You are on page 1of 15

Zoe Todd

From a Fishy Place: Examining Canadian State


Law Applied in the Daniels Decision from the
Perspective of Mtis Legal Orders
ABSTRACT

RSUM

Nous examinons dans cet article la dcision Daniels de la Cour suprme du Canada
depuis la perspective du systme juridique mtis et des relations humains-poissons.
Nous proposons une analyse hydrographique des relations et des responsabilits
mtisses, dans lespace et dans le temps. Afin daccomplir le point 45 des appels
laction de la Commission de vrit et de rconciliation, qui reconnat la ncessit
pour le Canada de concilier les affaires constitutionnelles et juridiques des peuples
autochtones au droit canadien, les tribunaux doivent arrter de dfinir les Mtis
selon des discours externes propos de leur identit et de leur faon de gouverner.
Au lieu de cela, un changement doit soprer pour reconnatre la complexit et la
richesse de la structure juridique mtisse. Il est par ailleurs important que les universitaires dans le domaine du droit reconnaissent que certains aspects du systme
juridique mtis sont co construits par des relations avec des tres surhumains et par
une responsabilit envers ces derniers. Ainsi, les relations avec les poissons, entre

TOPIA 36

This piece examines the Supreme Court of Canadas Daniels decision through the
lens of Mtis legal orders and human-fish relations. It offers watershed-level analysis of Mtis relationships and responsibilities through space and time. In order to
meet the Truth and Reconciliation Commissions Call to Action number 45, which
acknowledges the need for Canada to reconcile Indigenous legal orders with Canadian law, courts must stop defining the Mtis through outside discourses of who
they are and how they govern themselves. Instead, there must be a shift towards
acknowledging complex and rich Mtis legal orders. Further, it is important for
legal scholars to acknowledge how specific aspects of Mtis legal orders are coconstituted through relationships with, and responsibilities to, more-than-human
beings such as fish, and that these relationships are bound to and enacted through
ongoing labour between humans and fish in particular waterways throughout the
prairies. Scholars and policy-makers alike must de-anthropocentrize understandings of how Mtis conceive of and govern their relationships to lands and waters.

43

autres, sont la fois enchsses et ralises par le travail continuel humains-poissons


partout dans les cours deau des Prairies. La recherche et llaboration des politiques
doivent en outre dsanthropocentrer leurs approches pour comprendre la relation des Mtis aux terres et eaux.
KEYWORDS: Mtis legal orders; human-environmental relations; fish; Red River

Mtis; water

Law is basically a collaborative processsomething that groups of people


do together. Law is never static, but rather, lives in each new context. In
fact, one of the most important things to understand about any law is how
it changes. And it has to change in order to be an effective part of governanceit has to be appropriate to new contexts and circumstances or it
simply will not work. It also it has to be appropriate to the experiences of
the people or it will have no meaning or legitimacy. And most importantly,
law is about thinking.

Val Napoleon, Thinking About Indigenous Legal Orders


TOPIA 36
44

Introduction
In the morning of June 23, 2016, fisheries biologist Owen Watkins explained to a
rapt host on CBC Edmontons morning show that local researchers were following
the movements of the once extirpated lake sturgeon of the North Saskatchewan
(CBC 2016). As the radio host asked questions about the movements and behaviours of the now-recovering sturgeon (or namew in nehiyawewin/Plains Cree), the
scientist offers a story of one six-foot sturgeon they have tagged who travels annually all the way from Edmonton to Saskatchewan and back. Prairie fish, it seems,
are hardly homebodies.
Fish are political citizens within the territories that Canada claims. They have
nourished, and continue to nourish, Indigenous and non-Indigenous peoples alike
across every single part of the country. This nourishment is not only physical, but
encompasses a host of philosophical, legal governance, sociocultural and political
matters (Todd 2016). To speak of politics is to speak of not only our relationships
to institutions like the state and its first-past-the-post voting logics, but to speak, in
fact, of the responsibilities we hold to the plethora of other citizens and beings who
move through, shape and story the lands and waters that we call Canada (Watts
2013). The story of the sturgeon moving freely along the river from Edmonton all
the way to Saskatchewan brings a smile to my face. This wily fish implodes our
understandings of political boundaries. How many counties did that fish swim
through? How many bridges did it swim beneath? How many stories does it carry

with it on its journey? And what happens to this fish and other fish when oil spills
on the North Saskatchewan pollute and violate watery worlds, as happened on July
21 of this year (CBC 2016b)?
These are the types of questions that animate my current work. After working in
the community of Paulatuuq in the Northwest Territories throughout the winter,
spring and summer of 2012, I was compelled by my experiences discussing humanfish relations, legal governance and the refraction of colonial orders with Inuvialuit
interlocutors in the communityincluding Andy and Millie Thrasher, the late elder
Annie Illasiak and many othersto consider what legal governance realities Mtis
peoples, like my own family, owe to our historical and contemporary relationships
to fish and water in the Prairies. Now you may be wondering what this has to
do with the Supreme Court of Canadas recent decision in the case of Daniels v.
Canada. Let me explain.

While the State has, normatively, tended to approach questions of governance and
law in Canada as a solely human endeavour, Indigenous peoples continuously assert
the importance of acknowledging the role of more-than-human relations in framing what it means to live with care and to honour obligations within the territories
that Canada lays claim to today (Borrows 2010: 3-16; Napoleon 2007; Napoleon
2013; Todd 2014). I seek here to ask what it means to de-anthropocentrize the
States application of law in the recent Daniels decision, and to theorize what it
means to take on this decision from the perspective of our responsibilities as Mtis
peoples to more-than-human beings, in this case fish.

TOPIA 36

Journalists and pundits alike have spent a great deal of time in recent months
interpreting the Daniels decision. While much of the commentary in the media has
focused on State legal definitions and State law (Fontaine 2016), less media attention in Canada has focused on what the decision means for engaging and practicing
Indigenous legal orders in Canada, and on the practice of Mtis legal orders more
specifically. In this short piece, I seek to examine what the SCC decision means
for people doing work rebuilding Mtis legal orders. Specifically, I am interested
in how Mtis human-fish relations come to bear on the expression and practice of
Mtis legal orders in Canada today, and how the Daniels decision may impact this
work. In focusing on human-fish relations, I also explore how the courts decision
may impact ongoing work by Mtis activists, scholars and community members to
honour Mtis relations to other Indigenous nations (and more-than-human beings
such as fish) through the lands and waters that we share in the Lake Winnipeg
watershed.

45

Background on the Daniels decision


In April of this year, the Supreme Court of Canada (SCC) released its decision in
the case of Daniels v. Canada, a case which was launched in 1999 (Daniels v. Canada 2016). The case deals with the jurisdictional relationship between the Crown
(Canada) and Mtis and non-status Indians for the purposes of interpreting section
91.24 of the Constitution Act, 1867. It is important to break down what this means,
as many commentaries in the media have been imprecise in their interpretation of
the Supreme Courts decision. The Court lists the three principles or declarations
that were sought in the case:
(1) that Mtis and non-status Indians are Indians under s. 91(24) of the
Constitution Act, 1867;
(2)that the federal Crown owes a fiduciary duty to Mtis and nonstatus
Indians; and
(3)that Mtis and nonstatus Indians have the right to be consulted and
negotiated with (Daniels v. Canada 2016).

TOPIA 36
46

The court upheld the first declaration, but rejected the other two on the grounds
that they are redundant, in keeping with the reasoning laid out by the trial judge
(Daniels v. Canada 2016: para. 8).
So, what does the upholding of the first declaration mean, practically? Section 91
of the Constitution Act, 1867 outlines the powers of Parliament and section 91.24
states that the Parliament has power over Indians, and Lands reserved for the
Indians (Government of Canada 1867). The Daniels decision sought, in part, to
make the government articulate whether Mtis and non-status peoples are Indians for the purposes of interpreting this section of the Constitution Act, 1867. This
has implications for various matters, such as funding for programs, which have
been volleyed back and forth between provincial and federal agencies (Daniels v.
Canada 2016: para. 14). What the decision does not provide guidance on are the
substantive and complex aspects of Mtis law as it was and is practiced by Red
River Mtis peoples in the nation now identified as Canada. While the Daniels case
addresses the matter of whether the federal government has jurisdiction over Mtis
as Indians for the purposes of section 91.24 of the Constitution Act, 1867and I
do not want to understate the importance of this jurisdictional clarity for Mtis and
non-status peoples who have weathered the uncertainty of being in limbo between
jurisdictional wastelands (Daniels v. Canada 2016: para. 14)the jurisprudence
employed in the decision remains firmly a matter of colonial law and government.
I am aware that other articles in this issue of TOPIA tackle questions of who are
the Mtis to whom this legal decision applies. I want to complement this work by
delving into another aspect of Mtis governance and polity: the articulation and
practice of Mtis legal orders through relationships to more-than-human beings,

such as fish, in the Lake Winnipeg watershed. First, however, I will outline what I
mean by Indigenous legal orders and Mtis legal orders.

Mtis legal orders


As Indigenous legal scholar Val Napoleon (2007: 4) demonstrates in the epigraph
to this piece, law is about thinking. And it is very crucial, in this time of reconciliation, not to lose sight of the importance of thinking, carefully and deliberately,
about the impacts of our words, stories and philosophies as scholars upon the very
communities we are part of and which are affected by how we articulate ideas about
Mtis peoplehood, governance, politics and existence. For this work, I see Indigenous legal orders as a very important framework through which to approach and
critique the States (and non-Mtis scholars and policy advisors) understanding of
who the Mtis are, what relationships we embody and tend to, and how we move
through both space and time.

Law is one of the ways we govern ourselves. It is law that enables large
groups of people to manage themselves. Law is something that people
actually do. Indigenous peoples applied law to harvesting fish and game, the
access and distribution of berries, the management of rivers, and the management of all other aspects of political, economic, and social life. (Napoleon
2007: 3)

Therefore, not only does Indigenous law encompass human relations, it ties humans
into rich and reciprocal relations to the more-than-human world.
Law informs legal orders, as Napoleon articulates:
I use the term legal order to describe law that is embedded in social, political, economic, and spiritual institutions. For example, Gitksan, Cree, and
Dunnezah peoples had legal orders. Indigenous law is a part of and derives
from an Indigenous legal order. In distinguishing between legal systems and
legal orders, I hope to avoid imposing western legal ideas onto Indigenous
societies. (Napoleon 2007: 2)

This distinction that Napoleon draws between western legal systems and Indigenous legal orders is pertinent to understanding the tensions at play in decisions
about government obligations to the Mtis. It helps us to understand that the
Supreme Court, as it currently operates, is functioning within the world of legal

TOPIA 36

Indigenous legal orders and Indigenous legal traditions are a body of scholarship
that is gaining traction in Canada. Scholars such as Val Napoleon, John Borrows,
Tracey Lindberg, Kahente Horn-Miller, James Tully and many others contribute to
this rich and dynamic body of work. Law is important and pertinent to understanding human-environmental relationships, and relationships to more-than-human
beings, as Napoleon demonstrates:

47

systems which draw on their own Eurocentric philosophical and practical traditions (Pohlmann 2014). In contrast, there is a growing awareness in Canada that
Canada has a duty to acknowledge the Indigenous legal traditions and legal orders
that animate every single territory, watershed, coast, and climate across Canada.
Indigenous legal orders are acknowledged and affirmed by the Truth and Reconciliation Commission (TRC) in its Executive Summary. Call to Action number 45
calls upon Canada to develop a Royal Proclamation of Reconciliation, which shall,
amongst other goals:
Reconcile Aboriginal and Crown constitutional and legal orders to ensure
that Aboriginal peoples are full partners in Confederation, including the
recognition and integration of Indigenous laws and legal traditions in negotiation and implementation processes involving Treaties, land claims, and
other constructive agreements. (TRC 2015: 253)

TOPIA 36
48

Although the importance of Indigenous legal orders is acknowledged in the TRC


Report, the Court does not affirm or contend with Mtis legal orders in a thorough
way in the Daniels decision. There is little excuse for this, given that the TRC issued
its Executive Summary and Calls to Action almost a full year prior to the release
of the Daniels decision. Will Indigenous peoples have to wait until the government gets around to issuing a Royal Proclamation before Indigenous legal orders
are given meaningful consideration? The omission of Mtis legal orders in Daniels
raises significant red flags about the utility of the Courts 2016 decision as a tool
through which to understand and honour the dynamic and complex ways that the
Mtis have governed and continue to govern themselves throughout the Prairies.

Mtis traditional governance and laws


What do Mtis legal orders look like? There is currently a paucity of work on the
topic, at least none that engages at a deep level of detail. However, there are works
which examine issues of Mtis governance, as well as traditional Mtis legal and
political practices. For example, Mtis scholar Adam Gaudry (2014) demonstrates
the interconnectedness between buffalo hunting and Mtis governance:
Nineteenth-century Mtis buffalo hunt governance embodied kaa-tipeyimishoyaahk and wahkohtowin in integral ways, using them as the language of
legitimate expression of Mtis political authority. Even after the decline of
the prairie buffalo and the end of the great buffalo hunts in the 1870s, the
basic principles they embodiedkaa-tipeyimishoyaahk and wahkohtowin
and the political language they created, continued to inform how Mtis governed themselves and expressed their collective political authority. (Gaudry
2014: 78)

Gaudry draws here on the work of Brenda MacDougall (2011: 3), who explains
the importance of wahkohtowin (or wahkootowin), a principle of kinship and

relatedness, to the lives and governance of Mtis in le--la-Crosse in the 19th


century, situating this principle within the broader relations between Mtis, Cree
and Dene in the community:
wahkootowin is predicated upon a specific Aboriginal notion and definition
of family as a broadly conceived sense of relatedness with all beings, human
and non-human, living and dead, physical and spiritual. (MacDougall 2011:
3)

This inter-relatedness, reciprocity and kinship is instructive in understanding Mtis


governance in the past and present. As MacDougall demonstrates, this engages
relationships to beings beyond anthropocentric paradigms. The role of family as
a foundational unit of Mtis governance is explored in depth in MacDougalls
work, and Barkwell et al. (2007: 9) also explore this concept in their work, which
documents Mtis customary laws. This historical focus on relationships, reciprocity
and kinship helps us to understand what Mtis legal orders look like today, and
allows us to problematize the conspicuous omission of a meaningful engagement
with Mtis legal orders, as defined by Red River Mtis people, within the Daniels
decision.

Friedland and Napoleon (2015: 17) urge us to focus our time and energy on the
matter of rebuilding Indigenous legal orders. This requires that we pay attention
to historical Mtis governance and political orders, while also contending with the
contemporary needs and realities of Mtis. I argue that in order to rebuild Mtis
legal orders, we need to pay attention to a) Mtis relationships to, and duties and
obligations towards, First Nations, and b) Mtis responsibilities towards morethan-human beings (such as fish).
In this piece, I employ an understanding of Mtis as a post-contact Indigenous
people who inhabit Plains territories in western Canada (and some parts of the
northern United States). Chris Andersen offers a pithy explanation of who the
Mtis are:
Im talking about the buffalo-hunting people situated on the northern
plains,says Andersen, interim dean of the University of Albertas Faculty
of Native Studies. Im talking about people that sprung up at the very end
of the 18th century into the 19th century who were involved in the Battle
of Seven Oaks in 1816 and had this core political, economic and social set
of dynamics from the early 19th century onward, centred but not solely in
what is now Winnipeg, Manitoba. (quoted in Stirling 2016)

As Andersen indicates in this quote, the role of bison-hunting is a factor in the


articulation of Mtis as a people. Understanding the relationship between Mtis

TOPIA 36

Mtis legal orders and the Lake Winnipeg watershed

49

peoples and more-than-human beings such as bison is important in order to grasp


governance roles, history, spatio-temporal distribution and political relations of
Mtis communities in the 19th and 20th centuries (Andersen 2014; Gaudry 2014).
This line of thinking also, implicitly, brings our attention to land-based relationships. Understanding how Mtis peoples related to land and more-than-human
beings is also key to comprehending the nuanced and dynamic relationships Mtis
had and have with First Nations whose territories they moved within, and to which
and through which they negotiated legal governance relationships.

TOPIA 36
50

Bison were not the only animal that Mtis worked with or consumed. For example, MacDougall provides nuanced and detailed examples of Mtis involvement
in fisheries at the Hudsons Bay Company post at le--la-Crosse, also known
as Sakitawak, in northern Saskatchewan in the late 19th century (MacDougall
2011: 143-144). In other words, companies like the HBC required the skill and
knowledge of Mtis, Cree and Dene peoples about fish and fishing in the English
River district in order to function. Fish, people, economies, political orders and
legal orders are deeply entwined throughout the history of the Mtis in the northwest. This is also true for other Indigenous communities and nations. For example,
Frank Tough (1984; 1996) has demonstrated that human-fish relations in northern
Manitoba were a significant site of colonial incursion and disruption of Indigenous
land and water-based relationships (and I would argue, governance) in the late 19th
and early 20th centuries.
In my own work in Paulatuuq (Todd 2014; Todd 2016), I demonstrate that while
fisheries policies are a node of colonial incursion in northern livelihoods, humanfish relations can paradoxically also act as modes to resist and refract colonial
attempts to erase and obliterate Indigenous legal orders. Through and with fish,
Paulatuuqmiut (Paulatuuq people) consciously and creatively resist attempts by
various state actors to apply colonial logics vis--vis human-animal and humanenvironmental relations. Community members mobilize what Inuvialuit thinker
and politician Rosemarie Kuptana (2014) terms Inuit principled pragmatism,
intimately binding human-fish relations to the mobilization of local legal traditions while also contending with the states assertions of western, science-based
conservation policies.
With this in mind, I want to draw our attention to the relationships between Mtis
and prairie watersheds. The connection between Mtis, watersheds and legal orders
gives us the analytical tools with which to situate the erasure of Mtis legal orders
and Mtis-fish relations within case law like Daniels. There is extensive literature
which draws out the relationship between Mtis and Anishinaabek, nehiyawak,1
Lakota, Saulteaux, Dene and other First Nations across the prairies (see, for example, Andersen 2014, Gaudry 2014, MacDougall 2011 and Innes 2013). Building on
these texts which draw out the dynamic and reciprocal relationships between Mtis,
First Nations, land and time in the prairies, I want to examine these relationships

from a slightly different angle, specifically through the perspective of fish, watersheds and their interconnections.

The absence of reference to human-fish relations and the Lake Winnipeg


watershed in the Daniels decision

My colleague Darren OToole recently brought to my attention a new, high-resolution map of the Lake Winnipeg watershed that Canadian Geographic released
in conjunction with a collective of research institutions in Canada and the USA as
part of the OPEN Water Project (Canadian Geographic 2016; Hall 2016; OToole
2016). Dr. OToole pointed out the links between the watershed and Mtis peoples
themselves. The watershed stretches from the Rocky Mountains in the west to the
border between Manitoba and Lake of the Woods to the east and encompasses 17
major drainage basins, including the North and South Saskatchewan, the Bow, the
Red River, QuAppelle, Souris, English and Winnipeg Rivers (Canadian Geographic
2016). These drainage basins feed into Lake Winnipeg, one of Canadas Great
Lakes, and eventually their waters move out into Hudsons Bay. The watershed also
incorporates waters that flow into it from North Dakota and Minnesota.
I do not argue here that the Mtis claim all of the territory within the Lake Winnipeg watershed, nor that they are limited solely to the boundaries of this watersheda rigid comparison erases communities like le--la-Crosse and La Loche in
Northern Saskatchewan, which are part of the adjacent Churchill River watershed.
Rather I wish to expand on my colleagues point that much of the movement of
Mtis people as a polity has taken place within, or adjacent to, the bounds of the
watershed itself. This relationship, not only to land but also to waters, requires that
we carefully consider our responsibilities as Mtis people to the peoples who also
share this watershed, and to the more-than-human beings who inhabit the waters

TOPIA 36

Mtis relationships to particular bodies of water, and fish within these waterways,
are an intrinsic part of what it means to enact Mtis legal governance today. Specifically, Mtis relationships to water and fish within the Lake Winnipeg watershed
hold significant promise in shaping contemporary scholarship and case law on
Mtis governance. However, the relationship of Mtis peoples to fish and peoples
within the Lake Winnipeg watershed remains an under-examined area of inquiry
and is not addressed in Daniels in any substantive way. I sketch out Mtis relations
to the Lake Winnipeg watershed here, to bring light to the importance of this
watery geography in shaping Mtis legal orders. I do so in order to demonstrate
why the omission of the Lake Winnipeg watershed and the concomitant legal
governance relationships it shapes mar how Daniels can be viewed as a substantive
commentary on Mtis legal orders. Further, the omission of Mtis relationships to
the Lake Winnipeg watershed within SCC deliberations can in turn distort how
Mtis peoples enact our responsibilities to those we share territory with on the
prairies, be they human or more-than-human kin.

51

that drain into Lake Winnipeg. In turn, legal actorsincluding the SCC in its role
in hearing the submissions made in Danielsinterpreting Mtis relationships to
other Indigenous peoples, to more-than-human beings and to various communities of struggle within Canada must acknowledge the conceptual limits of a solely
land-based interpretation of territoriality. Such a narrow focus on land-as-territory
limits the utility of state interpretations of Mtis peoplehood and legal governance, as it erases ongoing responsibilities Mtis peoples carry through, across and
within watery sites. The erasure of Mtis-fish and Mtis-water relationships within
the Lake Winnipeg watershed in the legal reasoning of Daniels diminishes the
significance of the labour that Mtis peoples perform in tending to, renewing and
sustaining ongoing relationships to more-than-human beings within a specific and
bounded watershed through time and space. The labour of co-constituting relationships to the waters and fish of the Lake Winnipeg watershed is integral in shaping
the material and metaphysical sustenance and governance of Mtis as a people.
So how do water-based relationships come to bear on Mtis legal governance? And
what does this mean for the SCCs interpretation of who the Mtis are in Daniels?
Andersen describes the movement of Mtis peoples and meanings (and here I
would add stories and laws) in a recent interview:
TOPIA 36
52

A really useful way to think about Mtis peoplehood historically is to


understand the importance of Winnipeg, to understand the importance of
Fort Edmonton, as being heartbeats, like actual heartbeats that pull people
in, push people out, pull goods in, push goods out, pull meanings in, push
meanings out.
Anderson [sic] explains that the movement of Mtis people among these
centres was a major factor in shaping Mtis culture. Mtis circulate in
all kinds of different waysculturally, socially, politically, economically
between those different locales, those different heartbeats. (Stirling 2016)

Andersen, here, centres a logic of territoriality in understanding who the Mtis are.
The land and territory the Mtis moved and move through on the plains is integral
to understanding who they are. Taking Andersens metaphor as a starting point,
we can employ it to understand the role that the rivers, lakes, streams and creeks
and other water bodies play within the movement and stories of Mtis people on
the plains. If Winnipeg and Fort Edmonton have heartbeats, then the entire Lake
Winnipeg watershed is pulsing with arteries and veins that assist this movement
of people, ideas, laws, stories and meanings. In fact, Connie Wyatt Anderson, with
the OPEN Water Project, points out:
Spending summers on the shores of Lake Winnipegosis at Dawson Bayin
my mind, Lake Winnipegs little brotherI realized very young thelivingaspects of Manitobas inland seas. The lakes form the arterial centre of
the Lake Winnipeg Watershed, connecting millions of people. (Starr 2015)

These heartbeats and arteries, together, form a vital metaphor which helps us to
comprehend the breadth and complexity of Mtis peoplehood, Mtis territoriality and Mtis legal orders in the past and present. As such, a focus on fish and
water is necessary in order to understand the interconnections between discrete
moments, spaces and stories that shape the Mtis as a people. In other words, the
Lake Winnipeg watershed and its watery more-than-human inhabitants provide us
with additional conceptual tools with which to understand the already well-known
and explored stories and meanings of buffalo and hunting which are articulated so
clearly in existing scholarship and case law (R. v. Powley 2003). Land and water,
together, help us to imagine Mtis responsibilities to space and time in a more
nuanced and robust way.

Though the Supreme Court does reference traditional Mtis fishing practices in the
text of Powley, the substantive wildlife conservation issue in the case was land- and
hunting-based. The citation of Powley within the argumentation of the Daniels
decision embeds a hunting-based articulation of Mtis legal orders within the
broader Daniels decision. What is conspicuously absent, however, in the argumentation of Daniels, is a gesture towards prairie waters and fish. The Courts framing
implicitly embeds specific ideological artifacts that prioritize hunting relationships
over other human-animal relations. This has the undue effect of obscuring Mtis
philosophies, laws and responsibilities carried through, with and alongside fish and
water through the Lake Winnipeg watershed. However, it is unsurprising these
prairie water-based Mtis philosophies are erased when the Court itself only cites
a single Mtis author (Clment Chartier) in Daniels, amongst 16 authors cited. We
are not at the point where the Supreme Court is reconciling state law and Mtis
legal orders in a meaningful way.
The Court is remiss to overlook the crucial role that fishing and watershed-based
relationships also played and play in shaping Mtis responsibilities toward place,

TOPIA 36

The Supreme Court references the Powley decision in its reasoning in Daniels
(Daniels v. Canada 2016: para. 49). The Powley decision focuses on Mtis rights
to hunt, vis--vis section 35(1) of Canadas Constitution Act, 1982. In the Powley
case, two Mtis hunters from Sault Ste. Marie in Ontario were charged with hunting a moose without a license (R. v. Powley 2003: para. 2). The trial judge in the
case found that the respondents had an aboriginal right to hunt for food that is
infringed without justification by the Ontario hunting legislation (R. v. Powley
2003), which the Supreme Court upheld. Further, in order to determine whether
the respondents possessed this Aboriginal right to hunt under section 35(1) of the
Constitution Act, 1982, the court set out five criteria to determine the validity of
claims to Mtis rights under section 35(1). I argue that the hunting issue in Powley
is not peripheral, but rather integral, to the Courts legal reasoning regarding Mtis
peoplehood. Mtis human-animal relations therefore play a significant role in shaping contemporary state understandings of who the Mtis are.2

53

more-than-human beings and other Indigenous nations within the territories that
Mtis inhabit in the Prairies. In other words, in relying so heavily on state and
non-Indigenous concepts of Mtis legal governance in its deliberation regarding
Mtis peoples, the Court misses significant and important contexts, meanings and
sources of Mtis legal governance, political and social praxis. Without these broader,
nuanced and rich aspects of Mtis peoplehood and polity embedded in the decision,
particularly the importance of complex Mtis relationships to diverse more-thanhuman entities and water-based beings in shaping Mtis legal governance responsibilities, the Daniels decision should be read explicitly as a matter of jurisdictional
clarity. The rest of the material referenced in the decision is deeply fraught for its
erasure of Mtis legal orders as they are articulated, enacted and embodied through
land- and water-based relationships throughout the Lake Winnipeg watershed and
other geographies and temporalities that tie Mtis peoples and their legal orders
to the Red River Settlement.

Conclusion

TOPIA 36
54

This brief commentary sets out four keys point. First, the Supreme Court cannot be
relied upon to elucidate for Mtis people our own legal order(s) or polity. Second,
in order to rebuild our legal orders, as Napoleon and Friedland (2015: 17) urge
Indigenous peoples to do, we must turn to and acknowledge the significance of
relationships with, and responsibilities to, more-than-human beings (such as fish).
Third, it is helpful to shift our concepts of territoriality to ones that incorporate
watershed-level thinking in order to flesh out land-based understandings of the
Mtis as a people. Fourth, Mtis peoples must be attentive to the ways that erasures
of our relationships to more-than-human beings like fish within Supreme Court
decisions like Daniels can constrict and distort how we enact our responsibilities to
other Indigenous nations and peoples throughout the Lake Winnipeg watershed.
Now, to return to the sturgeon and her stories from the beginning of this piece.
A lake sturgeon can live up to 154 years (Betkowski 2011), meaning that the very
sturgeon moving within the North Saskatchewan can span lifetimes far beyond
humans. A lake sturgeon at the end of an uninterrupted life could today, theoretically, carry stories with it older than the Dominion of Canada itself. But, much like
the Mtis, the lifeways and movements of sturgeon have been heavily affected by
colonial incursions. And fish like sturgeon continue to be at risk from impacts of
things such as oil spills on the waterways of the Lake Winnipeg watershed (CBC
2016b). Nonetheless, even with heavy effects on their habitat, evidence indicates
lake sturgeon are reviving in the prairies (CBC 2016).
Growing up, my Dad and family members taught me about the many ways that
Mtis have resisted the states attempts to delimit our freedom and governance.
In other words, within the space of nearly 150 yearsthe lifetime of a healthy
sturgeonthe Mtis have resisted the Canadian government in two resistances

(Andersen 2014: 113-115); pushed for the articulation of a formal agreement


between the Mtis people and the government under the Manitoba Act (Andersen
2014: 114); been pushed westwards by settlers; lived as road allowance people
(Campbell 1983); had their children removed and taken to residential schools
(TRC 2015: 13); survived scrip fraud (Tough and MacGregor 2011); established
formal settlements and provincial legal processes in Alberta (Andersen 2014: 125);
lost family members to the sixties scoop (TRC 2015: 71-72); formed and re-formed
political bodies to assert their rights (Andersen 2014: 91-132); and today seek
dynamic ways of rebuilding their legal order and polity.

We need to sit with the fish. And consider what they ask of us, too.
Notes
1. It is customary to not capitalize words in nehiyawewin. See page 5 of http://resources.
atlas-ling.ca/media/How_To_Spell_It_In_Cree-Standard_Orthography-Plains-Cree.pdf
2. For a clear and direct critical analysis of Powley, see Andersen (2014: 133-167).

TOPIA 36

Our duty is not only to rebuild thriving, dynamic legal orders for today, but to envision futures for ourselves to carry Mtis people forward into another 154 years and
beyond. Contending with the Canadian courts to demand jurisdictional clarity, as
is the case with the Daniels decision, is of course a part of the struggle to assert a
better future for Mtis people and communities. However, we cannot wait for the
courts alone to revive and rebuild the stories, laws and governance practices that
Mtis carried with them throughout the waters of the Lake Winnipeg watershed.
Our lives and histories are woven into the waters of the Lake Winnipeg watershed,
and through the labour we perform in co-constituting these watery and fishy relationships, we also uphold important responsibilities to other Indigenous nations
and peoples who inhabit the watershed. It is crucial that Mtis peoples continue
to tend to fish relations and the diverse human political orders they sustain, particularly when state agencies and actors obscure or erase these more-than-human
relations within the nation states interpretations of law and rights. Indeed, we
must turn to our relationships to First Nations and revive and strengthen reciprocal
duties and obligations to each Nation whose territories we move through and live
in. We must also turn to, and acknowledge, our responsibilities to waters, to lands,
to fish and to all the other living, sentient beings within the territories we move
through in order to envision a Mtis polity that encompasses possibilities, dreams
and stories far more sustaining than the anemic capacities of the nation state and
its hand-me-down laws from Britain and France.

55

References

Andersen, Chris. 2014. Mtis: Race, Recognition and Struggles for Indigenous Peoplehood.
Vancouver: UBC Press.
Barkwell, Lawrence, Anne Carrire Acco and Amanda Rozyk. 2007. The Origins
of Mtis Customary Law with a Discussion of Mtis Legal Traditions. http://www.
metismuseum.ca/media/db/07232
Betkowski, Bev. 2011. Sturgeon Surgeon. University of Alberta News and Events,
26 October. https://www.ualberta.ca/news-and-events/newsarticles/2011/10/
sturgeonsurgeon

Borrows, John. 2010. Drawing Out Law: A Spirits Guide. Toronto: University of Toronto
Press.
. 2016. Freedom and Indigenous Constitutionalism. Toronto: University of Toronto
Press.
Campbell, Maria. 1983. Half-Breed. Halifax: Formac Publishing Company Limited.

Canadian Broadcasting Corporation Radio (CBC). 2016. Sturgeon Comeback in the


North Saskatchewan River, Edmonton AM audio clip, 6:25, episode 300254103, 23 June.
http://www.cbc.ca/radio/popup/audio/listen.html?autoPlay=true&clipIds=&mediaIds=26
90810327&contentarea=news&subsection1=regions&subsection2=edmonton&subsection
3=edmontonam&contenttype=audio
TOPIA 36
56

. 2016b. Prince Albert Moves to Emergency Planning as Oil-Spill


Boom Breached, 23 July. http://www.cbc.ca/news/canada/saskatchewan/
prince-albert-planning-husky-oil-water-north-saskatchewan-river-1.3692786

Canadian Geographic. 2016. Lake Winnipeg Watershed Tiled Map. http://www.


canadiangeographic.com/educational_products/tiled_map_lake_winnipeg_watershed.asp
Daniels v. Canada (Indian Affairs and Northern Development), [2016] SCC 12.

Fontaine, Tim. 2016. Unanimous Ruling Says Ottawa Has Jurisdiction Over All
Indigenous People, CBC News, 14 April. http://www.cbc.ca/news/aboriginal/
metis-indians-supreme-court-ruling-1.3535236

Friedland, Hadley and Val Napoleon. 2015. Gathering the Threads: Developing a
Methodology for Researching and Rebuilding Indigenous Legal Traditions. Lakehead
Law Journal 1(1): 16-44.

Gaudry, Adam. 2014. Kaa-tipeyimishoyaahkWe are those who own ourselves: A Political
History of Mtis Self-Determination in the North-West, 1830-1870. PhD diss., University of
Victoria.
Government of Canada. 1867. Section 91. 24, Constitution Act. http://laws-lois.justice.
gc.ca/eng/const/page-4.html#h-18

Hall, Thomas. 2016. A New View of the Lake Winnipeg Watershed: How the Watershed
Connects the Prairies and Its People, Canadian Geographic, 22 March. http://www.
canadiangeographic.ca/article/new-view-lake-winnipeg-watershed
Innes, Robert Alexander. 2013. Elder Brother and the Law of the People: Contemporary
Kinship and Cowessess First Nation. Winnnipeg: University of Manitoba Press.

Kuptana, Rosemarie. 2014. Indigenous Peoples in Canada: Politics, Policy and Human

Rights-Based Approaches to Development and Relationship-Building. Text from


a lecture given at Trent Universitys 50th Anniversary, 8 August 2014. https://www.
facebook.com/notes/10152653528630909/
Macdougall, Brenda. 2011. One of the Family: Metis Culture in Nineteenth-Century
Northwestern Saskatchewan. Vancouver: UBC Press.

Napoleon, Val. 2007. Thinking About Indigenous Legal Orders. Research Paper for the
National Centre for First Nations Governance.

. 2012. Transforming Colonial Categories? Customary Law, Legal Pluralism and


the Cultural Heritage of Indigenous Peoples. Presentation at the IPinCH workshop.
https://www.youtube.com/watch?v=LcyfAnv1M_k
. 2013. Recovering Indigenous Legal Systems and Governance. Public talk, 27
April, Victoria. https://www.youtube.com/watch?v=gd2NYIfDXo0
OToole, Darren. 2016. Personal communication.
R. v. Powley, [2003] SCC 43.

Starr, Mary. 2015. Lake Winnipeg Watershed: Then and Now. Canadian Geographic, 24
September. http://www.canadiangeographic.ca/article/lake-winnipeg-watershed-thenand-now

Stirling, Bridget. 2016. Whos Mtis? University of Alberta News and Events, 7 March.
https://www.ualberta.ca/news-and-events/newsarticles/2016/march/whos-metis#sthash.
hUIQlLv1.dpuf

. 2015. Rethinking Aesthetics and Ontology Through Indigenous Law: On the


Work of Val Napoleon and Loretta Todd. C Magazine 126. http://cmagazine.com/
issues/126/rethinking-aesthetics-and-ontology-through-indigenous-law-on-the

. 2016. From Fish Lives to Fish Law: Learning to See Indigenous Legal Orders in
Canada, Somatosphere, 1 February. http://somatosphere.net/2016/02/from-fish-lives-tofish-law-learning-to-see-indigenous-legal-orders-in-canada.html
Tough, Frank. 1984. The Establishment of a Commercial Fishing Industry and the
Demise of Native Fisheries in Northern Manitoba. The Canadian Journal of Native Studies
2: 303-319.
.1996. As Their Natural Resources Fail: Native Peoples and the Economic History of
Northern Manitoba, 1870-1930. Vancouver: UBC Press.
Tough, Frank and Erin MacGregor. 2007. The Rights to the Land May Be Transferred:
Archival Records as Colonial Text. Canadian Review of Comparative Literature/Revue
Canadienne de Littrature Compare 34(1): 33-63.
Truth and Reconciliation Commission (TRC). 2015. Honouring the Truth,Reconciling
for the Future: Summary of the Final Report of the Truth and Reconciliation Commission
of Canada. http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Exec_
Summary_2015_05_31_web_o.pdf

Watts, Vanessa. 2013. Indigenous Place-Thought and Agency Amongst Humans and
Non-Humans (First Woman and Sky Woman Go on a European Tour!) Decolonization:
Indigeneity, Education and Society 2(1): 20-34.

TOPIA 36

Todd, Zoe. 2014. Fish Pluralities: Human-Animal Relations and Sites of Engagement in
Paulatuuq, Arctic Canada. Etudes Inuit Studies 38(1-2): 217-238.

57