If There Can Only Be “One Law”, it Must be Treaty Law.

Abstract

The paper stems from a research collaboration with the Anishini or Oji-Cree community of Kitchenuhmaykoosib Inninuwug (KI), known as the people of Big Trout Lake in the far north of Ontario. In the face of renewed threats of encroachment by extractive industries onto their homelands, the community leadership invited our research team to visit in 2017. The community was engaged in strategic planning and reflection on the work that they have done in recent years to articulate and record their own laws for the territory, and to gain recognition for those laws from settler governments. Between 2008 and 2018, the community drafted a Declaration of Sovereignty, a Governance Framework, a Watershed Declaration, and a Consultation Protocol, amongst other “operational documents” describing their Indigenous legal order. This period of community-led legal drafting was stimulated by a dispute between the community and a mining company, Platinex, that culminated in 2008 with the jailing of the Chief, four members of Council, and another community member who became known as the “KI6”. Despite community members describing their obligation to protect the land drawn from the key legal concept of Kanawayandan D’aaki, roughly translated as “keeping my land”, the KI6 were convicted of contempt of court for disobeying a court order to provide Platinex with access for its drilling program. The courts’ message to the community in 2008 was essentially that only “one law” could govern the land; the application of settler law on KI lands could not accommodate the community members’ obligations under Indigenous law. In our collaboration, community members expressed an interest in exploring the question of whether the process of writing down their laws would assist the community in any future encounters with the Canadian legal system in disputes over resource extraction.

In this paper, we draw on the transcripts from workshops conducted in KI in 2017 to share insights into the motivations of the community in articulating their laws, and we explore the question of how to reinvigorate historic treaty interpretations so as to produce “one law” inclusive of Indigenous legal orders. We conclude that if there can be only “one law” on treaty territory, it must be a renewed and reinvigorated treaty law. We draw on principles and mechanisms from the modern treaty context, and positions emanating from the communities in recent regional negotiations, to explore how pressing decisions on the use of the land and resources could be made differently in Treaty 9 territory. In our vision, in situations where settler law says “yes” and Indigenous law says “no” to a resource extraction project, treaty law must provide a principled framework for moving forward.