Colonialism and the suppression of Aboriginal voice.

AuthorVermette, D'Arcy

This article examines the silencing of Aboriginal people in Canadian legal discourse. The continued colonization of Aboriginal people is represented in legal decisions which display how Aboriginal laws, evidence, and reasoning are barred from the judicial process. By relying on early precedent the Supreme Court of Canada sanctions the non-participation of Aboriginal people in resolving rights disputes. Moving beyond a historical analysis, legal thought and legal language create barriers which prevent courts from receiving Aboriginal evidence and laws. Contradictions inherent in the study of colonialism also reveal themselves in Canadian law. Even when the Supreme Court attempts to incorporate Aboriginal voice it fails. The potential for progress that was shown in the Calder decision has since been nullified and Aboriginal people continue to face barriers when confronting Canadian law. The author asserts that the continued application of legal power is representative of the ongoing colonization of Aboriginal people. This article is relevant to the Canadian legal community because it addresses serious and persistent underlying issues in the legal treatment of Aboriginal/Crown disputes.

Le present article examine comment le peuple autochtone est reduit au silence dans le discours juridique canadien. Il ressort des decisions judiciaires, oU sont exclus de la procedure les lois, la preuve et le raisonnement autochtones, que la colonisation de ce peuple se poursuit. Se fondant sur de vieux precedents, la Cour supreme du Canada sanctionne la non-participation du peuple autochtone au reglement des differends au sujet de ses droits. En sortant du cadre de l'analyse historique, la pensee et le langage du droit creent des obstacles qui empechent les tribunaux d'admettre la preuve et les lois autochtones. Les contradictions inherentes que revele l'etude du colonialisme sont aussi presentes en droit canadien. La Cour supreme echoue meme en cherchant a integrer le discours autochtone. L'espoir de progres cree par la decision rendue dans l'affaire Calder s'est maintenant evanoui; le peuple autochtone se heurte toujours a des obstacles en droit canadien. L'auteur soutient que l'application constante du pouvoir legal est un signe que la colonisation du peuple autochtone perdure. L'article est d'interet pour la communaute juridique canadienne parce qu'il aborde des enjeux sous-jacents persistants importants dans le reglement des differends opposant les Autochtones et le ministere public.

Table of Contents I. INTRODUCTION II. ABORIGINAL EXCLUSION IN LEGAL PRECEDENT III. PROBLEMS WITH USING LEGAL LANGUAGE A. Structure of Claims B. A Note on Fragmentation C. Privilege of Being "Cognizable to the law" D. Compatibility of Laws IV. THE CONTRADICTIONS OF COLONIALISM A. Statutory Interpretation and Aboriginal Voice in R. v. Blais B. Aboriginal Voice and Dichotomy in Calder C. Past Precedent and Stagnation of Colonial Legal Thought V. CONCLUSION: SOFTENING THE EDGES OF COLONIAL LAW I. INTRODUCTION

[W]hat we don't like about the Government is their saying this: "We will give you this much land." How can they give it when it is our own? We cannot understand it. They have never bought it from us or our forefathers. They have never fought and conquered our people and taken the land in that way, and yet they say now that they will give us so much land--our own land. These chiefs do not talk foolishly, they know the land is their own; our forefathers for generations and generations past had their land here all around us; chiefs have had their own hunting grounds, their salmon streams, and places where they got their berries; it has always been so. (1) I open this paper on voice with the words of David McKay, of the Nishga nation, not only for the soundness of his words but also as a symbolic attempt to place Aboriginal voice where it belongs in Aboriginal rights debates: at the forefront. Placing Aboriginal voice at the forefront is important because being heard in a dispute can depend on how much power each party has in relation to the decision-maker. In the Canadian/colonial legal context, Aboriginal people have been refused the power to interpret their relationship with the colonizer. Instead, that power is exclusive to the colonizer and is frequently left to the colonizer's legal doctrine, rules of evidence, and prerogative in determining the parameters of debate, including the specific laws that bring the parties to court.

As the colonial project continues, Aboriginal people continue to appear in the courts of the colonizer. It is often, but not exclusively, under section 35(1) (2) oft he colonizer's constitution that Aboriginal people seek to have their ways of existing protected. For Aboriginal people, colonialism is not simply an act of settling lands and extending Crown authority. Colonialism has invaded Aboriginal souls in the sense that everyday we are faced with questions of identity and dislocation. This means "that there is unfinished business, that we are still being colonized (and know it), and that we are still searching for justice." (3) The constant pressure of colonialism means that our expressions are questioned and corrected and brought in line at every legal turn. There are a few flickers of hope but these acknowledgments of Aboriginal voice usually occur in dissenting opinions, in passing or in cases with limited or no precedential value.

When I speak of Aboriginal voice in this paper, I am not necessarily referring to the use of particular Aboriginal languages or expressions of Aboriginal interests rooted in traditional beliefs or values. Language and tradition can both form a part of Aboriginal voice but for the purposes of this paper they are not specifically the focus. In this context, I am referring to a broader and more basic concept. I am referring to the full expression of the political, community, or cultural voice of Aboriginal peoples. Unhindered, it will take shape dependent upon what claims or assertions an Aboriginal community is making, what the venue is and who the audience is. Aboriginal voice is ultimately the expression of a political community crafted by historic, cultural and contemporary considerations. An essential consideration within "contemporary Aboriginal rights discourse is the problem of reconciling Aboriginal nationhood, as manifested in indigenous laws, with the Crown's unilateral assertions of sovereignty." (4) Central to this consideration is "the claim that Aboriginal peoples possess a form of sovereignty, or nationhood; more importantly, the kind of nationhood Aboriginal peoples believe they still possess predates the formation of the Canadian state." (5) Claims based in sovereignty or nationhood are set forth by distinct political communities. The expression of these distinct political communities is similar but differently focused than that offered by Larry Chartrand. (6) Professor Chartrand has shown how Aboriginal rights discourse fails to acknowledge the political dimension of Aboriginal/Crown disputes. This failure is achieved through an unwillingness to attribute responsibilities to the political authority of Aboriginal peoples in disputes with the Crown. Chartrand points out that within Aboriginal rights discourse, Canadian courts have "typically ignored the existence of Aboriginal communities as polities having a legitimate role in the management of their rights, let alone recognise that they are equal in status to federal and provincial constitutional authorities." (7) Similarly, in this paper Aboriginal voice refers to the ability of Aboriginal parties to express the totality of their claims, experiences, and worldviews in the legal process. This expression can be as simple as taking account of the Aboriginal perspective when interpreting treaties, (8) or as complex as crossing cultural barriers created by language or worldview. (9) The Aboriginal perspective on Canadian law has broadly taken shape either by calling upon the courts to take into account Aboriginal laws and worldview, (10) or by calling for equal treatment of Aboriginal laws and the recognition of Aboriginal autonomy. (11) It is important to keep in mind that the Supreme Court has created a doctrine of Aboriginal rights that applies to all Aboriginal nations. (12) The doctrine of Aboriginal rights applies to all Aboriginal peoples despite the Supreme Court creating Aboriginal rights principles on a case-by-case basis. The blanket application of Aboriginal rights doctrine means that courts have closed the door to hearing the unique expressions of Aboriginal political voices. (13) As a result, the legal process of the Canadian courts has removed the impetus for a political solution to Aboriginal/Crown disputes by effectively excluding Aboriginal expression from that legal process. (14)

This paper is not about the legal doctrine of section 35(1), although at times it will be discussed. It is not specifically about the limits of Canadian courts and whether they are doing all they can to protect Aboriginal rights, (15) although some of that will be discussed as well. Rather, this paper is about the role that Canadian courts play in Aboriginal peoples' ongoing experience of colonialism. (16) While the colonizer/colonized dichotomy might be flawed for its generality, the legal system often provides stark contrasts in which such a framework remains workable. (17) Robert Yazzie's assessment supports the framing of Aboriginal/Crown relations in a colonizer/colonized dynamic; he writes:

Postcolonialism will not arrive for Indigenous peoples until they are able to make their own decisions. Colonialism remains when national legislatures and policy makers make decisions for Indigenous peoples, tell them what they can and cannot do, refuse to sup port them, or effectively shut them out of the process. (18) The experience of colonialism is vast and varying but, for the purposes of this paper, I will limit...

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