Academics gathered at the “How to Break Out of Colonialism?” conference April 19 to discuss the role of federalism in Aboriginal struggles for self-determination and governance, where they spoke of Socrates, cooperating legal systems and, after official presentations concluded, the successes of the James Bay Cree.
The Indigenous Peoples and Governance (IPG) working group organized the four-day conference at the Grande Bibliothèque in Montreal April 17-20. The IPG is a research project involving Indigenous and non-Indigenous academics, who are trying to provide insight into the many problems caused by colonization.
Martin Papillon, the Director of the Forum for Aboriginal Study and Research at the University of Ottawa, presented his preliminary research on the differing approaches to the duty to consult Ontario and Alberta have taken. He argued both provinces’ models have advantages and pitfalls, and later told the Nation the model that best balances the need for development and for protection is that which the James Bay Cree have struck up with Quebec.
“It links the protection of rights with the need for development,” he said between fielding questions from conference attendees. “It’s not just about protecting, but about building something. It’s an admirable model, but it’s not thanks to Quebec; it’s there because of the efforts of the James Bay Cree.”
Papillon contrasted this balance with Ontario, where he says the focus on protection can stifle development, and Alberta, which uses what he calls an “entrepreneurial model” that can overvalue development at the cost of preservation. He says these are important agreements to study because they give a lens into how provinces are conceptualizing and defining their relationships to Aboriginal people.
“Provinces are facing mobilization and court challenges to their authority, and we’re looking at how they are reacting to this,” he explained. “How do they react to communities establishing themselves not just as political partners, but as policy partners?”
Papillon admitted that while the relationship the Cree have built on the foundation of the James Bay Agreement is laudable, the decision-making process remains a source of disagreement. Choosing what to preserve and what to develop can be tricky, as deciding where the forestry industry logs is often a source of conflict within communities. Regardless of this, he says the most important part is that the communities are deeply involved in the negotiation of these matters.
The workshop, “Dynamics of Intergovernance and Federalism,” also included a talk by Geneviève Motard, a professor at Laval University’s Faculty of Law, on land claim agreements where the “personality of the law” plays a factor.
Personality of the law is the legal principle in which certain laws apply to groups based on their personal, rather than their geographic, characteristics. For Aboriginal communities, Motard said, this can sometimes widen the scope of self-governance, but that often “its primary effect is to limit the autonomy of signatory nations”. Her study used six examples of land claim, or tripartite, agreements to prove the chilling effect this ostensibly empowering principle can have on self-determination and autonomy.
The workshop also had the rare advantage of a commentator, who summarized and placed the five speakers’ ideas in context with one another. Sebastian Grammond, Dean of the Civil Law Section at the University of Ottawa, stressed the importance varying angles on federalism’s relationship to Native communities have on moving towards true self-governance.
“Whether its traditional adoption or land claims or the personality of the law, it’s about allowing Indigenous people the space to develop values and culture, while recognizing this value and culture is plural, not monolithic, and the individual remains very important,” he said at the end of the workshop. “Negotiating a space of freedom and an interface between legal systems is an important step, but unfortunately it’s bound to remain unequal.”
Papillon, who also stressed the latent inequality between the Canadian government and the structures of Aboriginal governance, remained optimistic about the prospect of cooperation from the provinces, especially with the strengthened challenges from Native communities insisting to be partners in policymaking, rather than just passive participants.
“Most things in the world are no longer the exclusive realm of just one government,” he said. “Indigenous issues are certainly no exception to this.”
