Indigenous Rights and Relations with Animals: Seeing beyond Canadian Law

• Author: Constance MacIntosh
• Pages: 187-208

187

 

Indigenous Rights and Relations with Animals:

Seeing beyond Canadian Law

Constance MacIntosh*

A. INTRODUCTION

Within Canadian jurisprudence, the legal rights of Indigenous peoples

exist and are understood, in part, through their relationships with ani-

mals. What is oen highlighted is claims about the purposes for which,

and terms by which, Indigenous peoples possess distinct rights to kill

or harvest wild animals. Or, alternately, rights arguments are framed

around what is necessary to ensure that Indigenous peoples will be able

to harvest animals in the future. Given this, animals may appear to serve an

instrumentalist role for Indigenous peoples. This would be an impover-

ished perspective.

This chapter considers what is emphasized through Canadian juris-

prudence and legal instruments about Indigenous peoples and animals, as

well as what is oen sidelined or rendered invisible in those mediums. Its

golden thread is an attentiveness to instances where laws or legal decisions

reach toward a more complete perspective on Indigenous–animal rela-

tions, and to how such instruments also obscure and distort. The chapter

* With gratitude to Michael Asch, John Borrows, Leah Burt, and Brian Noble for

reviewing a dra of this chapter, and oering me encouragement and pointed ad-

vice. I am also grateful to the editors of this book, Vaughan Black and Katie Sykes,

for their careful comments on this paper as well as having challenged me to write

this chapter in the f‌irst place.

188  

starts with historic treaties, ends with contemporary Inuit legislation,

and considers constitutional litigation and Indigenous ontology along the

way. The chapter also suggests that conversations over how Indigenous

peoples relate with animals must consider how political and legal power is

generated and authenticated, along with the potential of Indigenous legal

traditions. The conversation is about far more than f‌inding a productive

way to discuss cultural dierence.

B. ENTERING THE CONVERSATION

In Canada, many early treaties between Indigenous peoples and the British

Crown state that the Indigenous signatories would have a protected right

to continue to trap and kill animals. For example, Treaty No , signed in

, states that the Indigenous signatories have the right to “pursue their

usual vocations of hunting, trapping and f‌ishing throughout the tract

surrendered . . . .” Treaties, with their exchange of promises to codify how

the Indigenous peoples and the European settlers would live together,

were draed solely by Europeans and in a language the Indigenous sig-

natories usually did not speak (and likely could not read). As a result,

treaty terms are most def‌initive for illustrating the European signatory’s

perspective on what was agreed to and what mattered enough in the ne-

gotiations that it ought to be recorded in writing.

As with most treaty promises, the skeletal ones in Treaty  regarding

animals likely ref‌lected only some aspects of what Indigenous signator-

ies may have sought to protect or have recognized vis-à-vis their relations

with animals. I refer here to a worldview that generally has been and

continues to oen be ascribed to many Canadian Indigenous peoples (and

by Indigenous peoples to themselves), under which humans and animals

 Treaty No , made  June  and Adhesions, Reports, etc (; repr, Ottawa:

Queen’s Printer and Controller of Stationery, ).

 R v Marshall, []  SCR  at para  [Marshall].

 Complex promises and lengthy negotiations were recorded in rather brief terms.

In interpreting an historic treaty in Marshall, ibid at para , the Supreme Court

found the extensive underlying negotiations resulted in a broad agreement that

was “memorialized only in part by the Treaty.”

 Regarding the appropriateness of making this generalization, see Lynda Collins

& Meghan Murtha, “Indigenous Environmental Rights in Canada: The Right to

Conservation Implicit in Treaty and Aboriginal Rights to Hunt, Fish, and Trap”

()  Alta L Rev  at para .