IF THERE CAN ONLY BE "ONE LAW", IT MUST BE TREATY LAW. LEARNING FROM KANAWAYANDAN D 'AAKI.

• Author: Scott, Dayna Nadine

Abstract

The paper stems from a research collaboration with the Anishini or Oji-Cree community of Kitchenuhmaykoosib Inninuwug (KI), known as the people of Big Trout Lake in the far north of Ontario. In the face of renewed threats of encroachment by extractive industries onto their homelands, the community leadership invited our research team to visit in 2017. The community was engaged in strategic planning and reflection on the work that they have done in recent years to articulate and record their own laws for the territory, and to gain recognition for those laws from settler governments. Between 2008 and 2018, the community drafted a Declaration of Sovereignty, a Governance Framework, a Watershed Declaration, and a Consultation Protocol, amongst other "operational documents" describing their Indigenous legal order. This period of community-led legal drafting was stimulated by a dispute between the community and a mining company, Platinex, that culminated in 2008 with the jailing of the Chief, four members of Council, and another community member who became known as the "KI6". Despite community members describing their obligation to protect the land drawn from the key legal concept of Kanawayandan D 'aaki, roughly translated as "keeping my land", the KI6 were convicted of contempt of court for disobeying a court order to provide Platinex with access for its drilling program. The courts' message to the community in 2008 was essentially that only "one law" could govern the land; the application of settler law on KI lands could not accommodate the community members' obligations under Indigenous law. In our collaboration, community members expressed an interest in exploring the question of whether the process of writing down their laws would assist the community in any future encounters with the Canadian legal system in disputes over resource extraction.

In this paper, we draw on the transcripts from workshops conducted in KI in 2017 to share insights into the motivations of the community in articulating their laws, and we explore the question of how to reinvigorate historic treaty interpretations so as to produce "one law" inclusive of Indigenous legal orders. We conclude that if there can be only "one law" on treaty territory, it must be a renewed and reinvigorated treaty law. We draw on principles and mechanisms from the modern treaty context, and positions emanating from the communities in recent regional negotiations, to explore how pressing decisions on the use of the land and resources could be made differently in Treaty 9 territory. In our vision, in situations where settler law says "yes" and Indigenous law says "no" to a resource extraction project, treaty law must provide a principled framework for moving forward.

Introduction

This research is part of a larger SSHRC-funded project entitled Consent & Contract: Authorizing Extraction in Ontario's Ring of Fire. (1) Both the larger project and this particular contribution are investigating the current dynamics in the far north of Ontario around contested resource extraction on Indigenous lands. Renewed threats of encroachment by extractive industries onto Indigenous homelands exist in the context of continuing controversy over the potential development of Ontario's Ring of Fire mineral deposits, sometimes called Ontario's "oil sands". (2) The Ring of Fire refers to a massive, crescent-shaped deposit of minerals including nickel, gold and most significantly chromite, for which estimates range from 20-100 years for the potential life of a mine. (3) The communities that will be immediately impacted by the development of the Ring of Fire and its associated infrastructure are small, remote Oji-Cree and Anishinaabe communities, fly-in only or with limited winter road access. These communities are struggling to overcome the trauma of residential schools, a legacy that includes a rupture in intergenerational transmission of language and laws, land and kinship relations. (4) All of these impacts are compounded by continuing colonial relations and decades of state neglect, which in some communities is manifest in youth suicide and addiction crises, and a persistent lack of access to clean drinking water. (5) The community of Kitchenuhmaykoosib Inninuwug (KI), although it is outside of the Ring of Fire region (see Figure 1 below) has established an alliance with some of these remote communities, and is interested in sharing its own experience of resisting extractive activities in the context of the renewed attention to mining. (6)

The leadership of KI reached out to members of our research collaboration and expressed an interest in exploring the question of whether the process of writing down their laws--the intense period of legal drafting that KI has engaged in over the past decade--will assist them in expected future encounters with the Canadian legal system in disputes over resource extraction. A related question is also whether a process of legal drafting similar to the one that KI has engaged in would assist Ring of Fire communities in their own defence of their homelands. We accepted the invitation to visit the community in August 2017 to facilitate the community's discussions on this topic. (7)

In this paper we draw on transcripts from the 2017 workshops to gain insight into the motivations that were driving the people of KI to articulate their laws, and we begin the investigation of the complex question of how to reinvigorate historic treaty interpretations so as to produce "one law" inclusive of Indigenous legal orders, in the specific context of Treaty 9. In Part I, we describe our theoretical orientation and methodology, in Part II we describe the context for the workshops, focussing on the 2008 dispute between KI and Platinex and the court rulings that came out of it, and in

Part III we explore the question most interesting to socio-legal scholars: how can we reinvigorate historic treaty interpretations so as to produce "one law" inclusive of Indigenous legal orders on the ground? In other words, we are beginning the work towards developing a "principled answer" to the question that Hadley Friedland poses: "[w]hat happens when Indigenous laws say, 'No', and Canadian law says 'Yes' to resource extraction?" (8) Ours is a visioning project, an exercise in articulating a shift in the jurisdictional landscape for the far north; demonstrating an alternative to the current trajectory in which Indigenous and settler laws inevitably clash. (9)

Part I: Critical Legal Pluralism and Community-Based Methods

The dynamics of resource extraction in the far north of Ontario are largely, and increasingly, shaped by the negotiation of contractual agreements. (10) These exist in a variety of forms; they include resource-revenue sharing deals between tribal councils and the provincial government, impact-benefit agreements (IBAs) between communities and companies, early exploration agreements and MOUs and framework agreements between communities and various governments and agencies over infrastructure or environmental assessment funding, among others. In all cases, the negotiations are secretive and give rise to a dynamic of competition between neighboring communities, the imposition of external timelines, and the dominance of lawyers. (11)

Over the past several years, we have watched as industry has come to accept that "deal-making" with Indigenous governments is perhaps easier and more predictable than complying with the Supreme Court of Canada's consultation framework and then "rolling the dice". (12) Companies have embraced the idea of "social license", if not the spirit of corporate social responsibility, and have recognized that even approved projects are not being built because of lengthy court proceedings related to Indigenous opposition. (13) Further, savvy industry operators are said to understand well that even success in the courts is not going to ensure that projects can proceed, because of the growing legitimacy that Indigenous land defenders are garnering across the country. (14) The legal framework provided by settler law is not achieving the resource certainty that industry demands. (15) Thus, negotiating a deal has become the first priority of industry interested in advancing a controversial extractive project; facilitating those deals has become a key task of state actors. (16) These negotiations between governments, industry and Indigenous communities are significant for the way that a signed deal has come to "stand-in" for expressions of consent in neoliberal frameworks. Despite the fact that there are a myriad of strong reasons for why the mere fact of a signed agreement cannot be evidence of free, prior and informed consent (FPIC) as it is understood in international law, extraction in the contemporary moment seems to be authorized by the signing of a contract between industry and affected communities. The successful conclusion of a deal provides both crucial legitimation for political actors supporting contested resource projects, and a valued asset for companies seeking to market their projects to potential investors. (17)

Authorizing Extraction on Indigenous Land

Extractivism, in our analysis, is not dependent on the type of resource taken, but on the underlying political economy. (18) That is, the term is not reserved for fossil fuels and mineral extraction; neither would it apply to the extraction of those materials in all contexts--it is understood as a mode of accumulation in which a high pace and scale of "taking" generates benefits for distant capital without generating benefits for local people. (19) It is a way of relating to lands and waters that is non-reciprocal and oriented to the short-term.

Our approach to the idea of authorizing extraction is influenced by the scholarship on legal pluralism. That is, we see extraction as governed by a range of overlapping and potentially conflicting norms and normative processes at...