Toward a bijural interpretation of the principle of respect in aboriginal law.

• Author: Manley-Casimir, Kirsten
• Position: Canada - Moving from the Why to the How of Indigenous Law

Aboriginal law disputes are disputes that arise in the spaces between Indigenous and non-Indigenous societies. To date, the Supreme Court of Canada has resolved Aboriginal law disputes under section 35 by relying heavily on the common law to the exclusion of Indigenous legal traditions and principles. In this article, the author argues that applying a bijural interpretation of the principle of respect provides a promising pathway forward in resolving Aboriginal law disputes in a way that supports the grand purpose of section 35 of the Constitution Act, 1982--reconciliation. The author discusses the principle of respect by considering both non-Indigenous and Indigenous theories to propose a robust conception of respect to guide Aboriginal law jurisprudence. She then suggests three ways to implement the principle of respect in the intercultural relationship: (1) making interdependence and relationships primary; (2) rejecting colonial attitudes and stereotypes of Indigenous peoples; and (3) creating political and legal space for the expression and flourishing of cultural difference.

Les disputes de droit autochtone sont des disputes qui surviennent dans les interstices entre les societes autochtones et non autochtones. Jusqu'a present, la Cour supreme du Canada a resolu des disputes de droit autochtone fondees sur l'article 35 en se fiant a la common law, ecartant ainsi les traditions et principes juridiques autochtones. Dans cet article, l'auteure plaide que la mise en application d'une interpretation bijuridique du principe de respect est une avenue prometteuse vers la resolution de conflits de droit autochtone, et ce, d'une facon qui donne soutien a la raison d'etre de l'article 35 de la Loi constitutionnelle de 1867: la reconciliation. L'auteure discute le principe de respect en tenant compte de theories autochtones et non autochtones, de facon a proposer une conception robuste du respect qui guidera la jurisprudence en droit autochtone. Elle suggere trois moyens d'instituer le principe de respect dans la relation interculturelle : (1) prioriser l'interdependance et les relations; (2) rejeter les attitudes colonialistes et les stereotypes entourant les peuples autochtones; et (3) creer un espace politique et juridique pour l'expression et l'epanouissement de differences culturelles.

Introduction I. Scope and Limitations II. Substantive Content of a Bijural Principle of Respect A. The What? 1. Non-Indigenous Theories of Respect 2. Indigenous Theories of Respect B. The Why? 1. Canada's History of Disrespect Toward Indigenous Peoples 2. Internalizing Disrespect: Indigenous Identities and Self-Respect 3. Restructuring the Relationship to Live Together in Respect C. The How? 1. Making Our Interdependence and Mutual Responsibilities Primary 2. Rejecting Colonial Attitudes and Stereotypes 3. Creating Space to Express and Foster Cultural Difference Conclusion: Visions of Respect Introduction

[T]he power to control their destinies as Aboriginal peoples, to maintain control over their self-definition, must be fundamental, for otherwise we could imagine a people being constructed by another. If Aboriginal communities lose the power to control their self-definition they lose themselves--they effectively become "another." (1)

Aboriginal law disputes, by their very nature, are disputes that arise in the spaces between Indigenous and non-Indigenous societies. (2) Many of these disputes are decided under section 35 of the Constitution Act, 1982, (3) which constitutionalizes the existing Aboriginal and treaty rights of Aboriginal peoples within Canada. In 2010, the Supreme Court of Canada held that the "grand purpose" of section 35 is the reconciliation between Indigenous and non-Indigenous peoples within Canada. (4) To date, the Court has resolved Aboriginal law disputes by relying heavily on the common law to the exclusion of Indigenous legal traditions and principles. In this article, I argue that applying a bijural interpretation of the principle of respect (5) provides a promising pathway forward for resolving Aboriginal law disputes in a way that supports the grand purpose of section 35--reconciliation. (6)

1. Scope and Limitations

   A bijural principle of respect can be useful to guide the development of Aboriginal law jurisprudence and to deal with Aboriginal law disputes more appropriately. Before launching into my substantive discussion, I want to address two perceived limitations. The first limitation is that my focus on the Canadian legal system might seem to support a state-centric approach to the resolution of Aboriginal law disputes. Taking a state-centric approach, however, is not my purpose. Rather, in focusing on the Canadian legal system, I heed John Borrows' call to make non-Indigenous institutions more fully reflective of the Indigenous cultures and legal traditions that have helped shape Canada. (7) I am also mindful of Taiaiake Alfred's warning that non-Indigenous people should be wary of positing ideas and solutions that might be imposed upon Indigenous communities and peoples to "solve" their problems. (8) Instead of positioning Indigenous peoples as "the problem," I focus on the Canadian legal system itself as the problem. I start from the position that non-Indigenous people need to interrogate their own complicity and the structure of their own institutions to determine the ways in which they support the oppression of Indigenous communities. (9)

   Despite my focus on the Canadian legal system, I acknowledge that the establishment of separate, culturally appropriate Indigenous justice systems is ideal. Indigenous communities, however, need time to design and establish Indigenous legal institutions, as well as to build capacity and gather resources to support the ongoing functioning of these institutions once they are established. In the meantime, reforms to the Canadian justice system are necessary to create more justice and support reconciliation when Aboriginal law disputes come before Canadian judges. Revitalizing Indigenous legal structures and reforming the Canadian justice system need not be seen as either-or propositions. As Mary Ellen Turpel writes,

   [w]e spent several years in a distracting debate over whether justice reform involves separate justice systems or reforming the mainstream justice system. This is a false dichotomy and fruitless distinction because it is not an either/or choice. The impetus for change can better be described as getting away from ... colonialism and domination. Resisting colonialism means a reclaiming by Aboriginal Peoples of control of the resolution of disputes and jurisdiction over justice, but it is not as simple or as quick as that sounds. Moving in this direction will involve many linkages. (10) Turpel makes clear that reforming the Canadian criminal justice system does not detract from the project of revitalizing Indigenous legal traditions. Consistent with Turpel's view, the aim of this article is to make some suggestions on ways to reform the Canadian justice system's approach to Aboriginal law cases until such time as more culturally appropriate dispute resolution mechanisms are in place.

   The second limitation in advocating for a bijural interpretation of the principle of respect is that in order to create an understanding based on both Indigenous and non-Indigenous theories, I engage with some non-Indigenous theories that have been historically discriminatory toward Indigenous peoples. I could have focused solely on Indigenous ideas of respect to the exclusion of historically oppressive Eurocentric theories. The purpose of this article, however, is to think constructively about the space between Indigenous and non-Indigenous societies and how best to manage interactions and disputes that may arise within that space. As such, I focus on drawing ideas from both intellectual traditions to see if there is a way that a bijural interpretation of the principle of respect can support a constructive rebuilding of relationships between Indigenous and non-Indigenous peoples within Canada.

2. Substantive Content of a Bijural Principle of Respect

   For the purposes of my discussion, I focus on respect in two contexts: respect for persons and respect between cultural groups. I discuss the effect of the historically disrespectful and dehumanizing treatment of Indigenous peoples on the individual self-respect of community members. I engage with Indigenous and non-Indigenous theories of respect and conclude that a bijural conception of respect that draws on both Indigenous and non-Indigenous theories is dynamic, expansive, and appropriate to help resolve Aboriginal law disputes in constructive ways. I conclude by suggesting that a bijural conception of respect can be implemented by embracing attitudinal shifts and practical actions that include making relationships and responsibilities to one another primary, rejecting colonial attitudes and stereotypes, and creating jurisdictional and territorial space for Indigenous communities to express and foster cultural difference.

   I have structured my discussion of the substantive content of the principle of respect as follows:

   * The What? What is respect? What are its central characteristics? How might conceptions of respect differ in Indigenous and non-Indigenous theory and law?

   * The Why? Why should people engage the principle of respect in the context of relationships between Indigenous and non-Indigenous peoples? Are there moral imperatives that support the implementation of a bijural principle of respect in such relationships?

   * And finally, the How? How might a bijural principle of respect be implemented concretely to provide a way forward in the complex relationship between Indigenous and non-Indigenous peoples within Canada?

   1. The What?

      The concept of respect has been the topic of great theoretical inquiry over the years with many attempts to elucidate its meaning. Respect can be generally understood as an...