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For the Defence_34-3_Layout 1 13-08-16 10:41 AM Page 48 OPICHI: A TRANSFORMATION STORY, AN INVITATION TO ANISHINAABE (OJIBWE) LEGAL ORDER done flawlessly this will be no panacea, but it can only help. However for those unconvinced by practise-oriented considerations, I have a deeper push still. Recall the last part of the second Opichi teaching, that the consequences of oppressive actions flow in myriad directions including to the oppressor. When our Supreme Court determines that the rate of incarceration of one group of people is worse than it’s ever been and yet the rate has been consistently described as a crisis for more than two decades, what do we have? It can’t be a crisis because ... the criminal bar has a unique interest in ensuring that the legal system that gives it life and meaning is in fact a just system. that was 25 years ago. And this says nothing about the underrepresentation of indigenous peoples on Ontario juries, with respect to which The Honourable Frank Iacobucci recently said “principles of justice and fairness for thousands of people are involved.” 34 Because justice is at the heart of a criminal lawyer’s work, it seems to me that the criminal bar has a unique interest in ensuring that the legal system that gives it life and meaning is in fact a just system. It also seems to me that if in certain respects it isn’t, all are effected, not just those who represent indigenous clients. Not all will agree with me, but for those who do, the question of remedial action arises. What You Can Do The most critical thing to understand, in my view, is that the most effective contributions you can make in addressing contemporary injustice for indigenous peoples are not directly legal. You might consider starting by focussing on yourself. By changing some of these things and reflecting them in conversation with other legal actors, you’ll have an enormous impact on the law and ultimately I believe on the over-incarceration of indigenous peoples in Canada: 1) Accept that indigenous peoples, like all peoples everywhere, are not a monolith. Our cultures are different from one another and even within them we’ll speak with myriad voices. We’ll disagree with one another. It will be public. This doesn’t mean we’re disorganized. This doesn’t mean we’re incapable of solving complex problems. It means we’re human. 2) Continue on your own time the process I tried to start here regarding understanding how Canadian law, like all legal systems, is never neutral; is always conditioned by culture. If you want a starting point for further reading, “Dispute Settlement Among the Naidanac” by Leroy Little Bear 35 is a wonderful (and comical) illustration of this. 3) For those disconnected from your ancestral history, reclaim your own origin stories and migration stories and vest them with ongoing significance for your lives today. This isn’t a challenge to anyone’s legitimate claim to be here. As treaty people, all are empowered to be here, and this through indigenous legal orders, not Canada’s exercise of colonial power. However if a critical mass of Canadians recognizes that they’re nonetheless originally from elsewhere, it will become much harder for us collectively to be oblivious to Opichi — that indigenous peoples already here had other ways of governing themselves and of being in the world. If enough of us realize this, the realization will have to matter. 4) Learn about the indigenous peoples whose traditional territory is now your home too. Learn which treaty legitimates your presence here. If you’re offended by the question, ask yourself why. At the same time, understand that you need not feel guilt about being here. From my perspective within ALO, we exist with respect to one another as treaty partners: that’s our relation. It’s a wonderful thing. This also appears to be the perspective of The Honourable Frank Iacobucci, who in his report on indigenous underrepresentation on Ontario juries, said: To my mind, the model relationship between the two groups should be partners rather than what history reveals as adversaries. First Nations do have governments, and this Independent Review has reinforced my belief in the importance of emphasizing a government-togovernment relationship that incorporates an underlying respect for cultural, traditional, and historical values that are different. It is this government-to-government relationship that must underlie the relationship between Ontario and First Nations going forward in dealing with justice and jury representation issues. 36 5) Accept that “reconciliation” is not a goal but a process. If ever we’re to live in a relation of justice with one another, our intention cannot be to reach an end-state after which historic wrongs are considered resolved and we can all move forward as if colonization never occurred. From an Anishinaabe perspective, reconciliation is the process of a return to right relationship and its ongoing maintenance. Reconciliation isn’t just about apology and compensation. The primary wrong that needs righting is the undoing of our sacred relationship as treaty partners. Partners. Indigenous peoples aren’t stakeholders. We’re not interest groups. We’re not a minority community like any other. We’re unique in that 48 FOR THE DEFENCE • VOL. 34 • NO. 3
For the Defence_34-3_Layout 1 13-08-16 10:41 AM Page 49 OPICHI: A TRANSFORMATION STORY, AN INVITATION TO ANISHINAABE (OJIBWE) LEGAL ORDER we’re partners with Canada and our justice claims are thus for partnership, not toleration. 6) Consider that you may be colonized, and if so what this means to you. I certainly am. 7) In 2008 the Ontario Superior Court of Justice handed down a decision in a case the facts for which positioned a group of indigenous persons from Kitchenuhmaykoosib Inninuwug First Nation (in Northern Ontario) at the centre of two conflicting sets of legal obligations: one from Canadian law and one from their Oji-Cree legal order. In a decision which refers numerous times to “the social contract” (but which avoids reference to the state of nature), the Court stated, “If two systems of law are allowed to exist — one for the aboriginals and one for the non-aboriginals, the rule of law will disappear and be replaced by chaos. The public will lose respect for, and confidence in, our courts and judicial system.” 37 Would you? Is all the world Menominee? Ask yourself whether you believe the recognition and revitalization of indigenous legal orders is a foundational justice issue for all Canadians. Since I do, what stands out most for me about this judicial statement is its prioritizing of order over justice, an ordinal ranking of values which causes me to consider seriously the foundation upon which Canada’s legal system rests. If you’re willing to consider the question, it’s imperative you frame it properly. The tension isn’t between Canadian law today and intentional killing. It’s between Canadian law today and what revitalized indigenous legal orders could look like today. And that could be many things. But one thing that’s certain is that it will be relevant to the needs of indigenous communities and citizens today. ALO has never been static; it has always changed with changing times. Make no mistake about it, the revitalization of indigenous legal orders isn’t about “going back” in time. It’s about looking back, to draw strength, resources, and creativity for today and for the future. Like Opichi, I believe we can transform into something stunning and powerful. Further, looking only at ALO, revitalization must be accomplished in a way that respects the lines connecting us to our nonindigenous treaty partners. To fail to do so would be inconsistent with our own law. Thus making space for indigenous legal orders is not making space for the undoing of Canada. 38 Post-transformation, Opichi sang to his father — despite years of oppression. If you’re willing to accept even a few of these challenges, you’ll be doing a lot. You’ll have noticed that although I’ve pressed you to understand it for explanatory purposes, I haven’t actually suggested that you assert law from the indigenous legal orders of your clients in your advocacy on their behalf. This is because I have grave concerns about what happens to that law when aspects of it are severed from the system that gives them meaning and are then transplanted into another legal system. I’m worried the effect will be to colonize indigenous legal orders; that the result will be an effort to transform Opichi into Menominee. I’m not saying that this will invariably result. I’m suggesting that more work needs to be done before we can know. The Canadian Human Rights Commission has decided to go forward with bringing elements of indigenous law into Canada’s legal framework. 39 I don’t support this move and I’m watching carefully to see what happens. We shall see whether that institution transforms Opichi into something that sings, or whether Opichi starts to sound suspiciously like Menominee. For those willing to wait until we can talk about how the different legal frameworks might relate to one another, there are many others working towards the revitalization of indigenous legal orders. The work is being done quickly; interest in it grows fast. Yet if you want to do something externally-focussed now, might I suggest that you help to make legal space for discussion around the revitalization of indigenous legal orders within the Criminal Lawyers’ Association and beyond, and that you work to cultivate a hunger in others to know more. Miigwec, Giminadan Gagiginonshiwan (Thanks, It’s Been Great Speaking with You) Throughout my preceding words, I’ve referred often to The Honourable Frank Iacobucci’s independent report into indigenous underrepresentation on Ontario juries. I’ve done so not only because it offers the most recent statement of the relationship between indigenous peoples and Canada’s criminal justice system, but because I hold a deep respect for the wisdom in its pages. 40 The single most striking passage for me sums up so much of what I’ve tried to say and what I hope you’re now able to bring a deeper understanding to bear upon: One of the biggest challenges expressed by many First Nations leaders and people is with respect to the conflict that exists between First Nations’ cultural values, laws, and ideologies regarding traditional approaches to conflict resolution, and the values and laws that underpin the Canadian justice system. The objective of the traditional First Nations’ approach to justice is to re-attain harmony, balance, and healing with respect to a particular offence, rather than seeking retribution and punishment. First Nations observe the Canadian justice system as devoid of any reflection of their core principles or values, and view it as a foreign system that has been imposed upon them without their consent. 41 The Iacobucci Report is informed by FOR THE DEFENCE • VOL. 34 • NO. 3 49
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