Judy Da Silva, Slant Lake, October 2011
And the sun still shines; at least as it appears when I look outside my window, in Toronto, Ontario. Rains, however, have engulfed my heart and spirit, ever since I learned the Supreme Court of Canada ruled in favor this morning of Ontario’s “right” to permit industrial logging on Grassy Narrows (Asubpeeschoseewagong Netum Anishnabek) traditional lands.
“As long as the rivers flows and the sun shines” (referencing Treaty #3) has become the cry of resistance since December 3, 2002 when two members of the Grassy Narrows community stepped in front of a logging truck hauling timber out of clear cuts, located on their traditional territory. Their resistance has become the longest standing indigenous logging blockade in Canadian history. Make no mistake, it will continue.
“Our supreme law is the Natural Law, and our right to live our way of life on our territory is given to us by the Creator since time immemorial. Our grassroots women, youth and landusers will continue to maintain our blockade, our boycott, and our protest along with our supporters from around the world who recognize that we are standing for all life,” wrote Judy Da Silva, Clan Mother and CPT Partner (emphasis added).
The Supreme Court of Canada says that “Ontario and only Ontario has the power to take up lands under Treaty 3. This is confirmed by constitutional provisions, the interpretation of the treaty, and legislation dealing with Treaty 3 lands.” In theory, the Supreme Court of Canada represents and affirms what we determine to be the bastion of ‘the highest law of the land’- as understood within our notions of law, order, liberty and justice. Our courts and system of government is supposed to be the epitome of civilization. Thus, as the perceived bastion, the Supreme Court of Canada applied these notions and understandings in its interpretation and legal position, as it complies with applicable law.
But what is law? Who determines law? What should be encompassed within the umbrella of law? Less well known, but just as if not more important, is the understanding that there is also an oral version to each numbered treaty within Canada. For any numbered treaty to be understood, and appreciated, references to oral histories and traditions must be considered.
But if one looks at the decision from the perspective of assumed established and baseline principles of common law tradition, it makes sense. Common law, also known as precedent, is inherent within the Canadian legal system (as well as the U.S.); it basically means that law is developed by judges through decisions of courts, with heavy deference to past cases, decisions, on the principle that it is simply unfair to treat similar facts differently on different occasions. If no case decisions exist, then courts look to practices that have been developed over time. Statutes and legislation are then reviewed within this lens.
I write as a beneficiary of this common law tradition. I am not indigenous; after leaving Iran in the mid 1970’s as a very young child with my adoptive U.S., white parents, I was raised within the purview of the myths and legends of the United States. Now, as a resident of Canada, I remain a member of this dominant system that egregiously first invaded in 1492. I have also been trained within this dominant system, obtained my law degree, passed the bar exam, and practiced law in the U.S. for almost ten years prior to joining CPT. Thus, this is why I write that from a certain perspective, the decision “makes sense.”
It’s all very neat and tidy, isn’t it? We trace the lineage of justice from the past, the ‘I’s and‘t’s are meticulously addressed, and I see that in this most recent decision, with Ontario’s jurisdiction under the Constitution “proven.” Oh yes, we are told that Ontario’s power to take up lands under Treaty 3 is not unconditional, that it must exercise the honor of the Crown and that harvesting rights must be respected, and that actions for treaty infringement could arise.
Do I come across as sarcastic? In addition to proposed logging on Grassy Narrows’ traditional territory, I look to Tar Sands development, from the Northern Gateway project to the proposed Enbridge Line 9 pipeline, and the continuing resistance by the Elsipogtog community and allies to proposed shale gas fracking, among other campaigns, that continuously say “No!” to resource greed. In light of the responses and actions taken by the various provincial and Federal government entities, I have yet to be impressed by this notion and supposed protection of the honor of the crown.
Yes, I know, the Supreme Court of Canada traced the lineage via its analysis of the history of Treaty #3. “In the early 1870s, Canada was a young country looking to promote Western expansion and Confederation,” and eventually, the Ojibway “yielded ownership of their territory, except for certain lands reserved to them.”
Missing from the analysis is any recognition of oral histories or oral tradition. Missing from the analysis is the acknowledgement that in indigenous traditions, the concept of land ownership simply did not exist and because of this fact, no authority existed to transfer absolute title to the Crown. In other words, indigenous parties, to any treaty, almost universally maintain that their laws would not allow for the transfer, sale, ceding, or releasing or surrendering of land. Missing from the analysis is any recognition for the need of reconciliation.
Interestingly, the Court of Appeals, while ruling against Grassy Narrows in its decision (which then culminated with the Supreme Court hearing the case), wrote, “This process of reconciliation flows from the Crown’s duty of honourable dealing toward Aboriginal peoples, which arises in turn from the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in control of that people.” In other cases, Canadian courts have acknowledged oral traditions. Why not today? In one case, which I use when I present on the Doctrine of Discovery, a court wrote, “Canada’s Aboriginal peoples were here when Europeans came and were never conquered…the honour of the Crown requires that rights be determined, recognized and respected.”
Oh, I continue to pray that our children, our children’s children, their children, their children’s children…forgive us.
persia37 