision of the class action’s settlement is that “Canada will propose to the Office of the Prime Minister that the Prime Minister make a public apology for the discriminatory conduct underlying the Class Members' claims and the past and ongoing harm it has caused.”7 But how could an apology for such a vast harm, that still has impacts today, be done in a meaningful way that addresses the thousands of severed kinship ties across hundreds of First Nations communities?

Canada has previously made public apologies for substantial harms against Indigenous peoples, including former Prime Minister Stephen Harper’s apology for Indian Residential Schools in 2008.8 Critics

have argued that apologies in the name of reconciliation have been misused or co-opted by the government to “neutralize” Indigenous claims of injustices by putting wrongs in the past, thus avoiding changes to the same systems that led to the injustices in the first place.9 Wariness is warranted in this context, given the extent of the ongoing impacts of child welfare on First Nations today.

Kinship is the foundation of all our relations and teaches us about our responsibilities to others, human and non-human alike, and how to live in relation to each other. However, Canada’s discriminatory underfunding of the FNCFS program severed relationships not only between the Removed Child Class and

5

their families but also between the Removed Child Class and their communities, their homelands, including non-human beings, and their ancestors, cultures, and spiritualities.

The removal of First Nation children severed direct familial relationships as well as cut off many of the relationships and responsibilities that come with being a First Nation person.

The impacts of these harms are still felt today.

Through the removal of First Nation children,

A

Canada effectively forced the majority of Removed Child Class members into a different way of knowing, living, and being, under other worldviews and legal orders. Canada’s actions prevented generations of reciprocal relationships from continuing (at least temporarily, though sometimes permanently), restricting the transfer of relational knowledge and practices fundamental to the well-being and operation of Anishinaabe society.10

•••

jidamoo sits high up in a tree watching as Anishinaabeg gather in the forest clearing below her. They’d been trickling in since this morning, shortly after Gwiingwiishi visited her. The first few Anishinaabeg who arrived are building a low, circular structure and a fire closer to the lakeshore.

Some Anishinaabeg are arriving alone, but others have small Anishinaabeg in tow. There are Anishinaabeg in chairs on wheels being rolled to the clearing too. Some Anishinaabeg are wearing ribbon skirts and shirts, yet others are wearing collared shirts and ties. As the Anishinaabeg organize themselves into a seated circle in the clearing, Ajidamoo notices that many of them look quite a bit like the small Anishinaabeg who used to visit her.

The sun is high in the sky when a tall, wavy-haired, strangely clothed two-legged visitor arrives, with a number of other strangely clothed two-legged beings accompanying him.

Ajidamoo sees the Anishinaabeg react to his arrival, some warily and some excitedly. He joins the circle with the Anishinaabeg, sitting on the ground, and his accompaniment does too.

An elderly Anishinaabe with short hair and an elderly Anishinaabe with long hair bring a smudge around the circle. Then, they sit to the left of the visitor.

The elderly Anishinaabe shares a story of a grandchild who was the joy of her and her husband’s life. They had tried to raise their grandchild in a good, loving way, unlike the Residential Schools that had raised them. But they were poor and their grandchild became sick from the unclean water in their home, breaking out in sores that itched and wept.

One day, a social worker came to their house, alleging that the elderly Anishinaabe were neglectful, and took their grandchild away.

Ajidamoo listens closely to the elderly Anishinaabe’s words and her pain, and the visitor

6

does too. He begins to cry.

The elderly Anishinaabeg with long hair passes the feather she’s holding to the young Anishinaabe sitting to her left. He begins to tell the story of the day he was taken from his community, and how he sometimes still has nightmares of hearing his mother scream his name as the car he was in drove away down the dirt road.

The sun has almost set by the time the feather reaches the visitor. He acknowledges how he and his country have implemented and perpetuated the harms against the Anishinaabe, and even fought the Anishinaabe when they complained about the harms. He said he understands that the Anishinaabe continue to be impacted by these harms individually, in their families, in their communities, and even in their relationships to their homelands and their cultures.

He then asks the Anishinaabe what he can do to heal himself and to restore the relationship between him, his country, and the Anishinaabe.

The elderly Anishinaabeg with the long hair receives the feather from the visitor. He describes how healing is the first step forward, not just healing for the Anishinaabe but for the nonAnishinaabe too. He explains that after the sweat this evening, the elders and leadership will be keeping a close watch on the progress made by the visitor and expect him to regularly visit and meet with the community in the future.

•••

Leanne Simpson explains that in the context of reconciliation between Canada and Indigenous peoples, “[t]he only way to not be co-opted is to use our own legal and political processes to bring about justice.”11 By understanding Anishinaabe kinship relations and following Anishinaabe legal traditions in making their apology, Canada (including its politicians and public servants) will be compelled to take actions in and beyond the common law system to help heal and restore the kinship relations they have

G

severed and to maintain ongoing, reciprocal relationships with the class members.12 Furthermore, Anishinaabe legal orders, like many other Indigenous legal orders, include traditions of acknowledgement of harm and subsequent reconciliation and restoration of relationships.13 Legal principles, such as those surrounding the Wiindigo, make it clear that Canada must not only recognize the harm they have caused but also heal, under a watchful eye, to change their behaviour and not cause the same harm again.14

••• wiingwiishi is flying high over the Anishinaabe settlement when he notices smoke rising from the forest where Ajidamoo’s nest is, and a lot of footprints in the snow

7

leading that way. Ajidamoo is sleeping for the winter but the clearing beneath Ajidamoo’s nest looks as alive and busy as ever.

The Anishinaabe have built a structure in the clearing and have lit a fire inside. Gwiingwiishi hears a voice speaking so he flies close to the entryway to listen in.

The voice talks about the actions he is taking to rebuild the relationships between himself, his country, and the Anishinaabeg. He is making sure that the small Anishinaabeg are not taken from their families and communities anymore. He is also giving funding for the Anishinaabeg who were taken to come to their homelands, heal with their families, and learn their languages and cultures.

However, another voice shares that not all the Anishinaabeg who were taken have been able to return to their homelands, and that it has been difficult to find and bring home many of those Anishinaabeg. She requests that they help undertake the work to right the wrongs that were done and to restore the broken relationships with the Anishinaabeg who were taken away.

The first voice agrees that he will and acknowledges that he understands how important it is that all of those taken away have the ability to come home.

More voices share how things are changing, but how healing is a lifelong process. Others share how they are developing their own laws to care for their children in their community.

The first voice continues to acknowledge the ongoing impacts of the harm he and his country have done and reaffirms his commitment to upholding these restorative processes in a meaningful way, even offering resources and funding to do so.

At that point, someone steps out of the structure to grab firewood, startling Gwiingwiishi away. But as he flies, Gwiingwiishi catches a glimpse of a tall, wavy-haired, strangely clothed two-legged being sitting on the ground in a circle with the Anishinaabeg.

ENDNOTES:

8

1.

Moushoom v Canada (Attorney General), 2023 FC 1533 at para 36 [Moushoom]. Note that this number does not include First Nations children and youth placed in provincial and territorial CFS care.

2.

Rose-Alma J McDonald et al, First Nations Child and Family Services Joint National Policy Review Final Report (Ottawa, ON: Assembly of First Nations/Department of Indian and Northern Affairs Development, 2000) at 20–21, online (pdf): <https://fncaringsociety.com/sites/default/ files/first_nations_child_and_family_services_joint_national_policy_review_2000.pdf>; First Nations Child and Family Caring Society, “Pre-Tribunal Timeline: History of First Nations Child & Family Services Funding”, online: <https://www.fncaringsociety.com/i-am-witness/pre-tribunaltimeline>; First Nations Child and Family Caring Society of Canada et al v Attorney General of

Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 at para 153.

3.

AFN and Caring Society Human Rights Complaint Against Indian and Northern Affairs Canada (2007), Ottawa, online: <https://fncaringsociety.com/sites/default/files/caring_society_afn_hr_ complaint_2007.pdf>. Note that this complaint led to the class action.

4.

Ibid at 1.

5.

Brett Forester, “‘You’re loved’: Plaintiffs in AFN class-action discuss healing journey, fight for child welfare justice”, APTN News (12 February 2020), online: <https://www.aptnnews.ca/nationalnews/youre-loved-plaintiffs-in-afn-class-action-discuss-healing-journey-fight-for-child-welfarejustice/>.

6.

Darren Major & Olivia Stefanovich, “Judge approves historic $23B First Nations child welfare compensation agreement”, CBC News (24 October 2023), online: <https://www.cbc.ca/news/ politics/judge-approves-23-billion-first-nations-child-welfare-agreement-1.7006351>; Moushoom, supra note 1.

7.

Moushoom, supra note 1 at para 45.

8.

Government of Canada, News Release, “Prime Minister Harper Offers Full Apology on Behalf of Canadians for the Indian Residential Schools System” (11 June 2008), online: <https://www. canada.ca/en/news/archive/2008/06/prime-minister-harper-offers-full-apology-behalf-canadiansindian-residential-schools-system.html>.

9.

Leanne Betasamosake Simpson, Dancing on Our Turtle’s Back (Winnipeg: Arbeiter Ring Publishing, 2011) at 22; Leo Baskatawang, Kinamaadiwin Inaakonigewin: A Path to Reconciliation and Anishinaabe Cultural Resurgence (PhD Thesis, University of Manitoba, 2021) [unpublished] at 58–59, online (pdf): <https://mspace.lib.umanitoba.ca/server/api/core/bitstreams/6811d6872a01-47cc-867f-68500cb8a8b0/content>.

10.

Baskatawang, supra note 9 at 36.

11.

Simpson, supra note 9 at 24.

12.

Baskatawang, supra note 9 at 59–60, 62.

13.

Simpson, supra note 9 at 20–25; John Borrows (Kegedonce), Drawing Out Law: A Spirit’s Guide (Toronto: University of Toronto Press, 2010) at 223–27; Red Earth Cree Nation, Nihyanan Oma Nehiyawak Ochi Mihkoskiwakak: Red Earth Cree Nation Legal Traditions (Ottawa: Department of Justice Canada, 2024) at 15, online (pdf): <https://canada.justice.gc.ca/eng/rp-pr/jr/recnlttjncre/pdf/2024_RECN_Indigenous_legal_traditions_EN.pdf>; Val Napoleon, “Ngā ture o ngā iwi taketake—Indigenous law Legal Pluralism and Reconciliation” (2019) November Māori L Rev 1 at 4, 6.

14.

Hadley Louise Friedland, The Wetiko Legal Principles: Cree and Anishinabek Responses to Violence and Victimization (Toronto: University of Toronto Press, 2018) at 85–93.

9

Indigenous Internationalism and Kinship Diplomacy: The Relational Dimensions of Indigenous International Law

By Andrew Ambers & Jeff Corntassel¹

Andrew Ambers is from the Kwakwaka’wakw Nation, specifically the ‘Namgis and Ma’amtagila First Nations. He holds a Bachelor of Arts (Hons) from the University of Victoria, and he is currently a Juris Doctor (JD) and Juris Indigenarum Doctor (JID) Candidate at the University of Victoria’s Faculty of Law. Ambers contributes to various Indigenous research projects on Indigenous law, sovereignty, and Aboriginal rights, and he holds advisory roles with Indigenous organizations in British Columbia. Ambers is currently working on topics related to Indigenous international law, aquatic Aboriginal title, coastal Indigenous trade and diplomacy, Indigenous intellectual and real property rights, and the international dimensions of Indigenous rights in Canada, the United States, and beyond.

Dr. Jeff Ganohalidoh Corntassel is a writer, teacher, and father from the Cherokee Nation.

As Professor and Acting Director in Indigenous Studies at the University of Victoria, his research and teaching interests focus on “Everyday Acts of Resurgence” and the intersections between Indigenous internationalisms, resurgence, climate change, gender, and community well-being. Jeff situates his work at the grassroots with many Indigenous led communitybased programs and initiatives ranging from local food movement initiatives, land-based renewal projects to gendered colonial violence and protection of homelands. He is currently completing work for his forthcoming book on Sustainable Self-Determination, which examines Indigenous climate justice, food security, and gender-based resurgence.

10

Introduction Indigenous nations are deeply rooted in international diplomacy, and Indigenous citizens are preeminent and outstanding diplomats who have established rich bodies of international law across the globe since the beginning of time. Despite not often being recognized by shape-shifting colonial entities, diplomacy and relational responsibilities are part of everyday life and practice for Indigenous communities and are carried out across an expansive world developed through kinship meshworks.2 These diplomatic associations exist and persist beyond the artificial state boundaries that seek to suspend Indigenous legal orders and erase Indigenous enactments of diplomacy, internationalism, and international solidarity from international legal geographies in order to redraw them onto domestic legal geographies. Enactments of Indigenous internationalism, which entail consecrating relationships between nations (including plant and animal nations and other more-than-human relations) and are initiated, recalled, and reaffirmed through treaties, alliances, rights, territorial ownership and access, trade relations, and other webs of relational affiliations, contribute to and indeed constitute a diplomatic kinship meshwork. These relationships populate enduring ethical, political, and legal norms that order the social fabrics of Indigenous life. It is important not to negate or foreclose instances in which Indigenous internationalism includes relationships with states, wherein kinship may hold a distinctive role in strengthening relationships internal to a nation and between nations while exercising their diplomatic authority with

states. Internationalism is only possible when Indigenous nationhood and sovereignty are asserted, respected, and honoured within communities. Breaking free from the “Westphalian straitjacket”3 that sustains state-centric imaginaries and realities pertaining to international law,4 and which fabricates state legal geographies that seek to impair Indigenous sovereignty, allows us to uplift Indigenous legal geographies that have generated bodies of international law since the beginning of time and that precede public international law as it is understood today. Our engagement with Indigenous internationalism is concerned with theorybuilding as it relates to conceptualizing kinship as a critical source of Indigenous international law and articulating how we can identify these laws and ethics in expressions of internationalism to uplift, honour, and perpetuate Indigenous sovereignty and selfdetermining authority.

To this end, we examine how kinship meshworks order and are ordered by Indigenous international law through expressions of Indigenous internationalism, which exist beyond state borders and are functions of Indigenous diplomacies that honor Indigenous legal orders within a multiplicity of lawful and rights-bearing relations. We identify how understanding Indigenous internationalism requires overturning statist, patriarchal, and extractive visions of diplomacy, sovereignty, and international relations. To begin understanding the comprehensive and substantial body of Indigenous international law, we have examined The Buffalo: A Treaty of Cooperation, Renewal, and Restoration5 (The Buffalo Treaty) and isolated particular expressions and enactments of internationalism that draw on the multi-

11

dimensional, intricate, and expansive legal architecture of Indigenous diplomacies engaging with various Indigenous nations, animal kin, and states. Reconceptualizing diplomacy and international law, whereby international law can be placed into spaces that may be personal and empathetic, releases us from the ever-binding processes of state legal geographies that seek to subsume and suppress Indigenous acts of resurgence.

This creates space for a (re)emergence of Indigenous international law that can be understood as emerging and developing from kinship relations. The regeneration of kinship meshworks through expressions of Indigenous internationalism is an antidote to the violence of extractivism and shapeshifting colonization.6

Sourcing Law Through Kinship: Indigenous Internationalism as International Law Since Indigenous nations and communities are self-determining, every engagement undertaken by a nation with external political communities, whether with nations, more-than-human kin, or states, is nested within the legal ecosystem of Indigenous internationalism. As Andrew Ambers (Kwakwaka’wakw) and Rachel yacaaʔał George (nuučaańuł) suggest, kinship relations and natural landscapes are sources of law and legal reasoning that order normative practices, including bodies of Indigenous international law.7 To not accept these sources of law as authoritative frameworks for international relations supposes that

12

Indigenous nations act pursuant to a vacant legal order in their relations with external political communities, a premise that permits an erroneous, unsubstantiated, and ahistorical conclusion that Indigenous nations are unsovereign and lawless.8 In reality, Indigenous international law is developed and enacted across overlapping, cross-cutting, vibrant, and expansive legal geographies with a multiplicity of relations, including historically associated nations with long-standing standards of care pursuant to their legal orders and the international law developed between such nations, as well as states and unrelated political communities with whom relations may be adversarial.

Therefore, Indigenous internationalism creates a frame through which sociolegal norms, values, and principles can be discerned that create obligations and expectations for behaviour between political communities. Indigenous internationalism is not an idyllic frame of reference but is one that creates space for asserting Indigenous relationships as legal and lawful, rather than solely social and personal. The personal as well as expressions of intimate relationships may be diplomatic, lawful, and international.

The international may be personal, caring, and empathetic. Internationalism, as an analytical mesh through which Indigenous relations may move, creates possibilities for advancing Indigenous relations as being part of Indigenous international law, which is politically and legally binding upon various nations, states, and citizens.

International relations and international law tend to be conceptualized and discursively created on the basis of states being the primary agents of sovereignty in a singular class that, on a non-consensual basis,

incorporates Indigenous nations into the domestic legal landscapes of states. Métis law scholar Joshua Nichols orients us away from this cultural and legal construction holding any binding water because “we have never been domestic.”9 Put simply, in international law discourses, states are presupposed to be and reproduced as the singular archetype of sovereignty, and political collectives not within this singular constructed class are the subjects of domestication through international and domestic state law.

Strategies of domestication are exerted upon Indigenous nations across the asserted territorial boundaries of Canada, where Indigenous rights, governance, and life are no longer understood through nation-tonation relations, but through domestic rights that are framed as sui generis.10 Through political and juridical processes, Indigenous governance has become a distinctive jurisdictional space that is recognized as existing in part and in principle, but not yet wholly realized as substantive law.11 This conceptualization, largely enacted through section 91(24) of the Constitution Act, 186712 and section 35 of the Constitution Act, 1982,13 reduces Indigenous nations to domestic units, no longer jurisdictionally competent to undertake international relations either ‘within’ or ‘outside’ Canada.14 Indigenous internationalism overturns inaccurate, statecentric understandings of ‘the international’ that depend upon and perpetuate Westphalian sovereignty by continuing to assert the sovereign authority of Indigenous peoples, which has never been lawfully extinguished or negated.15 Accepting that Indigenous relationships with states are not considered part of Indigenous internationalism necessarily means falsely

claiming that Indigenous nations are not sovereign in state relations. This would reinforce the idea that nations are vertically subsumed under state sovereignty which in turn attempts to erase Indigenous legal orders, whereby Indigenous nations become only subject to the laws of the state that ‘hosts’ them. This conceptualization of Indigenous relations reflects the incorrect statist construction that international law is concerned with a “society of states.”16 This perspective is associated with Dutch philosopher and international law thinker Hugo Grotious and the Grotian tradition more generally,17 which, if accepted as an authority for the form, scope, and content of international law, quite literally displaces Indigenous nations from their own legal landscapes as sovereign political collectives by transplanting them from ‘the international’ to the legal sphere of their ‘host’ state. In this statist mindscape, we begin to see the colonial interdependencies between international and state law, because the former informs the latter’s understandings of jurisdiction and sovereignty.

Nevertheless, Indigenous internationalism and Indigenous international law have never ceased to be enacted and upheld.

International authorities and states are incapable of legitimately negating Indigenous international law, a body of law that predates and ruptures the state border fictions created by a singular Westphalian worldview. Statebased amorphous constructions of law and society dismiss the kinship relations that often underpin Indigenous international law by placing kinship outside of the standard grammar of law. Indigenous internationalism, often generated through acts of Indigenous resurgence grounded in a turning-away from

13

the state towards community,18 does not necessarily entail an outright disengagement with states.19 Considering The Buffalo Treaty20 as an illustration of Indigenous internationalism uncovers the deep, enduring diplomatic ethics, foundationally and functionally structured by kinship relations, that underpin Indigenous internationalism.

Treaty Diplomacies: Kinship and Legal Geographies

Treaty diplomacies are important expressions of Indigenous relational responsibilities, often rooted in kinship and the natural world.21 Treaty-making between Indigenous nations reflects ceremonial protocols and practices established well before the violent incursion of colonial entities onto Indigenous homelands and waterways. According to the late Standing Rock Sioux scholar Vine Deloria, Jr. and law scholar Raymond DeMallie: Many intertribal treaties and agreements were made in the traditional manner, with the exchange of gifts, children or prized sacred objects, and sometimes with formal adoption of individuals. These agreements continue to be remembered, mainly by traditional people in the tribes.22 Indigenous peoples’ expressions of internationalism extend far beyond human relationships.

As Anishinaabe scholar Leanne Betasamosake Simpson points out,

14

Indigenous peoples are embedded in “a series of radiating relationships with plant nations, animal nations, insects, bodies of water, air, soil, and spiritual beings in addition to the Indigenous nations with whom we share parts of our territory.”23 From this perspective, Indigenous stories about relationships with the natural world “lay out many foundational principles of treaty-making,”24 and acts of “restorying” landscapes and waterways bring kinship meshworks back to prominence as key elements of longstanding sacred relationships. Restorying in this context is “about reclaiming and renewing our rebellious dignity as Indigenous peoples and nations and about activating land- [and water-]based resurgence:”25 restorying entails community regeneration and renewal. As an embodiment of Indigenous internationalism and treaty diplomacy, The Buffalo Treaty warrants a deeper examination of its development, expression of kinship, and impact on Indigenous nations, buffalo nations, and the landscapes of the Blackfoot Confederacy and surrounding communities.

According to the late Blackfoot scholar Betty Bastien, kinship “means that Siksikaitsitapi survival is dependent upon the cosmic order and that our existence is based on knowing and learning our alliances.”26 Relational responsibilities and protocols are nurtured through longstanding alliances for the future well-being of Indigenous nations. Kinship meshworks originate from stories and lived experiences to form the basis for enduring relationships with the natural world, including plant and animal nations. Despite concerted colonial efforts to destroy the buffalo and erase Blackfoot peoples along with national and international sacred living histories arising from such landscapes,27 the buffalo and

Blackfoot peoples persist.

The buffalo is considered a cultural keystone species as well as an “eco-engineer”28 of the prairie ecosystem, providing nutrients to plant nations and insects and acting as a source of food security for grizzly bears, wolves, and the Blackfeet Nation. The close interrelationships between buffalo and the health of the prairie ecosystem meant that the widespread slaughter of buffalo in the nineteenth century led to the deterioration of the prairie ecosystem and threatened the health and well-being of Blackfoot peoples. The spirit of the buffalo remains with Blackfoot peoples through stories, ceremonies, the landscape, and sacred living histories. As Blackfoot Elder, scholar, and emissary to The Buffalo Treaty, Leroy Little Bear, observed: “The spirit of the buffalo is still here. And if anybody left…we, the humans, are the ones that left the buffalo.

The buffalo didn’t leave us.”29 Paulette Fox, from the Kainai Nation, helped initiate the “buffalo dialogues” in 2009 through the Iinnii (Buffalo) Initiative.30 The buffalo dialogues were held throughout the Blackfoot Confederacy with particular emphasis on elders and youth:31 according to Little Bear, “Blackfoot youth would sing songs and tell stories but there were no buffalo here.”32 By 2013, after several years of buffalo dialogues, consensus emerged that a treaty would be the best way to unify Blackfoot and other Indigenous nations around the return of the buffalo. As Little Bear explains, through consensus it was discerned that “[n]ow we need a treaty to bring our people together so that we can have a place for the buffalo again.”33 The Buffalo Treaty is the culmination of a bold vision for a new international alliance committed to restoring buffalo to 6.3 million acres of land across the United States and

Canada and was first signed by eight sovereign Indigenous nations on 24 September 2014 at the Blackfeet Reservation in Montana, United States. The following nations were the original signators: •

Blackfeet Nation;

•

Kainai/Blood Tribe;

•

Siksika Nation;

•

Piikani Nation;

•

The Assiniboine and Gros Ventre Tribes of Fort Belknap Indian Reservation;

•

The Assiniboine and Sioux Tribes of Fort Peck Indian Reservation;

•

The Salish and Kootenai Tribes of the Confederated Salish and Kootenai Indian Reservation; and

•

Tsuut’ina Nation.34

In the spirit of Indigenous internationalism, non-governmental organizations as well as other organizations and individuals can sign as supporters of the treaty if they help “perpetuate the spirit and intent of The Buffalo: A Treaty of Cooperation, Renewal and Restoration.”35 States, including Canada and the United States, were also welcome to sign onto the treaty but they have chosen not to support.36 As of 2024, over forty Indigenous nations have signed onto the treaty, which continues to exist as a living document. The treaty itself describes Indigenous nations’ close kinship with the buffalo and the objectives for creating the treaty in 2014: To honor, recognize, and revitalize the time immemorial relationship we have with BUFFALO, it is the collective intention of WE, the undersigned NATIONS, to welcome BUFFALO to once again live among us as

15

CREATOR intended by doing everything within our means so WE and BUFFALO will once again live together to nurture each other culturally and spiritually. It is our collective intention to recognize BUFFALO as a wild free-ranging animal and as an important part of the ecological system; to provide a safe space and environment across our historic homelands, on both sides of the United States and the Canadian border, so together WE can have our brother, the BUFFALO, lead us in nurturing our land, plants and other animals to once again realize THE BUFFALO WAYS for our future generations.37

to lawful actions, relational renewals, and intergenerational connections.

Kinship relationships form the core of Indigenous self-determining authority and Indigenous international law. The expression and experience of kinship is not confined to humans but necessarily includes animals, lands, and waters. Uncritically accepting the Western conception of ‘the international’ means relinquishing the powerful enactments of Indigenous international law created by preceding generations, which continue to bind us through legal responsibilities. These bodies of law house inextricably linked living legal obligations, ethical responsibilities, and This intimate kinship relationship is a powerful cultural commitments that need to be tended vision for perpetuating more-than-human to and nurtured. Understanding Indigenous relationships, suggesting and imagining future conceptions of international legal geographies is potential treaties between and among Indigenous key to honoring, upholding, and perpetuating the nations, or concerned with, salmon nations, kinship ties that our diplomatic ancestors have deer nations, camas (or kwetlal) nations, cedar developed. There is not a singular Indigenous nations, and other kinship relationships within articulation of internationalism because it is the vibrant natural world. The act of imagining necessarily associated with the particularities the significant potential of reconceiving treatyof communities and inter-community relations, making in accordance with Indigenous legal and continuing to nurture relations across orders is a powerful embodiment of kinship communities is a sovereign undertaking that meshworks, which creates vibrant futures develops Indigenous international law. by acting under Indigenous international law. Indigenous internationalism entails Rupturing statist imaginaries related to activating Indigenous-led resurgence so that sovereignty, borderlands, and law creates future generations will thrive and relational space to understand that kinship relationships, responsibilities will be perpetuated. in and of themselves, are rights-conferring and alliance-building spaces that connect sovereign nations and political units and that order and are ordered by the vibrancy Regenerating Kinship Indigenous international life. Kinship is a as Legal and Diplomatic of structuring process that orders Indigenous Expressions legal thought, populating international norms, values, and principles that orient political practices towards relationships across society, Kinship is a constitutive vesting authority governance, and law. Scholars and practitioners in Indigenous international law, pertaining of international law, international relations, and diplomacy must take on the responsibility

16

of meaningfully grappling with the concept of ‘the international.’ They must seriously inquire if they are tightening or loosening the colonial threads that construct the “Westphalian straitjacket,” which does not understand that Indigenous kinship can be international, rightsbearing, and lawful.38 Examining and elevating international expressions of kinship, like The Buffalo Treaty, will inspire and stimulate a reorientation in the study of international law to root Indigenous internationalism to place, kinship relations, and the legal geographies that have established bodies of international law

that long pre-date the current colonial system.

This reorientation will transform the study of international relations by affirming kinship meshworks, developed by Indigenous nations and diplomats, as rights-conferring, lawful, and diplomatic engagements pursuant to Indigenous legal orders and Indigenous international law.

The effect of reorienting statist understandings of the international is about radically redirecting how we reason through social and legal conflicts and ultimately how we exist in vibrant spaces of justice and care.

ENDNOTES: 1.

The authors thank the Rooted editorial team at McGill University for their thoughtful guidance, and the Borders in Globalization team at the University of Victoria for their support.

2.

Meshwork is borrowed and modified from British anthropologist Tim Ingold, who developed it from French philosopher Henri Lefebvre, and is an alternative to the network metaphor. See Tim Ingold, “Up, Across and Along” in Lines: A Brief History (London: Routledge, 2007) 74 at 83–85; Tim Ingold, “On Human Correspondence” (2017) 23:1 J Royal Anthropological Institute 1, DOI: <https://doi.org/10.1111/1467-9655.12541>; see also Carl Knappet, “Networks of Objects, Meshworks of Things” in Tim Ingold, ed, Redrawing Anthropology: Materials, Movements, Lines (Surrey: Ashgate Publishing, 2011) 45; for the use and development of ‘meshwork’ in the study of Indigenous internationalism, see Jeff Corntassel, Andrew Ambers & Shane Baker, “Indigenous Internationalisms: Transcending State Borders Through Community Diplomacies, Treaties, and Trade Networks” in Lana Wylie, Susan Henders & Mary Young, eds, Non-state Actors, Diplomacies, and Canadian-Linked External Relationships (Toronto: University of Toronto, forthcoming).

3.

Claire Wilkinson, “The Copenhagen School on Tour in Kyrgyzstan: Is Securitization Theory Useable Outside Europe?” (2007) 38:1 Security Dialogue 5, DOI: <https://doi. org/10.1177/0967010607075964>.

4.

For an analysis of the ‘Westphalian straitjacket’ as it relates to Indigenous internationalisms, see Corntassel, Ambers & Baker, supra note 2.

5.

The Buffalo: A Treaty of Cooperation, Renewal, and Restoration, Blackfeet Nation, Kainai/Blood Tribe, Siksika Nation, Piikani Nation, the Assiniboine and Gros Ventre Tribes of Fort Belknap Indian Reservation, the Assiniboine and Sioux Tribes of Fort Peck Indian Reservation, the Salish and Kootenai Tribes of the Confederated Salish and Kootenai Indian Reservation, and Tsuut’ina Nation, 24 September 2014, online: <https://www.buffalotreaty.com/treaty> [Buffalo Treaty].

6.

See Jeff Corntassel, “Re-envisioning Resurgence: Indigenous Pathways to Decolonization and Sustainable Self-Determination” (2012) 1:1 Decolonization: Indigeneity, Education & Society 86 at 95, online: <https://jps.library.utoronto.ca/index.php/des/article/view/18627>; James Tully, “The Struggles of Indigenous Peoples for and of Freedom” in Duncan Ivison, Paul Patton & Will Sanders, eds, Political Theory and the Rights of Indigenous Peoples (Cambridge: Cambridge University Press, 2000) 36 at 38–42; Cris Shore, “A Shapeshifting Enigma: The Crown in

17

Australia, Canada, New Zealand and the United Kingdom” in Cris Shore & David Williams, eds, The Shapeshifting Crown: Locating the State in Postcolonial New Zealand, Australia, Canada and the UK (Cambridge: Cambridge University Press, 2019) 1.

18

7.

Andrew Ambers & Rachel yacaaʔał George, “Fluid Internationalisms: The Ocean as a Source of and Forum of Indigenous International Law” (2024) 5:1 Borders in Globalization Rev 21 at 23–24, DOI: <https://doi.org/10.18357/bigr51202421801>.

8.

Ibid at 24; for an analysis that breaks down the notion that Indigenous nations are lawless, see Val Napoleon, “Did I Break It? Recording Indigenous (Customary) Law” (2019) 22 Potchefstroom Electronic LJ 2 at 16, DOI: <https://doi.org/10.17159/1727-3781/2019/v22i0a7588>; Val Napoleon & Hadley Friedland, “Indigenous Legal Traditions: Roots to Renaissance” in Markus D Dubber & Tatjana Hörnle, eds, The Oxford Handbook of Criminal Law (Oxford: Oxford University Press, 2014) 1 at 3, DOI: <https://doi.org/10.1093/oxfordhb/9780199673599.001.0001>.

9.

Joshua Nichols, “‘We Have Never Been Domestic’: State Legitimacy and the Indigenous Question” in John Borrows et al, eds, Braiding Legal Orders: Implementing the United Nations Declaration on the Rights of Indigenous Peoples (Waterloo: Centre for International Governance Innovation, 2019) 39; see also Joshua Nichols, “UNDRIP and the Move to the Nation-to-Nation Relationship” in John Borrows, Larry Chartrand, Oonagh E Fitzgerald, & Risa Schwartz, eds, Braiding Legal Orders: Implementing the United Nations Declaration on the Rights of Indigenous Peoples (Waterloo: Centre for International Governance Innovation, 2019) 145.

10.

The history of sui generis as it pertains to Indigenous nations in Canada has been used by various levels of Canadian courts to express the Crown’s fiduciary duty to nations in R v Guerin, to describe the interpretive approach as it relates to section 35 rights in R v Sparrow, and to describe the nature of Aboriginal title in R v Van der Peet. It is a way to describe Indigenous legal interests as domestic, in Canadian law terms, while neglecting the inherent international dimensions of Indigenous rights, governance and law. See Guerin v The Queen, [1984] 2 SCR 335 at 385, 1984 CanLII 25 (SCC); R v Sparrow, [1990] 1 SCR 1075 at 1108, 1990 CanLII 104 (SCC); R v Van der Peet, 1996 CanLII 216 (SCC) at paras 115–121; see also John Borrows & Leonard I Rotman, “The Sui Generis Nature of Aboriginal Rights: Does it Make a Difference?” (1997) 36:1 Alta L Rev 9, DOI: <https://doi. org/10.29173/alr1018>.

11.

The status of Indigenous governance has been a contested constitutional question in Canadian law, which has arisen from it being rooted to an inherent right as sovereign nations to being grounded in Indigenous nations being ‘third orders of government’ and situated within ‘treaty federalism.’ For analyses and sources pertaining to this history, see Simon v The Queen, 1985 CanLII 11 (SCC) at para 33; R v Sioui, [1990], 1 SCR 1025 at 1038, 1990 CanLII 103 (SCC); John Borrows, “A Genealogy of Law: Inherent Sovereignty and First Nations Government” (1992) 30:2 Osgoode Hall LJ 291, DOI: <https://doi.org/10.60082/2817-5069.1724>; Val Napoleon, “Aboriginal Self Determination: Individual Self and Collective Selves” (2005) 29:2 Atlantis 31, online: <https://journals.msvu.ca/ index.php/atlantis/article/view/1046>; James Sa’ke’j Youngblood Henderson, “UN Declaration on the Rights of Indigenous Peoples and Treaty Federalism in Canada” (2019) 24:1 Rev Constitutional Studies 17; Michael Asch, On Being Here To Stay: Treaties and Aboriginal Rights in Canada (Toronto: University of Toronto Press, 2014) at 10–33; Kent McNeil, “Indigenous Land Rights and Self-Government: Inseparable Entitlements” in Lisa Ford & Tim Rowse, eds, Between Indigenous and Settler Governance (Oxford: Routledge, 2012) 135; Sari Graben & Matthew Mehaffey, “Negotiating Self-Government Over & Over Again: Interpreting Contemporary Treaties” in John Borrows & Micheal Coyle, eds, The Right Relationship: Reimaging the Implementation of Historical Treaties (Toronto: University of Toronto Press, 2017) 164.

12.

Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985, Appendix II, No 5.

13.

Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

14.

This is an effect, at least in part, of international law conferring legal personality to states, a status

that is not yet enjoyed by Indigenous nations. The domestic law of Canada tends to adopt this logic through constitutional law, statutory law, case law, and policy. See Ronald Portmann, Legal Personality in International Law (Cambridge: Cambridge University Press, 2010) at 19–28.

15.

See Corntassel, Ambers & Baker, supra note 2.

16.

See Hersch Lauterpacht, “The Grotian Tradition in International Law” (1946) 23 British YB Intl L 1 at 23; Claire Cutler, “The ‘Grotian Tradition’ in International Relations” (1991) 17:1 Rev Intl Studies 41.

17.

Ibid.

18.

See Jeff Corntassel, “Life Beyond the State: Regenerating Indigenous International Relations and Everyday Challenges to Settler Colonialism” (2021) 1:1 Anarchist Developments in Cultural Studies 71 at 82–83, online: <https://journals.uvic.ca/index.php/adcs/article/view/20172>; Michael Elliot, “Indigenous Resurgence: The Drive for Renewed Engagement and Reciprocity in the Turn Away from the state” (2018) 51:1 Can J Political Science 61, DOI: <https://doi.org10.1017/ S0008423917001032>.

19.

See Sheryl R Lightfoot & David MacDonald, “Treaty Relations Between Indigenous Peoples: Advancing Global Understandings of Self-Determination” (2017) 19:2 New Diversities 25.

20.

The Buffalo Treaty, supra note 5.

21.

See Leanne Betasamosake Simpson, “Looking after Gdoo-naaganinaa: Precolonial Nishnaabeg Diplomatic and Treaty Relationships” (2008) 23:2 Wicazo Sa Review 29, DOI: <https://doi. org/10.1353/wic.0.0001>; Heidi Kiiwetinepinesiik Stark, “Respect, Responsibility, and Renewal: The Foundations of Anishinaabe Treaty Making with the United States and Canada” (2010) 34:2 Am Indian Culture & Research J 145, DOI: <https://doi.org/10.17953>; Shalene Jobin, “Cree Peoplehood, International Trade, and Diplomacy” (2013) 43:2 Revue générale de droit 599; Joseph Bauerkemper & Heidi Kiiwetinepinesiik Stark, “The Trans/National Terrain of Anishinaabe Law and Diplomacy” (2012) 4:1 J Transnational Am Studies 395, DOI: <https://doi.org/10.5070/ T841007100>.

22.

Vine Deloria Jr & Raymond J DeMallie, Documents of American Indian Diplomacy: Treaties, Agreements, and Conventions, 1775-1979 (Norman: University of Oklahoma Press, 1999) at 681.

23.

Leanne Betasamosake Simpson, As We Have Always Done: Indigenous Freedom Through Radical Resistance (Minneapolis: University of Minnesota Press, 2017), ch 4 at 58.

24.

Stark, supra note 21 at 147.

25.

Jeff Corntassel, “Restorying Indigenous Landscapes: Community Regeneration and Resurgence” in Nancy Turner, ed, Plants, People and Places: The Roles of Ethnobotany and Ethnoecology in Indigenous Peoples’ Land Rights in Canada and Beyond (Montreal: McGill-Queen’s University Press, 2020) 350 at 352.

26.

Betty Bastien, Blackfoot Ways of Knowing: The Worldview of the Siksikaitsitapi (Calgary: University of Calgary Press, 2004) at 4.

27.

James Daschuk, Clearing the Plains: Disease, Politics of Starvation and the Loss of Indigenous Life (Regina: University of Regina Press, 2019).

28.

The term “eco-engineer” is borrowed from Clive Jones et al, “Organisms as Ecosystem Engineers” 69:3 Oikos 373, DOI: <http://dx.doi.org/10.2307/3545850>.

29.

Dr Leroy Little Bear, “Twitter Bits from Buffalo Treaty” (Public talk at REDx Talks, 29 September 2016), online: <https://vimeo.com/212279687> [public talk by Dr Leroy Little Bear].

30.

Ryan Crosschild et al, “Awakening Buffalo Consciousness: Lessons, Theory, and Practice from the Buffalo Treaty” (2021) 36:1 Wicazo Sa Review 5, DOI: <https://doi.org/10.1353/wic.2021. a903665>.

19

20

31.

Ibid at 12.

32.

Leroy Little Bear, Guest Lecture (Indigenous Studies 350 at the University of Victoria, via Zoom, 22 November 2023).

33.

Public talk by Dr Leroy Little Bear, supra note 29.

34.

The Buffalo Treaty, supra note 5.

35.

Ibid.

36.

Public talk by Dr Leroy Little Bear, supra note 29.

37.

The Buffalo Treaty, supra note 5.

38.

Corntassel, Ambers & Baker, supra note 2.

The Rights of Nature Movement and the Bayano region in Panama: The Inclusion of Inalienable Rights and Indigenous Guardianship

By Gabriel Yahya Haage

Gabriel Yahya Haage is a McGill University student in Public Administration and Governance. He holds a PhD in Renewable Resources and a Bachelor's in Biology, all from McGill University. His research has focused on HumanWildlife Conflicts and Indigenous cultures.

21

Introduction The Rights of Nature movement argues that nature must be given inalienable rights, similar to human rights.1 The rights include nature’s right to continue its ecosystem processes unaffected by human activity.

Indigenous communities are seen as natural stewards for this new paradigm.2 This would allow an expression of kinship between Indigenous communities and the rightsbearing community that makes up nature.

After all, according to many Indigenous views, humans are one part of a community that “includes and weaves all things in the world (and universe)."3 I argue that the ecosystem of Panama's Bayano region should have the inalienable right to exist and that Indigenous communities should act as its stewards. The Bayano region is an especially interesting case study because it illustrates how previous attempts at environmental protections, as well as seemingly favourable legal proclamations, can fall short. A Rights of Nature approach can be a useful alternative: it would aid in protecting the environment, while strengthening Indigenous communities’ rights in the region.

Looking at the Bayano region allows us to see the falseness in the argument put forward by the government during the Inter-American Commission on Human Rights investigation, that past legal decisions already adequately protect the area and the inhabitants.4 Even decisions that agreed that more needed to be done fell short of true protection, as discussed below.

Background on the Bayano region in Panama In 1976, the Bayano dam, a significant project in the jungle region of the Darien, was completed, leading to the flooding of Indigenous land and the relocation of Indigenous communities.5 The struggle for land tenure recognition has been an important issue for the region, particularly as more outsider agriculturalists have come to settle in the region. As such, there are tensions between the Indigenous individuals and the non-Indigenous “Campesinos.”6 It should be noted that the increase in settlers is tied directly to construction in the area, which has opened up access to the region.

This is the case for the Bayano dam, as well as the Bayano bridge.7 As the Bayano dam was being built, many Indigenous Guna were relocated to other regions in their reserve, which in 1996 was eventually re-demarcated to take into account the relocations and invasions of outsiders.8 The Indigenous Emberá were primarily relocated to Piriati Emberá and Ipetí Emberá, which were turned into “Collective Lands” in 2014 and 2015.9 Other communities, such as the Majé Emberá, are still struggling to get any meaningful land tenure recognition.10

Past Legal and Legislative Efforts This section highlights two past legal and legislative efforts at the intersection

22

of environmentalism and land tenure recognition in the Bayano region, both of which fell short. Both the Inter-American Commission on Human Rights (Commission) and the Inter-American Court on Human Rights (Court) tackled the issues in the region on behalf of the Indigenous Bayano residents, including the land tenure struggles. The documents from the Commission, as well as the judgment from the Court, found that the Panamanian government had failed the region’s Indigenous communities.11 However, these legal explorations and proclamations were incomplete. Significantly, the Commission only considered nature in relation to people.12 The environment was only considered instrumentally, in terms of what it allows the local individuals to accomplish, including maintaining Indigenous lifeways.

What is missing is an understanding that nature should have inalienable rights.

The legislative attempts at regional environmental protection have also left much to be desired. There is often tension between conservation efforts, specifically protected areas, and the needs of Indigenous peoples.13 Such tension arose in the Majé region of Bayano when in 1996 the Panamanian government designated the region as the Majé Hydrological Reserve.14 While such designations can be useful, this one has been criticised.15 As Bayano Emberá Cacique (Chief) Lázaro Mecha explains, it has weakened the Majé Emberá’s argument that their land tenure should be recognized, since government agencies do not permit Indigenous land tenure on hydrological reserves.16 More pragmatically, the treefelling industry is still working in the region, as the government continues to turn a blind eye towards it.17

23

Notably, there have been attempts to mediate this, but with little effect. For instance, the Panamanian government passed a law that would allow Indigenous communities in environmentally protected areas to still hold land tenure rights.18 Unfortunately, transaction costs for Indigenous communities, including gathering geographical information and paying for legal services, have made such possibilities difficult in practice.

There have been several other legal decisions tied to the Bayano region, but these two case studies, lying at the intersection of Indigenous rights and environmentalism, illustrate the conventional approach’s failure. In one, the focus on Indigenous rights only indirectly considered the environment. In the other, the focus on preservation negatively impacted the Indigenous population. Both miss key aspects of Indigenous kinship perspectives.

After all, Indigenous kinship perspectives include inseparable interrelations between the human and the nonhuman, along with an inherent value to each human and nonhuman participant.

Panama and the Rights of Nature Movement Panama has made progress in tentatively embracing a Rights of Nature perspective.

The Rights of Nature were included in both a Panamanian law on the protection of sea turtles and their habitats19 as well as a more general statute on Panamanian nature.20 More practically, a Rights of Nature perspective was partially responsible for a mining project in Panama being shut down, as advocates

made reference to the concept of Mother Nature in their arguments.21 Considering this momentum, the time is ripe to apply the argument for Rights of Nature more frequently, in places like the Bayano region. A move like this would help codify Indigenous communities as stewards of natural areas.

This was considered favourably in some declarations regarding the Bayano region, such as those detailing where the Guna should be relocated.22 Unfortunately, existing legislation and previous court decisions can slow down such broad application. However, there is a strong argument for establishing the foundational primacy of the Rights of Nature paradigm.

Rights of Nature advocates hold the view that Natural Law is more foundational than human-made law.23 Furthermore, advocates reference the basic human instinct to grant implicit intrinsic rights to nature, even when the prevailing arguments were anthropocentric (and nature only had, explicitly, instrumental value).24 International law and domestic Panamanian law already interact in the area of environmental harm. A recent example is the First Quantum mining project, whose contract was deemed unconstitutional by Panama’s Supreme Court.25 In this case, Panamanian constitutional law engages with international legal structures, involving a transnational corporation and international arbitration

agreements. Rights of Nature advocates hope to invoke claims analogous to other international obligations that can supersede other agreements. International declarations have inspired Rights of Nature efforts: the Universal Declaration of the Rights of Mother Earth is modelled after the United Nations’ Universal Declaration of Human Rights.26

Indigenous Communities as Nature Protectors Indigenous communities and their strong kinship relationships with nature have been at the forefront of the Rights of Nature movement.

For instance, when Rights of Nature advocates held tribunals in Peru, Indigenous peoples played key roles.27 Indigenous scholars continue to explore the relationship between Indigenous kinship and the Rights of Nature.

For example, Bayano Emberá Cacique (Chief) Lazaro Mecha explains: “Does the earth belong only to humans? Do only humans have rights?

No, it's not like that.”28 He adds that “[p]lants and animals and rivers and land all have rights.

We always want to remember this truth.”29 The Panamanian government has already considered some Indigenous communities as well-placed to protect the environment, even in the Bayano region.30 This was an argument put forward regarding where Indigenous communities would be relocated when the

24

dam was being built.31 Recognizing nature’s inalienable rights offers increased protection to the ecosystem and crucially gives powers to Indigenous communities, who are the rightful stewards of the land.

The inclusion of the direct views of Indigenous scholars is vital in all endeavours that involve them. I asked one Bayano Indigenous leader, with whom I have collaborated in the past, to offer his view on the topic of Rights of Nature for Bayano, as well as the importance of Indigenous communities as protectors of these rights. His response is given here, with permission and minimal editing: “The Bayano Region is currently organised by Indigenous congresses. I, Lazaro Mecha, speak as the Indigenous Cacique of the Majé Emberá Druá Congress of Panama (in Bayano). The history of the Indigenous communities goes back to the time when they occupied, in past centuries, Bayano regions such as the Emberá Union and Majé Cordillera regions. The construction of the Bayano Dam took place between 1972 and 1976 and, during 1973 and 1977, the Indigenous peoples living in the area were relocated. In the case of the Majé Emberá Druá people, they were forced to move on their own and under threat by the Panamanian state. This is today the Unión Emberá community. In this sense, since there is an intrinsic connection between the Emberá communities with their territory and the natural resources found in this territory, it is necessary and undeniable to protect it to ensure that they can continue living their traditional way of life and that their cultural identity, social structure, economic system, customs, beliefs and distinct traditions are respected, guaranteed and replenished by the Panamanian state. The right to the adjudication of the collective property of the Majé Emberá Druá territory, one of the special issues for the Indigenous peoples, has been fought for decades before the Panamanian state. We consider ourselves to be the best Guardians of the Forests, as Indigenous peoples in the Bayano Region, certainly regarding the 20% of the territory we occupy at present.

Sincerely yours, Lazaro Mecha.

Indigenous Cacique of the Majé Emberá Druá Indigenous Congress Bayano Region.”32

ENDNOTES:

25

1.

See e.g. Peter Burdon, "Earth Rights: The Theory" (2011) 1 IUCN Academy Envtl L e-J 1.

2.

See e.g. Amy Cherpako, Nature's Rights are Human Rights: Revitalizing Indigenous Land Stewardship Through Legal Personhood (Master's thesis, University of Manitoba, 2023), online: <https://mspace.lib.umanitoba.ca/server/api/core/bitstreams/16b0ddc1-93a6-44d8-

9089-2b14140592a9/content>.

3.

Mandy Li-Ming Yap & Krushil Watene, "The Sustainable Development Goals (SDGs) and Indigenous Peoples: Another Missed Opportunity?" (2019) 20:4 J Human Development & Capabilities 451 at 457.

4.

Kuna Indigenous People of Madungandí and Emberá Indigenous People of Bayano and Their Members v Panama (2012), Inter-Am Comm HR, No 125/12 Report on the Merits, Case No 12.354 at paras 32–41 [Merits Report], online (pdf): <https://www.oas.org/en/iachr/decisions/ court/12.354FondoEng.pdf>.

5.

Alaka Wali, Kilowatts and Crisis: Hydroelectric Power and Social Dislocation in Eastern Panama (Boulder, Colo: Westview Press, 1989) at 62.

6.

Ibid at 169; Merits Report, supra note 4 at paras 186–7.

7.

Will Miller, Historical Logging in Eastern Panama: Genesis of a Socio-Ecological Landscape (McGill University ENVR 451 Paper, Smithsonian Tropical Research Institute, 2014) [unpublished] at 20–1, online (pdf): <https://www.mcgill.ca/pfss/files/pfss/historical_logging_ in_eastern_panama_-_genesis_of_a_social_ecological_landscape_0.pdf>.

8.

Merits Report, supra note 4 at para 3.

9.

Mathieu Guillemette et al, "Building a common description of land cover in a tropical watershed plagued with intercultural conflicts: The value of participatory 3D modelling" (2017) 2:1 Facets 195 at 198.

10.

Ibid.

11.

Merits Report, supra note 4 at para 306; Kuna Indigenous People of Madungandí and Emberá Indigenous People of Bayano and Their Members v Panama (Judgment of 14 October 2014), Inter-Am Ct HR at para 146, online (pdf): <https://www.corteidh.or.cr/docs/casos/articulos/ seriec_284_ing.pdf>.

12.

Merits Report, supra note 4 at paras 229–43.

13.

See e.g. Mark Dowie, Conservation Refugees: The hundred-year conflict between global conservation and native peoples (Cambridge, Mass: The MIT Press, 2009).

14.

Instituto Nacional de Recursos Naturales Renovables (INRENARE), (1996) Gaceta Oficial 23169, 8 (“Por la Cual se Crea la Reserva Hidrologica de Maje” [By which the Maje Hydrological Reserve is created]).

15.

Cacique (Chief) Lázaro Mecha, speech to Dr Alejandro Castillero, ombudsman (Congreso General Extraordinaria Majé Emberá Drúa, Comunidad Unión Emberá, 26 January 2018) [unpublished].

16.

Ibid.

17.

Ibid.

18.

El Ministerio del Ambiente, “Establecen requisitos que deben cumplir comunidades indígenas para obtener visto bueno antes de la adjudicación de tierras colectivas por parte de la anati” (13 December 2019), online: <https://miambiente.gob.pa/establecen-requisitos-que-debencumplir-comunidades-indigenas-para-obtener-visto-bueno-antes-de-la-adjudicacion-de-tierrascolectivas-por-parte-de-la-anati/>.

19.

Ley 371 Que establece la conservación y protección de las tortugas marinas y sus hábitats en la República de Panamá [Law 371 Which establishes the conservation and protection of sea turtles and their habitats in the Republic of Panama], La Assemblea Nacional, 2023, Gaceta Oficial Digital No 29730-A, online (pdf): <https://www.gacetaoficial.gob.pa/pdfTemp/29730_A/ GacetaNo_29730a_20230301.pdf>.

20.

Ley 287 Que reconoce los derechos de la Naturaleza y las obligaciones del Estado relacionadas

26

con estos derechos [Law 287 Recognizing the Rights of Nature and the Related State Obligations], La Assemblea Nacional, 2022, Gaceta Oficial Digital No 29484-A, online (pdf): <https://www.gacetaoficial.gob.pa/pdfTemp/29484_A/GacetaNo_29484a_20220224.pdf>.

27

21.

Brett Wilkins, “‘Huge Win for the Planet' as Panama Court Shuts Down Massive Mine" (29 November 2023), online: <https://www.commondreams.org/news/copper-mine-panama>.

22.

Wali, supra note 5 at 66.

23.

Cormac Cullinan, "Earth Jurisprudence" in Nathanaël Wallenhorst & Christoph Wulf, eds, Handbook of the Anthropocene: Humans between Heritage and Future (Cham, Switzerland: Springer International Publishing) 563.

24.

Geoffrey Thomas, “Valuing and Relating to the More-Than-Human World: Latour, Haraway and the Life Frame of Values” (MSc Thesis, Central European University, 2020) [unpublished], online (pdf): <https://libsearch.ceu.edu/ view/action/uresolver.do?operation=resolveService&package_service_ id=1070363580008861&institutionId=8861&customerId=8860&VE=true>.

25.

“First Quantum initiates international arbitration on Cobre Panama mine", Reuters (1 December 2023), online: <https://www.reuters.com/markets/commodities/first-quantumstarts-international-arbitration-cobre-panama-mine-2023-12-01/>.

26.

Cormac Cullinan, “The Legal Case for the Universal Declaration of the Rights of Mother Earth” (Global Alliance for the Rights of Nature, 2010), online (pdf): <https://www.garn.org/wpcontent/uploads/2021/09/Legal-Case-for-Universal-Declaration-Cormac-Cullinan.pdf>.

27.

Rights of Nature Tribunal, Final Verdict: International Tribunal for the Rights of Nature (Lima, 2014), online (pdf): <https://www.rightsofnaturetribunal.org/wp-content/ uploads/2018/04/final-veredict-lima-tribunal.pdf>.

28.

Mecha, supra note 15.

29.

Ibid.

30.

Wali, supra note 5 at 66.

31.

Ibid.

32.

Translated by the author.

Kinship Relationality and Custodial Ethics: First Nation Knowledge Systems in Australia Pat Dudgeon & Abigail Bray Professor Pat Dudgeon AM BAppSc GDip(Psych) PhD FAPS FAHMS, is from the Bardi people in Western Australia. She is a psychologist and professor at the Poche Centre for Aboriginal Health and the School of Indigenous Studies at the University of Western Australia. Her area of research includes Indigenous social and emotional wellbeing and suicide prevention. Professor Dudgeon is the director of the Centre of Best Practice in Aboriginal and Torres Strait Islander Suicide Prevention at UWA. She is also the lead chief investigator of a national research project, Transforming Indigenous Mental Health and Wellbeing that aims to develop approaches to Indigenous mental health services that promote cultural values and strengths as well as empowering users. She is a board member of Gayaa Dhuwi (Proud Spirit) Australia, Board Director of Australian Indigenous Psychologists Association. She was a Commissioner with the National Mental Health Commission and currently a member of Advisory Group to the National Office of Suicide Prevention. Professor Dudgeon has many publications in Indigenous mental health, in particular, the Working Together Aboriginal and Torres Strait Islander Mental Health and Wellbeing Principals and Practice 2014 and the Lancet Commission on Self-Harm (2024). Also of note, is the Aboriginal and Torres Strait Islander Suicide Prevention Evaluation Project (ATSISPEP) in 2016. This ground-breaking report identified the central importance of Indigenous culture and leadership at all levels and has had significant policy and practice impact.

Abigail Bray (PhD) was born in Gogledd Cymru/North Wales and grew up in Kernow/Cornwall and is of Celtic descent, has a background in women and girls' mental health and activism, has published widely in the area, and is an inductee in the West Australian Women’s Hall of Fame. Her work has been presented at The Hague, the House of Lords (UK), and in Australia at the Supreme Court, and Parliament House. She has worked with Pat Dudgeon and colleagues for the last ten years on a range of projects, including the National Empowerment Project, the Aboriginal and Torres Strait Islander Suicide Prevention Evaluation Project, and Transforming Indigenous Mental Health and Wellbeing, contributing to key research and policy outputs.

28

Planetary ill health has largely come about as humans have forgotten their relationship and responsibility to country. The restoration of this relationship is crucial for planetary well-being.1 The land now called Australia is Mother Earth’s largest island and has seven climate regions—mediterranean, oceanic, tropical savanna, humid subtropical, equatorial, semiarid, and hot desert—with the vast Pilbara region in northwestern Australia estimated to be 3.6 billion years old.2 A megadiverse land with 80% unique or endemic flora and fauna such as emus, kangaroos, platypus and koalas, banksia, and kangaroo paws, since colonization half of her forests and bushland have been destroyed,3 over one hundred species of her flora and fauna are now extinct,4 and the rate of mammal extinction is the highest in the world.5 Escalation in extreme weather events related to climate change has resulted in mass fires and floods in Australia, with over 33,000 spectacled and black flying foxes dying across two days in a 2018 heatwave6 and 25,000 koalas dying in the 2019-2020 ‘Black Summer’ fires, which also led to the death and displacement of up to 3 billion more-than-humans.7 As First Nation leaders stated: “[w]e are hurting in the face of unprecedented drought, extreme heat, environmental pollution and the destruction of Country and culture.”8 Destruction of Country is a determinant of First Nation wellbeing and mental health while caring for and connecting to Country supports holistic, collective flourishing.9 Despite the vastness of the island and the multiplicity of First Nation cultural language groups—estimated to be over 250 prior to colonization10—a recognition of kinship with, and as, Country is a uniting First

Nations worldview and system of eco-centric governance.11 Caring for, respecting, guarding, listening to, learning from, and loving Country are recognized as sacred duties and Law across First Nations peoples in Australia who are recognized as Mother Earth’s oldest continuing cultures, over 60,000 years old. 12 One of the many different names for the force which creates Country is Nyitting (Noongar people) and Tjukurpa (Anangu people), often called the Dreaming, a generative consciousness which connects, and is, past, present, and future.

Country is a First Nations philosophical and spiritual concept describing the web of life’s interconnected kinship, including stars, skies, seas, protists, earth forms, rivers, fungi, animals, humans, spiritual beings, bacteria, plants, each of which have entangled intelligence, self-organizing cultures, stories, pasts, presents, and futures. For example, the Martu women rangers know that “each plant has its own songs, places, stories and laws.”13 As a Walpari man said, “punu munu puli watiyatjara, punu kulinytja, apu kulinytja, watiya (Trees and rocks have subjectivity, tree thinking, rock thinking, we call that watiya).”14 Or as the Bawaka Country collective write: “[w]e don’t need to know what starfish know.

But we should know they live and experience and think beyond us. We should seek respect and be aware of how our lives are entangled, how we co-become.”15 Profoundly, First Nations people have described subjectivity as “an extension of the earth,”16 or Country. The self is therefore not limited to the mind but is an expression of a dynamic entanglement with a thinking Country. From this perspective the concept of mind or consciousness is much more expansive and complex than in dominant Western

29

psychological concepts of the individual self.

Kinship relationality, or to use one word for this, gurrutu, “is what makes land and what makes a person who they are.”17 Kinship relationality, or First Nation philosophy of consciousness, has also been described as pattern thinking.18 As Palyku woman Kwaymullina explains, First Nations pattern thinking is an expression of the Law of relationality: “[i]t was Law that sustained the web of relationships established by the Ancestors, and the web of relationships established by the Ancestors formed the pattern that was life itself. This pattern – being life – is everywhere.”19

From a First Nations perspective, flourishing is de-colonial, collective, and ecocentric, extending beyond dominant Western psychological understandings of the individual.26 In Australia, the developing relational paradigm of First Nations flourishing, social and emotional well-being (SEWB), articulates philosophies of ecocentric relational health. Composed of seven entangled wellbeing domains (mind and emotions, body, family, community, culture, Country, and spirit) and shaped by cultural, social, historical, and political determinants, SEWB is founded on First Nations therapeutic knowledges developed with and on Country across millennia.27 This paradigm includes Restoring and maintaining balance is taught knowledge of the complex, traumatic, and

by Country and is a Law informing First ongoing impact of colonization on First Nation interconnected relational Knowledge Nations collective wellbeing, validates the Systems—forms of knowing, doing, and being positive holistic health impacts of social, that encompass all aspects of life and death, political, environmental and cultural selfdeveloped, refined, and vetted across millennia determination, and de-colonizes psychology of shared collective experiences, much of which by re-centering First Nation therapeutic is sacred and secret. Country teaches, and is, knowledge systems.28 Restoring harmonious kinship relationality. Country is consciousness and balanced connections to all of the and “the logos of the law,”20 the generator of interconnected domains of wellbeing is tied to a “more-than-human… moral force.”21 The the health of the land and Country.

Law “lives in all things and emanates love,”22 a more-than-human love, which communicates In many respects this understanding is a “obligations and responsibilities, such as wellbeing Law underpinning First Nations custodial obligations to ruie [homelands] that knowledge systems. The escalating health bind future generations.”23 This is also referred and wellbeing impacts of a disrespectful to as the “custodial ethic” and extends to the relationship with Mother Earth are now clear— cultivation of “qualities of mind, character, international health bodies are sounding and behaviour.”24 The ethical underpinnings of continuous warnings about the urgent need to kinship relationality are based on love, respect, transition to another way of living in the face and reciprocity not only for other humans but of the rapidly moving planetary health crisis.29 for Country and the multiplicity of sentient For First Nations people, kinship relationality beings. Respect is relational because it is is a de-colonial project, one caught up with the mindfulness about the balance of exchange, defence and protection of the health of Country, the kinds of reciprocities created through the land, and peoples. To restore the health and process of connection. “Living together as we wellbeing of Country and people, First Nations and not me, means we consider every living Australians have identified the centrality of being to be part of the whole environmental “equitable governance over their traditional living system.”25 lands.”30

30

ENDNOTES: 1.

Veronica Matthews et al, “Justice, culture, and relationships: Australian Indigenous prescription for planetary health” (2023) 381 Science 636, DOI: <10.1126/science.adh9949>.

2.

Daniel Wiemer et al, “Earth's oldest stable crust in the Pilbara Craton formed by cyclic gravitational overturn” (2018) 11:5 Nature Geoscience 357, DOI: <10.1038/s41561-018-0105-9>.

3.

Corey JA Bradshaw, “Little left to lose: deforestation and forest degradation in Australia since European colonization” (2012) 5:1 J Plant Ecology 109.

4.

JCZ Woinarski et al, “Reading the black book: The number, timing, distribution and causes of listed extinctions in Australia” (2019) 239 Biological Conservation 1.

5.

Emily Roycroft et al, "Museum genomics reveals the rapid decline and extinction of Australian rodents since European settlement" (2021) 118:27 Proceedings National Academy Sciences 1.

6.

Frances Mao, “How one heatwave killed ‘a third’ of a bat species in Australia”, BBC News (15 January 2019), online: <https://www.bbc.com/news/world-australia-46859000>.

7.

Reece Walters, “Ecocide, Climate Criminals and the Politics of Bushfires” (2023) 63:2 Brit J Crim 283.

8.

Emergency Leaders for Climate Action & Climate Council, "First Nations Climate Justice: Written summary of the online panel" (2021) at 13, online: <https://emergencyleadersforclimateaction.org. au/wp-content/uploads/2021/07/First-Nations-Climate-Justice-panel-Climate-Council.pdf>.

9.

Michael Wright et al, "Climate change, social and emotional wellbeing, and suicide prevention" (2023) at 13, online: <https://www.indigenousmhspc.gov.au/getattachment/32fdaaa1-71f8-4931a9b7-7e42f8e9e130/wright-et-al-climate-change.pdf?v=1500>.

10.

Commonwealth of Australia, "National Indigenous Languages Report" (2020) at 13, online: <https://www.arts.gov.au/sites/default/files/documents/national-indigenous-languages-reportlowres.pdf>.

11.

Morgan Brigg, Mary Graham & Martin Weber, “Relational Indigenous systems: Aboriginal Australian political ordering and reconfiguring IR” (2021) 48:5 Rev Intl Studies 891.

12.

Matthews et al, supra note 1.

13.

Country Needs People, "Strong Women on Country: The success of women caring For country as Indigenous Rangers and on Indigenous protected areas" (2016) at 88, online: <https:// d3n8a8pro7vhmx.cloudfront.net/thecountryneedsitspeople/pages/3135/attachments/ original/1526264838/Strong_Women_on_Country_report.pdf?1526264838>.

14.

Leon Petchkovsky, "‘Stream of consciousness’ and ‘ownership of thought’ in indigenous people in Central Australia" (2000) 45:4 J Analytical Psychology 577 at 587.

15.

S Wright et al, “Gathering of the Clouds: Attending to Indigenous understandings of time and climate through songspirals” (2020) 108 Geoforum 295 at 300.

16.

Aileen Moreton-Robinson, Talkin’ up to the White Woman Indigenous Women and Feminism (Minneapolis: University of Minnesota Press, 2000) at 19.

17.

Kate Llyed et al, “Reframing Development through Collaboration: Towards a relational ontology of connection in Bawaka, North East Arnhem Land" (2012) 33:6 Third World Q 1075 at 1088.

18.

See e.g. N Blair, “Mapping Knowledge Patterns—Indigenous Thinking” (Seminar paper delivered at the Faculty of Education, University of Newcastle, 2001) [unpublished]; Vicki Grieves, “Aboriginal Spirituality: A Baseline for Indigenous Knowledges Development in Australia” (2008) 28:2 Can J Native Studies 363; Ambelin Kwaymullina, “Seeing the Light: Aboriginal Law, Learning and Sustainable Living in Country” (2005) 6:11 Indigenous L Bull 12, online: http://classic.austlii.edu.

31

au/au/journals/IndigLawB/2005/27.html [Ambelin Kwaymullina]; David Mowaljarlai & Jutta Malnic, Yorro Yorro: Everything Standing up Alive: Spirit of the Kimberley (Broome, W Australia: Magabala Books, 2001); Tyson Yunkaporta & Doris Shillingsworth, “Relationally Responsive Standpoint” (2020) 8 J Indigenous Research, DOI: <10.26077/ky71-qt27>.

32

19.

Ambelin Kwaymullina, supra note 18 at 13.

20.

CF Black, “On Lives Lived with Law: Land as Healer” (2016) 20 L Text Culture 164 at 165.

21.

Miyarrka Media with Paul Gurrumuruwuy et al, Phone & Spear: A Yuta Anthology (Cambridge, Mass: Goldsmiths, 2019) at 213.

22.

Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (New York: Routledge, 2015) at 12.

23.

Ibid at 14.

24.

Simone Thornton, Mary Graham & Gilbert Burgh, “Place-based philosophical education: reconstructing ‘place’, reconstructing ethics” (2021) 17 Childhood & Philosophy 1 at 13.

25.

Anne Poelina et al, “Regeneration time: ancient wisdom for planetary wellbeing” (2022) 38:3–4 Australian J Environmental Education 397.

26.

Pat Dudgeon, Abigail Bray & Roz Walker, “Embracing the emerging Indigenous psychology of flourishing” (2023) 2 Nature Reviews Psychology 259.

27.

Graham Gee et al, “Aboriginal and Torres Strait Islander Social and Emotional Wellbeing” in Pat Dudgeon, Helen Milroy & Roz Walker, eds, Working Together: Aboriginal and Torres Strait Islander Mental Health and Wellbeing Principles and Practice, 2nd ed (Commonwealth of Australia: 2014) 39.

28.

Pat Dudgeon et al, “Decolonising psychology: Validating social and emotional wellbeing” (2017) 52:4 Australian Psychologist 316.

29.

Carlos Corvalan et al, “Mental Health and Climate Change: Policy Brief” (World Health Organization, 2022), online: <https://iris.who.int/bitstream/hand le/10665/354104/9789240045125-eng.pdf>.

30.

Matthews et al, supra note 1 at 641.

The Other Story in the Room

By Amélie Ward

Amélie Ward is a French-Lebanese anthropologist with a PhD from McGill University. She specializes in Indigenous studies, settler colonial studies, as well as in medical and psychological Anthropology. Amélie conducted fieldwork in the southeast of Australia, in Narrm/Melbourne, with Indigenous artists. She witnessed and documented how artists used art to reclaim their culture, territory, and to foster community healing. For her PhD, she produced collaborative research designed to inform artist Maree Clarke’s living archive. Through her research, she focused on Indigenous resistance to settler colonial violence and traced past and ongoing colonial mechanisms of erasure and effacement of Indigenous presence and history. Amélie is also a filmmaker interested in portraiture and experimental videography.

33

October 2019. In the University of Melbourne’s Old Quadrangle, which everyone calls the “Old Quad,” a glass eel trap, modeled after a traditional trap, is suspended from the roof above a mirror resting on the floor. The room’s lighting refracts through the glass, which in turn creates reflections in the mirror.

The trap’s ribbons are at once substantial, and yet thin and fragile. Looking at the overall design, the trap makes me think of a skeleton or a spine. Looking through the glass circles feels like looking at ripples on the surface of water. The transparency of the glass embodies actual, living glass eels, whose larvae, during their migration from the coast, become transparent —or “glass”— and remain that way until their return to freshwater, where their skin gains pigmentation.

In the background, there is a 1837 map of the land on which the university is situated.

The map shows a salt lake located some distance away from the main buildings, as well as the old waterways that run beneath the university. These early maps show us that there was a swampy area in the centre of the university—probably a billabong1—as well as a watercourse that crossed through the site.

The water story that exists under our feet is thousands of years old.

The glass eel trap exhibition, titled “Ancestral Memory,” was created by artist Maree Clarke (Wamba Wamba/ Yorta Yorta/ BoonWurrung/ Mutti Mutti) and architect Jefa Greenaway (Wailwan/Kamilaroi). The Old Quad, located behind a corridor and under a series of brown brick arcades, is one of the university’s oldest buildings, dating back to the 1850s. It is made of wood and elegant; the lights are dim, and the room has a certain seriousness. After a series of renovations, it became an art exhibition room, and “Ancestral Memory” was the first

exhibit.

The Old Quad was originally designed to align with a public square on Grattan Street.

Jefa, however, reveals that building plans “had to shift to accommodate the marsh, and it was built according to ‘the path of least resistance.’”2 A wetland in fact resists construction, specifically foundation-laying, yet is simultaneously a grounding area— because it contains traces of history. Marshy areas, such as the billabong upon which the university is located, thus hold ambivalent powers. While settlers attempted to tame this area, the land kept resisting.3 The resistance that builders encountered in creating the Old Quad is now understood because of the eels’ ancestral water route.

The eels’ migratory journey lasts a full year: they leave Melbourne’s salt waters, migrate to New Zealand, then to South America, Asia, and Oceania’s fresh waters, and then back to Australia again.4 Eels live through cyclical time. Once they arrive in Melbourne, Jefa explains, they may swim along their ancestral track back up to what is now “the stormwater pipes of the university”—even though this journey is now concealed by city buildings and concrete roads.

From the descriptions on the exhibition wall and the maps behind the installation, the viewer comes to understand that, uncannily, the university is literally built on top of the habitat of eels. As Jefa confirms, the eels continue to “rear their heads up in some of the ponds and stormwater grates that exist on the campus.”5 In addition to these testimonies, Jefa’s research was also inspired by four river red gum trees growing on campus, which indicate waterways. These trees, he explains, “are estimated to be 300–400 years old” and show that the eel route through the university

34

waterways is “a pre-contact story.”6 While the water site has become difficult to swim to, the eels persist.

I am interested in the role of art in reclaiming a relationship with eels, knowing that erasing

university. The power of artwork, I suggest, is perhaps to snap the public out of a type of colonial oblivion. In a sense, the eels’ resurfacing—literally and artistically, through the storm grates and through Maree and Jefa’s art—presses upon us the other story in the room.

Maree explains: “Landscape is a lot of things, but to me, it is also Country.” Country is a widely used term amongst Indigenous Australian communities7 to speak of their lands, waters, sky, family, and kinship ties to other living beings.8 The term landscape, so commonly used in popular English, was born in the sixteenth-century Netherlands to define a particular mode of painting, and clearly fails to embody the multi-layered nature of Country. Deborah Bird Rose explains, for instance, that for the Yarralin people living in the Northern Territory, the concept of Country holds a moral proposition: “care of Country is a matter of both self-interest and interest for others. An understanding of connectivity promotes longterm purposefulness.”9 The city of Melbourne, named Narrm in WoiWurrung language, was built on land of the Kulin Nations.

Narrm is located specifically on the in-land northern Wurundjeri Woi Wurrung Country, and the Maree Clarke, Glass Eel Trap, part of Ancestral southern BoonWurrung Country.10 Memory held at Melbourne University Old Quad, August 2019. Picture by the author.

Narrm has been a site of gathering for the Kulin Nations, eels, and other living beings for thousands of years. Yet settler colonial their presence in this area was intentional expansion has made and still makes Country and strategic for the purpose of building the vulnerable, if not invisible.

35 35

In urban settler colonial contexts, fish are becoming increasingly invisible in at least two ways. First, fish are becoming scarce, as our climate crisis is in part characterized by an overall decline in fish populations. Second, their invisibility is also due to the settler states’ erasure of Indigenous legalities in Australia, Canada and elsewhere.11 In Narrm, Maree explains, “near the Old Quad was a lake that was full of fish and eels. Well, to build the Old Quad, they drained the lake, and had to install all these drainage systems underneath the building that led down Bouverie Street.

To this day, the eels still come up those pipes near the Old Quad there.” Without Maree and Jefa’s interventions, who would know that there was a 10,000-year-old billabong and swampy area beneath the academy in the heart of Melbourne?

On Gunditjmara lands—located in southwestern Victoria, from Lake Condah down to the coast, Port Fairy and Warrnambool—the Budj Bim cultural centre is now a protected UNESCO World Heritage Site, recognized for its ancestral eel farming and aquaculture designs. Archeologist Ian J. McNiven states that experts have dated this region’s eel traps to be between 2,000 and 8,000 years old. They also found evidence of “Aboriginal people digging an earthen channel (some 3 kilometers long) to move eels into a swamp to dramatically increase their range and availability.”12 Throughout what we now call the state of Victoria, we can come across various ancestral and contemporary styles of Aboriginal eel traps.13 Maree learned to weave eel traps through her mentor Auntie Connie Hart (Gunditjmara), who was born in southwestern Melbourne and lived in Footscray. Connie was a master weaver of flaxseed eel traps. In the exhibition room at the Old Quad, Connie’s traps hung

from the ceiling parallel to Maree’s glass eel trap.14 Other traps by the elder Edith Terrick (Gunnai/ Kurnai/ Bidawal) were also suspended. “I love how we can translate artworks in so many ways and mediums,” Maree explains, “and that it still tells the same story.”

Reviving the eels’ presence through art not only makes the fish visible but also makes visible the settler colonial logic of effacement.

Here, I am building on Patrick Wolfe’s argument that settler colonialism operates through a “logic of elimination”15 of Indigenous communities from their homelands. This logic also targets living beings like the eels to whom the WoiWurrung and BoonWurrung have kinship obligations. The eels, coming up the pipes and storm drains, tracing their ancestral, traditional migratory route beneath the city, thus continue to be active—if largely unseen—actors in Narrm’s life and history.

Maree and Jefa’s work with the eels make us conscious of the eels’ presence; we do not “see” them, but they are there. Imagining an entire city built upon ancestral tracks is a haunting moment that suggests (many) other absences within the city architecture.

Jefa is now working on a multi-million-dollar collaborative project with Indigenous elders and Mark Gillingham, a landscape architect, to weave the story of the eels, Wurundjeri knowledge, and the old creek system together.

The project will build an eel pond where the Bouverie Street Creek once was in the hope that the pond will attract the eels to the surface.

The eels’ journey is a connecting line between “the university’s place and its waterways, the traditional owners, Indigenous students, and international students.”16 In a way, designing the eel pond is a contemporary form of Dreaming17—or what Indigenous Australians call the “Law from the ancestors.”18 By 36 36

continuing to swim up the drainage systems, eels tell us that they are still dreaming.

The deliberate effacement of the eels was physical and psychosocial, for when they disappeared from vision they also disappeared from public consciousness. If our consciousness exists through several stratas, the unconscious can be understood as the stratas underneath: it is that which is there yet can’t be there fully, for being there may cause distress in the present state of consciousness.19 Maree and Jefa are telling us the unsettling other story in (or under) the room.

Marshy grounds—because they contain traces; because they can hide information20— resemble the human unconscious. For Freud, the human unconscious is social and relational because it ties us to other living beings. Within our unconscious, relational traces and memories are withheld until they resurface. When traces of history emerge from the wetlands, as they did on the grounds of the University of Melbourne, the past is brought into the present. By cooperating with or erasing these traces, humans forge or reject historical narratives about themselves.

ENDNOTES:

37

1.

Billabong is a borrowing from Wiradjuri and is the term for a stagnant pool, a pond created during the overflow of a river.

2.

Jefa Greenaway, “The Water Story: A conversation between Jefa Greenaway and Samantha Comte” in Ancestral Memory, Catalogue (Old Quad, Cultural Commons, 2019) at 4, online: <https:// culturalcommons.edu.au/cms/wp-content/uploads/2020/05/ancestral-memory-exhibitioncatalogue.pdf>.

3.

Stuart McLean “‘To Dream Profoundly’: Irish Boglands and the Imagination of Matter” (2007) 10:2 Irish J Anthropology 61.

4.

Greenaway, supra note 2 at 6.

5.

Ibid at 4.

6.

Ibid.

7.

The term Aboriginal refers to communities living on the continent while the term Indigenous encompasses both these communities and Torres Strait Islanders: see AIATSIS, “Indigenous Australians: Aboriginal and Torres Strait Islander people” (last modified 7 December 2020), online: <https://aiatsis.gov.au/explore/indigenous-australians-aboriginal-and-torres-straitislander-people#:~:text=Today%2C%20the%20term%20%27Indigenous%20Australian,term%20 is%20considered%20too%20generic>.

8.

Ngunnawal elder Jude Barlow explains, “Country is everything. It’s family, it’s life, it’s connection.”

(Aiatsis, 2022) She also states: “Country is the term often used by Aboriginal peoples to describe the lands, waterways and seas to which they are connected. The term contains complex ideas about law, place, custom, language, spiritual belief, cultural practice, material sustenance, family and identity.” See AIATSIS, “Welcome to Country” (last modified 25 May 2022), online: <https:// aiatsis.gov.au/explore/welcome-country>.

9.

Deborah Bird Rose, Wild Dog Dreaming: Love and Extinction (Charlottesville: University of Virginia Press, 2011) at 3.

10.

BoonWurrung Country encompasses the coast in Port Phillip and stretches from Werribee, down

the Mornington Peninsula, all the way to Wilsons Promontory.

11.

Zoe Todd, “Refracting the State Through Human-Fish Relations: Fishing, Indigenous Legal Orders and Colonialism in North/Western Canada” (2018) 7:1 Decolonization: Indigeneity, Education & Society 60, online: <https://jps.library.utoronto.ca/index.php/des/article/view/30393/23034>.

12.

Ian J McNiven, “The detective work behind the Budj Bim eel traps World Heritage Bid”, The Conversation (7 February 2017) at para 11, online: <https://theconversation.com/the-detectivework-behind-the-budj-bim-eel-traps-world-heritage-bid-71800>.

13.

Budj Bim Cultural Landscape, “Gunditjmara Culture,” online: <https://www.budjbim.com.au/ about-us/our-culture/>.

14.

The eel traps were also juxtaposed to Maree’s supersized necklaces.

15.

Patrick Wolfe, “Settler colonialism and the elimination of the native” (2006) 8:4 J Genocide Research 387 at 387.

16.

Greenaway, supra note 2 at 6.

17.

According to Goenpul researcher Aileen Moreton-Robinson, “Indigenous people’s sense of belonging is derived from an ontological relationship to country derived from the dreaming, which provides the precedents for what is believed to have occurred in the beginning in the original form of social living created by ancestral beings” (Aileen Moreton-Robinson, The White Possessive: Property, Power, and Indigenous Sovereignty (Minneapolis: University of Minnesota Press, 2016 at 11). Indigenous communities on the continent use locally specific language to speak of these ancestors and their legalities.

18.

See Barbara Glowczewski, “In Australia, it’s ‘Aboriginal’ with a capital ‘A’: Aboriginality, politics and identity” in Serge Tcherkézoff & Françoise Douaire-Marsaudon, eds, The Changing South Pacific: Identities and Transformations, translated by Nora Scott (Canberra, Pandanu Books, 2005) 135.

19.

Sigmund Freud, The Unconscious (London: Penguin, 2005).

20.

McLean, supra note 3.

38

The Direct Correlation Between Colonial Violence Against Indigenous Land and Indigenous Women: Revitalizing Indigenous Feminist Governance

By Sophia Sidarous

Sophia Sidarous is a land defender, water protector and for her Indigenous rights and environmental advocacy. Her dedication has brought her travelling throughout Canada and even to the international stage at the UN headquarters for the International Day of the Girl. She is a grassroots organizer, notably during the Wet'suwet'en crisis. She is also one of the 15 plaintiffs suing the Canadian government for inaction on the climate crisis. She has completed her Juris Doctor Degree with specializations in Aboriginal and Indigenous law, and Criminal Justice. She was the recipient of the 2023/2024 Donald Marshall Jr Memorial Award for her commitment to Indigenous peoples in the justice system.

39

Where We Have Been Climate change is the direct product of colonialism and capitalism, which aimed to eradicate Indigenous peoples and worldviews to gain access to resources.

There is a direct correlation between the violence against Indigenous land and the violence against women: Indigenous women have always been leaders and their Nations’ backbone. However, due to the systemic colonial attack on Indigenous traditional governance, women and two-spirited people have to occupy the roles of land defenders and warriors, risking grave danger to save the land for future generations. To properly comprehend where we are going as Nations, and as people, we must understand where we have been. Since contact, Indigenous women and queer folk have been targeted to clear the way for resource extraction—and as a result, they have been victimized, traumatized, and criminalized by systemic patterns of hostility.

The Foundation Built on Resource Extraction and Capitalism Despite its myth of peace and friendship with Indigenous Nations, Canada has perpetrated an elaborate, heinous, violent, and colonizing genocide against the numerous Nations in so-called Canada. This must be remembered when analyzing the foundation of lies on which Canada was built. The state required a process of appropriation and exploitation

“of the land, resources and jurisdiction of the indigenous peoples, not only for the sake of resettlement and exploitation […] but for the territorial foundation of the dominant society itself.”1 Terra Nullius, the doctrine colonial states use to describe Indigenous lands as vacant and unoccupied, continues to justify Canada’s existence on pre-existing sovereign nations and territories.2 Terra Nullius, along with the Doctrine of Discovery, are not only legal arguments for the extinguishment of Indigenous sovereignty and assertion of Canadian sovereignty but also create the presumption of shared misinformation within settler society.3 The Canadian legal framework outlines various paths for Indigenous peoples to acquire land rights, all of which recognize Indigenous peoples as the First peoples, with generally unceded land rights; but according to Canadian law, the power to control these lands is not in their hands. The common factor in the Crown’s legal approach is the goal of destroying Indigenous peoples by disconnecting them from their lands to gain unfettered access to resources and profits.

The Foundation Was Built to Target Indigenous Women All land issues are gendered due to the very nature of land: Mother Earth. To frame gender in relation to the desecration of Indigenous lands, it is important to note that gendered impacts were not residual; rather, colonization targeted Indigenous women in order to successfully acquire lands. The

40

Indian Act aimed to control Indigenous identity and Indigenous women, as clearly shown by non-Indigenous women who married an Indigenous man gaining status but an Indigenous woman who married an Indigenous man losing her status.4 This shifted the dynamic in Indigenous societies from matriarchal towards patriarchal, instilling disempowerment and inferiority in Indigenous women through loss of status.

Grassroots pressure and international humiliation eventually led to the provision’s amendment through Bill C-31 in 1985, but the scale of alienation from Nationhood, community, and family is massive.

The violence against Indigenous women has been systemic, institutionalized, and normalized since confederation. For Canada to achieve its genocidal, assimilatory goals, they must displace the core structure of Indigenous communities: Indigenous women. The Crown understood the close kinship ties Indigenous women held within their families and the prominent roles they played in communities, and attempted to sever these ties through policies establishing patriarchy, colonial and lateral violence, systemic impoverishment, lack of security and services, and perpetual racism and misogyny. The lack of identity and pride that comes with the generations of victimized communities often results in a lack of will to fight oppression internally. In the case of Bill C-31, “while this issue is of paramount importance to any community’s right to selfdetermination, it is telling that many Native people regard Bill C-31, and not the Indian Act, as the root of the problem.”5 While just words on a page, these are the stories and lived experiences of Indigenous peoples still alive today, generations of Indigenous people

41

who still bear the weight of the Crown’s unchanged motives.

Where We Are Now The intersection between gender discrimination and the theft of Indigenous lands and resources, especially in relation to the global impacts of climate change, is a pressing, dire issue. We are in an era of information with recent, well-known reports, including the Truth and Reconciliation Commission (TRC) and the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG). Access to information and coverage of these issues have never been this accessible, so why hasn’t there been more change? Demonstrable rage against the settler colonial state is still muted because change would fundamentally require the status quo (which benefits the majority of settler colonial society) to stop the flow of benefits that they directly reap from injustice against Indigenous lands and peoples.

Women on the Frontlines of Colonial Violence and Extraction Indigenous women are often the leaders and backbones of grassroots movements in communities due to the traditional roles that they have either maintained or reclaimed.

The Canadian state’s pure disregard of consent6 intersects Indigenous lands and

Indigenous bodies and is behind the current land defence and the MMIWG2S+ crises. The MMIWG Final Report identifies the areas in which Indigenous women and queer folk experience the most colonial violence: the media, sex industry, prison system, child welfare, policing, and resource extraction.7 Each area is interrelated and a target (not an incidental effect) of the Crown’s policy of violent colonialism. The MMIWG report explains the link between resource extraction projects and violence against Indigenous women and queer peoples.8 The influx of nonIndigenous, predominantly male workers in rural Indigenous communities leads to violence against Indigenous women through substance abuse, harassment and assaults, and economic insecurity.9 The constant flow of strangers into Indigenous lands (almost always without the community’s true consent) brings the disproportionate risk of human trafficking: “We know that sexual exploitation is present in mining and resource extraction projects around the world. We're not sure yet of what's happening in our communities.

We've heard anecdotally of 42 Inuit women who have been trafficked through Ottawa in the last four years. Trafficking routes include transit across the Arctic, across the east coast of Canada, as well as to Las Vegas and Miami.”10 The armed police present to enforce raids against primarily Indigenous women land defenders and community members is colonial, gendered violence. The RCMP, a safe space for racism, misogyny, and homophobia, has faced over 3,000 sexual assault complaints just by women employed by the RCMP.11 In addition to the male-dominated

paramilitary organization’s misogyny, intersectional racism means that the RCMP disproportionately targets Indigenous women and queer folks, brutalizing Indigenous peoples on systemic and individual levels.12 Here, systemic racism should be understood as something that can never change unless it ceases to function. The RCMP shares its goals with the Crown, as they are one and the same: Canadian policies of extermination, mass killings, scalping proclamations, and violent colonization have simply changed form over the years, but the goal to eliminate the Indian problem will always be in Canada’s interest.13 Canada does not consider the lives of Indigenous women valuable; breaking the kinship bonds Indigenous peoples have with each other and their lands in order to gain access to resource extraction is an intentional tactic.

The Lack of Consenting Rights for the Bodies and Lands of Indigenous Women Understanding the goals and policies that continue today, it is not surprising that Canada refuses to interpret free, prior, and informed consent as a requirement to consultation and rejects the sovereignty component of nationhood and self-determination.14 Canada holds the strict position that Indigenous peoples are not allowed ‘veto’ rights over industrial projects that affect their territories and rights.15 Canada recognizes treaty rights through s. 35 of the Constitution, but selectively: only if they pertain to hunting

42

and fishing and do not interfere with their plans.16 It does not make sense to pick only some components to recognize from a legally binding document agreed to in whole, so it does not make sense for Canada to recognize hunting and fishing rights alone without recognizing Indigenous Nations’ sovereignty, title, and inherent right to decision-making.

After all, Canada seems to ask, why negotiate if it is truly your land?

Under s. 91(24) of the Constitution, Canada claims jurisdiction over “Indians and lands reserved for Indians.” In conflict situations, Canada uses a crack-down approach to show the dominance and paternalistic superiority they have been trying to force Indigenous peoples to internalize since confederation.

This brute colonial force is why Indigenous women from coast to coast are truly in lifethreatening positions when they confront billion-dollar corporations and a state that has been trying to decimate them for centuries.

The Wet’suwet’en Crisis began in 2019 and is ongoing: the Crown refuses to cooperate with the decision made by the traditional Wet’suwet’en governance structure because it would cost them the project.17 Canada’s actions contradict their ‘reconciliation’ agenda. The Delgamuukw18 case recognized the land on which Wet’suwet’en is located as lying within the territory of the hereditary chiefs’ traditional governance, meaning that Canada broke their own standard of Rule of Law when they disregarded the facts affirmed by the Supreme Court of Canada and coerced Indian Act bands to sign onto the project.

Unfortunately, this is not an exceptional case but rather an entrenched systematic pattern that ensures justice is never served.

The use of injunctions against Indigenous peoples (and again, primarily against

43

the Indigenous women on the frontlines) is weaponized to displace Indigenous peoples, yet again, from their homelands and to hinder their ability to protect their kin. Their goal is to let the Crown actively colonize unceded Indigenous territory in order to operate extractive capitalism at the expense of Indigenous women and girls. Canada routinely imposes injunctions when its projects, like the Trans Mountain Pipeline, meet with opposition.19 Civil and criminal charges, including the threat of imprisonment, can be paired with injunctions as intimidation tactics on behalf of the Crown and/or corporations.20 During the projects that feed extractive capitalism, Indigenous women and queer folks are targeted not only by the man camps on their territory but also law enforcement, which imposes a rule of law established to extinguish Indigenous law and jurisdiction.

Indigenous women, the matriarchs of their communities, are criminalized for upholding their own Indigenous rule of law on their own territories—and then further displaced when incarcerated.21 Indigenous women, who were the matriarchs of their Nations, the mothers of Indigenous children, the siblings and aunties of their communities, and the land’s first line of defence, continue to be disproportionately targeted by foreign colonial laws and an array of systemic factors. The state’s ideology and actions mean that if Indigenous women stand to protect Indigenous lands and waters, their bodies will pay the price.

Where We Need To Go

The revitalization and active use of Indigenous law in a contemporary context is an avenue forward from the colonial problem. The main issue for Indigenous Nations and communities who want to proceed through Canadian legal frameworks is the hindrance of Indigenous rights that we ought to have under Canadian law. Despite UNDRIP’s affirmation of Indigenous rights, Nations must be wary that Canada’s continual goal throughout its history is to interpret laws and documents in order to serve their purpose. The tactics and goals of the settler colonial state have not changed, and achieving justice for Indigenous peoples within the Canadian legal framework is still as unlikely as it ever has been. The continual denial of rights, especially around autonomy and consent, and lack of recognition of systemic problems, is evidence that a new path forward, led by Indigenous rather than Canadian law, needs to be the change.

Indigenous law is often associated with ‘land back’ principles and territorial rights, but it

is deeper than that. The complex political, social, cultural, and spiritual work necessary for Indigenous societies to rebuild will be uncomfortable and take significant willpower and dedication, but it is the way forward to break away from genocide and the cycles of pain and trauma within communities.22 Revitalizing Indigenous law will also be deeply beneficial for the land, recovering and building back relationships of peace and reciprocity with its kin.23 The feeling of power and pride that protecting your kin and homelands instills within Indigenous women and their Nations is what justice looks like for Indigenous peoples.

Indigenous law must also be mutually recognized and respected to create a nation-tonation relationship between the state of Canada and Indigenous Nations to be created, but the future is up to Indigenous Nations—and the matriarchs within the Nations that have always been the decision-makers.

ENDNOTES: 1.

James Tully, “The Struggles of Indigenous Peoples for and of Freedom” in Duncan Ivison, Paul Patton & Will Saunders, eds, Political Theory and the Rights of Indigenous Peoples (New York: Cambridge University Press, 2009) 36 at 39.

2.

Michael Asch, "From Terra Nullius to Affirmation: Reconciling Aboriginal Rights with the Canadian Constitution" (2002) 17:2 CJLS 23 at 24.

3.

Ibid at 24.

4.

See e.g. Bonita Lawrence, “Gender, Race, and the Regulation of Native Identity in Canada and the United States: An Overview” (2003) 18:2 Hypatia 3 at 7–9.

5.

Ibid at 14.

6.

For a general discussion of the development of free prior and informed consent in international law, see Cathal M Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The transformative role of free prior and informed consent (Milton Park, UK: Routledge, 2015).

7.

National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming Power and Place: Executive Summary of the Final Report (Ottawa: Privy Office Council, 2016) at 22.

8.

National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women

44

and Girls, vol 1a (Ottawa: Privy Office Council, 2016) at 584–94.

45

9.

Ibid.

10.

Special Committee on Violence Against Indigenous Women (IWFA), Evidence, 41-1 (6 June 2013) (Katharine Irngaut, Manager, Abuse Prevention, Pauktuutit Inuit Women of Canada), cited in Special Committee on Violence Against Indigenous Women, A Report on Missing and Murdered Indigenous Women in Canada (March 2014) (Chair: Stella Ambler), online: <https://www.ourcommons.ca/ Content/Committee/412/IWFA/Reports/RP6469851/IWFArp01/IWFArp01-e.pdf>.

11.

The Honourable Michel Bastarache, Broken Dreams, Broken Lives: The Devastating Effect of Sexual Harassment on Women in the RCMP (Ottawa, 2020), online: <https://www.rcmp-grc.gc.ca/wam/ media/4773/original/8032a32ad5dd014db5b135ce3753934d.pdf>.

12.

Pam Palmater, “Explosive Report Finds RCMP Toxic Culture of Racism, Misogyny & Homophobia” (22 November 2020), online (blog): <https://pampalmater.com/2020/11/explosive-report-finds-rcmptoxic/>.

13.

See e.g. Pam Palmater, “Clearing the lands has always been at the heart of Canada’s Indian Policy” (1 August 2021), online (blog): <https://pampalmater.com/2021/08/clearing-lands-has-always-been-atheart/>.

14.

See generally Shiri Pasternak & Hayden King, Land Back: A Yellowhead Institute Red Paper (October 2019), online: <https://redpaper.yellowheadinstitute.org/wp-content/uploads/2019/10/red-paperreport-final.pdf>.

15.

“Trudeau says First Nations ‘don’t have a veto’ over energy projects”, Financial Post (20 December 2016), online: <https://financialpost.com/news/trudeau-says-first-nations-dont-have-a-veto-overenergy-projects>.

16.

See generally Mary Eberts, “Still Colonizing After All These Years” (2013) 64 UNBLJ 123.

17.

See Palmater, supra note 13.

18.

Delgamuukw v British Columbia, 1997 CanLII 302 (SCC).

19.

See Irina Ceric, “Beyond Contempt: Injunctions, Land Defense, and the Criminalization of Indigenous Resistance” (2020) 119:2 South Atlantic Q 353.

20.

Ibid at 354.

21.

See generally Elspeth Kaiser-Derrick, Implicating the System: Judicial Discourses in the Sentencing of Indigenous Women (Winnipeg: University of Manitoba Press, 2019).

22.

See Kimberley Matheson et al, “Canada’s Colonial Genocide of Indigenous Peoples: A Review of the Psychosocial and Neurobiological Processes Linking Trauma and Intergenerational Outcomes” (2022) 19:11 Intl J Envtl Research & Pub Health, DOI: <10.3390/ijerph19116455>.

23.

See e.g. Leanne Betasamosake Simpson “Land as pedagogy: Nishnaabeg intelligence and rebellious transformation” (2014) 3:3 Decolonization: Indigeneity, Education & Society, online: <https://jps. library.utoronto.ca/index.php/des/article/view/22170/17985>.

Defining Kinship Laws through Storytelling: The Stories of the Métis people of Willowfield, Saskatchewan

By Lawren Trotchie Lawren Trotchie, B.A., J.D & LL.M. (she/her). Lawren is a Michif/Métis woman born and raised in North Battleford, Saskatchewan. Lawren was raised in a traditional Métis family by her mother, late auntie, and grandparents. Lawren convocated from her first degree in Sociology with a minor in Crime, Law, and Justice Studies in 2015. Shortly after graduating from Sociology, Lawren attended the College of Law at the University of Saskatchewan where she obtained her Law Degree in 2018. Immediately after her law degree, Lawren began her Master of Laws (LLM) degree at the University of Saskatchewan. The title of her master's dissertation is “The Prairie Province Epidemic: A Cry for the Meaningful Inclusion of the Indigenous Perspective into the Sentencing of Indigenous People and Gladue.” Lawren convocated in June of 2022 with her LLM. In June of 2019, Lawren returned to her hometown of North Battleford, Saskatchewan to article with the Ministry of Justice in Prosecutions. That same year, she purchased her first home in the Battlefords with her boyfriend Jordan (now husband). In May of 2020, Lawren was called to the bar and began working as a Crown Prosecutor with North Battleford Prosecutions.

On August 21, 2021, Lawren married her partner of 11 years, Jordan. Since January of 2022, Lawren has been working in private practice with Matrix Law Group in North Battleford. Lawren has also been working as a Lecturer for the College of Law at the University of Saskatchewan since May of 2021 teaching Kwayeskastasowin.

46

Where are you from?

Taanday ooshchi kiiya?

These are the words that have helped situate me and have guided me throughout my entire life. It is very common in my Michif culture to introduce yourself by identifying the community you come from and saying the names of your parents. There is power in this introduction that is deeper than what can be described here in words.

Where I am from, I am not only Lawren Trotchie: I am a Métis woman from Willowfield and North Battleford, Saskatchewan. I am a descendant of a long line of proud Michif people. I am the daughter of Becky Trotchie, the niece of the late Ruby Trotchie, the granddaughter of Helen Trotchie, and the granddaughter of the late Pete Trotchie. I am the great-granddaughter of the late George Pritchard and the late Mary Percell Whitford.

This is the ancestry of my maternal side.

These are the people who have raised me and who have helped shape me into the person I am today. This is my kinship.

Whenever I think of Kinship laws, I think of the laws that were already deeply rooted into my family’s and community’s existence. I simply cannot speak about Kinship law without speaking about where I come from. They are one and the same. Through Kinship, I have a responsibility to my family and community, and my family and community have a responsibility to me. Through Kinship, I have a responsibility to the relationship that I have with the animals, the Land, and the water.

Through Kinship, I have the responsibility of maintaining these relationships and

understanding their interconnectedness.

These responsibilities have been alive long before I was born, and I cannot place their time. I have learned that our survival as a Métis Nation is dependent on respecting these relationships. As noted in A Report on the Relationship between Restorative Justice and Indigenous Legal Traditions in Canada, the well-being of a community depends on “maintaining and fostering interpersonal relationships within the community.”1 I will share with you my understanding of Kinship laws by telling three stories.

Kinship and the Responsibility to Family and Community: My great-Mushum and my great-Kokum were extraordinary people. They were translators who spoke multiple languages fluently, they were hunters, trappers, medicine and berry pickers, and their home was often home to many families. My great-Mushum bought and sold pieces of land throughout his lifetime, and my late Mushum always said to us that if we had Land, we always had a home. Our home for the Pritchards was called Willowfield. At one point, my late Mushum had approximately 34 families living in our homeland of Willowfield.

Some of these families were direct children of my great-Mushum and great-Kokum, but others were distant relatives, families who did not have a home, or people of the road allowance.2 Each family and family member had a responsibility to Willowfield as a whole to ensure that the community flourished. The adults of Willowfield would then pass down teachings to the young ones on how to carry out community responsibilities. At Willowfield, there were rock pickers,3 hunters, trappers, gatherers, gardeners, those who kept the fire

47

or those who kept the animals, and those who helped fix, build, cook, or clean. There were also the Elders and decision-makers. The Elders and decision-makers of Willowfield were my great-Mushum and great-Kokum. They made the rules and provided the consequences for breaking those rules. Kinship laws are rooted in the interconnected responsibilities between my family and me. While Kinship and the responsibility to my family and community may look different than when Willowfield had thirty-four families, Kinship is still flourishing in our family.

Kinship and the Responsibility to the Land, to the Animals, and the Water:

My whole life, I was taught the importance of being thankful for all that the animals, the Land, and the water provided to me. I grew up picking saskatoon berries, or in Michif, “lii pwayr.” They grew alongside the backroads leading to our family home. My family’s relationship with the berries in these picking spots was delicately built for generations. We would spend the whole day picking berries as a family. There was always a picnic during these berry-picking days, and we would often share bannock and tea carefully prepared by my grandmother Helen. While we did enjoy a few fresh berries as we were picking, we would collect as many pails as we could to freeze and last us over the winter. My grandparents and mom would pick pails and pails full of berries. My older brother, Peter, and I on the other hand would only fill a small pail. My grandparents’ and my mother’s berry-picking skills had long been developed and my brother and I were being taught these skills. During

48

this training, we learned that our relationship with the berries continued every July and/or August and that we did not pick the berries before they were ready or too late. Our family had developed a strong Kinship relationship with the berries, and we knew the exact time the berries would reveal themselves to us to be picked. Our relationship to the berries was very important: we only took what was necessary and never a berry more. Kinship laws were embedded in the mastery of these skills, and in gratitude for the relationship that we had developed with lii pwayr. What I have learned is that our relationship with the berries is interwoven with the laws of nature, traditional teachings, practices passed down from generation to generation, and the laws of obligation and responsibility.

Kinship and Intergenerational Interconnectedness: A renowned Métis Elder once told me that I reminded her of my great-Mushum George Pritchard. This was an honour. My greatMushum lived to 107 years old. He lived through three different centuries and fought for Métis Rights all his life. He was given cloth and tobacco plenty of times for the knowledge that he passed down. Some of the young students that he once taught are now Elders themselves. I have had the pleasure of meeting and learning from one of the Elders that my great-Mushum taught in his younger years. It was a full-circle moment and a genuine reminder that Kinship teachings last generationally. It is a memory that I share with my late great-Mushum even though he has now passed on. As each generation grows, we continue to have a responsibility to the next generation. My great-Mushum’s fight for

Métis rights included a call from the Canadian government to recognize the Métis as a nation.

While my Mushum never got the opportunity to live to see what that would look like for the future of the Michif people of Saskatchewan, today my grandmother Helen, my mom Becky, and my siblings and I are witnesses to the Métis Nation-Saskatchewan moving closer to achieving self-government. What I learned and what I continue to learn is that Kinship laws have intergenerational interconnectedness.

laws that have lived with me my entire life and will continue to live on after I pass.

These stories brought me home, home to Willowfield, the community with 34 families, the community that my great-Mushum and great-Kokum built, with tall yellow grass, no city lights in sight, the smell of fresh air, the open sky, the smell of fresh lii pwayr stained on my hands, and connected me once again intergenerationally with those who have passed on. These are only a few of the Kinship Laws that have existed in my life.

Concluding Thoughts:

Thank you to my hardworking and resilient grandmother Helen Trotchie and my mom Becky Trotchie for the Kinship laws that they have passed down to me. It is because of them that I was able to produce the work that I have with you. I am forever honoured and grateful for them. Maarsii.

I am reminded of the power of storytelling and its ability to define an experience so profoundly. It has been an honour to share my Métis history with you and the Kinship

ENDNOTES: 1.

Larry Chartrand & Kanatase Horn, “A Report on the Relationship between Restorative Justice and Indigenous Legal Traditions in Canada” (Prepared for the Department of Justice, 2016) at 7, online: <https://www.justice.gc.ca/eng/rp-pr/jr/rjilt-jrtja/rjilt-jrtja.pdf>.

2.

“Road Allowance People” in Indigenous Peoples Atlas of Canada (Ottawa: Royal Canadian Geographical Society, 2018), online: <https://indigenouspeoplesatlasofcanada.ca/article/roadallowance-people/>.

3.

The term rock picker is derived from the individuals who helped clear and remove the rocks from the soil and the land of farmers for agricultural purposes. This was the labour and employment of the rock pickers, which included my family.

49

Logo created by Isabelle Zwicker. See more at https://www.whitebuffalocraftsbyisabelle.com/.