[Image Source: https://www.afn.ca/timeline/delgamuukw-v-british-columbia/]
Suzy Newing
Transsystemic Programme, Faculty of Law
McGill University
July 2022
Introduction
I will begin this paper with a note on my own positionality. I am not indigenous myself, and my exploration of Indigenous legal systems is relatively new. Recognizing that there is no single Indigenous legal system, my intention is not to generalize any of the legal theories referred to in this paper, but rather to highlight by way of example how Canadian law can better recognize and interact with Indigenous legal systems from a cross-cultural perspective. Furthermore, I am a seeing person, and recognize that the metaphors of blindness and seeing that I engage with in this paper are part of a dominant discourse that privileges physical sight as a symbol of truth and knowledge, and blindness as its opposite (see Davis 2019). My intention in this paper is not to reproduce the harmful biases associated with impairment rhetoric (Davis 2019: 65-66), but rather to step into the dominant discourse, with all of its biases, and engage with it to explore the meaning and implications of the metaphor of blind justice in relation to Indigenous rights in Canada.
This essay explores the concepts of blind justice and cross-cultural jurisprudence in the context of two Canadian constitutional law cases – Tsilhqot’in Nation v. British Columbia (2014) and Kuntaxa Nation v. British Columbia (2017). These cases revolve around legal questions of Indigenous rights and land from two different constitutional perspectives. Tsilhqot’in Nation is an Aboriginal Title claim under s. 35(1) of the Constitution Act 1982, whereas Ktunaxa Nation concerns the protection of an Indigenous sacred site through freedom of religion guaranteed under s. 2(a) of the Canadian Charter of Rights and Freedoms (the Charter). These cases are significant to this paper as two recent reflections of key gaps in the approach to cross-cultural jurisprudence in Canada’s highest court, the Supreme Court of Canada (SCC). Tsilhqot’in Nation reveals a process of translation that privileges one legal worldview over another and an uncritical acceptance of cultural assumptions of the common law, while Ktunaxa Nation reflects the Court’s inability to understand freedom of religion beyond its own cultural conceptions (Borrows 2010: 243). Ultimately, I argue that moving more meaningfully towards cross-cultural jurisprudence requires that Canada’s courts be reflexive of their own cultural biases, and explore ways to meaningfully integrate Indigenous legal perspectives into Canada’s judicial system through conversation rather than translation. To realize this, justice needs to see difference rather than be blind to it.
‘Blind’ Justice
One of the most common symbols of justice in the Western world is Justitia – a blindfolded female figure (Capers 2012: 179). What does it mean to consider justice as blind, and should justice be blind at all? One interpretation suggests that justice is impartial – the blindfold is a reminder to judges to treat everyone equally (Capers 2012: 180). However, the blindfold also implies that law is somehow above humanity or culture: “[…] the experience of encountering Justitia is usually one of externalization. We tend to think of justice as something that will be done. We rarely think of justice as something we will do, or that we in fact do. Justice is externalized, and part of what facilitates this externalization is the personification of justice. She will do justice, not us” (Capers 2012: 182).
This idea that justice is external to humanity undermines the notion that justice is a cultural production where legal systems are created, made, performed, and executed by human beings – and cannot therefore be separated from society and culture (Borrows 2010: 114-116; Howes 2005). Viewed in this light, blind justice can be damaging because it does not see culture. Being blind to culture creates a barrier in understanding the distinct experience of minorities who relate differently to the world and who have a violent history with the state’s justice system that shapes their reality in profound ways. As Niezen suggests, the blindfold or ‘difference-blindness’ in the Canadian justice system “universaliz[es] a form of liberal individualism that seeks to eliminate social differences grounded in distinct rights” (Niezen 2003: 23). Therefore, blind justice can actually create greater inequality by not recognizing that distinct groups might require differential rights regimes (Niezen 2003: 24). Moreover, blind justice creates a barrier to reflexivity, or the ability to engage with one’s own cultural biases in decision-making: “Justitia’s blindfold lulls and tricks us into not seeing our own blindness” (Capers 2012: 184)
Applying this to the Canadian context, blind justice could imply that the legal system of the dominant society is not cultural, whereas any legal system that is ‘different’, such as Indigenous legal systems, is (Borrows 2010: 114-116). However, the civil and common law legal traditions in Canada also carry their own cultural assumptions (Borrows 2010: 114). Recognizing the cultural dimension of the common and civil law traditions helps combat stereotypes that they are “‘natural’ and ‘time-honoured,’ while Indigenous traditions are thought to be ‘unusual’ and an exception to what is considered ‘normal’ within our law” (Ibid). With this in mind, I will explore how blind justice influences the SCC’s reasoning in Tsilhqot’in Nation and Ktunaxa Nation.
Tsilhqot’in Nation: Translation and Terra Nullius
For centuries, the Tsilhqot’in Nation have engaged in efforts to protect their traditional, unceded territory in central British Columbia (BC) (Borrows 2015: 706). The legal battle began in 1983, when BC granted a commercial logging license on Tsilhqot’in land. It ended about 30 years later in 2014, when the SCC issued a landmark decision granting Aboriginal Title to the Tsilhqot’in Nation over 1700 km2 of land.This was the first and only time a Canadian court has recognized Aboriginal Title.
Tsilhqot’in Nation represents some progress for cross-cultural jurisprudence in constitutional Indigenous rights cases in Canada. The Court meaningfully engaged with oral testimony and stories as evidence of pre-sovereignty occupation (Borrows 2015: 718-719). The judgment also repeated, on numerous occasions, that the dual perspectives of the common law and the Aboriginal group must be engaged equally in deciding Aboriginal Title (Tsilhqot’in Nation 2014: 14, 41). Furthermore, the Court built upon and modified the test for Aboriginal Title established in R v. Marshall (1999) and Delgamuukw v. British Columbia (1997) by qualifying the meanings of occupation and exclusivity such that they are more consistent with Indigenous ways of living pre-sovereignty (Tsilhqot’in Nation 2014: 34-42). The SCC also took a broader approach to understanding sufficient occupation that favoured the territorial approach of the trial court, while rejecting the ‘postage stamp’ approach of the Court of Appeal (Hanna 2013: 392-4). This broader interpretation supports title claims of nomadic and semi-nomadic groups like the Tsilhqot’in (Hanna 2013: 392-394; Tsilhqot’in Nation 2014: 29). Exclusivity was also expanded from Delgamuukw to mean not simply the exclusion of others, but rather control over who can enter the land (Tsilhqot’in Nation 2014: 48). While there were certainly positive aspects to the decision, a deeper analysis reveals that it is merely one step in the right direction (Borrows 2015: 704).
[Image source: Front page of The Vancouver Sun, December 12, 1997. https://bcanuntoldhistory.knowledge.ca/1990/the-delgamuukw-decision]
Although the Court emphasizes that the dual perspectives of the common law and the Aboriginal group must be taken into account, much of the decision can be read as a translation of aspects of Indigenous ways of relating to the land into the common law conception of title. The SCC granted Aboriginal Title to the Tsilhqot’in because they proved that their occupation of the land pre-sovereignty was sufficient, continuous, and exclusive (Tsilhqot’in Nation 2014: 50). Possession, or occupation, exclusive control, and giving ‘notice’ to others of one’s intention to control are hallmarks of the common law definition of title (see Rose 1985; Tsilhqot’in Nation 2014: 31, 38). The Court makes specific reference to this project of translation:
“The task [of establishing Aboriginal Title] is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms.”(Tsilhqot’in Nation 2014: 260, emphasis added)
“The court must be careful not to lose or distort the Aboriginal perspective by forcing ancestral practices into the square boxes of common law concepts, thus frustrating the goal of faithfully translating pre-sovereignty Aboriginal interests into equivalent modern legal rights.” (Tsilhqot’in Nation 2014: 32, emphasis added)
Although the Court says that the Aboriginal perspective should not be ‘distorted’ or forced into the ‘square boxes of common law concepts,’ it does not draw on any characteristics to define Aboriginal title beyond the common law requirements of sufficiency, continuity, and exclusivity. Furthermore, a culturally sensitive approach to defining sufficient use and occupation means that the Aboriginal group must demonstrate that their use of the land is comparable to ‘what is required at common law’ (Tsilhqot’in Nation 2014: 42,50). Furthermore, the Court leverages the definition advanced in R v. Marshall (1999), where sufficiency of occupation for Aboriginal title is likened to “the requirements for general occupancy at common law” (Tsilhqot’in Nation 2014: 39).
Translation in Tsilhqot’in Nation creates a significant challenge for cross-cultural jurisprudence. Primarily, translation carries the risk of losing the true meaning of concepts from one culture that have no equivalent in the other (Borrows 2010: 125). Granted, sometimes Indigenous legal traditions require a level of translation to create a greater understanding across cultures (Ibid). However, as Borrows notes, “one must be careful that such translations do not always flow one way, to the benefit of dominant systems” (Ibid). The noticeable lack of reference to an Indigenous conception of title in comparison to the consistent reference to the hallmarks of common law title indicates that translation in Tsilhqot’in Nation is fairly unidirectional. Ultimately, it is the common law that defines Aboriginal Title, and the Tsilhqot’in must prove that their way of interacting with the land met this definition at the point of sovereignty.
Secondly, translating the way the Tsilhqot’in interact with the land into common law property terms risks erasing the culturally distinct nature of the Tsilhqot’in’s relationship with the land by changing how they describe and understand that relationship. As Bryan argues, property is ontology – meaning, the way one understands property reflects the way one interacts with and understands the world around them (Bryan 2000: 4). Translating indigenous ways of relating to the land into common law terms “create[s] room for the Aboriginal and her culture inside the house of our language. If she takes on our way of describing her culture, we preclude her from understanding her culture as she once would have because she no longer has the ability to see it in any other terms” (Bryan 2000: 28). Therefore, not only does translation in Tsilhqot’in Nation privilege one cultural conception of property over another, but it also risks erasing the distinct way that the Tsilhqot’in understand their relationship with the land. It is evident, therefore, that translation cannot be representative of cross-cultural jurisprudence which would require that judges are “attuned to the specificities of the un-common law of the Indigenous tradition” (Howes 2017).
An additional gap in Tsilhqot’in Nation from a cross-cultural perspective is that it reflects the durability and expansion of the terra nullius doctrine such that it degrades Tsilhqot’in socio-legal organization (Borrows 2015: 723-724). Terra nullius suggests that the land was ‘legally empty’ prior to sovereignty (Borrows 2015: 702). Borrow’s criticism of Tsilhqot’in Nation highlights that the same paragraph that states terra nullius never applied in Canada, also confirms its application through referencing the judgment in Guerin v. The Queen (1984) that the Crown acquired “radical and underlying title” at the point of sovereignty (Borrows 2015: 702-703, Tsilhqot’in Nation 2014: 69). Terra nullius is predicated on the assumption of inequality – that one legal system is superior to another. Because cross-cultural jurisprudence requires that decision-makers hold two different cultural perspectives equally (Howes 2005: 28), I argue that it cannot co-exist with the doctrine of terra nullius. The fact that Indigenous groups like the Tsilhqot’in still have to prove their title in common law (read: colonial) language and infrastructure is evidence of the durability of terra nullius in Canada’s court system: “Tsilhqot’in title is not presumed to exist in the same way that Crown sovereignty and underlying Crown title are assumed to exist” (Borrows 2015: 728-729). Therefore, the Court’s confirmation of terra nullius reveals a cultural bias that assumes the socio-legal organization of the Tsilhqot’in at the point of contact is not valid law. Moreover, Borrows argues that the Court expands terra nullius through rejecting the doctrine of Interjurisdictional Immunity (IJI) by allowing provincial laws of general application in Aboriginal Title lands (Borrows 2015: 734). Not allowing these laws to apply in Aboriginal Title lands under the doctrine of IJI would create “legislative vacuums” or “lawlessness,” according to the SCC (Borrows 2015: 738-739). Therefore, not only does the Court’s reasoning in Tsilhqot’in Nation assume that Tsilhqot’in laws were invalid at the time of sovereignty, but that assumption persists even after they have been successfully granted Aboriginal Title (Ibid). The Court, therefore, simultaneously confirms and rejects the validity of Tsilhqot’in law. The presumed inequality between the common law and Tsilhqot’in law and the resulting denigration of Indigenous socio-legal systems, therefore, is a significant gap in the SCC’s cross-cultural jurisprudence.
Ktunaxa Nation: Freedom of Religion and the Land
The Ktunaxa are a First Nations group who engaged in a 30-year legal battle based on freedom of religion to oppose the construction of a year-round ski-resort in the Jumbo Valley in Eastern BC. The Ktunaxa believe that this site, which they call Qat’muk, is the home of the Grizzly Bear Spirit, and that if permanent structures were to be established anywhere in Qat’muk, the spirit would leave thereby destroying the spiritual significance of the land (Ktunaxa Nation2017: 36). In Ktunaxa Nation, the majority held that the Minister’s decision to approve the project did not infringe the Ktunaxa’s freedom of religion under s. 2(a) of the Charter, and the decision was “reasonable” given the amount of consultation that occurred as necessitated by the Crown’s fiduciary obligations per s. 35(1) of the Constitution Act 1982 (Ktunaxa Nation 2017: 388, 390). The minority concurred, holding that the Minister’s decision did infringe the Ktunaxa’s freedom of religion, but was justified as a proportionate balancing of the Ktunaxa’s Charter right and the Minister’s statutory obligations “to administer Crown land and dispose of it in the public interest” (Ktunaxa Nation 2017: 117-120). In January 2020, three years after the SCC’s decision, Jumbo Valley was declared an Indigenous Protected and Conserved Area with the support of the provincial and federal government.
For many, Ktunaxa Nation represents a missed opportunity in setting a precedent for an interpretation of s. 2(a) of the Charter that recognizes the unique connection between land and spirituality for many Indigenous groups in Canada (Williams 2019). Like Tsilhqot’in Nation, Ktunaxa Nation reflects a number of gaps in the SCC’s cross-cultural jurisprudence. For one, the interpretation of the majority represents a Eurocentric interpretation of manifesting religious freedom. The majority argues that the Ktunaxa’s claim goes beyond the scope of protections afforded under s.2(a) because it would “protect the presence of Grizzly Bear Spirit itself,” or the “spiritual focal point of worship” (Ktunaxa Nation2017: 71-73). According to the majority, the Ktunaxa’s freedom to manifest their belief through worship, teaching, and other practices was not under threat because the destruction of Qat’muk would not prevent them from believing in the Grizzly Bear Spirit (Ktunaxa Nation 2017: 71). This reading misunderstands the distinct nature of a religion that is rooted in the physical land – that the destruction of Qat’muk “affects the abstract significance of the practices, and not the ability to perform the practices per se” (Bakht and Collins 2017: 808). This approach is emblematic of law’s “cultural understanding of religion” and it’s tendency to “understand its subject through its own values” by projecting a Western conception of belief and worship that is not rooted in the physical land onto a non-Western religion (Berger cited in Borrows 2010: 243).
Moreover, the legal sources that the SCC considers in defining freedom of religion are primarily Western (Williams 2019: 12). The Court considers the Canadian precedents of R v. Big M (1985) and Syndicat Northcrest v. Amselem (2004), both cases involving Western religious traditions, along with international legal instruments such as the Universal Declaration of Human Rights (UDHR), the International Convention on Civil and Political Rights (ICCPR), and American and European human rights instruments (Ktunaxa Nation 2017: 61-66). The Court suggests that these instruments define how freedom of religion is understood ‘around the world’ (Ktunaxa Nation 2017: 66). A glaring gap in the legal instruments considered, however, is the Universal Declaration on the Rights of Indigenous Peoples (UNDRIP) (Williams 2019: 3). Articles 12(1) and 25 contain provisions that explicitly recognize the distinct spiritual ties that Indigenous groups have with the land (Williams 2019: 3). Article 12(1) frames freedom of religion in the Indigenous context as including a right to “their religious and cultural sites,” while Article 25 recognizes that “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands […]”(UNDRIP cited in Williams 2019: 9). The fact that the SCC makes no reference to the UNDRIP – itself borne out of a process of cross-cultural jurisprudence – reflects their failure in taking a cross-cultural approach to understanding freedom of religion in the Canadian context (Williams 2019: 3).
The minority judgment is a good critique of the majority’s western-centric interpretation of freedom of religion in this context. Moldaver and Cote JJ suggest that destroying Qat’muk would sever the Ktunaxa’s ‘connection to the divine,’ rendering any religious practices ‘hollow gestures’ and impairing their ability to pass down spiritual teachings to future generations (Ktunaxa Nation 2017: 133). Viewed in this way, the minority suggests the Minister’s decision to approve the development of a ski-resort in Qat’muk is a clear violation of the Ktunaxa’s freedom of religion (Ktunaxa Nation 2017: 121-133). Moreover, they explicitly refer to the centrality of land in Indigenous spirituality, arguing that the majority risks “foreclosing the protections of s. 2(a) of the Charter to substantial elements of Indigenous religions traditions” (KtunaxaNation 2017: 131). While this view demonstrates a deeper engagement with a non-western perspective on manifesting religious freedom, the minority is also culturally biased towards the common law. The fact that they hold that the Minister’s infringement on the Ktunaxa’s Charter right was justified due their obligation to act in accordance with statutory objectives implies a failure to truly appreciate the significance of Qat’muk from the Ktunaxa’s perspective. This perspective demonstrates a cultural bias that legislative imperatives and the administration of land in service of ‘the public’s interest’ are paramount over issues of deep spiritual significance (Borrows 2010: 250-251). It essentially understates the spiritual significance of Qat’muk for the Ktunaxa in favour of a ‘public interest’ that does not include them.
Arguably the most significant shortcoming of this judgment from a cross-cultural perspective is that it fails to appreciate the unique relationship of the Ktunaxa with the land from their perspective. Both the minority and majority suggest that the Ktunaxa advance a property interest under the guise of a religious freedom claim (Ktunaxa Nation 2017: 92,150). Although not explicitly stated in their reasons, this possibly influenced why the majority did not find an infringement of freedom of religion. This view suggests that ruling in favour of the Ktunaxa would amount to giving them ‘veto power’ over any developments in Qat’muk, which would be akin to the rights afforded to Aboriginal Title holders (Ktunaxa Nation 2017: 149). The cultural bias embodied in this recharacterization of the Ktunaxa’s claim is that property rights are necessarily distinct from religious or human rights, and that there are separate procedures that must be followed to claim these rights. However, the distinction between property rights and human rights that is characteristic of the common law might not be so clear from the Ktunaxa or other Indigenous legal perspectives. For the Ktunaxa, as for other Indigenous groups in Canada, land can be a source of spirituality, education, laws, or even a part of the body itself (Borrows 2010: 234-262; see also Borrows 2019 and Howes 2017). Speaking about Ktunaxa Nation, Bakht and Collins suggest that “Indigenous sacred sites are not just places where religion is practiced. Instead, they are often understood to form part of the very fabric of the people at issue, to be home to non-physical (but crucial) members of the community” (Bakht and Collins 2017: 782). Furthermore, in some contexts, such as among the Anishinaabe, the Earth itself holds human rights (Borrows 2010: 234-262). This understanding of land, law, rights, and spirituality is emblematic of the ‘total social phenomena’ of some societies where “all kinds of institutions find simultaneous expression: religious, legal, moral, and economic” (Mauss 1966: 1).
Viewing the destruction of Qat’muk from the Ktunaxa perspective, therefore, would make it difficult to determine that the Minister’s decision did not infringe on their freedom of religion or that this infringement was not minimal or trivial. Given that Qat’muk represents part of the ‘very thread’ of the Ktunaxa’s existence, there is a lot more at stake than a property interest. Narrowly construing the Ktunaxa’s claim as a property claim reflects the SCC’s ‘blindness’ to different, non-common law conceptualizations of law, land, and spirituality.
Towards Meaningful Cross-Cultural Jurisprudence
Tsilhqot’in Nation and Ktunaxa Nation are illustrative of gaps in the current state of Canada’s cross-cultural jurisprudence. In order to move more meaningfully towards cross-cultural jurisprudence, Indigenous legal sources, procedure, and reasoning should be given equal weight, recognition, and authority to the common law. Drawing on the literature, I suggest that two key changes need to happen. First, rather than through translation, as we have seen inTsilhqot’in Nation and Ktunaxa Nation, cross-cultural jurisprudence could be more meaningfully achieved through conversation. Second, judicial blindness should be replaced with judicial reflexivity to recognize and address how cultural biases influence the decision-making process (see Howes 2005 and Howes 2017).
Conversation rather than Translation
The dual perspective of the Aboriginal group and the common law is taken into account in Tsilhqot’in Nation, while the sincerity of the Ktunaxa’s belief in Grizzly Bear Spirit is acknowledged in Ktunaxa Nation. However, the Court ultimately translates Indigenous ways of relating to land into a common law definition of property rights in Tsilhqot’in Nation. In Ktunaxa Nation, the Ktunaxa’s unique spiritual connection with land is also translated into a perceived property claim. The inequality between the two legal systems is therefore apparent as one view supersedes the other. To achieve meaningful cross-cultural jurisprudence, Indigenous legal systems and the common law need to be put on equal ground (Hanna 2013; Borrows 2010: 114-131). One way to do this is through putting these two legal systems in conversation with one another to explore how they can learn from and inform one another to arrive at a cross-cultural definition of property rights and freedom of religion. A conversation between Indigenous legal systems and the common law would support the recognition of a distinct connection to land that is different from, and not simply translated into, ‘the square boxes of common law concepts’ (Tsilhqot’in Nation 2014: 31).
John Borrows’ seminal work, Canada’s Indigenous Constitution, suggests that key lessons can be learned from Canada’s bijuridicalism, which recognizes the dual legacies of the common and civil laws (Borrows 2010: 114-116). He calls for a move to multi-juridicalism that would more effectively integrate Indigenous legal principles into Canada’s justice system (Borrows 2010: 120). He suggests that: “In order to have the common law, civil law, and Indigenous law work together in a more harmonious way, we will have to find better words, phrases, and frameworks to acknowledge and facilitate their coexistence,” and this will “take us deeper into the realm of interpretation, dialogue, and argument” (Borrows 2010: 125). This echoes Niezen’s suggestion that the courts can benefit from a more scholarly culture of interpretation rather than fact-finding to more effectively adjudicate from a cross-cultural perspective (Niezen 2003: 13).Niezen asserts that the judicial emphasis on facts and clear-cut decisions prevents judges from exploring new ‘theoretical paradigms’ necessary for cross-cultural jurisprudence (Niezen 2003: 11).
An example of putting Indigenous law and the common law in conversation with one another is Alan Hanna’s exploration of Aboriginal Title (the common law conception) and Indigenous Title (the indigenous conception) (Hanna 2013: 371). Hanna draws on key Tsilhqot’in origin stories to suggest a more substantive definition of Aboriginal Title that reflects both common law and Indigenous legal perspectives. To illustrate how the Tsilhqot’in understand their own territorial jurisdiction, Hanna draws on the story of Lendix’tcux and the Tsilhqot’in practice of ‘making the rounds,’ a “pre-determined pattern of managed resource extraction” (Hanna 2013: 370). The story describes how Lendix’tcux and his sons, some of the original Tsilhqot’in ancestors, establish territorial jurisdiction through their journey through the land and the interactions they have with animals, the environment, and other humans (Hanna 2013: 376). Hanna suggests that territorial jurisdiction is established through Lendix’tcux’s creation of a reciprocal relationship with the other inhabitants of the land and through the establishment of power over them (Hanna 2013: 377).
The article also applies the common law case brief analysis methodology to three Tsilhqot’in stories: “The Young Man and Dt’an (Famine),” “Raven and the Salmon,” and “Tatlow (Ts’il?os).” These three stories illuminate the unique relationship that the Tsilhqot’in have with the land, highlighting the obligation of respect that the Tsilhqot’in owe to the land (Hanna 2013: 380-387). Hanna connects these four stories to the Tsilhqot’in’s contemporary practice of ‘making the rounds,’ which, he argues, has been simplistically described as nomadism by Canada’s courts (Hanna 2013: 369). He suggests that ‘making the rounds’ reveals that mobility and the reciprocal relationship of respect for the land are key features of Indigenous Title. Essentially, it is through traveling through and preserving the land that the Tsilhqot’in establish territorial jurisdiction (Hanna 2013: 388-394). Instead of an exclusive emphasis on occupation and control, title is established through mobility and respect for the environment (Ibid). Viewed in this light, the centuries-old efforts of the Tsilhqot’in to protect and preserve their land would be seen as evidence of Indigenous Title.
It is interesting to extend this definition to Ktunaxa Nation. At the time of the legal battle over Qat’muk, the Ktunaxa had a pending title claim and Aboriginal rights claim to the area. These claims were considered ‘weak’ at common law (Ktunaxa Nation 2017: 100). This makes sense if one were to apply only the common law definition of Aboriginal Title, as the Ktunaxa would likely not be able to prove sufficient occupation. The Ktunaxa do not occupy Qat’muk, but they are still bound to it in meaningful ways. Bringing the conception of Indigenous Title into the conversation could strengthen their claim by more accurately depicting the distinct nature of the Ktunaxa’s property interest. In this view, the act of not occupying the land could establish title. As such, the definition of Aboriginal title is expanded and strengthened in conversation with the concept of Indigenous title.
Putting Indigenous law and the common law in conversation with one another in the context of freedom of religion also reveals the potential for a new, more substantive definition that accurately recognizes the distinct spiritual and legal relationship of Indigenous peoples with the land. As noted in this paper, the SCC struggles to understand the distinct spiritual connection that the Ktunaxa have with Qat’muk representing a significant blind spot in cross-cultural reasoning. What could be missing from this interpretation, as Borrows has suggested in his exploration of Anishinaabe spirituality and the land, is that the Ktunaxa’s relationship with the land could also be interpreted as a legal relationship (Borrows 2010: 245). In the absence of a multi-juridical approach that recognizes what freedom of religion would mean from an Indigenous legal perspective, advancing a s. 2(a) claim would be seen as “stretch[ing] the law beyond its cultural context” (Borrows 2010: 243). The SCC’s assertion that the Ktunaxa’s claim is beyond the scope of s.2(a) reflects this (Ktunaxa Nation 2017: 60). In effect, the Indigenous spiritual connection to land cannot be so neatly translated into the common law conception of freedom of religion. Putting the common law and Indigenous legal conception of freedom of religion in conversation with one another would afford greater protection to Indigenous sacred sites by creating more space for learning what freedom of religion means from an Indigenous legal perspective. As a result, the definition of freedom of religion would be strengthened in affording a greater level of protection for religious minorities in important ways (Bakht and Collins 2017: 811). Moreover, cross-cultural jurisprudence in Canada would be strengthened by this approach by treating Indigenous and common law conceptions of freedom of religion equally. The UNDRIP is an example of the progress that international law has made in this domain, and the Canadian judicial system could learn from this by recognizing that freedom of religion in the Indigenous context entails a distinct spiritual, legal, and social connection with the land (Bakht and Collins 2017: 787; Williams 2019: 10-16).
Reflexivity rather than Blindness
The decisions in Tsilhqot’in Nation and Ktunaxa Nation reflect one of the negative impacts of blind justice that was alluded to at the beginning of this paper – that the blindfold externalizes law from humanity or culture and creates a barrier to reflexivity. This is evident in the SCC’s uncritical acceptance of the primacy of the common law in both decisions. In Tsilhqot’in Nation, this is reflected in the translation of non-common law ways of being and relating to the world into common law concepts, and in the uncritical acceptance of the Crown’s radical and underlying title to land. In Ktunaxa Nation, this is evident in the majority’s inability to grasp a non-Western understanding of manifesting religious belief, and the minority’s stance that legislative imperatives and the public interest are more important than the spiritual beliefs of the Ktunaxa. Both of these positions reveal a cultural bias towards the underlying cultural assumptions of the common law (Borrows 2010: 114). Recognizing this cultural bias through a process of reflexivity would help the Courts critically analyze their own decision-making process through understanding that they, too, have a cultural orientation to the law (Howes 2005; Howes 2017). In Ktunaxa Nation, this reflexivity could influence the majority to question why they see the Ktunaxa’s claim as beyond the scope of s.2(a), or for the minority to question why statutory objectives are more important than spiritual ones. In Tsilhqot’in Nation, reflexivity could influence a more critical approach to terra nulliusand the underlying title of the Crown that would question why the Courts see this as a given and why they do not explore a non-common law conception of title. This questioning of one’s own cultural assumptions, in turn, would create space for a more expansive understanding of the cultural context behind both cases by opening the door for a different perspective.
Howes suggests that this process of ‘culturally-reflexive legal reasoning’ is critical to cross-cultural jurisprudence in that it cultivates the capacity to see and hear multiple sides of the law (Howes 2005: 24). This process of reflexivity is a stepping stone to putting two distinct legal traditions in conversation with one another because it would involve recognizing that no single cultural tradition is objectively correct, and that there is space for questioning, learning, and dialogue. In this way, justice cannot be blind because blindness would impair the ability to see from two different perspectives: “Cross-cultural jurisprudence looks at the law from both sides: within and without, written and oral, common and “unique” (i.e. attuned to the specificities of the un-common law of the Indigenous tradition)” (Howes 2017).
Conclusion
We therefore return to our original question – should justice be blind? Ultimately, when it comes to the adjudication of indigenous rights pertaining to land – I argue that justice should not be blind. Tsilhqot’in Nation and Ktunaxa Nation illustrate that blind justice creates barriers to cross-cultural jurisprudence in Canadian constitutional law by blinding decision-makers to both their own cultural biases and the importance of recognizing cultural difference in Indigenous connections to land. To move towards meaningful cross-cultural jurisprudence in Canada, justice needs to ‘see’ from both angles – looking both inward to recognize and reflect on cultural biases inherent in the common law system, and outward in a genuine attempt to truly understand how Indigenous legal systems are different and arguably more authoritative when it comes to the adjudication of Indigenous rights. A justice that sees could be more objective than a justice that is blind because it would involve stepping outside of one’s own cultural biases to make room for a different perspective. If justice remains ‘blind’ to difference, then Courts will continue to engage in a jurisprudence predicated on inequality rather than cross-culturalism which will continue to disadvantage Indigenous groups in Canada’s judicial system.
Suzy is in the third year of the Transsystemic Programme at the McGill University Law Faculty.
Table of Authorities
JURISPRUDENCE
Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 SCR 1010.
Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 SCR 335.
Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (CanLII), [2017] 2 SCR 386.
Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), [2014] 2 SCR 257.
R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 SCR 295.
Syndicat Northcrest v. Amselem, 2004 SCC 47 (CanLII), [2004] 2 SCR 551.
R. v. Marshall, 1999 CanLII 665 (SCC), [1999] 3 SCR 456.
LEGISLATION
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295
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