By Paul Williams, Peskotomuhkati Lead Negotiator
This case clarified the rights of Indigenous people living in what is now the US to exercise an Aboriginal right in Canada under constitutional protection.
Kayanesenh ne wakhsennò:ten.
I am pleased to acknowledge my co-counsel,
my daughter Karenna.
She has urged the old man to do the speaking, today.
You clearly understand that this case
is about how nine non-Indigenous judges
interpret four words:
Aboriginal people of Canada.
Either those words acknowledge the timeless connection
between an Indigenous people and its land in Canada
Or “of” is a possessive term, a word of control,
that enables the Crown’s governments to distinguish
between “our Indians” and somebody else’s Indians.
Reconciling is a verb, not a noun.
The process is never ending,
It does not mean atoning for crimes, everybody getting along,
nor does it mean Indigenous peoples need to reconcile themselves to Canadian sovereignty.
Reconciliation, for you, is a purely legal concept.
It is becoming able to explain
the contradiction of two peoples and laws existing in one place.
How to continue to make room, in this land and its laws,
for Indigenous nations and their laws,
in the context of four centuries of assertions by the Crown
of sovereignty, ownership and jurisdiction.
The key to reconciling,
And the first step in every treaty relationship, is respect.
Respect for the connection between the people and the land.
Respect for the right of a people to decide who they are
and will continue to be.
It should not be, as Canada suggests,
that they must prove their connection, individual by individual
when they cross a line that Britain and the United States
drew one rainy day in Paris, 250 years ago.
I am lead negotiator for the Peskotomuhkati Nation
in its negotiations with the Crown
about Aboriginal and treaty rights and title to land in Canada.
Crown civil servants ask Peskotomuhkati representatives
whether they are from New Brunswick or from Maine,
whether they are Canadian or American
and they wearily reply, I am Peskotomuhkati;
I am from all of Peskotomuhkati territory.
We are still one nation.
The people on the south side of the narrow St. Croix Skutik River
many of them yearn to come home,
for historically, it was New Brunswick and Canada
that made their families refugees, and drove them away.
A brief grammatical point:
It is not “an Aboriginal peoples of Canada.”
“People” is singular.
The reality is that there are many peoples. Indigenous peoples.
Are the Sinixt an Aboriginal people of Canada?
Are the Peskotomuhkati?
Are my people, the Haudenosaunee?
Can this court’s answer to a people be:
Now some of you are, and some of you aren’t,
and it is Canada that gets to decide?
In this case, some of the Crown’s governments
have referred to the people who live on the south side of the line as “foreign residents,” or non-residents.
You cannot be a foreigner in your own land.
It is darker in French: etranger, a stranger.
Il m’est impossible d’etre etranger dans le pays de mon people,
nos racines dans ce sol sont d’une profondeur de dix mille ans.
For forty years,
this court has removed discriminatory parts of federal laws
that arbitrarily determined who is an “Indian”.
Is this case much different?
We recognize the need for security at the border.
It’s a reasonable limit
I happen to appreciate a closed border, these days
We recognize Canada’s need to protect its own sovereignty.
We are no threat to it.
The fundamental principle of respect requires another think about the meaning of the words
Aboriginal people of Canada.
You get to interpret the words. Purposely?
They, like the rest of Section 35, are remedial.
Before it, breaches of treaty and aboriginal rights were the law.
You interpret liberally in favour of the Indians,
You resolve ambiguities in their favour.
You do so in a way that upholds the honour of the Crown
in its pledges to its treaty partners
Including those partners who fought for the Crown in wars
against the United States after that boundary was drawn,
even the partners who found themselves south of that line.
The treaty that drew that line was made pursuant to the Crown’s prerogative authority.
That prerogative is always subject to the law of the land.
In Canada, the law of the land includes the laws of Indigenous nations.
They shape, guide and inform Canadian law.
Justice Binnie said that the constitution of Canada
has its deepest roots in the laws of Indigenous nations.
That recognition ought to help us all, together,
uphold the honour of the Crown.
Da neh tho.