Nicola Lake (Photo: Diana Borges)
Reflection by Simon Owen, ILRU Senior Researcher and Lawyer
Working with Indigenous laws – especially as an outsider – often means seeing one’s own legal traditions and presumptions in a different light. This opportunity – at once uncomfortable and necessary – arose recently in a focus group conversation with an Nlaka’pamux elder. We were talking about laws of water and watershed governance, but she began with a story about child care and protection. Some years before, a relative died and she stepped forward to raise that person’s child. Because she lived near a river, however, the Ministry made a condition that she could not bring the child into her home unless she surrounded her property with a fence. This, in the Ministry’s (not unreasonable) view, would protect the child from the danger that the river posed.
For this elder, however, her responsibilities towards this young person – and to the water she lived beside – were governed by different reasoning, and required different responses. While a fence would provide protection, it would also be a tangible barrier from the water, and cause separation or interference in the maintenance of mutual well-being – of the interdependent relationship between humans and water. As this elder told us, “water is sacred. We don’t play in it. It’s a helper… it’s a living, breathing thing”. She explained how she saw her role in guiding and teaching young people to understand water in this respect, to introduce themselves to it whenever they came to it for physical or spiritual nurturance, and to treat it as it is – a powerful, generous relation – in all interactions. It would be these teachings, internalized and upheld in daily actions, that would best allow this child to safely live and thrive in their relationship with water – not a fence that would cut them off and remind them only of the water’s danger.
While it should go without saying, this elder recognized that the river outside her door could harm the child. As she told us, “water can give life and take it away”. But unlike those approaches grounded in a Western legal tradition, which so often conceive and establish laws as literal or metaphorical ‘fences’ designed to protect or punish, the Nlaka’pamux laws she sought to uphold – conceived in relationships and conveyed through stories, practices, and the land itself – were designed to nurture both safety and responsibility. The laws themselves are how we live well in this world of relationships, and living out these relationships is how we learn and uphold the law.
In the end, the elder did build that fence, so that the Ministry – as the body defining and exercising legal authority in this instance – would allow her to raise the child in her home. Perhaps the situation would be different today, in a context that more equitably recognizes Indigenous law, jurisdiction, and, crucially, the truth that different legal orders can take different approaches to responding to a common need (in this case, the care and well-being of a young child) – and that Indigenous laws respond to a broad sweep of legal obligations, expectations, and aspirations, from protection of physical bodies to nurturance of essential relationships between us and those relations that give us life. Stories like these help me understand the importance of working to revitalize Indigenous law, while sending me back to consider the limited perspectives of my own society’s worldview and laws.