Law discussion paper 5 pages minim

/ ~anadian Perspectives - on Legal Theory/ Edited by

Richard F. Devlin

Associate Professor of Law University of Calgary

1991 EMOND MONTGOMERY PUBLICATIONS LIMITED

TORONTO, CANAI?A

Copyright© 1991 Emond Montgomery Publications Limited. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, photocopying, electronic, mechanical, recording, or otherwise, without the prior written permission of the copyright holder.

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c . t _J

Canadian Cataloguing in Publication Data Main entry under title: Canadian perspectives on legal theory ISBN 0-920722-29-6 1. Jurisprudence - Canada. 2. Law-Canada - Philosophy. I. Devlin, Richard F. (Richard Francis), 1960- .

KE427.C351990 KF385.ZA2C351990

349.71 C90-095815-4

Table of Contents

I INTRODUCTION .............................. · · · · · · · · · · · · · · · · · · · 1

II LIBERALISM ....... ... ...... .... ....... · · · · · · · · · · · · · · · · · · · · · · · · · 7 David Dyzenhaus, Liberalism, Pornography and the Rule of Law . . . . . . . . . . . . 13 Ernest J. Weinrib, Two Conceptions of Tort Law .................. · · · · · · · 29 Bryan Schwartz, Individuals, Groups and Canadian Statecraft ............... 39 Kathleen E. Mahoney, The Limits of Liberalism . .............. ... ..... ·.· 57 Richard W. Bauman, Liberalism and Canadian Corporate Law .... ... . ..... · 75

III LAW AND ECONOMICS .................................. · . · · · · · 99 Michael J. Trebilcock, Economic Analysis of Law ......... . .. .. ... · · · · · · 103 Toni Williams, Of Scientism and Storytelling: Perspectives on the

Economic Analysis of Remedies for Breach of Contract . . . . . . . . . . . . . . . . 127

IV NEO-MARXISM ......... . .. . ...... .... ..... .... · · · · · · · · · · · · · · · · 149 Judy Fudge, Marx's Theory of History and a Marxist Analysis of Law . . ..... 151

V C RITICALLEGALSTUDiES .. . ............. . ...... ...... .. · · · · · · 177 , / Allan C. Hutchinson, Crits and Cricket: A Deconstructive Spin V (Or was It a Googly?) ............................ . ..... .. ..... · · 181

William E. Conklin, A Contract . .. ... ... .. ...... . . .. ....... . · . · · · · · · · 207 J .C. Smith, Psychoanalytic Jurisprudence and the Limits of

Traditional Legal Theory ...... ... . . ............... . . . · · · · · · · · · · · 223 Donald Galloway, Critical Mistakes ......... ....... ....... . . . . .. .. · · · 255

VI FEMINISM ........ ... ................. · · · · · · · · · · · · · · · · · · · · · · · · 269 Christine Boyle, A Feminist Approach to Criminal Defences ...... . ....... · 273 Sheilah L. Martin, The Control of Women Through

Gender-Biased Laws on Human Reproduction ...... . ........ ... ...... 291 Kathleen A. Lahey, On Silences, Screams and Scholarship:

An Introduction to Feminist Legal Theory ........................... 319

VII FIRST NATIONS .......... . ................ . · · · · · · · · · · · · · · · · · · · 339 Leroy Little Bear, Dispute Settlement Amopg the Naidanac ......... .. ..... 341 Patricia A. Monture, Reflecting on Flint W0man . ... ... ... ...... · . · · · · · · 351

v

Table of Contents

VIII CONSTITUTIONALINTERPRETATION ....... ................... 367 Peter W. Hogg, The Charter of Rights and American Theories

oflnterpretation .......... .. ....... .. .......................... 375 David Beatty, The End of Law: At Least as We Have Known It. ............ 391 Colleen Sheppard, The "I" and the "It": Reflections on a

Feminist Approach to Constitutional Theory ......................... 415 Andrew Petter and Patrick J. Monahan, Developments in

Constitutional Law: The Decision in Dolphin Delivery ................. 433 Triel C. Bakan, Constitutional Interpretation and Social Change:

{ ou Can't Always Get What You Want (Nor What You Need) ........ .. 445 'Mary Eberts, New Facts for Old: Observations on the Judicial Process .... . .. 467 Mary Ellen Turpel, Aboriginal Peoples and the Canadian Charter:

Interpretive Monopolies, Cultural Differences ........ ............ .. .. 503

VI

Reflecting on Flint Woman

Patricia A. Monture

Faculty of Law Dalhousie Law School

The Creator made the Earth round Sh" made the Grass and the Trees the Birds, Fish and Animals to foil ow the purpose of Her Creation and She made the four races of Mankind black, white, yellow, brown and placed them in the East, North, West

and South She made the Sun, the Moon and the Stars and asked them to form circles so that we should understand the Wisdom and Meaning of Life. Because Life as the Creator meant it is a circle:from the Creator to the Creator, the Circle of Life)

Elle-Han' sa

The ways of my people, the First Nations, teach that there is a special beauty in living life according to the old ways. These old ways teach us how to live in respect of creation. Part of this special beauty we have been given is our ability to learn about creation. A person is never so complete that he or she has a perfect understanding of creation. Learning is, therefore, a lifelong process. It is because all living things- the animals, plants, humans, the wingeds, the water life - are equally a part of creation. The life process, or creation, is continuous. It exists independent of our individual human existence. What must be under- stood is that the circle of creation is the centre of the life way of First N.ations Peoples. It is the way in which our experiences are understood.

What I am concerned about is thatthe First Nation's ways ofunderstanding and learning are not the same as those that are accepted within the dominant institutions of learning in this land, especially within legal educational institutions. These different ways must be recog- nized and respected if we are truly going to make any headway in "race relations."

We must stop and consider the preliminary assumptions underlying our beliefs and ideas. These assumptions shape the content of our thinking. This reevaluation is necessary before we blindly make our way forward assuming we all think, learn, and understand alike. In the words of Marlyn Kane (Osennontion):

351

352 First Nations

If the educators are going to teach anybody, and if their students are going to learn anything, then we have to try as much as possible to get them to at least realize that they are going to have to twist their minds a little bit (or a lot) to try to get into the same frame of mind as us, or to try to get on the same wave-length. They must realize that their own thinking cannot be applied to what we are going to say, so that what we say "fits" -there seems to be a tendency for thatto happen. We must somehow get them to empty their heads of what they may think they know about us, so that they are prepared to begin to learn the truth.2

It is necessary that we (all races)3 begin collectively to define our social relations, institutions, and values in an inclusive, as opposed to exclusive, way. Within law schools, the study of jurisprudence is one that is well suited to an analysis of the kind that I am suggesting.

It is not solely for the benefit of so-called minorities that this reevaluation of assumptions and understandings is so necessary. The accepted and traditional academic process merely affirms existing knowledge. Complicity, then, characterizes what scholars have become as they habitually cling to the processes that establish traditional power and knowledge. Not only is this dangerous, it is also anti-democratic.4 Mari Matsuda gives a number of examples of the traditional process that are problematic. The following is but one example:

Citation counts are a standard measure of academic prestige. Scholars proceed in research and information-gathering by following a trail offootnotes. ln addition to following footnotes, people cite what they have read and discussed with their academic friends. When their reading and their circle of friends are limited, their citations become limited. The citations then breed further self- reference. This process ignores a basic fact of human psychology: human beings learn and grow through interaction with difference, not by reproducing what they already know. A system oflegal education that ignores outsiders' perspectives artificially restricts and stultifies the scholarly irnagination.5

My point is a simple one. My purpose in challenging the way academics think and the traditional academic process is not a benevolent one for the benefit of some "disadvantaged group." It is necessary for the benefit of all people. The goal is to develop legal and edu- cational institutions that are inclusive as opposed to exclusive and hierarchical.

I want to facilitate this purpose by continuing a discuss ion that I started in an article written and published several years ago.6 The concepts central to this first article - race, culture, women, law, education, disadvantage, silencing, and exclusion - are concepts that continue to occupy a great deal of my thinking time. I now understand these concepts in a more complete, but not perfect, way. I am not recanting what I said. This is not the way I think or feel about that first piece. That piece is important for a number of reasons. It offers an important insight for those people who have never been silenced because of their race and culture. 7 It offers those individuals the opportunity to understand the cost to other individuals that they silence, wilfully or not. Just as important, it offers the opportunity to consider the cost to themselves of silencing others. All that I am saying about that first piece is that I now understand things in a different way. I have had several years to think, to live, to learn, to grow. Therefore, I should understand things in a different way ifl have been fulfilling my traditional responsibility to learn.

The way I am using the concept, responsibility, is unique to the First Nations way of ordering the world. It can be juxtaposed to the rights philosophy on which Euro-Canadian systems of law are based. The focus of First Nations society is not on individual rights but

Reflecting on Flint Woman 353

on collective rights. 8 Collective rights are greater than groups of individual rights. Respon- (..:·~·~ sibility as a basis for the structure focuses attention not on what is mine, but on the • _4 relationships between people and creation. Oren Lyons explains in this way: <:. •"\...,_....._ 1

We human beings, however, have been given an added responsibility. We have been given an intellect- that is, the ability to decide for ourselves whether we will do a thing this way or that way. The human being has been given the gift to make choices, and he has been given guidelines, or what we call original instructions. This does not represent an advantage for the human being but rather a responsibility. All the four colours of mankind received those original instructions, but somewhere in time, in many places, they have been lost. It is a credit to us native people that we have retained those instructions. Many non-Indians have tried to destroy the original instructions because they view them as detrimental to progress.9

Obligations and duties are rights-based words and do not hold the same meaning that I give to responsibilities.

"Flint Woman" was written during a particularly frustrating period in my life. I was overwhelmed by the number of ways I was silenced and excluded throughout my university education, and especially during my law school experience. Naturally then, this first article was shaped around silence and exclusion. What I have come to understand since that time, and now understand to be my responsibility, is the responsibility to be empowering and not merely reactionary. The experience of racism is one that is done to us. We react to racism. Even our pain and anger are, at least initially, reactions. It is objectification. We must begin to be subjects to the extent that we can be. Effectively, you then end your own silence and to a lesser degree, your exclusion. Exclusion is a different experience. It is what is done to you collectively as members of a distinct group. To end exclusion, we must do more than offer our pain, but we must also offer our visions on what must come.

This process of gaining control over your experience is essential. Therefore, what is just as important as the ways in which we are silenced, are the ways in which we receive and maintain our voices. We receive our voices when we become empowered and overcome the silencing. And there is an important connection between overcoming silencing and ending collective exclusion. It is much easier to exclude a silent so-called minority, than a vocal one. "Flint Woman" is important as an example of the way in which one voice, my voice, was reclaimed. My voice is the voice of a Mohawk woman, mother, and law professor. My voice is all that I have experienced and can speak to. It is a mere glimpse in what was and remains a very long process, a very long struggle.

The relationship between race and gender is also an important aspect of the "Flint Woman" discussion about silencing and exclusion. I am particularly concerned with silencing along the lines of race (more appropriately culture) and gender. I do not mean to be constructing a hierarchy of " isms" nor do I intend this to be perceived as exclusionary. It merely reflects that my voice is the voice of a Mohawk woman (mother and law professor). It is only through my cultural experience that my woman's identity is shaped. It is the teachings of my people that demand we speak from our own personal experience. That is not necessarily knowledge that comes from academic study or from books.

The First Nations' concept ofleaming is introduced in the "Flint Woman" article. It is a theme that runs through the entire article but this particular quotation is illustrative:

354 First Nations

Native history is oral history. It is probably fortunate for Native people today that so many of our histories are oral histories. Information that was kept in peoples' heads was not available to Europeans; could not be changed and moulded into pictures of "savagery" and "paganism." The tradition of oral history as a method of sharing the lessons of life with children and young people also had the advantage that the elders told us stories. They did not tell us what to do or how to do it or figure out the world for us - they told us a story about their experience, about their life or their grandfather's or grandmother's or auntie's or uncle's Jives. It is in this manner that Indian people are taught independence as well as taught respect because you have to do yourown figuring for yourself.! O

There are two points I wish to make clearly here. First, the role that experience plays in qualifying individuals is different in my culture. A personal example is that I have frequently been referred to as a "prison expert." It is necessary for me to always qualify this statement, as I am an academic expert only. My knowledge comes from books and volunteer experiences within the criminal justice system. Within my culture, this knowledge does not make me an expert. The second point, is the importance of oral history. In order to communicate with others of my profession, I must rely upon a medium, the written word, which is a foreign way of communication given my cultural identity. The fact that my participation in academia goes through at least several stages of translation and accommodation (so that you can hear me) is an invisible edge in my participation. Effectively, it is a form of exclusion for the majority of First Nations.

Since the writing of"Flint Woman," I have made a political choice to adopt the language of "First Nations" and not that of "Native"(" Aboriginal," "Indian," etc.) because this is the terminology I am now most comfortable with. Writing for a forthcoming introductory text for women's studies,11 I discuss this difficulty of determining what to call myself:

I am a member of the Ho-Dee-No-Sau-Nee Confederacy. The Confederacy is a "political" union which is a democracy in the truest sense of the word. For many years, our nations were known as the Iroquois. But, this is not how we call ourselves. There are six nations which make up the Ho-Dee-No-Sau-Nee Confederacy. We are the Seneca, Oneida, Onondaga, Cayuga, Mohawk, and Tuscarora. I do not like to say that I am a Mohawk woman. A friend recently told me that she had been taught that Mohawk means "man-eater" in one of the European languages. This is not a nice way to be known. That is not what being "Indian" means to me. I am a proud member of my nation and that is a good way to be. This is just one good example of how colonialism and oppression operate in the dominant society.

When I was growing up, the word I learned to describe who I was, was "Indian." Since then, I have learned that it is not a good way to name myself. I have been learning how these constructs and processes support racism. The meaning of the word "Indian" is a purely legal definition. An Indian is a person who is entitled to be registered under the definitions in the Indian Act. It is also not a good way to describe ourselves because it is a definition that has been forced on us by the federal government.

Not being in control of the process of naming - that is, defining who you are - serves as one of the most express examples of silencing that I can think of.

The process ofleaming about creation, that I referred to earlier, encompasses reflections on and with the traditional gifts and responsibilities that we were given. I must strive to understand how I fit into creation. There are four guiding principles that illuminate the way in which we are expected to respect these traditional gifts and responsibilities. The guiding

Reflecting on Flint Woman 355

principles are kindness, sharing, truth (or respect), and strength. These principles are different aspects of the same whole (or circle). This is the concept of the medicine wheel. When you are kind, the kindness is returned to you. When you share, you reap the benefits of what you share. You may choose to share a teaching and in this way the teachings are kept alive. Sometimes the truth is hard, but it may be the only way that we will learn. These three responsibilities - kindness, sharing, and truth - will lead to the fourth, which is strength. One principle cannot exist without the other three. There is no changing them. They exist just as the north wind continues to blow .12 And they shall continue to exist in this way for all the generations left to come.

These traditional concepts I have just shared with you are impossible to explain to you in a paragraph, chapter, or even a thousand books. These principals must be lived and shared to be understood. Oren Lyons, also a member of the Confederacy, explains these concepts in this way:

Imagine a circle divided into four parts by directional arrows. This is a universal symbol that all indigenous peoples recognize and understand immediately. The centre of that circle is the family, and at the heart of it is the woman. Just as Mother Earth is the core of life, so the woman as mother is the core of her family. The family sits in a circle, and that circle is called a clan. The clans in tum also sit in a circle, and that circle is called a nation. Then these nations sit in a circle, and that is called the world. Finally, there is the universe, which is the largest of the circles. The symbolism is meaningful, and it is important.13

There are two things that must be understood. The ways ofFirstNations cannot be understoo~ or explained at a glance. And second, that these ways are not the same as the ways known to ( the "dominant society." /

It is the ways of my people that are at the core of my being. It is from their teachings that I draw my strength, my hope, and my vision for the future. Becoming a law teacher has not shifted this traditional focus in my life. It remains the core of my being. But, becoming a law teacher has fundamentally shifted my thoughts as I now reflect on "Flint Woman." As I prepared myself to teach, I had to consider the many ways that I had been silenced and excluded. Now that I have a position of responsibility, how do I prevent the silencing of someone else? What I came to realize was that it is not the silencing that is so crucial. What is important is to give my students the opportunity to develop their own unique voices; specifically, their legal voices; legal voices that respect14 the fact that they may be women, or homosexual, or poor, or First Nations, or Black. For me, learning to teach was, and is, fundamentally, learning how to respect different voices.

The empowerment that comes when we find our voices is so often what is missing in our educational systems. Law school is merely a reflection of what is happening generally in education systems from primary to university. We take away people's voices and force them to conform to status quo values and norms. And in law, the norm was defined solely by the monolithic voice.

The monolithic legal voice developed over a very long time. It was the voice of white men of at least a middle class upbringing. As long as the monolithic voice remains sanctioned in law, and education, the experiences of those of us who speak in a different voice will be experiences of silence and exclusion. Again, this means we all lose.

356 First Nations

Participating in a system that does not reflect the basic value structures of my culture is a constant challenge on a number of different levels. Whenever I write or speak, I often complain that I feel like I am engaging in a long process of footnoting life. It sometimes feels like I never get out of the footnote and truly live. This process of language, which I am referring to, is definitional (or perhaps, more accurately, redefinitional) and structural. I do not believe that First Nations people use English words in the same way as people who do not share our culture with us. We all use the same words, such as respect or responsibility, but they mean different things. An example should make this point clearer. In my language (Mohawk), 15 we have the Great Law. ltis our constitution. A literal translation from Mohawk to English is "the great big nice." I am not sure about you, but this has not been my experience of the Canadian legal tradition.

It is very important to understand the relationship between language and silencing or exclusion. Remember, as I earlier pointed out to you, that the sanctioned form of discourse within my culture is oratory. The emphasis on oral as opposed to written culture is overlooked. The result is that First Nations people are often referred to as illiterate. And I do not deny that many of my people have not had the privilege of a long and meaningful formal education. Neither is my point that reading is not important. The dominant culture has sanctioned the truth and importance of the written word. Without the practice of writing things down, you cannot have law, or knowledge. It is another one of the difficulties that First Nations confront. And again, this sanctioning is also silencing and exclusionary.

Oral history is also a concept that is not well understood. Having a culture based on oral history means something greater than valuing the spoken word over the written word. It is an entire process of accurately recording history. The courts have tended to simplify the process of oral history and treat it as something less advanced than recording history on paper. This fits very neatly with the "noble savage" stereotype. This is wrong. What you hold in your head cannot be taken from you and destroyed in the same way as a book can. The institution of oral history also ensures the passing down of history from generation to generation. One example from a recent judgment should clarify this point:

In addition to the findings that were essential to the issues before him, the trial judge paid counsel for the Temagami Band the courtesy of dealing extensively with matters of some historical and cultural interest but of little relevance to this case. As to the history of the band, the trial judge expressed disappointment that so little evidence was given by band members. Chief Potts was the principal Indian witness to give oral history and his testimony was not oral history in the traditional sense. His own family did not arrive in the Land Claim Area until 1901, and his principal source of information was not his parents and grandparents. Instead, he gave evidence that was the result of his research and that which he had learned from other members of the band who were not called as witnesses. His evidence was not, in any sense, the best evidence available, and there were available older band members who could recount oral tradition. Chief Potts' testimony was not similar in quality to the type presented in other cases where oral history has been admitted ... )6 (Emphasis added.)

There are present in the courts' interpretation several fundamental misconceptions of First Nations. First, oral history is not passed down from grandparent to parent to child. First Nations society is not structured around linear and nuclear family concepts . Second, by inference, Chief Pott's knowledge is characterized as childlike. This completely overlooks the fact that the man was selected as Chief! Again, the "noble savage" imagery appears.

Reflecting on Flint Woman 357

Finally, oral history does not mean, "I was there!" "I saw." Clearly the rules of evidence operate to the disadvantage of oral history. It was not Chief Potts who misunderstood oral history, but the judges hearing this case.17

What is also overlooked is what my people have done with language! We have taken a language that does not speak for us and given it a new life. Perhaps, we break all of the structural, style, and grammatical rules. But we have learned to use a language that was forced upon us to create powerful messages that convey to you our experience.18 I do not call this a problem. I call it creativity. It is time my people give themselves credit for the great things we have accomplished against overwhelming adversity, rather than continuing to accept and embrace our exclusion. I am proud of my people. We are a strong, creative people. This is witnessed by the fact that we are still here to share with you.

A second good example of the importance oflanguage is found in one of the many justice inquiries that are happening across Canada.19 The Marshall Inquiry has already made public its final report. The report opens by highlighting several findings, including the recognition "that the fact that Marshall was a Native was a factor in his wrongful conviction and imprisonment."20 Consider the language chosen for a moment. The report comes very close to embracing the notion that what happened to Mr. Marshall happened because of the racism inherent in the criminal justice system (and elsewhere) in this country. I am disappointed that the Commission did not embrace that "racism" word and instead chose soft language. Racism is a word that suggests the collective nature of actions against entire groups of people. However, the language of the Marshall Repoft. by focusing only on one "Native" man suggests that the problem was merely an isolated incident. I know that this is not the true nature of the problem. Language is powerful.Yet, in this important report, it was overlooked.

Understanding this process of how language is used, and how it can be powerful or exclusive, is necessary for us to ensure that society will be shaped in a way that is just. It requires that we critically examine the way we load our perceptions and how each of our perceptions shape our realities. This is the same process I earlier referred to as examining our assumptions. The academic literature refers to this as reconstruction.21

The study oflaw only confounds the exclusionary experience oflanguage. Law is a very structured discipline with rules of style and language unique only to itself. This rigid structure often forecloses the involvement of "outsiders" in our profession. Is that the purpose or intention of the rigid structural rules of the legal system? In any event, these rules do compound the First Nations', or other dispossessed collectivities, sense of powerlessness. Ourunderstanding oflaw is not represented within the structure of the Canadian legal system. We experience that system, particularly the criminal justice system, as racist and oppressive. 22 We, as individuals, did not participate in the process whereby the legal system was formed. We did not participate in the process of agreeing to the assumptions and values reflected in that system. Further, we have been excluded, as Peoples, from participating in the formation of that system. More importantly, First Nations Peoples have never consented to the application of the Canadian legal system to any aspect of our lives. This reality is continually ignored by both the Canadian government, the legal profession, and the judiciary. Only by understanding the history of the Canadian legal system can we then understand why the result of this system is not justice but exclusion and force.23

It seems a logical expectation to me that legal studies in Canada will begin to examine this critical area of exclusion. Jurisprudence courses seem to be a logical place to start.

358 First Nations

Jurisprudence is the formalized, and perhaps reflective, study of legal systems and the corresponding legal philosophy. This is frequently accomplished by the review of judicial decisions. This approach is too constraining and unnecessarily so. It separates form from content. As Mari Matsuda earlier described, it is an approach that allows the accepted practices to continue to define the future . At minimum, this is exclusionary, dangerous, and anti-democratic.

Returning to the notion of footnoting life, there are a number of words that I will naturally understand in a different way. Naturally, because my experience is different from yours. These concepts are racism, anger and pain, intent, and discrimination. These concepts must be given meaning that is greater than the meaning they have historically been given. The relationships must be explained and understood. The concepts have been defined by collectivities that have had "power over" the individuals whose lives they are describing. If we cannot revisit these conceptual premises then any work we may accomplish to change social structures further down the line will become inverted or meaningless. This is a process that is complex and requires description in detail.

Anger and pain are the colourful prisms through which I experience and learn. Anger and pain are words for me that go together. Perhaps, they are feeling words, but they are essentially caught up in my learning process. Anger is largely external, in the sense that my anger is usually defined by someone outside of myself. It is common experience among so- called minorities to be labelled as angry. Most of the time, when I am so labelled, I am not feeling angry. My suspicion is that people use this label when they are having a difficulttime hearing what it is that I am saying. I resent being forced to carry a negative label to convenience someone else who cannot cope with what they themselves are feeling. This is oppression at the individual level. Until now, I have not thought as much about the use of pain as a concept as I have about anger. I know that they are connected and that the connection is a descriptive version of racism. Anger and pain, perhaps, are the violence that grows out of racism.

In reconsidering "Flint Woman," I discovered that pain is a reoccurring theme in that article. I describe:

I do not have any control over the pain and brutality of living the life of a dispossessed person. I cannot control when that pain is going to enter into my life . .. . I am pretty possessive about my pain. It is my pain. I worked hard for it. Some days it is all I have. Do not try to take that away from me too.24

What was interesting for me to note in my review of this concept, is that pain is externally sourced. It is not resolved anger. It is not anger changed to pain.25 Pain is the instantaneous result ofliving racism, just as physical violence results in pain. When I pick up the telephone only to hear that yet another First Nations' woman has committed suicide at the Prison for Women, the third in 11 months, it is intense pain that I feel. Pain so intense that I am numb. But the pain is reassuring. It is feeling. Therefore, I am. Pain then is the reaction and not the action. Perhaps, anger is the action? What I do know is that my experience of both pain and anger are integrally connected to my experiences of racism.

Racism is often defined in the academic literature as "white skin privilege plus power. "26 At the outset, I want to express clearly that I do not disagree with this definition. It conveys a powerful and necessary message to white people27 about their responsibility to unlearn

Reflecting on Flint Woman 359

racism. And it is a responsibility I am speaking about. It took me many years to understand that I could not fix racism. I can label it. I can point to it. I can explain why that particular behaviour or action or attitude is racist. But I cannot stop it. I cannot stop you. I can only report what I have earlier said:

When are those of you who inflict racism, who appropriate pain, who speak with no knowledge orrespect when you ought to know to listen and accept, going to take hard looks at yourself instead of at me. How can you continue to look to me to carry what is your responsibility? ... I will not carry your responsibility any more. Your pain is unfortunate. But do not look to me to soften it. Look to yourself.28

This is why an inclusive analysis is so essential to academic study, and particularly legal study.

A clear and agreed upon definition of racism is not available. Within the academic literature it is a much used but little defined concept. In a text on ethnicity and human rights in Canada, "racism" is defined as "the misunderstandings that have often influenced the kinds of pre judicial attitudes and discrimiiiatory-p;actic~~ towfil.d partic~lar h~;;;a~p~pulatio~;:~9 From~!s~e can understand that raCis m is a process. L~tei:.~~ t~~j~xt: __ _

The tendency to evaluate, indeed, to judge, other races from an ethnocentric European-Christian perspective led many scientists to arrange these races in an hierarchical order of innate superiority and inferiority ranging from primitive to highly civilized.JO

Not only is the failure to define racism in any succinct fashion interesting, but the failure of the law to embrace this word is also most notable. In law, we do not discuss racism. We discuss discrimination. Discrimination is only the visible edge of racism. Perhaps then, com batting racism in law is, and can only be, a partial solution until the parameters of law are redefined in a way that is inclusive of our experience.

Further, it must be considered whether or not a single definition of racism is sufficient. Racism operates at many levels, including the personal as well as the theoretical. The theoretical definition that I have provided ("white skin privilege plus power") assists me in understanding racism at an intellectual level.Ii: helped me to understand that it was not solely my responsibility to erase racism. And this was an essential understanding. But, now, it does not help me live my everyday life. It does not help me on a personal level with the everyday experience of racism.

Here, I am assuming that an academic definition should relate to my everyday life. The way of my people is holistic. It does not separate my mind from my heart, from my spirit. A student in my Fundamentals of Public Law class complained to me that he did not understand what "Aboriginal Rights" had to do with Public Law. Nor did the student think it was being portrayed objectively even though we were reading Canadian court decisions and not the writings of First Nations Peoples. I heard about a law professor who emphatically asserts that he does not understand how the teaching of property law has anything to do with "Aboriginal title." And then, another First Nations' woman commits suicide at the Prison for Women. I grieve for each of them. But, I am also angry. These emotions are not captured in the academic definition of racism. Therefore for me it remains incomplete.

What I attempt to do is to reclaim racism, as a word, as a concept, and as an experience. I want it to speak to me, of me, for me. I am tired of racism defining someone else's experience

360 First Nations

who has the luxury of not living it. Racism, both as a concept and as an experience, creates a subject outside of me and leaves me being object. The fact is that racism creates an unnatural inversion. It is, therefore, a neat little trick that further oppresses the individual, or the collective, who is struggling to overcome her or his oppression. This is the neat little trick. As soon as I point out to you, "HEY, that's racist," it is distancing. You become defensive. You blame me for calling you names. I feel guilty as I had never intended to hurt you. That is not my way. I have the responsibility to be kind. Kindness is one of my original responsibilities. The power to define my own experience is then taken away from me because racism is a bad word!

Racism is turned against the "victim" in this kind oflabelling process. This inversion of racism is partially the result of the well-established principle that academic training, and especially legal training, does not involve feelings. At the threshold, this contradicts my experience and what I have been taught. My teachers have told me that I must double- understand. It is not enough to get the knowledge into my head. Instead, I must also get the knowledge to my heart so that I will live what I have learned. This is why the learning from experiencing everyday life is so valued in First Nations' cultures. It is also a profound example of why the study of language must become central to the study of law. The power to define is essential.

In an effort to help clarify an understanding that I believe to be difficult, I offer a second example. Much of the discussion at a political level between First Nations and the levels of Canadian government, over the last decade or so, has focused on deliberations around "self- govemment." In the same way that racism has become inverted and is often used against the collectivities that experience it, so has "self-government" been definitionally inverted and made devoid of meaning. Osennontion explains:

Naturally, our own people, as continues to happen time and time again, have wholeheartedly embraced the buzzword. Of course, the word itself is not the culprit; what it means to people, how it is interpreted, or misinterpreted, and how it comes about are causes for debate and dissension. When the Feds talk of recognizing "self-government" they mean delegated authority to "Indians," for example, to govern their affairs on the reserves wherein they were displaced, and this is accomplished through their legislation. When an aboriginal person, who knows what s/he is talking about, speaks of "self-government," s/he means the particular system of government that was given to the people when they were placed in their territory on Turtle Island. This government needs no sanction through legislation or otherwise; rather, the "others" need only honour the original agreements to co-exist, and through their actions, show respect for our ways. However, because so many of our people don't know our ways, they have become involved in processes whereby they have attempted to gain recognition of our "right to self-government," instead of working on finding ways to effectively assert and exercise our own governments. Before i knew better, I myself supported and took part in some of those processes -this was before I knew what things like "Nationhood" and "Sovereignty" really meant. I came to realize my mistakes; I am praying for others to do the same before any more damage is done on behalf of "the people."

If we are going to use the English language, I prefer the term "self-determination," as it better describes, for me, the action that needs to be taken. The establishment, exercise and enforcement of government, is only one aspect of"self-determination." In our own language, we have a word that, of course, even better describes what we have been instructed to do. TEW AT ATHA: WI best translates into "we carry ourselves" -a rather simple concept, some might say, but I think it says it all.31

Reflecting on Flint Woman 361

In searching for meaning and for language that express our experience, we must be careful of the words that we choose to embrace our experience. What is also important to understand is that it is not the word that is the problem, but the process by which and by whom it is given meaning.

Academic understanding is more than mere thoughts and ideas. As it involves the sanctioning of thoughts and ideas, it is fundamentally about sanctioning knowledge. Knowledge only involves those things that can be objectively proven. In the instance of law, knowledge, as it is understood in the dominant culture, reflects the preoccupation and continued assertion that law is objective. But what if my cultural experience teaches me that I cannot separate my feelings from my thoughts. And this brings us back around to my criticism of the conventional understanding that jurisprudence involves only the study of form.

It is important to understand the results of the emphasis on objectivity in the study oflaw. We are taught that we must study only what we can see and scientifically prove. Therefore, my only difference to you is the colour of my face . There is a person, a woman, beyond this brown skin who is different from you. In discussing the Charter and its underlying monopolistic value structure, Professor Mary Ellen Turpel articulates this position:

I intentionally use the term "culture" and "cultural difference" instead of "race" or "racial difference" because I view this as more accurate and more expansive: race or racial differences are too readily equated with "colour" or visible biological differences among people; whereas cultural differences should be understood more as manifestations of differing human (collective) imaginations, different ways of knowing. The expression "cultural difference" conjures up more than differences of appearances (colour), it allows us to consider profound differences in understandings of social and political life.32

Perhaps we value the same things, but the importance that First Nations attach to values is different from that attached by the "dominant society." Until we have examined the values underlying legal structures, especially to determine exclusivity, then we continue unwit- tingly to reinforce and support oppressive structures.

As was earlier noted, racism is not a word that is embraced within the legal discourse. For example, the laws we have prohibit only "discrimination." I believe that racism covers a broader range of behaviours than discrimination does. Discrimination involves actions or practices. It is the incident. Racism is about the way we think, the way we feel, what we believe, and how we structure our realities. Discrimination is only one aspect of racism. There is another parallel here too. In law, thinking (the mind) is superior to feeling (the heart and the spirit). As discrimination is the actionable, seeable, thinkable, portion of racism, law has again given priority to thinking as opposed to feeling. A brief examination of the law of discrimination should help to clarify what I am suggesting.

It is largely the field of human rights that has come to reflect the development of anti- discrimination laws in this country .33 The history of human rights legislation in this country is rooted in legislation of the 1940s34 which prohibited, by quasi-criminal sanction, actions expressing racial or religious discrimination.35 From the outset, the nature o0:h!_~ early status as qu~i-criminal sanctions, introduced the neces~~Qf proYill.gJhe.intenL( w.b<!t.WJl.§...in the_ mind) of the wroflgdoer. This_ cr_eat~ ·af!:ii.Jni-ost il!!Ro...~ihlLJjtuation for tb~individual seeking to brin~Jorw~rd a claim. _}bis left the complainant a next to impossible burden of

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~ proof to discharge. Without proof of a mental process, the discrimination was not illegal. Thinking becomes an essential element of the law. The result was that the legislation was

1 grossly inadequate in dealing with discrimination.36 What we must also consider, therefore,

1 1

is not only what we are including but what we have excluded. \_ In the United States and Great Britain, by the early 1970s, intent as an essential element

of discrimination was being disregarded by the courts.37 It was not until 1985, that the Canadian judiciary accepted this trend. In the case of O' Malley v. Simpsons-Sears38 the Supreme Court articulates this definition of discrimination:

To take the narrower view and hold that intent is a required element of discrimination under the Code would seem to me to place a virtually insuperable barrier in the way of a complainant seeking a remedy. It would be extremely difficult in most circumstances to prove motive, and motive would be easy to cloak in the formation of rules which, though imposing equal standards, could create ... injustice and discrimination by the equal treatment of those who are unequal. Furthermore, as I have endeavoured to show, we are dealing here with consequences of conduct rather than with punishment for misbehaviour.39

Although this step is laudable and certainly essential to the development of effective human rights sanctions (anti-discrimination legislation) in this country, it remains an insufficient advancement. As indicated earlier, my real concern is with the insidious nature of racism and the ways in which racism is structured and sanctioned in this society. Merely going beyond intent is insufficient. Therefore, discrimination as a legal concept still remains an incomplete remedy. Two necessary considerations are fundamentally overlooked: by focusing our legal attention on intent, what did we exclude; and, as a theory, is discrimination complete?

This brings us back to legal theory, or the business of jurisprudence. Through the examples I have given, we can see how legal theory is incomplete. The essential question to ask is formed around an examination of: Whom are we excluding? and Whom are we silencing? Effectively, legal theory has so simplified the questions that I wonder if the answers that have been historically sanctioned are in fact answers. Marlee Kline expands on this notion with regard to feminist theory:

Because of the simultaneity of their experiences of oppression, women of color must directly confront contradictions white middle-class women do not face when attempting to understand and theorize about their oppression. White middle-class women are "unusual in the extent of the choices [we] can exercise and in the lack of contradictions in [our) personal lives." However disadvantaged we may feel as women, we experience great privilege in terms of race and class. As a result, white middle-class feminist theorists have tended to discount "the complexity of the contradictions in which most women are embroiled." As just one example, consider the family, which is a site of contradictory experiences for women of color of ways unknown to white women. Although both women of color and white women sometimes experience the family as an institution of violence and oppression, for women of color the family often functions as a source of support for its members against the immediate harassment of racism and provides a site of cultural and political resistance to white supremacy. The failure of many white middle-class feminists to account for the contradictory experiences of the family by women of color and thus to concentrate only on gender oppression is but one illustration of bell hooks' observation that "[ c ]ertainly it has been easier for women who do not experience race or class oppression to focus exclusively on gender."40

Reflecting on Flint Woman 363

As nations who come to the study of law, I cannot tell you what it is that you need to do to make legal systems work for you. What I do know is that First Nations have a right to live without oppression in the ways we were given. The mostthat I can do is maintain and nurture my voice. It is the voices of those who have been traditionally excluded who bring the tension to bear on all those systems that are oppressive to human life.

QUESTIONS 1. What would be the ramifications of filtering legal analysis through the concept of"racism" rather than "discrimination"? Does the change in the discourse have an effect upon our understanding of the issues? Does language incorporate hidden assumptions?

2. Does the explicit incorporation of personal experiences into Monture' s legal theory change the nature of the theory? Does the fact that many other contributors do not expressly refer to their experiences mean that those personal experiences do not have an influence on their theory? What is the relationship between theory and experience? Should theory start from the bottom or the top? Which produces the better legal theory: abstraction or contextualization? Is this an appropriate question?

3. Why do you think Monture prefers "First Nations" over the other names by which her Peoples are known?

4. Is Monture not being overly optimistic in her ambition to transform legal education so that it is less exclusionary, less oppressive, less silencing?

5. Is the Canadian legal system capable ofresponding in a genuinely positive way to the issues of race and gender that Monture has identified? Can a white male ever know the significance of what it means to be an "other," so as to rework the legal system to engender difference rather than sameness?

ENDNOTES l. Elle-Han 'sa, "The Circle of Life," (Summer/Fall 1989), 10 Canadian Woman Studies 53. This is an extract from the poem that was originally written for the First Inuit Circumpolar Conference, Point Barrow, Alaska, 1977.

2. Osennontion (Marlyn Kane) and Skonaganleh:ra (Sylvia Maracle), "Our World," (Summer/ Fall 1989), 10 Canadian Woman Studies 7.

3. In the First Nation's way there are four races. They are the red, yellow, white, and black. It is believed that each of these races had a traditional faith teaching such as the First Nations' teaching that I have begun to share with you.

4. Mari Matsuda, "Affirmative Action and Legal Knowledge: Planting Seeds in Plowed-Up Ground" (Spring 1988), 2 Harvard Women's Law Journal 7.

5. Ibid., at 3.

364 First Nations

6. Patricia A. Monture, "Ka-Nin-Geh-Heh-Gah-E-Sa-Nonh-Yah-Gah" ["Flint Woman"] (1986), 2 Canadian Journal of Women and the Law 159-71.

7. I do not primarily consider that my work involves speaking to feminism or women's reality. This is not to deny that I am woman. My work primarily focuses on exposing racism. I do not mean to disappear gender. It must be realized that my race and culture shape my gender experiences as my women's identity flows through and from my experience of my culture and traditions.

8. For examples of how the courts have treated collective rights, see Boyer v. Canada (1986), 65 NR 305 (PC); Dumont v. Canada and Manitoba (1988), 52 Man. R. (2d) 291 (CA).

9. Oren Lyons, "Spirituality, Equality, and Natural Law," in Leroy Little Bear, Menno Boldt, andJ. Anthony Long, Pathways to Self-Determination: Canadian Indians and the Canadian State (Toronto: University of Toronto Press, 1986), 5, at 6.

10. Supra endnote 6, at 160.

11. Geraldine Finn, ed. (Garamond Press, forthcoming) .

12. This is an Ojibwe teaching shared with me by Shirley O'Connor.

13. Lyons, supra endnote 9, at 7.

14. By respect, I do not refer to a liberal notion of pluralism and liberty such as in Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977). Respect simply means to stop forcing conformity to a single norm, such as the white, male, middle class, heterosexual voice that is sanctioned in law.

15. I am not a traditional language speaker. This story was first told to me by Tom Porter of the Mohawk Nation, Akwesasne Territory.

16. A.G. Ontario v. Bear Island Foundation et al. (1989), 30 OAC 66, at 69.

17. For a further critique of the racist assumptions that underlie court decisions in the area of child welfare, see Patricia A . Monture, "A Vicious Circle: Child Welfare and the First Nations" (1987), 3 Canadian Journal of Women and the Law 1-17.

18. In the summer of 1988, I had the opportunity to hear Lee Maracle speak at a conference in Toronto, Ontario. These are very much ideas that were inspired by Lee. I would recommend her book, I Am Woman (North Vancouver: Write-On Press, 1988), to everyone.

19. These are the Manitoba Justice Inquiry and the Task Force on the CriminalJustice System and its Impact on the Indian and Metis People of Alberta, neither of which have released final reports today. The Nova Scotia Inquiry into the wrongful conviction of Donald Marshall, Jr. (see reference in endnote 20) reported in January of 1990. Also important is the Report of the Task Force on Federally Sentenced Women, Creating Choices (Ottawa: Solicitor General, April 1990). This last report is particularly important as it is the only inquiry to focus on First Nations women as well as our over-representation within the federal prison systems.

20. Chief Justice T. Alexander Hickman (Chairman), Associate Chief Justice Lawrence A. Poitras, and The Honourable Mr. Gregory T. Evans, Royal Commission on The Donald

Reflecting on Flint Woman 365

Marshall, Jr., Prosecution, Volume 1: Findings and Recommendations (Province of Nova Scotia, December 1989), 15.

21. See for instance Joan W. Scott, "Deconstructing Equality- Versus- Difference: Or, The Uses Of Poststructuralist Theory for Feminism," (Spring 1988), 14 Feminist Studies.

22. Fran Sugar and Lana Fox, "Nistum Peyako Seht' wawin Iskwewak: Breaking Chains" Canadian Journal of Women and the Law forthcoming. Also published by the Solicitor General of Canada as "Report on Federally Sentenced Aboriginal Women," Appendix A to Creating Choices: The Report on the TaskF orce onF ederally SentencedW omen (forthcoming).

23. Patricia A. Monture, "A Vicious Circle: Child Welfare and the First Nations" (1989), 3 Canadian Journal of Women and the Law 1.

24. Supra, endnote 6, at 163.

25. Pain and anger have been "criticized" as rhetoric. (See Toni Pickard, "Lament on the Rhetoric of Pain," inNewsletterof the Conference on Critical Legal Studies, November 1989, 44.) Rhetoric has a negative connotation for me even though I recognize it as the positive and fundamental skill which has developed over the centuries in the western legal tradition. Professor Pickard suggests that this rhetoric has developed as the result of "minority" participation in the legal academic profession. I believe that the inclusion of feeling words into the study of the so-called objective law is necessary to the transformation of law from exclusionary to inclusionary.

26. This theory has been discussed by Esmeralda Thornhill at the Law and Society Conference, Learned Societies Conference, held at Windsor in 1988.

27. Please do not look at the colour of your skin and be immediately offended. Race is a particularly unsatisfactory label because it focus our attention on skin colour. It is what is going on behind my skin, or yours, that is so fundamentally different. It is a difference of culture and not race or biology.

28. Supra, endnote 6, at 168.

29. Evelyn Kallen, Ethnicity and Human Rights in Canada (Toronto: Gage Educational Publishing Company, 1982), 2.

30. Ibid., at 4.

31. Kane and Maracle, supra endnote 2, at 10.

32. Mary Ellen Turpel, "Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences" in this volume.

33. Walter S. Tarnopolsky, "The Iron Hand in the Velvet Glove: Administration and Enforcement of Human Rights Legislation in Canada" ( 1968), 46 Canadian Bar Review 565. As the title indicates, this article traces the legal history of human rights legislation in Canada.

34. The two earliest enactments were the Ontario Racial Discrimination Act in 1944, and the Saskatchewan Bill of Rights Act in 1947. The Ontario legislation focused only on the

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publication or display of materials that were discriminatory on grounds of race or religion. The Saskatchewan enactment was much more broadly based.

35. Tarnopolsky, supra endnote 33, at 567.

36. For a discussion see Beatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987), 13-58.

37. Ibid., at 24-25 .

38. [1985] 2 S.C.R. 536.

39. Ibid., at 549.

40. Marlee Kline, "Race, Racism and Feminist Legal Theory" (Spring 1989), 12 Harv. Women's LJ. 115, at 122-23.