Jaime Battiste, Understanding the Progression of Mi'kmaw Law

Excerpted from: Jaime Battiste, Understanding the Progression of Mi’kmaw Law (2008) 31:2 Dalhousie LJ 311

Mi’kmaw legal traditions and Netukulimk

The relationship between the Mi’kmaq and the forest ecosystem is more intimate than suggested in court. It is foundational to their worldview, integral to their legal traditions, and constitutional rights. This evidence was not before the courts, but it would have been useful to the courts if properly presented as part of Mi’kmaq constitutional law, as well as the foundation of aboriginal and treaty rights as constitutional law of Canada. The relationship between the forest and Mi’kmaq people is deeply embodied in the Mi’kmaq knowledge system and legal traditions, a relationship beginning with the Creation story.

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Proper judicial consideration of Indigenous knowledge, legal traditions, languages and culture opens up the courts to a better understanding of aboriginal rights. These Indigenous evidences offer deep internal meanings that can be quite valuable to the clarification of aboriginal and treaty rights.However, such evidences cannot be learned in books; they are part of the language and oral traditions. It is in the places where Mi’kmaq gather, such as in ceremonies, Sweat Lodges, cultural meetings, births, wakes and funerals, and visiting Elders, that this knowledge and law are transmitted. These sources are still unfamiliar to the existing rules of evidence and judges have difficulty in comprehending them and giving them proper weight.

Mi’kmaw oral teachings, legal tradition, and ceremonies involve legends, stories, teachings of advisors, and narratives handed down through the generations. They are neither linear nor steeped in theories of historical or social progress and evolution. It is not a human-centred narrative, and it does not assume that human beings are anything more than one element in the natural order of the ecosystem.

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The creation story of the Mi’kmaw establishes the relations between the Mi’kmaq and their ecology; it also generates Mi’kmaw knowledge and legal traditions behind their aboriginal and treaty rights. Mi’kmaq knowledge is at the root of the oral tradition and ceremonies and in the teachings, stories, and performances that are passed down from generation to generation.

The teaching of creation among the Mi’kmaq, which also creates their legal traditions, begins with the life-giver, Kisu’ulk, who generates the first bolts of lightning that unfold the grandfather sun (Naku’set), the dry Mother earth (Wsitqamu’k), the organism that generates the atmosphere (Kluskap), and unfolds its great cycles of nature. These lessons create the Mi’kmaw legal traditions and law of netukulimk.

The spark people or fire peoples created the ancestors of the Mi’kmaq who awoke in the world, ignorant of everything in it. Mi’kmaw teachings say the people asked the life-giver how they should live. They were told to watch the sun, sky, and water and lands in the environment, and told to learn from the animals, fish, birds and the plants. They learned how and when to pray, to respect the nations of animals and fish, and to respect the nations of the trees and their dependents; they learned the vitality of the stars, the constellations, and the Milky Way, which is the path their spirits take to the other world. Most important of all lessons, they learned to live together as one people, kinuk, in harmony with all other humans, animals, and plants.

Through the endless process of transmission of knowledge and ceremonies, the Mi’kmaq come to understand their values and responsibilities to the environment and families. Mi’kmaw knowledge is centred on the process of sustaining a shared worldview, a cognitive solidarity, and a tradition of responsible action that combines the teaching of rights with responsibilities. The aboriginal land tenure and rights derived from netukulimk cannot be separated from their sovereignty or governance or law of the Mi’kmaw territory. Netukulimk and its laws are not based on race. It is usually based on kinship ties, specialized access to resources, and a high degree of equality and diversity. Mi’kmaq do not speak of living “there”; rather, each family or person “belongs” to a family and a space or territory. Belonging is a special responsibility of Mi’kmaw sovereignty, governance, and the law of netukulimk shapes other laws, legal choices, and placement. Ultimately, the law of netukulimk affirms the value of sharing as a standard of life.

Netukulimk is the responsibility to maintain the ecology and the human order using the principles of belonging and respect. It refers to the responsibilities and actions of the Mi’kmaw, thus it has been translated into human kinship relationships as a general analogy for ecological relations. The Grandmother and the Marten generate the relationship of life within the territory of the Mi’kmaq, the Nephew generates the relationship between life within the sea and the rivers of the territory, and the Mother generates the relationship between the plant lives within the territory. The Creation story thus animates the relationships central to how the Court has affirmed these relationships as aboriginal and treaty rights in Simon, Marshall, and Sappier-Gray. In Simon, the Court affirmed the harvest to hunt land life; in Marshall the right to harvest the sea life; in Sappier-Gray, the Court affirmed the right to harvest the trees. These cases generate a modern constitutional jurisgenesis that is harmonious with the Mi’kmaq creation narrative.

In the Mi’kmaw legal traditions, netukulimk has always been expressed as the legal processes of sustaining relationships or what is called in the English land tenure system, conservation or sustainability. Consistent with the verb-oriented reality enfolded in the Mi’kmaw language–a process of being with the universe–netukulink was (and is) a widely shared, dynamic, and interrelated worldview that connects all things. The system of kinship relations unites everyone in a web of complementary rights and responsibilities. This order is non-hierarchical and reproduces itself without the need to accumulate more people, more land, or more goods. The most obvious and widespread manifestation of this reciprocal relationship is the totemic clan system. The clan system categorizes respectful ecological relationships as well as legal obligations, such as sharing and deference. This is a shared responsibility with the netukulimk under Mi’kmaw law. Conservation is an ambiguous constitutional category in Canada. It is not an express power of either the federal or provincial Crown, but it is linked to the aboriginal and treaty rights of the Mawio’mi;’ its reconciliation is necessary for everyone.

The Sappier-Gray decision is a significant affirmation of another part of the Mi’kmaw legal tradition. It affirms the relationship of the Mi’kmaq to their environment in the form of plant life. This case begins to recognize constitutionally and affirm the Mi’kmaw relationship to the plant kingdom, the green growing entities that provide the atmosphere for the earth. It protects the knowledge of herbs and plants for different purposes. It affirms the Mi’kmaq creation story, and in this case represents the meaning of Nikanapekewisqw (Kluscap’s mother) who came from a leaf of a tree to bring the knowledge of how to sustain and harvest the plant kingdom. The Mi’kmaq conceptualize plants and animals with a certain mntu (force) and consider them to be separate nations that are related to the Mi’kmaq. In an endless cycle, each life form is viewed as both a producer and a consumer with respect to the others. In the Mi’kmaw context, the right to harvest wood is part of the netukulimk, and is derived from pre-contact Mi’kmaw legal traditions of the Mi’kmaq, or its pre-contact legal system.

Both the Mawio’mi in its Netuklimkewe’l declarations and the Crown express concern that recognition of conservation is needed to prevent the uncontrollable and excessive exploitation of the natural resources of Atlantic Canada. Netukulimk is the part of Mi’kmaw constitutional law that inherently limits the quantities of those entitled to share in the various and seasonal harvests. In its previous analysis of the treaties with the Mi’kmaw, the courts have found it is implied that the Crown recognized and accepted the existing Mi’kmaq way of life and that it agreed that they could continue their hunting, fishing and gathering lifestyle.

Similar to most forms of Indigenous knowledge, Mi’kmaw knowledge and jurisprudence is based on an organic and knowable totality that is more important than any of its particular manifestations." It is a complete system of knowledge with its own concepts of epistemology, and its own ways of knowing nature, events, ideas, and human consciousness. The diverse manifestations of this knowledge system can best be learned by means employed by Mi’kmaw families, including language, ceremonies, practices, and teachings, and those who teach Mi’kmaw knowledge usually begin from a place where the land and its ecology are understood.