Yah'guudang: the principle of respect in the Haida legal tradition.
The openness and richness of stories for legal reasoning is apparent in the methodology of the common law. Past cases tell stories of what was right and wrong in the context of past events. Lawyers retell these stories in divergent ways depending on the positions they advance. It is a familiar feature of disputation under the common law that opposing lawyers will address the same cases but draw different conclusions from these, each attempting to persuade the decision maker that one or the other version of these stories is the more compelling and correct. The adjudicator assesses these competing interpretations of stories and presents a determinative version that will then become a new story for application in the resolution of future disputes.
Similarly, the openness and richness of Indigenous stories for Indigenous legal reasoning is an essential component of Indigenous legal traditions. Stories are not cultural relics, nor merely works of art to admire and be entertained by, but are fundamentally tools for thinking through conflict. In the words of scholars Val Napoleon and Hadley Friedland, stories "provide an architecture that enables thinking with analogy and metaphor as a form of problem solving." (1) As in the common law, stories provide examples of past conduct that was right or wrong that can guide thinking in the present and future about how to deal with these circumstances as they arise again. Therefore, if we are to take Indigenous legal traditions seriously, we must begin by engaging with Indigenous stories as "part of a serious, public, intellectual, and interactive dialogue". (2)
This paper is a response to the call from Napoleon and Friedland to engage with stories to concretize the study of Indigenous legal traditions: not only to theorize about the role of Indigenous legal traditions in the abstract, but to explicate specific principles and legal practices in order to deploy these to contemporary dispute resolution. (3) They frame this emerging project as "consciously applying adapted common law methodologies, such as the case method and legal analysis, to already existing and publicly available Indigenous resources: stories," (4) There is a real need to "draw out law" (to use John Borrows's phrase) (5) from and through Indigenous stories, both for the value of spreading understanding in and of itself, and as a political project. In the face of a colonialist perception that Indigenous nations were and are uncivilized, insufficiently sophisticated, and incapable of recognition as political entities, explicating the contents of an Indigenous legal tradition asserts the legitimacy of Indigenous nations. Importantly, it also supports the practical use of Indigenous legal traditions to resolve disputes. Friedland and Napoleon write, "As long as Indigenous laws are not accessible or usable, when push comes to shove, both Indigenous and non-Indigenous people in Canada will turn to common law to resolve disputes. This perpetuates the colonial process of undermining and obscuring Indigenous legal traditions." (6) Thus, concretizing our analysis of Indigenous legal systems is anti-colonialist both in its symbolism and in its practical implications.
My aim in this paper is to contribute to the explication of one particular Indigenous legal tradition, that of the Haida. The Council of the Haida Nation (CHN) has recently grappled with the task of encoding Haida laws. Echoing Friedland and Napoleons concern above, a report in the Haida newspaper Haida Laas asserted, "Citizens of the Haida nation and elected members agree that we cannot allow Canadas laws to dictate what we do on our lands and in our waters." (7) Yet, the task of creating a written body of law is daunting: at the 2013 Spring Session, CHN President Peter Lantin commented, "The difficulty in writing Haida law is trying to take our oral traditional values and put them on paper to make them enforceable". (8) Although this paper is not developed in dialogue with Haida leaders, it is intended as a contribution towards that project, if not in substance then at least as an exercise in what it might mean to take the values of an oral tradition, analyze and classify them, and put them on paper. (9)
I acknowledge at the outset the challenges of theorizing about a system of law as an outsider to that systems originating culture, and in particular, the challenges as a settler Canadian theorizing about an Indigenous legal system. I note Professor Gordon Christies "cautious agnostic [ism]" as to whether "someone inhabiting a non-Indigenous conceptual universe" (as I do) is capable of "actually understanding what the world looks like, seen through the eyes (or rather the mind) of an Indigenous person." (10) At the same time, I am wary of overly romanticizing the Indigenous perspective and exaggerating the cognitive distance between Indigenous and non-Indigenous minds. The analysis that follows is offered in that spirit: not as a definitive description of the contents of the Haida legal mind, but as an outsider's perspective on the Haida legal system.
My explication centres on what I propose as a central, unifying value in Haida law: the value of respect, or, in Haida language, yah'guudang. (11) Yah'guudang is identified as a guiding principle in a number of Haida documents and contexts. Most prominently, the 2005 Haida Land Use Vision is subtitled "Haida Gwaii Yahguudang [respectingHaida Gwaii]". (12) The document describes the meaning of the term:
Yah'guudang--our respect for all living things--celebrates the ways our lives and spirits are intertwined and honors the responsibility we hold to future generations. Yah'guudang is about respect and responsibility, about knowing our place in the web of life, and how the fate of our culture runs parallel with the fate of the ocean, sky and forest people. (13)
Yah'guudang is similarly identified as a guiding value in the Council of the Haida Nations Marine Strategic Plan, which asserts: "Respect for each other and all living things is rooted in our culture." (14) It is emphasized in the CHN's written submissions to the Enbridge Northern Gateway Project Joint Review Panel, submissions that included a section on Haida law as developed from Haida oral histories. (15) It is also identified as the principle guiding the work of HaiCo, the Haida nation's economic development corporation. (16)
In this paper I propose an understanding of the Haida legal order in which yah'guudang is the central principle not only for environmental management, but for the management of all potentially conflictual relationships among human beings and the non-human world, that is, for the entire system of law. There is some substantiation for yah'guudang as a legal principle in the published views of Haida leader and past CHN president Guujaaw. In a 2007 interview, he described respect as "one of the core operative principles of law amongst our people." (17) He characterized respect as a legal principle that guides correct behavior: "It's respect for the earth, respect for other people, which comes to respect for yourself. So, if you keep that foremost then the troubles don't occur." (18) In a non-legal context, but with obvious legal implications, Alaskan Haida scholar Jeane T'Aawxiaa Breinighas described yahkwddng (the northern dialect term) as "a core Haida value" (19) and "central to who we are as a people." (20) In this paper, I offer an elaboration of the meaning of yah'guudang and its implications for Haida law. I locate expressions of yah'guudang in traditional and contemporary stories and in contemporary Haida legal instruments, and draw out specific rights and obligations arising from yah'guudang in these contexts. I frame yah'guudang as a guiding principle that gives rise to specific rights and obligations in relationships with nature, with Elders, and with outsiders. I propose an overall vision of the Haida legal system as one that prioritizes respect between and among humans and the non-human world.
In the first section of the paper, I review five Haida stories and propose interpretations of these that emphasize yah'guudang and give substance to its implications. The interpretations I develop are based on my own, relatively limited, outsiders perspective on Haida culture, and I do not assert that these interpretations are definitive. Readers or viewers of the stories who have greater fluency in Haida culture than I do would likely identify important details and themes that I have not. (21) My exercise is to demonstrate one way that these stories can be deployed in support of a particular legal analysis, and my hope is that my interpretation is sufficiently rigorous to convince the reader of its basis in the stories and, most significantly, its utility as a framework for understanding and applying Haida law.
In the second section, I turn to a story of more recent provenance, that of the standoff at Athlii Gwaii in 1985.1 draw on three tellings of this story and, again, draw out examples of the application of yah'guudang in this more contemporary context. In particular, I highlight continuities between the expressions of the principle in traditional stories and this recent story. I suggest that the manifestations of yah'guudang-based rights and obligations in the story of Athlii Gwaii demonstrate the adaptation of this central principle to changing circumstances in the present-day context of struggles for control over Haida territory and resources.
In the final section, I locate the rights and responsibilities that arise from the guiding principle of yah'guudang in contemporary Haida legal instruments. Here I suggest that the continuity of principles from traditional legends, to more recent stories, and into contemporary legal instruments is not a mere anthropological curiosity, but a demonstration of the necessary interaction between law and stories. Traditional and recent stories provide context and substance to make the provisions of legal instruments meaningful. In this paper, I propose an interpretation of Haida legal instruments with yah'guudang, and its attendant rights and obligations, at the centre. I interpret the Haida constitution and external agreements as manifestations of yah'guudang-, in so doing, I propose avision of the Haida legal system in which the guiding principle for navigating conflict and resolving disputes--for living together productively across difference--is respect for one another and for the natural world.
I. HAIDA STORIES: MYTHOLOGICAL AND CONTEMPORARY
In this section, I set out an interpretation of five traditional Haida stories. (22) I first provide an overview of each story and identify legal teachings that can be drawn from them. I then summarize the values, rights, and obligations that I locate in the stories as examples of yah'guudang. Before moving to the stories themselves, I note that the act of summarizing itself already reframes the stories so that they lend themselves to the interpretations I propose. I encourage the reader to review the stories themselves and consider other interpretations and principles; web addresses are provided in the footnotes.
The story of Yaanii K'uuka, like many Haida stories, describes the consequences of disobeying Elders and disrespecting nature. (23) In this story, a naughty young girl refuses to eat fish and berries that her parents offer her. As punishment, she is captured by the supernatural figure Yaanii K'uuka, who takes her away to an underground lair. The girl manages to escape by tricking Yaanii K'uuka, offering to pierce her ears and then pinning her to a log by the ear in the process. (Trickery is also a recurring theme in Haida stories.)
Stories of horrible consequences befalling disobedient children are common in many cultures (bogeyman figures like La Llorona in Central America, Baba Yaga in Eastern Europe, and l'uomo nero in Italy come to mind), but what I am most interested in here is the specific misdeed: refusing the berries and fish. In rejecting these products of nature, the little girl fails to appreciate her dependence on nature for her survival and well-being. The girl's lesson is not only to listen to her parents, but also to respect and appreciate the good things nature offers to humans. (24) The story as I interpret it thus represents two legal principles: to listen to and obey the wisdom of relatives who offer guidance, and to show proper respect to the natural world by appreciating its gifts.
These principles can also be identified in the story of Nuu Giidee Gyaahlangee, the baby octopus. (25) In that story, a group of children find a baby octopus on the beach and poke it, dance around it, yell at it, and laugh at it. They ignore their Elders'warnings not to play with living things in the water and not to hurt any living beings. When their grandmother yells at them, the octopus swims away, but the octopus family returns to the village to wage war against the children's family. Luckily for the humans, a shaman in the village can see what will happen and warns the family. The octopus family loses the battle, but the chief of the village, recognizing that his grandchildren had been in the wrong, hosts a feast for the octopuses to make amends.
This story repeats the lesson from Yaanii K'uuka that bad consequences attend disregard for Elders' instructions and disrespect for nature. I also identify within it a further legal principle: that apologies must be offered and amends made for wrongs done, even where the wronged party is weak or defeated. The story explicitly rejects the "might makes right" principle, teaching that even when humans are able to dominate, to do so is still wrong. No horrible fate befalls the naughty children, due to the intervention of the shaman, but it does not follow that the story's message is that you can disobey your Elders and disrespect nature without consequences. Rather, the grandfather's wisdom, morality, and graciousness demonstrate a proper attitude and the legal principle that all living things must be respected, regardless of their strength or weakness. The story can be understood to illustrate that yah'guudang imposes a legal obligation on Elders to show younger people the right way to live, and imposes a duty on everyone to behave respectfully in interactions with others, even adversaries.
Another story that builds further on the themes of respect for nature and for outsiders is "Tree Spirit", retold in manga format by Michael Nicoll Yahgulanaas. (26) In this story, a mysterious person comes to a village and joins in a game of stickball. Jealous of his superior skills, the other players become hostile and throw a rock at him. The stranger leaves in pain, vanishing into the ocean. Once the villagers turn back to the game, they notice a red feather floating down from the sky. One woman reaches out to catch the feather, but it pulls her away. Others reach out to grab her, but they too are carried away, until every villager but one has been pulled into the sky. The one remaining woman can no longer eat from the sea and survives on roots from the forest until she gives birth to a boy, fathered by roots. One day, the boy begins playing stickball on the beach, and the feather returns. He too grabs it and is pulled away. He attempts to fly with the feather, but loses control and crashes into the ground. He is buried deep in the earth and becomes the roots of the forests of Haida Gwaii.
I propose that this story demonstrates two obligations arising from the principle of yah'guudang: the obligation to treat others--even outsiders--with respect, and the obligation to act within the limits of human understanding of the non-human world. The disastrous events begin when the stickball players, hastily and out of jealousy, abuse an ocean-person. They violate the legal principle that all living beings must be treated with respect, even, in this case, curious strangers. Next, the people demonstrate their hubris in the face of nature's power when they are easily tricked by the supernatural feather; rather than regarding the power of the supernatural with appropriate awe and by staying away, each person believes he or she will be the one to pull the feather down, but each fails and is taken away. In my reading, the story teaches that people must approach the world around them with due caution and without arrogance.
The negative consequences that follow these acts of disrespect (violations of yah'guudang) are more ambivalent than those in Yaanii K'uuka. The son's transformation into the roots of trees is not horrific, but monumental: everywhere the mother sees trees, she will see her son, and the trees of Haida Gwaii become a monument to her loss. This element of the story reminds us that humans and nature are interconnected and have always been a part of one another. This element is also echoed in the preamble to the Haida Constitution (discussed in detail in Part II, below), which states: "Like the forests, the roots of our people are intertwined such that the greatest troubles cannot overcome us." (27) The son becoming the roots of forests is a loss to the mother, but also an embodiment of enduring strength and a symbol of the intimate connection among humans, nature, and the supernatural. This story and others like it, in which supernatural or mythological beings become parts of the physical landscape, underpin the principle that the natural world has value in and of itself, and must be protected for its own sake, not merely for use by humans.
The story of Sgaan lihlaanjadaa Gyaahlaangaay, (28) killer whale man, also teaches about the human relationship to the natural and supernatural. In this story, five brave (but perhaps foolhardy) young men head out in the stormy sea to hunt seals and sea lions, despite their uncles' warnings not to. Out in the waves, killer whales surround the men's canoe and pull them down a whirlpool to the killer whales' home at the bottom of the sea. There, the whales transform the young men into killer whales--except for one, who protects himself with an amulet. He returns to the village and tells everyone what happened. The story concludes that since that day, the Haida do not hunt killer whales, but honour and respect them, and have a special relationship with them: "[I]f you are lost at sea, the killer whales will find you and look after you. And you will become one of them." (29)
As in the other stories discussed, the people in this story disregard the power of nature (the storm) and the warnings of their Elders. But like in "Tree Spirit", the consequences are ambivalent: all but one of the brothers dies, but at the same time, humans gain a special relationship with orcas and recognize their spiritual power. The legal principle that I draw from this story, in addition to the commandments to respect nature's power and Elders'guidance, is that relationships with nature are governed by spiritual as well as worldly concerns. According to this story, Haida refrain from hunting orcas not because of a concern to preserve a scarce resource, but because of their spiritual status. (30)
Many other stories explore further nuances of the relationship among humans, nature, and the supernatural, but I will include just one more: the story of the Golden Spruce, Kiidk'yaas. (31) The story begins with people taking too much from the land and the sea--an obvious warning of bad things to come in Haida moral and legal discourse. An exceptionally long and cold winter follows. One day, a boy defecates on the beach and sees that his feces, frozen, stands up like a tree, and he laughs. The cold winter continues and the people of the village arc dying of sickness and starvation. The boy and his grandfather decide to leave the village, and his grandfather warns him not to look back as they leave. The boy cannot resist a last look and is turned into the golden spruce tree, a well-known tree with a rare genetic mutation that stood beside the Yakun River until 1997. (This story is also famous for another, more recent chapter, in which a former logger cut down the distinctive tree as a protest against industrial logging, and then disappeared mysteriously. (32))
The legal principle that I see most starkly in this story is not to take more from nature than is sustainable. In the animated video, the boy is eating and enjoying the fish, opposite to the behaviour of the young girl in Yaanii K'uuka. All appears to be well as a man sends others out to gather more fish. However, we are then told that "people were taking too much from the sea and the land", (33) and the story implies that the cold winter that follows is a consequence. Thus, while it is important to appreciate and enjoy the bounty of nature, humans must also respect nature's limits and not use more resources than nature can sustain.
But the over-extraction from nature and the resultant cold winter are only the prelude to the story's main plot point: the boy's transformation into a tree. The principles to be drawn from this part of the story are less clear. The boy appears to have done two things wrong: first, he laughed at his feces, and second, he looked back at his village, against his grandfather's warning. I confess I am not able to make much of this first misdeed, perhaps because of the wide gap between my cultural approach to human excrement (i.e., not to discuss it at all) and the Haida approach. Perhaps there is a lesson about arrogance towards nature: the reason for the boy's funny looking excrement was that it was so cold, nature's punishment for the over-extraction of resources. Rather than appearing penitent, the boy was laughing and joking, and failing to show the proper reverence for the power of nature and the punishment it had inflicted. However, I am not confident about the strength of this interpretation, because I also know that jokes, even silly and crude jokes, are important in Haida oratory; (34) therefore it seems illogical that making a silly joke about feces would warrant supernatural punishment.
The second misdeed is more familiar, with similarities to the Greek story of Orpheus, who couldn't resist a look back at his wife Eurydice as they left the underworld and thus lost her forever, and the Hebrew story of Lot's wife, who looked back while fleeing Sodom and Gomorrah and turned into a pillar of salt. Yet despite the familiarity of the plot device, the lesson to be taken is not immediately clear. It seems that part of the immorality of looking back lies in disobeying an elder--the grandfather told the boy not to look back--but this leaves unanswered the connection between the omen of the frozen feces and the ultimate transformation into a tree. The principle that I draw from this part of the story, though again I am not entirely confident in my interpretation, is that nature's powers can be mysterious, beyond human control and prediction. Humans have an obligation, then, to approach nature with due reverence rather than arrogance.
As laid out in Table 1, below, the obligations and rights that I draw from these stories can be grouped according to three principles of yah'guudang: respect for the natural world, respect for Elders, and respect in interpersonal relationships.
In my proposed framework, the principle of respect for the natural world is the basis for five distinct rights and obligations. Everyone is under an obligation to appreciate, and not take for granted, nature's gifts, and an obligation to take from nature only what can be sustainably replaced; everyone enjoys a corresponding right to benefit from the products of nature. Everyone also has an obligation to act within the limits of human understanding of and control over nature, limits which are often circumscribed. This obligation is a caution against hubris and arrogance. Respect for nature also gives rise to the obligation to have regard and consideration for the lives and experiences of all living beings.
In addition to respecting nature, these stories instruct that people must respect the wisdom of Elders. This principle is linked closely with the principle of respecting nature, because the content of Elders' wisdom in the stories is about the proper way of interacting with nature. Two obligations emerge in my reading: younger people have an obligation to listen to and obey Elders' instructions, and Elders have a corresponding obligation to guide younger people. In these stories, where guidance is ignored, disaster follows.
Finally, the stories also illustrate the principle of respect for outsiders. Although the interactions in the story often feature supernatural beings rather than humans, the lessons from their interactions are readily applicable to the human realm. In Haida legend, the distinctions among animals, humans, and supernatural beings are blurred, as supernatural beings often appear to be animals but turn out to be humans in the skins of animals. (35) Intersubjective interactions in the stories can be read to demonstrate two legal obligations: first, that everyone has a right to be treated with respect; and second, that everyone has a corresponding obligation to treat all beings with respect. Respect, here, means having regard and consideration for the unique perspectives, experiences, wishes, and rights of others. In particular, I highlight in these stories an obligation to respect outsiders or people who are different, to come to understand them on their own terms. Together, these stories give a meaning to yah'guudang that is multi-faceted and yet unified by a central value system.
II. CONTEMPORARY HAIDA STORY: ATHLIIGWAII
Mythological stories provide insight into a cultures traditional values: they persist over time and are passed down the generations because they teach about what a culture holds as most valuable. However, I also propose to examine a story of more recent provenance as a source of legal principle. The story of Athlii Gwaii happened in 1985 and has not yet passed the test of time, but it plays an important role in the narrative of the Haida Nation reasserting itself culturally and politically after a long stretch of dormancy under colonial oppression. Athlii Gwaii is celebrated as a turning point, the Haida's first major victory in regaining control over Haida Gwaii. In the Haida telling of the story of Athlii Gwaii, the principle of yah'guudang both explains and guides this still-unfolding story of Haida resurgence. Moreover, this recent story teaches how the rights and obligations arising from yah'guudang can be realized in a contemporary setting, which is helpful in bridging between traditional, mythological stories and contemporary, enacted laws.
It is no less the case for this story than it was for the mythological stories described above that multiple themes and lessons can be drawn from this story depending on the perspectives from which it is recounted and received. Nor is it any less true that my process of summarizing the story, below, presents a specific framing that is informed by my (relatively limited) cultural understanding, and that is motivated by my project here, to present a vision of Haida law based on a multi-faceted concept of respect. My synopsis of the story of Athlii Gwaii is drawn from three recent Haida sources: the November 2010 special issue of Haida Laas, the publication of the CHN, commemorating 25 years since the blockade; (36) articles in Haida Laas about remembrances of Athlii Gwaii; (37) and two episodes of the documentary series Ravens and Eagles, entitled "Athlii Gwaii: The Line at Lyell", written and directed by Jeff Bear (who is Maliseet) and Marianne Jones (who is Haida) in 2003. (38) The creators of these sources also presented the story for specific purposes and from specific viewpoints. Thus, in this section I do not propose an authoritative history of "What Happened at Athlii Gwaii", but rather a narrative account that emphasizes the many manifestations of respect between and among people and the natural world in order to give substance to my claim that yah'guudang is the principle at the centre of the Haida legal order.
The blockade at Athlii Gwaii (an island in the southern part of Haida Gwaii) was the Haida response, supported by non-Haida environmentalists, to increasing, destructive logging across the islands. (39) It was the culmination of over a decade of frustrated and, to that point, fruitless attempts to negotiate with the provincial government to protect environmentally and culturally important forests and creeks on Haida Gwaii. In the months leading up to the blockade, the BC government had assured the Haida that the Ministry of Forests would not grant cutting permits until a formal decision was made about land use on all of South Moresby, the southern end of Haida Gwaii. South Moresby was important not only for its remaining stands of old growth trees, but also because of its many culturally significant sites, such as the village of SGang Gwaay Llnagaay, now a UNESCO World Heritage site, abandoned in the 1880s in the wake of the smallpox epidemic. (40) It was anticipated that this land use plan would draw on the report of the South Moresby Planning Team, a group that included representatives of the Haida, industry, and environmentalists. But the government broke its promise: the Ministry issued permits without a plan in place, ignoring the planning report. Logging resumed on Athlii Gwaii in October 1985. So, in November 1985, Haida people went to Athlii Gwaii, set up a camp, and prepared to peacefully block the road and stop the destruction.
On the first day, the young blockaders gathered at the road, singing and playing drums, wearing button blankets and other regalia. They painted their faces in the traditional way to represent their connection to their ancestors. They were nervous but committed. They didn't know what to expect: their intentions were non-violent, but they didn't know how the loggers and the police would react to them. On that first day they let the loggers through, in what Michael Nicholl Yahgulanaas described as "a show of respect for a system that we knew wasn't hearing us." (41)
The next day, the young people again gathered at the road, prepared to stand and block the way this time and face the consequences. As they watched the RCMP approach from down the road, they heard helicopters. They didn't know whether the helicopters were more police or more media, so when four Elders got out it was a "moment for celebration." (42) Ethel Jones, Gaahlaay (Watson Pryce), Ada Yavanovich, and Adolphus Marks had arrived to go first on the line. The Elders told the blockaders, "We've been silent about this for most of our life. We've wanted to make this stand and today we ask you to respect that." (43) The young people tried to dissuade the Elders, concerned that the Elders'safety would be at risk if they were to be arrested or jailed. The people argued late into the night, staying up until three o'clock in the morning trying to come to a consensus about the right course of action. But the Elders were insistent: they were there to stand up for their future generations, and they had an obligation to do so.
It was windy and rainy when the Elders went to the road the next day. The young men put up a shelter for them and treated them gently. The Elders spoke to the media gathered there and explained their purpose: they were protecting their land and the interests of the future generations--not just for the Haida, but for white people too. Adolphus Marks appealed to the conscience of the white people: "When you guys strip the island, what are you white people's generations going to do ? We're protecting it for both sides." (44) Diane Brown, Gaahlaay's granddaughter and a blockader, recognized that when the Elders came to the line, they brought history with them, validating this struggle as a part of the long narrative of the Haida Nation. They also brought the future: they were there to stand up for the future of the Haida and of Haida Gwaii.
When it came time for the arrests, the Haida Elders made a particular request. Two of the RCMP there were Haida, and the Elders said that if anyone was going to arrest them it should be those two. One of the two men, Sgaann 7iw7waans (Allan Wilson), described his powerful emotions at that time. As the RCMP approached formally to make the arrests, tears streamed from his eyes. The Elders understood and respected the difficult position he was in. The Elders wanted to go with dignity. Naani Ethel (45) extended her arm to him; he linked his arm through hers and led her away, crying silently as they went.
The Elders were taken away by helicopter, then fingerprinted and released. Dozens of young blockaders followed the Elders' lead, staging blockades seven times that month. Seventy-two Haidas were arrested and charged and twelve were convicted, but none served jail time.
The standoff at Athlii Gwaii was a critical moment in a chain of events intended to preserve South Moresby and to assert Haida sovereignty over Haida Gwaii. In 1986, environmentalists and Haida, including the four Elders who were first on the line, travelled across Canada to raise awareness and funds. In 1987, Canada and BC announced they would designate South Moresby as a National Park Reserve--this was a major victory, but it didn't satisfy the Haida, as it didn't put their traditional lands under their control. After six more years of lobbying and negotiating, Canada and the CHN signed the Gwaii Haanas Agreement, setting South Moresby as a protected area jointly managed by representatives of Canada and the Haida Nation. Speakers at the 25th anniversary celebration remembered Athlii Gwaii as a watershed moment not just for the protection of the natural environment, but for the assertion of Haida political consciousness: "Were celebrating a moment where our generation took matters into our own hands and stood together in defence of our nationhood." (46)
As laid out in Table 2, I propose that this story reflects the three aspects of yah'guudang that were illustrated in the traditional stories described above: respect for nature, respect for Elders, and respect in relations with outsiders.
The central purpose of the blockade, to stop the logging, can be understood as enforcing rights and upholding obligations that are the substance of respect for nature. These rights and obligations comprise the right of everyone, including future generations, to enjoy the products of nature, the corresponding obligation to protect these for future generations, and the corollary obligation to take from nature only what is sustainable. Although the blockaders were violating Canadian law by their actions, had they not taken the actions they did they would have been in violation of Haida law. In fact, at the blockade, Miles Richardson, then-president of the CHN, asserted Haida jurisdiction over the land there: "This is Haida land, you all know that, and we're here to uphold the decision that the Haida have made.... There will be no further logging in this area." (47)
Also stemming from the principle of respecting nature, the obligation to act within the limits of human understanding of nature can be identified in the story: the BC government and the logging industry acted hubristically, taking whatever they wanted from nature, but negative consequences followed. In addition to the destruction of forests, reckless logging practices destroyed creek beds essential for salmon spawning. The Ministry of Fisheries fined the forestry company responsible, Western Forest Products. Miles Richardson identified this incident as a precursor and motivating catalyst for the blockade; it actually occurred after the blockade, in 1986, but has become part of the larger narrative of the conflict that came to a head at Athlii Gwaii. (48)
The legal obligations attending the principle of respect for Elders can also be located in this story. The story's emotional climax comes when the Elders arrive at the line; as I read it, this is no mere detail, but the core of what makes this story instructive for the future. These Elders had grown up under the potlatch ban and the residential school system; by taking a stand at Athlii Gwaii, they were throwing off the mantle of colonial oppression and asserting their role in the Haida moral and legal order, fulfilling their obligation under Haida law to guide younger people. For the young blockaders, the presence of the Elders validated their course of action, since Haida law teaches that young people must follow the wisdom of their Elders when it comes to the right way to interact with nature. The blockade was supported by Canadian and international environmentalists and attracted media attention around the world, but in my reading of this story, support from those quarters, while tactically valuable, had none of the moral weight that support from the Elders brought.
The Haida blockaders also abided by the principle of respect for outsiders to the community. In allowing the loggers through on the first day, they acknowledged the right of the loggers as individuals and the Canadian legal system more generally to be treated with respect. I interpret this act as abiding by their legal obligation to have regard for the unique perspectives, experiences, wishes, and rights of others. Although the Canadian system is different from and often hostile to the Haida, the blockaders recognized an obligation to respect the validity of the position of the Canadian other.
The emphasis within the story on the mutually respectful interactions with the RCMP provides further substantiation for the centrality of yah'guudang. While the actions of the Government of British Columbia were inconsistent with the Haida principle of interpersonal respect--for instance, by dragging on the land use study process only to ignore its conclusions and allow further logging--the actions of the RCMP members present at the line did demonstrate proper respect. The RCMP readily agreed to the Elders' request that it be the Haida officers to arrest them. The RCMP earnestly pledged that their actions would uphold the dignity of all involved. The blockaders could see that the RCMP understood their position and were even sympathetic to their cause. Guujaaw, a leader of the blockade and later a long-serving CHN president, observed: "I think the RCMP had a pretty hard position because ... they understood and got to know everybody, so when the time came for them to go and make arrests or do anything it was quite hard." (49) The blockaders didn't view the RCMP as the "bad guys", but just working people doing their jobs. (50) Sgaann 7iw7 aans emphasized how much it meant to him to know that he had the respect of every person at that blockade, Elders and young people, who all recognized the difficult position he was in. The interaction between the RCMP and the Haida blockaders was marked by mutual respect; both sides abided by the principle, which I propose is an important implication of yah'guudang--that parties to a dispute are obligated to recognize the validity of the others position.
Like the traditional stories surveyed above, the more recent story of Athlii Gwaii can be read to provide substance to the principle of yah'guudang. In the framework I propose, events and details in the story illustrate the legal rights and obligations that emerge from this principle. Yah'guudang guides relationships with nature, with Elders, and with outsiders. The success of the standoff at Athlii Gwaii shows that when people abide by these Haida laws, they can achieve positive results. Yah'guudang is not merely an educational moral to mythological stories, but a concrete guide to correct actions in the contemporary world, with all its complexities.
III. CONTEMPORARY HAIDA LAW
The laws articulated in Haida stories, traditional and more recent, are also manifested in contemporary Haida law. In this section I focus primarily on Haida constitutional law, but also consider external agreements signed by the CHN on behalf of the Haida. I propose a reciprocal relationship between these legal instruments and the stories, traditional and contemporary, analyzed above: the legal instruments entrench the discrete rights and obligations that flow from yah'guudang and that are identified in the stories, and the stories provide context for interpreting the provisions in the legal instruments.
The centrepiece of enacted Haida law to date is the Constitution of the Haida Nation, (51) which was adopted in 2003. The "Haida Proclamation" that opens the Constitution emphasizes the central role of the principle of respect: "The Haida Nation is the rightful heir to Haida Gwaii. Our culture is born of respect; and intimacy with the land and sea and the air around us." (52)
The Constitution entrenches many of the specific rights and obligations that I drew out of the stories in the previous sections of this paper. Regarding the natural world, the Constitution establishes the right of all Haida citizens (defined as "[a]ll people of Haida Ancestry" (53)) to use the resources of nature, and the corresponding obligation to take only what is sustainable. Article 3, section 2 states, "Every Haida Citizen has a right of access to all Haida Gwaii resources for cultural reasons, and for food, or commerce consistent with the Laws of Nature, as reflected in the Laws of the Haida Nation." (54) (I will return to these concepts of the "Laws of Nature" and the "Laws of the Haida Nation") Article 8, section 6 reiterates this obligation as a duty of the CHN as a whole, requiring that land and resource policies be "consistent with nature's ability to produce." (55) The "Haida Proclamation" frames this responsibility as a duty to future generations: "The living generation accepts the responsibility to [e]nsure that our heritage is passed on to following generations." (56) The "heritage" referred to, as I read it, encompasses not only natural resources but the Haida way of life. The Haida way of life is inextricably connected to natural resources; thus the "Haida Proclamation" issues a call to protect a relationship with the natural world, beyond just conservation or sustainable use of resources.
The provisions of the Constitution also echo the principles of yah'guudang that I have drawn from the stories in the context of intergenerational relationships and the primacy of respect for Elders. The "Haida Proclamation" highlights the spiritual nature of relationships with past generations, and the mediation of this relationship through the natural world, declaring, "On these islands our ancestors lived and died and here too, we will make our homes until called away to join them in the great beyond." (57) The Constitution goes on to provide for a specific, legally structured role for the leadership of Elders. Article 12 sets out the structure of the Hereditary Chiefs Council (HCC) and identifies the source of its authority in "the ancient clan customs of the Haida Nation." (58) Hereditary Chiefs must be potlatched by their clans to assume their leadership positions. (59) By formally recognizing the authority of ancient clan customs, the Constitution respects the wisdom of ancestors who created these customs and practiced them since time immemorial. The Constitution also recognizes "the prominent role of our hereditary matriarchs as part of our governing body" (60)--in mythology, at Athlii Gwaii, and in contemporary Haida political life, matriarchs provide moral guidance to younger people. (61) The special role of the HCC, as the official voice of the Elders, is to guide moral and contentious decisions. Six provisions set out the substance of this role: the HCC vets petitions for special meetings of the House of Assembly and of the CHN, (62) reviews allegations of misconduct and petitions for recall, (63) and participates in appointing members to Judicial Tribunals. (64) As well, any international agreement regarding rights and title must be approved by the Hereditary Chiefs before it will be put before the citizenry in a referendum. (65) In carrying out these roles, the HCC fulfills the Elders' legal responsibility to provide guidance to younger people.
The third facet of yah'guudang as proposed in my interpretive framework, respect in relationships with outsiders, receives less elaboration in the Constitution than do the first two. The Constitution says little about relations with non-Haida communities, only that the mandate of the CHN includes to "promote peaceful co-existence with other people and governments without compromise to the objectives of the Haida Nation." (66) Where the principle of respect across difference is manifested is in the three agreements between the CHN and the non-Haida communities on Haida Gwaii, and in the Kunst'aa guu-Kunst'aayah Reconciliation Protocol between the Haida Nation and the Province of British Columbia. All of these agreements are predicated on the principle that everyone, even an adversary, merits respect, holds valid positions, and has a legitimacy that must be recognized.
The CHN signed Protocol Agreements with the Villages of Masset and Port Clements in 2004, (67) and with the Village of Queen Charlotte and Area D of the Skeena Queen Charlotte Regional District in 2006. (68) In these agreements, the Haida and non-Haida communities on Haida Gwaii pledge to "work together in designing a future that will support a healthy environment and create a sustainable islands economy." (69) The Protocols are based on the parties' shared belief that title reconciliation "need not be divisive or exclusive and can be taken as an opportunity to make things better." (70)
The Protocol Agreements embody the yah'guudang principle of respect for outsiders. Rather than approaching non-Haida residents of the islands as opponents or competitors, despite a history of tensions and conflicts, in these agreements the Haida Nation addresses non-Haida communities as having legitimate concerns and valid experiences that warrant consideration. In the Protocols, "[t]he CHN accepts that the people who call the islands home are most affected by land use and title disputes". (71) The Protocol recognizes that "[p]eople seek security for their families and homes." (72) The CHN invites non-Haida communities to participate in title conciliation talks with the Province, (73) and assures non-Haidas that it will not dispossess them of their lands. (74) In these provisions of the Protocols, the Haida respect the valid concerns of non-Haida people and commit to addressing them.
Compared to on-island neighbours in Masset, Queen Charlotte, and other villages, the Province is a more difficult "other" to approach in the manner required by Haida law. Interactions with the Province are not with individual human beings who have lived as neighbours for decades, but with bureaucrats and Ministers and a revolving array of office holders. In addition, the adversarial Canadian legal system is not easily amenable to a recognition of a different or opposed other as holding legitimate positions. The Province, in its Statement of Defence to the Haidas title claim, "does not admit the existence of the 'Haida Nation'" (75) denies that the elected CHN president has any authority to speak for the Haida, (76) and "does not admit that the Plaintiffs are indigenous to the Queen Charlotte's." (77) These absurd propositions are entirely natural within the Canadian legal systems approach to dispute resolution, but could not be more antithetical to Haida dispute resolution predicated on yah'guudangas I elaborate it here.
Despite this sizeable obstacle, the Haida Nation has been able to make progress in framing a relationship with the Province based on mutual recognition. In 2009, the CHN and the Province signed the Kunst'aa guu-Kunst'aayah Reconciliation Protocol, which set out a basis to begin to work together on collaborative land and resource management in the absence of a decision on title. (78) The agreement begins with a feature that is highly unusual of a Canadian legal document:
The Parties hold differing views with regard to sovereignty, title, ownership and jurisdiction over Haida Gwaii, as set out below.
The Haida Nation asserts that:
Haida Gwaii is Haida lands, including the waters and resources, subject to the rights, sovereignty, ownership, jurisdiction and collective Tide of the Haida Nation who will manage Haida Gwaii in accordance with its laws, policies, customs and traditions.
British Columbia asserts that:
Haida Gwaii is Crown land, subject to certain private rights or interests, and subject to the sovereignty of her Majesty the Queen and the legislative jurisdiction of the Parliament of Canada and the Legislature of the Province of British Columbia. (79)
The two competing perspectives of the Haida and the Province are presented side-by-side, neither ascendant over the other. The positions stated within them are incompatible, and yet the way they are laid out indicates a mutual recognition of the position of the other, across difference. This willingness to recognize the legitimacy of the other facilitates the creation of a productive relationship.
The Protocol establishes two collaborative decision-making bodies: the Haida Gwaii Management Council, comprising two representatives of each party and a jointly appointed chair responsible for developing and implementing land use policy; and the Solutions Table, also comprising representatives of each party, responsible for operational decisions including reviewing and recommending approval or rejection of resource permit applications. April Churchill, Vice President of CHN at the time, described the value of the Solutions Table co-management approach: "We are bringing two governments together, and now working together to show the world there is nothing to fear. This one team will prove that, and work as friends and neighbours". (80) Even though within the document and in court proceedings, the Haida and the Province each assert sole ownership and sovereignty, the framework makes space for them also to recognize the legitimate governmental role of the other. The Kunst'aa guu-Kunst'aayah Reconciliation Protocol "recognizes the fundamental authority and responsibility of both governments in making land-use decisions." (81) The Haida legal principle of respect across difference allows for such contradictions and creates a legal obligation to respect them and work through them.
After signing the Kunst'aa guu-Kunst'aayah Reconciliation Protocol, both parties passed laws in their respective legislatures putting into effect the structures laid out in the agreement. The Haida law, passed at the 2010 House of Assembly, is called Kaay Guu Gaga Kyah ts'as--Gin 'inaas 'laas 'waddluwaan gud tl'a gudgiidaa, which means "take care of nature--to have love and respect for all living things." (82) The title of this law underscores the importance of the Kunst'aa guu-Kunst'aayah Reconciliation Protocol as a means for entrenching the law of yah'guudang. The protocol is not merely a vehicle for advancing title claims, but for erecting structures to ensure that proper principles are followed in caring for and respecting all living things.
Thus far I have described one side of the reciprocal relationship between stories and law: the values articulated in stories are formally enacted in these legal instruments. However, I propose another side to this relationship: enacted laws are not exhaustive of their own meaning, and their full meaning is established through interpretation and application of stories. The meanings and effect of enacted laws are established with reference to stories. As Napoleon and Friedland argue, this approach to the interaction of Indigenous law and stories is not so different from the common law approach, in which cases are interpreted and applied to determine the meaning of a law that is at the centre of contestation. Stories communicate principles and exemplify applications of these principles, providing guidance for unfolding situations in which laws have multiple possible effects.
Article 3, section 2 of the Constitution provides an example of the inherent ambiguity in enacted law, which can be resolved through application of stories. This article stipulates that Haida citizens' right of access to natural resources must be exercised in a manner "consistent with the Laws of Nature, as reflected in the Laws of the Haida Nation." (83) It should be noted that the Constitution was the first enacted law of the Haida Nation, so there is not an explicit body of law to which this statement refers. Thus, the content of "the Laws of the Haida Nation" must be found outside explicit law, in cultural sources like stories.
The stories analyzed in this paper set out one version of what could be understood as "the Laws of the Haida Nation" to which the Constitution refers. (84) The laws of the Haida Nation, in the framework I have proposed, are based on a central principle of respect, yah'guudang, which gives rise to specific rights and obligations in relationships with other humans and with the non-human world. Drawing on traditional and contemporary stories, I have identified eight specific rights and obligations, listed in the tables above. It is my contention that these rights and obligations are a portion of "the Laws of the Haida Nation" to which the Constitution refers. In assessing whether a particular instance of accessing natural resources violates section 2 of article 3, Haida decision makers can look to these and other stories, which tell of these and other principles, and consider whether these specific rights are upheld and obligations met. They may inquire: Does this use of natural resources protect their availability for future generations? Does it take only what nature can sustainably replace? Is it within the bounds of our understanding of this particular natural system ? Is it in accordance with the guidance of Elders? Does it adequately meet the needs and interests of outsiders to the community? Answers to these questions would allow a decision maker to assess whether the proposed use of resources demonstrates and accords with yah'guudang.
This process of legal reasoning can be analogized to Canadian constitutional interpretation. When, for instance, Canadian judges seek to determine whether a deprivation of liberty is in accordance with the principles of fundamental justice, as required by section 7 of the Charter, they review the lessons from existing Canadian legal stories: the case law. Where a past story is very similar to the problem at hand, judges may follow the decision very closely; where a set of facts (a story) is more novel, judges will look to the principles recounted in past cases and apply these to make a new decision. This process, applying the teachings of stories from the past to conflicts and problems in the present, is the type of legal reasoning that Napoleon and Friedland encourage scholars and interested parties to engage in in order to revitalize Indigenous legal traditions. As demonstrated here, Indigenous stories of ancient or recent provenance lend themselves well to serving as guides for the application and elaboration of the enacted laws of Indigenous nations.
Though a detailed assessment of the successes of the Haida Nation in enacting and enforcing laws based on yah'guudang is beyond the scope of this paper, there are some key victories worth noting. The Haida Gwan Strategic Land Use Agreement (SLUA), signed by the Province and the CHN in 2007, established new rules for resource extraction on Haida Gwaii and new protected areas. (85) As a result of the SLUA, over 50% of Haida Gwaii is now completely free from industrial resource extraction, and the remainder is managed based on ecological principles. (86) The SLUA upholds the Haida legal principle of respecting nature by adhering to the specific obligations to take only what is sustainable, to act within the limits of human understanding, and to protect the products of nature for future generations. The agreement explicitly recognizes the corresponding right to enjoy nature inhering in future generations: the new protected areas are to be maintained for benefit, education and enjoyment of present and future generations." (87) Moreover, the SLUA explicitly recognizes the Haida Nation's distinct system of land management: section 8.1 states, "This Land Use Agreement will be implemented by the Haida in accordance with their laws, policies, customs, traditions and their decision making processes and authorities." (88) (Section 8.2 leaves it to the Province to also implement in accordance with its own law.) (89) In this way, the SLUA upholds the Haida legal principle of extending respect across difference by fulfilling the obligation to recognize the validity inherent in the positions and beliefs of the other.
At the December 2012 CHN House of Assembly, Grand Chief Stewart Phillip of the Union of BC Indian Chiefs attended as a special guest speaker. (90) His message for his Haida audience was: "You have no idea what you represent to the outside world." (91) Phillip praised the Haida as a "beacon of hope" (92) for the unparalleled progress they had made, having "moved from where everything was controlled by corporations, to a position, today, where you have [more] control over your own territory than any other group that I know of". (93) And he identified an important factor that helped to put the Haida in this unique and enviable position: the Haida Constitution. In particular, Grand Chief Phillip posited that the power of the Constitution, its efficacy in achieving the goals of the Haida Nation, "was the result of the document being firmly rooted in culture and language and based on Haida authority." (94) The commitment of the CHN, the Band Councils, and the Hereditary Chiefs to work together under the Constitution, in accordance with Haida cultural values, empowered the Haida Nation with real leverage at the negotiating table. (95)
This essay has explored the connection Grand Chief Phillip drew between the traditional values of Haida culture and substantive content of contemporary Haida law. The values articulated in traditional stories, passed down the generations because of the important teachings they contain, are carried forward through more recent stories like that of Athlii Gwaii and into contemporary legal forms developed in the past decade. I have proposed an interpretation of the legends, stories, and laws of the Haida Nation that emphasizes the legal principle of yah'guudang and that itemizes the legal obligations and rights that flow from it. This central cohesion not only connects contemporary Haida law to cultural forms rooted in the traditions of the past, but allows it to adapt to changing present circumstances without losing focus on what matters most in the Haida legal order: yah'guudang, treating every living being--human or not, neighbour or adversary--with respect.
(1) Val Napoleon & Hadley Friedland, "An Inside Job: Developing Scholarship from an Internal Perspective of Indigenous Legal Traditions" (2011) [unpublished workshop paper] at 8.
(2) Ibid at 7.
(3) Ibid at 3.
(4) Ibid at 2.
(5) John Borrows, Drawing Out Law: A Spirit's Guide (Toronto: University of Toronto Press, 2010).
(6) Napolean & Friedland, supra note 1 at 9.
(7) Valine Crist, "CHN Spring Seasonal Session: the business update", Haida Laas (July 2013) 5 at 6, online: Council of the Haida Nation <http://www.haidanation.ca>.
(8) Quoted in ibid.
(9) I also note the work of Haida lawyer Terri-Lynn (gid7ahl-Gudsllaay) Williams-Davidson in this regard. See Terri-Lynn (gid7ahl-Gudsllaay) Williams-Davidson, "Weaving Together Our Future: The Interaction of Haida Laws to Achieve Respectful Co-Existence", Indigenous Legal Orders and the Common Law, Continuing Legal Education Society of British Columbia (2012), online: White Raven Law Corporation <http://www.whiteravenlaw.ca>.
(10) Gordon Christie, "Indigenous Legal Theory: Some Initial Considerations" in Benjamin J Richardson, Shin Imai & Kent McNeil, eds, Indigenous Peoples and the Law: Comparative and Critical Perspectives (Portland, Or: Hart Publishing, 2009) 195 at 209, n 30.
(11) This is the southern Haida term. The northern dialect term is yahkwddng. See Giihlgiigaa Tsiits Gitanee (Todd S Devries), "R: English-S. Haida" (5 January 2014), Skidegate Haida Language--Xaayda Kll (blog), online: <http://xaayda-kil. blogspot.ca>; Giihlgiigaa Tsiits Gitanee (Todd S Devries), "R. English-Haida" (April 2011), tihlxaadas htius xjinaangslaang: We Haida's are coming alive again (blog), online: <http://haidalanguage.blogspot.ca/p/dictionary.html>. See also Jeane T'Aawxiaa Breinig, "In Honor of Nastio: Kasaan Haida Elders Look to the Future" (2013) 25:1 Studies in American Indian Literatures 53 at 60-66.
(12) Haida Land Use Vision: Haida Gwaii Yah'guudang [respecting Haida Gwaii] (April 2005), online: Council of the Haida Nation <http://www.haidanation.ca> [brackets in original],
(13) Ibid at 4.
(14) "Council of the Haida Nation Marine Strategic Plan" (28 November 2007) at 4, online: Canadian Environmental Assessment Agency <http://www.ceaa.gc.ca>.
(15) Enbridge Northern Gateway Project Joint Review Panel (31 May 2013), OH-4-2011 (Final Argument, Council of the Haida Nation) at para 58, online: Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/050/documents/p21799/89913E.pdf>.
(16) Haida Enterprise Corporation, Objectives & Principles, online: <http://www.haico.ca/home/objectives-principles>.
(17) Interview of Guujaaw by David E Hall (20 October 2007) "Native Perspectives on Sustainability: Guujaaw (Haida)" at 3, online: Native Perspectives on Sustainability < http: //www.nativeperspectives.ne t >.
(19) Breinig, supra note 11 at 63.
(20) Ibid at 60.
(21) Anotable omission from my analysis is the spiritual dimension of Haida stories and law. Despite the existence of some published work on the topic (see e.g. Marianne Boelscher, The Curtain Within: Haida Social and Mythical Discourse (Vancouver: University of British Columbia Press, 1989)), I find that this dimension is outside my understanding and therefore I do not attempt to include it. As spirituality is an integral aspect of Haida culture, this omission makes my analysis necessarily incomplete.
(22) Xaadee Gyaahlaangaay: Haida Legends, online: Council of the Haida Nation <http://www.haidanation.ca/Pages/language/haida_legends/haidalegends.html>.
(23) Haida Legends Project, "Yaanii K'uuka" online: Council of the Haida Nation <http://www.haidanation.ca/Pages/language/haida_legends/media/read/IllYaanii Kuuka.htmlx
(24) Guujaaw notes that in Haida stories, " [m] aking fun of food has its consequence": Hall, supra note 17 at 2.
(25) Haida Legends Project, "Nuu Giidee Gyaahlangee: Baby Octopus", online: Council of the Haida Nation <http://www.haidanation.ca/Pages/language/haida_legends / media/read/Ill_BabyOctopus.html>.
(26) Michael Nicoll Yahgulanaas, Old Growth, edited by Liz Park (Vancouver: Read Leaf, 2011) at 85.
(27) Council of the Haida Nation, Constitution of the Haida Nation, 2003, amended 2010, online: <http://www.haidanation.ca> [Constitution].
(28) Haida Legends Project, "Sgaan lihlaanjadaa Gyaahlaangaay: Killer Whale Man" online: Council of the Haida Nation <http://www.haidanation.ca/Pages/language /haida_legends/media/read/IllKillerWhale.html> ["Killer Wale Man"].
(30) A similar principle explains why Haida do not hunt bears. In the story, "Taan Aaw Gyaahlaangaay: Bear Mother", a young woman is abducted by the bear people and marries their chiefs son, giving birth to two half-bear, half-human children. Her human family adopts the bear as their crest, signifying the special relationship between Haida and bears. See Haida Legends Project, "Taan Aaw Gyaahlaangaay: Bear Mother", online: Council of the Haida Nation <http://www.haidanation.ca/Pages/language /haida_legends/media/read/IllBear_Mother.html> ["Bear Mother"].
(31) Haidawood Media Project, "The Golden Spruce" (animated video), online: IsumaTV <http://www.isuma.tv/haidawood/golden-spruce> ["The Golden Spruce"].
(32) See John Vaillant, The Golden Spruce: A True Story of Myth, Madness and Greed (Toronto: Vintage Canada, 2006).
(33) "The Golden Spruce", supra note 31.
(34) See Marianne Boelscher, The Curtain Within: Haida Social and Mythical Discourse (Vancouver: University of British Columbia Press, 1988) at 87-88; Kathy Bedard Sparrow, A Haida Writing: About Chief Wiaa (MA Thesis, University of British Columbia, 2003) [unpublished] at 18-19.
(35) See e.g. "Killer Whale Man", supra note 28; "Bear Mother", supra note 30.
(36) "Athlii Gwaii: 25 Years Down the Road", Haida Laas (November 2010), online: Council of the Haida Nation <http://www.haidanation.ca> ["Athlii Gwaii"].
(37) Lawrence Jones, "Remembering Athlii Gwaii: Lawrence Jones Speaking", Haida Laas (October 2010) at 6, online: Council of the Haida Nation <http://www.haidanation.ca>; Christine Pansino, "Lyell's Enduring Legacies", Haida Laas (December 2010) at 5, online: Council of the Haida Nation <http://www.haidanation.ca>; "Celebrating Our Victories", Haida Laas (December 2010) at 7, online: Council of the Haida Nation <http://www.haidanation.ca>.
(38) Jeff Bear & Marianne Jones, Athlii Gwaii: The Line at Lyell, 2003, DVD: (Vancouver: Urbanrez Productions, 2003).
(39) The events recounted in this section are taken from the sources cited in supra notes 36-38. Where I draw a quotation from one source, I cite it; otherwise, the narrative is based on a mixture of all the sources.
(40) See SGang Gwaay, online: UNESCO <http://whc.unesco.org/en/list/157>.
(41) Bear & Jones, supra note 38.
(42) Ibid (quoting Guujaaw).
(43) Ibid (quoting Ethel Jones).
(45) This is how Sgaann 7iw7waans referred to her. "Naani" means "grandmother" in Haida language; it isn't clear whether Sgaann 7iw7waans is her grandson or is using the term in the broader sense of a respected matriarch. Either way, the term underscores a relationship of respect and love between them.
(46) "Celebrating Our Victories", supra note 37 at 8, quoting Miles Richardson Jr.
(47) Bear & Jones, supra note 38. Looking back at those events, Richardson told the CBC program BC Almanac, "People need to understand we weren't protesting, we were upholding our own laws. Haida Gwaii are Haida lands. They always have been; they always will be.... We had to fight to uphold that": BC Almanac, "Gwaii Haanas Legacy Pole Raised" (15 August 2013) (podcast), online: <http://www.cbc.ca>.
(48) Ibid. See also "Athlii Gwaii", supra note 36 at 7.
(49) Bear & Jones, supra note 38.
(51) Constitution, supra note 27.
(52) Ibid at 1.
(53) Ibid, art 2, s 1.
(54) Ibid, art 3, s 2.
(55) Ibid, art 8, s 6.
(56) Ibid at 1.
(58) Ibid, art 12, si.
(59) Ibid, art 12, s 2.
(60) Ibid, art 12, s 1(a).
(61) As an interesting example of the continued importance of matriarchs, despite their lack of a formal role in governance structures, 10 of the 27 candidates for CHN elections in 2012 named their naanis at the beginning of their candidate statements. See "Special Elections-Issue" Haida Laas (November 2012), online: Council of the Haida Nation <http://www.haidanation.ca>.
(62) Constitution, supra note 27, art 6, s 11(a); ibid, art 10, s 5(a).
(63) Ibid, art 11, ss 1(a), 3.
(64) Ibid, art 14, s 3.
(65) Ibid, art 15, s 5; ibid, art 12, s 6.
(66) Ibid, art 8, s 5.
(67) Protocol Agreement between the Counsel of the Haida Nation and the Municipalities of Port Clements and Masset, 19 March 2004, online: Council of the Haida Nation <http://www.haidanation.ca>.
(68) Protocol Agreement between the Council of the Haida Nation and the Village of Queen Charlotte, 21 November 2006, online: Council of the Haida Nation <http://www.haidanation.ca>; Protocol Agreement between the Council of the Haida Nation and the Skeena-Queen Charlotte Regional District Electoral Area D, 2006, online: Council of the Haida Nation <http://www.haidanation.ca>.
(69) Ibid at para 3.1.
(70) Ibid at para 2.3.
(71) Ibid at para 1.3.
(72) Ibid, Preamble.
(73) Ibid at para 1.3.
(74) Ibid at para 1.5.
(75) "Statement of Defence of the Province of BC", 6 June 2003, Council of the Haida Nation v British Columbia (AG), No L020662 (BCSC) at para 2, online: Council of the Haida Nation <http://www.haidanation.ca>.
(76) Ibid at para 3.
(77) Ibid at para 4.
(78) Kunst'aa Guu-Kunst'aayah Reconciliation Protocol, HaidaNation and British Columbia, 2009, online: Council of the Haida Nation <http://www.haidanation.ca>. Kunst'aa. guu and kunst'aayah mean "beginning" in the Haida language. See Williams-Davidson, supra note 9 at 7.
(79) Kunst'aa Guu-Kunst'aayah Reconciliation Protocol, supra note 78 at para A.
(80) "Working together for Haida Gwaii: 'This is ground-breaking work.'--Guujaaw", Haida Laas (May 2011) at 6, online: Council of the Haida Nation <http://www.haidanation.ca>.
(82) "Resolutions adopted at the 2010 House of Assembly", Haida Laas (October 2010) at 13, online: Council of the Haida Nation <http://www.haidanation.ca>.
(83) Constitution, supra note 27, art 3, s 2.
(84) I suggest that the "Laws of Nature" may draw also from these stories, but also more directly from traditional knowledge about natural resource use such as that engaged in the Haida Marine Traditional Knowledge, in which Haidas were trained in research skills and then interviewed Elders and others with knowledge about marine resources and their traditional use. See Haida Marine Traditional Knowledge Study Participants, Janet Winbourne & Haida Oceans Technical Team, Haida Marine Traditional Knowledge Study, Volume 1: Methods and Results Summary (Report prepared for CHN, 18 August 2011), online: Canadian Environmental Assessment Agency <http://www.ceaa.gc.ca>.
(85) Haida Gwaii Strategic Land Use Agreement, Council of the Haida Nation and Province of British Columbia (13 September 2007), online: Council of the Haida Nation <http://www.haidanation.ca> [SLUA].
(86) "Celebrating our victories" supra note 37 at 7.
(87) SLUA, supra note 85 at 10.
(88) Ibid, s 8.1.
(89) Ibid, s 8.2.
(90) "Grand Chief Stewart Phillip: You have no idea what you represent to the outside world", Haida Laas (December 2012) at 9, online: Council of the Haida Nation <http://www.haidanation.ca>.
(92) Ibid at 10.
(93) Ibid at 9.
(94) Ibid at 10.
SUSANNA QUAIL, JD, Osgoode (2014). Many thanks to Professor Andree Boisselle and to Louise Mandell, QC, for comments and encouragement. Thanks also to anonymous reviewers whose feedback greatly improved this project.
Table 1: Haida Law in Traditional Stories Yah'guudang Rights and obligations Illustration in stories principle Respect for Right to enjoy products Implicit throughout. the natural of nature world Obligation to appreciate Yaanii K'uuka: girl refuses nature's gifts salmon and berries. Obligation to take only Golden Spruce: "the people what is sustainable were taking too much". Obligation to act within Sgaan lihlaanjadaa limits of human Gyaahlaangaay: young men understanding and ignore warnings about the control of nature storm. Tree Spirit: people try to pull down magic feather. Obligation to treat all Nuu Giidee Gyaahlangee: creatures with respect * children disrespect baby octopus. Tree Spirit: people disrespect ocean person. Respect for Obligation for younger Yaanii K'uuka: girl refuses Elders people to listen to parents' food. Elders Obligation for Elders to Nuu Giidee Gyaahlangee: guide younger people children disregard Elders' warnings. Sgaan lihlaanjadaa Gyaahlaangaay: young men ignore uncles'warnings about storm. Golden Spruce: boy disobeys grandfather's command not to look back. Respect for Right to be treated with Nuu Giidee Gyaahlangee: outsiders respect children disrespect baby octopus. Obligation to treat Tree Spirit: people others with respect, disrespect ocean person. especially those who are different * * These obligations overlap, as the interactions between supernatural beings in the stories can be interpreted to apply to relations with nature as well as relations with other humans. Boundaries among natural, supernatural, and human realms are blurred or non-existent in these stories. Table 2: Haida Law in Athlii Gwaii Story Yah'guudang Rights and obligations Articulation in Athlii principle Gwaii Story Respect for Right to enjoy products Blockaders invoked the the natural of nature right of future world Corresponding obligation generations, white and to protect products of Haida, to resources of nature for future Athlii Gwaii. generation Obligation to take only Purpose of the blockade is what is sustainable to stop destructive, excessive logging. Obligation to act within Implicit: even where humans limits of human have plans for nature understanding and control (i.e., logging plans) there of nature can be unforeseen consequences (here, salmon- spawning creeks were destroyed). Respect for Obligation for younger Elders came to go first on Elders people to listen to the line; younger people Elders tried to dissuade them but eventually came to respect Obligation for Elders to their position. guide younger people Respect for Right to be treated with Haida let loggers through outsiders respect on the first day, as demonstration of respect Obligation to treat for Canadian laws. others with respect, especially those who are Haida respected position different of RCMP. RCMP showed respect for Haida: arrested in the manner Elders requested, appeared sympathetic to Haida cause, promised to ensure dignity of all involved. Table 3: Yab'guudang Principles in Contemporary Haida Law Yah'guudang Rights and Constitutional provisions principle obligations Respect for Right to enjoy Proclamation: "The living the natural products of nature generation accepts the responsibility to insure that Corresponding our heritage is passed on to obligation to following generations." protect products of nature for future A3S1: Collective rights to generations territory. A3S2(a): Right of access to resources for culture, food, commerce. Obligation to take A3S2(a): Resource use must be only what is consistent with the Laws of sustainable Nature. Obligation to act A8S6: Land and resource policies within limits of consistent with nature s ability human understanding to produce. & control of nature Respect for Obligation for Proclamation: "On these islands Elders younger people to our ancestors lived and died and listen to Elders here too, we will make our homes until called away to join them in the great beyond." Obligation for A12S1: Recognizes authority of Elders to guide "ancient clan customs" to younger people appoint Hereditary Chiefs. A12S1(a): Recognizes role of matriarchs. A6S11 (a): Hereditary Chiefs' Council (HCC) determines whether there are grounds to hold Special Assembly. A10S5(a): HCC determines whether there are grounds to hold a special sitting of the CHN. A11S1(a):HCC notified of notices of misconduct. A11S3(a): Petitions for recall vetted by HCC. A12S6: HCC to approve or disapprove any international agreement prior to referendum. A14S3: HCC to be consulted in appointing a Judicial Tribunal. Respect for Right to be treated A8S5: Peaceful co-existence with outsiders with respect other people and governments. Obligation to treat Non-constitutional: Protocol others with respect, Agreements. especially those who are different
|Printer friendly Cite/link Email Feedback|
|Publication:||University of British Columbia Law Review|
|Date:||Jul 1, 2014|
|Previous Article:||Wrongful convictions: determining culpability when the sand keeps shifting.|
|Next Article:||Wilful blindness: a confused and unnecessary basis for criminal liability?|