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Reconciliation? Indigenous law as law: Hadley Louise Friedland, Reclaiming the Language of Law: The Contemporary Articulation and Application of Cree Legal Principles in Canada, PhD Dissertation, University of Alberta, 2016

06Nov16

Abstract: The Truth and Reconciliation Commission of Canada states the revitalization and application of Indigenous laws is vital for re‐establishing respectful relations in Canada. It is also vital for restoring and maintaining safety, peace and order in Indigenous communities. This thesis explores how to accomplish this objective. It examines current challenges, resources and opportunities for recovering, learning and practicing Indigenous laws. It develops a highly structured methodology for serious and sustained engagement with Indigenous legal traditions, based on reviewing existing methods, then combining the methods of two leading Indigenous legal scholars, John Borrows and Val Napoleon. This method approaches Indigenous stories as jurisprudence. It uses adapted legal analysis and synthesis to identify Indigenous legal principles from stories and oral histories and organize these principles into a rigorous and transparent analytical framework. These legal principles can then be readily accessed, understood and applied. This thesis demonstrates this adapted legal analysis method is teachable, transferable and replicable, using research outcomes of Cree legal principles responding to violence, harms and conflicts. Through the example of a foundational Cree legal principle, “wah-­ko-­to-­win” (our inter-­relatedness), it demonstrates how this method can also deepen our understanding of background or ‘meta-­principles’ within Indigenous legal traditions, which can help us interpret, apply and change laws in legitimate ways. It then demonstrates how the research outcomes from this method may be understood and applied by Indigenous communities, through a case study exploring the development of a contemporary Cree criminal justice process based on Cree legal principles, by and with the Aseniwuche Winewak. Finally, it examines the current narratives about the appalling rates of violence against and over‐incarceration of Indigenous people in Canada and the existing gap between legitimacy and enforcement. It proposes Indigenous legal reasoning as a bridge, and develops the conceit of the “reasonable Cree person” to examine whether principled Cree legal reasoning can be explicitly recognized and implemented within Canada’s current political and legal systems. It concludes that, while there are many potential spaces for doing so, more intellectual work is necessary first, in which both Indigenous and non-­Indigenous people engage with Indigenous laws as laws. It is this kind of deep engagement that is necessary to effectively and respectfully operationalize the Truth and Reconciliation Commission’s compelling calls for greater recognition of Indigenous laws in Canada.


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Being indigenous under settler colonialism is being homeless: Evelyn J. Peters, Julia Christensen (eds), Indigenous Homelessness: Perspectives from Canada, Australia, and New Zealand, University of Manitoba Press, 2016

03Nov16

Abstract: Being homeless in one’s homeland is a colonial legacy for many Indigenous people in settler societies. The construction of Commonwealth nation-states from colonial settler societies depended on the dispossession of Indigenous peoples from their lands. The legacy of that dispossession and related attempts at assimilation that disrupted Indigenous practices, languages, and cultures—including patterns of housing and land use—can be seen today in the disproportionate number of Indigenous people affected by homelessness in both rural and urban settings. Essays in this collection explore the meaning and scope of Indigenous homelessness in the Canada, Australia, and New Zealand. They argue that effective policy and support programs aimed at relieving Indigenous homelessness must be rooted in Indigenous conceptions of home, land, and kinship, and cannot ignore the context of systemic inequality, institutionalization, landlessness, among other things, that stem from a history of colonialism. “Indigenous Homelessness: Perspectives from Canada, New Zealand and Australia” provides a comprehensive exploration of the Indigenous experience of homelessness. It testifies to ongoing cultural resilience and lays the groundwork for practices and policies designed to better address the conditions that lead to homelessness among Indigenous peoples.


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When the crown has it: Michael McCrossan, Kiera L. Ladner, ‘Eliminating Indigenous Jurisdictions: Federalism, the Supreme Court of Canada, and Territorial Rationalities of Power’, Canadian Journal of Political Science, 49, 3, 2016, pp. 411-431

02Nov16

Abstract: This paper examines judicial reasoning in the area of Aboriginal title, paying particular attention to the Supreme Court of Canada’s Tsilhqot’in Nation (2014) decision. While the decision has been heralded as a ‘game-changer’ within media circles and legal commentaries for its recognition of a claim to title under section 35(1) of the Constitution Act, 1982, the authors argue that the decision does not depart substantially from prior judicial logics predicated upon the production of Crown sovereignty and the denial of Indigenous legal orders. In fact, the authors argue that the decision displays a clear judicial orientation towards the present jurisdictional divisions of Canadian federalism which not only serves to eliminate Indigenous legal orders and territorial responsibilities, but also provides federal and provincial governments with enhanced powers of ‘incursion’ into Aboriginal title lands.


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When the crown has no ‘honour’: Kirsty Gover, ‘The Honour of the Crowns: State–Indigenous Fiduciary Relationships and Australian Exceptionalism’, Sydney Law Review, 38, 2016, pp. 339-368

02Nov16

Abstract: The New Zealand and Canadian Crowns are guided in their dealings with
Indigenous peoples by common law fiduciary duties. In both countries, these
duties have evolved into the constitutional principle of the ‘honour of the
Crown’, which requires governments to consult with Indigenous peoples when
contemplating legislative and executive action affecting their distinctive
interests, and to accommodate those interests where appropriate. To date, no
comparable common law duty has emerged in Australia. This article revisits
Toohey J’s remarkable, but under-analysed, judgment in Mabo v Queensland
(No 2) (‘Mabo (No 2)’), in which His Honour found that Australian Crowns
owe a general fiduciary duty to Indigenous peoples, arising by operation of law
from the ‘circumstances of the relationship’ (rather than from a treaty or
express undertaking). The judgment continues to influence contemporary
Australian courts and, in the absence of a High Court of Australia majority
finding to the contrary, the possibility remains that a general fiduciary duty may
yet emerge as a principle of Australian common law. The article argues that
fiduciary obligations of this kind are sorely needed in Australia, because the
High Court has not accepted that relational or consultative obligations to
Indigenous peoples attend the Crowns’ exercise of the ‘race power’, or that
these obligations are a precondition of the Crowns’ reliance on the ‘special
measures’ exception in the Racial Discrimination Act 1975 (Cth). As it stands,
Australian law permits and enables a degree of governmental unilateralism that
is not compatible with the role of the Crown as a fiduciary. This article explores
the possibility, suggested by Toohey J’s judgment in Mabo (No 2), that the
common law of native title could yet be the wellspring of general fiduciary
principles that could guide the conduct of Australian Crowns in their dealings
with Indigenous peoples.


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Identifying settlers by their plants: Taylor Spence, ‘The Canada Thistle: The Pestilence of American Colonialisms and the Emergence of an Exceptionalist Identity, 1783-1839’, Agricultural History, 90, 4, 2016, pp. 511-544

02Nov16

Abstract: This research demonstrates how a European plant, Cirsium arvense, common to North America since the sixteenth century and commonly considered a weed, became “Canadian ” when Early National Americans labeled it the Canada thistle in the years leading up to the War of 1812. This naming comprised part of a host of actions citizens of the new United States took to differentiate themselves from their imperial progenitor, and thus, the Canada thistle might be considered an early origin-point of an American exceptionalist identity.


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A ‘different’ settler relation to place? Avril Bell, ‘Moving Roots A “Small Story” of Settler History and Home Places ‘, Qualitative Inquiry, 2016

29Oct16

Abstract: In the early stages of research into the life of my great-great-grandfather, George Graham, I have repeatedly come across scraps of his life story relating to trees in various central city locations in Auckland, New Zealand, locations now abutting and on the university campus at which I work. These trees and places directly link me with George in powerful ways, becoming channels into affective responses of pride and excitement that also connect me viscerally to George’s role in the colonization of Auckland and dispossession of Māori. Here, I explore these affective states and the ways they provoke my thinking about being a descendant of settler colonizers and about my relation to my settler homeland. These material connections to colonial history “thicken” my relationship to Auckland and to the colonial story, and I use these experiences to point to the possibility of a different, “alter-colonial” form of settler relation to place.


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On the same day: settler and indigenous protesters, different responses (hint: the former are heavily armed, the latter are peaceful)

28Oct16

‘Oregon wildlife refuge occupiers cleared’, BBC News, 28/11/16.

‘Riot police move in on N Dakota pipeline protesters’, BBC News, 28/11/16.


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Reflecting on the interaction of national and settler US history: John Mack Faragher, ‘”And the lonely voice of youth cries ‘What is truth?'”: Western History and the National Narrative’, Western Historical Quarterly, 2016

26Oct16

Exxcerpt: A couple of years ago, I got a call from my oldest grandson, Jeremy. He was beginning middle school and taking his first class devoted to American history. For their initial homework assignment the teacher asked the students to speak with an older relative about their view of the American past and report on what he or she said. When Jeremy mentioned that two of his grandfathers were history professors (a complete coincidence, by the way), the teacher asked him to interview both of us. “Here’s the question, grandpa,” Jeremy said. “What does the United States of America mean to you as a historian?”

“Wow,” I stammered, “that’s big. Can you give me a little more direction?” I was stalling. “I can tell you what Grandpa Lou said,” Jeremy offered. “That would help,” I replied, grateful for a few moments to gather my wits. “He thought about it for a while,” Jeremy said, “then told me that while America meant a lot of things to him, most important was the proclamation of human rights in the Declaration of Independence and the personal liberties guaranteed by the Bill of Rights and the other amendments to the Constitution.” Grandpa Lou had taken the high road. “He’s absolutely right about that,” I said. “Those are the guarantees of our enviable rights and freedoms.” Now it was my turn. “Since Lou emphasized the positive,” I offered, somewhat tentatively, “I’m going with the dark side. America is also about taking the land from hundreds of Indian nations and enslaving millions of Africans.”


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On the gender of settlers: Sarah Carter, Imperial Plots: Women, Land, and the Spadework of British Colonialism on the Canadian Prairies, University of Manitoba Press, 2016

23Oct16

Description: Sarah Carter’s “Imperial Plots: Women, Land, and the Spadework of British Colonialism on the Canadian Prairies” examines the goals, aspirations, andchallenges met by women who sought land of their own. Supporters of British women homesteaders argued they would contribute to the “spade-work” of the Empire through their imperial plots, replacing foreign settlers and relieving Britain of its “surplus” women. Yet far into the twentieth century there was persistent opposition to the idea that women could or should farm: British women were to be exemplars of an idealized white femininity, not toiling in the fields. In Canada, heated debates about women farmers touched on issues of ethnicity, race, gender, class, and nation. Despite legal and cultural obstacles and discrimination, British women did acquire land as homesteaders, farmers, ranchers, and speculators on the Canadian prairies. They participated in the project of dispossessing Indigenous people. Their complicity was, however, ambiguous and restricted because they were excluded from the power and privileges of their male counterparts. Imperial Plots depicts the female farmers and ranchers of the prairies, from the Indigenous women agriculturalists of the Plains to the array of women who resolved to work on the land in the first decades of the twentieth century.


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Decolonising settler art: Michael J. Farnan, Representing Wilderness: Community, Collaboration, and Artistic Practice, PhD dissertation, University of Western Ontario, 2016

23Oct16

Abstract: This dissertation project serves as an inquiry into Canadian representational practices and discourses surrounding colonialism, wilderness, nature and nationhood. The written thesis presented here is part of a multidisciplinary project that also comprised of an art exhibition held at Western’s McIntosh Gallery, from June 3rd to Junes 25th, 2016. This paper, alongside the drawing, sculpture, and videos created for my exhibition, examine depictions of nature and nation in Canada through an analysis of antimodernism, primitivism, and a seeking of the spiritual connected to constructions of “white wilderness” and the spatial imaginary of Canada’s colonial frontier. This paper also explores ways in which decolonial art and theory seeks to challenge those same configurations of identity and power, including the development of settler-based decolonizing strategies aimed at unsettling dominant political and cultural narratives.

Specifically in relation to my own art practice, this means challenging the enduring colonial legacies of Canada’s settler past and the contemporary representational practices that continue to privilege and empower colonial constructions of space and place. This
dissertation project proposes a collaborative-based research practice that operates in relation to issues of the local, domestic, and lived practices of people and their interaction with the environment. As such, this paper examines mainstream articulations of nature and nation in Canada through historicized interpretations of dominant Settler/First Nation narratives and demonstrates how an understanding of this history becomes vitally important when trying to achieve performative, transformative, and collaborative understandings of the colonial experience that continues to define life in Canada.


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