Before newcomers came, and before settlement, and before the establishment of Canada, there were already … Indigenous legal orders here which governed people and the land. After Canada was established, those laws were … ignored … and I think it’s made a real difference to the land itself because in large measure the laws tended to be directed toward how to live responsibly with the land and with other life on the land. Section 35(1) … created constitutional space for those laws to flow back onto the land.
Ardith Walkem is a member of the Nlaka’pamux Nation and grew up in Spence’s Bridge, Salmon Arm and Chilliwack. With a BA in political science and women’s studies from McGill and her LLB from UBC, Walkem returned to school in 2002 with an expectation that Indigenous legal traditions will come to hold a place within the practice of law as a whole. Her LL.M. thesis, entitled “Bringing Water to the Land: Re-Cogniz-ing Indigenous Oral Traditions and the Laws Embodied Within Them,” explores the possibility of recognizing Indigenous legal orders and incorporating concepts of legal pluralism into the Canadian legal landscape.
“Courts have tended to recognize provincial and federal jurisdiction,” Walkem says. “There’s been an Absence of recognition of Indigenous jurisdiction. What I’d like to see is … for the constitutional discussion around Indigenous people’s rights to focus not on mere discrete practices or activities but on the Indigenous laws which animate Aboriginal rights and title.”
Since 1997, Walkem has run her own firm, employing an articled student and frequently contracting her services to other firms. She has also taught for UBC Law and for the Institute of Indigenous Government, and developed curricula on Aboriginal-Environmental guardianship for EAGLE. She writes for both legal and non-academic publications and has had her poetry and prose published as well as her scholarly articles.
Her practice doesn’t revolve around a particular location, but takes her to communities all over the province, and that’s a deliberate choice on her part. “I think part of the practice of law is that you have to decide what you want to accomplish in your life,” Walkemsays. “If you have a particular concept of justice that matters to you, then there are real opportunities … to make a difference. But sometimes those can be lost if you just follow a regular path. So if you have a very specific idea, you have to find news ways of practising.”
Walkem was part of the team that argued for the appellant in the Morris case (2006). The Tsartlip people and other Indigenous communities on southern Vancouver Island entered a series of treaties in the late 1850s with Governor James Douglas. Known as the Douglas Treaties, they’re considered federal Peace and Friendship treaties and guaranteed the people the right to hunt and fish as they had always done, without interference from the province. However, they contain what appeared to be a land extinguishment clause; they also bear a series of Xs in place of the signatures of the people.
“So we jump forward 150 years or so,” Walkem picks up the story, “and Wayne Morris and Carl Olson are out hunting for their families and their communities. What they’re doing is they’re hunting at night and … this is a very important part of their hunting tradition. Originally they would have hunted at night with pitch fashioned into torches, or alternatively burned pitch in bowls at the front of canoes. That evolved into the use of miners’ lamps or flashlights. And it was hunting with a flashlight that they were arrested for.”
The province purported to blanket extinguish the people’s right to hunt at night based on concerns about safety. The Tsartlip responded by saying that they had been hunting in such a way for 150 years and more, and they introduced evidence that in the whole history of their night hunt, no one had ever been harmed, due to their very strict hunting laws and practices. When the case went to the Supreme Court of Canada, the court decided that because this dealt with a federal treaty, the province did not have the right to step in and regulate it, even if they could argue safety concerns. The court also took exception to the fact that the province had attempted to extinguish a method of hunting that had been integral to the Tsartlip way of life since time immemorial.
“It is important because it … affirms that treaties are a federal responsibility,” Walkem says, “and that absent specific terms of the treaty that would allow the province to do so, the province can’t come in and regulate or attempt to restrict the exercise of treaty rights. It was a very big victory for the people.” As an Aboriginal person using law to advance the rights of
Aboriginal people throughout Canada, Walkem says, “I think that … you carry a knowledge with you of the Indigenous perspective and Indigenous laws and … knowledge about what the impact is and why it’s so crucially important to Indigenous peoples to achieve that recognition. I think maybe [I have] a heightened sense of responsibility because of that awareness.”
At the same time, Walkem sees an opportunity to share that responsibility, and she looks to the law school as a place where leadership for such an initiative might come. “There’s a possibility at the law school and in the legal community to present real opportunities for the involvement of non-Indigenous people in moving this forward,” she says. “I think there’s an opportunity to explore through the law school how that doesn’t have to be an adversarial process, how it can be a fundamental part of moving forward as a society to incorporate non-Indigenous and Indigenous peoples in a project of recognition of Indigenous legal order.”
The benefits, she believes, would flow both ways: “In many respects, Indigenous laws are very responsive to what the land and waters need to continue to sustain life. So there’s a possibility from within those traditions to teach people how to live in a different relationship with the land. I think when we’re engaged in a process of seeking justice on a societal basis then it won’t merely help Indigenous peoples; that benefits everybody.”
Written by Diane Haynes and originally published in the UBC Law Alumni Magazine, Winter 2008.