THROWING STONES:

INDIGENOUS LAW AS LAW IN RESOURCE MANAGEMENT

These materials were prepared by Kris Statnyk, Mandell Pinder LLP, Vancouver, BC for a
program held in Vancouver, BC hosted by Pacific Business & Law Institute, January 20, 2016.

TABLE OF CONTENTS
I.

INTRODUCTION ................................................................................................................... 1

II. THE DUTY TO TRANSFORM ............................................................................................. 2

III. TRADITIONAL KNOWLEDGE AND INDIGENOUS LAW .............................................. 6
IV. CONCLUSION ....................................................................................................................... 9

THROWING STONES:
INDIGENOUS LAW AS LAW IN RESOURCE MANAGEMENT

I.

INTRODUCTION

Where I come from there is a long-ago story about Loon and Crow.1 As it goes, Loon and Crow
were sitting side-by-side on the banks of the Porcupine River. It is said that at this time they
were both white like the seagull. On one particular day the two decided that they would paint
one another. First, with all of the rich colours of the land gathered together, Crow painted Loon.
The result was impressive. Loon was defined with its recognizable shades and hues of black,
white, brown, blue and green.
When it was Crows turn to be painted, however, the good faith went south. It turns out Loon
held some prejudices against Crow. Loon, using a mixture of charcoal and ash, rendered Crow a
sullen black. Loon took to the river swimming away in a fit of laughter. Upon seeing his
reflection, an angered Crow picked up a stone, took aim, cast it in the air and plunked Loon
squarely on top of the head. They say that this throw of the stone is why Loon has its flat, grey
head today.
This narrative is a jumping off point for me in the discussion of Indigenous legal traditions and
the discourse of traditional knowledge. Beyond the obvious parallels of broken promises, the
story of Loon and Crow can help us understand Crown-Aboriginal relations whereby the
realization of Canada, and its fanciful political and legal institutions, is only made possible by
this land that Indigenous peoples have called home for thousands of years prior to the arrival of
settlers. More to the point at hand, the narrative also captures the persistence of the state to paint
Indigenous peoples, including our legal traditions, diminutively.
If you can take one thing away from this paper and into your practice then let it be this:
Indigenous law is law.

Any engagement with Indigenous legal traditions on other terms,

including a failure to engage at all, maintains the violent myths of terra nullius and discovery

I am a citizen of the Gwichin Nation with roots from the Vuntut Gwitchin community of Old Crow, Yukon
situated at the confluence of the Crow and Porcupine Rivers.

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whereby the legal traditions of Indigenous peoples are erased from the lands and waters. As it
relates to resource management, the project of integrating traditional knowledge will remain
futile as long as it is considered absent the force and weight of Indigenous legal traditions.
It should go without saying, but Indigenous legal traditions have and will continue to shape
Canada. Not simply because our laws deserve mutual respect and ought to see good faith
implementation, but because like Crows stone they carry their own weight and force. I invite
you to consider this paper as a contribution to the growing number of stones being thrown in
response to the lack of respectful engagement with Indigenous legal traditions.
II.

THE DUTY TO TRANSFORM

From government arguments to Supreme Court of Canada decisions, the Canadian legal system
has by and large failed to respectfully engage with Indigenous legal traditions despite the
fundamental objective of reconciliation purportedly embodied in section 35 of the Constitution
Act, 1982.2

As recently noted by the commissioners in the final report of the Truth and

Reconciliation Commission of Canada, the Canadian legal system must be transformed.

In Canada, law must cease to be a tool for the dispossession and dismantling of
Aboriginal societies. It must dramatically change if it is going to have any
legitimacy within First Nations, Inuit, and Mtis communities. Until Canadian
law becomes an instrument supporting Aboriginal peoples empowerment, many
Aboriginal people will continue to regard it as a morally and politically malignant
force. A commitment to truth and reconciliation demands that Canadas legal
system be transformed.3
The TRC commissioners identified respectful engagement with Indigenous legal traditions as a
necessary part of such transformation.
If Canada is to transform its relationship with Aboriginal peoples, Canadians must
understand and respect First Nations, Inuit, and Mtis peoples own concepts of
reconciliation. Many of these concepts are found in Indigenous law.4

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 at para. 1.
Truth and Reconciliation Commission of Canada, Canadas Residential Schools: The Final Report of the Truth
and Reconciliation Commission of Canada, Volume 6: Reconciliation, (Montreal: McGill University Press, 2015) at
p. 51.
4
TRC Report, Volume 6, ibid at p. 46.
3

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However, as it stands, many Indigenous peoples quite rightly view participation in the Canadian
legal system as in opposition to their interests because of the diminutive painting of Indigenous
legal traditions that occurs therein. To this point the TRC commissioners stated:
Many Aboriginal people have a deep and abiding distrust of Canadas political
and legal systems because of the damage these systems have caused. They often
see Canadas legal system as being an arm of a Canadian governing structure that
has been diametrically opposed to their interests. Despite court judgments, not
only has Canadian law generally not protected Aboriginal land rights, resources,
and governmental authority, but it has also allowed, and continues to allow, the
removal of Aboriginal children through a child-welfare system that cuts them off
from their culture. As a result, law has been, and continues to be, a significant
obstacle to reconciliation. This is the case despite the recognition that courts have
begun to show that justice has historically been denied and that such denial should
not continue. Given these circumstances, it should come as no surprise that formal
Canadian law and Canadas legal institutions are still viewed with suspicion
within many Aboriginal communities.
... [T]he view of many Aboriginal people is that the utilization of Canadas courts
is fraught with danger. Aboriginal leaders and communities turn to the courts
literally because there is no other legal mechanism. When they do so, it is with the
knowledge that the courts are still reluctant to recognize their own traditional
means of dispute resolution and law.
Reconciliation will be difficult to achieve until Indigenous peoples own
traditions for uncovering truth and enhancing reconciliation are embraced as an
essential part of the ongoing process of truth determination, dispute resolution,
and reconciliation. No dialogue about reconciliation can be undertaken without
mutual respect.5
The fact that Indigenous peoples do not experience (for the most part) respectful engagement
with their own legal traditions has been referred to as a crisis of legitimacy for the legal
profession which ought to prompt a corrective reimagining of Canadian legal ethics.

TRC Final Report, Volume 6, ibid at p. 48. See also: Royal Commission on Aboriginal People, Bridging the
Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (Ottawa: RCAP, 1996) at page
309: The principal reason for this crushing failure [of the Canadian legal system] is the fundamentally different
world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive
content of justice and the process of achieving justice.; The Honourable Frank Iacobucci, First Nations
Representation on Ontario Juries: Report of the Independent Review Conducted by The Honourable Frank
Iacobucci (Government of Ontario, 2013) at 211: The [Canadian legal] system is perceived not only as a tool to
subjugate traditional approaches to conflict resolution in favour of assimilation into the mainstream society, but also
as a mechanism by which a myriad of historical wrongs have been perpetrated upon First Nations. Today, First
Nations peoples see themselves either as spectators to or victims of the justice system, whereas historically they
were direct participants in the resolution of conflict within their own communities. To be asked to participate in
Canadas justice system is seen by many First Nations people as contributing to their own oppression and, therefore,
repugnant.

4
[T]he very preservation of Canadas legal order requires the explicit
acknowledgment within that system of the values and principles that carry moral
weight with the people of Canada, including our indigenous communities.
However, it is not only law that can become unjust and irrelevant if it is not
continually reviewed and revised; our way of practising law and the very
profession itself can also be rendered irrelevant if we do not consider how the
communities we are called to serve regard our role in the justice system. There is
nothing except the shortfall of our collective imagination and political will that
prevents the legal profession from undergoing a serious soul-searching, from
revisiting the myths of its history and reinventing them and from
reconceptualizing its understanding of legal ethics and professional responsibility.
If the practice of law and our legal ethics do not manifest the values regarded as
acceptablelet alone, idealby the public to whom we owe the ultimate duty,
the crisis of legitimacy facing the legal profession will only become more urgent.6
With respect to legal ethics, former Chief Justice Lance Finch articulated a duty upon nonIndigenous lawyers, judges and students to learn about Indigenous legal traditions.
I suggest the current Canadian legal system must reconcile itself to co-existence
with pre-existing Indigenous legal orders... How can we make space within the
legal landscape for Indigenous legal orders? The answer depends, at least in part,
on an inversion of the question: a crucial part of this process must be to find space
for ourselves, as strangers and newcomers, within the Indigenous legal orders
themselves.
...For non-Indigenous lawyers, judges, and students, this awareness is not
restricted to recognizing simply that there is much we dont know. It is that we
dont know just how much we dont know. In principle, we must always admit a
measure of uncertainty in our approach, as non-Indigenous practitioners, to
another cultures narratives and laws; the more so in our conclusions. Bearing in
mind this last cautionary standard, we as Canadian legal practitioners, the
strangers in the landscape, may find ourselves ready to begin.7
The duty to learn was taken up by the TRC commissioners in their calls to action directed at law
schools and law societies across Canada.
27. We call upon the Federation of Law Societies of Canada to ensure that
lawyers receive appropriate cultural competency training, which includes the
history and legacy of residential schools, the United Nations Declaration on the
Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and

P.J. Sagull, Ethical Lawyering Across Canadas Legal Traditions (2010) 9:1 Indigenous Law Journal 167 at p.
187.
7
The Honourable Lance Finch, The Duty to Learn: Taking Account of Indigenous Legal Orders in Practice,
prepared for the Continuing Legal Education Society of British Columbia Conference: Indigenous Legal Orders and
the Common Law, November 2012 at p. 20.

5
AboriginalCrown relations. This will require skills-based training in intercultural
competency, conflict resolution, human rights, and anti-racism.
28. We call upon law schools in Canada to require all law students to take a
course in Aboriginal people and the law, which includes the history and legacy of
residential schools, the United Nations Declaration on the Rights of Indigenous
Peoples, Treaties and Aboriginal rights, Indigenous law, and AboriginalCrown
relations. This will require skills-based training in intercultural competency,
conflict resolution, human rights, and anti-racism.8
While it is certainly a first step, fostering respectful engagement with Indigenous legal traditions
will require far more than a positive duty upon the legal profession to learn. As Paulo Freire
states, [T]o speak a true word is to transform the world.9 For the legal professional, there must
be a positive duty to transform from the current state of denial to one of engaged legal pluralism.
From this perspective, we might start thinking about how our notions of
professional responsibility and legal practice can manifest the plurality of our
legal inheritance. We might consider how our notions of duties and obligations
could change to accommodate other interests and perspectives. We could think
about how our interactions with clients, opposing parties and counsel, and
members of the bench, bar and public could be different. We could re-examine
our case analysis methodology and dispute-resolution tactics. The possibilities are
limited only by ones imagination and willingness to move beyond our traditional
conceptions of lawyering.10
Importantly, this vision of respectful engagement with Indigenous legal traditions through legal
pluralism does not require the integration of Indigenous legal traditions wholly within the
Canadian legal system. Quite to the contrary, it is a vision where Indigenous law is respected on
its own terms as a matter of public interest. In this regard, the legal profession can learn from the
caution issued by Nehiyaw scholar Erica Violet Lee to universities taking it upon themselves to
integrate Indigenous content into their institutions in the name of reconciliation.
The centering of Indigenous knowledges in universities is important, and it must
be done right. If the foundations of the settler colonial state are not challenged, the
incorporation of so-called Indigenous content into classrooms is a method of

Truth and Reconciliation Commission of Canada, Truth and Reconciliation Commission of Canada: Calls to
Action, online <http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Calls_to_Action_English2.pdf>. Note:
On November 4, 2015, the Benchers of the Law Society of British Columbia announced that they had unanimously
agreed that addressing the challenges arising from the Truth and Reconciliation Commission of Canadas findings
and recommendations is one of the most important and critical obligations facing the country and the legal system
today.
9
Paulo Freire, Pedagogy of the Oppressed (New York: Herder and Herder, 1970) at p. 87.
10
Sagull, supra note 6 at pp. 181-182.

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continuous recolonization; furthering claims of ownership and authority over
Indigenous knowledges and Indigenous lands.11
The centering of Indigenous knowledge systems is likewise important for the legal profession,
and especially lawyers representing Indigenous peoples, if it is to respectfully engage with
Indigenous legal traditions.12 This remains true even if the common law continues to be silent on
the larger implications of Canadas pluralist legal roots. This is a part of the duty to transform.
At the heart of cultural literacy in respect to indigenous peoples is an
understanding of indigenous knowledge. Familiarity with the indigenous legal
tradition, as an aspect of that knowledge, is important to lawyers involved in the
representation of indigenous peoples and indigenous nations. The link between
indigenous legal tradition and the operation of law and justice within indigenous
communities cannot be ignored in the internal practice of law, even if the fact that
an indigenous legal tradition exists and is important to study has been ignored by
most legal institutions in the country.13
Below I explore what this vision for a transformative project of taking Indigenous legal traditions
seriously on their own terms means for traditional knowledge in resource management
processes.14
III.

TRADITIONAL KNOWLEDGE AND INDIGENOUS LAW

Traditional knowledge has been described as a cumulative body of knowledge, practice and
belief, handed down through generations by cultural transmission.15 Some characteristics of
traditional knowledge have been described as follows:

11

Erica Violet Lee, Indigenizing the Academy Without Indigenous People: Who Can Teach Our Stories?, online:
Moontime Warrior <http://moontimewarrior.com/2015/11/09/who-can-teach-indigenous-philosophy/>. See also:
Sarah Hunt, Ontologies of Indigeneity: The Politics of Embodying a Concept (2014) 21:1 Cultural Geographies
27 at p. 31 where the Kwakwakawakw scholar states, it must also be asked what it means for Indigenous
knowledge to be moved from spaces of lived Indigenous governance and culture, such as a potlatch ceremony;
12
In the last two major Aboriginal law cases heard before the Supreme Court of Canada (Tsilhqotin Nation v.
British Columbia, 2014 SCC 44 and Grassy Narrows First Nation v. Ontario, 2014 SCC 48) only 4 out of 40
factums submitted to the court cited an Indigenous scholar.
13
Christine Zuni Cruz, Toward a Pedagogy and Ethic of Law/Lawyering For Indigenous Peoples (2006) 82 North
Dakota Law Review 863 at p. 892.
14
For more general discussions on taking Indigenous law seriously as law see: Val Napoleon, Thinking About
Indigenous Legal Orders in Rene Provost and Colleen Sheppard (Eds.), Dialogues on Human Rights and Legal
Pluralism (New York: Springer, 2012); Hadley Friedland, Reflective Frameworks: Methods for Accessing,
Understanding and Applying Indigenous Laws (2013) 11 (2) Indigenous LJ 1; Val Napoleon and Hadley Friedland,
From Roots to Renaissance, in Markus Dubber, ed, Oxford Handbook of Criminal Law (London: Oxford
University Press, 2014); John Borrows, Canadas Indigenous Constitution (Toronto: University of Toronto Press,
2010).
15
Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River, The Uncertain Future of Fraser
River Sockeye, Volume 1: The Sockeye Fishery (Ottawa: Canada, 2012) at p. 59 (Cohen Commission).

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Indigenous knowledge systems are not uniform across all indigenous peoples,
though strands of connectiveness do exist. Additionally, indigenous knowledge
is a diverse knowledge that is spread throughout different people in many layers...
The most important aspects of indigenous knowledge are that it is connected to a
specific ecological order and that both the natural and spirit world are involved
in its understanding.16
Quite simply, Indigenous peoples most often have the best available knowledge of our territories
because we have governed and managed the myriad relationships within since time immemorial.
As such, traditional knowledge has been widely regarded as a means to improved and
cooperative resource management when integrated with scientific knowledge of the
environment.17 Despite this, the integration of traditional knowledge into mainstream resource
management processes has faced well documented challenges.
[S]cientists and resource managers remain essentially at a loss regarding
traditional ecological knowledge; many are still not quite sure what it is, much
less how to use or integrate it with scientific research... Many works continue to
advocate the use of TEK and its integration with science without describing a
method for achieving this goal. In the meantime, aboriginal people continue to
express dissatisfaction and impatience with current efforts to use TEK in the real
word of land claims and resource management.18
As one example of this phenomenon, the final report of the Commission of Inquiry into the
Decline of Sockeye Salmon in the Fraser River acknowledges the importance of traditional
knowledge in fisheries management but canvasses the difficulties of having it actually integrated
into Department of Fisheries and Oceans decision-making. The report lists understanding what
Aboriginal traditional knowledge is and what it is not, transferring regionally specific and
tribally specific Aboriginal traditional knowledge from the person with the knowledge to
someone else who is the decision maker and verifying the accuracy of traditional knowledge
as challenges.19
As I posit below, the efficacy of traditional knowledge is dependent on respecting the force and
weight of the Indigenous legal traditions that are an integral aspect of Indigenous knowledge

16

Zuni Cruz, supra note 12 at p. 893.

Paul Nadasdy, The Politics of TEK: Power and the Integration of Knowledge (1999) 36:1-2 Arctic
Anthropology 1.
18
Nadasdy, ibid at. p. 2.
19
Cohen Commission, Volume 1, supra note 14 at pp. 59-61.
17

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systems. Pueblo legal scholar and tribal court judge Christine Zuni Cruz describes Indigenous
legal traditions as embedded within traditional knowledge.
Indigenous legal tradition as it is contained within Indigenous knowledge reaches
into time immemorial and has continued as an unbroken strand in spite of national
policies aimed at completely assimilating Indigenous peoples. It continues to
operate in the social consciousness of Indigenous peoples and in their everyday
lives, even if it is not recognized as law by the undiscerning.20
Using the Salishan legal tradition as a reference, Syilx scholar Dr. Jeanette Armstrong articulates
the relationship between sustainable resource management and upholding local Indigenous
authority:
Such a sustainable management system insuring full regeneration of resources
required a comprehensive and complex level of local knowledge and authority in
order to maintain the peaceful stability of the groups.
...
One concludes that a constant deference to local authority as a structure of
cooperative governance, constituted an intelligent structure which placed high
value on legal mechanisms to insure peace and respect of difference as the basis
of political, economic and social interchange between the neighboring units.
Such a structure would sustain an order in which the units could not lawfully
compete for the same resources but must form cooperating regimes, especially
where resources are fragile. They must operate out of the knowledge that local
autonomy is the foundation of law as an absolute requirement for the ongoing
regeneration of local resources critical to sustain the mutual needs of each unit
within the cooperating regimes.21
With this understanding of the relationship between Indigenous knowledge and Indigenous law
we can begin to understand that the challenge to meaningful integration of traditional knowledge
is derived from the very process of integration itself, where the authority of Indigenous legal
traditions are disappeared from decision-making in

resource management regimes.

Anthropologist Paul Nadasdy describes this erasure as an obscuring of political and ethical
dimensions (which I would add legal to):

20

Christine Zuni Cruz, Law of the Land: Recognition and Resurgence in Indigenous Law and Justice Systems in
Benjamin J Richardson, Shin Imai and Kent McNeil (eds.) Indigenous Peoples and the Law: Comparative and
Critical Perspectives (Hart Publishing, 2009) at p. 316.
21
Dr. Jeanette Armstrong, The Salishan Inter-Areal Framework, prepared for the Continuing Legal Education
Society of British Columbia Conference: Indigenous Legal Orders and the Common Law, November 2012 at pp.
6.4.2-6.4.4.

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The need to integrate co-management processes with existing institutional
structures of state-management has led to a tendency to view co-management as a
series of technical problems (primarily associated with the question of how to
gather traditional knowledge and incorporate it into the management process),
rather than as a real alternative to the existing structures and practices of state
management. This view effectively obscures the political and ethical dimensions
of co-management.
...
It is the assumption that traditional knowledge is simply a new form of data to
be incorporated into existing management bureaucracies and acted upon by
scientists and resource managers that has made it possible to see the integration of
TEK and science as a purely technical, rather than political or ethical, problem.22
Thus, as Nadasdy also notes, if we are truly committed to improved resource management and
empowering Indigenous peoples through the use of traditional knowledge then we must
transform resource management processes so that they respect the authority of Indigenous legal
traditions.
Improved management and local empowerment cannot be achieved through any
attempt to include local elders and hunters into the existing state-management
system simply through the production and use of TEK artifacts. Instead, it will
require that local beliefs, values, and practices themselves not merely the
abstract forms affixed to them be accepted as a valid basis for action. This will
require changes to current practices of resource management and environmental
assessment to allow these people to play a meaningful role in these processes as
decision-makers. In short, traditional knowledge cannot truly be incorporated
into the management process until native elders and hunters have achieved full
[respect for their inherent] decision-making authority in that realm.23
IV.

CONCLUSION

In his address at COP21, the 2015 United Nations Climate Change Conference, Prime Minister
Trudeau stated that, Indigenous peoples have known for thousands of years how to care for our
planet. The rest of us have a lot to learn and no time to waste.24 It is my hope that this paper
demonstrates that the learning required extends to the legal profession and must begin with the
premise that Indigenous law, while a part of Indigenous knowledge, is law. This premise of

22

Paul Nadasdy, The Anti-Politics of TEK: The Institutionalization of Co-Management Discourse and Practice
(2005) 47:2 Anthropologica 215 at pp. 216 and 220.
23
Nadasdy, supra note 16 at p. 13.
24
Canadian Press, Justin Trudeau tells world climate change fight begins at home (November 30, 2015), online
<http://www.macleans.ca/politics/ottawa/justin-trudeau-tells-world-climate-change-fight-begins-at-home/>.

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respectful engagement with Indigenous legal traditions requires the authority of Indigenous law
to be recognized as such on its own terms.
In the context of resource management, Indigenous knowledge systems continue to hold intimate
understandings of the ecosystems around us which have and can guide us towards a more
sustainable future. However, our knowledge cannot be hived off from the law and governance
which makes it effective.

The apparent benefits of traditional knowledge to resource

management will only be realized if current resource management institutions are transformed so
that the full force and weight of Indigenous legal traditions are felt on their own terms.